Did you know that if you’re hurt in a car crash, the defence (i.e., ICBC) may secretly film your activities after the accident to try and discredit you or reduce your claim?
Car crashes often lead to whiplash and other types of soft tissue injuries to the neck and back. These types of injuries, and the pain they cause, are very real and sometimes persist for years. Unfortunately, they’re notoriously hard to pin down objectively by medical tests. Courts must therefore rely on your own testimony, medical records of your complaints to your doctor or therapists, and expert opinions.
To counter this evidence, ICBC may secretly videotape some of your day-to-day activities in the months and years after the accident. The defence may then show this footage in court to try and prove that you aren’t a reliable and credible witness and that you are exaggerating your claims of ongoing pain or limited mobility.
Consider this 2011 case in our Supreme Court. The plaintiff’s car was hit by another vehicle going through the intersection against a red stop light. At trial, four years later, a key issue was how much the plaintiff’s ongoing back problems (caused by the accident) still hurt her and limited her functioning.
The court was shown footage of surveillance videotape surreptitiously filmed on several different dates over the years. Some of these tapes, particularly the 2009 and 2010 ones, showed her walking stiffly but normally (rather than with the limp or waddle she said she had developed) and loading and unloading a cart full of groceries, loading a three- or four-foot house plant into her car, and squatting, getting up and moving around a garden centre, all without apparent difficulty.
“The impression left by the videotape evidence is of an individual less limited than [the plaintiff’s evidence] would lead one to conclude,” said the court (which noted that other evidence also supported this conclusion).
She had claimed $75,000 for her pain and suffering from accident. While she got less, the BC Supreme Court still gave her judgment for $40,000 for her pain and suffering (in addition to other compensation).
In another case, the plaintiff injured his shoulder in a rear-end crash. The court was shown videotape surveillance evidence showing him grocery shopping and unloading objects into his car. In this case, however, the BC Supreme Court decided the video footage didn’t contradict or cast serious doubt on his credibility. His doctors had told him to continue to use his left arm and shoulder; the footage simply confirmed that when lifting heavy objects, he was “careful to use both arms” and often used his body to support the object. His main complaint was that he had pain when using his left arm and shoulder, and “a videotape cannot capture all pain,” said the court. He received $45,000 for his pain and suffering (and more than $86,000 in total compensation).
If you have a personal injury claim, you should be mindful that you may be the subject of video surveillance after the car accident – perhaps even years later, when the accident has faded from memory and you are going about your daily activities. And if hurt in an accident of any type, you should consult a lawyer who can advise you, protect your legal rights and help you recover fair compensation.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.
