McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

October 2018

Surveillance

Activities and Problems

Bogdan Miscevic
Bogdan Miscevic,
Associate Lawyer

 

By Bogdan Miscevic

Presented at a Client Seminar on Surveillance

The assessment of damages in personal injury claims is often challenging when dealing with injuries that cannot be measured objectively. Cases involving plaintiffs or applicants who allegedly suffer from chronic pain, fibromyalgia, or other conditions involving a persistent experience of pain, present an obvious problem with respect to quantifying damages.

Although the Supreme Court of Canada in Nova Scotia (Workers' Comparison Board) v. Martin has concluded that “chronic pain patients are suffering and in distress, and that the disability they experience is real”, there nonetheless exists unscrupulous plaintiffs or applicants that feign or exaggerate chronic pain symptoms in an effort to cash in on claims against insurance companies.

Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs or applicants that legitimately suffer from chronic pain and those who do not. The plaintiff's or applicant's credibility becomes a central issue in the litigation, and counsel often looks to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's or applicant's credibility and challenge the validity of his or her claim.

Continuous surveillance evidence over a period of several days can greatly assist defence counsel to either build his or her case or justify an early settlement.

Surveillance is a powerful tool in cases involving plaintiffs or applicants with chronic pain because it can lend objectivity to a case rife with subjective reporting. Continuous surveillance evidence over a period of several days can greatly assist defence counsel to either build his or her case or justify an early settlement. Video footage that shows a plaintiff or applicant engaged in physical activity that belies his or her alleged physical limitations, can have a significant impact on the integrity of the plaintiff's or applicant's claim. Conversely, surveillance that fails to depict the plaintiff or applicant for a sufficiently continuous time period, or that only shows the plaintiff or applicant engaged in physical activities that are not strenuous, will not harm the defendant's case. Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

Surveillance in accident benefits and tort litigation can be an essential part of the defence's theory of the case and the primary reason for the judge or adjudicator to rule in the defence's favour. The surveillance may expose the plaintiff or the applicant by demonstrating that he or she is, in fact, capable of engaging in activities that contradict the alleged injuries. Having said that, it is important to note that surveillance generally captures mundane events, rather than capturing a “gotcha moment”.

Giving Proper Instructions

It is important for the lawyer or the adjuster to provide proper instructions to the surveillance investigator prior to the surveillance. For instance, if the lawyer or adjuster has already conducted online social media surveillance, it might be wise to instruct the investigator to steer away from social media searches and focus on fieldwork. This avoids duplication of work and additional costs and, possibly, prematurely running out of the surveillance budget.

Also, it is important to provide the investigator with the correct and current information regarding the plaintiff or applicant (i.e. updated address information, telephone number etc.) In addition, if available, the investigator should be provided with a current photograph of the plaintiff or applicant. The driver's licence might be in the property damage file or there might have been a photograph of the plaintiff or applicant recovered from the lawyer's or adjuster's online social media search. This avoids unnecessary strain on the budget by wasting time on the investigator having to identify the subject or much worse, conducting surveillance on the wrong subject.

Activites Recorded

The surveillance investigator should ensure that the surveillance is exclusively conducted in a public area. In other words, the investigator should not be attempting to enter the property where the plaintiff or the applicant resides and record private places (i.e. conducting surveillance through house windows or blinds).

The investigator should be provided with a list of injuries or complaints that the plaintiff or the applicant is having prior to conducting surveillance.

The investigator should be provided with a list of injuries or complaints that the plaintiff or the applicant is having prior to conducting surveillance. This should maximize the surveillance potential as it would allow the surveillance investigator to capture certain activities that the plaintiff or the applicant indicated they are unable to do following the subject accident (i.e. operating a motor vehicle or riding a bicycle). For instance, if the plaintiff or the applicant claimed at discoveries or examinations under oath (EUO) that he or she has a fear of driving and has not operated a motor vehicle since the accident, then a video footage of the subject driving a motor vehicle on Highway 401 at the speed of 140 km/hour for extended period of time is highly relevant to the case!

In some cases, even if the court or tribunal accepts that a plaintiff or applicant honestly suffers from a particular injury or complaint (i.e. chronic pain), surveillance can persuade the trier-of-fact to find that the degree of disability is not as significant as reported.

As such, activities recorded do not only play a role in discrediting the individual but can also demonstrate the degree of disability (typically a lesser degree than what the subject or his or her counsel claimed).

Closing Remarks

Surveillance can prove essential to exposing unfounded or exaggerated personal injury claims. Given the limitations that may be imposed on the use of surveillance evidence, insurers must be cognizant of the rules related to surveillance in order to ensure that steps are taken early in the litigation process to protect its efficacy. If obtained early in the litigation process, surveillance can benefit all parties, as it has the potential to reveal exaggerated claims, but also to concretize plaintiffs' allegations. Whatever the case, surveillance evidence that reveals the extent of a plaintiff's limitations lends certainty to the litigation process and encourages the parties to take a reasonable approach to settlement.


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