Surveillance and You-Tube Videos Mount "Serious Attack" on Personal Injury Claim


A few years ago I discussed  litigants spying on themselves through the use of social media.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision.  He claimed significant damages and proceeded to trial.  Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“.  The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence.   In dismissing the appeal the Court provided the following reasons:
[25]         A major thrust of the respondent’s case was an attack on the credibility of the appellant.  Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years.  The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries.  It was supplemented by YouTube videos to the same effect.
[26]         The appellant presented evidence that he has medical difficulties, both physical and mental.  The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident.  There was evidence that these difficulties were more severe manifestations of pre-existing problems.  Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
[27]         I have reviewed the litany of medical evidence as canvassed by the parties.  A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise.  In my view, there was evidence on which the jury rationally could reach its verdict.  I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
[28]         I would dismiss this appeal.

bc injury law, Bialkowski v. Banfield, credibility, Social Media, video surveillence, YouTube

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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