Tag: video surveillance

Court Allows Video Surveillance Evidence Despite Defence Failing to List Document

Written by admin on May 30, 2018. Posted in ICBC Privacy Issues.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, allowing the introduction of video surveillance evidence despite counsel failing to disclose this evidence on their list of documents.
In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages. The Defendant “retained a private investigator and, on June 27, 2016, filmed a short video of the plaintiff at the Vancouver International Airport accompanied by his wife and children.” Plaintiff’s counsel was provided the video ahead of a mediation but the document was never listed on the Defendant’s formal list of documents. The Plaintiff objected to the video’s introduction at trial but the Court ruled the evidence was admissible as there was a lack of prejudice from the failed disclosure. In reaching this conclusion Madam Justice MacNaughton provided the following reasons:

[34] I have concluded that the video evidence should be admitted. While I agree that the defendant had a clear obligation under Rule 7‑1(9) to list the video as a document as soon as it came into his possession, I accept defence counsel’s representation that the failure to list the video was not for a tactical advantage at trial. Counsel frankly acknowledged that it was an oversight on her part, and as soon as the plaintiff raised the issue, the video was listed in the supplementary list of documents. The late listing of the video has not caused the plaintiff prejudice.

[35] If it had been listed in the summer of 2016, presumably it would have been done so as a privileged document. The plaintiff would have known of its existence, but not its content, as the video was not required to be disclosed until the defendant determined to rely on it at trial. On that determination, the video was disclosed to the plaintiff. The disclosure was in advance of the deadline for disclosure in Rule 12‑5(10).

[36] The plaintiff has had time to consider the video and to prepare to address it in his evidence at trial. The defendant had the right to investigate the plaintiff’s claims and the video is relevant to the issues the plaintiff has put before the court.

[37] As to the issue of privacy, the video was taken at Vancouver International Airport at the passenger pickup area. The plaintiff and his family had no reasonable expectation of privacy while at the airport. The video focuses on the plaintiff, and the plaintiff’s spouse and the children are incidental to that focus or in the background of the video. Counsel for the defendant has obscured the faces of the children so that they are not identifiable.

[38] In all these circumstances, I conclude that the video ought to be admitted.

Video Surveillance Helps Deflate Personal Injury Claim

Written by admin on April 6, 2017. Posted in Uncategorized.

In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries. Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.
In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages. Fault was admitted by the Defendant motorists. The Plaintiff was self-represented and sought approximately $1.4 million in damages. The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages. In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114] The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115] On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116] Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117] Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118] Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119] In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120] At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121] Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122] What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123] She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124] She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125] On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126] I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127] Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

…

[315] I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.

Video Surveillance Influences Chronic Soft Tissue Injury Trial

Written by admin on November 4, 2013. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009. The Defendant admitted fault. The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain. The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived. In reaching this decision the Court was influenced by video surveillance evidence. In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

From Medical Marijuana to Surveillance and More

Written by admin on March 1, 2013. Posted in Uncategorized.

As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts. I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary. In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest. The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision. Both motorists claimed they had a green light which simply could not be true. The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault. The Plaintiff claimed damages of over $450,000. The Court rejected most of these claimed damages and in doing so illustrated the following points:
Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court. Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:
[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial. These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer. This included squatting, and holding a tripod above his head to take pictures. He moved fluidly, in and out of the driver’s seat, apparently without discomfort. He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court. The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day. However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana. I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts. The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.
[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors. However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic. I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…
[106]     I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.
Medical Marijuana
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana. While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana. The defendant pursued such an analysis with apparent success. In rejecting these claimed damages the Court provided the following analysis:
[60]         On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before. Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…
[112]     The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it. However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes. His internet postings suggest that. Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…
[120]     The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000. The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). As such, I award nothing for the cost of future care.
Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits I have canvassed this topic previously. In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury. The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim. The following observation was made by Justice Sigurdson:
[65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries. From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion. Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…
[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit. He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes. The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor. Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.

Videotape Evidence "Of Some Assistance" in Impacting Personal Injury Claim

Written by admin on January 2, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Privacy Issues, Uncategorized.

As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.
In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC. The Defendant drove through a red light and was found fully at fault for the crash. The Plaintiff suffered from back problems as a result of the collision. In the course of trial the Plaintiff testified as to the effects of these injuries. ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

[18] The January and February 2008 videotape evidence is of little assistance – the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

Mitigation of Damages

This case is also worth reviewing for the Court’s application of the mitigation principle. Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms. The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances. Mr. Justice Barrow provided the the following reasons:

[50] Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.

[51] The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.

"Demystifying" Mild Traumatic Brain Injury

Written by admin on December 29, 2010. Posted in ICBC Head Injury Cases, ICBC Privacy Issues, ICBC Wage Loss, Uncategorized.

(Update: the Defendant’s Appeal of the below judgement was dismissed by the BC Court of Appeal on February 7, 2012)
Many of you may be aware of ICBC’s current “demystifying” campaign. There are many misunderstood topics related to injury lawsuits and one of the most prominent is that of mild traumatic brain injury (MTBI). Reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demystifying some of the arguments that are commonly raised in opposition to these claims.
In today’s case (Madill v. Sithivong) the Plaintiff was involved in a 2004 BC motor vehicle collision. The Plaintiff’s vehicle was struck on the passenger side by the Defendant’s vehicle. The issue of fault was admitted by the Defendant with the trial largely focussing on the value of the Plaintiff’s claim.
The collision was not significant, from a vehicle damage perspective, causing little over $1,700 in damage to the Plaintiff vehicle. Despite this the Plaintiff suffered a traumatic brain injury in the crash. ICBC argued that the injuries were not serious in part because the vehicle damage was modest, the Plaintiff had a ‘normal‘ Glasgow Coma Scale score of 15/15 noted on the ambulance crew report and that the hospital records relating to the treatment of the Plaintiff noted that he suffered from “No LOC (loss of consciousness)” and “zero amnesia“.
The Plaintiff called evidence from Dr. Hunt, a well respected neurosurgeon, who gave evidence that the above facts were not determinative of whether the Plaintiff suffered from serious consequences related to MTBI. Madam Justice Morrison was persuaded by Dr. Hunts’ evidence and accepted that the Plaintiff suffered from long term consequences as a result of an acquired brain injury. In rejecting the defence arguments Madam Justice Morrison provided the following ‘demystifying‘ reasons:

[112] Dr. Hunt said he tries to concentrate on the individual. He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders. But he notes that those doctors are very busy, and things get overlooked. The same is true with an ambulance crew. Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness. An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading. He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.

[113] Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”. It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there. A person does not need to strike his head for a concussion to have occurred. It need only have been a shaking.

[114] It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports. He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur. Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware. But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury. There may be no indication of bruises on the head, but it still could be a concussion. Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.

[115] Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.

[116] In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred: headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress. “A concussion is a mild traumatic brain injury. We no longer grade concussions.”

[117] I found Dr. Hunt to be an excellent witness. He was cautious, detailed, thoughtful, low key, thorough and utterly professional. In cross-examination, he gave a minor clinic on mild traumatic brain injuries. He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.

[118] He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion. He believes that the first responders’ observations are not always accurate as to what actually happened. He said he himself may not have identified problems of concussion at the scene of the accident. Ninety percent of people with concussions have headaches. They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.

[119] Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler. He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries. “Concussion is cumulative.”

[120] I found the report and the evidence of Dr. Hunt persuasive. He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.

In addition to the above, two other topics were of interest in todays’ case. Evidence was presented by ICBC though private investigtors they hired who conducted video surveillance of the Plaintiff. The Court found that this evidence was of little value but prior to doing so Madam Justice Morrison made the following critical observations:

[74] Much of the videotaping occurred while both the plaintiff and the private investigator were moving on streets and highways, driving at the speed of other traffic. The investigators testified they drove with one hand on the wheel and the other hand operating the video camera, up at the side of their head, to allow them to view through the camera what they were taping. That continues to be their practice today, according to at least one of the investigators, which was interesting, considering from whom they receive their instructions, a corporation dedicated to road safety.

Lastly, this case is worth reviewing for the Court’s discussion of diminished earning capacity. In short the Plaintiff was self employed with his spouse. Despite his injuries he was able to continue working but his spouse took on greater responsibility following the collision. The Court recognized that the Plaintiff suffered from a diminisehd earning capacity and awarded $650,000 for this loss. Paragraphgs 193-210 of the judgement contain the Court’s discussion of this topic.

Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required

Written by admin on December 27, 2010. Posted in BC Supreme Court Costs Cases, ICBC Privacy Issues, Uncategorized. 49 Comments on Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required

If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue. As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements. This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision. In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000. About 16 months later the Plaintiff accepted the offer. The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.
After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000. Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff. These accounts totalled almost $20,000.
The Plaintiff argued that ICBC’s disbursements were unreasoble. Eventually the BC Supreme Court was asked to decide the issue. Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000. In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11] As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12] I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

Damaging Your Personal Injury Claim: Spying on Yourself

Written by admin on August 12, 2010. Posted in ICBC Privacy Issues, Uncategorized. 58 Comments on Damaging Your Personal Injury Claim: Spying on Yourself

It’s a not so well-kept secret that Insurance Companies often hire private investigators to conduct video surveillance of people involved in personal injury claims. Sometimes the efforts pay off in uncovering a fraudulent claim. More often than not hours of bland video are produced doing little more than intruding on the privacy of an injured plaintiff.
These days, however, private investigators may play less of a role as many Plaintiffs are doing the surveillance work themselves. That’s right, Plaintiffs spy on themselves and hand the goods right over to the Insurance Company.
I’m talking about the liberal use of social media, specifically YouTube. When you or a friend make a film and post it on YouTube chances are the video will be of better quality and give more intimate access to your life than anything a Private Investigator can put together. PI’s often film from the bushes, a van or other less than ideal locations. The videos produced are often grainy, distant and of poor quality. Most videos uploaded to YouTube, on the other hand, are up close and personal. These videos can give a lot of insight into a person’s life.
Whether or not these videos are damaging to your claim insurance companies are viewing them. This information can either be directly used against you or will give the insurance company further avenues to pursue in trying to damage your personal injury claim.
The reality is that insurance companies are effectively using social media and uncovering a gold-mine of useful information in the process. As I’ve previously written, the mere mention of ICBC on twitter will immediately bring you to their attention. If you’re using social media be aware that your audience is bigger than you intend.