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:
 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.
 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.
 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.
 I would dismiss this appeal.
Tag: video surveillence
Although video surveillance is not always a useful tool in personal injury litigation, it sometimes is used effectively. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating such evidence assisting in challenging a personal injury claim.
In last week’s case (Berenian v. Primus) the Plaintiff was involved in a 2006 collision when he was travelling on foot and struck by the Defendant’s vehicle. Although liability was disputed the defendant was ultimately found 100% at fault for the collision.
The Plaintiff sought damages for soft tissue injuries which he says took 18 months to clear. He further advanced a claim that the injuries “have impacted his routine… because of them, he was not able to run in the usual fashion and it was in fact some time later that he was able to get back to his pre-accident routine“.
The Defendant “robustly disputed” this allegation and produced video evidence of the Plaintiff jogging in the month following the collision. Mr. Justice Williams concluded that the injuries sustained in the collision were “fairly minor” and assessed non-pecuniary damages at $4,000. In rejecting the claims of long-standing consequences from the injuries the Court provided the following comments:
50] As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver.
 The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes.
 Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes.
 The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion.
 At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes.
 At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes.
 Quite predictably, the apparent discrepancy between these activities and the manner in which the plaintiff had represented his injuries and their effects was the basis of some real dispute at trial…
 I am concerned with the veracity of the plaintiff’s claims regarding the extent, severity and effects of the injuries he suffered. The principal basis upon which the claim rests is his testimony, his description. There is not any notable objective evidence to support his assertions of the quite extensive nature of the consequences…
 In the final analysis, I have very serious doubts as to the truth and reliability of the plaintiff’s description of the extent of the injuries and their impact upon him. My conclusion is that there was some soft tissue injury – bruising and discomfort – but it was fairly minor in that he was able to resume his running within a month. In view of that finding, while I accept there may have been some lingering residual discomfort, it would be of a fairly modest magnitude.
 Similarly, as for his claims that his neck pain continued for 12 to 18 months, that the headaches persisted for six to eight months, and his complaint of low back pain, I find that he has not proven on a balance of probabilities that such injuries resulted in discomfort such as he describes. On the evidence, it was substantially less.
After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.
The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement. ”
The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.
As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.
In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.
Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”
After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”
$135,000 was awarded for pain and suffering. The other damages awarded were as follows:
$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)
$101,436 for Past Wage Loss
$31,895 for Cost of Future Care
In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.
The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.
She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.
At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.
ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.
The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.
After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries”
The court assessed the Plaintiff’s damages as follows:
1. Pain and Suffering: $65,000
2. Special Damages (out of pocket expenses): $3,118
3. Past Wage Loss: $88,000
4. Cost of Future Care: $5,000
Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.
Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.