This sounds like a plot from a television comedy series: A car accident victim sues the negligent driver for damages. The victim said he suffered terrible injuries in the crash. But at trial, the defence dramatically produces surveillance camera footage showing the “injured” victim skiing or engaging in some other strenuous physical activity that proves he was never seriously injured.
Unfortunately, these scenarios are not limited to works of fiction. In reality, insurance companies–including ICBC–routinely hire private investigators to follow and record the activities of accident victims.
Obviously, an investigator cannot break into your house and install cameras without your knowledge, but if you are out and about in public, your movements may be fair game for anyone with a camera. The resulting ICBC surveillance footage may be used to undermine your credibility in a subsequent personal injury lawsuit.
The use of surveillance footage can do more than defeat your claim for damages. It may also force you to pay the defendant. Remember, Canada follows a “loser pays” rule in most civil lawsuits, which means the prevailing party in litigation may seek lawyer’s fees and trial costs from the other side.
Consider this recent decision by the B.C. Supreme Court, Brar v. Ismail. In this case, the plaintiff sought damages for injuries she sustained in a rear-end auto accident. The defendants did not contest liability for the accident itself, but they demanded a jury trial on the issue of damages.
Approximately two months before the trial began, the defence offered to settle the plaintiff’s claims for $50,000 plus costs. The plaintiff declined the offer.
A few weeks later–less than three weeks before trial–the defendants “served the plaintiff with video surveillance done of her,” according to court records. This surveillance took place over an extended period of time–from September 2015 to at least January 2018.
Of particular relevance, the surveillance footage showed the plaintiff working out at a local gym during a two-day period in May 2016. Three weeks earlier, the plaintiff told her doctor that she was “limited to 10- to 15-minute walks twice a week after which she is fatigued and lies down for half an hour,” due to her accident-related injuries.
She also told the doctor she found it “too difficult” to do her own grocery shopping, and that she could not “use her left hand and arm.” The plaintiff also made similar statements to a rehabilitation counsellor just three days before she was recorded at the gym “exercising briskly on a treadmill and elliptical machine.”
Five days before trial, and for the first time since delivering the surveillance footage, the defendants offered to settle the case for $65,000 plus costs. The plaintiff again declined, and the case went to trial, where the jury saw the surveillance footage. The jury returned with a verdict awarding zero damages to the plaintiff. The defence then applied for costs.
Justice Elliott M. Myers of Vancouver reviewed the application. In a September 13, 2018, judgment, he largely sided with the defence. At the outset, the judge reiterated the basic rule in British Columbia, which is that the “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.” There was no question the defence was the “successful party.”
Nevertheless, the plaintiff pointed to two special circumstances that justified her not paying costs: First, the case “was a close one on credibility and therefore unpredictable”; and second, she was a person of “modest financial means” and her financial circumstances relative to the defendants would make award of costs unfair.
Justice Myers rejected both of these arguments. Regarding the first point, the judge concluded, rather bluntly, that this was not a “close case.” The jury’s verdict essentially turned on its assessment of the plaintiff’s credibility. He noted the video surveillance was “compelling” in this case and effectively contradicted much of the plaintiff’s own testimony regarding her injuries.
Indeed, the defence managed to poke a number of holes in the plaintiff’s story even apart from the surveillance footage. For example, Justice Myers said the plaintiff testified that “she was disoriented and vomited at the accident scene,” but at least two witnesses contradicted that account.
As for the plaintiff’s financial circumstances, that is simply not relevant to a decision whether to award a prevailing party “basic costs.” However, it may be considered when determining an award of special or “double” costs, which the defence requested in this case. In addition to the “relative” financial position of the parties, the judge must also examine whether a party’s refusal to settle was unreasonable in light of the jury’s verdict.
Here, Justice Myers focused on the timing of the defence’s settlement offer rather than the amount. As discussed above, the defence made its $65,000 offer after it disclosed the ICBC surveillance footage to the plaintiff but only five days before trial. There was nothing improper about this, Justice Myers noted, but it still left the plaintiff little time to consider the offer before deciding to take her chances with the jury.
In other words, the defence could have made its disclosure and offer much earlier in the process. By choosing not to do so, Justice Myers concluded the defence was only entitled to double costs for some portion of the trial. The trial itself lasted two weeks; the judge held the defence would receive regular costs for the first five days, and double costs for the balance.
Credibility is essential to winning any personal injury claim. You should never lie or intentionally exaggerate your injuries in the hopes of currying favour with a judge or jury, but you should also never hesitate to pursue legitimate damages, even when an insurance company tries to intimidate you by recording you without your knowledge.