Effect of Video Surveillance on Assessment of Damages

Roadside cameras used in surveying and assessing damages from accidents

On December 23, 2011, the BC Supreme Court released a decision on the use of video surveillance evidence in a motor vehicle accident case. In WILKINSON V. WHITLOCK, 2011 BCSC 1781 the Plaintiff was injured in a 2007 motor vehicle accident in Vernon, BC. The Defendant was found completely at fault after it was determined that she drove through a red light and collided with the Plaintiff’s vehicle. As a result of the collision, the Plaintiff claimed that she suffered an injury to her back. During the trial, the Plaintiff testified about her symptoms.

In response to the Plaintiff’s complaints of pain and suffering, ICBC introduced video surveillance in an attempt to show that the Plaintiff was “less limited” in her physical ability than the impression that she gave on discovery and at trial.

Justice Barrow examined the evidence and provided his reasons as follows:

[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.

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[21]         I DO NOT THINK THAT MS. WILKINSON WAS TRYING TO DELIBERATELY MISLEAD THE COURT OR DR. MCCANN; RATHER I THINK SHE DESCRIBED HER CURRENT AND PAST MEDICAL ISSUES AS SHE NOW BELIEVES THEM TO BE OR TO HAVE BEEN. WHAT ALL THESE MATTERS SHOW HOWEVER IS THAT MS. WILKINSON IS NOT A PARTICULARLY RELIABLE HISTORIAN; THAT SHE UNDERSTATED HER PRIOR LOW BACK PROBLEMS AND TO A DEGREE OVERSTATED HER POST-MOTOR VEHICLE ACCIDENT LIMITATIONS.

Accordingly, the court did not conclude that the Plaintiff was deliberately misleading. After reviewing the video evidence, however, it noted that the Plaintiff was not particularly accurate in her description of injuries. Although the video evidence did not affect the court’s opinion of the plaintiff’s credibility, the videos demonstrated that the plaintiff overstated her complaints of pain in the hip and groin.

The court concluded that the Plaintiff had suffered mild to moderate soft tissue injury to her lower back. It awarded the Plaintiff $40,000 in non-pecuniary damages. The Plaintiff was also awarded $4,250 in past loss of income, $33,060 in future care costs, and $1,349 in special damages.

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