Judge Criticizes Video Surveillance

Video surveillance criticized by judge

There are times when video surveillance can backfire on a defendant and have the opposite effect as was intended.

A recent example is the case of MADILL V. SITHIVONG, 2010 BCSC 1848.

This case was a claim for damages arising out of a motor vehicle accident occurring on June 28, 2004. The plaintiff, Mr. Madill, was a passenger in a vehicle operated by one defendant when the car was struck by another vehicle operated by a second defendant. Mr. Madill made a claim for general damages among other things which included injuries to his neck, arm, lower back, and right leg. He also claimed he suffered a mild traumatic brain injury, which was accompanied by vision, balance, and memory problems.

Much of the evidence at trial related to the plaintiff’s loss in quality of life. Before the accident, he was employed by a trucking company and would often work 70 hours per week with energy to spare. He led a satisfying and active lifestyle with his wife, with whom he shared a passion for motorcycles. Mr. Madill owned a Harley Davidson ultra classic, and his wife testified that they were out riding almost every evening. Their bikes were insured year round, and they logged approximately 35,000km per year, which included weekend trips.

Mr. Madill’s loss of balance caused by the accident meant that he could no longer ride motorcycles the way he used to. He could not ride the ultra classic and it was put in storage, eventually to be sold. To make up for it, Ms. Madill purchased for the plaintiff a Harley Davidson “trike”, which was essentially a motorcycle with training wheels. Mr. Madill testified that they were still able to take shorter trips, but that the bike wasn’t good for group rides, and that he felt embarrassed by it. Things simply were not the same.

The defendants argued that Mr. Madill was exaggerating his injuries. To support this assertion, they tendered video surveillance. Evidence given by three experienced private investigators hired by ICBC disclosed surveillance on Mr. Madill on at least 12 separate occasions. The plaintiff expressed deep resentment at the many days of surveillance that had occurred since the accident. He said: “they follow me all the time. They videotape me all the time.” The surveillance was generally for long hours, all videotaped. It began at times from early morning at the plaintiff’s home, and followed him driving on streets and highways; it showed the plaintiff at a nursery looking over plants with his wife; at work in a truck yard, moving vehicles, walking around, washing a truck. In May 2006, the videos over three days followed his preparations and driving to haul the airplane tail from the airport to the U.S. border.

The trial judge took serious exception to the extensive video and the manner in which it was taken. 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. It was noted “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.”

In the end, the trial judge “found the tapes did little to advance the case of the defendants”. In fact, the 2010 tapes showing Mr. Madill on the trike actually hurt the defence case. The suggestion that Mr. Madill was exaggerating or making up his injuries “was not fair or appropriate, given all the evidence’”. The tapes did not and could not convey the picture of someone going through symptoms that Mr. Madill has experienced sometimes daily, sometimes weekly.

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