Untangling a Web of deception

There have been several recent cases throughout Canada where defence counsel effectively use surveillance evidence to attack a plaintiff’s credibility and undermine the plaintiff’s case.

This article will provide a case comment with respect to the cases of Ryckman v Pottinger, 2013 ONSC 2857, Iannarella v Corbett, 2012 ONSC 2253 and Bialkowski v Banfield, 2013 BCCA 130. In these cases where defendants have compelling surveillance evidence, plaintiff’s actions should be defended aggressively.

Ryckman v Pottinger

In Ryckman v Pottinger, 2013 ONSC 2857, the Court held that a plaintiff was not entitled to general damages. Credibility issues were central to this decision because of effective surveillance that called the plaintiff’s evidence into question.

The plaintiff was involved in two motor vehicle accidents; the first on January 31, 2003 and the second on November 26, 2003. Liability was admitted in both accidents. The plaintiff entered into a Perringer agreement with the defendant of the first accident and the Court heard evidence on damages.

The Court ultimately did not find the plaintiff to be credible. There was an observable difference between how the plaintiff appeared in court and how she functioned in the surveillance video.

During trial, when the plaintiff was confronted with surveillance evidence and cross examined concerning his apparent lack of credibility, the plaintiff raised the issue that on certain occasions he will experience “good days” and that the surveillance evidence had observed him on rare occasions when he was feeling better than usual. It is important to note that this is the explanation often offered by plaintiffs when confronted with surveillance evidence that calls their credibility into question and shows them performing activities that they claim they cannot do.

The Court did not accept the plaintiff’s explanation that the surveillance displayed “good days” and the plaintiff was unable to recover any general damages.

Iannarella v Corbett

In Iannarella v Corbett, 2012 ONSC 2253, the plaintiff was involved in a motor vehicle accident on February 19, 2008. Before being involved in the accident, the plaintiff had been living and working in Canada for over 30 years. Most recently, he worked at Fenco Company, a car parts manufacturer, where he supervised several workers and drove a forklift vehicle in the plant.

Prior to the accident, he was under regular care from his family doctors for a variety of ailments and his job function was modified to suit his degenerative low back limitations but he worked full time and pursued some leisure and social activities with his family and friends.

Following the accident, the plaintiff allegedly developed neck pain and over time he complained of left shoulder pain and restricted mobility of his left arm and shoulder. He claimed he was completely disabled from his modified factory job immediately following the accident and effectively from any job after the accident.

The neck injury resolved and it was not asserted that it had produced serious or permanent impairment. The plaintiff claimed that combination of left shoulder and chronic pain syndrome produced permanent limitations. The defence position was that he had long since recovered from any injuries brought about by the accident. The left shoulder operations were reasonable and necessary interventions but the defence insisted that they were not accident-caused.

The Court noted that the plaintiff was often not responsive during cross examination and when he feared being tied down to a proposition he did not like, he resisted answering at all or claimed that he did not understand the question or the concept it addressed. His understatement of his ability to speak in and comprehend the English language also hurt his credibility.

The Court stated that the surveillance evidence contradicts the plaintiff’s self description of his abilities and limitations and it demonstrates a significant level of accomplishment in the nature and extent of his usual activities of daily living, considering the plaintiff’s age. The investigators testified that on the day before the trial began, the plaintiff drove on 400 series highways in excess of the speed limit and passed cars in the process. He was accompanied by his wife; yet, both gave evidence that he rarely drove other than short distances and that he did not drive on those highways.

The Court held that the plaintiff gave an inconsistent testimony, overstating his limitations and understating his abilities. The Court did not accept the plaintiff’s description or his family’s evidence of subjective complaints and limitations as accurate, as the surveillance video showed he was capable of more, demonstrating a significant level of accomplishment in the nature and extent of his usual activities of daily living.

The Iannarella case demonstrates the court’s preference for objective surveillance evidence over subjective evidence of a plaintiff’s family that may be motivated by a desire to assist the plaintiff with respect to his or her claim. Defendants should not be discouraged by cases where a plaintiff’s family and friends support the plaintiff’s claim if that evidence is contradicted by clear and objective evidence that calls not only the plaintiff’s credibility into question but also the credibility of the plaintiffs’ family and friends.

Bialkowski v Banfield

In Bialkowski v Banfield, 2013 BCCA 130, the plaintiff, Bialkowski, was a front seat passenger in a large truck operated by his wife. Their vehicle was stopped waiting to make a turn when it was struck from behind by a motor vehicle driven by the defendant, Banfield. The truck sustained little damage; whereas, the defendant’s motor vehicle was damaged heavily.

Prior to the accident, Bialkowski had been seeing medical professionals for problems with migraines and other injuries sustained in a work-related accident. He saw his family doctor for a previously-arranged appointment two days after the accident and reported he had no injuries from the accident. Two days later, he went back to the doctor and the doctor found he had a whiplash-type injury. The plaintiff also relied on the evidence of a physiotherapist, Maria Christian, who testified that she observed indicia of physical injury. The defendant asserted that she was the only person who testified to objective signs of injuries and that her evidence was at odds with the evidence of doctors who did not observe such symptoms.

Bialkowski was off work for a week after the accident, and then returned but left after one hour. He never worked again.

The focus of the defendant’s case was that the plaintiff lacked credibility and that he had failed to provide credible evidence that his injuries were caused by the accident or that they continued to cause him any impairment. The defendant’s evidence of surveillance of the plaintiff provided objective evidence of him performing activities that he had testified that he was unable to do.

In Le v Milburn, [1987] BCJ No. 2690 (SC), Madam Justice Southin stated: “When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth form the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame .”

The Court in this case found Bialkowski lacked credibility in claiming he was injured in the motor vehicle accident. 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.

This case illustrates that surveillance evidence can greatly assist the court in cases where there is contradictory medical evidence and can assist the court in deciding weight to
be given to conflicting medical evidence while also providing a means to assess the plaintiff’s credibility.

Importance of Surveillance

Surveillance is a useful tool when attempting to assess a plaintiff’s credibility. Surveillance showing a plaintiff to be more active than he or she admits to or appearing better than he or she attempts to present at examinations or at trial will be paramount in attempting to weaken the plaintiff’s credibility. While one might be concerned that the cost associated with surveillance of a plaintiff may not be warranted, the considerable savings that can be achieved from using surveillance when it is beneficial far outweigh the costs associated with occasional rounds of surveillance not yielding expected results. There is a substantial benefit to using surveillance as a means to explore the issue of whether a plaintiff is credible.

Surveillance evidence can be a determining factor in assessment of damages and a plaintiff’s credibity. In order to take full advantage of the benefits of surveillance defence counsel should keep the following issues in mind. Plaintiffs often will try to limit the weight of surveillance evidence by claiming it occurred on good days. Defendants can address this criticism by having several days of surveillance so that the explanation of “good days” will seem less plausible.

Also, it is important for defence counsel to obtain evidence of the plaintiff’s best case performance of activities of daily living. The goal at examination should be to get quantifiable and clear evidence from the plaintiff with respect to their abilities and disabilities so that when surveillance is obtained it can be judged objectively and the plaintiff will not be able to explain it away with excuses suggesting they were experiencing “good days.”

Robert McGlashan is an associate with McCague Borlack and a CDL Board Member. His litigation practice includes insurance, professional negligence, personal injury, employment, commercial, and family matters. Brittany Sud is a Summer Student at McCague Borlack. CDL is a national organization representing the interests of civil defence lawyers through CLE, advocacy and networking within the insurance community.