For many insurers and defence lawyers, the ultimate defence in a personal injury action is catching an allegedly injured plaintiff doing activities through surveillance that that individual either has denied being able to do or simply should not be doing given the individual’s alleged limitations.
The right surveillance results can ultimately lead to the plaintiff “walking away” from his/her action. Most experienced insurers and defence lawyers have at least one or two stories to tell where the surveillance obtained was enough to get the plaintiff to agree outright to a dismissal of his/her action. What type of surveillance could generate such results? A plaintiff working all day in a construction site. A plaintiff dancing the night away in a night club. A plaintiff building a deck in his/ her backyard. All of these scenarios can lead to a plaintiff withdrawing or discontinuing his/her action against defendants.
Unfortunately, the reality is that obtaining such probative surveillance does not occur very often. In fact, surveillance is mostly a “hit or miss” proposition given that in most cases, surveillance investigators do not even know of what the plaintiff’s usual daily activities consist. Therefore, insurers and defence lawyers simply hope that the plaintiff’s usual daily activities will be more than what the plaintiff has testified to being able to do. Sometimes, insurers and/or defence lawyers are hesitant to arrange for surveillance given these “hit and miss” results. Discouragement can likely occur when surveillance footage only shows a plaintiff doing various mundane daily activities such as shopping, driving a vehicle or sweeping the front steps of the home. Even if a plaintiff is caught doing more difficult activities than he/she let on being able to do, the classic defence for a plaintiff confronted with such evidence is to simply state that he/she had “a good day”.
The good news for insurers and defence lawyers is that sometimes, even simple surveillance results can be enough to completely derail a plaintiff’s action. In the unreported motion decision of Dahrouj v. Aduvala (July 12, 2012), Justice Hackland had to decide whether the plaintiff’s chronic pain complaints to her neck, left shoulder radiating down to her left arm, lower back, right leg and knee; headaches; sleeping problems; fatigue; and depression and anxiety; all alleged to arise from a motor vehicle accident on October 10, 2007 were enough to surpass the statutory threshold for damages: “a permanent serious disfigurement” and/or a “permanent, serious impairment of an important physical, mental or psychological function”.
In Dahrouj v. Aduvala, the plaintiff alleged that her homemaking and meal preparation activities, both for her family and herself, were significantly limited as a result of the motor vehicle accident. The defendant took the position that the plaintiff sustained minor soft tissue injuries in the accident that caused a brief aggravation of her well documented pre‑existing pain. As with most trials involving chronic pain cases, the plaintiff’s credibility was a key issue. The defendant had obtained surveillance documenting the plaintiff chopping ice and snow off her car in the morning after an ice storm, pumping gas, reaching for groceries on the upper shelf of a food store, and carrying juice containers and bags of groceries up her steps into her home unassisted. Justice Hackland found that “The defendant arranged for surveillance of the plaintiff which, in my view, was particularly devastating to her credibility and showed her to be capable of vigorous and sustained activity, including stretching and lifting – the very activities which allegedly restricted her functioning as a homemaker.” The judge ruled that the plaintiff’s injuries did not meet the statutory threshold for damages.
Threshold motion decisions such as Dahrouj v. Aduvala clearly indicate that surveillance results do not have to be perfect. Catching a plaintiff doing simple day to day activities, particularly in a “chronic pain” case, can be enough to derail a plaintiff’s action or seriously discredit a plaintiff’s credibility. Accordingly, insurers and defence lawyers should not hesitate to obtain multiple rounds of surveillance against a plaintiff that they feel might be exaggerating the extent of his/her alleged injuries. Even if one round of surveillance provides no results, another round of surveillance might lead to results that are enough to get the plaintiff to abandon the action or ultimately lose the case at trial.
Ed. Note: Kirk Boyd and Kim Dullet of BLG’s Ottawa office successfully acted for the defendant in the threshold motion in the Dahrouj v. Aduvala case.