Surveillance in Personal Injury Claims

Many claimants advancing personal injury actions are often surprised to learn that it is lawful for defendants and their insurance companies to covertly investigate and record plaintiffs engaged in various day-to-day activities (such as working, grocery shopping, and participating in recreational pursuits), and that such surveillance is in fact quite common. The intention behind this covert surveillance footage is to either confirm the plaintiff’s allegations of injury and functional limitation, or disprove those allegations and highlight a greater-than-reported level of function and ability. Where the surveillance footage confirms the plaintiff’s allegations, or depicts the plaintiff acting in accordance with earlier statements and claims, it can be an effective tool in helping the insurance company to realize that the plaintiff’s claim is legitimate and worthy of an appropriate compensation award. However, where a plaintiff is seen acting with greater ability than they have previously claimed - for example, working out at the gym or carrying heavy boxes of groceries when they have previously stated that they are unable to lift heavy objects - the surveillance footage can be extremely damaging to the plaintiff’s claim and greatly reduce, or in some cases, entirely prevent an award for compensation.

Courts in Canada and Alberta have repeatedly affirmed the legitimacy and admissibility of covert surveillance, and often relied heavily on this evidence when forming conclusions about a plaintiff’s credibility and presentation at trial. In the 2004 decision of Sluth v Kostyniuk, 2004 ABQB 917, the plaintiff sought compensation for injuries sustained in a motor vehicle accident, including a disc herniation in the lumbar spine. The plaintiff reported that his injuries had greatly interfered with his life and prevented him from doing many of the activities which he previously enjoyed - including yardwork, gardening, and making repairs to his car. At trial, the defendant played for the Court an 88-minute segment of surveillance video (excerpted from more than 22 hours of raw footage) which depicted the plaintiff engaged in those very activities which he claimed he was no longer able to do. The Court placed heavy reliance on that surveillance footage in assessing the plaintiff’s credibility, and even discounted the opinion of a medical expert in light of the conflicting evidence. Ultimately, the Court concluded that “this videotape, in my view, illustrates that [his] physical abilities and appearance did not accord with his subjective complaints to the medical doctors, nor with [his] testimony in Court. The videotapes do not depict a person in pain nor a person who was experiencing a back problem and significant physical limitations.” As a result of this surveillance footage, the Court greatly reduced the plaintiff’s damage award.

Although the use of surveillance footage undermined the plaintiff’s claim in Sluth, that was largely (if not entirely) due to the fact that the plaintiff had been dishonest in his past dealings with lawyers, doctors, and the Court, and misrepresented the nature and severity of his injury. This case serves to illustrate the importance of a plaintiff’s utmost honesty and truthfulness, as surveillance footage will only be harmful where it serves to contradict a plaintiff’s earlier statements and call into question their credibility. So long as plaintiffs are honest and forthright in all aspects of their claim (including when speaking with their medical professionals, treatment providers, and lawyers), then surveillance footage is unlikely to harm, and may in fact greatly strengthen, their claim.

Please do not hesitate to contact the experienced personal injury lawyers at Rodin Law Firm if you have any questions about the implications of surveillance evidence on your own injury claim. We can be reached online, or by telephone at (403) 216-0385.

Ellie Staniloff