Video Evidence can be used against you in a Personal Injury Lawsuit

Posted by Stevenson Whelton MacDonald & Swan
July 16, 2019

Two key issues to be decided in a personal injury lawsuit are the severity of injury and the amount of losses experienced by the accident victim.  These issues directly impact the amount of compensation the injured person is entitled to receive.

One of the factors judges and juries commonly assess in the course of resolving these key issues is whether they believe the plaintiff (the injured person) is being honest in describing their injuries, their level of pain and how their injuries effect their normal activities.  Along with medical evidence provided by the plaintiff’s physician(s) and other health care professionals, a plaintiff’s credibility is important in proving their case. Consequently, whether or not the plaintiff is being forthright or exaggerating their injuries, strongly influences a judge’s or jury’s perception of the degree to which the plaintiff’s injury affects their level of function and quality of life. 

It’s not common for defendants and insurance companies to hire investigators to obtain video evidence of the plaintiff in a personal injury lawsuit.  If the video evidence shows the plaintiff actively involved in normal activities, the defendant can argue that the plaintiff is not credible when they claim that the injury is limiting their normal function.  While the video evidence may not serve as proof of the severity of the plaintiff’s injury, it can serve to challenge the plaintiff’s credibility if the Court finds that the plaintiff’s actions in the video conflict with their testimony.

Howe v. Garcia is a civil action that was commenced after a woman was hurt in an automobile accident.  The other driver (the defendant) admitted fault and liability for the accident, but challenged the plaintiff’s description of the extent of her injuries and the amount of damages being sought. The plaintiff claimed that she suffered chronic pain in her lower back and neck, in addition to headaches.  Further, she said that her pain prevented her from doing any gainful work and interfered with her ability to perform household chores and other activities she previously enjoyed.   

The defendant hired an investigator who videotaped the plaintiff on five occasions, and the defendant’s lawyer sought to have the videotapes admitted in evidence for the purpose of challenging the plaintiff’s testimony in cross-examination.  The videotapes were viewed by the Court and depicted the plaintiff in a variety of activities.  She was seen shopping at the grocery store, negotiating a shopping cart through the aisles, reaching and lifting items with her left arm, checking out, and carrying her grocery bag to the car.  On other occasions, she was seen carrying shopping bags into the house from her car, planting flowers with her grandchildren and daughter, watering the plants, and walking around the house with no apparent difficulty.  

Under the Rules of Civil Procedure, when a party has not given notice in writing and provided a copy of a document or produced the document for inspection “at least 90 days before the commencement of the trial, the party may not use the document at the trial, except to impeach the testimony of a witness or with leave of the trial judge”.  In the current case, the plaintiff was not provided the videotapes before they were viewed in Court. The plaintiff argued that there were no inconsistencies in her evidence in discovery, at trial and in the surveillance tapes, and the tapes are inadmissible.

The plaintiff and defence agreed that the videotapes could not be used as substantive evidence.  On the question of whether the tapes could be presented in the jury trial to determine the issue of damages, the judge ruled that the prejudicial value of the videos did not outweigh their probative value and in the future trial, the jury will be instructed not to use the tapes as evidence of the plaintiff’s physical capabilities.  The judge further stated that the surveillance tapes are relevant to the plaintiff’s credibility and could undermine the plaintiff’s testimony with regards to the limitations she claims had resulted from the car accident.

Another civil action, Spittal v. Thomas, similarly involved plaintifs who were vidotaped by the defendant in order to challenge the severity of the injuries claimed.  In Spittal, two lawsuits were commenced after a mother and daughter were injured in a rear-end collision.  Because the ‘at fault’ driver was uninsured, the plaintiff’s sought uninsured motorist coverage under their own insurance policy.

Only the daughter went to the hospital after the accident when she immediately experienced neck and back pain. However, in the lawsuits, both plaintiffs claimed that they suffered neck and whiplash injuries as a result of the crash and they alleged that they continue to feel significant neck and back pain years after the accident. The daughter also gave testimony that, since the accident, she had more difficulty concentrating in school, had to work for shorter time periods, experiences headaches, and cannot stand or sit for long periods. The mother also alleged that suffers headaches and has developed pain in her right hand and wrists, and a result, needs to undergo a procedure for carpal tunnel syndrome.

Doctors for the plaintiff and defendant presented entirely opposing opinions on whether the plaintiffs’ injuries were serious and permanent injuries of an important physical function.  In a case such as this one, where the medical experts for the opposing sides have a conflicting view of the seriousness of the plaintiff’s injuries, a plaintiff’s credibility is pivotal.  In Spittal, the defendant was able to present video surveillance evidence that was taken of the defendants on separate days about two years after the accident.  The video depicts the mother performing a variety of activities, including getting in and out of the car without any difficulty, cutting the grass, carrying a garbage can, and using a weed whacker or edge trimmer to cut grass for at least half an hour.  The last activity required her to hold the tool with only her right hand and she displaying no difficulty doing so, although this was the hand that allegedly required carpal tunnel surgery.

The video evidence challenged the plaintiff’s complaint that she had difficulty even holding a cup in her right hand, as she was seen easily carrying a coffee cup on multiple occasions.  The judge found that the surveillance evidence depicted someone who had no difficult walking, bending, getting in and out of the car, and carrying items, and the judge concluded that the plaintiff demonstrated that she suffers from none of the impairments she claimed in her lawsuit.

Videotape evidence taken of the daughter also suggested that she had exaggerated her symptoms and was not experiencing any difficulty with physical movement. She was depicted easily raising her arms in the air, bending over to speak with someone in a car, and walking with ease.  

Soft-tissue injuries, such as whiplash injury, exhibit differently than broken bones and symptoms often vary from person to person.   And, although whiplash injuries resolve in the first few weeks or months after an accident for most people, some accident victims have serious and prolonged symptoms such as chronic pain.  However, in Spittal, the judge found that the video evidence impeached the plaintiffs’ testimony on the ongoing nature of their symptoms and they appeared to have recovered from any injuries they sustained in the car accident.

When making a personal injury claim, honesty is always the best policy.  The Courts place a heavy weight on the honesty and forthrightness of plaintiffs and others who provide witness testimony. And, exaggeration about the degree of injury is generally discernible during a trial and can seriously undermine a witness’ credibility and ultimately lead to losing the case. 

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.