During a personal injury claim, you may find yourself followed and photographed. While this can seem intrusive and stressful as you recover from your accident, personal injury surveillance is perfectly legal.
That said, there are limits to what the defence team can do. Knowing about surveillance laws and illegal surveillance helps protect your privacy while upholding your credibility during a personal injury claim.
During a personal injury claim, the defence counsel often uses photographs and videos to cast doubt on the plaintiff’s credibility. They hope to catch you performing activities that are inconsistent with your particular injury.
If they can show that you have exaggerated your injuries, have better function and less pain than you claim, or may not even be injured at all, that can lead to you losing your case and failing to get the compensation you deserve, despite being truly in pain.
The insurance company’s defence lawyer may hire a private investigator to follow you in public, taking pictures and video of you performing activities that seem inconsistent with your claimed injuries. These can include tasks like yard work, running errands, sports or social gatherings, and driving, walking, or even just standing. Common types of personal injury surveillance include:
This allows them to see photographs, videos, and text you and others have posted to Facebook, Twitter, Instagram, and Linkedin, including images of you performing physical activity or comments about your injuries or the case. Even with privacy settings, your information may be much more public than you think.
Although you are experiencing pain and suffering after an accident, to others, photographs of you performing physical activity and enjoying leisure activities may suggest you are not suffering as much as you say. These photos and videos can have devastating consequences, as one case demonstrates:
“In a nutshell, the surveillance tapes disclose the plaintiff participating in activities he denied at trial he could do. When a person makes numerous complaints that are not worthy of belief, how does one determine what is legitimate? I am quite certain that Mr. Rajic has some complaints that are related to injuries from the June 2003 accident. His sworn evidence at trial concerning his pain and limitations are inconsistent with the level of function demonstrated on the surveillance tapes. I am not persuaded that they are as disabling as he alleges or that they have required him to cease participating in activities that he formerly enjoyed, including his employment.” — Justice D. Wilson, Rajic v Atkin  O.J. No. 650
Although Mr. Rajic claimed to have been experiencing a “good day” when the photographs were taken, he lost credibility from the judge’s perspective, putting his personal injury claim in jeopardy.
Although surveillance laws allow the defence to capture images of you in public, and perform public searches for your information, there are limitations. In some cases, this evidence may not be admissible.
Ms. Milner had launched a disability claim against Manufacturer’s Life Insurance Company to receive benefits. In video evidence, the plaintiff was visible in her home helping her daughter remove an outer garment, showing more physical ability than her claim stated. Ms. Milner sought damages under the BC Privacy Act for intrusion into the privacy of her home.
“Although her expectation of privacy may legitimately be higher while in her house, on the night in question the blinds were open, and the lights were on. Therefore, anyone could have seen her helping her daughter while just passing by the house. Further, Ms. Milner ought to have reasonably known that Manulife was investigating her claim and that it was possible that video surveillance would be used. Thus, her entitlement to privacy on the evening in question was low.” — Court ruling, paragraph 83, Milner v Manufacturer’s Life Insurance Company
Although the court did conclude that the daughter’s expectation of privacy was breached, her name was not on the lawsuit so it was not relevant to the case. Depending on the course or circumstances of a particular case, insurers may be able to use wider surveillance methods, as long they do not breach the plaintiff’s reasonable expectations.
When the defence counsel has commissioned personal injury surveillance and received reports, they must show you its existence and details. This may include dates and locations, duration, and the investigation firm’s name. If the defence fails to disclose this information soon enough, they may not be able to use the evidence.
However, the evidence may still cast doubt on your credibility.
When you are involved in a personal injury case, be aware that you may be under scrutiny. Anything you do in public, or post online, is available for the defence to make you look less credible and demonstrate you have greater physical and mental ability than you claim.
When you are suffering, your instinct may be to downplay your pain for the benefit of your friends and family. It is important to be aware of how your actions may appear to others who are unaware of how you are truly feeling inside. At the same time, being aware of surveillance laws and illegal surveillance empowers you to protect your privacy and your case.
If you have questions about surveillance laws, believe your privacy rights were violated through illegal surveillance, or are considering a personal injury lawsuit, contact Gosai Law for more information.