30 Oct Video Surveillance and ICBC Tactics
By: Darren Kautz
Video surveillance is increasingly becoming a tactic used by ICBC to investigate claims and see whether the plaintiff is actually injured to the extent portrayed in his or her claim. While these tactics are sometimes helpful to weed out potential fraudsters, they are very invasive and pose a number of issues for legitimate claimants.
Footage of the plaintiff may include various actions performed by the plaintiff which may prejudice their interests in the claim against ICBC. Specifically, ICBC may use that information to cease paying benefits to the injured party. This measure is considered as detrimental to many subjected to this tactic as they may cease receiving income replacement such as total temporary disability benefits.
Courts have been wary of such tactics. Justice Ian Josephson of the BC Supreme Court said that there is a high hurdle in front of ICBC in these situations as their adjusters “are going to have to be able to demonstrate in every single case that they cut off benefits for a good reason.” If ICBC is unable to justify their actions in court, it will likely be subjected to punitive or aggravated damages.
Legal scholars in the area opine that such deceptive practices may even amount to insurer bad faith. Gordon Hilliker, for example, posits that while the insurer is entitled to take “reasonable investigation of a claim that has been presented so as to determine whether or not the claim is legitimate”, bad faith “may arise out of the insurer’s use of harassing, intimidating, intrusive or deceptive investigative practices or claims procedures.”
What often escapes the purview of clients is that an experienced counsel can still effectively advocate on their behalf even though there is footage of the client engaging in various activities. What is of utmost importance is the type of activities that is portrayed on the video, not their mere occurrence. Consider the following example:
Suppose that Mary was injured in a car accident and is now claiming damages for a shoulder injury. Specifically, she is unable to raise her right arm above her head. Due to this specific immobility, she was forced to quit her job and suffered wage loss as a result. During the time in which she is dealing with a claims adjuster, ICBC obtains footage of the party engaging in various activities in her backyard. She is raking leaves, mowing the lawn, and planting flowers. The ICBC adjuster reviews the footage and stops Mary’stotal temporary disability benefits, claiming that she had recovered from her injuries and could return to work.
In this example, an experienced personal injury lawyer would advocate on May’s behalf by stating that she specifically suffered damages because she could not raise her right arm over her head. The footage merely shows her doing a number of chores which did not require her to raise her hand over her head. Law presumes injured parties to live their lives as they would even if the party is suffering from damages. In our example Mary was simply doing just that, living her life.
Ready for a twist?
What if Mary claimed she had to hire someone to do her yard work, and she was specifically seeking damages from ICBC as a result? Is the video surveillance damaging to her claim?
Join us Kautz Injury Law again next week as I, Darren Kautz, will discuss another topic in personal injury law.