Seeing Is Believing

The assessment of damages in personal injury claims is often challenging when dealing with injuries that cannot be measured objectively. Cases involving plaintiffs who allegedly suffer from chronic pain, fibromyalgia, or other conditions involving the incorrigible experience of pain, present obvious problem with respect to quantifying damages. Medical professionals must rely on the subjective reports of plaintiffs in assessing their condition. Often, these cases result in a scenario where the opinions of medical experts are pitted one against the other, resulting in uncertainty and risk for the parties.

Although the Supreme Court of Canada has concluded that "chronic pain patients are suffering and in distress, and that the disability they experience is real"1, there nonetheless exist unscrupulous claimants that feign or exaggerate chronic pain symptoms in an effort to cash in on claims against insurance companies.

In this way, chronic pain has become a catchbasin for personal injury claims that cannot be couched in more objective injuries. Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs that legitimately suffer from chronic pain and those who do not. The plaintiff's credibility becomes a central issue in the litigation, and counsel often look to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's credibility and challenge the validity of her claim.

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. Continuous surveillance evidence over a period of several days can greatly assist defence counsel to either build its case, or justify early settlement. Video footage that shows a plaintiff engaged in physical activity that belies her alleged physical limitations, can have a significant impact on the integrity of the plaintiff's claim. Conversely, surveillance that fails to depict the plaintiff for a sufficiently continuous time period, or that only shows the plaintiff engaged in physical activities that are not strenuous, will not harm the defendant's case. Overall, the relative cost of surveillance evidence as compared to its...