Insurance, Personal Injury

Online evidence only a snapshot in personal injury dispute

Although the surveillance methods used in personal injury cases have become more high-tech in recent years, the type of evidence investigators are seeking about plaintiffs remains unchanged, Fredericton litigator Matthew Pearn tells Recovery magazine.

As Pearn, an insurance lawyer with Foster & Company, says in the article, most often, investigators are looking for lifestyle evidence that shows plaintiffs engaging in activities they claim they can no longer perform.

These include social as well as physical activities if a plaintiff claims an emotional issue such as post-traumatic stress disorder, or evidence of employment if the plaintiff claims to be unable to work, says the article.

While the article estimates that up to 40 per cent of all personal injury cases — and 80 per cent of cases involving large claims — involve real-world surveillance, it says nearly 100 per cent of cases make use of online surveillance.

As Pearn tells Recovery, basic social media surveillance can be done in-house at law firms, preferably by an assistant, as a lawyer should not be perceived as creating evidence.

As the article says, any evidence discovered in a way that does not infringe on an individual’s privacy is generally admissible in court.

At the same time, all parties in a dispute need to be aware that online surveillance usually provides little more than a snapshot of a plaintiff's activities.

“Looking at social media postings creates an opportunity to decide if more real-world surveillance is warranted,” Pearn says in the article.

“You get a flavour about the claimant by using social media selectively. It adds colour; it’s not necessarily a slam dunk.”

As the article notes, the Ontario Court of Appeal ruling in Fernandes v. Penncorp Life Insurance Company [2014] ONCA 615 sheds light on the limited value of video surveillance evidence.

In the case, the court upheld a $200,000 punitive damages award to the plaintiff, a bricklayer who was injured in a workplace accident. The plaintiff’s long-term disability benefits were originally cut off after surveillance showed him shovelling dirt in his backyard.

“The court found this activity over a short time was not inconsistent with his claimed disability and did not mean he could return to work,” says the article.

As Pearn wrote in Lawyers Weekly, the decision “speaks to the risk of an insurer developing tunnel vision, ignoring an abundance of medical evidence supporting the total disability of an insured in favour of slight surveillance evidence counselling against it.”

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