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Achieving-Justice

Forget ICBC, enjoy life

ICBC has a video snippet of you frolicking on a Cancun beach with a margarita in your hand.

It felt like they had rummaged through your underwear drawer, accessing and viewing private moments with family and friends. 

Read my column from last week for ways to avoid that.

But juicy bits like this often get into ICBC’s hands, regardless of privacy protection. I say “juicy” because of how I imagine insurance adjusters salivating at the prospect of using them to destroy your case.

They have you dead to rights. You’re dancing in the waves, laughing and drinking alcohol. Who would believe that you suffer from chronic neck pain that you ease with hot and cold packs every evening after work? 

How could the gleeful person in the video regularly deal with pounding headaches, with weekends spent resting so as to be able to make it through the next work week?

Aren’t those with chronic pain sad all the time? Don’t they move slowly, quick movements giving jolts of pain? They certainly don’t go on holidays and frolic on the beach!

If you don’t suffer from chronic pain, you might actually believe that.

It can, yes, be emotionally difficult to live with chronic pain. Many victims go on to develop depression and other mood disorders.

But particularly with therapies and/or medication, most have the capacity to experience joy. Especially when on a hot beach in Mexico with a margarita in your hand.

And if you deeply love such a person and have been struggling to bring them happiness, are you likely to capture some video of those special moments when they are finding joy?

And yes, pain can restrict movement. For most crash victims, though, full movement is regained, leaving a base line of aching discomfort that becomes “background noise." 

That background noise becomes a focus of attention when activities like maintaining static postures (like sitting at a computer during your work day) cause the discomfort to become a bothersome pain.

And as the work week progresses, that pain flares up earlier and earlier and gets worse and worse. Thank goodness for weekends that allow symptoms to calm down so you can face the next work week.

Is it the least bit inconsistent for a victim of chronic pain, aggravated by static postures, to find joy frolicking on a hot beach with a margarita in your hand? Absolutely not.

But what happens when that kind of “evidence” hits a courtroom? Do judges “get it”?

They do. Here are quotes from the reasons for judgment in several court cases:

  • K.T. v. A.S., 2009 BCSC 1653 – at paragraph 246: “The defence also produced vast amounts of photographic evidence showing the plaintiff juggling a soccer ball, holding a bowling ball, sitting on a swing or teeter-totter at various points in time. The plaintiff does not claim that she is disabled from doing those things….The plaintiff's very nature is to challenge her limitations at the extremes of her reduced post-accident abilities. I accept that although she was physically able to engage in a wide variety of physical activities, even demanding ones, after the accident, she was largely motivated to do so as a feature of her eating disorder and frequently paid the price by aggravating her symptoms and enduring pain.”
     
  • Guthrie v. Narayan, 2012 BCSC 734 – at paragraph 30: “In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.”
     
  • Nair v. Cindric, 2013 BCSC 2128 – at paragraph 44: “In the end, the viewing and re-viewing of the video recording occupied more than one full day of trial. The treatment of the recording serves to illustrate the potential limitations of this type of evidence. Essentially, what I took from the recording is that Ms. Nair was able to participate in the dance performance with no apparent difficulty, at least to a casual observer unschooled in the technical requirements of Indian classical dance. However, the recording tells the Court nothing of what measures Ms. Nair took to prepare for the performance to accommodate her back, how she felt during the performance, what she did during breaks in the performance to alleviate any back problems, and how she felt after the performance. In other words, the video recording provides essentially a snapshot of Ms. Nair's functional capacity at a particular point in time but is of limited utility in evaluating her overall claim.”
     
  • Dakin v. Roth, 2013 BCSC 8 – at paragraphs 55 and 56: “The defendants have entered into evidence photos posted on the plaintiff's Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations. I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel…in respect to Facebook photos: "Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do." I agree.”
     
  • Carlisle v. Vanthof, 2015 BCSC 2427 - at paragraphs 115 through 118: “The plaintiff is prolific with posting photos on her social media accounts. I infer from the sheer volume that her habit is to create a pictorial history of enjoyable activities with friends, travel, dinners and wines tours when they occur….This case is not about what the plaintiff can do, it is about what the plaintiff cannot do and how her injuries have and will affect her….The evidence from those that know her leads me to conclude that although functional, the plaintiff is performing in a reduced capacity than she would otherwise be performing if uninjured.”

My emphatic advice to crash victims is to live and enjoy their lives as fully as they possibly can, overcoming their crash injury limitations to the fullest extent. 

If you don’t do so, worried that a video snippet might surface of you laughing, smiling and enjoying yourself, you will be victimized yet again.

You can expect that “what you can do” will be used to challenge your very real limitations, but I have confidence that justice will prevail.

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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