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Video surveillance and credibility

Will video surveillance undermine your claims about your limitations?  What if the clips are short and merely show you climbing stairs and walking?

In today’s case of Truong v. Lu, 2016 BCSC 2043, the plaintiff was injured in a 2011 MVA. At trial he faced allegations of embellishing his symptoms. ICBC’s lawyer provided surveillance footage of him performing various activities, and alleged this was proof of his embellishment. Mr. Justice Affleck disagreed, ultimately awarding this fellow in his early sixties $100,000.00 to compensate for his pain and suffering.

The excerpt below sheds light on why he did not rely upon the surveillance video:

[80]         The defendant is critical of much of the plaintiff’s evidence as unreliable and accuses him of embellishment particularly for example when undergoing a functional capacity evaluation. I agree there was some embellishment but I believe it was not deliberate deceit. Mr. Truong genuinely believes he is severely disabled and adjusts his behaviour, without conscious thought, to fit the way he sees himself. He is also very reluctant to push his physical boundaries because of a fear of further injuries. In my view that fear is not justified and there is no risk of further injury if he becomes more active.

[81]         I was shown the surveillance video. It is tempting on watching the video to conclude that Mr. Truong in his oral testimony and when dealing with the expert medical witnesses has deliberately exaggerated his physical limitations. Nevertheless, I agree with the plaintiff’s submission that although there was almost an hour and a half on the video when he is shown performing various activities such as walking or climbing a short flight of stairs, there was no continuous portion of the video that was more than a few minutes. A few minutes of that activity cannot lead to the necessary inference that he has been deceitful in his testimony.