The plaintiff suffered injury to his lower back in a car accident which occurred in 2019, when he was 14 years of age. He was 20 at the time of the trial. The accident was not too serious, but the plaintiff almost immediately started complaining of pain and discomfort in the lower back, which has continued over the years.
The only dispute between the parties was the amount of compensation which the plaintiff was entitled to.
Surveillance
Allianz was the CTP Insurer which represented the at fault driver. It arranged for surveillance of the plaintiff. Secret video recordings were taken at the plaintiff’s workplace (at Costco) and also in another business where the plaintiff was seen by a female friend.
Interestingly, as the Court noted, not only did the surveillance not help Allianz, but in fact it assisted the plaintiff. It showed that he was doing minor back stretching exercises regularly throughout his shift at Costco. This indicated that indeed he was struggling with continuing lower back pain.
The Court said that while insurers may check whether plaintiffs are honest in their reporting of symptoms, to take secret video footage inside an employer’s premises without their consent is likely trespass. Further, the fact that the surveillance operative took video of the plaintiff’s female friend who had nothing to do with the case was considered to be inappropriate.
Evidence regarding injuries
While the Court accepted that the plaintiff had ongoing pain and discomfort, it also took into account a number of other matters which the plaintiff honestly conceded. For example, following the car accident the plaintiff played soccer for a period of time, and the reason he stopped was not related to his injury.
In addition, the plaintiff was able to work as a house washer which had some fairly demanding aspects, for example standing on a pitch roof. It was also noted that the plaintiff regularly visited the gym and developed “quite a rig”.
Assessment of future economic loss
Like in many other cases involving young plaintiffs, the biggest component of a damages award is compensation for future economic loss.
At the outset, the Court considered that the plaintiff was honest. The plaintiff never sought to deny that he was able to engage in physical activity. Because of the plaintiff’s honesty, and having regard to other evidence (for example, some medical and physiotherapy records) the Court was prepared to accept that despite engaging in physical activity, the plaintiff has continued to suffer pain throughout the years since he was 14.
The Court also stated that in the case of a 20 year old plaintiff, just because they do not yet have an impressive earning history and they might be earning a relatively modest pay at the time of trial, this does not mean that later in life they would not have been able to pursue a higher paying career if they had not suffered injury.
An important point in the plaintiff’s favour is that pursuant to the Worker’s Compensation and Rehabilitation Act the plaintiff has an obligation to tell prospective employers about his back injury. This means that in the future he is at a disadvantage on the open labour market because every time he discloses back injury to potential employers, they may be hesitant to employ him and take on the risk that he may aggravate his condition.
The Court eventually concluded that if the incident had not occurred, then this plaintiff would most likely have pursued a career in outdoor trade or semi-skilled occupations where the potential earnings are very significant. While it is still possible that the plaintiff will pursue such a career, his injuries now potentially limit his capacity to engage in this type of work in the future.
The Court noted that it was not possible to calculate future economic loss by reference to a set arithmetic formula, but an award of $160,000 was made on a global basis.
Important takeaway
While it is impossible to tell what motivated the insurer to take this case to trial, the fact that they arranged surveillance of a plaintiff whom they knew had engaged in physical activity (including gym as well as various sporting activities), suggests they may have suspected that he was not honest about his symptoms. As it turns out, the judge found that the plaintiff was very honest. The plaintiff never sought to deny that he was able to engage in physical activity but maintained that he was experiencing pain.
This case illustrates that it is critically important for plaintiffs to remain honest and forthcoming in relation to their symptoms and functional capacity. In this case, the plaintiff’s honesty was rewarded not just with a judgement in the plaintiff’s favour, but the insurance company was also ordered to pay the plaintiff’s costs, partially on an indemnity basis (i.e. near 100%).
Read the whole case here.
