Reasonable Doubt: That’s none of your business…right?
We, the writers of Reasonable Doubt, have been discussing the issue of privacy this month. I don’t need to point out just how wide reaching the topic is.
The column’s past articles address privacy in a variety of contexts. How do we balance privacy with policing? What privacy is there in a litigated family dispute? Has Facebook gone too far and if so, what can be done? Should you think twice before tricking your co-workerinto clicking a hyperlink to a NSFW website?
In the world of personal injury law, I often wonder just how prepared litigants are to have their lives opened up for all to see. If you start a lawsuit for personal injuries, you put yourself in the spotlight. When you do, you have to give up some of your privacy. And the extent of this loss may not be clear until you are well into the proceedings.
To illustrate, let’s go through a fictitious case. A man named Nunev Yerbiz Nes was in a car accident a year ago. He has since been to his doctor and a specialist for various injuries. Nes is suing the driver of the other car for damages. Nes is an avid hiker but his injuries are so severe that he says he has not been able to hike as a result. And since the accident, he has missed significant time off work. In addition, he is seeking damages for lost pay. The other driver, in response, insists that Nes didn’t have his eyes on the road and was on his cell phone at the time of the accident.
How much of Nes’ life is opened up through this lawsuit? His phone records may need to be disclosed. They could determine whether he was on his cellphone while driving. Since Nes is claiming that he had to take time off work because of his injuries (and not another reason), the defence may want to see for themselves. They may want to see Nes’ employment records and talk to his boss or co-workers. The defence might even conduct surveillance of Nes at a public place. After all, if Nes is doing the Grouse Grind regularly, video footage could be relevant in this lawsuit. And what if there are photographs of a recent trip to Nepal that are on his private Facebook account? Those may be fair game depending on what they show.
Nes might find it difficult to resist disclosure by arguing it’s “none of your business”. Nes is the plaintiff who is willingly participating in the legal process. In doing so, he is making at least some aspect of his life our/their business. Alleging injury itself will mean relevant medical records may be scrutinized. Similarly, claiming lost wages will mean employment information is relevant. Disclosing such information to the other side of a lawsuit does not necessarily mean that the public will have access to it. However, if the lawsuit goes to trial (i.e. it does not settle), that information could potentially be brought up in court. And the courts are generally open to the public.
Now, this does not mean that anything and everything about Nes can be dug up and used in the proceedings. The courts are sensitive to the issue of privacy of litigants and will, if required, impose limits. However, they recognize that the legal process, out of fairness, must provide the other side with the opportunity to respond to allegations. This is how a fair adversarial court system works. Sometimes, someone’s privacy can be at odds with the fairness of the process. It is ultimately up to the courts to find a balance between these competing values. In finding this balance, the court considers the nature of the lawsuit and concerns of the parties.
I do not raise these points to discourage people from engaging the court system and seeking damages. I make these points to inform—the reality is that people may not appreciate, at least from the outset, the implications of airing their grievances in such a public forum.
People value privacy differently from one another. For some, the attention drawn to one’s private life may an acceptable part of the process. A civil lawsuit could then be a suitable way of resolving a dispute and seeking compensation. For others, the loss of privacy is a serious price to pay. Regardless, it is one of many important considerations in the decision to start a civil lawsuit.