Surveillance in personal injury claims
Insurers use covert surveillance in personal injury cases for a number of reasons. The most common reason is to undermine the evidence which the injured person has provided. It will usually be the Claimant’s medical evidence or the Claimant’s witness evidence which is being attacked in this way. With advances in technology and much more compact and discrete cameras, it is far easier for the insurers to arrange for this surveillance to be carried out.
If the insurers believe that the accident claim is fraudulent or the effects of the injury are being exaggerated, then they may arrange for surveillance evidence gathering to take place. The evidence may be obtained by covert filming or by searching online social networking sites, such as Facebook. Many people are still unaware how much of this personal information is freely available on the internet and how easy it is for third parties to access it.
If these investigations reveal nothing suspicious or out of line with the evidence which has been submitted, then it is likely that no further action will be taken and the injured party will never know that investigations have been carried out. However if the Defendant believes that the surveillance evidence contradicts the injured party’s evidence then it is likely to be disclosed. It is never a good moment for the injured person’s solicitor when a surveillance DVD arrives on his desk as it is unlikely that the surveillance evidence will be entirely consistent with the Claimant’s own evidence. However, insurance companies do make mistakes and I have known of several cases where the private investigators have filmed the wrong person!
If the Defendant wants to rely upon this type of evidence then they must disclose it in a timely manner. That is, the evidence should be disclosed as soon as possible rather than trying to ambush the Claimant with the evidence at the very last moment, in the days or weeks running up to a trial.
It is important that the Claimant’s medical expert is be given an opportunity to comment upon this additional evidence as apparent inconsistencies can often be explained away.
The obvious limitation of this type of evidence is that it is edited and highly selective. It will only show specific events and wont for instance demonstrate that the Claimant was in pain in the period of after the filming stopped. Likewise it cannot show that the injured person was not on painkilling medication at the time.
Insurers will often use such evidence to undermine the injured person’s case and may ask the Court to either dismiss the injury claim (if they believe it is fraudulent) or to make an Order against the Claimant for costs if the Court finds that the claim has been deliberately exaggerated.
There are other incidences when video evidence has been used by insurers. It is not uncommon for commercial vehicles to be installed with video cameras in case they are involved in an accident. On occasions, such accidents can be staged for the purposes of “cash for crash” scams. This occurs when a driver brakes sharply in front of another vehicle in order to cause a collision. A personal injury claim then follows. If video evidence is available, this can help demonstrate whether or not a claim is genuine. In suspicious cases, the matter can be referred to the police or the insurance fraud bureau for further investigation. In recent years there has been a number of high profile prosecutions against people involved in this type of activity.
In another case, an insurer carried out surveillance on a Claimant after a trial had ended and where the Claimant had been awarded substantial compensation. Mr Noble was severely injured in a road traffic accident and following a 9 day trial was awarded compensation of £3.4 million. Shortly after the case the insurers received information alleging that Mr Noble had exaggerated his injuries. Surveillance was carried out over several months and as a result the insurers lodged an appeal. On this occasion the Court of Appeal dismissed the insurers’ claim stating that Mr Noble had not exaggerated the impact of his injuries and that he had worked very hard at trying to overcome his ongoing disabilities as a result of the accident (Noble v Owens 2011).
This case illustrates that just because a case is concluded, it does not mean that the insurers will not try and find new evidence that the claim was either exaggerated or fraudulent. If this evidence comes to light, they may then choose to either appeal the original Court decision or commence fresh proceedings for fraud. It is likely that this will only be considered appropriate in high value claims. However if the insurers do suspect fraud, they may consider proceedings against the Claimant in lower value claims so as to act as a deterrent against other fraudulent claims.
Genuine Claimants have nothing to fear from insurers attempting to obtain surveillance and video evidence and we will always do our best to minimise any harm to the case where it does arise. It is also important to point out that the insurers will not adopt this tactic in all cases, but only in those cases in which they suspect that the claim is either fraudulent or being deliberately exaggerated for financial gain.