Personal Injury Law - Does Big Brother have the right to watch you?

In personal injury actions the disclosure of video recording can prove to be a very effective tool in defeating fraudulent or exaggerated claims.  And with constant advances in technology it is becoming so much easier for an insurer or an insurer’s agent to record a fraudulent claimant’s activities.  But will such recordings be accepted at trial?  What factors will a court of law take into account when accessing whether a party has the right to use and thus rely on video evidence at trial?

As a general rule, surveillance evidence is usually accepted by the court but it should be disclosed early in the action, and not just before the trial takes place.  The court will assess the relevance of surveillance evidence to the action and the extent to which it will prejudice each party if it is accepted or excluded. 

In personal injury actions medical evidence has to be obtained as evidence of a Claimant’s injuries.  Medical experts will usually be asked to comment on the content of video surveillance so the more time there is for such an expert’s opinion to be obtained before the trial, the greater the likelihood that the evidence will be admissible.

If it is found that a Claimant has exaggerated a claim, the Judge will decide whether to throw out the case completely, and perhaps by way of a penalty, whether the Claimant will be ordered to pay costs as a consequence of the fraudulent activity.

The court assesses all cases individually.

In Uttley -v- Uttley (2002) the court decided that disclosure of all relevant evidence (including video evidence) has to be made in good time before a trial.  In this instance, the Claimant’s lawyers failed to serve updated witness evidence in accordance with the court timetable therefore the Judge accepted the Defendant’s video evidence thereby avoiding prejudice to the Defendant had the video evidence been excluded.  Delay in this instance had been caused because the Claimant’s representatives who had not complied with the court timetable therefore it was accepted that it was right for the Defendant’s representatives to wait until witness statements had been disclosed before disclosing their own video surveillance.

In the more recent case of O’Leary -v- Tunnel Craft Limited (2009), however, a case where liability had been agreed but the value of the claim was yet to be determined by the Court, the Defendant was prevented from relying on video evidence because the Defendant’s representatives failed to disclose it until 31 days prior to the final hearing.  As a consequence of the delay in disclosing the video evidence there was insufficient time for medical experts to review and to comment upon the content of the video, so the Defendants were prevented from relying upon it even though, had it been accepted, the value of the claim would have been substantially reduced. The court asserted that the evidence should have been disclosed much earlier.

Video evidence in personal injury claims tends to be used where an insurer believes it will be able to significantly reduce the level of damages paid to a Claimant because of a suspicion of malingering. 

The moral of this story is that it is always useful to put Claimants on notice that they run the risk of being filmed.  If they have nothing to hide it will have no impact anyway.