What solicitors should tell their personal injury clients about surveillance
19th Mar 2020
In my lengthy time as a plaintiffs’ personal injury lawyer, I have viewed many hours of surveillance footage of my clients taken by investigators on instructions from insurance companies. In all that time I have rarely seen surveillance footage which has negatively impacted on my clients’ credibility.
My advice to clients is always the same: ‘Do not worry about being followed and filmed unless you have something to hide.’
I tell my clients that if they tell the truth to doctors, medico-legal experts and to me, any surveillance taken of them would be pointless. In fact, surveillance might actually strengthen their case, because it may confirm how they are restricted by their injuries.
Of course, there will always be some accident victims who will seek to recover higher compensation by exaggerating the impact the injuries have had on their ability to work and to function generally. These people are easily caught out, as surveillance techniques are now becoming increasingly sophisticated.
Previously, investigators parked their vans close to the accident victim’s home and then followed the accident victim when he or she left the house to try to catch them doing something they had told doctors and others they are unable to do because of their injuries.
One of the favourite techniques was to follow an injured person to and from medico-legal appointments, hoping to catch them behaving differently when being assessed by the medico-legal doctors.
These days investigators who film their quarry can remain hidden in plain sight by carrying a camera in a briefcase or even on their person. This gives them the capacity to follow their unsuspecting victims along supermarket aisles, in gymnasiums, at clubs, at sports grounds etc.
Investigators also utilise social media to try to catch out claimants who are exaggerating the consequences of their injuries. Insurers are known to view a person’s Facebook to see if there are any posts showing the person doing things which they have denied being able to do, or which are inconsistent with their complaints.
In the early days a person could be ambushed in court by being asked questions by the defendant’s counsel about what they might have done on a particular day. If they answered falsely, the defendant’s counsel called a halt to the questioning and asked that the judge and others in the courtroom watch film of the plaintiff doing the very thing which, only moments earlier, that person had denied doing.
My clearest recollection of this happening to one of my clients is when, under cross-examination, my client denied that he was able to play tennis or row a boat, because of his injuries. The defendant’s counsel called a halt to the proceedings.
The surveillance film was shown in court. This showed the plaintiff not only playing tennis, but jumping over the net at the end of the game and then running home. Another segment of the surveillance film showed him rowing a boat to the shore and then lifting the boat above his head and placing it on the top of his car. His case did not end well for him.
Generally, however, I find surveillance footage to be ineffective, as it doesn’t show a claimant taking painkilling medication before or after the activity, or the claimant staying home in bed for several days after the activity, for example, after mowing the lawn.
Insurers are now very limited in their ability to ambush claimants with surveillance footage. Most motor vehicle (CTP) claims are now decided by the Claims Assessment Resolution Service (CARS).
Under the CARS guidelines, any surveillance footage must be disclosed not only to the claimant’s solicitor, but also to the assessor many weeks before the hearing. There can be no ambush at the assessment conference.
This of course removes the forensic advantage that insurers previously gained by ambushing the injured person in cross-examination.
In a nutshell, surveillance footage will not harm honest claimants.
Tom Goudkamp OAM is the Managing Director of Stacks Goudkamp. He has vast experience in compensation law, specialising in major claims arising from motor vehicle accidents. A NSW Law Society Accredited Specialist in Personal Injury, he is the Chairperson of the NSW Law Society’s Personal Injury Advisory Committee, an assessor for CARS (Claims Assessment Resolution Service), and was a member of the NSW Law Society’s Specialist Accreditation Board for 14 years. Tom was the President of the Australian Lawyers Alliance in 2004/2005 and is a current member. He has memberships of the American Trial Lawyers Association (ATLA) and the Motor Accident Authority’s panel of legal practitioners. He is also co-author of the highly regarded Goudkamp/Morrison Personal Injury Law Manual NSW. Tom is an experienced and compassionate solicitor who is dedicated to ensuring that his clients receive a just result.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).