Surveillance ' Is Someone Watching You?

• Published date: 03 July 2020
• Subject Matter: Insurance, Insurance Laws and Products
• Law Firm: Anthony Gold
• Author: Mr Ben Simons

For some time, insurers have used covert video surveillance in an attempt to discredit claimants and limit their damages. In the more extreme cases, they have used surveillance to pursue allegations of fundamental dishonesty, which if upheld, can lead to serious sanctions for a claimant, with a potential custodial sentence being a real, albeit worst case, scenario. But whilst insurers will say that surveillance footage is irrefutable and should be taken as gospel, can this really be the case?

There will no doubt be the odd case whereby a claimant will be caught with their hand in the cookie jar, when a disc of surveillance footage lands on their solicitors' desk and the solicitor loads the footage, sits back with baited breath, fingers crossed and eyes half closed with no idea what to expect, only to be greeted by images of their client, who has claimed to be confined to a wheelchair, beating all of the other parents at the school parents' sports day.

This, of course, is an extreme and highly unlikely scenario and in my personal experience, surveillance footage is rarely as damning as it may appear at first viewing. In the case of Karapetianas v Kent and Sussex Loft Conversions Ltd (2017) for example, the Deputy High Court Judge, when delivering Judgment, decided that surveillance footage showing the claimant in a very different light to how he presented to the medical experts who examined him for the purpose of the claim was not sufficient for him to find that the claimant had sought to intentionally mislead the insurer or the Court.

The claimant had fallen through the floor of a loft and sustained a very serious fracture of the pelvis. The case went all the way to trial, with the insurer relying upon surveillance footage taken of the claimant on multiple days over a period running from March to August 2014. Interestingly, the claimant had been seen by two different orthopaedic surgeons, two different consultant pain specialists, a neurosurgeon and a neurologist, all prior to the footage being taken. However, updated medical evidence obtained subsequent to the footage being taken and with the experts having access to that footage suggested that the experts could not explain the severity of the claimant's self-reported symptoms and what the footage showed.

However, the Deputy Judge did not believe that this could lead him to conclude that the claimant was intentionally misleading the Court. He instead determined that the claimant had, on the balance of...