Wednesday, November 14, 2007

Injuries - don't make a big song & dance about it

Remember not to put on too much of an act in an injuries claim case .... as video evidence can catch you out at some stage ....

Oh, this reminds us of a motorcyclist in the Scottish Borders who claimed injuries via a Kelso solicitor, then altered his statement to blame a car driver who was some 300 yards away at the time and not involved in the accident, according to local Police ..... but the Kelso solicitor still pursued the claim *ahem* and video evidence later showed the claimant building an extension to his now bankrupt business in a less than disabled condition ...

The Scotsman reports :

Don't make a big production out of injuries


DEVELOPMENT of video evidence in British personal injury cases was initially slow, but in the past ten years there has been a rapid acceleration in the extent to which it is used.

There are plenty of reported decisions on whether video evidence should be admitted, particularly in the North American literature, and not least regarding privacy issues. It is easy to understand that when someone is videoed in his or her own home, or perhaps on some kind of family outing, there might well be people such as children videoed who have no part in the court proceedings.

British case law is more marked by considerations of whether video evidence has been introduced, lodged or given notice of by the defendants to the plaintiffs' representatives fairly and timeously.

In the early days of video evidence I can remember seeing a number of videos which were of very poor quality and where if any of my pursuer clients were involved, it was difficult to see through a rather grainy video whether it was them or not!

There were certainly a number of cases where videos were undoubtedly taken of the wrong person. I remember one client telling me that he had not seen the video yet but had simply heard my description of it and it could not possibly be him walking his dog since he did not have a dog! Others told me that their sister or neighbour had been under surveillance.

Nonetheless, in recent years, the quality of videos has become better and I have also noticed that the effects of the video have often been more influential in the outcome of the case.

In my own caseload, I have noticed a tendency for clients who are making quite strong assertions of their level of disability (for example, says that they cannot do anything at all for themselves) to be targeted by insurers, and that it is in these cases that the insurers seem to become interested in checking the level of disability by means of covert video surveillance.

There seems to be less of a likelihood that video evidence will be obtained where the pursuer is making fairly limited, and therefore reasonable-sounding, claims of only partial disability.

Various issues regarding whether somebody who is caught on video doing things which he or she should not remotely be able to do physically, if their level of disability as claimed is genuine, have yet to be worked out.

Certainly, it could be argued that references to police, criminal and social security authorities might be appropriate where video evidence is obtained showing a pursuer blatantly behaving out of sorts with his or her claimed level of disability.

In the English County Court decision of McNally (1999) there seems to have been a clear case of somebody claiming a back injury but being videoed showing that he was dissembling and giving rise to a strong finding by the court against the plaintiff, who was described in the case report as a "malingerer".

In the Scottish case of Martin (2003) the Court of Session considered issues both of a) the lateness of video evidence and whether it was admissible and b) what the implications on expenses should be where a tender was accepted late in the day. However, the case decision mainly turned on the video evidence against the pursuer.

The court found that the evidence obtained by the private investigators was admissible and dismissed the pursuer's case. The pursuer then tried to accept the tender offer. The defenders argued that the pursuer should be found liable for the expenses of the action given that his conduct had been legally wrong. The court held that there was no reason why in this particular case the usual rule, that expenses should follow success, should be departed from.

In another Scottish case, involving food poisoning, (which was decided in 2005) that of (Mrs) Raynard, the court hearing itself did not involve video evidence but there was an attempt by the defenders to lodge video evidence during the actual proceedings. The video evidence had apparently not been obtained until after court proceedings had started. The note on the case report indicates that the video evidence was refused by the Court of Session judge as coming too late. If there is a principle to be drawn from the decisions of the courts and from those everyday, undecided cases which one handles from time to time, it seems to be that the insurers will instruct video evidence only where somebody appears to be making a huge claim completely out of keeping with the actual physical findings in his medical evidence.

There is another trend in the cases, however, whereby the defenders and their insurance clients become very keen on the idea of "ambushing" the pursuer at the actual court hearing. The defenders therefore do not reveal their videos until very late in the day. It seems to me that this is counterproductive because if such evidence is obtained it should be brought to the attention of the pursuer's lawyers as soon as possible.

The insurers often have the mistaken idea that the case will be able to go all the way to a hearing and that the pursuer will then be ambushed at the hearing with the video, but the reality is that the court rules of procedure and of fairness to both sides mean that these videos have got to be lodged eventually.

Is it not better that the alleged "dissembling" by the pursuer should be brought to the attention of everyone (including his unsuspecting lawyers) as soon as possible? This is not least because the continuing legal costs can be cut short if the action is settled or otherwise resolved at an earlier stage rather than at a later stage.

It is in the greater interest of everyone, not least in the interest of saving court time, that if videos are damaging to the case of the pursuer they should be brought out into the open as soon as reasonably possible.

I am sure that like many pursuers' solicitors, I feel very annoyed if my client turns out to have been trying to fool me and everyone else about the extent of his or her disability. It is not only an attempt to fool the court and the insurers and lawyers on both sides but it also wastes court time when the courts could be better employed dealing with the victims of very serious accidents. Going to court should be reserved for those victims who have genuinely suffered serious or catastrophic injuries.

• Angus Logan is the head of litigation at Ritchie Neil.

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