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Surveillance footage: Good days and bad days

Karapetianas v Kent and Sussex Loft Conversions Ltd
High Court (QB)
Jonathan Swift QC sitting as a deputy High Court judge
25 April 2017

In a case where the extent to which the claimant had recovered from injury was in issue, the court concluded that a disparity between his appearance on surveillance footage and his presentation to medical experts did not mean that the claimant was exaggerating or being dishonest. There were no grounds to strike his claim out under Summers v Fairclough Homes Ltd [2012] UKSC 26. The court awarded damages limited to the date by which the claimant had regained relatively normal function. Lucy Fazackerley explains the findings in Karapetianas v Kent and Sussex Loft Conversions Ltd (2017).

Background

On 17 March 2012 the claimant was working for the defendant dry lining a loft when the floor collapsed and he fell through to the floor below, fracturing his pelvis. The claimant underwent a pelvic reconstruction operation followed by two months of rehabilitation in hospital. Upon discharge from hospital he continued to complain of severe persistent right leg pain. The main issue in dispute was the extent and timing of the claimant’s recovery from the pelvic fracture.

Evidence

Mr Kellerman (Consultant Neurosurgeon) examined the claimant in January 2014. The claimant reported that he had numbness and pain in his right leg and could only walk 20-50 metres before having to stop. Further, he could no longer drive. On examination, Mr Kellerman noted that there was normal range of movement in the knees, hips and ankles but that the claimant exhibited abnormal behaviour and “exaggerated reaction” when examined.

Dr Edwards (Consultant in Pain Management) examined the claimant in February 2014 and the claimant again reported right leg pain. He said that he walked with a crutch and had difficulty moving up stairs. He could not bend or squat and could only lift light items. Dr Edwards concluded that any exaggeration was not deliberate but rather resulting from the claimant’s significant psychological and psychiatric symptoms.

Surveillance footage was obtained by the defendant predominantly during the period from March 2014 until August 2014. The footage showed the claimant walking with just a slight limp without the aid of a crutch or stick. He was seen driving to a clinic, driving to a retail park, walking around a supermarket, carrying two bags of shopping, pushing a trolley, taking out rubbish bags and bending, pointing and stretching. On one day of surveillance he was seen walking around normally for around an hour.

Upon reviewing the footage Dr Edwards was unable to explain the disparity in medical terms. Mr Kellerman believed that the claimant had deliberately deceived him during the examination in January 2014 and revised his prognosis concluding that the claimant could now undertake “light manual work” having made a very good recovery.

The claimant was examined again in April 2015 and June 2016 by Dr Pither (Consultant Pain Specialist), who had sight of the footage. Dr Pither could not explain the disparity between the footage and the claimant’s presentation but concluded that it was unlikely that the claimant had no on-going symptoms. He did not think that the claimant was malingering. Dr Foster (Consultant Neurologist) examined the claimant in May 2015 and noted that chronic pain sufferers have good days and bad days although he could not conclusively or fully explain the discrepancy between the claimant’s reported symptoms and the footage.

Findings

Mr Jonathan Swift QC accepted that the surveillance footage showed that the claimant had recovered to almost normal levels of functionality by mid-2014. In reaching his decision, he considered submissions by the claimant that the footage showed him only on his good days or, alternatively, on days where he had taken painkillers that were masking his symptoms. Dr Pither did not consider that painkillers could mask the claimant’s pain to the extent that he would appear to be functioning at normal levels on the footage; his evidence was accepted.

Given that footage was taken on 17 days, and attempted on four further days on which the claimant was not spotted, the court did not accept that only the claimant’s “good days” were sampled. Once the issue of the painkillers and the “good day/bad day” argument had been dismissed there was nothing to prevent the court concluding that the surveillance footage was representative of the claimant’s functionality in 2014.

As the medical experts could not provide any other examples of cases where there had been a recovery to the extent shown in the footage, followed by a significant decline at the point of subsequent medical reports, the court found that the medical evidence did not support a causal link between the accident in 2012 and the on-going symptoms.

The defendant’s case was that there was either nothing wrong with the claimant by 2014 or, at the very least, that he had significantly exaggerated his symptoms. The court found the claimant's presentation at trial to be “deeply distressed”, “entirely worn down” and “apparently sincere”. In his judgment Mr Jonathan Swift QC found the contention that the claimant had been faking his symptoms to be “very implausible”. He concluded that the claimant had not “consciously fabricated or exaggerated his evidence” or “otherwise acted dishonestly”.

The court concluded by finding that the defendant was liable to compensate the claimant for the injury although the symptoms attributable to the accident were limited until May 2014. 

Comment

One interesting aspect of the case is that the court did not accept the claimant’s contention that the surveillance happened to be recorded on his good, rather than bad, days. It is positive that the court was clear that such an argument, which is not uncommon, is implausible when footage taken on a number of days (17 days in this case) is presented. However, defendants must bear in mind that as the number of days of surveillance is reduced the easier it may be for a claimant to convince the court that the "good days and bad days" argument is plausible.

The defendant was unsuccessful though in persuading the court that the claimant was exaggerating his symptoms and that the claim should be struck out under Summers v Fairclough. The bar for strike out on the grounds of abuse of process under Summers remains high. In that case the Supreme Court found that whilst a claim can be struck out at any time, even following a trial, the court must be satisfied “that the party’s abuse of process was such that he had forfeited the right to have his claim determined”. It would be appropriate only in very rare cases for a judge to strike a claim out following a trial and in Karapetianas the judge was clear that he did "not consider that the claimant's conduct in these proceedings approaches that mark."

It is worth noting that proceedings pre-dated the implementation of the fundamental dishonesty provisions under s.57 Criminal Justice and Courts Act 2015. This provision, which came into force for all proceedings issued after 13 April 2015 came about by way of an acknowledgement that Summers had set the bar too high. S.57 allows the court to dismiss a claimant's claim if it is satisfied that the claimant has been fundamentally dishonest. Given the lack of a finding of exaggeration at all in this case, it could not have been deployed but it should now be borne in mind as an additional option available to defendants. Interestingly this month we report on our own s.57 success in a case involving exaggeration of symptoms.

From a practical point of view the case highlights the need to obtain surveillance evidence as soon as there are grounds for suspicion that the claimant's presentation is inconsistent with the pleaded claim. Reviewing all records and obtaining statements from witnesses who can comment on how the claimant presented post-accident and pre-surveillance is crucial in establishing patterns of behaviour. The two year gap in this case between the date of the accident and obtaining the footage allowed the court to find that the symptoms until the date of the surveillance were genuine and attributable to the accident.

Notwithstanding the challenge in persuading courts of deliberate exaggeration, defendants can still  successfully utilise surveillance evidence where there are concerns regarding the extent and duration of the accident related symptoms in order to significantly reduce quantum. Indeed we understand from counsel in the case that not only did the claimant fail to beat the defendant's part 36 offer, he was further penalised in costs for failing to engage in alternative dispute resolution before the part 36 offer was made.

Contact

For further information please contact Lucy Fazackerley, Associate on 0161 603 5197 or at Lucy.Fazackerley@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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