Video and communications technology in today’s day and age are widely accessible and easy to use. In personal injury claims, video surveillance is now used to assist insurance companies in their assessment and investigations of claims, to confirm or dispute allegations of injuries and restricted functions. They do this by recording you undertaking usual activities of daily living. This may take you by surprise. While some raise concerns of privacy, video surveillance is lawful. But why do insurance companies do it and how is it regulated?
Motor Vehicle Accident Claims
Video surveillance in motor vehicle accident claims is addressed under Sections 4.139 to 4.146 of the Motor Accident Guidelines (‘MAG’), which regulates the way insurance companies can record you. Although an insurance company is at liberty to undertake surveillance footage during the process of a motor vehicle accident claim, certain measures are in place that ensure this is done appropriately and reasonably. For example, the MAG sets a particular standard:
- Surveillance occurs only when there is sufficient evidence that indicates exaggeration during a claim or that there is misleading information in a claim, or
- The insurance company must reasonably believe that the claim is inconsistent or contrary to any information or evidence in their possession
- Surveillance must only be done in public places. The insurance company or the investigator cannot engage in acts of “inducement, entrapment or trespass”.
Recently, on 8 April 2022, the MAG was updated to provide protections for Claimants with mental health conditions. Section 4.146 states that an insurance company can only conduct surveillance of a Claimant only if they have clearly identified any mental health condition in the request for surveillance and have developed a risk management plan to minimise harm to the Claimant’s mental health condition.
Workers Compensation and PUBLIC LIABILITY CLAIMS
Video surveillance in workers compensation and public liability claims are not governed by any legislation or regulations. However, at common law, depending on the circumstances of each claim, a court’s interpretation of surveillance footage is approached in an “extremely cautious” manner. This was discussed in Asim v Penrose & Anor [2010] NSWCA 366, where Tobias JA noted:
“It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence.”
Member Mr John Wynyard of the Personal Injury Commission observed in David v Global Logistics – Toll People [2022] NSWPIC 38, at para 86:
“The interpretation of the movements of people being filmed whilst under surveillance is necessarily subjective.”
While this may sound promising, it is also very important to consider that video surveillance can potentially damage a claim and greatly reduce or in some cases entirely prevent an award for compensation if a Claimant is being seen on raw footage, showing greater capacity and functions than they have previously stated in evidence. This is why it is important to be honest and truthful from the very start of your claim regarding your personal circumstances, your injuries and level of disability.
Diana Joseph Solicitor P: 02 9724 2549
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