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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Construction of s 39 WCA – Workers are entitled to payments for the period between the discontinuation and resumption of payments after an assessment by an AMS
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Furthern Education Commission t/as TAFE NSW [2020] NSWCA 113 – White & Brereton JJA & Simpson AJA – 17/06/2020
In Hochbaum v RSM Building Services, the Court set aside the orders made by President Phillips on 18/04/2019 be set aside, dismissed the appeal against the decision of the Senior Arbitrator, and reinstated the Senior Arbitrator’s COD dated 7/01/2019. By consent, no cost order was made.
In Whitton v Technical and Further Education Commission t/as TAFE NSW the Court set aside the orders made by President Phillips on 17/06/2019, dismissed the appeal against the decision of the Senior Arbitrator, and resintated the Senior Arbitrator’s COD dated 7/01/2019. It also ordered the respondent to pay the appellant’s costs.
The Headnote reads as follows:
The appellants were two workers who were injured in the course of their respective employment. Each made a claim for compensation, and was in receipt of weekly compensation payments, prior to the introduction of the new workers compensation regime introduced in 2012. The 2012 amendments replaced s 39(1) of the (NSW) Workers Compensation Act 1987 (“the 1987 Act”), which now provides that a worker has no entitlement to weekly payments of compensation after an aggregate period of 260 weeks, whether or not consecutive, in respect of which a weekly payment has been paid or is payable. However, s 39(2) provides that the section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Pursuant to the commencement of the legislative regime, the respondents’ insurers ceased paying weekly payments to the appellants with effect from 26 December 2017, being 260 weeks after 1 January 2013. Subsequently, the appellants were assessed as having a degree of permanent impairment resulting from their relevant work injury in excess of 20%. Weekly payments were resumed with effect from the date of the assessment; however, liability to make payments in respect of the period between 26 December 2017 and the date of the assessment was disputed.
In each case, an arbitrator held that the worker was entitled to weekly payments for the disputed period, but both decisions were overturned on appeal by the President of the Workers Compensation Commission, who held that the effect of s 39(2) was to displace s 39(1) only from the date when the worker was assessed to have a degree of permanent impairment resulting from the injury of more than 20%. The applicants, being aggrieved by the decisions of the President of the Commission in point of law, appealed from that holding, as of right, to this Court. The Court found there were two main limbs underlying the President’s decision (which formed the two primary issues considered on appeal); first, that assessment is a precondition to liability given the words of s 39(3); and secondly, that s 39(2) has a temporal aspect as it operates on the state of affairs that obtains at the relevant date.
Held, allowing the appeal:
On the proper construction of s 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed: at [1], [45].
By incorporating Pt 7 of Ch 7 of the (NSW) Workplace Injury Management and Workers Compensation Act 1998, through s 65 of the 1987 Act, the words “to be assessed” in s 39(3) provide the methodology and process by which impairment is to be measured and any dispute about its existence or extent resolved; the words do not mandate that there must have been an assessment before s 39(2) is engaged: at [2], [3], [45], [46], [50], [82].
The date on which an impairment threshold is crossed is not a relevant consideration in any question arising under s 39 of the 1987 Act, and the only relevant question is, what degree of permanent impairment has resulted from the worker’s injury. For the purposes of s 39, while impairment may improve or deteriorate over time, or not be established until long after the injury, it is the final degree of permanent impairment that results from an injury that is determinative of whether the worker is in the exempt class. There can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency: at [53]-[56].
The degree of permanent impairment ultimately ascertained does not necessarily arise from the date of the worker’s injury. In some cases the worker’s degree of permanent impairment will date from the injury; but in others the ultimately assessed degree of permanent impairment would have been occasioned by later events, such as adverse results of surgery or psychological sequelae, that did not exist earlier: at [8], [9], [11], [12].
It is necessary to go no further than the text of s 39 to resolve the present dispute. Nothing in any of the three subsections of s 39 states, explicitly or implicitly, that removal of the subs (1) bar is dependent upon the date of the assessment of the degree of permanent impairment as distinct from the existence of the degree of permanent impairment. The language of subs (2) points in the opposite direction: the foundation for the removal of the subs (1) bar lies in the existence of a degree of permanent impairment exceeding 20%. Subsection (3) does no more than specify the mechanism by which the degree of permanent impairment is to be assessed; nothing in subs (3) suggests that an assessment may only be prospective. If it were necessary to go beyond the text of s 39, resort to principles of statutory construction would support the same approach: at [90]-[91].
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