Brain injury and surveillance: ensuring the integrity of case footage

By Jeffrey A Simm, managing director, Lumina Surveillance Group

Often a brain injured person can’t explain their symptoms, their limitations, or are sometimes almost too ashamed to state their reliance on others. It is extremely difficult to quantify and requires the collaboration of all parties to accurately determine, but there is, more than in any other area, a wariness of the parties and this can lead to the conscious uncoupling of collaborative trains of thought and steps instead being taken down the path of “Locking Horns”.

The process of a person with a brain injury relaying information to medical professionals, their personal appropriate adult and onto their legal representative to progress their claim through the courts is fraught with misinterpreted danger. This area of potential misinterpretation also provides a perfect environment for fraudulent claims to be harvested.

It is therefore absolutely “Right and Proper” that an insurer will look to determine if a claim is genuine, exaggerated or fraudulent and probably the single best method of determining this is surveillance. Provided of course that the surveillance and the subsequent evidence is also absolutely “Right and Proper”.

It is important to know at this juncture that the surveillance industry is currently completely unregulated. In all other areas of the claim’s process, from medical experts to legal representatives and ultimately the courts, there are training, qualifications and professional standards to adhere to, but in what is potentially the most crucial element of the process, there is no requirement for any surveillance operative or company to be qualified or licensed.

 

 

There is a trade body, The Association of British Investigators, but membership is not a requirement to be able to operate as a surveillance operative and the association themselves are aware of the malpractices within the industry and state on their website: “Investigators themselves are not regulated” that “The industry as a whole remains without any formal mechanism of accountability” that “Concerns have long been expressed about the possible risks connected with unregulated private investigators” and that “Unregulated private investigators may work without any training or uniform standards”.

In the absence of any form of regulation, the only way to ensure absolute parity across the board is to ensure that the surveillance evidence has been gathered correctly, without selective filming methods being deployed and that the film is free from any form of post capture editing that “Steers” the film to benefit one particular party.

Sadly it is in brain injury cases where unethical tactics are most frequently deployed.

Two recent examples that I have seen in my capacity as a High Court Recognised Video Evidence Analysis Expert have been the removal of the audio on the film and the deleting of files, both examples that to the untrained eye, presented a dramatically different picture of the Claimant.

In the first example the Claimant was shown boarding a bus and visiting local shops. With the audio deliberately removed post capture and the film accompanied by a detailed typed report, the medical professionals tasked with utilising it to from or amend their opinions were “Steered” towards reporting that the Claimant had a high level of cognitive function and was able to navigate both a bus journey and carry out transactions.

Once it had been established that the original recording media had been retained, I was able to reinstate the audio which subsequently painted a dramatically different picture.

The Claimant had a speech impairment, the bus driver knew the Claimant and rather than the Claimant directing his travel requirements, method of payment and final destination, the bus driver led the conversation, handled the transaction and furthermore prompted the Claimant to alight at the appropriate stop.

It was a similar story in the shops that he visited. The audio revealed that all the vendors knew him and in fact provided the Claimant with the repeat goods that they knew he required.

Even just the reinstated volume and markedly slower than natural verbal interactions between bus driver, retailers and the Claimant brought a level of correction to the overriding feel of the presented film that would otherwise have gone undetected.

The reinstatement subsequently allowed all parties to much more accurately assess the Claimant, re engage appropriately and collaboratively work towards settling the claim.

The second example showed a young female Claimant leaving her block of flats, attending at a local shop and returning to her flat. Quite a contrast to her witness statement in which through her appropriate adult it was stated that she was too anxious to ever leave the house alone.

A thorough trawl of the Meta Data (Data about Data) contained within the original recordings revealed further files that had not been included within the edited version of events that had been served and which medical professional tasked with forming or amending their opinions had been asked to utilise.

The missing files showed that a surveillance operative entered the shop with the Claimant and that she was in a queue. The files further showed that the claimant then abandoned the queue and a final split second clip showed the Claimant running down the road that led to her home.

It transpired that the Claimant, alone inside her flat had required sanitary products, her carer was running behind schedule and though incredibly anxious, the Claimant had managed to summon the resolve to get to the shop herself. Whilst waiting in the queue she had suffered a panic attack and ran home.

The reinstatement of the omitted files and further verifying Witness Statements from both the Claimant and her carer served to ensure that the medical experts formed a much more accurate opinion of the Claimant’s limitations.

Selective or manipulated video evidence, gathered and presented by rogue and unregulated firms or their operatives, only serves to cause further harm to the Claimant and to bring reputational and financial damage to the Defendant lawyers and their insurance clients.

This rogue element of the industry is thankfully in the minority but insurers, or lawyers acting on their behalf encouraging with financial rewards the temptation to obtain so called “Favourable results” does in fact only serve to fan the flames of fraud even further.

I see fraudulent Claimants on a regular basis and the surveillance evidence we gather serves to eradicate them at infancy and saves our insurer clients substantial sums of money. Surveillance evidence truly is an invaluable tool against personal injury fraud and our expert reviewing of third party gathered video evidence serves to ensure that fraudulent activity by unscrupulous surveillance operatives is also detected.

In the absence of regulation and whether acting on behalf of a Claimant or a Defendant it is imperative to know that the surveillance evidence is a true reflection of the circumstances and can absolutely be relied upon.

If instructing surveillance then any instruction issued should be to monitor, film and accurately report on the Claimant’s activities in their entirety and under no circumstances “Steer” operatives prior to deployment with incentives for the type of film they obtain.

Ensure that the surveillance company being instructed is reputable and that they are aware of the importance of the retention and processing of the evidence they collect.

If receiving video evidence then be sure to watch it in its entirety and avoid forming “Knee jerk” opinion regardless of what it shows. Similarly ask the Claimant to do the same. It is often the case that a Claimant or their carers can provide legitimate explanations of what the film shows or highlight what the film doesn’t show.

Trust your gut feeling, if something doesn’t “Look or Feel” right then it probably isn’t. This applies to footage you are about to serve or footage you have just received.

Jeffrey A Simm, Managing Director
Lumina Surveillance Group