Plaintiffs 'do their own surveillance'

Who’s watching who and why?

Tips and traps for obtaining, using and protecting surveillance were shared by barrister Jessica McClymont and Surveillance Central director Rod Trevor at an AILA breakfast meeting in Brisbane.

Ms McClymont said Facebook was a useful tool, but warned that people “engage in a lot of puffery” on social media.  They liked to present an image to friends and family that was not necessarily real.

She cited a case in which a young man was severely injured but had posted on Facebook that he had been kick boxing. When questioned in the witness stand he said he was embarrassed about his injuries and wanted people to think he was normal, so he had lied.

That benefited his case because the judge said it demonstrated the psychological reaction to his injury.

By reviewing Facebook pages, Ms McClymont said she now knew “a lot more about the younger generation’s spelling ability and activities that I really wanted to know”.

Sometime plaintiffs would “do the surveillance for you”, by posting photos and video of them engaged in activities they were claiming an inability to perform.

However, she warned photos were often old so other information was needed to date them.

Plaintiffs could deny writing posts, claim someone else had written them or the page was not theirs and it was difficult to prove otherwise.

Mr Trevor said ‘intel’ was the foundation of effective surveillance. Desktop searches were vital to gain the intelligence needed to better direct surveillance. “Ongoing surveillance is expensive, so we want it to be beneficial to management of the claim,” he said.

However, the value of consecutive days of surveillance was that it “knocks out the good day/bad day argument”.

A claimant’s mobile phone number and email address were needed to track intel online. But many people used nicknames on social media which could be “tricky”. Knowing as much information as possible about a claimant, including their relatives, friends and partners, could help relocate them if contact was “broken” in the field.

“When you find something [on social media], save it,” Mr Trevor said. “So often you go back and it’s gone; the penny has dropped and they’ve deleted it.”

Investigators had to be thorough – “turn every stone,” he advised.

Ms McClymont said surveillance was more arm’s length than the days when a female operative would befriend a claimant and invite them to Dreamworld where cameras could film them on roller coasters and rides.

“Actively think about the information you already have, what are their sports and hobbies, what school do their kids go to? Brief the operative about what type of injury is being claimed. What type of activities would be useful in your defence of the claim?”

She cited an example of a plaintiff who was filmed walking easily around his home and workplace. When he visited doctors and at trial he had “a shuffling, unbalanced gait and used a walking stick”. When the video images were shown he consented to his $1.7 million claim being dismissed on the second day of the trial.

In Samimi v Q-Comp [2013] QDC 203, Mehran Samimi had claimed workers’ compensation for an ankle injury. Video surveillance showed him operating a mobile food van on two separate days. He was moving heavy objects and “bending, moving and unpacking supplies. He works without stop for some five hours”, the judgement found.

Ms McClymont said Samimi was ordered to repay all the compensation he received, which was more than $40,000. “It was a pretty valuable piece of surveillance.”

In Samways v WorkCover Queensland & Ors [2010] QSC 127, a surveillance operative took footage of Scott Andrew Samways playing touch football, although he had said he was unable to play footy.

The judgement said: “The plaintiff admitted it was a lie.” Justice Applegarth found Samways had “deliberately exaggerated to medical practitioners the extent of the disability in his left shoulder. [His] preparedness to mislead medical practitioners to secure his own advantage causes me to have a general reservation about his credibility”.

While Samways was successful, he was awarded only about $20,000.

In McChesney v Singh & Ors [2003] QSC 83, Ms McClymont said there was “novel use of surveillance” to demonstrate the number of hours of care being provided for a woman severely injured in a traffic accident. Her carer was not providing the amount of care for which he was being paid.

In an unreported case, video surveillance was taken of a person digging holes for fence posts. The severely injured plaintiff agreed at trial that it was him, although it was later proven it was his cousin. The judge said the fact the plaintiff though he had dug the holes demonstrated the extent of his brain injuries.

Ms McClymont said lawyers had no choice but to watch and listen to all surveillance tapes. “Don’t rely on the surveillance report, it might be optimistic.”