"GOOD DAYS AND BAD DAYS": THE ROLE OF VIDEO EVIDENCE IN THE ASSESSMENT OF CREDIBILITY AND DAMAGES

“GOOD DAYS AND BAD DAYS”: THE ROLE OF VIDEO EVIDENCE IN THE ASSESSMENT OF CREDIBILITY AND DAMAGES

Mediatelegal

In Karapetianas -v- Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB) Mr Jonathan Swift QC considered the appropriate approach to damages when the claimant’s case as to ongoing symptoms was contradicted by video evidence.  He found that the evidence showed that there had been a full recovery. He also, however, rejected the argument that the claimant was fraudulent.

THE CASE

The claimant was injured in an accident at work. He suffered a pelvic injury. That initial injury was significant. There were issues between the parties in relation to recovery and the date of recovery.

THE VIDEO EVIDENCE

The extent of his recovery (and its timing) has been put in issue by video surveillance evidence of the Claimant, taken on a number of occasions, but mainly between the end of March 2014 and mid-August 2014. Put very shortly indeed there is a stark disparity between the Claimant as seen on that video evidence, and the way in which the Claimant presented when examined by a range of medical experts both before March 2014 and after August 2014. On the video evidence, the Claimant appears to have a relatively normal level of function. When examined by each of the medical experts the Claimant has appeared to be severely disabled.”

THE JUDGE’S CONCLUSION
  1. Drawing all this together, I accept that the video evidence shows the Claimant’s level of recovery from the 2012 accident, by the mid-part of 2014. My conclusion is that by that time, the Claimant had recovered to the extent that he had regained something approaching normal functionality.
  2. I have considered the possibility that the Claimant’s day to day activities, as seen on the video evidence, are explained on the basis that he was taking large doses of painkillers, thereby masking the pain and enabling him to give the appearance of a relatively normal level of functionality. Dr. Pither did not consider that this was a possible explanation; I accept that evidence, and in any event think that this explanation lacks plausibility, for essentially the same reason as the good day/bad day explanation also lacks plausibility. The video evidence is of 17 occasions over the period from December 2013 to August 2014. In total, surveillance was attempted on 21 occasions, but on four of the days the Claimant was not spotted. Given that sample, over that period of time, it is improbable either that only “good days” were sampled, or that the only days observed were those when the Claimant had taken painkillers.
  3. In his submissions for the Claimant, Mr. Leech suggested that I should take account of the gaps between the periods of surveillance, and that I might infer that in these periods, the Claimant was not as able as he appeared on the video. I do not think that any such inference can be drawn; to do so would be to assume that the surveillance followed some sort of pattern which (advertently or otherwise) captured only the Claimant’s “good” periods. I do not consider that there is any basis for such an assumption. Overall therefore I accept the video evidence as representative of the Claimant’s level of functionality as at 2014.
  4. Next Mr. Leech submits that the point is to be considered in terms of the respective weight to be attached to the video evidence as against the body of medical evidence. I do not think that this approach assists the Claimant. Once the good day/bad day contention on the video evidence is rejected; and once the suggestion that the Claimant was on painkillers when he was under surveillance is also rejected, there is nothing left to undermine the weight to be attached to the video evidence as representative of the Claimant’s abilities as at 2014. It is what it is. What is then to be set against that is the Claimant’s own evidence of his state of health as reported by him to the doctors he saw from time to time. I accept that in 2013, 2014 and thereafter, the Claimant did not see just the medical professionals who have give evidence at this hearing, but also saw other professionals – his GP and others who saw the Claimant on referral by the GP. But this does not affect either the weight to be attached to the Claimant’s own reporting of his condition from time to time, or the significance that is to be attached to the video evidence.
  5. The next matter is what conclusions to draw in respect of the Claimant’s current condition. Does the available evidence make good a contention that there is a sufficient causal connection between the Claimant’s current condition and the 2012 accident? My conclusion is that the evidence does not make that connection; the Claimant’s present condition is not therefore to be attributed as a consequence of the 2012 accident. The medical evidence does not support a conclusion that the Claimant’s present condition can be so attributed. For example neither Dr. Pither nor Dr. Edwards, nor Dr. Foster could provide any example of any other case known to them in which there had been a recovery to the extent evidenced by the video evidence followed by a decline to the extent evidenced by the subsequent medical evidence. It has been suggested that the Claimant suffers from a chronic pain syndrome; but I do not understand any of the medical evidence to suggest that such a syndrome is likely to explain the level of recovery followed by the level of decline that is apparent in this case. Nor has any of the medical evidence been able to suggest any physical or neurological explanation. Both Dr. Pither and Dr. Foster suggested that it was possible that there could be a psychological explanation for this pattern of recovery and decline which might also be capable of demonstrating a causal connection between the Claimant’s present state and the 2012 accident. However, there is no psychological report in evidence – as I understand it this is because the Claimant declined to be examined by the psychiatrist chosen by the Defendant as a further expert witness. In any event, because there is no such evidence, this point goes nowhere for this purpose.
  6. The Defendant contends that in the absence of any other evidence that explains the Claimant’s pattern of significant recovery followed by significant decline, the conclusion I should reach is that, since 2014 there has been nothing wrong with the Claimant, or that at the least the Claimant has significantly exaggerated any residual effects of the 2012 accident. Although I accept that there is a logic to that submission, it is not a submission that I accept. I carefully observed the Claimant when he gave evidence; he was also in court for most of the hearing, and so I saw him in one context or another over a period of time. The Claimant appears deeply distressed by his condition, and as I have already said, entirely worn down, and apparently sincere. It is of course possible that all of this is fake. But I regard that to be very implausible. I mean no disrespect to the Claimant when I say that I do not believe that he is sufficiently sophisticated to be capable of such a deception conducted over so extended a period of time. As I have mentioned, both Dr. Pither and Dr. Foster suggested the possibility that there could be some psychological explanation for the Claimant’s present state. There is no specific evidence before me on that possibility. Yet it has been raised by both witnesses, and albeit that it is not a matter within their respective areas of particular expertise, it is appropriate for them to make this point by reference to their general experience, and I do attach weight to their view, in addition to the weight I attach to the opinion I formed about the Claimant having observed his evidence and seen him in court over the period of the trial. Thus although I do conclude (based on the video evidence) that the Defendant is not responsible for any significant symptoms consequent on the Claimant’s injury beyond mid-2014, it is not my conclusion that since that time the Claimant has consciously fabricated or exaggerated his evidence; and I do not conclude that he has otherwise acted dishonestly in these proceedings.
  7. This conclusion addresses the submission made by the Defendant that I should strike out the Claimant’s case, with the consequence that he would recover no damages at all by reason of the 2012 accident. The Defendant referred me to the judgment in Summers v Fairclough Homes [2012] 1 WLR 2004. In that case the Supreme Court concluded that a claim could be struck out at any stage of the proceedings, even after a trial; yet the court also stated (per Lord Clarke at paragraph 43) that the power should be used following trial only where a court was satisfied “… that the party’s abuse of process was such that he had forfeited the right to have his claim determined …”, and stated further that it would only be in a very rare case that at the end of a trial it would be appropriate for a judge to strike out a case rather than dismiss it on its merits in the usual way. For the reasons set out at paragraph 33 I do not conclude that this case falls into the category of very rare cases envisaged by the Supreme Court where a party has by his conduct forfeited his right to a judgment on the merits. I do not consider that the Claimant’s conduct in these proceedings approaches that mark.
  8. My overall conclusion on liability is that the Defendant is liable to compensate the Claimant for the injury he suffered on 17 March 2012 and for the consequences of that injury thereafter, but only to the extent that by the end of May 2014 the Claimant had substantially recovered from the effects of the injuries he sustained. On this point, based on the video evidence, I agree with the observation made by Mr. Kellerman in his September 2014 report, that the video evidence shows that the Claimant had recovered to the extent that he was capable of undertaking “light manual work”.

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