Surveillance footage: Good days and bad days
Karapetianas v Kent and Sussex Loft Conversions Ltd
High Court (QB)
Jonathan Swift QC sitting as a deputy High Court judge
25 April 2017
In a case where the extent to which the claimant had recovered from injury was in issue, the court concluded that a disparity between his appearance on surveillance footage and his presentation to medical experts did not mean that the claimant was exaggerating or being dishonest. There were no grounds to strike his claim out under Summers v Fairclough Homes Ltd  UKSC 26. The court awarded damages limited to the date by which the claimant had regained relatively normal function. Lucy Fazackerley explains the findings in Karapetianas v Kent and Sussex Loft Conversions Ltd (2017).
On 17 March 2012 the claimant was working for the defendant dry lining a loft when the floor collapsed and he fell through to the floor below, fracturing his pelvis. The claimant underwent a pelvic reconstruction operation followed by two months of rehabilitation in hospital. Upon discharge from hospital he continued to complain of severe persistent right leg pain. The main issue in dispute was the extent and timing of the claimant’s recovery from the pelvic fracture.
Mr Kellerman (Consultant Neurosurgeon) examined the claimant in January 2014. The claimant reported that he had numbness and pain in his right leg and could only walk 20-50 metres before having to stop. Further, he could no longer drive. On examination, Mr Kellerman noted that there was normal range of movement in the knees, hips and ankles but that the claimant exhibited abnormal behaviour and “exaggerated reaction” when examined.
Dr Edwards (Consultant in Pain Management) examined the claimant in February 2014 and the claimant again reported right leg pain. He said that he walked with a crutch and had difficulty moving up stairs. He could not bend or squat and could only lift light items. Dr Edwards concluded that any exaggeration was not deliberate but rather resulting from the claimant’s significant psychological and psychiatric symptoms.
Surveillance footage was obtained by the defendant predominantly during the period from March 2014 until August 2014. The footage showed the claimant walking with just a slight limp without the aid of a crutch or stick. He was seen driving to a clinic, driving to a retail park, walking around a supermarket, carrying two bags of shopping, pushing a trolley, taking out rubbish bags and bending, pointing and stretching. On one day of surveillance he was seen walking around normally for around an hour.
Upon reviewing the footage Dr Edwards was unable to explain the disparity in medical terms. Mr Kellerman believed that the claimant had deliberately deceived him during the examination in January 2014 and revised his prognosis concluding that the claimant could now undertake “light manual work” having made a very good recovery.
The claimant was examined again in April 2015 and June 2016 by Dr Pither (Consultant Pain Specialist), who had sight of the footage. Dr Pither could not explain the disparity between the footage and the claimant’s presentation but concluded that it was unlikely that the claimant had no on-going symptoms. He did not think that the claimant was malingering. Dr Foster (Consultant Neurologist) examined the claimant in May 2015 and noted that chronic pain sufferers have good days and bad days although he could not conclusively or fully explain the discrepancy between the claimant’s reported symptoms and the footage.
Mr Jonathan Swift QC accepted that the surveillance footage showed that the claimant had recovered to almost normal levels of functionality by mid-2014. In reaching his decision, he considered submissions by the claimant that the footage showed him only on his good days or, alternatively, on days where he had taken painkillers that were masking his symptoms. Dr Pither did not consider that painkillers could mask the claimant’s pain to the extent that he would appear to be functioning at normal levels on the footage; his evidence was accepted.
Given that footage was taken on 17 days, and attempted on four further days on which the claimant was not spotted, the court did not accept that only the claimant’s “good days” were sampled. Once the issue of the painkillers and the “good day/bad day” argument had been dismissed there was nothing to prevent the court concluding that the surveillance footage was representative of the claimant’s functionality in 2014.
As the medical experts could not provide any other examples of cases where there had been a recovery to the extent shown in the footage, followed by a significant decline at the point of subsequent medical reports, the court found that the medical evidence did not support a causal link between the accident in 2012 and the on-going symptoms.
The defendant’s case was that there was either nothing wrong with the claimant by 2014 or, at the very least, that he had significantly exaggerated his symptoms. The court found the claimant's presentation at trial to be “deeply distressed”, “entirely worn down” and “apparently sincere”. In his judgment Mr Jonathan Swift QC found the contention that the claimant had been faking his symptoms to be “very implausible”. He concluded that the claimant had not “consciously fabricated or exaggerated his evidence” or “otherwise acted dishonestly”.
The court concluded by finding that the defendant was liable to compensate the claimant for the injury although the symptoms attributable to the accident were limited until May 2014.
For further information please contact Lucy Fazackerley, Associate on 0161 603 5197 or at Lucy.Fazackerley@dwf.law
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