Dr Jenner Discusses How an Expert Witness can Contextualise Surveillance Footage in the November Issue of Your Expert Witness Magazine

HOW AN EXPERT WITNESS CAN CONTEXTUALISE SURVEILLANCE FOOTAGE.

By DR CHRISTOPHER JENNER MB BS FRCA FFPMRCA, Consultant in Pain Medicine at Medicolegal Associates Ltd and Imperial Healthcare NHS Trust.

Providing surveillance evidence can be key in turning a case in favour of either claimant or defendant if accompanied by the expertise of the right Medico-Legal Expert Witness.

The following case studies give examples of each of these.

Case Study One:

Mr X slipped and fell hard on an icy surface when exiting a company vehicle. This left him in on-going pain and with a limp.

In surveillance footage taken after the incident, Mr X was seen at various times walking, pushing a wheelie bin to the kerb, taking public transport and, on one occasion, driving. He was even seen gardening and putting up a fence. However, despite this, the Expert Witness did not alter his opinion on upholding Mr X’s claim for two pertinent reasons:

• Mr X had been encouraged to exercise and liked to keep busy.
• Mr X had initially stated that he could walk for up to 30 minutes before his leg began to hurt and then for a further 15 – 20 minutes but with a slight limp. There was no footage showing Mr X walking for any extended period of time or on any particularly steep gradient.

In this case, the Expert Witness was able to put the surveillance evidence in context and to show that a conclusion against the claimant could not be drawn as the evidence did not, in fact, have relevance to the particular debility the claimant experienced as a result of his accident. The court found in favour of Mr X.

In this next case, the evidence goes in favour of the defendant due to the ability of the Expert Witness to analyse the surveillance evidence in court and draw reasonable conclusions

Case Study Two:

Ms Y slipped on a wet floor while she was in a bar at the Ascot races. She landed on her left arm while trying to break the fall. The pain and swelling were such that she was taken to a hospital and underwent an X-ray of the wrist revealing a fracture. She spent a number of days in the hospital and received physiotherapy after being discharged.

As Ms Y’s pain did not seem to diminish and made day-to-day tasks extremely difficult, she was further diagnosed with neuropathic pain. Her left hand was left almost non-functional.

However, surveillance footage showed Ms Y performing everyday tasks without any signs of a struggle. Ms Y was seen driving her car to the store and swapping shopping bags between both her left and right hand while attending to her hair –without any discernible abnormalities. Surveillance clearly showed Ms Y functioning normally, entering shops and paying for goods while on her phone and managing payment dexterously using both hands. She was also recorded carrying her handbag that hung from her left elbow while holding a diary in her left hand, with no signs of a struggle.

The surveillance footage raised questions around Ms Y’s presentation in contrast to her claim. A limited number of possible explanations exist:

• Ms Y’s pain had significantly improved allowing her to use her left upper limb with normal function.
• Ms Y had experienced a spontaneous recovery in her left upper limb.
• Ms Y was consciously exaggerating for the purpose of the medicolegal process

The Expert Witness, in this case, came to the conclusion, after reviewing the surveillance footage, that there was no evidence of pain, disability, restriction of movement or other abnormalities regarding Ms Y’s upper left upper limb. Ms Y lost her claim.

While it can be thought that surveillance footage is evidence in itself, this is very seldom the case, especially in claims involving on-going pain with little to no observable cause. The right Expert Witness is able to objectively and precisely show how the presentation of behaviour seen in the evidence relates to the claim being made. An Expert Witness who has a clear, whole-picture of the case at hand will be able to win the trust of the judge in court as he or she can be depended on to translate surveillance evidence soundly, precisely and without bias.