20 September 2019

Surveillance normally only gives a snapshot of a few hours of a claimant’s life and although Facebook and Instagram can give some insight into their home life, these are often limited. But, what about a case where the claimant places video surveillance on themselves?

Enter Brian (not his real name). Brian had a minor fall at work where he suffered an injury to one thumb. Orthopaedic evidence suggested this should have resolved within 3 months, but the pain continued and developed to the point where he was unable to move it at all. Brian claimed that the thumb was in a permanent “thumbs up” position and this made his hand practically useless for any task. A consultant neurologist diagnosed a likely functional dystonia as the cause and linked it to the accident.

A “functional” diagnosis, i.e. where there is no organic cause for the symptoms, should always be considered closely. In this case, an analysis of the claimant’s social media disclosed a tweet where he claimed to have spent over 100 days playing a particular video game on x-box. Taking its release date that equated to around 5 hours per day every day. That raised the question of how he managed this without the use of his thumb.

This caused a problem as his gaming was done inside and therefore traditional surveillance would have been unlikely to establish anything. What we did not count on was Brian deciding to live stream himself, to the whole internet, playing various games on his x-box. He even turned a webcam on himself. We could therefore observe him from the comfort of the office for up to 12 hours a day. During his streams Brian could be seen using his hand for activities he claimed were impossible, although we could not see him hold the controller.

The icing on the cake came when he told our expert, before disclosure of the evidence, explicitly, that he could not game at all. When we did disclose it, accompanied by our expert’s supplementary report suggesting that, in light of the footage, the claim could well be fabricated, Brian’s solicitors, perhaps unsurprisingly, withdrew from acting.

After this, Brian consented to the action being dismissed and we looked for an enhanced level of expenses to be awarded against him. The challenge here was that in order to keep costs down, we had been able to keep the case sisted (stayed) before we needed to lodge defences. Therefore, there had been no finding of fact by the Sheriff about the truthfulness of the claimant and there is no requirement to sign a statement of truth in Scottish proceedings. However, Brian accepted that he had not been truthful about his gaming to his experts. That allowed us to successfully argue that his conduct of the action had been unreasonable and on that basis we obtained our enhanced award.

The case demonstrates that you can never predict how a claimant may act in any particular case. It is also worth bearing in mind that social media now expands beyond just Facebook, Twitter and Instagram to streaming networks such as Twitch and Mixer.

It is also important to carefully consider tactics for when to disclose your evidence, avoid giving the game away, and maximising your chances of securing a favourable award of expenses. Whilst avoided in this case, establishing potential fraud as fact will be an issue when QOCS comes into force in Scotland, as an award of expenses against a claimant will only be possible where that or other special circumstance is proved.

Contact: Lewis Richardson, Associate lri@bto.co.uk T: 0131 222 2939