Surveillance is sometimes used by the Transport Accident Commission (TAC) as a means of ascertaining whether or not an accident victim has a genuine disability. Typically, an accident victim who sustains mild to moderate injuries, but presents to examining doctors claiming a significantly high level of disability, will often be the subject of surveillance.
TAC does not routinely use surveillance. It only uses surveillance when it considers the facts of the case warrant it.
Obviously, where the TAC suspects fraudulent behaviour, it will use surveillance. For example, if TAC suspects that a person on income benefits (either loss of earnings [LOE] or loss of earning capacity [LOEC] benefits) is actually working, then surveillance will be used. A surprising number of calls are received by the TAC each year from individuals claiming that accident victims are engaging in fraudulent behaviour. TAC carefully reviews cases where such allegations are made. If TAC believes that there might be a basis to believe the allegation, then it will probably engage a private investigator to carry out surveillance.
A period of surveillance is usually preceded by a medical appointment that TAC arranges so that the investigator has the opportunity to identify the accident victim. When the accident victim turns up to the doctor’s rooms and identifies himself to the doctor’s receptionist, the investigator, who will probably be sitting in the waiting room, then has the opportunity to identify the claimant. The investigator usually goes outside and waits for the claimant to leave the doctor’s building. At that stage surveillance video is usually taken in order to have an identification record for future surveillance.
Surveillance will usually commence early in the morning with the investigator seated in a motor vehicle near the claimant’s home. The investigator will wait until the claimant appears at some stage in the morning. If the investigator is able to obtain video film of the claimant performing activities that are inconsistent with the claimant’s presentation to the doctors, then that film will be taken. Obviously, if the surveillance is being used to determine whether or not a person is working whilst in receipt of income support payments, then the investigator will be most interested to follow the claimant to see if he or she is going to work.
If the claimant is making a serious injury (judicial leave) application, the TAC might use surveillance in order to determine whether the claimant has the level of disability described in the claimant’s Affidavit in support of the serious injury application. Surveillance is less widely used by the TAC these days compared to four or five years ago, however, the best way for a claimant to avoid the negative impact of surveillance is to be honest and truthful about the nature and extent of their disabilities.
There are really only two ways in which surveillance can cause problems to a claimant. Firstly, if the claimant is shown in surveillance material to be doing something that the claimant has denied being able to do. Surveillance material in such circumstances can be extremely damaging to the case.
Secondly, if the surveillance material shows the claimant doing something that to the ordinary person would be impossible given the claimant’s injuries, then that would also be damaging. For example, if a person with a back injury was filmed whilst bungy jumping, this would be potentially disastrous for the claimant. Once again, the best policy is to be completely honest and open about the nature of your injuries. It is also most important not to exaggerate or embellish the disabling effects of those injuries.