CR368 Disability

This case concerns the termination of the payment of a monthly disability income benefit which had been in payment for just over a year, after the insurer had discovered, through the use of electronic surveillance by forensic investigators, that the life insured was actively involved in the running of two businesses: a tavern and a construction business. Based on the information gathered during the video recording, the insurer had decided that the life insured was capable of performing a suitable alternative occupation.
The complainant objected to the use of the evidence that was obtained through the video recording, contending that the recording was made in violation of his right to privacy and that there is no guarantee that it had not been tampered with as it had been obtained by a company which was acting on the insurer’s instructions.
Our office may, in its discretion, admit or refuse to admit evidence that was gathered by means of video recording.
Our procedure is to refer all such matters to a joint meeting of the office’s adjudicators for discussion, with a view to deciding, firstly, whether the recording is admissible or not, and secondly, if the meeting finds that it is admissible, decide what weight should be attached to the evidence that was gathered through its use.
The first step in that process is to enquire from the complainant if s/he consents to the adjudicators viewing the video recording. If the complainant consents, all the adjudicators will view the video recording and then decide on the admissibility of the recording and the weight to be attached to the evidence that was gathered through its use. In deciding on those two issues, the overriding consideration is fairness to both parties, having regard to all the facts of the case, the submissions by the parties and any other relevant consideration, which may include those set out on page 44 of our 2005 Annual Report as follows:
“Fairness may sometimes require us to have regard to relevant and reliable evidence. Like a court, we have a discretion to accept and consider such evidence, taking into account how it was obtained; whether it could have been obtained lawfully; the reasons why proper means were not used; the reliability of the evidence; whether the acceptance of such evidence would be so improper as to transgress constitutionality; the materiality of the evidence; whether such evidence was necessary to have a balanced view of the dispute; and the nature and degree of impropriety of obtaining the evidence”.
The giving of consent for the adjudicators to view the video recording is not construed as any concession on the complainant’s part that the recording is authentic, or that the recording is admissible and of evidentiary value.

If the complainant does not consent to the adjudicators viewing the recording, it does not mean that the recording will automatically, that is, for that reason only, be excluded as evidential material. It only means that the meeting must then decide, in its discretion, whether or not to view the recording without his/her consent. One of the factors which we will consider in this regard is the reasons why the complainant refuses to grant his/her consent. The complainant is, in that event given an opportunity to advance reasons for his/refusal.
If the meeting decides to view the recording despite the absence of consent, it will thereafter decide the two issues referred to in the paragraphs above after affording the parties an opportunity to make submissions of the nature referred to in the paragraph extracted from page 44 of our 2005 Annual Report.
Having considered the submissions received from both parties, the meeting decided that the video recording should be viewed. However, after viewing the recording, the meeting concluded that even without considering the admissibility or otherwise of the video surveillance material, it would be more appropriate for the matter to be heard by a court of law. The reason for the conclusion was that there were serious disputes of fact in the evidence presented by the parties which could only be resolved by holding a hearing, and also material documentary evidence (some of it privileged) that the office would require access to and to refer to in determining the main issue in dispute. Furthermore, it was probable that the complainant would need to call witnesses who would invariably have to be subjected to cross-examination as is done during a trial: our office has neither the capacity, nor the authority to conduct a trial.
The parties accepted the ruling.

April 2016