CONSISTENT SURVEILLANCE DEFEATS THE “GOOD DAYS, BAD DAYS” ARGUMENT IN WORKERS’ COMPENSATION
In most cases, people who sustain compensable injuries recover uneventfully and return to their pre-injury lives. Unfortunately for insurers, there are claimants whose recovery is unusually protracted. They report ongoing pain and incapacity that appears disproportionate to the stated cause, the available medical evidence, and - on occasion - surveillance evidence.
The “Good Days and Bad Days” Defence
When faced with evidence showing they can engage in activities seemingly inconsistent with their alleged injury, claimants often respond with a common explanation:
“I have good days and bad days.”
This argument makes it difficult to rely on isolated surveillance footage, as it leaves room for claimants to argue that they were coincidentally observed on one of their “good days.”
Wishart v Brambles Limited
The recent case of Wishart v Brambles Limited addressed this very issue. The decision highlights the importance of conducting surveillance over consecutive days to build a reliable and consistent picture of a claimant’s functional capacity.
In this matter, surveillance demonstrated that the claimant was able to perform activities consistently over multiple days, directly contradicting their claims of significant ongoing incapacity. This evidence proved more persuasive than a one-off observation and undermined the “good days and bad days” defence.
Why This Matters
This case reinforces several important points for insurers:
Consistency matters: surveillance across consecutive days carries more weight than isolated footage.
Context is crucial: evidence must align with medical reports and claimant statements.
Credibility can be tested: when activities contradict claims, surveillance becomes a powerful tool in assessing truthfulness.
Final Thoughts
The Wishart case demonstrates how well-planned surveillance can play a decisive role in resolving disputed workers’ compensation matters. By documenting consistent patterns of activity, insurers can effectively challenge claimants who rely on the “good days and bad days” explanation.
At QNA Investigations, we specialise in discreet, professional surveillance designed to stand up under legal and evidentiary scrutiny.
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