In a ruling of 19 November 2014, the Supreme Court set aside the National Board of Industrial Injuries' estimated loss of capacity for work of 60 %. The reason was that the injured party's insurance company produced hidden video recordings casting doubt on the injured party's actual health problems.

BACKGROUND

In 2003, a driver of a passenger car was hit from behind. The Board estimated that the driver was subject to a loss of capacity for work of 60 %. On this basis, the driver claimed compensation for this loss from his insurance company.

In 2008, the insurance company made hidden video recordings of the driver in connection with his building renovation work. These recordings were presented to the Board together with a statement from a specialist in neurology stating that the driver exaggerated his health problems. The Board rejected that the driver's problems originated from the car accident, i.a. due to the physical activity performed by the driver in the recordings.

Legal action was brought before the Eastern High Court and an appeal was subsequently brought before the Supreme Court, which was to assess whether the driver had produced sufficient evidence that he was subject to a loss of capacity for work of 60 %.

The Supreme Court put special emphasis on the Board's statement concerning the recordings and found that, despite the Board's original assessment, it had not been proved that the driver was subject to a loss of capacity for work of 60 %.

PRODUCTION OF UNLAWFULLY OBTAINED MATERIAL IN CIVIL CASES

According to case law, the setting aside of the Board's estimates must rest on a secure basis. This case is extraordinary as the Supreme Court based its ruling on the Board's statement, which was almost solely based on video recordings produced by the driver's insurance company and recorded without the driver's knowledge.

Hidden video recordings are usually contrary to the TV Surveillance Act, and within labour law, such recordings are contrary to the principles on protection of the employee's integrity. Still, the Eastern High Court and the Supreme Court did not decide whether these recordings were unlawful and therefore to be rejected as evidence.

The right to produce unlawfully obtained evidence has not been clearly determined, and there is no case law stipulating that this kind of evidence should be rejected immediately. Against the protection of personal integrity, there is the consideration for the best possible clarification of the case and thereby the consideration for a correct ruling with respect to substance.

In a ruling from the Eastern High Court on 27 April 2001 concerning a summary dismissal, the employer was permitted to produce a TV surveillance recording of the employee despite the employee's objections. The court attached importance to the fact that the recording had not been made unlawfully, and that the evidence was assumed to be important for the result.

The question on the right to produce unlawfully obtained evidence is especially relevant in labour law cases, and this may imply that employers will increasingly perform unlawful surveillance of employees, read private e-mail, etc.

In this case, the Supreme Court does not consider the fact that the recordings were obtained unlawfully. The ruling does therefore not provide any guidelines as to the clarification of the question on the right to produce unlawfully obtained evidence, and this question therefore remains to be fully clarified.

The content of this Newsletter is not, and should not replace, legal advice.

contacts

Finn Schwarz

Managing Partner

Maria Schmiegelow

Attorney