Brady v Woolworths Ltd (No 2)

[2010] QDC 289

DISTRICT COURT OF QUEENSLAND

CITATION:

Brady v Woolworths Ltd (No 2) [2010] QDC 289

PARTIES:

Gloria Helen Brady
(Respondent/Plaintiff)
v
Woolworths Ltd
(Applicant/Defendant)

FILE NO/S:

BD 657 of 2008

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

3 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2010

JUDGE:

Devereaux DCJ

ORDER:

1. The application is dismissed.

CATCHWORDS:

CIVIL PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – whether the applicant can be excused for disclosing surveillance material  to the plaintiff prior to trial – whether the applicant can be excused from disclosing further expert opinion on the surveillance material.

Uniform Civil Procedure Rules 1999 r 211, r, 224, r 393(2)

Coster v Bathgate [2005] QCA 210

Geary v Heupeden [1992] 2 Qd R 475

King v Nolan [1992] 2 Qd R 498

Martin v Kennedy [1992] 2 Qd R 109

COUNSEL:

SOLICITORS:

DLA Phillips Fox for the applicant

1. This is an application by the defendant to be excused, under r 393(2) of the Uniform Civil Procedure Rules 1999 (UCPR), from giving the plaintiff the opportunity of inspecting certain video surveillance material. The defendant also seeks to be excused, under r 224 of the UCPR, from disclosing any further expert opinion or report based on the surveillance video material.

The factual materials

1. The materials before me disclose that the plaintiff’s claim arises out of an incident at the defendant’s Big W Bundaberg store on 29 December 2006.  She claims compensation for injuries to her right knee, right foot, right shoulder, left shoulder, mouth, right elbow, face, and for headaches.  The claim that the plaintiff sustained an 8% whole person impairment is made by reference to the right knee injury.

1. A substantial part of the plaintiff’s claim is for future assistance in household tasks, shopping and transport.

1. The plaintiff claims she has decreased tolerance for long periods of standing or walking; restrictions traversing stairs, slopes and ladders; is unfit for heavy or repetitive lifting and has restrictions with crouching or kneeling.

1. The defendant commissioned surveillance of the plaintiff.  The surveillance report concludes that the plaintiff had been observed:

“to participate in everyday activities with little restriction to her movements.  The claimant entered and exited a utility van smoothly and without assistance. While she made continual use of her walking stick, she did not walk with an obvious limp and could bend her knee to accommodate for these movements.  In addition she was able to balance her weight between both legs, rocking back and forth between the ball and heel of her feet which did not appear to cause discomfort to her right knee.”

1. For the purposes of making this decision I am prepared to proceed on the basis that the surveillance footage demonstrates conduct by the plaintiff inconsistent with the disabilities she asserts in her statement of loss and damage dated 19 August 2009.  The defendant’s solicitor deposes the opinion that it appears, based on the surveillance footage, the plaintiff is at least…