Davis v Mann
[2010] VCC 1402
•25 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-02512
| SOPHIE ELIZABETH DAVIS | Plaintiff |
| v | |
| PETER ANTHONY FRASER MANN | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 September 2010 |
| DATE OF JUDGMENT: | 25 October 2010 |
| CASE MAY BE CITED AS: | Davis v Mann |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1402 |
REASONS FOR JUDGMENT
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Catchwords: EQUITY – breach of confidence – creation of video footage of the plaintiff showering naked – whether a breach of confidence – claim for compensatory and aggravated damages – considerations in assessing damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Stirling | Hunt & Hunt |
| For the Defendant | In person | Aitken Walker & Strachan |
| HIS HONOUR: |
Introduction
1 Before the Court is a proceeding filed by Writ on 5 June 2009 by which the plaintiff seeks damages for breach of confidence.[1]
[1] Mr Stirling informed me that the cause of action based upon breach of confidence is found in paragraphs 1 to 10 of the Statement of Claim. The other causes of action pleaded in the Statement of Claim were abandoned.
2 The defendant filed a Defence dated 23 July 2009 by which he essentially denied the allegations made by the plaintiff. However, the defendant abandoned his Defence.
3 Mr M Stirling of Counsel appeared for the plaintiff. The defendant appeared in person. The evidence which was adduced at the trial was as follows:
•
The plaintiff gave evidence. The defendant declined his right to cross- examine the plaintiff.
• The plaintiff tendered the following evidence by consent:
ƒ A video of the plaintiff: Exhibit A ƒ The medical report of Dr Sheehan, consultant psychiatrist, dated 2
September 2010: Exhibit B
ƒ The report of Ms Spinks, social worker, dated 14 September 2010:
Exhibit C
• The defendant made admissions which are referred to in the body of these reasons. 4 At the close of the plaintiff’s case, I invited the defendant to open his case and to consider what evidence he wished to adduce. He applied to have the evidence he gave in Power v Mann stand as his evidence in this proceeding.[2]
[2] I heard two proceedings against the defendant arising out of the same subject matter. The
5 After some debate, Mr Stirling consented to the defendant’s evidence in the other proceeding standing as his evidence in this proceeding. The defendant appreciated, after I had a lengthy discussion with him, and that if he wished to proceed that way, that any admissions he made in his evidence on the previous proceeding would stand as admissions against him in this proceeding. Notwithstanding that caution, he chose to proceed in that way.
6 Mr M Stirling of Counsel appeared for the plaintiff. The defendant appeared in person. The evidence which was adduced at the trial was as follows:
•
The plaintiff gave evidence. The defendant declined his right to cross- examine the plaintiff.
• The plaintiff tendered the following evidence by consent:
ƒ A video of the plaintiff: Exhibit A ƒ The medical report of Dr Sheehan, consultant psychiatrist, dated 3
September 2010: Exhibit B
•
The defendant did not give evidence. He took the course referred to in paragraph 7.
The Background Facts
7 The plaintiff is thirty-eight-years-of-age. She lives with her husband, Jason, and their two children at Longford, in Gippsland.
8 Jason and the defendant were very close friends at one stage. So close was their friendship that they were members of each others’ wedding party on the occasion of their respective wedding ceremonies.
9 The plaintiff met the defendant through Jason. She was about twenty-two- years-of-age when they first met in about 1993-1994. The defendant visited
proceeding of Power v Mann [2010] VCC 1401 was heard first. It was followed immediately by this
proceeding.the plaintiff and Jason at their flat in Sale.
10 In 1999-2000, the plaintiff and Jason visited the defendant at his house at 11 Connell Street, Swan Hill (“Connell Street”). At that time the defendant was living with Kelly Lamb. The plaintiff recalls that the defendant and Kelly Lamb married in about 2005.
11 The plaintiff said that she stayed at Connell Street on two separate occasions in 1999-2000, and on a further occasion in 2005 when the defendant and Kelly Lamb married.
The Video Footage
12 In the course of the defendant’s evidence, he said that he suspected Kelly Lamb of engaging in a lesbian relationship with another woman. The suspicion was arrived at during a party at Connell Street when Kelly Lamb entered the bathroom with another woman and locked the door.
13 It was that suspicion which drove the defendant to purchase surveillance equipment. He set up a camera device on a stereo system which gave a view of the lounge area of Connell Street, and one through a wall, giving a view of the shower recess and toilet in the bathroom. The recording equipment was secreted in a dressing room.
14 The defendant admitted that the video footage in the possession of the plaintiff was taken by him using the equipment he had installed at Connell Street.
15 The plaintiff was unaware that the defendant had any suspicion about Kelly Lamb and her sexual preferences, nor that there was video equipment installed at Connell Street.
16 In about mid-2006, Kelly Lamb telephoned the plaintiff. They engaged in a conversation for about half an hour before Kelly Lamb told the plaintiff that the defendant had set up a video camera in the bathroom at Connell Street. She also told the plaintiff that the defendant had set up recording equipment in a wardrobe.
17 The plaintiff was shocked at what she was told. Kelly Lamb told her that there were people on video footage who the plaintiff knew, and she told the plaintiff that she had been caught on video footage undressing and in the shower in full view of the camera. She also told the plaintiff that she had reported the defendant to Police at Swan Hill.
18 The plaintiff was immediately shocked by what she had been told. She was trembling. She rang her mother and sister. She went to the police station at Sale, where she spoke to a Sergeant of Police. The Sergeant contacted the Police at Swan Hill. The advice given to the plaintiff was that no offence existed which made the conduct of the defendant criminally unlawful.
19 Jason was working at Esso at the time. The plaintiff rang him and asked him to return home. She said she needed to have her husband with her, such was the degree of her distress.
20 The plaintiff said that she has not watched the video footage. The content of it has been described her. At the trial of the proceeding the video was shown in open court. I observed that the plaintiff had her back turned to the video screen on which the video footage was shown. However, just before she emerged into view of the camera I observed the plaintiff look over her shoulder as the video footage was being played.
21 After the video footage was played, the plaintiff returned to the witness box. She said that she recognised that the bathroom shown on the video footage was the bathroom at Connell Street. That, together with the admissions made by the defendant, were sufficient to satisfy me that the video footage was of the plaintiff taken on an occasion when she visited Connell Street.
22 The video footage showed the plaintiff undressing in front of the camera. After entering the bathroom it became brightly lit. It displayed the plaintiff naked without exception. Her body and her movements were performed at very close range to the camera.
23 The plaintiff said that at the time when the video footage was taken she was pregnant with one of her children. What I saw on the video footage showed the plaintiff in an advanced state of pregnancy.
24 The defendant said that it was his usual practice to film the areas where the cameras were situated while he was absent from Connell Street. On his return he would view what video footage had been recorded.
25 However, and curiously, the defendant denied ever having seen the video footage of the plaintiff. I consider it to be very curious that the defendant would set about such an elaborate surveillance system for the purpose of viewing video footage taken in his absence, and then not look at it. Furthermore, I consider it to be very curious that the video footage was probably taken in 1999-2000 and still existed in 2006 when Kelly Lamb first telephoned the plaintiff to inform her of the existence of the video footage.
26 I do not accept the defendant’s evidence that he has never looked at the video footage of the plaintiff. He made no effort to explain why it was taken between 1999 and 2000 but was still in existence by 2006.
The Legal Principles
27 The cause of action for breach of confidence requires the plaintiff to establish each of the following in order to succeed:
•
That a confidential relationship existed between the plaintiff and the defendant.
•
That the video footage of the plaintiff in the shower at Connell Street was the portrayal of information of a confidential nature.
•
That there had been an unauthorised use of the information by the defendant to the detriment of the plaintiff.
• That the plaintiff suffered injury as a result, and was entitled to damages.[3] [3] Giller v Procopets [2004] VSC 113, and see generally ‘Halsbury’s Laws of Australia’ (Volume 15) at paragraph 240-505 and following
28 In Giller v Procopets,[4] Gillard J considered whether the plaintiff in that case had successfully established the cause of action in circumstances where the defendant had created video footage of sexual activity he engaged in with the plaintiff, and had subsequently revealed the contents of the video footage to a third party without the consent of the plaintiff.
[4] supra
29 Gillard J held that it was for the plaintiff in that case to establish each of the four elements of the cause of action in order to succeed. In summarising the legal principles, he referred to Talbot v General Television Corporation Pty Ltd,[5] and the following statement of law by Harris J:
[5] [1980] VR 224
“It is clear that an obligation of confidence may exist where there is no contractual relationship between the parties. Where a plaintiff sues, relying upon breach of confidence, he must establish three elements.
These are:--
(1) that the information was of a confidential nature; (2) that the information was communicated in circumstances importing
an obligation of confidence; and
(3) that there has been an unauthorized use of the information to the
detriment of the person communicating it … .”[6]
[6] at 230. Harris J referred to a number of authorities which contain statements of principle to that effect.
30 After stating the legal principles, Gillard J subsequently analysed whether the plaintiff could successfully maintain a claim based upon that cause of action. He held that the plaintiff was not entitled to recover damages for distress type injuries resulting from an alleged breach of confidence.[7]
[7] Paragraphs 148-171, and particularly, at 170
31 The proceeding was the subject of an appeal.[8] The Court of Appeal did not interfere with Gillard J’s statement of the legal principles, but held that upon satisfying the first three elements of the cause of action, that damages are available for distress type injuries. I will deal with the subject of damages later in these reasons.
[8] Giller v Procopets [2008] VSCA 236
The Cause of Action
32 Gillard J did not hesitate in characterising the plaintiff’s participation in the sexual activities as occurring during an intimate relationship with the defendant and as a private matter, and that what the parties did in the course of their sexual activities was a matter for them and them alone and not to be disclosed to others. On any view, he observed, they were private matters.
33 Equally, what activities the plaintiff engaged upon in the bathroom at Connell Street were likely to be showering and toileting. It goes without saying that bathrooms are places where the user expects privacy, and is able to achieve that by locking a bathroom door to ensure that accidental or intentional entry by a third person is prevented.
34 What activities the plaintiff engaged upon in the bathroom, and in this case limited to showering, was a private matter without any doubt, and what she did in the bathroom was a matter for her and her alone, not to be disclosed to third persons.
35 Gillard J drew the distinction between the common knowledge of the relationship between the plaintiff and the defendant, which must have included knowledge that they were in a domestic partnership, and probably in a sexual relationship. The distinction was one which was called for in that case to demonstrate that in order to be confidential, the video footage must be private in nature and not a matter of common knowledge.
36 I have no doubt that the defendant used the video footage. As I have already observed, I reject his evidence that he did not view the video footage. Furthermore, there is a very high probability that he did so, having retained it for such a long period of time. If it did not serve the purpose of disclosing evidence of his wife’s alleged sexual preferences then there was no need for him to retain it.
37 I am in no doubt at all that the use of the video footage by the defendant was for his own purposes and was not authorised by the plaintiff, and was to the plaintiff’s detriment.
38 The defendant said that he did not intend that the recording of the video footage would have the consequences demonstrated by the evidence of the plaintiff. However, the plaintiff does not need to prove any intention on the part of the defendant to misuse the confidential information. The mere fact that he recorded the video footage and has used it for his own purposes is enough.[9]
[9] Halsbury’s at paragraph 240-695, and the cases referred to.
39 I am also in no doubt that the plaintiff has suffered what Gillard J, and the Court of Appeal in Giller v Procopets, described as a distress type injury. I will deal with the nature of the injury suffered by the plaintiff later in these reasons.
40 It is relevant at this point to observe that in the reasoning of the Court of Appeal, that damages for distress type injuries is available for the misuse of confidential information.
41 Neave JA held that the authorities which she reviewed supported the conclusion that damages are available,[10] and that the damages can be awarded for distress not amounting to a psychiatric injury.[11] Ashley JA agreed after also undertaking a review of the authorities,[12] as did Maxwell P,[13] adopting the reasons given by Neave JA.
[10] paragraphs 394-431
[11] paragraphs 408-424
[12] paragraphs 131-154
[13] paragraph 1
The Plaintiff’s Injury
42 Neave and Ashley JJA were both of the opinion that the damages which can be awarded for breach of confidence are compensatory damages which can include aggravated damages.[14]
[14] Neave JA at paragraphs 432-446, and Ashley JA at paragraphs 158-160
43 The Sergeant of Police at Sale advised the plaintiff to attend sexual assault counselling. The plaintiff saw Ms Pat Trotman, who is a counsellor. The plaintiff did not give any evidence of the occasions that she saw Ms Trotman nor the nature of the counselling she was provided by her. She also saw Ms Smith, psychologist, on about a dozen occasions from 2006. The last occasion she saw her was the week before the trial. No evidence was adduced by the plaintiff from Ms Smith. Otherwise the plaintiff has had no other treatment.
44 By 2006, the plaintiff was thirty-four-years-of-age. She is a receptionist, working full time. She described a number of consequences which have plagued her since the revelation that the defendant had recorded film footage of her in the shower at Connell Street.
45 The plaintiff said that she experienced a sensation of emptiness. She could not understand how the defendant could have betrayed her trust by filming her while she was in the bathroom having a shower. She feels violated by him.
46 Furthermore, she said that she has experienced problems sleeping during the night. She estimates that since it was revealed to her that the defendant had filmed her she has probably slept through the night on only four occasions. Before that she was a good sleeper. She has experienced nightmares and persistent anger.
47 In the lead up to the day of trial, the plaintiff said that she has felt like a wreck. Her sleeping pattern has worsened. She has become very nervy, angry, grumpy and has experienced a sense of disbelief regarding the defendant’s conduct. She said that small things get to her and now irritate her, whereas previously she would take things in her stride.
48 She expressed a concern whether there is any other video footage of her, who has seen the offending video footage, and whether there is any other video footage still in existence.
49 The plaintiff’s solicitors referred her to Dr Sheehan, who saw her on a medico- legal basis on 26 August 2010. Essentially, she gave a history to Dr Sheehan of her emotional reaction to the revelation of the video footage consistent with the evidence she gave at trial.
50 Dr Sheehan diagnosed that the plaintiff is suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. He was also of the opinion that the plaintiff’s prognosis for recovery is good, but would be dependent upon her commencing cognitive behaviour therapy focusing on desensitisation and response prevention. He was of the opinion that she would require a minimum of twenty consultations to develop appropriate strategies, and if she continued to experience depressive mood swings, then she might need anti- depressant medication for a period of three to six months.
Damage
51 In Giller v Procopets,[15] Neave JA considered that an award of damages in the sum of $40,000, including $10,000 for aggravated damages, was fair and reasonable.[16] Ashley JA considered that $27,500, including $7,500 for aggravated damages, was fair and reasonable.
[15] supra
[16] paragraph 446. Maxwell P agreed at paragraph 36
52 What distinguishes the facts in Giller v Procopets from the present case is that the defendant, between 5 and 7 December 1996, showed a video containing explicit sexual activity of the parties to one person, left a video with the plaintiff's father and threatened to show the video to a number of people, including the plaintiff's employer. He made contact with the plaintiff’s employer.[17]
[17] The foregoing is a summary from the judgment Gillard J at paragraph 10
53 However, there was no evidence that the plaintiff in that case had suffered the degree of psychiatric injury which the plaintiff has. The evidence was that the plaintiff in that case had suffered distress, but no long-term consequences of the defendant’s conduct.
54 I think I must operate on the assumption that the video footage which has been tendered in evidence is the only video footage of the plaintiff. I think it is unsafe for me to assess the plaintiff’s damages by speculating about whether there is any other video footage of the plaintiff, and the extent to which it might have been shown to other persons by the defendant.
55 I think what underwrites the assessment of damages in Giller v Procopets was that the explicit nature of the video weighed heavily, as did the threats made to distribute the video to other persons, and showing it to a third person. All of those matters were the subject of evidence and findings made by Gillard J.
56 It is not my intention to underestimate or understate what is contained on the video footage in this case and its impact upon the plaintiff; however, there are marked distinctions which I think I must weigh into consideration in assessing damages. Although I share the suspicions of the plaintiff that the fact that the defendant held onto the video footage for so long is very troubling and naturally has led her to question the extent of its use by the defendant, I think the evidence permits me to conclude that it was used by the defendant, but to go beyond that is speculative and without an evidentiary basis.
57 I think an award of damages $25,000, including $5,000 for aggravated damages, is a fair and reasonable assessment. I have awarded a sum of aggravated damages, because I am not convinced that the defendant did not use the video footage for his own purposes, and that he has not done so in the ensuing years since it was first taken given that he held onto it for at least six years.
Conclusion
58 Therefore, I will enter judgment for the plaintiff against the defendant for $25,000.
59 I will hear the parties on the question of costs.
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