Fuller v Allen

[2020] ACTSC 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Fuller v Allen  

Citation:

[2020] ACTSC 32

Hearing Date:

11 February 2020

DecisionDate:

11 February 2020

Before:

Elkaim J

Decision:

The application for leave to withhold service of the surveillance footage is granted. No order as to the costs of the application.

Catchwords:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – breach of care – damages arising from injury – surveillance footage – application for leave to withhold service

Legislation Cited:

Court Procedures Rules2006 (ACT) r 6704

Cases Cited:

Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361

Parties:

Tim Allen (Applicant)

Insurance Australia Limited Trading as NRMA Insurance (Applicant)

Representation:

Counsel

B Jones (Applicants)

Solicitor

Moray & Agnew Lawyers (Applicants)

File Number:

SC 20 of 2019

ELKAIM J:

1. On 16 June 2016, the plaintiff was involved in a motor vehicle accident. He has commenced legal proceedings. Liability, or at least breach of duty of care, has been admitted. Therefore, the issue at the trial will be quantum. The plaintiff has an extensive claim for damages arising from the soft tissue injuries he says he received. The claim extends to past and future economic loss, as well as past and future domestic care. The matter is listed for hearing on 17 February 2020.

1. The defendants, being the applicants in the present proceeding, have amassed surveillance footage exposed on a number of days between 30 March 2019 and 13 December 2019. It is plain from the excerpts of the footage that I have seen that the footage directly contradicts the plaintiff's claim and the histories he has given to various medical practitioners.

1. The defendants wish to take as much forensic advantage of the footage as they can, in order to meet the claim. For that reason, the defendants filed an Application in Proceeding on 7 February 2020 seeking leave to withhold service of the footage. The footage would normally be liable to be served pursuant to r 6704 of the Court Procedures Rules2006 (ACT). The same rule, however, gives the court the capacity to make an order that the footage not be served.

1. I have previously dealt with a very similar matter in 2017, namely Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361. In that case I refused the application, essentially on the basis that in that case the histories given to medical practitioners already provided the material upon which the plaintiff's credit could be attacked. It is arguable that there is no difference between today's case and that case.

1. There are, however, two differences. The first is that in the 2017 case, the video material had been shown to a number of doctors and they had commented upon it, thereby strengthening the forensic position of the defendant. The second difference is that although I did not see the footage in the 2017 case, I have seen, as mentioned above, excerpts of the footage in this case and as already stated, I think the contradiction is stark. It seems to me that the earlier case can be distinguished because of these two points that I have set out above.

1. I must say that I grant this application with some reluctance, because the days of running cases essentially by ambush have largely been superseded by court rules and case management. However I think this is, to some degree, an exceptional case where there is such a dramatic difference between the plaintiff's expected evidence and the surveillance evidence that to deny the defendants the opportunity to put the material for the first time in cross‑examination would be to deny the defendants a very significant forensic advantage.

1. One thing that has bothered me is that the plaintiff, having seen the footage during the course of the trial, might seek an adjournment in order to obtain the opinion of his medical practitioners for their comment on the footage. If that were to occur, it seems to me that if the judge hearing the matter were minded to grant the adjournment it should be at the cost of the defendants. I initially considered making such a cost penalty a condition of my orders, but I will leave that as a recommendation, because ultimately the question of the adjournment and any costs flowing from it would need to be made by the trial judge.

1. Accordingly, I make Orders 1 and 2 in the Application filed on 7 February 2020. There is no order as to the costs of this Application.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 22 May 2020