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:

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fuller v Allen

Details

AGLC: Fuller v Allen [2020] ACTSC 32
Case: [2020] ACTSC 32
Decision Date: 11 February 2020

CaseChat Overview and Summary

In the case of Fuller v Allen, the plaintiff sought damages for personal injury sustained in a motor vehicle accident. The defendant, Allen, had been found to have breached their duty of care, resulting in the plaintiff's injuries. The plaintiff applied for leave to withhold service of surveillance footage, which was relevant to the claim, on the defendant. The application was heard in the Supreme Court of New South Wales. The plaintiff argued that the footage was critical to their case and that serving it on the defendant prematurely could lead to spoliation, where the evidence is destroyed or tampered with.

The court was required to decide whether the application for leave to withhold service of the surveillance footage should be granted. This involved assessing the balance of convenience in favour of withholding the footage, as well as considering the potential prejudice to the defendant if the footage was not served promptly. The court also needed to determine whether the plaintiff's concern about spoliation was substantiated and whether the withholding of the footage was necessary to protect the integrity of the evidence.

The court found that the balance of convenience favoured the plaintiff's application to withhold the footage. The footage was deemed highly relevant and necessary for the plaintiff's case, and the court accepted that there was a risk of spoliation if the footage was served prematurely. The court noted that the defendant had not demonstrated any significant prejudice that would result from the withholding of the footage. Therefore, the application for leave to withhold service of the surveillance footage was granted.

No order was made regarding the costs of the application.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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