Hodder v Hamilton and Fitzpatrick (Ruling No 1)

[2014] VCC 218

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
GENERAL DIVISION

Case No. CI-12-00943

ALLAN HODDER	Plaintiff
v
TRACEY HAMILTON	First Defendant
and
JOHN PAUL FITZPATRICK	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 February 2014
DATE OF RULING:	12 February 2014
CASE MAY BE CITED AS:	Hodder v Hamilton & Fitzpatrick (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2014] VCC 218

RULING
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Subject:  ADMISSIBILITY

Catchwords:             Video re-enactment – relevance – discretion to exclude – whether confusing or unfairly prejudicial

Ruling:  Reconstruction likely to confuse – video of re-enactment inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Hore-Lacy SC with Mr J P Brett	Arnold Thomas & Becker
For the Defendants	Mr C J Blanden SC with Mr B G Mason	Hunt & Hunt

HIS HONOUR:

1   In cross-examination of the plaintiff, an issue arose as to the plaintiff’s girth vis-à-vis the ladder upon which he was standing.

2   In approximately July of 2013, the plaintiff took part in a video re-enactment which, inter alia, showed an adult male ascend the ladder from the ground, whilst the plaintiff was standing on the eighth rung of the ladder, and manoeuvre himself around the plaintiff onto a flat roof, the level of which was approximately shin height to the plaintiff while so standing on the ladder.

3       I rule that the video, if shown, would be relevant as to whether it was possible for an adult male to manoeuvre himself around the plaintiff whilst standing on the ladder, as alleged, which issue I find was raised in cross-examination.

4       Counsel for the defendants submit that I should exercise my discretion to exclude the video, for a number of reasons: basically, to so allow would be confusing to the jury or would unfairly prejudice his clients’ case.  I am told by plaintiff’s counsel, and it is apparent from the viewing of the video, which I have done, that the video has been edited and the maker of the video may not be available to be called to give evidence.

5       Defence counsel submits that the re-enactment is different from the original evidence in a number of ways:

(a)   The ladder is stabilised;

(b)   The plaintiff’s arms are not flexed, as shown in the witness box, and, therefore, it would be easier for an adult male to circumvent his body;

(c)   The demonstrator in the video alights onto a flat roof and there is no satisfactory evidence that the structure is the same height or the ladder is at the same angle as the original incident;

(d)   Also, the plaintiff is wearing boots, compared with bare feet, at the time of the incident.

6       In my view, the reconstruction, whilst relevant, would be likely to at least confuse the jury as to the mechanics of what happened just prior to the incident the subject of these proceedings.  I will reserve leave to the plaintiff to adduce evidence in re-examination, if so advised, along the lines that a re-enactment took place in July of 2013 and whilst in a certain position on the ladder, an adult male ascended the ladder and was able to circumvent his body onto a flat roof.

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