Popovic v OUTOKUMPU Mining Australia Pty Ltd
[2000] WADC 144
•6 JUNE 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: POPOVIC -v- OUTOKUMPU MINING AUSTRALIA PTY LTD [2000] WADC 144
CORAM: LA JACKSON DCJ
HEARD: 6 JUNE 2000
DELIVERED : 6 JUNE 2000
PUBLISHED : 9 JUNE 2000
FILE NO/S: CIV 1316 of 1998
BETWEEN: PETAR POPOVIC
Plaintiff
AND
OUTOKUMPU MINING AUSTRALIA PTY LTD
Defendant
Catchwords:
Practice and procedure - Application for leave to adduce video evidence at trial without prior disclosure.
Legislation:
Rules of the Supreme Court O 36, r 4
Result:
Subject to an order that proof of evidence as to plaintiff's disabilities being delivered, application dismissed.
Representation:
Counsel:
Plaintiff: Mr D Bruns
Defendant: Ms D Craig
Solicitors:
Plaintiff: Yesner & Company
Defendant: McAuliffe Schwikkard
Case(s) referred to in judgment(s):
Khan v Armaguard Ltd [1994] 1 WLR 1204; [1994] 3 All ER 545
Brown v Metro Meat International Ltd [2000] WASCA 123
Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68
Case(s) also cited:
Esso Petroleum Resources Ltd v The Commissioner of Taxation for the Commonwealth of Australia [1999] HCA 67
Grant v Downs (1976) 135 CLR 674
Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999
Lloyd v Centurion Roller Shutters Pty Ltd & Anor (1994) 10 SR (WA) 202
McPhee v City of Wanneroo, unreported; DCt of WA; Library No 4808; 14 March 1996
Tuia v Ercegovich, unreported; DCt of WA; Library No 1729; 9 March 1987
Wagner v Southern, unreported; DCt of WA; Library No 4757.7; 22 December 1995
Wandell v Salvation Army Property Trust [2000] WADC 96
LA JACKSON DCJ: This is an application by the defendant for leave to adduce video evidence at trial, and to be excused from giving the plaintiff an opportunity of inspecting it prior to trial pursuant to O 36, r 4 of the Supreme Court Rules.
This matter came on for hearing in Chambers on 6 June 2000 and at the conclusion of the hearing I made the following orders:
1.The plaintiff is to deliver a detailed signed proof of evidence as to his physical symptoms and disabilities both as to work and recreation including his physical abilities and restrictions since August 1997 to the defendant's solicitors by 4.00 pm on 8 June 2000.
2.The defendant is to deliver the surveillance videos to the plaintiff's solicitors by 4.00 pm 12 June 2000.
3.There be liberty to apply as to the adequacy of the proof and generally.
4.Costs reserved.
These are the reasons for the making of those orders.
The action is listed for trial to commence on 19 June 2000; hence the tightness of the timetable in the orders.
The plaintiff's claim is for damages for personal injury arising out of an accident at work on 23 July 1996. The alleged accident was unwitnessed. Both liability and quantum of damages are in issue. The defendant asserts that this is a case in which the credibility of the plaintiff is of significance. That is asserted particularly because it is said that there was medical evidence suggesting the plaintiff's symptoms are bizarre and not consistent with any known pathology. In this case, and in addition, liability is in issue. I would observe that in most cases claiming damages for personal injury credibility is in issue.
Since about September 1997, the defendant's insurer has arranged for a number of surveillance videos to be taken. Presumably it will be argued that these show the plaintiff exhibiting physical attributes inconsistent with his claimed disabilities. The plaintiff said they should be produced pursuant to O 36, r 4 which provides:
"Unless before or at the trial the Court otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the trial the parties, other than the party who intends to produce it, are given the opportunity to inspect it and to agree to its admission without further proof."
It is unnecessary in this case to canvas the various decisions of Judges of this Court on this issue.
It is in the interests of justice that a defendant be given an appropriate opportunity to test a plaintiff's credibility. It is argued on behalf of defendants that to show a plaintiff a surveillance video gives the plaintiff an opportunity to tailor his or her evidence to what can be seen on the video. This, it is argued, gives to a plaintiff an unfair advantage. As I said in Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68, 71‑72:
"Litigation is an adversarial process. Defendants should not be deprived of legitimate forensic tactics designed to fully test a plaintiff's veracity. The compulsory disclosure of materials such as surveillance videos is said to be part of the 'cards on the table' approach to litigation designed to facilitate resolution of disputes: see Khan v Armaguard Ltd [1994] 3 All ER 545 at 552. Increasingly the procedure of courts is so designed and I have no quarrel with that being a desirable objective of the litigious process. But it is unfair to a defendant to require it to disclose its case against a plaintiff, where a plaintiff can thereby be advantaged to the detriment of the defendant. I see no unfairness to a plaintiff where a surveillance video reveals the truth to be inconsistent with the case a plaintiff maintains. If that reflects adversely on a plaintiff's credibility then that is as it should be."
In Brown v Metro Meat International Ltd [2000] WASCA 123, Wheeler J with whom Kennedy and Parker JJ agreed, made comments which notwithstanding they related to workers' compensation legislation seem to me to give some useful guidelines as to the way in which the Full Court in this State might be expected to consider these matters.
"The problem with the Compensation Magistrate's reasoning is perhaps revealed if one looks to one of the two reasons which seem to have been those underlying his view that the Review Officer misdirected himself. He considered that the decision of the Review Officer to allow the appellant to see the video surveillance 'would result in unfairness to the [respondent] insofar as it may affect the [respondent's] credibility'. It is true that if a worker in such a situation is indeed untruthful, a malingerer, and prepared to give false evidence, there will be a real forensic advantage to an employer or insurer in ensuring that the worker does not view the video surveillance evidence before he or she give evidence. As was pointed out by the respondent, a worker who knows that such material is available, but has not seen it, has an incentive to be truthful where he or she otherwise might not, while the worker who persists in being untruthful in evidence can be exposed after he or she has committed to untruthful statements under cross‑examination.
However, both the respondent, and, with respect, the Compensatiion Magistrate, appear to consider only this aspect of unfairness. It must be remembered that the question of whether the worker is untruthful and a malingerer is the very issue which the litigation (or under the Act, the application) is designed to determine. Questions of fairness in allowing access to videotaped material cannot then be determined by assuming that only one answer to that question is possible.
If one assumes, on the contrary, that the worker is not untruthful and is not a malingerer, then he or she may suffer in some cases significant disadvantage from lack of access to the videotaped material. At the very least, an adjournment to allow the worker and/or the worker's medical advisers to view the videotape partway through the hearing, will result in delay and increased cost. Further, depending upon the nature of the disability which the worker alleges and the nature of the activities shown on the videotape, the worker may be able to give or call evidence which explains the activities carried out on the video; perhaps they were undertaken at a time after certain treatment had been undertaken, or perhaps they were followed by particularly severe renewed symptoms, for example. Generally, this difficulty will be able to be cured by adjournment, but on occasions it may not (if, for example, delay in making the video available means that evidence is lost or memories faded). It may be on occasion that medical advisers of the worker, particularly if assisted by comments or explanation from the worker, will form a view of the videotaped material different from that of the experts to whom the film has been shown by the employer or insurer. The worker will be disadvantaged if that material is not able to be put to the employer/insurer's witnesses during cross‑examination. Such disadvantage is particularly likely during the course of litigation involving personal injury, where medical witnesses are generally called in a sequence which is convenient to them. Making the videotape available to the appellant only at a hearing would be likely, therefore, not only to require an adjournment, but also to require the respondent's medical practitioners to revisit the appellant's condition a considerable time after they had last seen her, and to review videotapes which they may (as Professor Cohen indicated in this case) be unwilling to view again. We are informed that in this jurisdiction experts are often 'cross‑examined' by letter, which may exacerbate such a difficulty.
Finally, disclosure of the videotaped material allows the worker and his or her advisers to consider the possibility of settlement without the spectre of some action which is forgotten or able to be innocently explained being produced at trial in a manner which has a disproportionate impact. It is not an answer to this last contention, that the worker 'must know what she/he did', since very few individuals can recall every action undertaken over the period which usually precedes litigation of this kind; the 30 hours of material in this case extending over many months may well contain a number of incidents which have been forgotten by the appellant.
I am aware of a number of decisions of the District Court of this State in which, in the analogous situation of an application pursuant to O 36 r 4 of the Rules of the Supreme Court, orders have been made that personal injury plaintiffs not have access to videotaped material. Such an order is certainly one which may be appropriately made, depending upon the circumstances of the individual case. However, there are, equally, many cases in which such an order would not be appropriate. Competing considerations are discussed in Khan v Armaguard [1994] 1 WLR 1204. Not all of the considerations discussed in Khan apply in respect of applications pursuant too the Act, since the ability, via appropriate interrogatories, to have a worker commit him or herself to a particular factual position does not appear to be available. However, a worker will generally have committed to at least some facts both in documentation associated with a claim and in discussions with medical experts, and the degree to which this is so will perhaps be a relevant factor. To the extent that those considerations are applicable, it appears to me that the Compensation Magistrate failed to consider what prejudice might flow to the appellant from non‑disclosure of the videotaped material, so as to take that relevant consideration into account."
In Khan v Armaguard Ltd at (WLR 1211) (All ER 552‑3) Rose LJ said:
"The 'cards on the table' approach which now operates in my view requires that it should be very rare indeed in a personal injury case for an order for non‑disclosure of the video film to be made. … It is, as it seems to me, in the interests of the parties, the Legal Aid fund, and the efficient despatch of business by the Courts, that cases should be disposed of by settlement at an early stage. Almost always, in my view, this should mean that disclosure of video films of the kind presently under consideration should be made, even in cases where the defendant's case is that the plaintiff is a malingerer."
Is there a way in which these conflicting interests of plaintiffs and defendants can be reconciled. In this case I considered there was. I was advised that the plaintiff has been reviewed by a significant number of medical practitioners who in the ordinary course would have recorded what the plaintiff has reported to them by way of symptoms and abilities or disabilities. To that extent the plaintiff will have committed himself in a way which would not allow him readily to tailor his evidence to fit any apparent abilities to the contrary shown on a surveillance video. The plaintiff has by order of the Court delivered a proof of evidence but that proof is not of great detail with respect to the physical consequences of the alleged accident. I also note in this case that the plaintiff answered interrogatories which include questions as to physical disabilities and limitations although the questions and answers are, I think, inadequate for the purposes to which these reasons are directed
In my view if a plaintiff by a signed detailed proof of evidence outlines in detail the consequences of his alleged injury upon him then the possibility of disadvantage to a defendant will be minimised. Clearly it will not be possible for a plaintiff to be able to recall every minute of every day over a period of years. I would have thought that a detailed proof signed by the plaintiff thus committing himself or herself to that proof would be able to give sufficient detail so as to commit the plaintiff in a way he or she would be committed when giving evidence. It may not be as precise as cross‑examination but it does go a fair way. It will require the plaintiff to put his cards on the table. It is difficult to see why that would create an injustice to a plaintiff, and, indeed, in this case it was not argued it would.
The way I see it is this. For the plaintiff to be able to resist the defendant's application he will need to provide a sufficiently detailed statement so as to tie himself down for practical purposes so as to allow his veracity to be properly tested by the showing of a surveillance video if such a video is inconsistent with his description. It was argued on behalf of the defendant that such a statement will never be of sufficient detail to tie the plaintiff down to the specific incidents referred to in the video without alerting the plaintiff to what those incidents are. I would have thought that a defendant seeking to tie a plaintiff down through cross‑examination would during that process alert the plaintiff to incidents the subject of a surveillance video. All I think that reasonably can be expected for a defendant at best is for the surveillance video to be so inconsistent with the plaintiff's description of his physical abilities so as to have a marked effect on his credit.
I accept that from a defendant's point of view it will be better to keep their powder dry. On the other hand the countervailing interests of justice as referred to by Wheeler J should I think be taken into account.
I would envisage that a plaintiff would prepare a detailed proof of evidence covering the relevant period and commenting on changes from time to time over that period. It would need to be in sufficient detail for him to be tied down to the substance of what he says are the consequences of the injury upon him. Unless there is sufficient detail then a defendant should not be required to produce the video in advance of trial. What I have ordered in this case is:
"The plaintiff is to deliver a detailed signed proof of evidence as to his physical symptoms and disabilities both as to work and recreation including his physical abilities and restrictions since August 1997 to the defendant's solicitors by 4.00 pm on 8 June 2000."
I have then allowed a liberty to apply as to the adequacy of the proof. If the defendant's solicitors do not consider it sufficiently tight to tie the plaintiff down then they are at liberty on short notice to bring the matter back before me. I will not have seen the surveillance videos, nor will I have had the opportunity of considering any medical reports which will have been exchanged between the parties. To have to do that would impose an unreasonably onerous job on the Judge considering this matter. I would have thought that it would be obvious whether or not the plaintiff has been open in providing the proof required or whether it appears he is being devious. Any impression of the latter would, in my view, result in the videos not being disclosed. It is the adequacy of the proof of evidence that will determine whether or not it is just to require the defendant to disclose surveillance videos prior to trial. If there is doubt about the adequacy then, in my view, the justice of the case swings in favour of the defendant. If the proof is sufficient then there will be little or no disadvantage to the defendant.
By this process it is hoped the conflicting interests of the parties can be properly addressed.