Power v Mann

[2010] VCC 1401

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-09-02510

KYLIE BRIDGET POWER	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:	Power v Mann
MEDIUM NEUTRAL CITATION:	[2010] VCC 1401

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 in the course of his evidence, and admitted the allegations made by the plaintiff.

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 gave evidence and was cross-examined.

The Background Facts

4          The plaintiff is thirty-four years of age. She lives with her partner, Noel, in a domestic relationship. Neither the plaintiff nor her partner has any children.

5          The plaintiff was born and raised in Swan Hill. She went to a local primary school and high school. She subsequently pursued tertiary studies in farming, after which she returned to the family farm where she worked before working as a travel agent in 1997 to 1998, and then in December 2004, she entered the Police Academy.

6          Between 1997 and 2000, the plaintiff was in a relationship with Owen Mann. He is the brother of the defendant. At that time the defendant was married to Kelly Lamb. The defendant and Kelly Lamb moved into, and commenced living at, domestic premises at 11 Connell Street, Swan Hill (“Connell Street”) in about 1999.

7          The plaintiff and Owen Mann visited the defendant and Kelly Lamb often after they moved into, and commenced living at, Connell Street.

8          The plaintiff was particularly friendly with Kelly Lamb. They played in the same softball team. It was not uncommon for the plaintiff to go to Connell Street with Kelly Lamb after a softball game where she would shower, change and either stay there, or go out with Owen Mann, Kelly Lamb and the defendant on a social outing. It was not uncommon for her to stay there overnight.

9          The occasions when the plaintiff showered at Connell Street occurred over 1999 and into early 2000. After she broke up with Owen Mann in about April 2000, she visited Connell Street. The impression I was left with was that after she broke up with Owen Mann, the occasions when she visited Connell Street decreased.

10        The plaintiff had a very close relationship with Owen Mann. So close was her relationship with him that she thought that eventually they would marry. She became part of the Mann family. She attended family dinners. She described the Mann family as being very sociable. In particular, she described Kelly Lamb and the defendant as being very sociable.

The Video Footage

11        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.

12        It was that suspicion which drove him 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.

13        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.

14        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.

15        In mid-2006, Kelly Lamb telephoned the plaintiff. She said she wanted the plaintiff’s advice. She said that she was involved in a custody battle with the defendant. She said she had something in her possession which she wanted to use in the custody battle.

16        The plaintiff asked her what it was that she had. She told the plaintiff that the defendant had videotaped people who had used the bathroom at Connell Street. It was then that Kelly Lamb revealed to the plaintiff that the plaintiff had been videotaped.

17        The plaintiff said that her immediate reaction was a mixture of anger and humiliation. She ended the telephone call with Kelly Lamb. She told her she would ring her back. She said she felt sick and violated. She rang her sister to speak to someone about what had been revealed to her.

18        The plaintiff saw Kelly Lamb the following day. She told the plaintiff that on an occasion when the defendant was in Sydney she found a recording device under clothing in a dressing room at Connell Street. She located a pinpoint camera in the wall of the bathroom. She told the plaintiff that she had given the tape to someone to copy.

19        The plaintiff and Kelly Lamb contacted the police. They each made statements to the police. They were advised by the police that no offence existed which made the conduct of the defendant criminally unlawful.

20        The plaintiff engaged a solicitor, Mr Sinisgalli, who practised in Prahran, to advise her on what legal recourse she had against the defendant. It was on the occasion of a conference with Mr Sinisgalli that the plaintiff first saw the video footage.

21        The video footage was played in the court room. The plaintiff watched it, and subsequently gave evidence that the bathroom depicted in the video footage was the bathroom at Connell Street, and that she is the person shown undressing, entering the shower cubicle, showering, exiting the shower cubicle, drying herself and then dressing.

22        The video footage showed the plaintiff completely naked. As soon as the video footage commenced the bathroom became brightly lit and displayed the plaintiff’s nakedness without exception. Her body and the movements she performed were at very close range to the camera.

23        The defendant was cross-examined. He said 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.

24        However, and curiously, he 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 which was probably taken between 1999 and 2000 still existed in 2006 when Kelly Lamb first telephoned the plaintiff to inform her of the existence of the video footage.

25        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 yet was still in existence by 2006.

The Legal Principles

26        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.[2]

[2]             Giller v Procopets [2004] VSC 113, and see generally ‘Halsbury’s Laws of Australia’ (Volume 15) at paragraph 240-505 and following.

27        In Giller v Procopets,[3] 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.

[3]             supra

28        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,[4] and the following statement of law by Harris J:

[4] [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 … .”[5]

[5]             at 230. Harris J referred to a number of authorities which contain statements of principle to that effect.

29        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.[6]

[6]             paragraphs 148-171, and particularly at 170

30        The proceeding was the subject of an appeal.[7] The Court of Appeal did not interfere with Gillard J’s statement of the legal principles, but by implication 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.

[7]             Giller v Procopets [2008] VSCA 236

The Cause of Action

31        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.

32        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.

33        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.

34        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.

35        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.

36        The plaintiff said that she was concerned that the defendant had viewed the video footage, shown it to other persons, and as a result she was apprehensive that other persons in Swan Hill may have seen the video footage who knew her or who could identify her as the person shown in the video footage. I will say more about this later.

37        The plaintiff also gave evidence that the defendant had cable TV and had subscribed to adult channels. The defendant denied that he had any such subscription. The plaintiff’s evidence in that respect was given for the purpose of an inference being drawn that the defendant was not only interested in catching his wife out, but that he had a prurient interest in recording and viewing video footage showing naked women in his bathroom.

38        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.

39        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.[8]

[8]             Halsbury’s at paragraphs 240-695 and the cases referred to.

40        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.

41        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.

42 Neave JA held that the authorities which she reviewed supported the conclusion that damages are available,[9] and that the damages can be awarded for distress not amounting to a psychiatric injury.[10] Ashley JA agreed after also undertaking a review of the authorities,[11] as did Maxwell P,[12] adopting the reasons given by Neave JA.

[9]             paragraphs 394-431

[10]           paragraphs 408-424

[11]           paragraphs 131-154

[12]           paragraph 1

The Plaintiff’s Injury

43        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.[13]

[13]           Neave JA at paragraphs 432-446, and Ashley JA at paragraphs 158-160.

44        The plaintiff said that after she watched the video footage she went and saw Dr Marsh, general practitioner, shortly thereafter. She was not sleeping well. Her concentration was impaired. Dr Marsh recommended that she have one week off work. She took Dr Marsh’s advice and was off work for that period of time. She did not see Dr Marsh again.

45        By 2006, the plaintiff was thirty years of age. She was a qualified and serving Police Officer. She was able to obtain counselling through the Victoria Police. She consulted Ms Spinks on her own motion on 6 February 2007. She subsequently saw her on 19 February, 5 March, 11 April and 11 May 2007. She has not had any other treatment or counselling.

46        The plaintiff 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.

47        The plaintiff said that she felt betrayed by the defendant because he was the brother of her then boyfriend, and a close friend to her. She felt humiliated by the fact that he had recorded film footage of her having a shower.

48        The plaintiff said that she has not been able to shower at other person’s homes except at her parent’s home. When she showers after going to the gym or at her parent’s home, she always puts a towel over the shower screen because of her paranoia that she might be observed.

49        The plaintiff said that she considered herself to be a strong person who had a happy-go-lucky attitude. She was able to cope with the difficulties associated with general policing work. She now has trouble coping, due to what the defendant has put her through. She is no longer a strong nor the happy-go- lucky person she was previously. She is cautious about letting people into her private life.

50        The plaintiff entered into a relationship with a man named Kieran. They became engaged. She said that after Kelly Lamb revealed the existence of the video footage, it had such an impact on her that she became paranoid. Her altered mental state drove her and her fiancé apart. Their engagement came to an end in mid-2008. It was after that event that she saw a solicitor.

51        The plaintiff repeated that she felt devastated, betrayed and humiliated by what the defendant had done. She was naturally concerned about who had seen the video. She said that not knowing who had seen the video footage, whether there was any other video footage, and whether the video footage had been used in any particular way was the most distressing aspect arising from the revelation that the video footage existed.

52        The plaintiff said that she hated seeing herself on the video footage. After seeing it she developed an eating problem, in addition to the other problems outlined above. She said she has experienced sensations of feeling sick and disgusted with herself.

53        The plaintiff’s solicitors referred her to Dr Sheehan, psychiatrist, who saw the plaintiff 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.

54        Dr Sheehan diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. He was also of the opinion that there had been general and slow improvement; however, he noted that she was suffering from continuing phobic anxiety and a dysphoric mood state. He considered that she would benefit from a referral to a clinical psychologist to undertake appropriate cognitive behavioural therapy, probably requiring a minimum of twenty consultations.

55        The defendant declined to cross-examine the plaintiff on any issue on which she gave evidence. I accept all of the plaintiff’s evidence, not only because it was unchallenged, but because it had an inherent ring of truth about it.

Damage

56        In Giller v Procopets, Neave JA considered that an award of damages in the sum of $40,000, including $10,000 for aggravated damages, was fair and reasonable.[14] Ashley JA considered that $27,500, including $7,500 for aggravated damages, was fair and reasonable.

[14]           paragraph 446. Maxwell P agreed at paragraph 36.

57        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 of the sexual activities 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.[15]

[15]           The foregoing is a summary from the judgment of Gillard J at paragraph 10.

58        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.

59        The revelation of the video footage has palpably altered the course of the plaintiff’s life. However, balanced against that is her capacity to maintain her employment without the necessity to resort to medical treatment despite the medico-legal opinion of Dr Sheehan that she could do with some treatment.

60        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.

61        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.

62        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.

63        I think that an award of damages of $25,000 including $5,000 for aggravated damages is a fair and reasonable assessment of the plaintiff’s damages. I have awarded a sum for aggravated damages because I am not convinced by the defendant’s evidence that he did not look at the video footage, 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 following the time it was taken.

Conclusion

64        Therefore, I will enter judgement for the plaintiff against the defendant for $25,000. I will hear the parties on the question of costs.

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