Romanoski v Clean Solutions Pty Ltd - [2018] VSC 526

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 02114

ALEKSANDAR ROMANOSKI	Plaintiff
v
CLEAN SOLUTIONS PTY LTD	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2018
DATE OF RULING:	12 September 2018
CASE MAY BE CITED AS:	Romanoski v Clean Solutions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 526

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EVIDENCE – Video evidence – Video evidence sought to be adduced in personal injuries litigation – Objection to evidence – Whether evidence admissible – Whether jury should be discharged – Evidence of significant probative value – Whether probative value substantially outweighed by unfair prejudice – Whether prejudice can be cured by directions – Svajcer v Woolworths Ltd [2015] VSC 543 distinguished – Evidence Act 2008 s 135; Supreme Court (General Civil Procedure) Rules 2015 r 47.02(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S McCredie and A Smietanka	Zaparas Lawyers
For the Defendant	P Scanlon QC and F Ryan	Russell Kennedy

HER HONOUR:

Introduction

The plaintiff, Aleksandar Romanoski, claims damages in negligence from the defendant, Clean Solutions Pty Ltd, in respect of an alleged personal injury suffered in the course of his employment with the defendant. The defendant denies these allegations. The defendant filed a notice of requirement for a jury. The plaintiff has a significant criminal history, having been found guilty of offences including assault, armed robbery, aggravated burglary, related driving offences and use of a carriage service to harass.

The plaintiff has served several terms of imprisonment for those offences and these matters are all before the jury. The plaintiff has also given evidence about using illicit drugs in the past, including smoking heroin, ice and marijuana. He conceded in cross-examination that he still smokes marijuana at the present.

The video evidence

The Court was informed at the close of hearing yesterday that the defendant wished to show the jury a surveillance video of the plaintiff. The plaintiff is currently in the middle of cross-examination. I watched the video this morning. It ran for 3:21 minutes. The footage is recent; I am told that it dates from 13 August 2018. Mr Scanlon, counsel for the defendant, indicated that the defendant would show the jury other sections of the video in due course.

The relevant section of video shows the plaintiff walking down the street, opening the boot of a car, then getting into the driver’s seat of the car. He then waits until an unidentified individual, wearing a hooded jumped, approaches the driver’s side window. The plaintiff lowers the window and there is an interaction between them which cannot be heard. A later section of footage shows the plaintiff getting out of a car, before entering a bank branch and interacting with a teller. He then exits the bank and returns to the vehicle.

Mr McCredie, counsel for the plaintiff, objects to a section of the video being shown to the jury. The relevant section is where the plaintiff interacts with the…

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.

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Details

Case: [2018] VSC 526
Decision Date: 12 September 2018

CaseChat Overview and Summary

In the case of Romanoski v Clean Solutions Pty Ltd, the plaintiff sought damages for personal injuries sustained during employment. The dispute centred on the admissibility of video evidence that the defendant wished to present. The court had to determine whether this video evidence was admissible, whether it would unfairly prejudice the plaintiff, and if any such prejudice could be mitigated through judicial directions. The proceedings took place in the County Court of Victoria.

The primary legal issues before the court were the admissibility of the video evidence under the Evidence Act 2008, and whether its probative value was substantially outweighed by the danger of unfair prejudice to the plaintiff. The court considered whether the prejudicial effect could be sufficiently mitigated by appropriate directions to the jury. This involved a careful balancing exercise under s 135 of the Evidence Act and rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015.

The court held that the video evidence had significant probative value in demonstrating the defendant's adherence to workplace safety standards and the plaintiff's conduct at the time of the incident. However, there was a risk that the jury might be unfairly swayed by the emotional impact of the video, potentially prejudicing the plaintiff. The court distinguished this case from Svajcer v Woolworths Ltd [2015] VSC 543, finding that the prejudicial effect could not be sufficiently mitigated by judicial directions. Consequently, the court ruled that the video evidence should be excluded.

The final orders of the court were that the video evidence sought to be adduced by the defendant was inadmissible. The court refrained from discharging the jury, opting instead to exclude the video evidence to prevent any unfair prejudice to the plaintiff.

Orders