Wandell v Salvation Army Property Trust (WA) - [2000] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WANDELL -v- SALVATION ARMY PROPERTY TRUST (WA) [2000] WADC 96

CORAM: YEATS DCJ

HEARD: 7 MARCH 2000

DELIVERED : Delivered Extemporaneously on 7 MARCH 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3333 of 1998

BETWEEN: FLORENCE WANDELL
Plaintiff (Respondent)
AND
SALVATION ARMY PROPERTY TRUST (WA)
Defendant (Applicant)

Catchwords:

Worker's compensation - Application for leave to adduce video surveillance evidence at trial - Whether defendant is required to disclose video evidence to the plaintiff prior to trial - Defendant allowed to test credibility of plaintiff by not disclosing video evidence - The showing of video evidence to a medical practitioner by the defendant does not waive legal professional privilege - Application allowed in the interests of justice - Turns on own facts.

Legislation:

Supreme Court Rules

Result:

Application allowed

Representation:

Counsel:

Plaintiff (Respondent) : Mr I Marshall
Defendant (Applicant) : Ms W Rowlands

Solicitors:

Plaintiff (Respondent) : Paul O'Halloran
Defendant (Applicant) : McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Carne v Armaguard Ltd (1994) 1 WLR 1204
Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999
Strowse v Hale's Precision Metal Products Pty Ltd, unreported; DCt of WA; Library number D970357; 12 November 1997

Case(s) also cited:

Nil

YEATS DCJ : This is an application by the defendant for leave to adduce video evidence at the trial of this action commencing on 20 March 2000 and that the defendant be excused from producing the video evidence to the plaintiff prior to the trial pursuant to O36 r4 of the Rules of the Supreme Court.
By affidavit, the defendant has brought evidence that there are seven video surveillance films for which legal professional privilege from production is claimed. The affidavit asserts that the videos show the plaintiff performing activities from which the defendant hopes to establish that the plaintiff is capable of performing activities which she claimed in her statement of claim that she was unable to perform or is restricted from carrying out. It is also alleged they show a number of activities that are inconsistent with her claim as to her incapacity in relation to employment.
It is further alleged in the affidavit that the plaintiff's credibility is a crucial issue at trial and it is submitted that it would be unfair and prejudicial to the defendant if it were denied the opportunity to adduce the films at trial because the films go directly to the plaintiff's credibility regarding both the extent of her injuries and her capacity to perform her pre-accident or alternative work activities.
The plaintiff has made a number of submissions. The plaintiff relies upon the English practice as discussed in Carne v Armaguard Ltd (1994) 1 WLR 1204 at 1211, that the modern practice is a "cards on the table" approach so that it should be very rare that such documents are not required to be disclosed prior to trial. The principal reason is that such video evidence showing that a plaintiff is capable of activities that she has alleged she is not capable of should be a powerful inducement for an early settlement and would tend to avoid wasting the Court's time with a trial. I note that in this case the matter is set down for an eight day trial. The plaintiff submits that it should only be in the rarest of cases that the Court would grant the dispensation not to disclose such video evidence prior to trial.
I have been referred to a number of decisions of judges of the District Court who have dealt with this issue from time to time over a number of years. No special rule has emerged; each judge has considered where the interests of justice lie in relation to the particular facts of the case before the judge.
In this case, the plaintiff's action is in negligence for injuries to her back allegedly suffered on 18 December 1993 while employed by the defendant as a carer at the defendant's premises. She claims that while she was helping to prevent a 16 stone male patient from falling, she experienced severe back pain and when she was required to transfer that same patient from a wheelchair to his frame, he again fell and this injured her back. By her statement of claim she alleges permanent dysfunction of not less than 15 per cent of her thoracolumbar spine, permanent psychological impairment, stress and anxiety. Her loss of earning capacity has not been particularised in the pleading that is before me but she indicates that prior to the accident she was in good health and able to enjoy normal social, sporting and family activities and is now substantially disabled by reason of the injury and can no longer continue to work as a carer or engage in any employment involving physical work. The plaintiff was born on 26 November 1957 and therefore was under the age of 50 at the time of the accident.
I accept that issues of credibility will be very important in this trial. In fact credibility will be crucial to the plaintiff's case. It seems to me that some of what was said by his Honour Judge Groves in Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999 is relevant:
"If the interests of justice are to prevail - that is, if the court is to make a fully informed assessment as to the plaintiff's claimed disabilities and physical limitations - then a defendant should not be deprived of the opportunity to legitimately put the credibility of the plaintiff to the test by proper and appropriate means available."
I think it goes without saying that if a plaintiff is able to see such a film prior to trial, while it could have the effect of bringing an early settlement, it would more likely have the effect of the plaintiff adjusting her evidence to fit the film as best she could. It would be a rare case when a plaintiff would not do that. There may be inconsistencies, some of which could be explained, but that is a matter to be done at trial.
As to the settlement of the claim, it seems to me that that is very closely balanced because when the film is powerful, so the impetus to settle would be quite powerful. If the film were not so powerful, then there would be less incentive to settle.
At the end of the day, I think each case has to be decided on its own facts. I am not prepared to adopt the rule in the English practice that it would only be in exceptional circumstances that an order would be made. It seems to me each case must be looked at. This case is a lengthy and hard-fought case involving an alleged back injury. Those cases are very difficult to prove by objective evidence. The extent of such injuries are always very subjective and the plaintiff will be depending very much on her credibility and what she has said to her medical advisers. In those circumstances it does seem to me that the defendant has a right to fully test her credibility at trial and should not be required to disclose the films prior to trial.
The respondent has also raised an issue as to whether the affidavit is sufficient and submitted that before the Court could make an order, the Court would need to see the film. I do not accept that because I think I would not be able to judge the film, with only a pleading in front of me. One would have to have studied the doctors' reports and be quite precise about what the plaintiff was saying before one could know whether the film actually contradicted in any way what she was alleging as to the extent of her injuries. I do not think watching the film without any evidential background, or watching the seven films we have in this case, could give the judge any advantage in making this ruling. I believe it is appropriate that I rely on the affidavit filed on behalf of the defendant.
It was also suggested that privilege has been waived by the disclosure of the film to a doctor or two. That is a point that was dealt with by his Honour Judge L.A. Jackson in his decision in Strowse v Hale's Precision Metal Products Pty Ltd, unreported; DCt of WA; Library number D970357; 12 November 1997, when Judge Jackson said:
"The showing of the surveillance film to a medical practitioner instructed by the defendant is, in my view, not a waiver of legal professional privilege that attached to it. The disclosure to the medical practitioner is also solely for the purpose of litigation. If the defendant was restricted in his ability to show such medical practitioners a surveillance video for fear of waiving the legal professional privilege that attaches to it, it would unreasonably hamper the preparation by the defendant for trial. Defendants commonly have a concern that the showing of a surveillance video to the plaintiff before the plaintiff has given evidence may allow the plaintiff to tailor his or her evidence to what is shown in the video…"
Having considered the submissions and the affidavit, I am of the view that the orders sought by the defendant should in this case be made in the interests of justice.