In brief - Prior disclosure obligations for audio-visual recordings
In November 2011, Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) was amended. It now specifies audio-visual recordings in the list of materials to be given to the other parties at least seven days before the start of a hearing. Exemptions from this requirement can be granted provided they are for a "legitimate forensic purpose", such as testing credibility.
Popular perceptions of fraudulent liability claims
It is not uncommon for insurers and solicitors alike to be faced with the difficult choice of whether or not to go to the expense of obtaining surveillance of a claimant they consider may be exaggerating his or her injuries.
Today's media, particularly tabloid current affairs TV programs, often present stories about individuals faking their injuries to receive large insurance pay outs. These stories usually involve the injured person being covertly filmed and abruptly confronted once footage is obtained of them engaging in some contradictory activity. This surveillance footage is usually enough for the viewing audience to condemn the injured person as a charlatan.
But how does surveillance play out in a courtroom scenario? What weight do judges place on the footage obtained? Are the courts even willing to consider surveillance footage as a form of objective evidence?
Surveillance as a method of discrediting a dishonest opponent
The recent decision of McGlen-McLeod v Galloway  NSWDC 163 involved a plaintiff who allegedly suffered injuries to her legs and back when she fell through the floorboards on the veranda of the house that she was renting. The defendants were the owners of the premises.
In this case liability was not in dispute. Rather, the defendants argued that the alleged injuries were not "causally related" to the incident. This contention was based largely on the fact that there were significant differences between the plaintiff's version of the nature and extent of her injuries and the account noted in her primary medical records.
The defendants sought to rely on surveillance footage that they had obtained, which showed the plaintiff performing many activities that she claimed she was unable to perform.
Gibson DCJ briefly addressed the issue of whether the use of the surveillance evidence would be contrary to procedural fairness. His Honour noted that before the trial, the defendants had been granted permission by the Court to rely upon the surveillance footage and in his opinion, adequate notice had been given to the plaintiff that the footage would be relied upon.
Surveillance footage shows that plaintiff's claims grossly exaggerated
After considering the surveillance footage, Gibson DCJ held that (at ):
"... the surveillance video shows [the plaintiff] is able to go about her daily activities without any obvious restrictions. The surveillance video also shows that the plaintiff's claims to Ms Warner about the extent of her ongoing disabilities were grossly exaggerated."
The plaintiff's conflicting accounts of events and the contradictory surveillance footage were key contributors to Gibson DCJ finding that the plaintiff's credibility had been seriously called into question.
Ultimately, although His Honour found in favour of the plaintiff, he held that the plaintiff's injuries had largely resolved and only awarded her a total of $700 out of the roughly $426,000 in damages originally claimed.
This case illustrates that courts are willing to allow the use of surveillance as a method of determining a plaintiff's credibility when appropriate case management processes are adhered to. This then raises the important question of what are the correct methods of ensuring that surveillance footage can be relied upon at a hearing?
Disclosure of surveillance footage
Traditionally, courts have refused to permit the use of video surveillance in proceedings if prior disclosure is not given to the other side.1 However, many parties have tried to argue that the notification provisions previously required under Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) did not apply, as surveillance footage was not technically a "plan, photograph or model".2
Contrary to the above argument, Letherbarrow DCJ held in several recent cases3 that the Rule 31.10 notification provisions did in fact apply to surveillance footage. On 18 November 2011, Rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) was amended as follows:
"(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.
(2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except:
(a) in the case of a prescribed item - where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or
(b) in any other case - by leave of the court." [Our emphasis added.]
Exceptions to the requirement to disclose surveillance footage
The recent amendments to Rule 31.10 make it evident that parties wishing to rely upon surveillance footage need to disclose the footage to the other parties to the proceedings. However, what if they are worried that the other party will change its story after viewing the footage?
In Azar v Kathirgamalingan  NSWDC 56, the plaintiff was injured in a motor vehicle accident and allegedly suffered significant psychiatric injury. In order to rely upon surveillance footage that contradicted the plaintiff's claims of injury, the defendant served a Notice of Motion seeking the following orders:
- Leave be granted under Rule 31.10(2) to show the surveillance evidence to the plaintiff in cross examination and to use and tender it at the hearing,
- The defendant be excused from compliance with Rule 31.10(1) in respect of the surveillance evidence, and
- The defendant have leave to show the film to his experts and not be required to serve supplementary reports dealing with the film until after cross examination.
In allowing orders 1 and 2 of the defendant's Notice of Motion, Truss J said (at ):
"A plaintiff giving truthful evidence generally has nothing to fear from surveillance evidence. On the other hand, the disclosure of such evidence would give the plaintiff, not giving evidence in a truthful manner, the opportunity to tailor his or her evidence to meet the film. Whilst openness and cooperation are not only desirable but are now also required in modern litigation it is not necessarily appropriate where credit is an issue."
Her Honour decided not to make the third order, as she considered that by allowing supplementary expert reports to be served after cross examination, the defendant would be given an unfair advantage as the plaintiff would not have a chance to obtain its own reports in reply.
Courts prepared to use surveillance evidence to determine credibility
The above decisions illustrate that courts are willing to use surveillance evidence as a mechanism in determining the credibility of a witness, which can ultimately have significant implications for the damages recoverable by a plaintiff in personal injury matters.
Courts are also prepared to grant exemptions to the disclosure provisions contained within Rule 31.10, provided they are for a "legitimate forensic purpose", such as testing credibility.
However, the trend in the above cases does not give parties carte blanche to refrain from disclosing all contradictory evidence to another party prior to hearing. The courts have made it clear that exceptions to Rule 31.10 will only be granted in special circumstances.
Therefore, parties wishing to rely upon such exceptions should seek the leave of the court with plenty of time prior to the hearing in case disclosure is ultimately required.
1Boyes v Colins  WASCA 344 at  and Brown v Metro Meat International Ltd  WASCA 123 at .
2 Grace v Shad (District Court of New South Wales, 6 August 2010).
3 Oraha v The Nominal Defendant (District Court of New South Wales, 1 October 2010), Beard v North Coast Area Health Service (District Court of New South Wales, 11 November 2010) and Annetts v State of New South Wales (District Court of New South Wales, 19 November 2010).