(i) the defendant be given leave to put in evidence at Trial video tape film of the plaintiff.

(ii) the defendant be excused from producing the video tape film to the plaintiff for inspection prior to the Trial.

Kahn v Armaguard Limited [1994] 3 All ER 585

Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999

McPhee v City of Wanneroo and Ors, unreported DCt of WA; Library No 4808; 14 March 1996

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Wagner v Southern, unreported; DCt of WA; Library No 4997; 25 July 1996

Wardle v State of Western Australia, unreported; DCt of WA; Library No 970162; 23 May 1997

1 GROVES DCJ: The trial of this action is set down to commence on 22 November 1999 and is listed for 6 days.

2 There are two chamber summons before the Court for determination. They are:

(i) Plaintiff's summons dated 13 October filed 26 October 1999 seeking an order that -

the defendant do discover and make available to the plaintiff's legal advisers copies of all video evidence referred to in the defendant's letter to the plaintiff's solicitors dated 17 September 1999.

(ii) Defendant's summons dated and filed 27 October 1999 seeking orders that -

the defendant be given leave to put in evidence at the Trial of this action video tape film taken of the plaintiff.

the defendant be excused from producing the video tape film to the plaintiff for inspection prior to the Trial of this action.

3 It is relevant to outline the history in order that the applications can be seen in their context.

15 August First accident - plaintiff sustained injuries (not the subject of this action).

30 May Second accident - plaintiff sustained injuries (not the subject of this action.

25 February Third accident - plaintiff sustained injuries which are the subject of this action.

15 September Writ issues - particulars of injuries are given as -

(a) a hyper-extension soft tissue injury to the cervical spine;

(b) a significant soft tissue injury to the right shoulder.

30 September Defence filed admitting that the defendant drove negligently.

30 October Plaintiff certifies that discovery and inspection of documents as required by O2, r1 of the Rules of the District Court has been provided.

9 December Plaintiff files answers to interrogatories.

7 January Defendant certifies that he has provided discovery and inspection of documents as required by O2, r1 of the Rules of the District Court.

30 June Pre-trial conference when, inter alia, defendant granted leave to amend defence.

2 August Listing conference - action listed for trial 22, 23, 24, 25, 26 and 29 November 1999.

17 September Defendant's solicitors write to plaintiff's solicitors wherein reference is made to the existence of video tapes taken of the plaintiff.

6 October Plaintiff's solicitors write to defendant's solicitors requesting that "...you please have your client file a formal supplementary affidavit of discovery disclosing the existence of the video tape and the grounds upon which privilege is claimed, in compliance with RSC O36, r4."

18 October Amended statement of claim filed which introduced as an additional particular of injuries.

(c) the development of the condition of Dystonia affecting the Plaintiff's right neck and shoulder.

26 October Plaintiff's chamber summons for discovery of video tape material together with affidavit of James Cornelius Ronald McManus in support are filed.

27 October Defendant's chamber summons seeking leave to put in evidence of video tapes and be excused from producing them and affidavit of Bevan Ernest Lawrence in support are filed.

27 October Affidavit of Denis John Williams, a Claims Supervisor of the Insurance Commission of Western Australia and list of documents filed. In the First Schedule, Part II of the list there is reference to "video tape material taken of the plaintiff (4) the earliest of which was obtained subsequent to the defendant's certificate of discovery filed on 6 January 1999...". The defendant objects to producing the documents enumerated in Part II of the First Schedule on the ground that they are privileged.

29 October Amended defence filed denying, inter alia, that the plaintiff was suffering from a condition of Dystonia.

4 In the course of argument on the applications issue was raised by the plaintiff's counsel as to the defendant's failure to give discovery of the video tapes of the plaintiff and the fact that when discovery was ultimately given the list of documents was verified by a person other than the defendant. As to the first point O2 of the District Court Rules requires each party to give to each other party discovery of all documents within 75 days of an appearance being filed. That requirement was complied with by the plaintiff but the defendant was some 24 days out of time. Nothing turns on that breach. Save where inconsistent with O2 of the District Court Rules, O26 of the Rules of the Supreme Court continue to apply. A video tape is a "document" within the meaning of that word as defined in O26, r1A. Order 26, r2 provides that the parties are under a continuing obligation until the conclusion of the trial to give discovery of any document relevant to any matter in question and not already discovered by the party. Rule 4 requires a party "...forthwith after the party becomes aware of a discoverable document..." to give discovery of it unless the document came into existence after discovery was given and is privileged from production. That is the situation here, viz the video tapes came into existence after discovery was given and privilege is claimed from production. Nevertheless r5 requires that at least 21 days before the trial even those documents be discovered. In this case discovery of the video tape has been given more than 21 days before the trial. Thus there is no issue so far as that complaint is concerned. The other complaint is that the affidavit is not that of the defendant. Given that liability is not in issue and that pursuant to the provisions of s11 of the Motor Vehicle (Third Party Insurance) Act 1943 the Insurance Commission of Western Australia has taken over the conduct and control of the plaintiff's claim against the defendant it does not seem inappropriate in these circumstances that it is a Claims Supervisor who has sworn the affidavit verifying the list of documents. The practical reality is that it is unlikely that the defendant personally would have any relevant documents. Whilst the requirements of the Rule may have not been complied with to the letter, in the end result nothing turns on it insofar as the applications before me are concerned. Accordingly it does not advance the plaintiff's cause to rely on these two issues which were raised in the course of argument.

5 The real issue then arises on the defendant's application. The defendant intends to use the surveillance video at trial and therefore O36, r4 of the Rules of the Supreme Court comes into operation. That rules 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 use it are given the opportunity to inspect it and to agree to its admission without further proof."

6 It appears to be accepted in this jurisdiction that a surveillance video falls within the category of "photograph" for the purposes of O36, r4: see Wagner v Southern, unreported; DCt of WA; Library No 4997; 25 July 1996 and McPhee v City of Wanneroo and Ors, unreported DCt of WA; Library No 4808; 14 March 1996. I adopt that interpretation.

7 The defendant seeks to be relieved from the provisions of this rule. The application is supported by an affidavit sworn by Bevan Ernest Lawrence who is the defendant's solicitor, is instructed by the Insurance Commission of Western Australia and who intends to appear as Counsel at the trial. He has had the conduct of the matter since the writ issued. He deposes that the surveillance video was taken by investigators at his request solely for the purpose of defending the claim. That being so legal professional privilege is claimed in respect of the video. The affidavit deposes:

"6. Since 1980 I have been instructed both as solicitor and appeared as counsel for the Insurance Commission defending a large number of personal injuries claims. As a solicitor I have been instructed to act for the defendant on over 3000 claims. I have appeared as counsel and defended at trial over 100 claims. I have settled over 96.5% of all claims in which I have been instructed to act. My records indicate that of the matters where I have appeared as counsel and where film has been shown of the plaintiff without the plaintiff having prior knowledge of the contents of the film on at least thirteen occasions the learned trial Judges hearing the claims have not accepted the plaintiff's evidence to the extent that some or all of the plaintiff's symptoms and signs have been found not to be related to the motor vehicle accident or to have been exaggerated.

7. In the course of my practice when I have acted on instructions from the Insurance Commission on all matters where I have been aware of the existence of video tape I have given consideration as to whether or not showing the video tape to either the plaintiff or the plaintiff's advisers or the plaintiff's experts is likely to facilitate a settlement. I have not kept a record of all of the occasions on which I have shown such video tape to the plaintiff's counsel and on occasions to the plaintiff. I feel quite confident however that since the pre-trial conference system began in the District Court in 1985 that I have shown video tapes between ten and twenty occasions. On almost all of the those occasions the matter subsequently settled.

8. In deciding whether or not to recommend to my client that it should show the plaintiff video tape taken of a plaintiff I exercise my judgment as solicitor and as counsel and I take into account a variety of matters including -

(a) The difference between the sum the plaintiff is seeking and the sum that my client is prepared to offer and whether or not it appears to me or my client that such gap may be bridged by a compromise;

(b) Whether or not it appears to me after discussion with the plaintiff's solicitor or otherwise that the plaintiff is prepared to take advice from his/her solicitor or counsel;

(c) Whether or not in my view the showing of the film to the plaintiff is likely to assist in a settlement of the claim;

(d) Whether or not my client is prepared to instruct me to increase my offer should the plaintiff show some increased willingness to settle after viewing the film. By way of explanation, I believe that a decided advantage is given to a plaintiff by viewing such a film and I would rarely or perhaps almost never consider showing a film to a plaintiff if I thought that the action would not settle either by the plaintiff reducing his/her expectations and/or by my client increasing its instructions to me.

9. In this matter the plaintiff claims a total loss of earning capacity and schedules filed on the plaintiff's behalf indicate a claim for several hundred thousand dollars. My client is of the view that the plaintiff received little or no injury in the motor vehicle accident the subject of the statement of claim and has not suffered a loss of earning capacity. It is my opinion that there is no prospect of this matter settling as a result of the film which I have viewed being shown to the plaintiff.

11. Further it is my opinion having viewed the film taken of the plaintiff that if it is not disclosed to the plaintiff prior to the trial it will be capable of being used as a powerful devise (sic) at trial for testing the veracity of the plaintiff and the strength of the conclusions of her medical witnesses and if the film is required to be disclosed then the defendant will be effectively deprived of the opportunity of using that device as an aid to the truth.

12. In my view the veracity of the plaintiff will be vital in this matter as the medical specialists have been unable to find any objective pathology to explain the plaintiff's disabilities and alleged inability to work.

13. I further believe that it is not in the interests of the defendant in this application to describe the film which has been taken of the plaintiff as to do so will deprive the Court of the opportunity of independently testing the veracity of the plaintiff's evidence and may significantly prejudice my client and correspondingly advantage the plaintiff."

8 In a concise statement of facts the plaintiff says that the following matters are at issue at trial:

1. Whether the plaintiff's present medical condition is attributable to injuries sustained in the motor vehicle accident on 25 February 1998.

2. Whether injuries sustained by the plaintiff in previous motor vehicle accidents on 15 August 1984 and 30 May 1988 are attributable to the plaintiff's present condition.

3. Whether the injuries sustained by the plaintiff in the motor vehicle accident on 25 February 1988 have resulted in the plaintiff being incapacitated for the purposes of returning to her pre-accident employment or any employment at all.

4. The degree to which the plaintiff has, is and will remain incapacitated for the purposes of past and future economic loss.

9 Whilst agreeing that those matters are in issue the defendant raises the following additional matters.

1. Whether the plaintiff suffered any injury at all in the motor vehicle accident on 25 February 1998.

2. The defendant contends that the plaintiff has claimed symptoms from such accident which either she is not suffering from or which are not related to the accident of 25 February 1998; and further

3. The defendant denies that the plaintiff is suffering from spasm of the right shoulder and neck which has resulted in a prominent degree of elevation of the right shoulder and lateral flexion of the neck on the right side and the defendant says that the plaintiff has voluntarily assumed such a position and is not suffering from spasm nor has she developed a chronic forequarter neuropathic pain syndrome with a secondary dystonic abnormality of the neck and right shoulder as such abnormality has been voluntarily assumed by her.

10 There is considerable dispute between the various medical specialists as to the exact nature and causation of the plaintiff's symptoms. In particular these differences of opinion include the question of whether or not the plaintiff suffers from a condition known as Dystonia. The development of the condition of Dystonia was added as a new particular of injury by the Amended Statement of Claim of 28 September 1999. That was subsequent to the entry for trial and the trial dates being fixed. Although leave had earlier (30 June 1999) been granted to the defendant to amend the defence it does not appear, at least from the Court record, that the amendment to the Statement of Claim was done with leave.

11 A number of medical reports are annexed to the affidavit of Mr Lawrence. Included are those of Prof F L Mastaglia, a consultant neurologist to whom the plaintiff was referred by her general practitioner, and Dr Peter Silbert, also a consultant neurologist to whom the plaintiff was referred by the Insurance Commission. On the one hand Prof Mastaglia is of opinion that the plaintiff is suffering from chronic forequarter neuropathic pain syndrome with a secondary dystonic abnormality of the neck and right shoulder. Dr Silbert rejects this conclusion. He considers that the progression of symptoms following what was a fairly minor motor vehicle accident is unusual. Whilst it would be consistent with muscular symptomatology he considers that psychological factors are also likely to be relevant. He further comments (report dated 30 September 1999):

"On the basis of previous patients that I have seen with this problem, non-medical factors are important in its pathogenesis and perpetuation. There are no objective tests that can be used to make a firm diagnosis of Dystonia in this region. It is necessary to look at the whole presentation and the patient's previous medical history, response to injury and psychological makeup." (Underlining is mine).

12 The matters complained of by the plaintiff are not on Dr Silbert's view supported on clinical examination. There is no objective pathology to explain the plaintiff's complaints. In coming to their opinion the medical experts are reliant upon the history provided to them, their observations of the patient during consultation and the outcomes of clinical testing. From that their conclusions can be drawn. As such the medical assessment is of necessity made on the basis of the subjective presentation of the patient.

13 It will be a matter for the trial Judge to determine where the truth lies insofar as the plaintiff's subjective complaints of significant incapacity and disability are concerned. Defendant's counsel contends that the use of the objective record, namely the surveillance video, will assist the trial Judge in determining the credibility of the plaintiff which is a very real issue in the trial of this action. Showing the surveillance video to the plaintiff before she gives her evidence at trial might, it is said, allow her to tailor or trim her evidence to what is shown on the video. It was indicated that the video would be shown to the plaintiff in her cross-examination when she would then have the opportunity to provide any explanations if in fact such are called for.

14 Plaintiff's counsel argues that unless the plaintiff and her advisers have the opportunity to see the video prior to trial there is likely to be severe prejudice caused to the plaintiff and disruption of the trial process. It is said that the video material can only have three possible effects:

(i) It is likely to destroy the plaintiff's case and reveal her to be a fraud.

(ii) It will have no effect whatever and it will be completely harmless to the plaintiff's case.

(iii) It will be inconsequential or ambiguous and therefore inconclusive but damaging and unsettling to the plaintiff.

15 Counsel argued that if there are fresh facts then the plaintiff should be made aware of that evidence so that she may be fully advised so far as the possible outcome of the trial is concerned. There should be a calm, deliberate and thorough assessment of the significance of the information rather than the plaintiff being "ambushed" at trial. Furthermore practical consequences may include:

(a) the need to show the video tapes during the trial to all witnesses who may be asked to comment on what is shown on the video tape or to refute submissions based upon what is shown;

(b) the possible adjournment of the trial to allow additional evidence to be obtained.

16 It was further contended that the potential disruption to the trial process was contrary to the case management principles enshrined in O1, r4A of the Rules of the Supreme Court. Counsel urged that this Court should adopt the "cards on the table" approach to litigation designed to facilitate resolution of disputes as was outlined in Kahn v Armaguard Limited [1994] 3 All ER 585. There it was held that in accordance with the current practice of the courts to encourage the fullest possible disclosure in civil litigation it would only be in the rarest of circumstances that in a personal injury action would an order be made under the equivalent English rule for the non-disclosure pre-trial of a film or video tape. The possibility of settlement pre-trial and the conservation of the Court time were also factors supporting the compulsory disclosure of surveillance video.

17 Insofar as the principles of case management are concerned it should be borne in mind that:

"Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a Court is the attainment of justice and no principle of case management can be allowed to supplant that aim." (See Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154.)

18 In Wardle v State of Western Australia, unreported; DCt of WA; Library No 970162; 23 May 1997, O'Sullivan DCJ took the view that the defendant to be relieved of the obligation to disclose video material prior to trial would need to show "...that non-disclosure to the plaintiff is in the interests of justice." His Honour was of the view that what will be required is more than a mere assertion on the part of the defendant that credibility is in issue. In this case defendant's counsel contends that as well as testing the veracity of the plaintiff's evidence the strength of the conclusions of her medical witnesses may be brought into question. The medical opinions are, after all, based on the plaintiff's presentation and her complaints, that is, her subjective presentation and complaints. There is an apparent gulf between the medical experts. The underlying foundation upon which certain conclusions may have been made may be open to question.

19 Each case of this kind must of course be considered on its own facts. Where credibility is in issue it is always a matter for the trial Judge to assess the witness' credibility not only by what the witness says but by the manner in which a witness gives evidence, their conduct in the witness box, particularly when they may be called upon to explain certain matters put to them which might contradict evidence in chief or be contrary to what they may have told their medical practitioner or others. The use of surveillance video for this purpose is a legitimate forensic tool in assisting the trial Judge in making that assessment of credibility. Thus it is in such circumstances where case management gives way to the attainment of justice.

20 The District Court of Western Australia has unlimited jurisdiction in personal injury actions arising from motor vehicle accidents. It is the forum in which all such claims are pursued. Most claims where proceedings are commenced and liability is admitted are settled either at an early stage or at the pre-trial conference stage. This is to be encouraged for the obvious reasons of avoiding delay, expense and the anxiety associated with the trial process. Mr Lawrence, a very experienced solicitor and counsel in this area of practice, in his affidavit deposes that he has settled 96.5 per cent of all claims in which he has been instructed to act.

21 Inevitably however there will be claims which for various reasons do not settle. It may be, as is the case here, on one view at least, that clinical findings do not support the incapacity and disability of which the plaintiff complains. That is, a plaintiff may be feigning or exaggerating a condition to enhance a claim. That type of issue is raised fairly and squarely on the amended defence in that the defendant denies that the plaintiff is suffering from a condition of Dystonia and says that the plaintiff has voluntarily assumed a condition. In those circumstances the credibility of the plaintiff may be the only forensic aid to the trial Judge in determining the issue. There have been many cases in this Court where a trial Judge has not accepted a plaintiff's evidence where it has been brought into question by what is captured on a surveillance film. That is confirmed by Mr Lawrence's experience (refer Lawrence affidavit para 6). A defendant's counsel must necessarily exercise some discretion in such circumstances as to whether or not to disclose the content of a surveillance video before trial. (Refer Lawrence affidavit paras 7 and 8). Where after making that assessment counsel does not consider that the footage will encourage a settlement, as is the case here (refer Lawrence affidavit para 9) then the issue will be left for the trial Judge to determine. To deny the trial Judge the opportunity of assessing the credibility of the plaintiff in the usual court room way would, in my opinion, be giving way to expediency rather than having regard to the interests of justice.

22 In Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999 this Court was called upon to decide the same issue which arises here. Whilst each case may be different on its facts the principles nevertheless remain the same. It would be useful for me to repeat here what I said on that occasion.

"...The Court at this stage does not have the benefit of seeing the surveillance videos and no conclusion can be drawn as to whether or not vision supports the Insurance Commission's contention or assertions made in the supporting affidavit. In Strowse v Hales Precision Metal Products Pty Ltd (supra) L A Jackson DCJ observed that 'it is not always the case that a surveillance video film shows a plaintiff exhibiting physical signs inconsistent with his or her claim.' Inconsistencies may well be capable of explanation but in my view the appropriate time for that to be done is in the course of the trial process. At p9 the judge stated:

'If the surveillance video of the plaintiff shows him doing things that are different from what he claims he can do, why is it unfair or prejudicial to withhold that from him. The plaintiff knows what he can do and knows if he has misrepresented his physical capabilities. He can tell his legal and medical advisers what his physical abilities are. If he is prejudiced because he has failed to properly and accurately advise them then that is not a prejudice from which the law should give protection. In my view it is not unfair to such a plaintiff to withhold a view of the surveillance video until his or her cross-examination at trial.'

If the plaintiff is able to view the video tape before trial then there is the opportunity for him to tailor his evidence if necessary. That is not to say that he will but there nevertheless remains that possibility. Surveillance video provides a means by which a defendant can test the veracity of the plaintiff's evidence insofar as claimed disabilities are concerned. The video of course provides actual visual images and whilst there may be explanations for certain conduct captured on the video they leave little doubt about the activities which the video records. The activities observed by the investigator will be the subject of oral evidence. Whereas the accuracy of the investigator's recollection of observations could be put to question the video film in effect tells the story. The video is a narrative form of evidence. To that extent technology aids the tryer of fact in determining where the truth lies.

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.

What is in the interests of justice is that there be fairness as between the parties in the litigation process. It would be 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 concur in that with the views expressed in Strowse v Hales Precision Metal Products Pty Ltd (supra).

It is argued that the "cards on the table" approach may assist in the pre-trial conference endeavours to effect a settlement of the action. I am not of the view that reason outweighs the attainment of justice insofar as the forensic challenge by trial is concerned. In fact the converse might just as well be true in that a plaintiff may have the concern that activities undertaken by him which he alleges or has said to his medical advisers he cannot do are or have been captured on video surveillance. That concern should be sufficient to encourage the plaintiff to settle at the pre-trial conference stage just as much as if he were to be aware of what was on the video surveillance film.

It is trite to say that the purpose of case flow management includes the reduction of surprise, the facilitation of mediation and the curtailment of the length and expense of trials. However the purpose is always subject to the overriding discretion of the judge and what in each case is to be regarded as being in the interests of justice. That is reflected in the Supreme Court Practice Direction No 4 of 1995 (5 October 1995) dealing with witness statements. The existence of credibility disputes will be a factor borne in mind in the exercise of the judge's discretion in ordering the exchange of witness statements. Where video surveillance films have the capacity to reflect upon the credibility or otherwise of the plaintiff then the same considerations must apply in determining whether or not the content of the video should be disclosed prior to trial.

The remaining issue so far as the plaintiff's opposition to the application is concerned is that there is the risks of an adjournment of the trial unless the plaintiff is able to view the video before trial. On that issue I adopt the reasoning of Barlow DCJ in Lloyd v Centurion Roller Shutters Pty Ltd 10 SR (WA) 202 and Blaxell DCJ in Robinson v Patrick Stevedoring (WA) Pty Ltd 10 SR (WA) 236. In the latter case his Honour observed at pp238-9:

'In the circumstances I do not believe it would be unduly unfair to the plaintiff to deny him access to the videos prior to trial. If it turns out that there is material in the videos which can only be answered by further evidence not readily available then the trial judge will have a discretion to order an adjournment at the cost of the defendant.'"

23 I maintain the views as expressed therein. There is nothing in this case which causes me to come to a different conclusion. Accordingly I have concluded that on balance the interests of justice will be better served in this action by granting the orders sought by the defendant.