Klein v Bryant [1998] ACTSC 89 (4 September 1998)

Last Updated: 13 October 1999

Klein v Bryant [1998] SCACT 89 (4 September 1998)

CATCHWORDS

NEGLIGENCE - Motor Vehicle Accident - Primary liability - Defendant's vehicle sideswiped plaintiff's vehicle causing it to mount the median strip in a jolting action - Defendant denied that collision occurred - No issue of principle.

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Soft tissue injury to neck and lower back - Continuing disability - Chronic pain syndrome - Fibromyalgia - Extent of plaintiff's loss of earning capacity - No issue of principle.

EVIDENCE - Admissibility of evidence - Civil proceedings - Surveillance videos - Discretion to exclude improperly or illegally obtained evidence - s.138 Evidence Act - Trespass onto plaintiff's private land to conduct video surveillance - Factors to be considered when exercising s.138 discretion.

Evidence Act 1995, s.138

Odgers, Uniform Evidence Law, 2^nd Ed, Federation Press 1977

Cross on Evidence, Australian Ed, Heydon

Pearce v Button (1985) 60 ALR 537

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

R v Throung (1996) 86 A Crim R 188

Human Rights and Equal Opportunity Act 1986: International Covenant on Civil and Political Rights, Article 17

Australian Law Reform Commission (Report 26 Evidence (Interim) 1985)

Ridgeway v The Queen [1994] HCA 33; (1994-95) 184 CLR 19

Discussion Paper, Issues and Policy Options in the Regulation of the A.C.T. Security (Protection) Industry, ACT Attorney General's Department, 1992

No. SC 256 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 4 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 256 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KYM LOUISE KLEIN

Plaintiff

AND: JAMIE EDWARD BRYANT

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 4 September 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $80,820.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which it is alleged occurred on 10 August 1988. The plaintiff claims that on that day she was driving on William Hovell Drive from Belconnen towards Fyshwick when she was sideswiped by the defendant near the Glen Loch Interchange. The defendant denies that any collision or contact between the cars occurred. Liability was thus strongly in issue in the hearings. The plaintiff claims that as a result of the sideswipe her car struck the centre median strip, and that as a result of that impact she jarred her neck, and as a consequence suffered soft tissue injuries. She claims that these injuries are of such severity that she has been incapable of performing any work since the accident, and that this incapacity continues. She accordingly seeks very considerable damages in this action.

The Accident

2. The plaintiff says that the accident occurred as she was driving from her home in Flynn towards Fyshwick, where her husband conducted a second hand car business. The plaintiff was born in 1958, and completed her secondary education to Year 10 level at Parkes in New South Wales. She then undertook a secretarial course at Parkes TAFE, and found work in the secretarial field. She worked in real estate, and undertook an auctioneers course while working for a real estate agent in Sydney. The plaintiff married her present husband in 1978, and they have 5 children, 4 born between 1981 and 1987, and the last in January 1998. The plaintiff left the workforce in 1980 before the birth of her first child. At the time of the accident she says that she was actively looking for work, and was in receipt of unemployment benefits, and she was regularly assisting her husband, on an unpaid basis, in his car yard. She was going to the yard to provide such assistance, with her pre school age children in the car on the morning of the claimed accident.

3. She was driving a Saab sedan, which she and her husband said had recently been re painted. She says that as she was approaching the Glen Loch Interchange, at about 200 metres on the Bindubi Street side of Caswell Drive a car sideswiped her vehicle. She says that she was travelling in the lane closest to the median strip at a speed of about 70 to 75 kilometres per hour, and that she saw a reddish brown station wagon going past her car which then swerved from its lane and hit her car. She says that she tried to avoid a collision and leaned on her horn and started to move away but she was hit and forced towards the median strip. She says that she was concerned that after hitting the median strip she might have been forced into the oncoming lane of traffic, and she fought to regain control of the vehicle. She regained control, and proceeded along her lane of traffic.

4. She says that she saw the car that had struck her vehicle ahead stationary at the traffic lights at Caswell Drive. She proceeded in that direction in the same lane, and pulled up behind the vehicle, and tried to indicate that the vehicle should pull over. She says that the driver and passenger saw her, laughed, and drove off when the lights changed. She was able to obtain the registration number of the vehicle.

5. The plaintiff pulled over when it was safe to do so along Parkes Way and recorded the number of the other vehicle, and calmed her children. She says that she inspected her vehicle, and observed a red and brown paint mark forming a corrugation along the passenger side door of her car. She said this had not been present on the car before the accident.

6. She proceeded to her husband's car yard at Fyshwick, and was very upset and shaken on her arrival. She was going to mind the yard while her husband and a friend went to Goulburn, where her husband expected to purchase a vehicle, and his friend would assist him in driving the two cars back to Canberra. Both her husband and the friend, Mr Warren Prince, who is now a bank manager, gave evidence that they observed the plaintiff to be in a distressed condition on her arrival, and that they observed a reddish brown paint mark on the passenger door. Mr Klein also noticed that the driver's near side front wheel was damaged. Mr Prince did not notice this.

7. The defendant acknowledged that he owned a reddish brown old Valiant station wagon at the time of the accident, and that he was driving at the relevant time at the relevant place. His evidence was that he observed a Saab sedan on the median strip, and that a woman then tooted and shook her fist at him. He denied that there was any collision or contact between the vehicles. He said that he was contacted by police later that day, and then inspected his vehicle. He said that his vehicle was old and had many dents and scratches, but that he could not see any evidence of a recent collision. Police later inspected his car.

8. The defendant suggested that the plaintiff might have picked on him to claim that she had been involved in an accident because he had a battered old car. The defendant at the time was giving a lift to another young man, Mr Steele. He said that he could recall no accident at the time. He was asked whether there was any indication that any other driver was annoyed with their conduct on the drive, and he said

"Like you hear horns every now and then, but you don't take any notice of it really."

9. He said that when the defendant was telephoned by police he inspected the car with the defendant, and

"...there was no scratches at all on the car."

10. In cross examination he conceded that there were scratches and dents on the car, but none that were recent. He again said in cross examination that

"...if you drive along there's - you always - there's always people honking and that, trying to drive around and that it's nothing in our case of..."

11. He acknowledged that someone did honk at them that day, but said that they did not collide with any car at the time.

12. The plaintiff's account of the accident is consistent with the observations of recent damage by Mr Klein and Mr Prince. The defendant admits to being at the relevant place at the relevant time, and his old vehicle was of the same colour as the scratches identified by the plaintiff and the other witnesses. The defendant places much emphasis on the lack of what he says were recent scratches on his car, but acknowledges that the car was in poor condition with many dents. His passenger seemed to suggest that being tooted at and swerved around was not uncommon. Taking all of this into account, I am satisfied on the balance of probabilities that the two vehicles did come into contact. It does not follow from this that I make a finding adverse to the general credit of the defendant and Mr Steele, as it is quite open to conclude that they were unaware that the two vehicles came into contact. The evidence of the plaintiff is that the major impact was not so much the sideswipe itself as the resultant impact with the centre median strip.

13. I find that the plaintiff was travelling in her correct lane and that her car was struck by the defendant's car, forcing her car onto the median strip. It follows that the defendant must be found to be negligent and liable for this accident.

Injuries arising from the accident

14. The plaintiff was shaken by the accident, and says that she noticed some soreness to her neck and back. Her general practitioner was on holidays at the time, and she made an appointment to see him on 17 August. The plaintiff acknowledged in cross examination that she could have attended a different general practitioner, but that she did not think that the matter was that serious at the time.

15. Dr Black reported in January 1989 that the plaintiff had attended his clinic on occasions following 17 August. Her initial complaint was of neck and lumbar back pain. He diagnosed whiplash injuries, and prescribed anti inflammatories and referred her to physiotherapy. He noted that her cervical condition was subsiding but that she still complained of lumbar pain. He said

"...her x-rays do not suggest an intervertebral disc lesion and I suspect her symptoms are largely due to musculo-ligamentous strain and I am hopeful that she will achieve one hundered percent recovery in time."

16. The plaintiff was not working at the time, other than assisting her husband in his car yard, which was not doing well. The plaintiff and her husband, who also came from the Parkes region, decided to leave Canberra and move to the country in the Parkes region. Her husband sold the car yard in March 1989, and the family eventually moved to a property near Parkes in October of that year.

17. The plaintiff continued to complain of lumbar pain. She was referred to Dr Newcombe, a neurologist, who reported in October 1989 that he could find no definite abnormal signs, except perhaps for some minor bulging consistent with early lumbar spondylosis. He said that in his opinion

"...she suffered from aggravation of lumbar spondylosis and musculo ligamentous strain of the lumbar spine and neck."

He recorded that the plaintiff was a housewife who cares for 4 children, and advised her to exercise including walking and swimming.

18. The next specialist report is from Dr Meachin, an orthopaedic surgeon from Orange. He took a history of intermittent low backache, and recorded that

"...her symptoms are aggravated by lifting, coughing, bending, long car trips, doing her vacuuming and gardening".

He said

"I feel this woman has a musculo ligamentous back strain and she needs to get onto an exercise programme which I have shown her and she should stay on this for the next 6 months."

19. The plaintiff was seen by Dr Andrea for the defendant who reported in April 1991. He said that the plaintiff probably suffered soft tissue injury to her neck which had settled. He acknowledged that the plaintiff's low back pain, for which he could find no objective basis, could also be accident related, but said

"This is annoying rather than disabling and I would not have expected it to have interfered with her working in a clerical position".

20. The defendant also tendered reports from Dr Landy, a consultant neurologist and Dr Blue, an orthopaedic surgeon who both reported in June 1997 that the plaintiff had no ongoing symptoms which they could attribute to the accident. Both conceded that a degree of soft tissue injury was probably present for some time after the accident.

21. The plaintiff was examined by Dr Jones, a Brisbane orthopaedic surgeon, in May 1997 for the plaintiff. He found ongoing complaints of pain, and concluded that the plaintiff suffered from chronic pain syndrome which he attributed to the accident. He said

"There is no evidence of physical or radiological abnormality of a significant structural injury. There is nothing to suggest that her current situation was compounded by a pre existing medical condition. In the absence of any obvious structural injury I am unable to assess any disability percentage as the end result of the accident."

22. In recent years the plaintiff has attended rheumatologists, and Dr Herd, a Queensland rheumatologist, has made a diagnosis of fibromyalgia. He has also diagnosed a condition of meralgia parasthetica, which he describes as a condition of pain and numbness of the lateral thigh, which he attributes to her recent pregnancy. The fibromyalgia he attributes to the motor vehicle accident. In substance this seems to differ slightly from a diagnosis of ongoing soft tissue pain or chronic pain syndrome.

23. I am satisfied that the plaintiff continues to complain of generalised low back pain and tenderness, which may be described as ongoing symptoms of soft tissue injury, chronic pain syndrome, or fibromyalgia. This condition is attributable to the motor vehicle accident.

Damages

24. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

25. In this case I assess the plaintiff on the basis of ongoing soft tissue injuries or fibromyalgia. The plaintiff has presented the accident, which can only be described as relatively minor, as having had a totally devastating impact on her life. She claims to be totally unable to work. Moreover, she claims to be unable to do most household duties, making a claim under the principles of Griffiths v Kerkemeyer for assistance at the rate of 3 hours a day for an indefinite basis. She even says that she is unable to supervise the distance education programme which her children take when they reside on a property some distance from the nearest town.

26. The plaintiff and her husband made a decision to leave Canberra and reside in a rural area because they felt that their children would benefit. They both grew up in the country. They say that it was their intention that Mr Klein would work in Parkes as a welder, and Mrs Klein would find employment as well. The children would attend school in Parkes. Mrs Klein produced a letter which was admitted into evidence which shows that she had been offered a job managing a restaurant in Parkes.

27. In fact she never took up the job, and the decision was made to educate the children at home, because, they say, Mr Klein had to stay and look after Mrs Klein and so was unable to take up the job which he had intended to take up in Parkes. Accordingly the children could not be sent to school, and apparently it was too difficult to drive them to a bus stop. There is, in my view, no objective medical evidence to justify this drastic level of incapacity. The medical reports tendered by the plaintiff do not show a woman at this time (late 1989-1990) of absolutely total incapacity. The plaintiff did not attempt the restaurant job, and did not seek or attempt any clerical work. She acknowledged that she had aspirations to work in the real estate field, where she had qualifications and experience, but did not pursue these matters because of her claimed incapacity. I am not satisfied that her ongoing soft tissue injury would incapacitate her for part time light clerical or sedentary work such as in this field.

28. The plaintiff was shown some video film of her undertaking duties such as putting out or taking in washing, feeding chooks and moving about the farm property. She acknowledged that she had been able to do these activities around the early 1990's, and her admissions are of course admissible. She also is recorded by Dr Meachin in September 1990 as saying that her back pain became worse by

"...lifting, coughing, bending, long car trips, doing her vacuuming and gardening."

29. The actual video material I ruled to be inadmissible during the course of the hearing, and I will set out the reasons for that ruling later in these reasons. I am thus only taking into account the admissions she made, rather than my own impressions from the actual video material.

30. The plaintiff developed a quite serious heart condition in early 1990, and required a period of intensive treatment for this. She says that this is no longer a relevant matter, and it is not considered such by any of the medical reports. It is, however, undoubtedly a factor that was in play at the relevant time, although her decision to not take up the offer of employment, and her husband's decision to stay at home on the farm property and look after the plaintiff and the children had, on all of the evidence, been made before this condition became apparent.

31. In relation to general damages, I conclude that the plaintiff does continue to suffer genuine pain and discomfort, but that she is able to undertake a range of tasks and activities. She can and does drive, although she prefers not to drive long distances. I would assess her as having moderate to severe ongoing symptoms of a soft tissue injury, which given its ongoing nature can be described as chronic pain syndrome or fibromyalgia. In relation to general damages, I award $28,000, of which, given the long term nature of the condition and the plaintiff's age, I would attribute half to past loss, generating interest of $2,820, making a total award for general damages of $30,820.

32. The plaintiff's claim is for economic loss based on a total loss of past and future earning capacity. I am not satisfied that this is made out. The medical reports of the defendant quite expressly state the view that the plaintiff is not disabled for clerical employment. While her medical reports refer to her having a disability, I am not satisfied that there is medical material which can satisfy me, to the requisite standard, that she is unfit for any employment at all. The high water mark of the plaintiff's medical material is the latest report of Dr Herd, who said in his May 1998 report that the plaintiff

"...would remain unfit for manual work due to back pain and is probably unemployable due to fibromyalgia whose aetiology is poorly understood but likely to be multi factorial with her accident being one factor."

Dr Jones, who reported for the plaintiff, said that he was unable to assess a disability level.

33. She had in fact last worked in 1980, some 8 years before the accident, although she was assisting her husband in his business at the time of the accident. She says that it was her intention to return to the workforce, and that she was actively seeking work at the time. The family made a decision to live in the country, on a fairly isolated property, but the plaintiff nevertheless sought and I must accept obtained an offer of employment as a manager of a restaurant in Parkes, and an offer which she never attempted to take up. Despite her interest and experience in real estate, she never sought any work in this field.

34. The defendant put it to the plaintiff that she made, with her husband, a decision to live on a remote rural property and to educate the children through distance education for lifestyle reasons. This was denied by the plaintiff and her husband, but I am unable to find on all of the evidence that this soft tissue type injury was so severe that it had rendered the plaintiff incapable of any employment at all from the time of the accident. This picture is simply not consistent with the medical material around that time, and indeed the plaintiff's own recorded history of her activities at the time, and her admissions as to her capacity to undertake routine tasks around the farm property. I note that Dr Herd in cross examination said that in his notes on initial consultation in 1996 he recorded

"Back pain increased by farming, heavy work."

This is consistent with the plaintiff engaging in activities around the farm, and quite inconsistent with a woman unable to undertake even any light sedentary duties.

35. As is often the case with soft tissue type injuries, this seems to me to be at best a case for a modest buffer to reflect the fact that more strenuous activities would be beyond the plaintiff and she would be limited to more sedentary type activities. In fact this had been her work history, so this is not a case where a labourer is precluded from his or her normal work and must seek to retrain. The plaintiff had worked in secretarial positions and in real estate. I am not satisfied that these positions would not have been within her capacity from the time of the accident and to date. No doubt the plaintiff, having now been outside the workforce for some 18 years, and having lived the last 10 years in a relatively remote location (with the exception of some time in Caloundra), and with a new baby this year, would face other barriers to employment now, but these cannot be put at the foot of the defendant.

36. I would award a buffer for past and future economic loss, inclusive of interest, of $40,000.

37. I am not satisfied that the plaintiff is incapable of routine domestic tasks, and it seems to me that the plaintiff and her husband, who have both been out of the workforce now since 1990, share these duties in a manner not inconsistent with the approach of the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. I decline to make any award for damages for the need for gratuitous services and care from the plaintiff's husband.

38. Out of pocket expenses were agreed to total $3,584.20, excluding medications and travelling expenses. These were particularised as a claim for $4,075 for travel expenses and $2,000 for medication. There was also a particularised claim for $2,000 for power steering, but I am not satisfied that this aspect is made out. Mr Crowe conceded that he was unable to prove the precise cost of travel expenses and medications, and suggested a buffer of $2,000-$3,000 for these matters. I am satisfied that this is an appropriate course, and award a total amount for past out of pocket expenses of $6,000.

39. The plaintiff's condition is likely to continue at around the present level, and there will be a continuing need for some treatment and medication. While this was particularised at an ongoing rate of over $250 a week, Mr Crowe conceded that this again should be dealt with by way of a discretionary buffer, which he suggested be in the range of $5,000-$10,000. The plaintiff has chosen a remote lifestyle, which does impact on additional travel costs which should not solely be the responsibility of the defendant, but in a case where there are ongoing symptoms of a soft tissue type injury leading to a chronic pain type condition a buffer for future treatment and medication is appropriate, and I award the sum of $4,000 by way of a discretionary buffer.

40. This amounts to a total award of $80,820 which I consider to be appropriate in all of the circumstances.

The video material

41. The defendant after showing the video material to the plaintiff sought to tender it in the ordinary course, which would allow the Court to draw its own conclusions from the material. The plaintiff made the point at an early stage that the film appeared to have been taken on her property. When the plaintiff's husband was shown the film to identify the plaintiff, he objected strongly that the only way the film could have been taken was for an operative to have trespassed onto his property. He was adamant that he gave no permission for anyone to take film.

42. Video surveillance material is of course by its nature surreptitious. It can often be of significant assistance to a court where a plaintiff makes complaints of ongoing chronic disabilities from non verifiable conditions such as soft tissue injuries. Such film is usually taken from a public place, such as a road or a park, or in a private place which is open to the public such as a shopping centre or hotel or club. In this case, it was conceded by the defendant that the only way the film could have been taken was by an operative who entered without permission onto the plaintiff's farm property and home.

43. The plaintiff argued that I should exercise the discretion contained in s.138 of the Evidence Act 1995 to refuse to admit the video material into evidence. Section 138 provides

"Discretion to exclude improperly or illegally obtained evidence.

138 (1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

44. I am satisfied that this provision, although usually considered in the context of criminal prosecutions, was intended to and does apply also to the consideration of the admissibility of evidence in civil matters (Odgers, Uniform Evidence Law, 2^nd Ed, Federation Press 1977 p243; Cross on Evidence, Australian Ed, Heydon, 27,118). To the extent that this alters the proposition that at common law there was no discretion to exclude illegally obtained evidence in a civil claim (Pearce v Button (1985) 60 ALR 537 per Pincus J at 551), I am satisfied that this is the proper interpretation and intended consequence of the Evidence Act.

45. Section 138 creates a discretion, and the factors to be taken into account are set out in s.138(3):

"(3) Without limiting the matters that the Court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceedings; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceedings; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

46. While a consideration of the admissibility of material said to be improperly obtained is now an exercise of a statutory discretion, I am able to obtain guidance from the common law discretion developed by the High Court in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74. In that case Stephen and Aickin JJ said that the common law discretion involved

"...the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to those whose task it is to enforce the law."

47. Counsel told me that they were unable to assist me with authority on the question of the exercise of the s.138 discretion in relation to surveillance material that has been obtained by the operative trespassing onto the farm or home of the subject of the surveillance. It is thus necessary to consider the question from first principles.

48. It is common ground that the surveillance operative committed an unlawful act, being a tortious wrong in entering the plaintiff's land to obtain the film. The defendant concedes this, but says that this is only a minor wrong, and that the public interest should weigh in favour of admission of film. Ms Adamson argued that a defendant has only limited opportunities to test claims of disability, and that the use of surveillance material is an important part of the limited range of forensic weapons that a defendant (or in truth their insurer) has available to combat false or fraudulent claims.

49. The plaintiff argued that to admit such material would be to provide a green light to private surveillance operatives to enter private land and homes, subject only to the constraints of a possible trespass claim, and the risk of prosecution.

50. The factors set out in section 138(3) are non exhaustive. In R v Throung (1996) 86 A Crim R 188 Miles CJ said at 196

"Section 138(3) lays down a non exclusive list of matters which must be taken into account, leaving it for the court to decide how such matters are to be taken into account and what weight is to be given to each. The sub section does not state whether the relative weight of any such matters favours admission or non admission. It may be implied that the weight of some matters favours admission. For instance, if the probative value was high, that would tend to favour admitting the evidence. If the impropriety or contravention were deliberate that would tend to favour not admitting the evidence. On the other hand, it is far from clear whether the `importance' of the evidence favours admission or non admission. Behaviour contrary to the International Covenant on Civil and Political Rights would appear to favour non admission."

51. In that case His Honour did not exclude material which had been obtained due to a police officer acting deliberately in reliance on mistaken legal advice in relation to an investigation into heroin trafficking.

52. The International Covenant on Civil and Political Rights, which must be considered in the exercise of this discretion, does refer to a right to privacy (the Covenant is a schedule to the Human Rights and Equal Opportunity Act 1986). Article 17 provides:

"(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

(2) Everyone has the right to the protection of law against such interference or attacks."

53. The action of a private investigator entering onto the grounds of a plaintiff's home to covertly film their activities clearly involves an unlawful interference with privacy. It could be argued that any covert surveillance has this impact, but the exposure of film from or in a public place is not unlawful. Entry onto a person's home without permission is, and this seems to me to be a factor which favours non admission.

54. The strongest factor which favours non admission is the undesirability of, to adopt the words used by Their Honours in Bunning v Cross, providing curial approval or even encouragement of this type of conduct. I am satisfied that these factors are central to the consideration required to be made by s.138 of the

"...undesirability of admitting evidence which has been obtained in the way in which the evidence was obtained."

55. In the initial proposals which resulted in the Evidence Act 1995 the Australian Law Reform Commission (Report 26 Evidence (Interim) 1985) said (para 959)

"...there is a public interest in minimising the extent to which law enforcement agencies act outside the scope of their lawful authority.....Particular relevant concerns may be:

- Discipline police for illegality or impropriety...

- Deter future illegality...

- Protection of individual rights...

- Fairness at trial...

- Executive and judicial legitimacy...

- Encourage other methods of police investigation..."

(see Odgers at 245).

56. The High Court in Ridgeway v The Queen [1994] HCA 33; (1994-95) 184 CLR 19 has reinforced the appropriateness, in considering the common law discretion to exclude illegally or improperly obtained evidence, of considering the need to discourage conduct. Although the Court again acknowledged the significant public interest in bringing a criminal to trial, Mason CJ, Deane and Dawson JJ said at 32

"...circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime."

57. In the present case I am not, of course, considering the competing balance of convicting a person accused of a major drug offence and the conduct of police. It seems appropriate to observe that, to the extent that the motive of the party seeking admission of evidence is properly relevant, the public interest in the conviction of those guilty of crime may be more compelling than the public interest in demonstrating whether a claimant in a civil damages claim is overstating her level of disability. It also seems appropriate to observe that, while police, as those charged with responsibility for law enforcement, are subject to an extensive regime of legislative and administrative oversight to ensure compliance with proper and detailed procedures, private surveillance operatives operate in an area relatively free of oversight and control. (See, generally, Discussion Paper, Issues and Policy Options in the Regulation of the A.C.T. Security (Protection) Industry, ACT Attorney General's Department, 1992). This seems to me to be a factor which increases the relevance of the need to discourage inappropriate behaviour in the exercise of the s.138 discretion.

58. It seems to me that it would be unarguable that, if a surveillance operative actually broke into a subject's house to expose film, the discretion in s.138 should be exercised to exclude the material. In the present case the operative did not enter the premises, and so did not commit an offence of breaking and entering. But to permit or, as the High Court has noted, perhaps encourage, surveillance operatives to enter farm lands or private dwelling properties would in my opinion be most undesirable. While an Australian's home might no longer be their castle, a person is entitled to expect that they will not be subject to intrusive surveillance from persons unlawfully entering onto their property. It seems to me appropriate in all of the circumstances to refuse to admit the video material in the exercise of my discretion pursuant to section 138 of the Evidence Act, and I so ruled in the hearing of this matter.

I certify that this and the seventeen (17) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 4 September 1998

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Higgins Solicitors

Counsel for the Defendant: Ms C E Adamson

Instructing Solicitors: Abbott Tout Harper Blain

Dates of hearing: 10 and 11 August 1998

Date of judgment: 4 September 1998