DUDGEON -V- SUPERMACS IRELAND LIMITED

A pre-trial hearing in the above case recently dealt with CCTV disclosure

Judgement of Mr Justice Barr of the 16th November 2020.

BACKGROUND

The Plaintiff alleges she was caused personal injury when attending the Defendant’s restaurant on the 6th January 2017. The Plaintiff contended that the seat upon she was sitting broke causing her personal injuries when she fell to the ground.

After consulting her solicitor a Section 11 preservation of evidence request issued. In the context of a Circuit Court discovery application, Circuit Court Judge Groarke refused to direct the Defendant to make discovery of the relevant CCTV footage.  The Plaintiff appealed to the High Court.

The Plaintiff’s case was that the CCTV footage represented the best evidence one can obtain regarding the occurrence of the event. A number of authorities such as Colston -v- Dunnes Stores (2019) were cited in regard to discovery of CCTV footage. The fact the chair was unavailable for inspection was cited as a further reason for the CCTV footage to be discovered.

The Defendants further submitted that the absence of the chair was irrelevant and submitted that the dispute as to whether the Plaintiff had fallen to the ground was a central issue for determination at the Trial.

The Defendant further submitted that the discovery of the CCTV footage would allow the Plaintiff “mend her hand” in advance of the hearing. The defence cited the Supreme Court authority of Keating -v- RTE (2013) that discovery “cannot be used to enable a person to plead the cause of action or a defence which he is not otherwise in a position to plead…”.

FINDING

Judge Barr noted that liability no longer was in dispute between the parties but the issue of causation and quantum remained contentious. He concluded that the only purpose in seeking discovery of the CCTV footage was to ascertain in advance of her evidence in chief and cross examination whether her assertion that she fell to the ground was in fact correct.

The discovery material goes exclusively to the issue of the Plaintiff’s credibility and based on the Stafford -v- Revenue Commissioners Authority, Judge Barr was satisfied that it was not appropriate to make discovery of same.

The Plaintiff would be in a position to proceed to give her evidence and call witnesses if required to confirm her version of events.

CONCLUSION

The Alliance for Insurance Reform welcomed the decision. The Alliance for Insurance Reform noted that data protection legislation regarding CCTV often unfavourably conflicted with legal defence entitlements in Public and Employer Liability cases. It was further stated there were some instances where there are GDPR requests for CCTV footage prior to personal injury claims being made.

CCTV footage is subject to GDPR Regulations and normally subject to a Section 11 preservation or disclosure of evidence request. Consideration requires to be given in every case whether or not to disclose same and at what time.

There is little dispute that CCTV is the best evidence of an incident, however a Plaintiff should not be given an automatic entitlement to sight of CCTV.  A Plaintiff is required to plead and verify their case in the absence of same save in limited circumstances where they may be rendered unconscious or worse. CCTV footage may be opened in a criminal case involving assault type cases and Defendants should ensure pleadings are delivered and verified in advance if possible in those circumstances.

Date Published 1st December 2020

Key Contacts

Mary Byrne Partner (mbyrne@obl.ie)

Ruth Hereward Associate (rhereward@obl.ie)

This document is for general guidance only and specific legal advice should be obtained as required.