On 15 April 2013 McGinness DCJ handed down her decision in the matter of Milic v AMP Capital Investors Ltd & Ors [2013] QDC 72. It was determined that although some relevant electronic records held by a shopping centre relating to the subject accident had been destroyed, it was still relevant to the issues in the proceedings for all parties to understand how those electronic systems worked and inter-related.

Facts

At the time of the hearing of the Application, the Plaintiff had filed proceedings for a slip and fall at a large Queensland shopping centre. She alleged she stepped on loose grapes and then fell to the ground. She alleged an inadequate system of inspection and cleaning throughout the shopping centre.

Rule 250 of the Uniform Civil Procedure Rules 1999 provides a Court can make an Order for the inspection of property “about which a question may arise in a proceeding”.

The shopping centre had an electronic system that records when a cleaner passes particular scan points in the centre. The electronic cleaning system is known as “Elite”. Further, various CCTV cameras are placed throughout the shopping centre. When performing the works, the cleaners would communicate with other cleaning staff and centre management over two-way radios.

The cleaning records indicated the relevant scan point near the claimant’s accident was passed at 3:09pm. An incident report referring to the CCTV footage showed that the Plaintiff’s accident occurred at 3:25pm. However, the shopping centre later alleged the clock connected to the CCTV footage was actually 8 minutes fast and therefore the real time of the Plaintiff’s accident was 3:17pm.

The Plaintiff requested an inspection of the shopping centre, which took place on 30 January 2013. However, during the inspection the shopping centre refused the Plaintiff access to the working CCTV system, Elite program and two-way radio systems. This occurred despite the Plaintiff arranging for an engineering expert to attend the inspection.

The Plaintiff then brought an Application under rule 250 of the UCPR for access to the Elite system, CCTV footage and two-way radio system.

Findings

Although the shopping centre had disclosed the CCTV footage of the Plaintiff’s accident by the time of the Application, and had also fixed the clock connected to the camera so that it was no longer 8 minutes fast, the Court held it was still relevant to the issues in dispute between the parties. It was therefore held that the Plaintiff should be given access to, and the opportunity to access, the working systems of Elite, CCTV security footage and the two-way radios.

In addition to demonstrating the three systems in action, the shopping centre and cleaning company were also required to explain how they worked and answer questions relevant to the operation of the systems.

Conclusion and Implications

Where complicated systems, or electronic systems are in place that either control events, or monitor events relevant to a claim, understanding how those systems work will of course be relevant to assessing liability. It is critical in litigation that the parties are given an opportunity to assess the reliability of systems that could affect how events played out, or assist in explaining events.

Although CCTV footage may not exist of a particular event, where a party has referred to footage in explaining an accident, it can still be relevant to a matter in issue. Where details relating to how the footage is collected, stored or commented on is in issue, granting a Plaintiff access to the system may be necessary to test the credibility of the evidence.