The case of Kitoko is an excellent example of why the ‘Proof is in the Pudding’ when it comes to clear CCTV. 
We recently held discussion groups in Melbourne and Sydney on “The Proof is in the Pudding – Disclosure, Privilege and Impact of the Privacy laws”.
Tony Kulukovski, Principal from Thompson Cooper Lawyers, was a guest facilitator.
CCTV footage has become increasingly important. It is essential to keep the footage before the incident so we can determine if there were cleaners in the area. It is also important to keep the footage after the incident so we can see how long it took the claimant to report the incident and their actions after the incident.
If an injured customer asks for information on their incident such as the incident report or CCTV, we recommend that the client say to an injured customer that we cannot disclose information as it is for internal purposes. Then wait for our advice. We do not recommend saying that it cannot be disclosed for privacy reasons as that is not in the true meaning of the legislation. Once we have reviewed the incident report or CCTV then we can make a strategy recommendation on disclosure. We can redact witness details and staff details from the incident report to protect staff and then provide the incident report.
In the case of Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201, our client Mirvac was recently able to successfully defend a claim based on CCTV in the Court of Appeal:
- On 5/10/2010 Mr Kitoko stated that he slipped on clear liquid and crashed into the glass sliding doors.
- Mirvac reported this incident to Proclaim two days later and retained the CCTV.
- He then instructed a lawyer and alleged he had slipped on clear liquid.
- CCTV footage showed that he just walked into glass door, after ten other people had before him walked through the glass doors correctly in a space of six minutes. We disclosed the CCTV to his lawyers.
- The Claimant took the case to trial and was self-represented.
- The Trial judge dismissed case and advised the claimant that the footage does not support what the claimant says.
- He lodged an appeal. The Court of Appeal Supreme Court dismissed his claim in August 2016.
- The claimant then lodged special leave to appeal to the High Court. This has not been granted.
This is a great example of how CCTV should be kept even if you cannot see the incident, as this may assist your defence.
Written by Marianne Emerson
