CJD v BQH [2026] NSWPICPD 8
Key takeaways
CCTV footage can have a bearing on decisions. However, its relevance or otherwise will be influenced by other factors, including statement evidence and the quality of the footage.
Brief facts
The uninsured employer commenced proceedings, seeking reimbursement of nearly $60,000 paid to the worker for weekly compensation and medical expenses (s145 of the Workers Compensation Act
1987). However, that issue is not the focus of what follows.
The worker alleged a psychological injury due to claims of serious misconduct towards her by her employer. Police were involved.
Some of the employer’s alleged misconduct was captured on CCTV footage, whilst other alleged misconduct was not.
The employer maintained that his actions were ‘appropriate and considerate at all times’. The worker submitted to the contrary.
In her reasons, Senior Member Beilby said that, after carefully reviewing the CCTV footage, she did not accept that the worker appeared comfortable in the circumstances. The Senior Member further observed that she herself felt uncomfortable when viewing the footage, which showed ‘a young woman being physically touched, though not apparently sexually at that stage, by her employer of some significant age difference and in a powerful position’.
Ultimately, the Senior Member concluded that the employer had not discharged the onus required to recover the workers compensation payments in question.
The employer lodged an appeal on three grounds including that the Senior Member erred in fact, when she found that the video evidence did not cause her to doubt the evidence of the worker in any way - this article only focuses on that ground of appeal.
The employer argued that the Senior Member did not, in her decision, mention or acknowledge the worker’s facial expressions in the video during the alleged misconduct and did not comment on the worker’s evidence that she raised her arms towards her face, which was not confirmed by the footage.
The employer submitted that the Senior Member should have concluded that the worker’s evidence was unreliable and the employer’s evidence, which he argued was entirely consistent with the video, should be preferred and that there should have been an award for the employer. The worker submitted this was not a case in which it could be concluded there had been a misperception of events in the workplace.
Judgment
In upholding the Senior Member’s decision, Deputy President Snell cited passages from the Court of Appeal decision of QBE Insurance (Australia) Ltd v Orcher [2013] including that:
The problem of a judge ‘construing’ photographs has been the subject of comment in this Court … Of course photographs, if otherwise relevant, are admissible but the weight to be attached to them and, in my view, the CCTV footage, is very much dependant on the quality and clarity of the images they depict as well as the context in which they are taken. In my view they can be quite misleading particularly as in the present case where the situation the subject of the footage was very dynamic.
In response to the employer’s submission that ‘a proper consideration of the video should have led to a rejection of the worker’s evidence and a finding in favour of the employer’, Deputy President Snell commented:
I am not persuaded that the [employer] has identified error in connection with the various points it seeks to make … I am not persuaded that the above sequence of events and associated matters has an adverse effect on the worker’s credibility. To the extent that there are discrepancies, these are relatively trivial and do not go to the fundamental issue in the case … Whilst this does involve issues of credit, of both the worker and the director, resolution of that issue is not assisted by identifying relatively minor discrepancies...
Implications
Employers and insurers should not discount the relevance of CCTV footage in workers compensation claims and should endeavor to make any footage available for review when a claim is made.
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