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Can I use a video recording as evidence? Will it prove I wasn’t at fault?
By Emily Billiau | Associate | [email protected]
Every week, we speak to cyclists who have been injured on our roads. And there is something common in a lot of the stories we hear:-
“I had a recording device on my bike and I captured the accident.
Can I use it?
Will it prove it wasn’t my fault?”
With the growing use of technology in today’s society, the use of video recording devices on bicycles and by cyclists has emerged as a growing trend.
Many cyclists use recording devices in hope that, should something go wrong, the footage captures the evidence they need to support their case.
We are often approached by cyclists who have a recording of an incident and who question whether the recording can be used as evidence in their injury claim.
The question then naturally becomes, is the recording admissible in evidence?
Pursuant to section 138 of the Evidence Act 1995, the Court has a discretion to exclude improperly or illegally obtained evidence. And so it must first be determined if the evidence was in fact obtained legally.
For example, if a recording was secretly (and without consent) obtained of a conversation between other persons and the cyclist was not involved in the conversation, the recording may be in contravention of Australian Law.
If it is found that the evidence was improperly or illegally obtained, the Courts cannot admit the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In considering the desirability of admitting such evidence, the Court needs to consider a number of factors pursuant to section 138 of the Evidence Act. They include:-
- The probative value of the evidence;
- The importance of the evidence in the proceeding;
- The nature of the evidence;
- The gravity of the contravention and whether it was deliberate or reckless.
So is your video footage admissible?
If you possess a recording of an incident you were involved in, you should consult your solicitor.
Ultimately, the different circumstances of each case and the context of each recording needs to be considered. Certainly, if the recording is admissible, it may be used to help you with your claim.
Careful, you’re on Camera!
On-bike cameras have become increasingly popular among cyclists in recent years for their ability to provide high-tech evidence in what can sometimes be an ugly contest between road users.
Many cyclists are making the decision to invest in a camera, and turning to the footage as reliable evidence following an accident.
Video footage of a road rage incident, a driver who fails to give way or a pedestrian not paying attention can help a cyclist establish fault on the part of the other party.
And with footage of hair-raising conflicts, crashes and near-crashes from on-bike cameras now a common feature on news websites and social media, it is not difficult to see why so many cyclists are using on-bike cameras as a form of insurance.
Despite the Transport, Housing and Local Government committee’s recent inquiry in to the interaction between cyclists and other road users finding that the majority of cyclists and motorists are courteous and compliant with the road rules, the volume of recent viral videos of incidents demonstrates a need for the added safety measure.
Cyclists are inherently more vulnerable than motorists due to the lack of protection offered by a bicycle and because they are frequently in close proximity to larger and faster motorised vehicles.
Unfortunately, this means that the stakes are significantly higher for cyclists – a crash between a bicycle and a car could send the cyclist to the hospital, and the driver to the panel-beater.
In Australia, drivers often escape criminal charges because the elements and standard of proof required to successfully bring criminal charges against the driver are often not met because of a lack of evidence.
In personal injury claims, liability is often clouded by memory issues, alternative versions of the event or a lack of cooperation – all of which could possibly be alleviated by reliable video footage of the incident.
Cameras can also serve as a deterrent to hit and runs, road rage, and perhaps even prompt drivers to reassess their driving strategies near cyclists.
The need for greater protection of bike riders in Queensland is well-established. With a significant growth anticipated in cycling in the coming years, any additional safety mechanisms ought to be welcomed.
Perhaps one day, setting up an on-bike camera before a ride will become as common to a cyclist’s routine as checking tyre pressure, filling a water bottle and fastening a helmet.
However, health experts are warning Queensland riders to carefully consider where they secure their camera as they may affect injuries in the event of a crash.
Written by Emily Billiau and Claire McHardy
Image source: Michael O’Reilly