Insurers should consider trespass laws when commissioning surveillance, a judge has warned after finding footage obtained in a car crash injury case was probably taken illegally. 

The images – presented in the case against a man suing Allianz and a woman for damages – were taken inside a Brisbane Costco and another shop. 

Finding in favour of the man, who worked at the Costco, Judge Bernard Porter said it was “strongly arguable” that filming without the store’s consent amounted to unlawful trespass. 

Footage from the second shop involved “immodest filming of a young woman who had nothing to do with the case”, and whoever took it should be told not do so again, he added. 

“While I understand insurers have an obligation to their shareholders and to the public and to the public interest to challenge cases that they think should be challenged, and they should not be criticised for doing so, I think they should consider the law of trespass when commissioning surveillance,” the Queensland District Court judgment stated. 

The court has awarded Tyson Ardis-Phasey $182,800 plus costs from Allianz and Tiana Emily Neal over an accident in 2019 when Mr Ardis-Phasey was aged 14. 

Mr Ardis-Phasey suffered a heavy blow to his cheek and was briefly knocked unconscious. He had complained of back pain since the car crash. 

Judge Porter said back pain can be hard to prove and insurers may have understandable reservations about significant claims. 

Mr Ardis-Phasey testified about his history of playing sport, doing gym work and employment that included washing houses. 

Although these activities may be inconsistent with the injury he described, Judge Porter said it is “unremarkable” that a young man would not let an injury stop him doing things he wanted to do. 

The judge said it is difficult to assess future economic loss for young people, because they change so much, but the injury will affect Mr Ardis-Phasey’s capacity to work. 

He assessed future economic loss at $160,000, noting Mr Ardis-Phasey will be able to afford treatment that improves his earning capacity. 

Read the judgment here.