Young v Nominal Defendant[1999] QDC 257

TRANSCRIPT OF PROCEEDINGS

CIVIL JURISDICTION

JUDGE SAMIOS

JENNIFER JOY YOUNGPlaintiff

and

NOMINAL DEFENDANTDefendant:

BRISBANE

DATE 10/09/99

JUDGMENT

HIS HONOUR: In this matter I publish my reasons for my decision.

...

HIS HONOUR: The orders will be as per the three orders on the last page of my reasons except that in lieu of “seven days” in the second order, that be replaced with the expression “14 days”.

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DISTRICT COURT OF QUEENSLAND

REGISTRY: ROCKHAMPTON

NUMBER: 116 OF 1998

JENNIFER JOY YOUNGPlaintiff:

AND

NOMINAL DEFENDANTDefendant:

REASONS FOR DECISION - SAMIOS D.C.J.

Reasons Delivered: 10 September 1999

Catchwords:

PRACTICE - disclosure - Motor Accident Insurance Act s.48(2) and (3) - reasonable grounds to suspect claimant of fraud - quality or persuasiveness of information including confidential information shown to judge on application by plaintiff for disclosure of documents - disclosure Civil Procedure Rules subject to s. 48(2) Motor Accident Insurance Act.

DISTRICT COURT OF QUEENSLAND

REGISTRY: ROCKHAMPTON

NUMBER: 116 OF 1998

JENNIFER JOY YOUNGPlaintiff:

AND

NOMINAL DEFENDANTDefendant:

REASONS FOR DECISION - SAMIOS D.C.J.

Delivered the 10^th day of September 1999

This is an application by the plaintiff for orders:—

The plaintiff claims damages against the Nominal Defendant for personal injuries suffered by the plaintiff.

The plaintiff alleges:

The plaintiff alleges as a result of these circumstances, she suffered personal injuries as follows:

The plaintiff alleges that having made proper inquiry and search as to the identity of the unidentified car, and being unable to establish the identify of the unidentified car brings the action against the defendant as licenced insurer pursuant to the provisions of s.31(1)(d) of the Act.

The defendant by its Entry of Appearance and Defence denies the plaintiff's allegation that as the plaintiff approached an unidentified truck proceeding in the opposite direction an unidentified car driven by an unknown driver pulled across on to the plaintiff's side of the roadway to overtake the truck thereby entering the plaintiff's direct line of travel. Further, it denies that as a result of the manner of driving of the driver of the unidentified car, the plaintiff took evasive action to avoid a collision by moving the offside wheels of the vehicle being driven by the plaintiff off the sealed surface of the roadway. Further, the defendant alleges that the plaintiff's loss of control of the vehicle being driven by her and the leaving of the roadway and the striking of the tree causing the plaintiff to suffer personal injury was caused when a tyre blew out upon the plaintiff's vehicle (para.6 of the Entry of Appearance and Defence). Further or alternatively, the defendant alleges that the accident was caused solely through the negligence of the plaintiff particulars whereof are as follows:

The plaintiff's solicitors requested any documentation in the possession of the defendant and full particulars of all information in the defendant's possession with respect to the circumstances the subject of this action by letters dated 23 November and 2 December 1998. In response to this request, the solicitors for the defendant wrote to the solicitors for the plaintiff enclosing photocopies of the defendant's documents consisting of assessors reports and the police file. In this letter the defendant's solicitors said:

The following is a list of the documents which were provided to the plaintiff's solicitors under cover of this letter:

By letter dated 10 March 1999, with reference to the defendant's solicitors letter of 23 December 1998 enclosing the various documents referred to above, the solicitors for the plaintiff wrote stating:

By letter dated 15 March 1999, the defendant's solicitors replied to the plaintiff's solicitors letter of 10 March 1999 stating:

The Notice of Claim form sworn 19 January 1998 by the plaintiff gives a description of the accident consistent with the allegations made by her in the plaint. Further, in this document the plaintiff alleges that the other vehicle that was overtaking caused the accident because that vehicle overtook the truck when it was not safe to do so. The investigating police officer's note book makes mention of a large split in the front left tyre of the plaintiff's motor vehicle. Photographs of the vehicle driven by the plaintiff in a damaged condition against a tree are exhibited to the plaintiff's solicitors' affidavit in support of the application. I consider on their face these photographs bear out the plaintiff's solicitor's statement in his affidavit that the plaintiff's motor vehicle was extensively damaged in the accident.

The claims manager for the defendant, Lawrence Meteyard, states that as part of the investigations carried out into this claim, he obtained a copy of the Queensland Ambulance Service report which contained an entry to the effect that the plaintiff had blown a tyre causing the vehicle to go out of control hitting a tree. He noted there was no reference in the material to the involvement of another vehicle. Mr. Meteyard states that he supplied the ambulance documentation to Mr. Lanyon-Owen (the solicitor for the defendant) for his consideration. Mr. Mr. Meteyard states that by letter of 3 March 1998 from Mr. Lanyon-Owen, advice was provided to Mr. Meteyard which Mr. Meteyard states raised concerns in his mind about liability. Mr. Meteyard states that Mr. Lanyon-Owen was of the view that if the statements contained in the Ambulance Service documents were correct, the plaintiff would have real problems on liability and it seemed to Mr. Lanyon-Owen that the claim was fraudulent, or alternatively, the applicant was undergoing a reconstruction of the circumstances of the accident. Mr. Meteyard states Mr. Lanyon-Owen provided farther certain advice to him to have farther investigations carried out. Mr. Meteyard states that upon receipt of this advice from Mr. Lanyon-Owen, and at the time of his prior perusal of the ambulance report itself, he had formed suspicions of fraud with respect to this claim himself. He states the advice from Mr. Lanyon-Owen added to his suspicions. He further swears in view of the ambulance report, and the advice provided to him, and the initial information appointed by assessors, his earlier expectation of litigation in this matter was fortified as were his suspicions of fraud. He states that by letter of advice dated 23 April 1998, Mr. Lanyon-Owen suggested that an engineer be engaged, at an appropriate time, to provide an opinion upon the physical evidence observed by witnesses at the accident scene. In para. 13 of Mr. Meteyard's affidavit he states:

Further, by para. 14 of his affidavit, he swears:

Mr. Meteyard states that further information, statements and reports, or parts of them, have been received by the defendant. He states privilege is claimed in respect of the statements, reports and the information received and, further, they have been withheld under s.48(3) of the Motor Accident Insurance Act 1994. He states without conceding the necessity to do so, that information and the statements and reports will be made available for the private and confidential examination of the court upon the return of this application for the purpose of this application only.

In Mr. Lanyon-Owen's affidavit filed herein, he refers to his having noted that the ambulance records made reference to a blown tyre causing the vehicle to go out of control, hitting a tree and no reference to the involvement of another vehicle as had been alleged in the s.37 Notice of Claim form. He states that having perused additional material that had been provided, including records from the Rockhampton Hospital, he gave advice to the defendant to the effect that from observations made at the scene by witnesses who had been interviewed by assessors for the defendant, there was physical and other evidence which was consistent with a person who had fallen asleep/dozed off/suffered partial loss of attention such that the vehicle had gradually veered off the road to the left hand side and then possibly, when the uneven surface had been encountered and the roughness of the departure off the road manifested itself, the driver of the vehicle had woken and attempted to correct the vehicle, reamed to the carnage way and in the course of so doing at speed, lost control and struck the tree. Further, that such evidence was also inconsistent with the plaintiff being confronted with a vehicle being overtaken coming in the other direction, and the plaintiff attempting to avoid a head on collision. He refers to advice he gave that an engineer could be asked to provide an opinion upon this aspect in due course. Further, he states in para. 11 of his affidavit:

He also refers to the comments he made about the Rockhampton Hospital records and then states he gave advice that there was a reasonable amount of material to show that there was no unidentified vehicle involved. In his affidavit he refers to the views formed by experts engaged on behalf of the defendant who have formed, inter alia, the following views:

Mr. Lanyon-Owen also states that the plaintiff's answers to interrogatories, if correct, are such that experts engaged on behalf of the defendant have formed the view, inter alia, that the plaintiff would have collided head on with the alleged unidentified vehicle.

In these circumstances, sworn to by Mr. Meteyard and Mr. Lanyon-Owen, the application by the plaintiff was opposed.

During submissions by Mr. Lane of counsel on behalf of the defendant, I expressed my concern that on the evidence before me I was inclined to make the orders sought by the plaintiff because I felt that one would need to see all the relevant information to fully understand the statements made by a deponent such as Mr. Meteyard as in my opinion it did not necessarily follow that just because at the accident scene the plaintiff did not mention the “other vehicle” to an ambulance officer that would give rise to reasonable grounds to suspect fraud. That is, there may be reasons why the plaintiff did not mention the “other vehicle”. For example, the injuries suffered by the plaintiff might explain such an omission. Further, this same consideration could be relevant to the plaintiff's so called omissions to refer to the “other vehicle” to others making records or reports with respect to the accident or the plaintiff's injuries or at least the totality of the evidence would need to be considered to make a proper judgment whether the defendant could form the “reasonable grounds” of suspicion of fraud. Mr. Meteyard and Mr. Lanyon-Owen, by their affidavits, anticipated that the court may need to read more information to be persuaded that the defendant was entitled to resist the plaintiff's application. The defendant was prepared with the information and the statements and reports in their entirety to be made available for the private and confidential examination of the court upon the return of the application for the purpose of the application only. Mr. Lane made those documents available to me. Before doing so, he referred me to unreported decisions of Justice Mackenzie in the matter of Ian-Allan McCrae, 377 Bourbong Street, Bundaberg in the State of Queensland, 9344/98,20 October 1998 and Judge Noud in Murray v. The Nominal Defendant, 115/98,16 October 1998. In both matters, Justice Mackenzie and his Honour Judge Noud received documents from the defendant on a confidential basis and perused those documents. The result in the application before Justice Mackenzie was that after his Honour stated he was satisfied that the threshold of s.48(3) had been satisfied, and that there should not be an order that the insurer comply with the duty to provide copies of the reports and other documentary material in that particular case, dismissed the summons with costs to be taxed. In the matter before Judge Noud, the defendant resisted in part the disclosure of information but that because the applicant in that case had been sufficiently successful, his Honour considered that justified an order for costs being made in his favour.

On the hearing of this application, I followed the same course of reading the information in its entirety on the confidential basis offered by the defendant. I did so, being persuaded at the time by the submission of Mr. Lane, that the circumstances in the present matter were similar to a judge deciding a claim of privilege with respect to a document.

In retrospect I would have preferred not to have accepted the offer to examine the information in its entirety offered to me by the defendant. That is because I considered after doing so that a plaintiff would be concerned about such a procedure. That is, because once a judge expresses reservations about the defendant's opposition to this type of application and is then given documents to read on a confidential basis and does so and then dismisses the application with costs, there may appear to a plaintiff something unfair in this procedure. That may be a consequence of the legislative scheme and the only way the court can give effect to that legislative scheme where there is a withholding of information because of a claim of reasonable grounds to suspect a claimant of fraud (s. 48(3)). Of course, any perceived unfairness if I in the end dismissed the application after reading the confidential information could be because I expressed my reservations about the evidence without the confidential information rather than taking the course of not expressing my reservations and declining the offer to read information on a confidential basis and ruling in favour of the plaintiff on this application.

Section 48 of the Act in its entirety is as follows:

Section 50 of the Act provides:

It should be noted the defendant has disclosed a considerable amount of information to date and clearly the plaintiff is on notice that the defendant suspects the plaintiff of fraud and the basis of that suspicion.

The principal submission made by Ms. McCarthy who appeared on behalf of the plaintiff to support the application, was that the defendant did not have reasonable grounds to suspect the plaintiff of fraud. That is, what the plaintiff alleges in the plaint as having led up to her personal injuries is not inconsistent with what may be recorded in other documents and that there may be a justifiable explanation for so called “omissions” of references to another vehicle. Further, that the documents sought to be withheld form part of the expert reports and ought to be disclosed and are not protected by legal professional privilege. Ms. McCarthy referred me to Interchase Corporation Limited (In Liq) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1) (1999) 1 Qd.R. 141; Interchase Corp Ltd (In Liq) v. Colliers Jardine (Qld) Pty Ltd & Ors (1997) QSC 254; Osborne v. Thomas Borthwick & Sons (Australia) Pty Ltd (1997) 2 Qd.R. 180 and Geary v. Heupeden (1992) 2 Qd.R. 475; McMaster v. The Nominal Defendant (Queensland) ((Plaint 1138/93, O'Sullivan DCJ, 18 July 1996).

In the information provided to the solicitors for the plaintiff by the defendant is the statement of one Barbara Anne Scantlebury. Ms. Scantlebury states she remembers an accident that occurred on the Keppel Sands Road involving a vehicle which had left the road and hit a tree. She was, at the time, driving her Mitsubishi Sigma east on Keppel Sands Road towards Keppel Sands to visit a friend. She saw a car well off the side of the road to her right, pretty much upside down and wrapped around a tree. She stopped immediately and ran back to the crashed car. She got to the car and looked in. The only person in the car was a woman of slim build who looked to be about 40 years old. The woman was conscious but groggy and bleeding heavily from the head, that blood was running down her back. She was crouched down in the car and looked to have pressure on her. She decided not to move her, as she was concerned that she could have been more seriously injured if she moved her. She asked the woman if she was okay and the woman mumbled something but she could not understand her. Further, in her statement she states:

She then states that she did something to help the injured woman stop bleeding, but she cannot remember what. Further, the ambulance then arrived fairly quickly and assisted the injured woman.

To claim that another vehicle forced her off the road, knowing such a claim to be false, with the intention to be paid money by the defendant, obviously amounts to fraud. If this matter proceeds to trial, no doubt the plaintiff's credit would be put in issue by the defendant. In the course of resolving that issue, a trial judge would be obliged to consider all the evidence, including what the defendant claims would be evidence from which an inference could be drawn by the trial judge that the plaintiff is making an intentionally false claim. For the moment I put to one side the confidential information. In the information that has been disclosed there is the statement of Ms. Scantlebury that I have referred to above. I consider I am required on this application to consider if the insurer could have reasonable grounds to suspect the plaintiff of fraud. Although the defendant, though its deponents, refers to many aspects of the evidence it has obtained to date, and notwithstanding it is claimed by Mr. Lanyon-Owen that he commented to Mr. Meteyard that it was of great interest that no one had receive an allegation specifically from the claimant at the accident scene about being run off the road by another vehicle, it is my opinion that the statement of Ms. Scantlebury does not permit me to reach a conclusion that the defendant could have reasonable grounds to suspect the plaintiff of fraud in this matter. It may be that a judge at a trial of this matter will draw the conclusions the defendant submits ought to be drawn on the evidence to date. However, as Ms. Scantlebury has stated that the plaintiff was injured and at the scene referred to “another car”, it seems to me to then suspect the plaintiff of fraud is choosing between the evidence available. That is, suspecting what one wants to suspect rather than being entitled to have reasonable grounds to suspect the claimant of fraud. That is, the statement to the effect that no one had received an allegation specifically from the claimant at the accident scene about being run off the road by another vehicle is not in my opinion correct. Although the only words that Ms. Scantlebury states were spoken by the plaintiff were “another car”, in the context of this matter I do not think that one can reject that statement at this stage. That others have recorded information that does not specifically refer to “another car” does not, in my opinion, mean there was no other car. Further, the expert opinions are only opinions that may or may not be correct. I consider Ms. Scantlebury's statement cannot be rejected at this stage on any basis.

Even were Ms. Scantlebury's statement to be ignored, I consider the other information available, excluding at this point the confidential information provided to me separately, does not have that quality about it nor that persuasiveness about it to support the formation by the defendant of reasonable grounds to suspect the plaintiff of fraud.

I hasten to say that anything I say in these reasons should not be read by either party as an endorsement by the court of what will or may happen if this matter does go to trial.

In my opinion, the entirety of the information (including the confidential information) must be looked at. To do otherwise would be to choose from the information available which, in my opinion, is not permissible unless some part of the information has a quality about it or a persuasiveness about it to justify the defendant having reasonable grounds to suspect fraud. The information (excluding the confidential information) does not, in my opinion, have that quality nor persuasiveness to justify the defendant having reasonable grounds to suspect the plaintiff of fraud.

The confidential information provided to me does not alter the opinion I have formed regarding whether the defendant could have reasonable grounds to suspect the plaintiff of fraud in this matter. That is because that information does not have that quality about it nor a persuasiveness about it to justify the defendant having reasonable grounds to suspect fraud. That is so whether Ms. Scantlebury's statement is considered part of the information or not.

Therefore, I conclude the defendant in-this matter may not withhold from disclosure the information or documentary material it has in its possession regarding this claim, except that there may be omitted passages in the investigative reports consisting only of statements of opinion (see s.48(2)).

I was invited by Ms. McCarthy to order that even the statements of opinion in the investigative reports ought to be disclosed pursuant to r.423 of the Uniform Civil Procedure Rules. Rule 423 requires a party to provide to the other party the substance of the evidence it is proposed to adduce from a witness as an expert. Further, r.212(2) provides that a document consisting of a statement or report of an expert is not privileged from disclosure. Nevertheless I consider the rules in these respects are subject to s.48(2) of the Act. That is, in my opinion the Act prevails over the rules in this respect as the Act upon its proper construction creates an exception to the rules in this specific area of motor accident insurance. The rules are not expressed to apply, notwithstanding the provisions of the Act.

I have intentionally not refereed to aspects of the confidential information in these reasons in case the defendant seeks to appeal against this decision.

Therefore, I propose to order the following, subject to any futher submissions from the parties, including submissions as to any order staying these orders—