Faraji v Dambarage[2012] QDC 137

The Contentions

14. [14]
    For the applicant, the contentions are that:

1. (a)
   s 50(2) of the MAIA provides the basis of the jurisdiction of this Court to make the order sought in this application;^[13]

2. (b)
   the failure of duty on the part of the insurer to be enforced is that arising under s 47(1)(b) of the MAIA, which is that:

“(1) the insurer must cooperate with a claimant and, in particular –

…

2. (b)
   must, at the claimant’s request, give the claimant information that is in the insurer’s possession, or can be found out from the insured person, about the circumstances of, or the reasons for, the accident.”

3. (c)
   the failure of that duty is to be found in the inadequacy of action taken by the second respondent to obtain the required information from the insured person.

15. [15]
    The applicant relies upon the decision in Lemon v Suncorp Metway Insurance^[14] as authority for the proposition that an insurer must comply with a request such as the present one, and Aabel v Blyth and Alliance Australia Insurance Limited,^[15] as authority for the proposition that a failure of the duty in s 47(1)(b) may be found even where the failure is also or even mainly attributable to the insured person.

16. [16]
    The application is made with specific criticism of what the second respondent has and has not done, and the submission is made “that it has not done enough to ensure compliance with the request”. In particular, it is contended that there is no evidence of actual refusal of the first respondent to provide the requested information and that given the difficulties, the most expedient step would be the engagement of someone who can facilitate the completion of the documentation directly with the insured.

17. [17]
    The competing contentions of the second respondent are that:

1. (a)
   s 50(2) of the MAIA is not enlivened, as it has not failed to comply with a duty under either Division 3 or Division 4.  The submission is that this is because the failure by the insured does not constitute a failure of duty by the insurer, as it has no power to compel any response from an insured and that there has been compliance with the insurer’s duty, by the steps it has taken and disclosed to the applicant by way of response (as set out in paragraph [13] above).  As understood, it was contended that this amounted to a response in accordance with the insurer’s statutory duty;

2. (b)
   the applicant’s request, as made on 14 November 2011, was not a proper request within the meaning of MAIA, because s 47(1)(b) and (3) does not entitle the applicant to demand that the insured answer questions in the form of a statutory declaration.  Rather, it was contended that:

“The applicant is entitled only to request information from the insurer and, any such information which is in the insurer’s possession, or which can be found out by the insurer by the insured, is then to be provided by the ‘insurer’ by way of statutory declaration.”;

3. (c)
   the court has no power pursuant to s 50(2) or (3), nor s 47(3) of the MAIA to order that the first respondent provide the answers to the applicant’s questionnaire to the insurer, whether by way of statutory declaration, or at all;^[16] and

4. (d)
   Alternatively, specific objection is raised in respect of questions 4 and 19 of the Questionnaire, on the basis that they do not request information about the circumstances of or the reasons for, the accident but rather invite speculation and opinion or belief from the first respondent.

Discussion

Compelling the first respondent?

18. [18]
    It can be noted that s 35(1) of the MAIA imposes a duty on an insured person^[17] to provide information to the insurer, in terms that:

“(1) The driver, person in charge or owner of a motor vehicle involved in an accident out of which personal injury arises must, at the request of the insurer of a vehicle involved in the accident, provide any information about the accident that the insurer may reasonably require within one month after receiving the request.”

Failure to comply with such a request, without reasonable excuse is an offence attracting a maximum penalty of 10 penalty units.^[18]  Therefore, the obligation is not absolute and s 35(3) provides that a person has a reasonable excuse for non-compliance “if the information would tend to incriminate the person.”^[19]

19. [19]
    As pointed out by the second respondent, prosecution action for any failure to comply with the duty imposed in s 35(1) would be pursuant to the provisions of s 87W of the MAIA and that, otherwise, the only other statutory power to require information from a person such as the first respondent is vested in an authorised person appointed as such by the Motor Accident Insurance Commission (“Commission”), pursuant to s 87A.^[20] That power is provided in s 87G and under that provision, failure to comply, without reasonable excuse, is also an offence.

20. [20]
    The Commission is established pursuant to Part 2 of the MAIA and its functions are stated in s 10. They include general responsibility for the supervision of the statutory insurance scheme and particularly of insurers operating under that scheme. Most relevantly to the issues in this application is the function stated in s 10(1)(c), which provides:

“(c) Monitor the management of claims by insurers under the statutory insurance scheme and, in particular, the insurers’ compliance with their obligations under Part 4.”

It can also be noted that the functions of an authorised officer are provided in s 87B(1), as follows:

“(1) An authorised person has the following functions –

1. (a)
   To monitor compliance with this Act;

2. (b)
   To investigate suspected offences against this Act;

3. (c)
   To investigate, at the Commission’s direction, claims against an insurer, and liabilities that may be owed to an insurer, under this Act.”

21. [21]
    It can be further noted that the power of an authorised person, to require another person to give information, is predicated upon the authorised person having a belief, on reasonable grounds, that the other person has information relevant to the following matters:

“(a) a liability under the statutory insurance scheme;

(b) an entitlement under the statutory insurance scheme;

(c) an offence the authorised person reasonably believes has been committed against this Act.”^[21]

Further and apart from providing for specific circumstances of reasonable excuse, including refusal on the ground of tending to self-incriminate, it is also provided that:

“(7) The person does not commit an offence against this section if the information or documents sought by the authorised person are not in fact relevant to a matter mentioned in subsection (1).”

22. [22]
    However, and apart from noting that it is not, as the applicant suggests in part, simply a matter of informing the first respondent of his duty to provide information and his potential penalty if he does not, it is not necessary to dwell on these provisions and functions or as to whether recourse to these functions is available at the instance of the applicant or the insurer or both. This is because the application is solely concerned with the question as to whether the insurer has complied with its duty pursuant to s 47(1)(b) of the MAIA.

Failure or default pursuant to s 47(1) (b)

23. [23]
    That duty is expressed at a general level as one to co-operate with a claimant and relevantly and more particularly as an obligation to give the claimant requested information that “can be found out from the insured person”, provided the requested information is “about the circumstances of, or the reasons for, the accident”.

24. [24]
    Apart from the issues raised in respect of questions 4 and 19^[22], there is no contention that the requested information is not about the circumstances of or the reasons for the accident and no other argument raised as to the utility of an exercise of discretion to enforce compliance with any such duty. 

25. [25]
    It can be observed that this obligation or duty is placed upon an insurer pursuant to one of the purposes or objects of the MAIA, as stated in s 3; being:

“(e) To encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.”

An adjunct to this objective is the effective right, expressed in s 35(1), for an insurer to “reasonably require” information from an insured person (such as a driver of a relevant vehicle) “about the accident”.  It is only by obtaining available information as to the circumstances of any accident that is the subject of a claim, that an insurer may fully respond to and resolve any such claim.  This includes the response required under s 41.

26. [26]
    To this end, it must be said that a response of the kind initially proffered by the second respondent here (albeit in error as to the necessity to that, at that time)^[23] does not appear to further the purpose of s 41.  Moreover, two things can be further observed.  The second respondent’s correspondence in relation to this response, specifically noted the need for “further investigative material” and information, including the statutory declaration which had been sought by the applicant.^[24]  Secondly, and as discussed in Lemon v Suncorp Metway Insurance Ltd^[25] (”Lemon”), a bare admission of liability by an insurer pursuant to s 41, is not, without more, necessarily binding.^[26]

27. [27]
    Accordingly neither this nor the subsequent admission of liability made by the second respondent, on 27 April 2012^[27], are, to any extent to which the information sought is relevant to the issue of liability, impediments to the applicant seeking to have the obligations pursuant to s 47 of the MAIA, enforced. 

28. [28]
    As observed in Lemon by McGill SC DCJ, the applicant will necessarily have to proceed upon the basis that the admission may be subsequently withdrawn and the prospect of having to contend for an estoppel may be an uncertain comfort.  Further, there is nothing in the legislative provisions to indicate that the obligations under s 47 are in any way modified, if an admission of liability is made and information which may be provided would nevertheless be of obvious benefit to the remaining legislatively prescribed processes (including the compulsory conference and any mandatory final offers), including as to making proper assessment of the likely prospects of success, should liability be put in issue and as to the prospect of that occurring. 

29. [29]
    On this application, the second respondent did not contend to the contrary and, if such information is to be obtained, then it is obviously desirable that it be obtained sooner rather than later. Further and to the extent that the power of the court under s 50 is discretionary, I agree with what McGill SC DCJ said in Lemon:

“It was further submitted that s 50 involves a discretion, in that the court is not bound to enforce the obligation, and that as a matter of discretion the order sought should be refused. I accept that the wording of s 50 indicates that the court has a discretion, but the discretion must of course be exercised with a view to furthering the objects of the Act, and giving effect to the general scheme of the legislation as expounded in the Court of Appeal.  The importance of the obligations in division 4 has been emphasised by that court.^[28]  In these circumstances, the discretion should be exercised in favour of enforcing compliance with the relevant provision unless there is some good reason, consistent with the objectives of the Act, for not doing so.”^[29]

30. [30]
    Lemon was not concerned with any suggestion of reluctance of an insured person to provide the requested information.  However, Aabel v Blyth and Anor,^[30] was and in that case Harrison DCJ made orders pursuant to s 50 of the MAIA.  Although in that case there were observations made to the effect that the failure was strictly attributable to insured persons and there was some discussion of the possibility of the power in s 50(3) to make consequential or ancillary orders, extending to orders against other persons, Harrison DCJ observed that before any such order could be made, there had to be a failure by the insurer to comply with a duty under Div 3 or Div 4 and his Honour found that the obligation under s 47(1)(b) included providing information “that can be found out from the insured person and there has been a failure in that regard”.  Accordingly, his Honour made orders as to specific further steps required of the insurer to obtain such information. 

31. [31]
    I agree with Harrison DCJ that the appropriate focus must be on information that “can be found out from the insured person”. However, in Aabel his Honour was not required to consider all of the contentions that have been made in this application. 

32. [32]
    Leaving aside for the moment the contention relating to the requirement in respect of a statutory declaration by the first respondent, I do not accept the second respondent’s contentions. For the reasons I have already given, this application is not directed at any order against the first respondent and necessarily must focus on whether there has been relevant failure or default on the part of the second respondent.

33. [33]
    I am not satisfied that the response to the applicant, to date, has been sufficient to comply with the insurer’s duty under s 47(1)(b) of the MAIA.  This is primarily because it is not yet established that the requested information cannot be found out from the insured person. 

34. [34]
    Obviously there is a question of degree involved and it is conceivable that there may be circumstances where, in the absence of evidence of an expressed refusal to provide the information (which may, of course, be a lawful refusal, where there is a reasonable excuse in respect of the duty pursuant to s 35), the circumstances may allow such an inference to be drawn. However, in the instant case, the recorded contact with the first respondent was not indicative of any reluctance, let alone refusal, to provide the information, as opposed to an inclination to give it a low priority and although the information was not provided on 6 April 2012, there is no evidence of any further enquiry.

35. [35]
    I do not overlook that s 47(2)(b) requires that the insurer’s response be given within one month after receipt of the request. However, that consideration does not favour the second respondent. The short timeframe allowed and which may determine the failing or default for the purposes of s 50(2), rather emphasises a need for proactive and decisive action on the part of an insurer to obtain and give that information which can be found out or to determine what can not be found out.

36. [36]
    In oral submissions there were varying contentions made by the parties, encompassing requirements that the insurer’s obligation is “to take reasonable steps” to find out the required information or that the obligation is to obtain information that “can be reasonably found out”. Perhaps influences for those submissions are to be found respectively in s 41(1)(a) and s 35(1) of the MAIA. However, the present concern is with the obligation imposed pursuant to s 47. This may be seen as an obligation that may be related to those arising under those other sections but it is a separate obligation arising only at the request of a claimant.

37. [37]
    The concern is primarily with the terms in which the obligation is stated in s 47(1)(b) and it is desirable not to effectively read words into that statutory provision.  Whilst considerations such as whether an insurer has acted reasonably and/or made reasonable attempts to obtain the information may by relevant to determining whether or not there has been a failing or default in this respect, the statutory test remains as to whether or not the information can be found out and therefore as to whether sufficient steps have been taken to do so.  That conclusion is also consistent with the remedy provided in s 50, which is to “order the insurer to take specific action to remedy the default within a time specified by the court”. 

Did the request properly require answer by Statutory Declaration?

38. [38]
    The need to note that s 47 of the MAIA is directed at and couched in terms of the insurer’s obligations is also the starting point for the contention that there was no valid requirement to have the first respondent provide answers to the questionnaire in the form of a statutory declaration. Section 47(3) provides:

3. “(3)
   If the claimant requires information provided by an insurer under this section to be verified by statutory declaration, the information must be verified by statutory declaration.”

39. [39]
    Section 44 should also be noted, as it provides that:

3. “(1)
   If a motor vehicle accident claim is made against an insured person, the insurer —

1. (a)
   must undertake the conduct and control of negotiations and legal proceedings related to the claim; and

2. (b)
   may compromise or settle the claim or legal proceedings related to the claim and act for the insured person in any other way in relation to the claim.

3. (2)
   The insured person must sign any documents necessary to give effect to this section and, if the insured person does not sign or is dead, absent or can not be found, the insurer may sign for the insured person.”

40. [40]
    Further, s 43 prohibits an insured person from making any admission of liability or a settlement, contract or offer or promise, on a claim and provides that any contract, offer or promise made in contravention of the section, does not bind the insurer.

41. [41]
    Unsurprisingly then, the obligations under s 47 are placed on the insurer and it needs to be understood that s 47(3) allows a claimant to require “information provided by an insurer under this section to be verified by statutory declaration”. Accordingly, for present purposes, the information is that which “can be found out from the insured person”.

42. [42]
    Notwithstanding the complete power given to an insurer under the compulsory insurance scheme, to act for and on behalf of an insured person in respect of claims made against the insured, the identity of the insured is not merged with the insurer. Hence s 52 of MAIA requires that except where an insured person is dead or can not be identified or where it is impracticable to serve that person, any action for personal injury arising out of a motor vehicle accident must be brought against the insured person and insurer as joint defendants. Although and except where exemplary or punitive damages are awarded or the action involves other claims unrelated to the personal injury, any judgment must be given only against the insurer.^[31]

43. [43]
    It is obviously desirable that the information “be found out” and provided in a first hand sense, just as would be the situation under s 45, in respect of information provided by a claimant at the requirement of an insurer.^[32]  Obviously the purpose in having the information verified is so that it can be treated as given seriously, for the important purposes of the statutory processes, including the compulsory conference.  That may also provide subsequent forensic advantages in respect of this information.^[33]

44. [44]
    The critical consideration is that the relevant information is that which “can be found out from the insured person” (as distinguished from “information that is in the insurer’s possession”). In these circumstances there is nothing improper about a requirement for first hand verification of the information by the provider of it ^[34] and there appears to be no reason for concluding that the requirement for verification by statutory declaration is to be limited to verification by the insurer.  In that regard the insurer may request such verification, as a reasonable requirement under s 35 and an insured person has, subject to having a reasonable excuse, a duty to comply with the request. 

45. [45]
    Should information be provided, but there be reluctance or refusal to provide it by way of the required statutory declaration, then it would remain necessary for the insurer to have the information provided, verified by statutory declaration. In this situation the verification would be as to what information was obtained and the circumstances in which it was obtained.^[35]  Clearly, this must be the case in respect of information already in an insurer’s possession and provided at a claimant’s request with a requirement of verification by statutory declaration. 

The Impeached Questions

46. [46]
    This leaves the two questions in the questionnaire and to which objection has been taken. As has been noted, the objection is based on considerations that the questions invite answers in the nature of speculation and opinion, rather than as to “the circumstances of, or reasons for, the accident”. 

47. [47]
    These questions are expressed as follows:

19. “4.What speed was the other vehicle travelling at:

(a) When you first saw the other vehicle?

(b) 25 metres from the point of collision?

(c) 10 metres from the point of collision?

(d) At the moment of collision?

….

19. 19.Who do you believe caused the accident and why?  If you are of the view more than one person caused the accident then please provide details of all parties and vehicles (make, model, registration number) involved and stating what way you say each such person was responsible.”

48. [48]
    The objection taken to these questions is consistent with the exercise of discretion pursuant to s 50 of the MAIA, notwithstanding that no earlier objection was raised by the insurer and its attempts (as relied upon to comply with the requirement of the claimant) have been to request that the first respondent respond to all of these questions. 

49. [49]
    Further, and notwithstanding that these objections were raised in the second respondent’s written submissions but were not the subject of any direct response of the applicant, on the hearing of the application, it is necessary that I consider whether I will exercise my discretion to enforce any obligation in respect of these questions.

50. [50]
    In my view, Question 4 does not invite speculation or opinion, but rather a common occurrence, in cases of this kind, of an estimation based on experience and perception. The question clearly relates to the circumstances of the accident and, it can be noted, closely resembles questions of a type asked in the second respondent’s own accident report.^[36]

51. [51]
    The situation in respect of Question 19 is different. That question, in a broad sense, may be seen as directed at the circumstances of or reasons for the accident. But it is unfortunately worded in a way which appears to partly invite expression of opinion. However, the questionnaire is directed at a person who was involved in the subject accident and therefore a person able to state the facts relevant to the causation of and responsibility for the accident, and accordingly, as to any injuries occasioned to those persons involved in the collision.

52. [52]
    It can be further noted that this question is the last in a series of questions in the questionnaire. However, and unlike the earlier questions which are directed at specific circumstances of the accident, this question is more directed at what may be the ultimate conclusions arising from those specific circumstances and therefore at liability. In this regard, Question 19 has a tendency to invite the insured person into a breach of s 43(1)(a).  This is because, notwithstanding its earlier conduct, the second respondent’s objection on this application is not consistent with its agreement (written or otherwise) to such an admission being made. 

53. [53]
    For these reasons, I would not, in the exercise of discretion, make any order enforcing any obligation in respect of Question 19.

Conclusion

54. [54]
    Accordingly, and except in respect of Question 19 of the questionnaire, the application is allowed. However, some further consideration is necessary in respect of the relief to be granted. The order sought by the applicant is in broad and unspecific terms. However, and has already been noted, s 50(2) of the MAIA requires the court to order the taking of “specified action to remedy the default within a time specified by the court”.  Further, and as has also been noted, allowance must be made for the prospect of the insured person claiming a reasonable excuse in respect of the request made of him by the insurer and of his seeking to obtain advice about his rights in this respect. 

55. [55]
    Accordingly, I will set out a proposed form of order encompassing specified action and allow the parties the opportunity to make further submissions about the form of the order, precise steps to be taken, timeframe for such action and as to the costs of the application.

56. [56]
    The proposed orders are:

1. On or before 18 June 2012 the Second Respondent is to:
   1. (a)
      prepare the questionnaire forwarded with the letter of the Applicant’s solicitors of 14 November 2011 (except for Question 19) into a form of statutory declaration;
   2. (b)
      directly engage with the First Respondent for the purpose of obtaining his responses to those questions;
   3. (c)
      provide  the  First  Respondent  with  the  terms  of  s 35  of  the  Motor Accident  Insurance  Act 1994 (Qld),  in  outline  of  his  statutory  duty  and,  if  he indicates a wish to seek legal or other advice about his obligations, to allow  a  reasonable  period  of  time  in  which  to  do  this,  before  re-engaging with him; and
   4. (d)
      either obtain from the First Respondent his responses to the questions or his express objection to doing so.

2. If  responses  to  the  questions  (or  any  of  them)  are  obtained  from  the  First Respondent or, if the First Respondent claims a reasonable excuse in respect of the request made of him by the insurer, such response is to be incorporated in  the statutory declaration prepared by  the Second  Respondent and  the  First Respondent  is  to  be  requested  to  execute  that  statutory  declaration  in  the presence of a person authorised  in accordance with  the Oaths Act 1867  to take such declaration.
3. In the event of the First Respondent providing responses to the questions, (or any  of  them)  or  claiming  a  reasonable  excuse  but  declining  to  verify  any such response by execution of  the statutory declaration,  then  the content of the information obtained from the First Respondent and the circumstances as to how, when and by whom  that  information was obtained  is  to be verified by statutory declaration by the Second Respondent.
4. The  Second  Respondent  is  to  provide  the  outcome  of  these  actions  to  the Applicant, via her solicitors, on or before 9 July 2012.
5. The Applicant’s costs of and incidental to this Originating Application (to be agreed or failing agreement to be assessed on the standard basis in accordance with the District Court scale) form part of the Applicant’s costs in the claim for damages for personal injury brought by her against the Respondents in relation to the motor vehicle accident that was the subject of this application.