Aitkenhead v Kaufline (No 1)
[2014] ACTSC 70
•14 April 2014
AITKENHEAD v KAUFLINE (NO 1)
[2014] ACTSC 70 (14 April 2014)
STATUTES – Road Transport (Third-Party Insurance) Act 2008 (ACT) – obligations of parties to give documents and information in part 4.3 of the Act – whether surveillance film without an accompanying report amounts to a “report” that is required to be disclosed – film unaccompanied by a report is not a “report” as defined in s 102 – issue may require legislative consideration in light of the policy of the disclosure provisions.
Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 102, 105, 109, 111, 113
EX TEMPORE
No. SC 275 of 2012
Judge: Master Mossop
Supreme Court of the ACT
Date: 14 April 2014
IN THE SUPREME COURT OF THE )
) No. SC 275 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JONATHON AITKENHEAD
Plaintiff
AND:EVAN KAUFLINE and INSURANCE AUSTRALIA LTD trading as NRMA INSURANCE
Defendants
ORDER
Judge: Master Mossop
Date: 14 April 2014
Place: Canberra
THE COURT ORDERS THAT:
The surveillance film of the plaintiff can continue to be shown.
In these proceedings the plaintiff is in the witness box and the defendant has started, as part of the cross-examination of the plaintiff, to show him a video in which he has identified himself. That is a video which the parties accept was taken prior to the commencement of the proceedings. Senior counsel for the plaintiff has objected to the continuation of this process because the video was not disclosed to the plaintiff prior to the commencement of the hearing. He relies upon the provisions of part 4.3 of the Road Transport (Third-Party Insurance) Act 2008 (ACT).
In particular, he relies upon s 105 of that Act, which provides, in subsection (1), relevantly:
(1)A respondent for a motor accident claim must give the claimant for the motor accident claim—
(a)a copy of each required document that is—
(i) in the respondent’s possession; and
(ii)directly relevant to a matter in issue in the motor accident claim.
The section continues in a way that is not relevant in the current situation. The term “required document” is defined in s 102, which provides:
each of the following is a required document for a motor accident claim:
(a)a report, or other document, about the motor accident for the motor accident claim;
(b)a report about the claimant’s medical condition or prospects of rehabilitation;
(c)a report about the claimant’s cognitive, functional or vocational capacity.
There is only a limited combination of exemptions in relation to the obligation in s 105. Section 111 provides a process whereby:
(1)If a party has reasonable grounds to suspect another party of fraud, the party may apply to the court for approval to withhold from disclosure under this part documents or information that—
(a)would alert the other party to the suspicion; or
(b)could help further the fraud.
There is also a provision in s 109 of the Act which maintains an entitlement not to disclose documents if those documents are protected by legal professional privilege. However, s 109(2) provides that an investigative report, medical report or report relevant to the claimant’s rehabilitation must be given even though otherwise protected by client legal privilege.
Where there is a failure to disclose material in accordance with the obligations in part 4.3, s 113(2) provides: The document or information cannot be used by the party in a later court proceeding based on the motor accident claim, or the deciding of the claim, unless the Court orders otherwise.
In a usual case involving a motor accident personal injury claim, a private investigator will be engaged to record relevant film of a plaintiff and would, in the ordinary course, report his or her actions and actions to implement his or her instructions. The investigator will often go on to describe key aspects of the video taken so as to speed up the analysis on the part of the insurer and make the product of the investigation more readily useful. In such a case, in my view, the document reporting on the investigation and the content of the film would be either within paragraph (b) of s 102 or within paragraph (c) because it would fall within the definition by reason of being a report about the claimant’s prospects of rehabilitation or a report about the claimant’s functional capacity. As a consequence, the film which accompanied such a report and formed part of it could not be used if it had not been disclosed pursuant to the obligation in s 105 because of the operation of s 113(2). That position is obviously subject to the Court otherwise ordering under s 113(2).
In the present case I have been informed by counsel for the defendant on the basis of specific instructions that there is no document which accompanied the film which commented on its content or otherwise responded to the request that the film be taken. I have also been informed that the only billing documentation that was produced was billing for a number of jobs undertaken by the private investigator for this matter and that there was no separate bill in relation to this particular film.
Senior counsel for the plaintiff told me he accepted statements made by counsel for the defendant and did not require those to be proved by specific evidence.
I was also informed by counsel for the defendant, although not in relation to the circumstances of this particular case, that the position may be that insurers with awareness of the operation of s 105 have tailored the manner in which they obtain investigative information so as to not come within the scope of the legislative provisions in part 4.3. Counsel for the defendant was careful to say that those were not his instructions in this particular case but, in my view, having regard to the otherwise inexplicable arrival of uncommented upon film at the offices of an insurer, it is a reasonable inference to draw that the conduct of the insurer has been designed to minimise the prospects of the film produced by the investigator falling within part 4.3.
In my view, the film, even annotated with the date and time, is not a report within the meaning of s 102(b) or (c) that would have the effect of requiring it to be disclosed under s 105. That is largely because the legislature has specifically drawn a distinction within the definition of “required document” between a document and a report. Paragraph (a) of the definition specifically makes that distinction. In my view, a report is a narrower concept than a document. Whilst clearly the film would be a document, a report requires something more and, in my view, film by itself does not have whatever is required to make it a report and nor does the addition of date and time to that document turn it into a report.
The concept of a report suggests some content that is responsive to the terms of the request made by the requesting party and suggests some discussion or commentary upon, in this case, the film that was taken. In my view, the production of the film alone may be responsive to the request but does not contain any description or comment that would take it out of the general concept of a document and put it instead within the more limited category of a report. As a consequence, in my opinion, there was no requirement that it be disclosed under s 105 and s 113 does not constitute a prima facie bar to its use in the proceedings.
Assuming I am correct that a film and investigative report would fall within the definitions in s 102(b) and (c), then this case discloses that it is open to an insurer to avoid what appears to me to be the statutory intention of part 4.3 that except in very limited circumstances material such as this be disclosed. If I am correct about that statutory intention, then the capacity for an insurer to structure its requests to investigators in a manner that has the effect of avoiding the operation of part 4.3 would appear to be a triumph of form over substance and may be a matter that requires the legislative consideration in the light of the policy of the disclosure provisions in part 4.3. However, in the present case, because there was no report that accompanied the film, there is no prohibition on using the film under s 113(2), and as a consequence I will allow it to continue to be shown.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 9 May 2014
Counsel for the plaintiff: I D M Roberts SC, A R Muller
Solicitors for the plaintiff: United Legal
Counsel for the defendants: J Pappas
Solicitors for the defendants: DLA Piper Australia
Date of hearing: 14 April 2014
Date of judgment: 14 April 2014
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