Insurance Australia Limited t/as NRMA Insurance

[2017] ACTSC 361

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Insurance Australia Limited t/as NRMA Insurance  

Citation:

[2017] ACTSC 361

Hearing Date:

1 December 2017

DecisionDate:

1 December 2017

Before:

Elkaim J

Decision:

See [30]

Catchwords:

PROCEDURE – Miscellaneous procedural matters – application for relief from the obligation to serve material on the other party – ex parte application.

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 1241(4) and 6704

Cases Cited:

Latimer v Day [2015] NSWSC 11

Parties:

Insurance Australia Limited t/as NRMA Insurance (Applicant)

Representation:

Counsel

Ms S Warren (Applicant)

Solicitors

Sparke Helmore Lawyers (Applicant)

File Number:

SC 462 of 2017

ELKAIM J:

1. The plaintiff was injured in a motor vehicle accident on 21 November 2012. She commenced proceedings to recover damages arising from her injuries on 7 April 2015. Breach of duty of care has been admitted but contributory negligence is alleged.

1. On 17 November 2017 the plaintiff filed an Amended Statement of Particulars setting out her damages. In monetary terms, the amount she claims exceeds $1.7 million. In very general terms the plaintiff’s injuries include soft tissue damage to her spine and shoulder and psychological impediments.

1. The matter is due to be heard in this court on 4 December 2017. It has an estimate of five days.

1. Preparation for a hearing of this sort includes the service of medical reports by both sides. The Court Procedures Rules 2004 (ACT) dictate when expert medical reports are to be served. Their intent is that when the parties arrive at the hearing they are aware of the case to be advanced by the opposing side and the medical issues are able to be identified through a comparison of the respective reports.

1. If a report is not served in accordance with the rules it is only admissible in the proceedings with leave of the court (r 1241(4)). In the absence of consent, the court is not permitted to grant leave other than in exceptional circumstances or if the report is an update of an earlier report.

1. Defendants, appropriately, are often sceptical of claims of injury resulting in particularisation of losses of large sums of money. This attitude is perhaps more prevalent where the injuries involved are soft tissue in nature. In order to meet claims of this sort defendants will frequently organise surveillance to corroborate or challenge their perception of the extent of the injuries.

1. When the surveillance reveals matters that contradict the plaintiff’s assertions, it may be shown to a plaintiff in the presentation of the defendant’s case.

1. The rules provide that if a party intends to rely upon surveillance material it must, at least seven days before the hearing begins, notify the opposing party of the existence of the material and give that party the opportunity to view it (r 6704).

1. The same rule provides that the court may dispense with the primary rule on the application of the party intending to tender the material.

1. The application before me today is an application by the defendant to withhold notification of the surveillance material. The application was filed on 30 November 2017. In addition the defendant wishes to withhold service of a number of medical reports which comment upon the surveillance. An amended application, filed in court today, adds a further medical report.

1. The defendant has taken this course because it is anxious that it will lose any tactical advantage it might otherwise have if the plaintiff is forewarned about either the surveillance or the medical opinion. The defendant submits that it has a legitimate forensic purpose in withholding the material. To this extent it relies on the decision in the New South Wales Supreme Court of Davies J in Latimer v Day [2015] NSWSC 11. In this matter an application was made under the relevant New South Wales rule for leave to withhold service.

1. There is a distinction between the New South Wales rule and the rule in the Australian Capital Territory. The former contains a requirement that there is a legitimate forensic purpose. The latter does not have this requirement, although I would accept that the presence of a legitimate forensic purpose is an important consideration.

1. Another distinction with Latimer is that, although His Honour refers to a conflict between the surveillance and statements by the plaintiff and a friend, there is no indication that the surveillance contradicts any medical material.

1. I have not viewed the surveillance material but for present purposes accept the description of it provided by counsel and by the references to it in the medical reports. I also accept that the material would not assist the plaintiff’s case.

1. I do not think the present case is one which justifies the making of the orders that have been sought.

1. As stated above the rules are designed to ensure a fair trial in which the parties arrive at court on the first day of hearing knowing the case that the opposing side proposes to present. There were times when trial by ambush was not unusual. That was before the onset of detailed case management and the necessity to ensure that trials, once started, proceed to finality. All too often, in previous times, cases were adjourned to allow a party to meet evidence which had arrived by surprise.

1. There is a more significant reason in this case why there is little weight in the defendant’s assertion that it would lose any tactical advantage. I accept that if the plaintiff was made aware of surveillance material she might adjust, perhaps ‘tone down’, the evidence she would otherwise have given. However, were she to do so, she would not be saved from the effect of the surveillance material.

1. This is because she has, by the histories given to the medical experts and by her performance during examinations, already contradicted the surveillance. She can be cross-examined on the differences between the surveillance and the histories. This point is evident from the medical reports that the defendant does not wish to serve at this stage. Here are some examples:

1. Dr Lim, in his report of 21 November 2017, states:

The greatest discrepancy in the active ROM of the claimant’s elbows involved her right elbow. At my recent assessment, she demonstrated nil active supination of her right forearm; the forearm was positioned so that the right hand was palm facing the ground. The video showed the claimant having normal supination of the forearm, i.e. she could position the forearm with the palm facing up…

However, there were considerable discrepancies between the ROM shown in the video vs. my recent assessment.

1. Dr Youssef, in his report also dated 21 November 2017, comments:

There are inconsistencies in her history and examination when comparing the surveillance footage with the history and examination to me. She told me she was only able to sit for 10 minutes before she experienced stabbing pain in the mid back. During the surveillance, she was able to sit for a significant longer period without any obvious stabbing in the back.

1. Dr Spira, whose report is dated 28 November 2017, states:

The surveillance clearly demonstrated that the clinical picture I witnessed on the two occasions that I examined Mrs Catanzariti was not in fact a demonstration of her actual capacities. She is seen to use her upper limbs to a far greater extent in the surveillance footage than when I saw her. During the surveillance on 23 October 2017, she is seen in a variety of activities with Mrs Catanzariti brushing her hair aside with her hands at times. At 13.47 Mrs Catanzariti is seen from a table at a shopping centre, pushing the chair forward and carrying her handbag. She does this quite naturally and with no evidence of pain behaviour. This is a very different clinical picture than the one I saw and confirms my suspicions of a greater freedom of usage of her upper limbs than she indicated was her usual situation.

1. All of the above excerpts include comments by the doctors to the effect that what they have seen on the surveillance contradicts the histories taken from the plaintiff and also her efforts on examination. In other words, assuming the surveillance is effective, the contradiction with the plaintiff’s case has already been established.

1. In addition to the comments and observations of the above doctors the surveillance, as I understand its contents, also contradicts the histories and examinations contained in the reports relied upon by the plaintiff. Further the plaintiff will be taken to have provided the instructions for the preparation of the Amended Statement of Particulars, which is inconsistent with the surveillance.

1. In my view, the legitimate forensic purpose that the defendant asserts it has in withholding the material is a forensic advantage that it will not lose.

1. There is another reason why the medical reports should not be withheld at this stage.

1. All of them deal with matters besides the surveillance. There is no justification for these comments being withheld from the plaintiff.  For example Dr Lim and Dr Yousseff comment on the report of a Dr Damiani. The most recent report from Dr Youssef contains further commentary and does not even mention the surveillance. Dr Spira comments on a recent report from a Dr Brooder.

1. In summary, in my view, the tactical advantage that the defendant already has is unlikely to be undermined because of the contradictions between the surveillance and the already served medical reports. In addition, the medical reports go well beyond comment on the surveillance and, to that extent, should not be withheld.

1. Having regard to my view that the material, if it is to be relied upon, should be served, a fresh difficulty arises for the defendant. The hearing is set to commence next Monday, today being Friday. In other words the seven days required by r 6704 cannot be achieved in any event. I was told that the delay was occasioned by the late arrival of the medical reports commenting on the surveillance. This is perhaps contradicted by the two reports dated 21 November 2017 although I accept that there are two further reports dated 27 November.

1. I pointed this difficulty out to Counsel for the defendant. Although the defendant’s primary argument was not abandoned, a secondary position was put to the effect that I give leave to serve the surveillance material and medical reports today. Although receipt of the material will no doubt cause consternation in the plaintiff’s camp I do not think it appropriate to entirely deny the defendant the capacity to rely upon the material. Any asserted prejudice will need to be dealt with by the trial judge.

1. Accordingly the orders of the court in respect of the amended application filed on 1 December 2017 are the following:

(i)The defendant is refused leave, prior to the hearing, to withhold notification to the plaintiff of the surveillance material.

(ii)The defendant is refused leave to withhold service of the medical reports of Dr Lim dated 21 November 2017, Dr Youssef dated 21 November 2017 and 27 November 2017 and Dr Spira dated 27 November 2017.

(iii)If the defendant wishes to rely on the above material it must notify the plaintiff of the existence of the surveillance and serve the reports referred to in the previous order by 4.00 pm today, Friday, 1 December 2017.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 1 December 2017