Ishak v Taoube

[2019] NSWDC 46

District Court

New South Wales

Medium Neutral Citation:

Ishak v Taoube [2019] NSWDC 46

Hearing dates:

1 March 2019

Date of orders:

01 March 2019

Decision date:

01 March 2019

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

Insurer to be joined as a party to the proceedings

Catchwords:

Damages – personal injury – insurance – where claim pursuant to s 119 of the Motor Vehicle Accident Act
1999 (NSW) – whether claim made in good faith – insurer application to join as party to proceeding

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Vale v Vale (2001) 34 MVR 518
Radford v Ambrose (1994) 20 MVR 398
Virski v Virski (Unreported, NSWSC, Master Harrison, 20 March 1998)

Category:

Procedural and other rulings

Parties:

John Ishak (Plaintiff)
Hamid Taoube (Defendant)

Representation:

Counsel:

 

Mr J Turnbull SC (Defendant)

   

Solicitors:

  J Sciglitano & Co (Plaintiff)

File Number(s):

2018/161008

Publication restriction:

Not Restricted

Judgment

1. In this proceeding, commenced in May 2018, the Plaintiff brings a claim for damages arising from a motor vehicle accident on 22 October 2014. He was a front seat passenger in a car driven by the Defendant, Mr Taoube. The Plaintiff notified a personal injury claim to AAMI Insurance on 13 November 2014. On 3 September 2015, the CTP insurer admitted liability.

Procedural context

2. There have been a number of procedural applications to date. This included an earlier notice of motion brought by AAMI Insurance in October 2018, which, I am informed, is similar to the current application by AAMI Insurance that is before me. That is, AAMI Insurance (who I will hereby refer to as the “Insurer”) sought leave to be joined as a party to the proceeding pursuant to s 119 of the Motor Accidents Compensation Act 1999 (NSW) (the ‘Act’). The Insurer’s application was dismissed with costs by the court on 18 October 2018.

3. By notice of motion filed on 9 November 2018, the Insurer renews its application for joinder. On 27 November 2018, the Plaintiff filed a motion seeking default judgment against the Defendant. I determined that such application should await determination of the Insurer’s current application. Further, the Plaintiff seeks a stay of the Insurer’s application pursuant to rule 12.10 of the Uniform Civil Procedure rules, on the basis that the Insurer has not presently complied with the order that it pay the Plaintiff’s costs of its earlier unsuccessful joinder application. I rejected such application having regard to the close proximity between both joinder applications and the circumstances that the Court’s earlier rejection of the joinder application was not intended to preclude any renewed application.

4. On the present application, the Insurer relied upon an affidavit of Homira Haideri filed on 3 December 2018. The Plaintiff relied upon an affidavit of Ciara White filed on 22 February 2019.

5. As noted, the present application is brought pursuant to s 119(1) of the Act. The provision states that, if:

1. court proceedings have been commenced against the person in respect of a claim, and

2. the persons insurer has given the plaintiff particulars alleging that the claim has not been made in good faith,

the insurer may apply to the court to be joined as a party to the proceedings.

6. By its terms, the only condition imported by s 119(1) is that the Insurer has provided particulars alleging that the claim has not been made in good faith. That has been satisfied in this case.

7. The grant of leave to an insurer confers certain procedural rights upon the insurer in the proceeding, including rights of cross-examination of witnesses. There are some important procedural restraints on what an insurer might do if joined to the proceeding. This has been the subject of commentary in the Court of Appeal’s decision in Vale v Vale (2001) 34 MVR 518.

8. As is apparent from its text, the Court’s power under s 119 is not expressly confined. Nor, I was informed, has there been any binding judicial description of the expression “good faith”, as it appears in the provision.

9. The Insurer says that the basis for this application is its suspicion of collusion between the Plaintiff and the Defendant.

10. I am conscious, in the determination of this application, that there is no express level of satisfaction that I need to reach to form a view whether the Insurer’s claim of an absence of good faith is well-founded. In what follows, I am not to be taken as expressing anything near a final view of the correctness of the various factual contentions that the Insurer makes regarding the plaintiff or the defendant. Nevertheless, I propose, for the purposes of this application, to consider the Insurer’s application by taking the evidence put before me at its highest.

11. It is necessary in order to understand this application, to set out the parties’ accounts of how the motor accident occurred. The Plaintiff submits that this was a simple incident of the Defendant driving a car which collided with the rear of the car immediately in front (driven by Mr Liu); resulting in the Plaintiff’s injury.

12. The Insurer suspects that the explanation for how the collision arose is not that simple.

13. The Insurer refers to police notes taken from Mr Liu in the aftermath of the accident. Those notes recorded Mr Liu’s belief that far from the accident arising from an unexpected change of lanes, the collision occurred because the Defendant accelerated his car. Mr Liu had told the police that the Defendant was lying when the latter had told the police that Mr Liu had changed lanes prior to the collision.

14. The Insurer also referred me to two reports from its expert engineer, Associate Professor Robert Andersen. In the first of those reports, Professor Anderson regarded the version of the collision provided by the Plaintiff that is, that Mr Liu’s car cut in front of the Defendant’s vehicle, was only a rare cause of rear end collisions. In his latter report, Professor Anderson considered evidence given by the Defendant (recorded in police notes and a separate statement) as being “improbable”. That version postulated that Mr Liu’s car had sideswiped the Defendant’s car and then moved into the lane in front, whereupon the Defendant’s car ran into the rear of Mr Liu’s car. Professor Anderson opines that the description given by the Defendant as to how the collision occurred was inconsistent with the dynamics of collisions. He also opined that the scenario put forward by the Defendant must be a “very rare cause” of rear end collisions.

15. In addition to the evidence from its engineer, the Insurer relies upon accounts of the collision given by the Plaintiff to various medicolegal specialists. Those accounts, taken together, propound a version that Mr Liu’s car had suddenly emerged from an inside lane.

16. Before me, the Insurer relied upon two other matters. First, it relied upon the curiosity that in his personal injury claim form, the plaintiff inserted the answer “Unknown” when the questions asked him to identify both the surname or family name and address of the driver. This was notwithstanding the circumstances that, so I was informed, the Plaintiff and the Defendant’s parents were next door neighbours. The Plaintiff’s mother also identified the Defendant as a friend and said in a statement that, on the day of the collision, the Defendant was driving the Plaintiff and herself to the Plaintiff’s work before travelling to a relative’s place for breakfast.

17. Secondly, the Insurer referred me to certain parts of a judgment in other, unrelated proceedings in this Court, in which the Defendant was also a defendant. Those proceedings concerned another motor vehicle accident arising from a collision that occurred in September 2013. The relevant parts of that judgement concern findings that the Defendant was prepared to do whatever he could to assist the Plaintiffs in their case; that the Defendant could not be accepted as honest or as a reliable witness; and that his evidence as to the circumstances of the accident was found to be implausible.

18. Senior Counsel for the Insurer emphasised, correctly, that such findings would not bind this court in the current proceeding. Nevertheless, I accept that, for the purposes of an interlocutory application of this kind, the findings are relevant and, indeed probative, in assessing the Insurer’s contention that the accident the subject of this proceeding was procured through Defendant’s collusion with the Plaintiff.

19. So far, what I have recounted mainly concerns conduct of the Defendant. Senior Counsel for the Insurer noted that, when omitting to insert information required in the personal injury claim form relating to details of the Defendant, the Plaintiff made a statutory declaration. The Insurer asks me to infer, on this application, that the Plaintiff was also involved in a collision with the Defendant on the basis of the omissions in the personal injury claim form. It may be that some innocent explanation might have been given by the Plaintiff for the omissions, but no explanation was supplied on the Plaintiff’s behalf in his opposition to this application. Although I emphasise that it is not necessary to reach a final view on this matter, in my opinion, there is at least some evidence before me that, prima facie, would support a view that the plaintiff may have colluded with the defendant.

20. The Insurer also notes what it contends is a surprising circumstance that no claim was brought against Mr Liu who, it appears, both Plaintiff and Defendant will argue was at fault in the collision.

21. In his opposition to this application, the Plaintiff’s legal representative contended that no formal allegation of collusion had been made; and that conflicts or inconsistencies in accounts as to how the collision occurred in this case are simply matters to be determined by the trial judge. He contended that by this application, the Insurer was simply intending to “muddy the waters”.

22. The Plaintiff’s legal representative drew my attention to two decisions of the Supreme Court of New South Wales, being Radford v Ambrose (1994) 20 MVR 398 and Virski v Virski (Unreported, NSWSC, Master Harrison, 20 March 1998) relating to the predecessor provision to s 119 of the Act. In Radford, the Court had indicated that it was not enough to show that there may be conflicting evidence between the plaintiff and the defendant; or that the information provided by the plaintiff to the insurer was false. In that decision, Master Malpass found that there was nothing to suggest any collaboration between the plaintiff or defendant, in the past or in the future.

23. In Virsky, Master Harrison noted that the insurer bears the onus of establishing the requirement in s 119 and, in the circumstances of the case, it was not sufficient to satisfy the requirement that the insurer establish that the plaintiff may have given inconsistent histories to doctors and hospitals; and that there was nothing to suggest that the Defendant had contrived with the Plaintiff to make it appear that the latter’s injuries were caused by the subject motor accident.

24. I bear these observations in mind, although make the obvious point that the circumstances in applications of this kind will differ from case to case.

25. In my opinion, the Insurer has done more than simply establish the possibility of false information being provided to it or medico-legal specialists by either or both of the Plaintiff and Defendant. As I have indicated, I consider that the Insurer’s suspicion as to collusion between the Plaintiff and Defendant is not fanciful but has a prima facie basis. In saying that, I note that there is no statutory requirement, nor authorities that mandate a finding that the plaintiff and defendant have collaborated, even on a provisional basis.

26. I accept that it is only by the joinder of the Insurer will a full and proper account of the circumstances of the collision emerge; and that, there is very likely to be a conflict between the versions of the collision given by the Insurer and the existing parties to the proceeding.

27. I have noted that the Court’s power under s 119 of the Act is discretionary and that discretion is unconfined. The Plaintiff has not put forward any discretionary reason why I would not exercise the discretion in the Insurer’s favour if, as I find, there is a prima facie basis for finding that the claim has not been made in good faith.

28. I am therefore of the view that it is in the interests of justice that the Insurer be joined as a party to the proceeding.

29. I will hear the parties as to the cost of this application and any consequential orders that may be sought.

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Decision last updated: 08 March 2019