Jamie Dwyer v Mile Stestic and Insurance Australia Ltd t/as NRMA Insurance
[2015] ACTMC 2
•23 June 2015
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jamie Dwyer v Mile Stestic & Insurance Australia Ltd t/as NRMA Insurance |
Citation: | [2015] ACTMC 2 |
Hearing Date(s): | 9 June 2015 |
DecisionDate: | 23 June 2015 |
Before: | Magistrate Morrison |
Decision: | See [52] – [53] |
Category: | Interlocutory application |
| Catchwords: Legislation Cited: Cases Cited: | CIVIL LAW – scope of s105 of the Road Transport (Third Party Insurance) Act 2008 – whether information “can be found out” from the insured. Road Transport (Third Party Insurance) Act 2008 (ACT) Insurance Contracts Act 1984 (Cth) Faraji v Dambarage and RACQ Insurance Limited [2012] QDC 137 Cameron v RACQ Insurance Limited [2013] QSC 124 |
Parties: | Jamie Dwyer (Applicant) Mile Stesic (First Respondent) Insurance Australia Ltd t/as NRMA Insurance (Second Respondent) |
Representation: | Counsel Mr D Crowe (Applicant) Mr K Rewell (Second Respondent) |
File Number(s): | AP 21 of 2015 |
MAGISTRATE MORRISON:
The application before the Court seeks an order requiring the second respondent to meet what the applicant says are its obligations under section 105(1)(b)(ii) of the Road Transport (Third Party Insurance) Act 2008 (“the Act”).
The application seeks no order against the first respondent. There is no suggestion that he has any notice of the application and he did not appear.
An oral application was made for leave to amend the order sought. That application was opposed and I said I would hear and decide the leave application at the same time as the application proper.
The contest can be shortly stated. The second respondent is the insurer of a motor vehicle driven by the first respondent when involved in a collision as a result of which the applicant has made a claim under the Act. Section 105(1)(b)(ii) imposes an obligation on the second respondent which can be relevantly summarised in these terms:
The respondent must give to the claimant, if the claimant asks for it, information that can be found out from the insured person about the circumstances of, or reasons for the motor accident.
The applicant has delivered to the second respondent an extensive list of questions seeking information from the first respondent. In submissions it was conceded that not all of them necessarily relate to the circumstances of or reasons for the accident, but nothing turns on that for present purposes.
The applicant says that the information it seeks can be found out by the second respondent from its insured and seeks orders directed to enforcing what it says is the obligation to provide the information.
The second respondent says that it has made efforts to obtain the information, that its insured has not co-operated and that it can do nothing to compel him to do so. It follows, according to the second respondent that, to the extent that section 105 imposes any obligation upon it, it is not in breach of that obligation because the information cannot be found out from the insured.
As I understood the submissions of Mr Rewell, acting for the second respondent, he raises a question as to whether section 105(1)(b) imposes any obligation whatsoever on the insurer to find out information from the insured. I think I can say that that submission was only faintly pressed and in the alternative. To the extent that any decision is required of me on that point, my conclusion is that the express obligation on the insurer to give the claimant information which can be found out from the insured carries with it, of necessity, a requirement that the insurer ascertain what can be found out. I return to that requirement later in these reasons.
Facts:
The evidence of the steps undertaken by the second respondent to find out information from the insured and the background to those steps is set out in the affidavit of Jessica Leigh Bristol filed 8 May 2015. Objection was taken to some parts of her affidavit and I ruled them inadmissible, but the facts on which the application is to be determined are not in dispute.
The motor vehicle collision giving rise to the claim occurred on 21 December 2013. Police were called to the scene. Statements were made to police by both drivers and two witnesses. The applicant and one witness (Mazaydeh) gave broadly similar versions. The insured and the second witness (West) gave versions which are broadly similar to each other but are in conflict with the applicant’s version.
The applicant submitted a claim. By letter dated 19 May 2014 to the second respondent the applicant’s lawyers made the request for information which is the subject of the application.
After the applicant submitted a claim, the second respondent engaged crash investigators. They provided a report to the second respondent dated 31 March 2014. The report includes the following:
We met with Mr Mile Sestic on a number of occasions. We identified him as being of Serbian background and requiring an interpreter. On 21 and 26 March 2014 we attempted to interview the insured driver with an interpreter present, however after initially agreeing to an interview he then declined to be interviewed on both occasions.
The report also says that a statement was obtained from the witness Mazaydeh which supported the applicant’s version of events and that the witness West declined to provide a statement.
A copy of the report was duly provided to the applicant’s lawyers.
The applicant’s lawyers continued to press for a response to their request, but it appears that no relevant action was taken by the second respondent until it instructed lawyers in April 2015 to respond to the application.
The second respondent’s lawyers wrote to the first respondent. A copy of the letter is in evidence. It encloses a copy of the letter from the applicant’s lawyers with the list of questions and tells the first respondent that a request has been made for them to be answered by way of statutory declaration.
The letter goes on to say:
We would be pleased to go through the questions with you and assist you with your statement and would be grateful if you would urgently telephone Ms Jessica Bristol of this office on [telephone number] to arrange a time to meet and discuss this matter.
The lawyers had that letter personally served on the first respondent by a process server on 22 April 2015. The process server includes the following comment in his affidavit of service:
Upon serving Mile Sestic with the abovementioned documents I observed that English did not appear to be his first language and that Mr Sestic appeared to have difficulty in understanding what I was saying; it was therefore necessary for me to repeat myself several times.
The affidavit of Ms Bristol goes on to deal with telephone contact and attempts at telephone contact with the first respondent.
She called his number on 4 May 2015 and left a message for him to call her. He rang her back later that day. A detailed file note was made of that conversation which speaks for itself. It is apparent that Ms Bristol impressed on the first respondent the importance of having the questions answered and was very accommodating in her offer to meet with the first respondent at any time and place convenient to him. The first respondent gave various excuses for not meeting with Ms Bristol.
That phone call ended on the basis that the first respondent would “think about it” and call Ms Bristol the following day. He did not do so.
The affidavit goes on to record other unsuccessful attempts by Ms Bristol to speak to the first respondent by phone on 6 and 7 May 2015.
Law:
The outcome of the application turns on what is meant by the expression “information that can be found out from the insured person…” where it appears in section 105.
Submissions proceeded on the basis that there is no relevant authority in this jurisdiction.
An equivalent obligation on an insurer does however appear in section 47(1)(b) of the Motor Accident Insurance Act 1994 (Qld) (the “Queensland Act”) and I was referred to authorities from that jurisdiction on that obligation.
The Queensland Act sets up a scheme for dealing with motor accident claims which is broadly similar to that in this jurisdiction and which has generally similar objects. Mr Rewell for the second respondent however makes an important point about what distinguishes the Queensland scheme from that in this Territory. In coming to that point I make some general observations about the nature of the third party insurance scheme as it operates in the Territory.
Under the scheme which is currently in operation in this jurisdiction (and in Queensland and other jurisdictions) policies of third party motor vehicle insurance are not insurance policies in the ordinary sense. By that I mean that they are not contracts of insurance taken out by an insured under which the rights and obligations of the parties are regulated by the terms of the contract. Were that the case the terms of the contract would almost certainly impose an obligation on an insured to co-operate with the insurer in a variety of ways, including as to the provision of information, when a claim is made.
The rights and obligations between an insurer and insured under what is described as a compulsory third party policy in the Act appear to be wholly governed by the terms of the Act. It may be that some benefits inure for the benefit of an insured under the terms of the insurance industry deed for which provision is made in section 9 of the Act but nothing turns on that for present purposes. It may be that some obligations in the nature of contractual obligations on the part of the insurer arise upon an insured choosing a third party insurer each year and paying a premium for cover, but there is no contract of insurance as such which imposes any obligations on an insured. There is therefore no obligation in contract for an insured to co-operate with an insurer when a claim is made.
The terms of the Insurance Contracts Act 1984 (Cth) do not apply to third party insurance.
That brings me to the point of distinction raised by Mr Rewell. The Queensland Act imposes an express obligation on the driver, person in charge and owner of a vehicle to provide any information about an accident that the insurer may reasonably require – see section 35. Failure to comply with such a request without reasonable excuse is an offence under the Queensland Act.
No such obligation on a driver, owner or person in charge of a vehicle appears in the legislation in this jurisdiction.
Mr Crowe for the applicant points to section 83 of the Act as providing some basis for obligation on the part of an insured but the section expressly refers only to an obligation to sign documents and the context – being a provision empowering the insurer to act for the insured in relation to any claim – further limits the reach of the section. I am not persuaded that section 83 imposes an obligation on an insured to provide to an insurer information sought by way of a request from a claimant under section 105.
Having made those observations I turn to the Queensland authorities.
The decision of Long SC DCJ in Faraji v Dambarage and RACQ Insurance Limited [2012] QDC 137 (Fariji) contains the most detailed analysis of the relevant legislative provisions. It also dealt with circumstances where an insurer was faced with non-cooperation by its insured.
His Honour refers to the obligation on an insurer to co-operate with a claimant and in particular to provide requested information and goes on to say this:
[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.
As already noted what his Honour describes as the effective right which is an adjunct to the insurers obligations is absent from the legislative scheme in this Territory.
In Faraji Judge Long SC agrees with the decision in Aabel v Blyth and Anor [2005] QDC 128 where his Honour Harrison DCJ had said that the appropriate focus must be on information that “can be found out from the insured person”.
Judge Long SC goes on to identify that the relevant consideration in any enforcement application is whether there has been any failure or default on the part of the insurer.
His Honour concluded in Faraji that the evidence before him did not establish that the requested information could not be found out from the insured. He went on to say:
[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.
[and later]
[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] 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”.
His Honour’s expressed concern to avoid reading words into the obligation imposed on an insurer (such as to take reasonable steps or the like) must be read in conjunction with his conclusion that 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. (emphasis added)
The distinction between consideration of the extent of the insurer’s obligation (such as to take reasonable steps or the like) on the one hand and consideration of whether there has been breach by reference to the sufficiency of the steps taken by the insurer may be seen by some as overly subtle. Nevertheless it keeps the focus on the words used in the section and upon consideration of what can be found out by the insurer from the insured.
In Faraji his Honour recognises, self evidently, that circumstances may permit an inference to be drawn of refusal by an insured to provide information in the absence of an express refusal.
The terms of the orders made by his Honour give some indication of his approach to the question of the sufficiency of steps taken by an insurer. The orders required the insurer to “directly engage” with the insured to obtain his responses to questions and included an order that the insurer provide the insured with the terms of section 35 of the Queensland Act “in outline of his statutory duty”. Again no such statutory duty exists in the Territory.
The Queensland authorities referred to in submissions included a decision of Applegarth J in Cameron v RACQ Insurance Limited [2013] QSC 124 but it does not add relevantly for present purposes to the jurisprudence in Faraji.
Consideration:
The steps taken by the second respondent to find out the information sought by the applicant have been significant. Presumably they could have been more timely but nothing turns on that for present purposes.
The crash investigators report refers to contact by the investigator on a “number” of occasions. The reference to identifying the need for an interpreter and then to two unsuccessful attempts to interview him with the interpreter indicates contact on at least 3 occasions.
The first respondent was personally served with the letter from the second respondent lawyers of 22 April 2015.
The record of the telephone call between the first respondent and Ms Bristol demonstrates that the first respondent was made aware of the importance of obtaining answers to the questions. I have already commented that Ms Bristol was very accommodating in proposing to meet whenever and wherever suited the first respondent – no doubt contemplating the hearing of this application.
The responses of the first respondent as recorded by Ms Bristol indicate evasiveness on his part and a clear reluctance to co-operate. It is true that he offered excuses for not making himself available rather than expressing an outright refusal to co-operate, but the excuses made carry with them a clear undertone of complete present and future unavailability on his part. Those responses are of course consistent with the first respondent’s earlier failure to co-operate with the crash investigators. His attitude to co-operation is further demonstrated by his failure to call Ms Bristol the day after the first phone conversation and his failure to return the call after a message was left on 7 May 2015.
I have considered the significance of evidence of the first respondent having limited English. The precise extent of his ability with the English language in either written or spoken form is unknown. There do not appear to be any observations made about language difficulties by the investigating officers in the police report. The crash investigator formed the view that an interpreter was required and the process server who served the lawyers letter of 22 April 2015 refers to having to repeat himself several times. Nevertheless the first respondent was working as a taxi driver at the time of the collision. He must have had some rudimentary grasp of the English language in spoken form to enable him to have done that work. Similarly he must also have had some grasp of the language in written form to enable him to have read maps, street signs or a GPS device. He returned Ms Bristol’s first call on 4 May 2015 after she had left a message bank message for him to return her call – again suggesting some grasp of the English language. In addition, the overall impression gained from a reading of the exchanges between the first respondent and Ms Bristol is not one of any misunderstanding or confusion on the first respondent’s part about what was being asked of him but rather simply of unwillingness to comply with that request.
The overwhelming inference is that the first respondent refuses to co-operate in providing answers to the questions posed by the applicant. The second respondent has directly engaged with the first respondent in an effort to have the information supplied. There is no statutory duty of which notice can be given to the first respondent to induce him to co-operate. There is no rational basis for concluding that any further or other steps by the second respondent will produce any different result.
In the end result I conclude that the information sought by the applicant cannot be found out from the first respondent. It follows that the second respondent is not in breach of its obligations under section105.
I would give leave to amend the originating application in the manner sought and I dismiss the amended application.
There is one last matter on which to record some comments. There is another point of distinction between the legislative schemes in Queensland and the Territory. In this jurisdiction section 113 of the Act deals with the consequences of a party failing to comply with obligations to disclose a document or information. It provides that the document or information cannot be used by the party in court proceedings based on the claim unless the court orders otherwise. I was told that no equivalent provision exists in the Queensland Act. It is not completely clear to me how section 113 would operate in practice. In this case the claimants request has been directed to the insurer and not the insured. Presumably that happens in most cases. There is a relevant failure on the part of the insurer only if the information not provided comes within the ambit of what can be found out from the insured. If there is no breach by an insurer then, at least on the face of the matter, the insurer would not be the party prevented from using the information in proceedings if the information becomes available. On the other hand if a claimants request is directed to an insured who fails to provide the information, then again, on the face of the matter, the insured is not the party which is prevented by the section from using the information in proceedings if the information becomes available.
The present application does not require me to consider the effect of section 113. I mention it only because despite tentative observations I may have made to the contrary in the course of submissions I have concluded that its existence in the legislative scheme in the Territory does not lend significant support to the argument pressed by either the applicant or the second respondent.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison. Associate: Anna Carlander Date: 23 June 2015 |
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