Smale v Sprott - [2003] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

Smale v Sprott & Anor [2003] QSC 254

PARTIES:

LUKE KEVIN SMALE
(plaintiff)
v
ROBERT PHILLIP SPROTT
(first defendant)
NOMINAL DEFENDANT
(second defendant)

FILE NO/S:

S1224 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

11 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2003

JUDGE:

Wilson J

ORDER:

Application is dismissed with costs.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where plaintiff claims damages for injuries sustained in a motor vehicle accident – where application for declaration of non-compliance with s 37 Motor Accidents Insurance Act 1994 (Qld) and for order that non-compliance be remedied – where inconsistencies between information in s 37 notice and other evidence – whether notice satisfied s 37

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where application by second defendant to obtain copies of witness statements or names and addresses of witnesses and substance of evidence – where s 45 Motor Accidents Insurance Act 1994 (Qld) imposes duty on claimant to cooperate with insurer – where duty to give information reasonably asked by insurer about “circumstances of the accident” – where s 48 Motor Accidents Insurance Act 1994 (Qld) preserves legal professional privilege – whether legal professional privilege abrogated

Motor Accident Insurance Act 1994 (Qld), s 37, s 45, s 48

Motor Accident Insurance Regulation 1994 (Qld), s 10

RACQ-GIO Insurance Limited v Ogilvie [2002] 1 QdR 536, referred to
Lau v WorkCover Queensland [2003] 2 QdR 53, cited
Baker v Campbell (1983) 153 CLR 52, cited
Nagan v Holloway [1996] 1 QdR 607, cited
Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63, cited
Cockerill v Collins [1999] 2 QdR 26, cited

COUNSEL:

KN Wilson SC for the applicant/second defendant
JB Rolls for the respondent/plaintiff

SOLICITORS:

McInnes Wilson for the applicant/second defendant

Mullins & Mullins for the respondent/plaintiff

WILSON J: The plaintiff claims damages for personal injuries sustained in a motor vehicle accident. This is an application by the second defendant to obtain copies of witness statements taken by the plaintiff’s solicitors or alternatively for the names and addresses of such witnesses and the substance of their evidence.

The plaintiff and the first defendant were friends who were in each other’s company for several hours before the accident, which occurred at about 4:45 am on Sunday 28 February 1999 on the Bruce Highway at Mango Hill. The plaintiff was a passenger in a Holden Commodore sedan driven by the first defendant which ran off the carriageway and collided with a tree before coming to rest. The accident is alleged to have been caused by the negligence of the first defendant. The plaintiff sustained the following injuries -

(a) severe burns and crush injuries to both lower limbs below the knees;
(b) bilateral…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QSC 254
Decision Date: 11 August 2003

CaseChat Overview and Summary

The case of Smale v Sprott involved the plaintiff, Smale, seeking damages for injuries sustained in a motor vehicle accident. The primary defendants were Sprott, the driver of the vehicle, and his insurer. The dispute centred on issues of compliance with compulsory insurance legislation in Queensland, specifically under the Motor Accidents Insurance Act 1994 (Qld). The court was required to determine whether the insurer's notice of non-compliance with section 37 of the Act was valid and whether the insurer was entitled to obtain certain information from the plaintiff under section 45 of the Act. The case also considered whether legal professional privilege could be overridden in this context.

The court examined whether the notice provided by the insurer to the plaintiff complied with the requirements of section 37 of the Motor Accidents Insurance Act 1994 (Qld). This involved assessing whether the notice sufficiently highlighted inconsistencies between the information provided in the notice and other evidence. Additionally, the court had to consider the scope of the duty imposed on the claimant under section 45 of the Act to cooperate with the insurer, including the extent to which this duty extended to providing witness statements and information about the circumstances of the accident. The court also evaluated whether the insurer's right to obtain this information was limited by section 48 of the Act, which preserves legal professional privilege.

In its decision, the court found that the insurer's notice of non-compliance did not adequately address the inconsistencies between the information provided and other evidence, thereby failing to satisfy the requirements of section 37. The court further determined that the duty to cooperate with the insurer under section 45 did not extend to breaching legal professional privilege as protected by section 48. The court held that the insurer's application for witness statements and the substance of evidence was not permissible under the Act. Consequently, the court dismissed the application with costs.

The court's ruling underscores the importance of precise compliance with statutory requirements in insurance notices and the preservation of legal professional privilege in the context of motor vehicle accident claims. The final orders of the court dismissed the insurer's application with costs, affirming the rights of the plaintiff under the legislative framework.

Orders

Orders of the court

Application is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smale v Sprott & Anor [2003] QSC 254
PARTIES:	LUKE KEVIN SMALE (plaintiff) v ROBERT PHILLIP SPROTT (first defendant) NOMINAL DEFENDANT (second defendant)
FILE NO/S:	S1224 of 2000
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	11 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2003
JUDGE:	Wilson J
ORDER:	Application is dismissed with costs.
CATCHWORDS:	INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where plaintiff claims damages for injuries sustained in a motor vehicle accident – where application for declaration of non-compliance with s 37 Motor Accidents Insurance Act 1994 (Qld) and for order that non-compliance be remedied – where inconsistencies between information in s 37 notice and other evidence – whether notice satisfied s 37 INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where application by second defendant to obtain copies of witness statements or names and addresses of witnesses and substance of evidence – where s 45 Motor Accidents Insurance Act 1994 (Qld) imposes duty on claimant to cooperate with insurer – where duty to give information reasonably asked by insurer about “circumstances of the accident” – where s 48 Motor Accidents Insurance Act 1994 (Qld) preserves legal professional privilege – whether legal professional privilege abrogated Motor Accident Insurance Act 1994 (Qld), s 37, s 45, s 48 Motor Accident Insurance Regulation 1994 (Qld), s 10 RACQ-GIO Insurance Limited v Ogilvie [2002] 1 QdR 536, referred to Lau v WorkCover Queensland [2003] 2 QdR 53, cited Baker v Campbell (1983) 153 CLR 52, cited Nagan v Holloway [1996] 1 QdR 607, cited Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63, cited Cockerill v Collins [1999] 2 QdR 26, cited
COUNSEL:	KN Wilson SC for the applicant/second defendant JB Rolls for the respondent/plaintiff
SOLICITORS:	McInnes Wilson for the applicant/second defendant Mullins & Mullins for the respondent/plaintiff