Suncorp Metway Insurance Ltd v Hill - [2004] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION: Suncorp Metway Insurance Ltd v Hill [2004] QCA 202
PARTIES: SUNCORP METWAY INSURANCE LIMITED ACN 075
695 966
(applicant/applicant)
v
EMILY MAREE HILL
(respondent/respondent)
FILE NO/S: Appeal No 9790 of 2003
DC No 2805 of 2003
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil)
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 11 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 2 April 2004
JUDGES: McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS:

1. Leave to appeal be granted and the appeal allowed, and in lieu of the orders made on 3rd October 2003, order that the respondent Emily Maree Hill give Suncorp Metway Insurance Limited such information as was reasonably requested by it in the questions delivered by it to the respondent by letter dated 9 December 2002
2. That the applicant pay the respondent’s costs of the appeal assessed on the standard basis
CATCHWORDS: INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – duty of claimant to give information reasonably requested by insurer – effect of s 37A Motor Accident Insurance Act 1994 (Qld) on obligation to give information pursuant to s 45 - whether information sought by insurer was reasonably requested
Motor Accident Insurance Act 1994 (Qld), s 37, s 37A, s 45
Motor Accident Insurance Regulation 1994 (Qld), s 10
Adam P Brown Male Fashions Ltd v Philip Morris Inc (1981)
148 CLR 170, cited
Gitsham v Suncorp Metway Insurance Limited [2002] QCA
310; [2003] 2 Qd R 251, cited
Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441;
[2001] 2 Qd R 265, cited
Ridolfi v Rigato Farms Pty Ltd [2000] QCA 292; [2001] 2 Qd
R 455, cited
COUNSEL: W Sofronoff QC, with R Green, for the applicant
J Logan SC for the respondent
SOLICITORS: The applicant appeared on its own behalf
Kerin & Co for the respondent

McPHERSON JA: I have read the reasons of Jerrard JA for allowing this appeal. I agree with his Honour’s reasons and with the orders that he proposes.
JERRARD JA: This proceeding on appeal is an application by Suncorp Metway Insurance Limited for leave to appeal against a decision given on 3 October 2003 by a learned judge of the District Court. That application sought a declaration pursuant to s 50 of the Motor Accident Insurance Act 1994 (Qld) that the respondent Emily Hill was obliged to provide further information “in the nature of answers to the questions delivered by” it to Ms Hill, described in the application as delivered pursuant to s 45 of the Act under cover of correspondence from Suncorp dated 9 December 2002. The application also sought an order that Ms Hill answer those questions by way of a statutory declaration and within 14 days.
The applicant submits in this Court that the proceedings both here…

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: [2004] QCA 202
Decision Date: 11/06/2004

CaseChat Overview and Summary

The case of Suncorp Metway Insurance Ltd v Hill involved a dispute between the insurer, Suncorp Metway Insurance Ltd, and the insured, Emily Maree Hill. The dispute arose from a motor vehicle accident where Ms Hill was injured, and she subsequently sought damages from Suncorp. The key issue before the court was whether Ms Hill was obligated to provide additional information to Suncorp beyond what was initially requested, specifically whether the information sought by Suncorp was reasonably requested under the Motor Accident Insurance Act 1994 (Qld). The court had to determine the extent of Ms Hill's duty to provide information to Suncorp and whether the insurer had complied with statutory requirements in requesting that information.

The legal issues primarily revolved around the interpretation and application of sections 37A and 45 of the Motor Accident Insurance Act 1994 (Qld). Section 37A pertains to the procedure for obtaining additional information from a claimant, while section 45 imposes a general duty on claimants to provide information to insurers. The court considered whether Suncorp's request for additional information was made in accordance with section 37A and whether the information requested was reasonably needed given the context and the information already available to Suncorp.

In its judgment, the court found that Suncorp had not followed the statutory process outlined in section 37A for requesting additional information. The court held that Ms Hill's obligation to provide information was contingent upon Suncorp's compliance with the statutory requirements, which had not been met. Additionally, the court determined that some of the information requested by Suncorp was either already provided by Ms Hill, irrelevant, or of a fishing nature. The court also noted that Suncorp already possessed substantial information, including interviews, vehicle damage reports, and loss assessor's reports, which were sufficient to make an informed decision on the claim. Consequently, the court concluded that the insurer's request for additional information was not reasonable under the circumstances.

The final orders of the court granted leave to appeal and allowed the appeal, directing Ms Hill to provide Suncorp with the information reasonably requested in its questions delivered by letter dated 9 December 2002. The court also ordered Suncorp to pay the respondent's costs of the appeal assessed on the standard basis.

Orders

Orders of the court

Leave to appeal be granted and the appeal allowed, and in lieu of the orders made on 3rd October 2003, order that the respondent Emily Maree Hill give Suncorp Metway Insurance Limited such information as was reasonably requested by it in the questions delivered by it to the respondent by letter dated 9 December 2002

That the applicant pay the respondent’s costs of the appeal assessed on the standard basis

Background

Background to the litigation

The applicant submits in this Court that the proceedings both here and in the District Court raised matters of significance for insurers and legal practitioners acting in proceedings under the Act, and the proper application of various of its provisions. The respondent contends that the proceedings below and in this Court are in respect of the exercise of a judicial discretion in respect of a matter of practice and procedure under that Act, and that this Court would loath to grant leave.1 Background matters The respondent was injured in a motor vehicle accident on 9 July 2002, when the vehicle that a Mr Con Lucas was driving on the South East Freeway collided with the rear of a vehicle she was driving. On 17 July 2002 Ms Hill executed on page 6 thereof an eight page standard form document, giving timely notice in accordance with s 37 of the Act to Suncorp as the compulsory Third Party Insurer of Mr Lucas under Part 3 of the Act. In answer to the question appearing on the form “who caused the accident and why”, the response appears “Con Lucas. Driving without due care and attention - driving too fast”. In the section headed “Describe what happened”, the answer appears: “Unit 2 was travelling south along South East Freeway, going past Greenslopes bus (two illegible words on the photocopied form). Approximately 300m before Marshall Road exit unit 2 was travelling at 100 kmh and about to change lanes from right to middle lane when she was hit from behind by unit 1 who came up behind unit 2 and pushed her car onto the guard rail”. The standard form asks that the figure “1” be used to describe the vehicle that caused the accident. Those answers given by or on behalf of Ms Hill (they are handwritten and her signature is witnessed by a person in her present solicitor’s office) describe a collision occurring when Ms Hill was travelling at 100 kmh and Mr Lucas was obviously travelling faster, and by inference significantly in excess of the permissible speed. Ms Hill gave a different account in a tape-recorded conversation with a police officer investigating the collision in July 2002. She told that officer that: “I was going along, I was doing the speed limit in the fast lane and I indicated to go left into the middle lane and then I don’t know whether my tyre blew but the car hit the guard rail and then someone hit me up the bum. I blanked out for a second and didn’t realise what had happened. I turned around and saw that a car had hit me. I thought I had just hit the guard rail.” In answer to the question “You said that you think your tyre blew, how was that?” she replied “I couldn’t steer or move, I don’t know. I have not had a blow out before”. In answer to another question, she said: “I’m pretty sure that it blew before I hit the guard rail”. And when asked if anything had happened to the steering wheel prior to her collisions with the guard rail, she said “I can’t really remember but I tried to pull the car away from the rail and I couldn’t”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As was observed in the principal judgment in Gitsham7 and in the principal judgment of this Court in Horinack v Suncorp Metway Insurance Ltd [2001] 2 Qd R 265 at [13], one of the stated8 and principal objects of the Act is to bring about the speedy resolution of personal injury claims resulting from motor vehicle accidents, and thus to avoid their determination by courts wherever possible. No doubt to that end, the amendment Act introduced a division 5A, providing for a compulsory conference of the parties before a claimant brings an action for damages in a court, and providing for the exchange of mandatory final offers if the claim is not settled at that conference. Mandatory offers have significant costs consequences in any subsequent litigation. The judgment under challenge The object of avoiding recourse to court proceedings has not been the subject of outstanding achievement in this claim. The learned judge who dismissed Suncorp’s application considered that it had chosen not to comply with s 37A of the Act when seeking additional information about the circumstances out of which the claim arose; the learned judge considered that s 37A, and regulation 10A and that approved additional information form, were the means the Parliament had provided by which an insurer might obtain that additional information. The judge held that Ms Hill’s mandatory obligation to “complete and return” that form (imposed by s 37A(3)) could not be the subject of compliance when the form had never been sent. Accordingly, Ms Hill had not failed to comply with any relevantly imposed duty. The learned judge also held that if the duty imposed by s 45 was quite independent of that imposed by s 37A, then the information sought in the questions asked by Suncorp was not information reasonably requested by it. The judge held that was because what was reasonable was to be judged objectively and in the light of the insurer’s knowledge derived from the claimant, the driver or owner of the insured vehicle (the driver or owner is obliged by s 35 of the Act to provide any information about an accident which an insurer may reasonably require within one month after receiving a request for it) and other sources, such as the police (an obligation is imposed by s 34 upon a person who proposes to make a motor vehicle accident claim to ensure that appropriate notice of that has been given to a Police Officer). The learned judge considered that some of the questions Suncorp wanted answered were either already answered by Ms Hill, some were irrelevant or immaterial, and some were patently of a fishing nature. Further, since Suncorp had denied liability for the incident, the learned judge had great difficulty in seeing why any need continued to exist for answers to those questions. Finally, and independently of the other expressed reasons, the learned judge was firmly of the view that the material already possessed by Suncorp, which included the tape- recorded interviews with Mr Lucas and Ms Hill, the file Suncorp possessed of the damage to Ms Hill’s vehicle (it being by coincidence the property insurer of the vehicle she was driving), and the loss assessor’s report it had received, was sufficient to paint a very good picture of the incident, from which a decision could be made by Suncorp on the chance that Ms Hill would succeed in establishing liability in it. Resolution of this application for leave

Ratio Decidendi

Legal Principle Established

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