Australia: Give and take - the duty to cooperate in resolving personal injuries claims

Introduction

The decision in Cameron v RACQ Insurance Limited [2013] QSC 124 is a useful reminder that the broad general duty upon claimants and insurers to cooperate with one another is not always confined to the particular matters stated in the legislation.

This case considered a provision in the Motor Accident Insurance Act 1994 (Qld) (MAIA). However, the Workers' Compensation and Rehabilitation Act 2003 (Qld) contains comparable provisions which could be similarly interpreted by a court.

The case

The applicant suffered a traumatic brain injury as a result of a collision with a truck whilst cycling to work. The accident occurred sometime between 5.30am and 6.02am. The applicant did not have lights on his bicycle and the truck driver claims he did not see him. The state of light at the time of the collision was a critical issue.

The truck driver made two mobile telephone calls to his employer very shortly after the incident. Pursuant to section 47 of the MAIA, the applicant requested information from the insurer of the vehicle (the respondent) about the telephone calls made by the truck driver, including production of the telephone records, or a signed authority enabling the applicant to obtain the records from the service provider.

The respondent denied the request on the grounds that it was outside the scope of section 47 of the MAIA as the records were not relevant to the circumstances of the accident or reasons for the accident. The respondent submitted that the documents were not in the insurer's possession and that disclosure of the records could result in the disclosure of certain irrelevant and/or private information.

The applicant sought orders to enforce the respondent's statutory duty to cooperate with the claimant under section 47 of the MAIA.

Decision

The matter was decided in favour of the applicant. In reaching this decision, Justice Applegarth found that information about the time of the telephone calls was information about the circumstances of the incident, specifically the time of the incident given that telephone calls were made very shortly after the incident, and in any event was required to be provided in accordance with the general duty to cooperate in section 47.

The court commented that the insurer's duty to cooperate would extend to information which is not in the insurer's possession but may be able to be found out from the insured person because the insured person knows of it, has documents in its possession that reveal it, or can obtain that information relatively easily.

The legitimate concern about the width of the request and the privacy of the driver might have been addressed by redacting records so that they were confined to a more limited period of time.

The provision of telephone records would enable parties to prepare for the compulsory conference, including obtaining appropriate expert advice with more reliable information about the precise time of the incident and, therefore, the state of any daylight and moonlight at that time.

Implications

In this decision, the Court emphasised the need for insurers and claimants to comply with their overarching duty to cooperate with one another in resolving personal injuries claims, and indicated that this duty may extend beyond disclosure of the specific information/documentation referred to in the legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.