AAI Ltd v Spangers [2019] QDC 187

DISTRICT COURT OF QUEENSLAND CITATION: AAI Ltd v Spangers [2019] QDC 187 PARTIES: AAI LIMITED (applicant) v ADRIAN SPANGERS (respondent) FILE NO: BD3142/19 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 26 September 2019 DELIVERED AT: Brisbane HEARING DATE: 17 September 2019 JUDGE: McGill SC DCJ ORDER: 1. Application dismissed. 2. No order as to costs. CATCHWORDS: PERSONAL INJURIES – Motor vehicle accident – duty to cooperate with insurer – whether claimant failed to cooperate – whether insurer entitled to additional information – whether application premature – costs of application. Motor Accident Insurance Act 1994 s 37A, s 45(1)(b)(iv). Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 – considered. Suncorp Metway Insurance Ltd v Brown [2005] 1 Qd R 204 – cited. Suncorp Metway Insurance Ltd v Hill [2004] 2 Qd R 681 – considered. COUNSEL: R B Dickson for the applicant J M Harper for the respondent SOLICITORS: The applicant was not represented Sunshine State Compensation Lawyers for the respondent [1] This is an application by an insurer under the Motor Accident Insurance Act 1994 (“the Act”) s 50(1). The originating application seeks an order that the respondent claimant provide a completed additional information form, income tax returns for the -- 1 of 9 -- 2 2018 and 2019 financial years or in the alternative payslips and bank records showing the income received during that period, copies of all receipts for the out of pocket expenses occurred for the treatment of the injuries suffered by the respondent in the accident, signed authorities to Centrelink and Medicare Australia to enable the applicant to obtain copies of those organisations’ files on the respondent from 25 January 2014 to the present, and that the respondent answer the applicant’s questionnaire concerning non-accident related illnesses and injuries. All of this information had been sought by the applicant prior to filing the application. After the application was served, some material was provided by the respondent, but the application proceeded to a hearing at which the applicant pressed for certain specified additional responses from the respondent. As I indicated at the hearing, I was not prepared to order the respondent to provide any of those responses. There remains however a dispute about the question of costs. Background [2] On 13 June 2017 the applicant received from the respondent’s solicitors a notice of accident claim under the Act alleging that he had suffered injury in a single vehicle accident on 25 January 2017 while travelling as a passenger in a vehicle being driven by his partner on the Bruce Highway. The respondent was born in November 1966 and is now 53. He was at the date of the accident, and still is, a diesel fitter1 and it appears that he has generally been able to maintain that employment since the accident, though he is doubtful about his ability to continue it in the long term. At the time of the accident he was returning from hospital where he had had surgery to release a trapped nerve in his hand. [3] In a form used to report a traffic incident to police signed by the respondent the same day as the notice of claim, he described his injuries as a neck injury, a left shoulder injury, lower back pain and left hip pain. A medical certificate provided by a general practitioner dated 25 May 2017 also lists as clinical findings neck pain and stiffness, left shoulder pain, left hip and lower back pain. My impression from the material is that, apart from the problem with the shoulder, the respondent’s injuries have substantially subsided, but the problem with the shoulder has persisted and the respondent has had surgery on it on two occasions. [4] The solicitors for the respondent assert that at the moment it is too soon after the second surgery to determine whether the injury has stabilised, and if so, what the long term consequences will be, and that may well be right. Nevertheless, doing the best I can on the available material, and bearing in mind what was said by the senior claims advisor of the applicant,2 I am satisfied that the respondent’s claim is one which would be within the jurisdiction of this court, so that the court has jurisdiction to deal with the application.3 Additional information form [5] The Act s 37A permits an insurer to ask the claimant to provide additional information about the claim and the circumstances out of which it arises, and in particular to provide additional information about the injury the subject of the claim, as set out in 1 However he has been on sick leave since July 2018, because of problems with his shoulder and surgery on it: Affidavit of Paget filed by leave, para 5, 8. 2 Affidavit of Green filed 2 September 2019 para 27, 28. 3 The Act s 4: “court”. -- 2 of 9 -- 3 subsection (2). Subsection (3) requires the information to be provided on a form approved by the commission, to be completed and returned to the insurer within the time specified in subsection (4). Relevantly, the time in the present case was one month after the date of the request. On 20 July 2018 the applicant sought an additional information form from the respondent, so that time has certainly expired. However, on 5 September 2019 an additional information form dated the previous day was sent via email to the applicant. [6] In relation to this form, there were four complaints made. The first was that the answer to question 16 was unsatisfactory. Question 16 asked: “How do the injuries affect you now?” The answer given was: “Unable to say as I am off work on sick leave following surgery to my left shoulder.” There is nothing obviously false or unresponsive about that answer, even though in the circumstances it may not be very helpful to the applicant. If the respondent had surgery on his left shoulder, his current state is likely dominated by the after-effects of that surgery, which could easily mask any effects on him of the injury at that time. The question is directed to the situation “now”, that is when the form is completed. If as a result of the particular position the respondent finds himself in at the time when he is completing the form he is unable to identify what effect the injuries have on him because their effect is masked by something else, that seems to me to be a responsive and appropriate answer. The form warns that statements contained in the form must be true, correct and complete, and in such circumstances it would be quite inappropriate for a person to speculate about matters, or to say that a particular fact is or is not true, in circumstances where he does not really know that fact. There is in my view no substance to that complaint. [7] The applicant then complained that the respondent had not answered question 25. It is true that no answer was given to question 25, which asked: “Do you plan to start/go on rehabilitation?” In answer to 21 however, the respondent said that rehabilitation had been recommended to him, and in answer to question 23, that he had started rehabilitation in the form of physiotherapy. In context it was meaningless to ask the respondent whether he plans to start rehabilitation, and the question can only logically be seen as an alternative to question 23, if that question is answered in the negative. The applicant submitted that the question should be interpreted as if it had asked about starting or continuing with rehabilitation, but that is not what the form says. [8] The question “Do you plan to go on rehabilitation?” is perhaps a little obscure, but the explanation may be that this is a reference to a claimant who has a rehabilitation plan (the subject of question 22) being asked whether he is intending to go on that plan. In any event, question 25 on its face does not enquire whether the claimant is planning to continue with the rehabilitation which he has already started, and in my view, if the answer to question 23 is yes, question 25 becomes surplusage. [9] The next complaint was that the respondent had not specified gross pay and tax in question 39. It is correct that question 39, when asking about “standard weekly earnings”, has boxes for gross pay, tax and net pay, and the respondent has only stated a figure for net pay. Strictly speaking there has been a failure completely to answer that question. Although I have never been a personal injuries specialist, I have had, both at the bar and on the bench, many years experience in civil litigation, a significant part of which, particularly during my earlier years on the bench, consisted of personal injury litigation, but I can recall no occasion when it has been relevant for me to know both gross pay and weekly tax, in addition to a figure for net pay, when -- 3 of 9 -- 4 dealing with a claim for damages for personal injuries.4 The applicant has what information is relevant about the respondent’s ordinary weekly earning in his current employment, and as a matter of discretion I would not order the respondent also to provide figures for gross pay and tax. [10] The final complaint was that the different colour of the declaration page suggested the respondent did not sign the completed form and that the pages have been combined to form one document. I have noted that over the last 20 years there has been a greater and greater tendency for original documents not to be provided in litigation, but rather for copies, obviously photocopies, to be put in evidence, with neither party taking any objection to this. I have on occasions had cases where the outcome turned on the actual appearance of an original document, but, given the modern tendency to rely exclusively on copies, I doubt if that will ever again occur in litigation in Queensland. [11] In circumstances where the respondent’s solicitor has forwarded the document as a completed additional information form, I expect that the document would be as useful for cross-examination, if the matter ever gets to litigation, as if the original document had been provided in one piece. In practice an examination of the exhibit suggests that the form is one of those which can be completed online, and downloaded in completed form, thus ensuring that the completed form is in computer-generated type, rather than handwriting.5 From the point of view of someone who subsequently has to make use of the form, having the form completed in this way has an advantage in terms of legibility. What is executed by the party still has to be ordinarily a physical document, so even if the solicitors have available an electronic version of the completed form, it has to be married with a scanned version of the execution page when the form is forwarded. That strikes me as the obvious explanation for the appearance of the form as exhibited to the affidavit. The appearance of the document was probably dictated by the technology, and does not excite any suspicion in me. This objection was in my view without substance, and indeed petty. Other requests [12] With regard to the request for the 2018 and 2019 tax returns, by email dated 2 September 2019 the solicitors for the respondent forwarded a copy of the 2018 notice of assessment, and advised that the 2019 return had not been completed. They also forwarded a copy of the applicant’s payslip for the period ending 30 June 2019, which sets out details of his income for the month of June 2019, and year to date details, which incidentally provide the gross income, and the total amount deducted by way of tax, for the year. The fact that a notice of assessment for 2018 was provided demonstrates there must have been a tax return for that year, so that aspect of the request has not been responded to, but at the hearing counsel for the applicant did not press for a further response. [13] Authorities for Centrelink and Medicare, and a PBS authority, were provided by the respondent to the applicant in an email dated 5 September 2019, along with the additional information form. The next matter sought were copies of all receipts received by the respondent for out of pocket expenses. In the email of 5 September 2019 the respondent’s solicitors advised that “our client does not have any out of pocket receipts in his possession at this time”. The respondent can only provide 4 Besides, the relevant information was provided in another way, from a payslip. See [12] below. 5 Typewriters appear to have gone the way of steam engines. -- 4 of 9 -- 5 copies of receipts if he has the receipts for them to be copied. It is not clear that any particular claim is made for out of pocket expenses, but if one is, the absence of receipts may well prove a difficulty for the respondent rather than the applicant. If the respondent says that he does not have any such receipts, I am not going to order him to produce copies of them. Illness and injury questionnaire [14] The remaining matter was an order that the respondent provide a statutory declaration answering the applicant’s questionnaire concerning the respondent’s non-accident related illnesses and injuries. This was sought under s 45(1)(b)(iv) of the Act. That section provides: “(1) A claimant must cooperate with the insurer and, in particular— (b) must give information reasonably requested by the insurer about— . . . (iv) the claimant’s medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant.” [15] It will be immediately apparent that the obligation imposed by this provision is not unlimited. The information must be reasonably requested by the insurer, and, so far as the information is about the claimant’s medical history, it must be relevant to the claim. [16] In Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 the Court of Appeal said at [66]: “A fair reading of s 45(1)(b)(i)–(iv) of the Act compels the conclusion that it intends to cover the whole field of what an insurer who may become a defendant would want to know about the claim. In short form the sub-section covers: … • relevant medical history and any past claims for compensation. And this is hardly surprising if an appropriate offer of settlement is to be made either informally or, more importantly, a mandatory final offer. An insurer at this stage does not have the benefit of pleadings to define the ambit of the claim for damages or a statement of loss and damage providing the details of the quantum of the claim.” [17] In Suncorp Metway Insurance Ltd v Hill [2004] 2 Qd R 681 the Court of Appeal endorsed a broad view of the obligations under s 45(1)(b), and held that the fact that information was sought in the form of something like interrogatories, or even that it had the appearance of “fishing” questions, did not mean that the questioning was inappropriate. It was said at [31] that: “The beneficial purpose of the legislation requires that a common sense approach be taken both in framing questions intended to extract reasonably requested information and in answering them.” [18] It is clear therefore that in approaching the application of this section what matters is whether, in a common sense way, the information requested could reasonably be relevant to assist the insurer in the formulation of an appropriate response to the claim, -- 5 of 9 -- 6 particularly in this case in relation to the issue of quantum. A narrow or pedantic construction of the provision is not appropriate,6 but there still needs to be some relevant connection with that purpose. In my opinion, if the questioning becomes too wide, the process can be oppressive to a claimant, in a way which is likely to frustrate and delay the claim rather than assist in the speedy resolution of it. The important objective of the speedy resolution of claims requires that the process be workable and practical from the point of view of both parties involved in it. [19] One of the things provided under cover of the email of 5 September 2019 was a statutory declaration in response to the request for information about the previous illnesses and injuries. The applicant’s argument was that this declaration was inadequate as a response to the questions which had been asked in respect of that topic. The first question asked the state of health in a three year period immediately prior to the accident date, and it seems to me that that question was answered by the statutory declaration that has been provided. The second question was, “Did you suffer from any illnesses, injuries or other mental or physical complaints (other than minor matters) prior to the accident date?” There were also some consequential details sought about any such illnesses, injuries or complaints. That question, in my opinion, is too wide because the only matters covered by the paragraph in the section are matters which are relevant to the claim. [20] The fact that a person suffered say chickenpox or mumps as a child and has recovered would not be relevant to the claim, nor would the fact that the person suffered an inflamed appendix which required removal, or if the person when young had a sporting accident and suffered a fracture which has healed without lasting adverse effects. What can be legitimately asked about in my opinion are past matters which might be of some relevance to the assessment of quantum of the claim which the claimant is making, and the questions asked should be cast in such terms. That would include anything which was producing adverse consequences still current at the date of the accident, or anything which could reasonably foreseeably produce adverse consequences, other than trivial consequences, at some time in the future. [21] So if a person had suffered a fracture which involved a joint which had healed without adverse effects, but where there was a known increased risk of osteoarthritis in the future, that would be something which ought to be disclosed. However the question in the present case was not formulated in terms which were apt to confine its operation to things which might be relevant to the effect on the claimant’s life or any incapacity from pre-existing conditions had this subject accident not occurred, and hence relevant to the assessment of quantum in the formulation of an offer of settlement. In my opinion question 2 in the questionnaire which was forwarded was too wide, and accordingly there was no obligation on the respondent to answer it. I do not consider that the effect of the section is that, if a question is asked which is too wide, it produces an obligation on the claimant to answer a modified version of the question which would not be too wide. In my opinion, if the question goes beyond the bounds of what is reasonable in order to give effect to the statutory purpose, there is no obligation to answer it at all. [22] Question 3 sought any hospital, medical, therapeutic or other treatment in relation to various complaints other than minor matters prior to the accident date, and suffers from the same deficiency in that it too is too wide, essentially for the same reasons. 6 Suncorp Metway Insurance Ltd v Brown [2005] 1 Qd R 204. -- 6 of 9 -- 7 If a claimant when young had had an operation to remove an appendix, and developed a complication in the form of an infection which proved difficult to treat, so that the claimant was in hospital for some weeks, that would not be a minor matter but it would not be a matter which was of any continuing relevance to the assessment of quantum of damages in a potential action for damages for injuries suffered in a later motor vehicle accident. Yet on the face of this question it would have to be provided. The question was too wide. [23] The fourth question, asking about any other motor vehicle accidents, was answered on 4 September 2019, but in my view was also too wide. What matters is whether there has been a previous claim of compensation or damages, as indicated in the section. The mere fact that the person has been in an accident which did not produce any injury to him cannot be of relevance to the assessment of quantum and hence the objective to be served by providing this information. In a case where the claimant was not the driver of the vehicle, it could not even be relevant to the issue of whether the claimant was just a bad driver, a matter which might be of some relevance to the issue of liability. Again, the question was too wide, and in my view there was no obligation to answer it, or the consequential question 5 which sought particulars. This sort of minute examination of irrelevant detail is in my view an example of an oppressive question. [24] Question 6 was obviously a proper question, since it asked whether the claimant has ever made a claim for personal damages or compensation. I am prepared to read that as a claim for personal injury damages, though it would be better if the proper expression had been used in the question. The question has been answered, in a way which I suspect reflects the reality that the claimant may well have made claims for workers compensation under statute in the past, but the claimant could not recall the details. There is no reason to think that that was not a true answer, and if that is the true position, that is all a person in the position of the claimant can say. Question 7 was consequential, but in the circumstances it was not possible for the claimant to answer that question. [25] Question 8 sought details of any consequence of the accident experienced since the accident date, and that was answered. Question 9 sought particulars and they were generally provided, though the address of the surgeon and the dates of the surgery were not specified, nor the dates of the treatment with cortisone. The GP who referred the claimant to the surgeon was also not identified as a referring doctor, though the GP practice was identified. There has been therefore some deficiency, in the form of a lack of attention to detail, in the response to question 9. However, the information which was absent from the statutory declaration was generally information which was already held by the applicant; the applicant had already obtained a copy of the records of the general practitioner’s practice that had been involved in treating the applicant. [26] I acknowledge that in some circumstances the fact that information has already been obtained by the insurer will not be a bar to the obligation of the claimant to provide the information again, particularly in the form verified by a statutory declaration. In Suncorp v Hill (supra) this was identified as a legitimate forensic purpose of this statutory power of the insurer; however, that was a case where the information being sought was a statement of how the accident occurred, in circumstances where there had been inconsistent information about that matter already provided in other ways to the insurer. Here, the information required was essentially just for the assessment of damages, so that this really was an exercise in assembling relevant facts, rather -- 7 of 9 -- 8 than generating material which could well be of forensic advantage at a potential trial. On the whole therefore I do not think that there was any matter of significance which ought to have been stated in the response to the questionnaire which was not stated. [27] Question 10 asked whether the applicant had suffered any illnesses, symptoms or other mental or physical complaint of disability since the accident which was not a consequence of the accident. Potentially that could be seeking relevant information, in that any such extraneous event which would have interfered with the claimant’s general enjoyment of life or capacity to earn income, would be relevant to the assessment of quantum and hence the process of formulation on an appropriate offer of settlement. But again I think the difficulty with this question is that it is cast in terms which are too wide. It would cover, for example, colds which were an ordinary incident of life which had no particular adverse effect on the claimant. [28] The claimant in the present case said simply that he did not suffer from any of these things. The answer was insufficient in that it was a statement of the current situation, rather than a statement of whether that had been the situation during the whole of the period since the accident, but I think if there was any extraneous condition of this nature which had had any significant effect on quantum, it would have been something from which he was still suffering, and therefore would have been disclosed by an answer formulated by reference to the present. Question 11 was consequential on question 10, just seeking particulars. [29] Overall therefore the position with the questionnaire was that a number of questions which the applicant sought to enforce were in my view too wide, and in respect of those which were not too wide, generally speaking the relevant information was provided in the statutory declaration, though in some respects there was a lack of attention to detail in the responses. Nevertheless, I did not think that it was appropriate to make an order requiring any further detail to be provided, in the circumstances. This aspect of the application, which was to some extent pressed before me, was also one in which relief was refused. [30] Those were all the matters raised in the application. The only matters raised in the application which were pressed at the date of hearing, that is, were included in a draft order sought on behalf of the applicant at the hearing, were those in paragraph 2(a), (b)(iii), and (d) of the originating application. The practical outcome therefore was that no order was made in favour of the applicant on the hearing of the application. Costs [31] With regard to costs therefore the position is this. A good deal of information was sought in July last year, and not provided. The excuse, that the respondent was recovering from surgery and his injuries were not then stable and as improved as they were going to get as a result of the surgery, may well have provided a good reason for not obtaining expert medical opinion, particularly in a situation where in my experience such opinion is quite expensive to obtain, but did not provide an explanation or excuse for a failure to provide other factual material which was not dependant on the ability to conduct a meaningful independent medical examination of the respondent. The proposition that the whole claim was to be left in abeyance until it was possible to obtain such an investigation is not in my opinion consistent with the time limits provided under the Act for the supply of information, or the objective of the speedy resolution of claims. To the extent that the respondent’s -- 8 of 9 -- 9 advisers were insisting on a different approach, in my view that position was misconceived. [32] A number of things requested could and should have been provided promptly, but were not. Eventually, on 24 June 2019, a response was offered by 31 July 2019, but that did not occur. The originating application was filed on 2 September 2019, after notice had been given (on 20 June 2019) that an application to the court would be brought. I do not consider that this application was premature. The information sought could and should have been provided notwithstanding the continuing difficulties the respondent was experiencing with his shoulder. [33] This was not a situation where the applicant was insisting on the provision of an independent medical report. Even if a definite offer of settlement cannot be properly formulated until such a report is available, there is no reason to avoid any preparation for the process of formulating that offer until that stage has been reached, and there was nothing obviously inappropriate about investigating the various matters sought to be investigated by the letter of 20 July 2018 prior to that stage. Overall I consider that, subject to some qualification about the scope of some of the information sought, the applicant was justified in filing and serving the originating application. In the circumstances it is appropriate to depart from the general approach, that costs follow the event. [34] It does seem to me however that once the respondent had responded on 5 September 2019 with the material that was provided at that stage, the applicant should have accepted that and not sought to pursue further relief on the originating application. If that approach had been adopted, there would I think have been no good answer to the applicant’s claim for the costs of the application. That however was not the approach of the applicant, and the matter proceeded to a hearing before me where further relief was sought, unsuccessfully. In my view, legal costs incurred after 5 September 2019 in continuing to pursue the application, and in particular the costs of the hearing, were unjustified, and should not be recovered by the applicant; indeed, I think a reasonable case can be made for an order that the costs of the respondent leading up to the hearing should be paid by the applicant. Theoretically, the best position would seem to be that the costs incurred up to 6 September 2019 be paid by the respondent, but the costs incurred thereafter be paid by the applicant. However, that would give rise to a complicated process of assessment, and costs which could be set off against each other, and a more practical and broad brush approach in my opinion is simply to make no order as to costs. As a consequence, the order on the application is that it be dismissed, with no order as to costs. -- 9 of 9 --