Baring it all? Disclosure in
personal injuries claims
Meghan Rothery, Associate
11Page
October
2013
Trial School 2013
1
Overview
 The relevant legislation
 The duty to cooperate – WCRA & MAIA only
 Relevant documents
 Broadening the disclosure obligations of PIPA respondents
 Disclosure associated with respondent’s liability position
 Tips for practice
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The legislation
S 273 WCRA Object of pt 5
The object of this part is to facilitate the just and expeditious resolution of the real
issues in a claim for damages at a minimum of expense.
S 21 PIPA Object of Ch 2, Pt 1, Div 2
The purpose of this division is to put the parties in a position where they have
enough information to assess liability and quantum in relation to a claim
MAIA no specific purpose given to division. But refer back to S 3(e)
to encourage the speedy resolution of personal injuries claims resulting from
motor vehicle accidents
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The legislation
S 279 WCRA Parties to cooperate
• (1) The parties must cooperate in relation to a claim, in particular by—
(a) giving each other copies of relevant documents about—
i. the circumstances of the event resulting in the injury; and
ii. the worker's injury; and
iii. the worker's prospects of rehabilitation; and
(b) giving information reasonably requested by each other party about—
i. the circumstances of the event resulting in the injury; and
ii. the nature of the injury and of any impairment or financial loss resulting from the injury; and
iii. if applicable—the medical treatment and rehabilitation the worker has sought from, or been provided with, by
the worker's employer or the insurer; and
iv. the worker's medical history, as far as it is relevant to the claim; and
v. any applications for compensation made by the claimant or worker for any injury resulting from the same event.
…..
(6) In this section—
relevant documents means reports and other documentary material, including written statements made by the claimant,
the worker's employer, a contributor, or by witnesses.
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The legislation
S 47 MAIA – Duty of insurer to cooperate with claimant
1. The insurer must cooperate with a claimant and, in particular—
a)
b)
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must provide the claimant with copies of reports and other documentary material in the
insurer's possession about the circumstances of the accident or the claimant's medical
condition or prospects of rehabilitation; and
must, at the claimant's request, give the claimant information that is in the insurer's
possession, or can be found out from the insured person, about the circumstances of, or the
reasons for, the accident.
CQLA 2013
The legislation
S 27 PIPA Duty of respondent to give documents and
information to claimant
1.
A respondent must give a claimant—
a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the
claim—
i. reports and other documentary material about the incident alleged to have given rise to the personal
injury to which the claim relates;
ii. reports about the claimant's medical condition or prospects of rehabilitation;
iii. reports about the claimant's cognitive, functional or vocational capacity; and
b) if asked by the claimant—
i. information that is in the respondent's possession about the circumstances of, or the reasons for, the
incident; or
ii. if the respondent is an insurer of a person for the claim, information that can be found out from the
insured person for the claim, about the circumstances of, or the reasons for, the incident.
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Summary of duty/obligations
 WCRA & MAIA - Duty – to cooperate
 WCRA & MAIA - To provide information/documents about “the
circumstances of the incident”;
 PIPA - narrower. No duty to co-operate and requirement to
provide documents/information is limited to “the incident”
 There are other important differences between the sections, in
particular, the interplay between the disclosure sections which
we are discussing and the “nondisclosure” sections which
appear in each of the Acts.
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The duty to cooperate
 The duty to cooperate under the WCRA is mutually binding
on claimant and insurer
 Under MAIA – mutual obligation to cooperate (s45 places
duty upon claimant)
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McGuire v Woolworths QSC
 Unreported decision of Justice Peter Lyons from 25
September 2009
 Justice Lyons gave a wide interpretation of the duty to
cooperate in the particular factual circumstances of the
case
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Romig v Tabcorp Holdings
 Unreported decision of Justice Atkinson, 24 July 2012
 Claimant injured in the course of their employment as a
roulette dealer at Jupiters Casino
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Romig v Tabcorp Holdings
 The matter was litigated and subject to a joint expert report
 Questions pursuant to s 279 were asked, and response
refused on grounds that the matter was litigated, and that
the questions were outside the scope of s 279
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Romig v Tabcorp Holdings
 Claimant brought an application
 The need to respond in litigation was conceded.
 The respondent contended that some of the questions did
not relate to the “circumstances of the event”
 The application proceeded solely as to the scope of s279
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Romig v Tabcorp Holdings
 The claimant sought to rely on McGuire
 The respondent said that any obligations imposed by s
279 should be given a narrow interpretation, relying on
Haug v Jupiters Casino, a PIPA case.
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Romig v Tabcorp Holdings
 The court specifically rejected the narrow interpretation of
disclosure in Haug v Jupiters Casino as PIPA does not
impose any duty to cooperate
 The respondent was ordered to answer wide questions
including in relation to:
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Romig v Tabcorp Holdings
 Previous complaints of neck or back pain by roulette
dealers and “chippers” in the 3 years before the claimant’s
injury
 The duties that those who had complained of neck or back
pain were undertaking when they suffered the neck or
back pain
 Whether the employer had an injury reporting system, and
if so to provide those records
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Romig v Tabcorp Holdings
 Any injuries to other roulette dealers including details of
their duties
 Details of ergonomic and risk assessments undertaken
 Details of any rotation of duties
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Kidd v Toll North Pty Ltd
 Unreported decision of Justice Peter Lyons, 7 August 2012
 Decisions in McGuire and Romig followed
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Kidd v Toll North Pty Ltd
 The claimant sought his costs of the application
 Justice Lyons allowed the claimant to recover one half of
his costs
 S 318C was held to only apply to interlocutory applications
once litigated
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Kidd v Toll North Pty Ltd
 The claimant only recovered one half of the costs as for
those questions that fell within s 279(1)(b), the 21 days to
respond under s 279(4) had not expired
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Macdonald v Teys Australia Distribution
Proprietary Limited [2013] QDC 139
•
Request for documents and disclosure made pursuant to Section 279 of the Act.
•
Samios DCJ at paras 15-16:
I have also examined the questions, and I have come to the view that section 279 of the Act is wide
enough to require answers to be given. That is, I consider the authorities show there is a broad duty
to cooperate. In any event, I consider that rule 250 of the Uniform Civil Procedure Rules is also a basis
for the ordering of that information to be provided. I do consider the provision of that information is
necessary to decide issues in these proceedings.
In addition, I consider the documents sought should also be provided. I again proceed under section 279
subrule (1) paragraph (a). If that is not wide enough, then I would proceed under paragraph (b), giving it a
broad definition. I consider that on a statutory construction basis. The obligation is upon the parties to
cooperate in relation to a claim, and it is not limited to what is set out in subparagraphs (a) and
(b), because the section says in particular by those matters mentioned in subparagraphs (a) and
(b).
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Cameron v RACQ Insurance [2013] QSC 124
• Considered a request for documents under s 47 of the
MAIA
•
This provision appears in legislation which has as one of its principal objects the speedy resolution of
personal injury claims resulting from motor vehicle accidents, and to avoid their determination by
courts wherever possible. The legislature has imposed a broad general duty upon a claimant to
cooperate with an insurer and a broad general duty upon an insurer to cooperate with a claimant.
The general duty of the insurer to cooperate is not confined to the particular jstated in s 47(1)(a) and
(b). However, the provision of the documentary material referred to in subsection 47(1)(a) and the
information referred to in subsection 47(1)(b) are important, practical examples of the duty to
cooperate with a claimant.
•
Documents (mobile telephone records) were required to be disclosed
•
The request relates to the time of telephone calls as a fact highly relevant to the time of the incident
and the natural light at that time. That is a reasonable request.
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Cameron v RACQ Insurance [2013]
QSC 124
•
“Information of that kind which is not in the insurer’s possession may be able to be found our 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. For example, records held by an entity which
was engaged by the insured person at the time an accident occurred may record details of the
accident and it might be reasonable to expect that information be found out form the insured person
by asking the insured person to request the information from its agent. On the other hand, it may not
be reasonable to expect the insured person to make inquiries of complete strangers…The issue is
whether there is a duty under s47 in the particular circumstances of this case”.
•
Did not matter that the documents were not in the insured’s possession. “But this simply means that
the request does not engage the specific duty referred to in s47(1)(a)….” The Court found that the
employer or driver could request the telephone records from the service provider.
•
That the documents will have the effect of corroborating or contradicting the driver’s evidence about
not using his mobile phone at the time of the accident is incidental. s 47 does not extend to every
piece of evidence which might corroborate other information.
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Dwyer v Framemaster (Qld) Pty Ltd
[2013] QDC 150
• A application for disclosure relying upon the duty to cooperate under s279 of the WCRA was declined
• “The orders sought by Mr Dwyer would compel disclosure
of material that does not relate to the circumstances of the
event which caused the injury and which…is not directly
relevant to any issue in the proceeding”
• Would an application for information about whether
previous injuries had occurred as a result of the machine
jamming have succeeded?
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S 279(1)(a) – ‘Relevant documents’
 Definition broadens application of s279
 S279(6) relevant documents means reports and other
documentary material, including written statements made
by the claimant, the worker’s employer, a contributor, or by
a witness
 MAIA and PIPA only refer to “reports and other
documentary material”
 Interplay with s284 – requirement to disclose relevant
documents prevails over legal professional privilege
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Broading the disclosure obligations of
PIPA respondents
• Applicable where a Workers’ Compensation respondent
has served a contribution notice upon a third party
• Contributor’s obligations under rule 279 invoked
• S279(3A) “an insurer and a contributor must give each
other copies of the relevant documents within 21 business
days after the insurer gives the contributor a contribution
notice”
• (3B) “A contributor must give the claimant copies of the
relevant documents within 21 business days after the
insurer gives the contributor a contribution notice”
• S33 WCRA definition of party includes a contributor
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CQLA 2013
Disclosure associated with
respondent’s liability position
Another angle to obtain otherwise non-discoverable
material
•
•
•
•
•
s20 PIPA – Respondent must attempt to resolve claim
s41 MAIA – Insurer must attempt to resolve claim
s281 WCRA – Parties to attempt to resolve claim
All contain an obligation to provide “material”
Liability response/written offer, must be accompanied by a copy of
medical reports, assessments or cognitive, functional or vocational
capacity, or other material in the offerer’s [respondent’s] possession,
that may help the person to whom the offer is made make a proper
assessment of the offer.
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Watkins v State of Qld [2007] QCA 430
•
•
•
•
Involved an application by the plaintiff for the disclosure of:
 Letters from the State’s solicitor to Prof MacLennan; and
 File-notes, minutes or memoranda created by the State’s solicitors
recording a telephone conference with Prof MacLennan
Court of Appeal held that the documents were liable to be disclosed pursuant
to S 20(3) – documents that may help the claimant make a proper
assessment of the offer made by the respondent which was nil.
S 20(3) and s 30 (which deals with docs not required to be disclosed) must be
given a harmonious operation and the latter cannot be intended to cancel the
former
The key was that the document was found to be brought into existence for
compliance with s 20.
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Practical tips
 Requests for documents and information under the Acts
are critical to proving your case
 For workers’ compensation matters, the nature of the
documents and information should be front of mind when
drafting your Notice of Claim
 You can use the disclosure provisions to draw out
information which might actually influence the liability
response. At the least, it will assist in defining the issues in
dispute for the compulsory conference
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CQLA 2013
Practical tips
 Sensible to draft your s 279 request at the same time that you draft
your Notice of Claim
 Consideration of the ‘duty to cooperate’ will still require consideration
of the concept of ‘reasonableness’ .
 In Workers’ Compensation matters, you should ensure that your
allegations of negligence are set out with sufficient particularity so that
the nature of the duty, and how it relates to your case, is clear.
 The concept of reasonableness will generally be met where the
information will reasonably assist the parties in preparing for and
understanding the issues in the case in the lead up to the compulsory
conference
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Practical tips
 Service of your disclosure request under the Acts should
be made immediately on receipt of notice of compliance
 The respondent will generally start to investigate your
claim on receipt of the claim– delivery of your questions
prior to them briefing factual investigators, or meeting with
employers and insured parties will ensure your questions
are responded to, and the issues narrowed
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CQLA 2013
Practical tips
 Any request for information or documents not falling within the specific
subsections of s279 of the WCRA or s47 of the MAIA should be
prefaced with “The respondent is requested to cooperate by…”
 Be clear about your request falling within the relevant section and
ensure you allow the other side the statutory time frame to respond
 Where appropriate, rely upon the duty to co-operate in requesting precourt inspections of premises/systems of work and to get information
from a third party which it is reasonable to expect the respondent to
obtain
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Baring it all? Yes please.
Questions?
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