What was this case about?

The ACT Court of Appeal in Jefferson-Taite v Lewis [2016] ACTCA 19 (Jefferson-Taite) in June 2016 reviewed a decision of Associate Justice Mossop which ruled on the service of a 'required document' both before and after court proceedings had commenced under the Road Transport (Third Party Insurance) Act 2008 (ACT) (Act). Under sections 104, 105 and 106 of the Act, the parties to a motor accident claim must give to the other a copy of each 'required document'. These provisions differ from the court rules which govern service of documents obtained for court proceedings, where legal privilege may prevent the other party from obtaining a document, and other rules that govern the service of documents. In Jefferson-Taite :

  • on 7 September 2010, the plaintiff was involved in a motor vehicle accident;
  • on 3 April 2014, the plaintiff began court proceedings against the driver and insurer of the vehicle at fault;
  • on 21 April 2015, the plaintiff attended a medical examination arranged the insurer and a report was prepared;
  • the insurer did not intend to rely on the report in the proceedings; and
  • the plaintiff sought a copy of the report, which was refused on the grounds of client legal privilege.

The question considered by the court was whether the requirement to exchange 'required documents' as set out in the Act applied to a report created after court proceedings had begun.

What is a required document?

A 'required document' is defined in section 102 of the Act as:

  • a report, or other document, about the motor accident for the motor accident claim;
  • a report, or surveillance film, about the claimant's medical condition or prospects of rehabilitation; and
  • a report, or surveillance film, about the claimant's cognitive, functional or vocational capacity.

What did the courts decide?

Mossop AJ concluded that the obligations in sections 104 and 105 of the Act apply to the parties both before and after the commencement of court proceedings and applied to the report. This meant that if a document comes into existence after court proceedings have commenced, the party receiving it must still give it to the other party notwithstanding that the document may otherwise be privileged or governed by different rules for court proceedings.

The Court of Appeal took a different view, concluding that the provisions in the Act dealing with the exchange of required documents did not apply to documents coming into existence after commencement of court proceedings, so that service of those documents were governed by the court rules not sections 104 and 105 of the Act.

The Court of Appeal after considering the objects of the Act, concluded that the obligation to give documents to the plaintiff under section 105 did not apply to this report because the report was prepared and came into the insurer's possession after the plaintiff brought court proceedings. It took the view that Parts 4.2 4.8 of the Act only apply to pre-court proceedings and once court proceedings are filed documents subsequently created are governed by existing court practices and procedure.

Therefore, the obligation to exchange all 'required documents' under the Act applies only to documents that come into existence prior to the commencement of court proceedings. The obligations under section 104, 105 and 106 of the Act do not apply to documents that come into existence subsequent to the commencement of court proceedings, the exchange of those documents being governed by the court rules.

Discussion on section 97 of the Act

The Court of Appeal also made passing reference to Section 97 of the Act which imposes obligations on a respondent who receives a motor accident claim to, within six months of receipt:

  • take any reasonable steps necessary to find out about the motor accident for the motor accident claim
  • tell the claimant whether liability is admitted or denied;
  • make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding for the motor accident claim against the respondent; and
  • either make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis

on which the offer, or counteroffer, is made or settle the motor accident claim by accepting the offer made by the claimant.

The comments by the Court of Appeal about section 97of the Act make it clear that the court has a clear expectation that insurers will follow and comply with the requirements of section 97 so that the intent of the Act to bring about quick and early resolution of claims is achieved. Insurers should be mindful of this obligation when managing motor accident claims.