Cameron v RACQ Insurance Limited  QSC 124
A Claimant’s request for an Insured Driver’s telephone records pursuant to Section 47 Motor Accident Insurance Act 1994 (Qld) (‘MAIA’) has been enforced by Applegarth J of the Supreme Court of Queensland. The decision is one of a number of recent Judgments requiring Insurers to be diligent in complying with their duty to cooperate with the Claimant.
The claim was brought with respect to a motor vehicle accident that occurred on 26 May 2008 in which the Claimant was struck by a truck whilst cycling to work. There was conflicting evidence as to the exact time of the accident, which occurred at some time between 5:30 and 6:02 am. The Claimant did not have lights on his bicycle and the driver of the truck did not see him.
The exact time of the accident was critical as it related to the state of light at the time of the collision. Due to his severe injuries, the Claimant was unable to give evidence about what occurred on the day of the accident, however the Insured Driver’s employer provided a statement that indicating he received a call from the Insured Driver shortly before 6:00 am. 10 minutes later the Insured Driver made a second telephone call advising him of the incident.
As the telephone records would have been accurate record of the exact time of these calls, the Claimant requested that the Insurer either provide the records or provide a signed authority enabling the Claimant to obtain the records from the mobile service provider. The CTP Insurer declined the request on the basis that the request:-
- Does not seek documents in the Insurer’s possession;
- Does not seek information about the circumstances of the accident;
- Does not seek information about the reasons for the accident;
- Is outside the ambit of Section 47 MAIA;
- Is not a reasonable request for documents or information.
Why was the Claimant successful?
His Honour did not accept that the Claimant had been provided with more than sufficient documents and information to know the case against him as the evidence did not determine the precise time of the incident and there were conflicting accounts as to when the accident occurred. In addition, the Insurer did not argue that the records were unable to be obtained.
Regarding the Insurer’s submissions His Honour opined:
- The fact the records were not in the CTP Insurer’s possession was of no consequence. His Honour opined that this was not a sufficient response to the general duty imposed by Section 47 or the specific duty to provide the information pursuant to Section 47(1)(b) MAIA.
- The request was for information about the circumstances of the accident as the information requested was relevant to ascertaining the time of the accident.
- It was not necessary to consider whether the request sought information about the reasons for the accident.
- He did not accept that the request was outside the ambit of Section 47 MAIA as the information could be found out from the Insured (either the driver or the employer), and if not, the Insured person could make a request of its service provider to provide the details, assuming they were available from the service provider.
- The request was reasonable as;
- It was not oppressive;
- The telephone numbers were readily ascertainable;
- It could not be said the Insured persons were not prepared to cooperate or could not be required to cooperate in accordance with their obligations under Section 35 MAIA;
- It had not been submitted that responding to the request would be expensive.
His Honour further opined the Claimant should not have to wait until the matter became litigated to be able to utilize the non-party disclosure provisions of the UCPR to obtain the records.
Incidentally, His Honour also noted that the telephone records could also be used to corroborate or contradict the driver’s evidence that he was not engaged in the use or attempted use of the mobile phone at the time of the incident. From this, the compulsory conference would be better informed. However, His Honour noted that the duty under Section 47 MAIA does not extend to every piece of information that might coorroborate other information.
Expectations of Insurers in responding to requests
Applegarth J made orders in line with those made in the recent decision of Faraji v Dambarage and Anor  QDC 137. In a general sense, it appears Insurers are required to:
- Directly engage with the Insured regarding requests for information the Insured can provide;
- Provide the Insured with information regarding their duty under Section 35 MAIA and allow a reasonable period of time in which they can seek legal advice before re-engaging with them;
- Either obtain the information from the Insured or their express objection to providing the information.
The decision of Applegarth J provides further clarification of the scope and content of the duty of CTP Insurer to co-operate with the Claimant in CTP insurance claims and continues the trend of recent decisions enforcing the obligation.
A copy of the decision may be accessed here.