In a matter recently before Lindsay J of the Supreme Court of New South Wales (His Honour), William Roberts Lawyers successfully defended a life insurer against a claim for total and permanent disablement.
The circumstances of this matter are unique in that, on the last day of a four-day trial, the plaintiff sought to discontinue the proceedings. The Court ultimately granted leave to discontinue, but made partial indemnity costs orders, and an order preventing the plaintiff from recommencing proceedings on the same or substantially the same cause of action in the future.
THE RELEVANT BACKGROUND
The plaintiff claimed that, in 2007, she had suffered a psychological injury to the extent that she was totally and permanently disabled within the meaning of the relevant insurance policy. The cause of the alleged injury was said to be bullying and intimidation by a superior at her place of employment.
In 2009, the plaintiff made a claim on the policy. The plaintiff’s claim was declined on the primary basis that the weight of the medical evidence stated that, whilst she should not continue working for her then employer, she was able to work elsewhere.
In 2010, the plaintiff was diagnosed with breast cancer, and underwent lumpectomy surgery, chemotherapy and radiotherapy.
Between 2011 and 2014, a number of further reports were obtained by the plaintiff and reviews undertaken by the insurer. When the plaintiff’s psychological condition was being assessed by medical practitioners, the plaintiff said that her condition was deteriorating, she described herself as a social recluse and effectively suggested that she led a “joyless existence”. The plaintiff informed one of the psychiatrists that she had recently travelled to Hawaii on one occasion but, otherwise, had not travelled.
The insurer maintained its declinature of the plaintiff’s claim, partially on the ground of the intervening event of the breast cancer diagnosis. The plaintiff commenced proceedings against the insurer in November 2014. The proceedings sought the sum of $225,000.00 plus interest and costs.
After evidence was exchanged by the parties, the insurer issued an offer of compromise pursuant to the Uniform Civil Procedure Rules 2005 (Rules), offering to pay the plaintiff the sum of $35,000.00 plus the plaintiff’s costs as agreed or assessed. That offer was not accepted.
Prior to the hearing, we located the Facebook page of the plaintiff’s partner, which was open to the public. Among other things, that Facebook page showed that the plaintiff and her partner had been travelling extensively, both internationally and domestically, had engaged in a number of high-adrenaline adventure activities and had participated in numerous sporting competitions at a high level.
Whilst we were unable to access the plaintiff’s Facebook page, we were able to identify that the plaintiff had over 450 photographs in one of her Facebook photo albums.
On the first day of the hearing, the plaintiff was extensively cross-examined. That cross-examination, among other things, effectively called into question the veracity of the plaintiff’s medical evidence in circumstances where she appeared to have been untruthful (or at least not forthcoming) to her assessing psychiatrists. On the same day, we served a Notice to Produce to Court (NTP) upon the plaintiff’s solicitors, seeking copies of the plaintiff’s Facebook material.
On the second day of the hearing, after issuing the NTP, it became apparent that the number of photographs on the plaintiff’s Facebook page was diminishing. We quickly sought and obtained evidence from a computer forensic examiner attesting to the fact that someone with access to the plaintiff’s Facebook account appeared to be deleting photographs. That evidence was served upon the plaintiff’s solicitors on the third day of the hearing.
On the third day of the hearing, the plaintiff partly acquiesced to the NTP and produced to us (though they were not produced to the Court) copies of the plaintiff’s posts on her Facebook page. On review of that material, it was identified that it strongly damaged the plaintiff’s credit and supported the insurer’s case.
On the fourth and last day of the hearing, the plaintiff sought the Court’s leave to discontinue the proceedings, pursuant to rule 12.1(1)(b) of the Rules.
Whilst we did not oppose the plaintiff being granted leave to discontinue the proceedings, we submitted that leave should only be granted on the basis that:
- The plaintiff not be allowed to recommence proceedings on the same or substantially the same cause of action; and
- The plaintiff pay the insurer’s costs on the ordinary basis up to the date of the Offer and on the indemnity basis thereafter.
That approach is consistent with Stahlschmidt v Walford (1879) 4 QBD 217 (as discussed by Williams J in Pertsinidis v Australian Central Credit Union Ltd  SASC 244, ) in which it was held that the plaintiff was refused leave to discontinue the proceedings when the plaintiff realised that “the action was not going his way”. It was stated inStahlschmidt that, in those circumstances, the defendant was “entitled to the fruits of [those] proceedings” and should not be deprived of the advantage gained.
His Honour granted our proposed orders.
THE PRIMARY LESSON
In today’s day and age, where lives are played out on social media, important information can be gained about a person’s physical and psychological capacity from the content of social media activity.