District Court of Queensland considers implications of a Plaintiff’s non-disclosure of pre-existing injuries and illnesses: Towell v Mooney & Allianz Australia Insurance Ltd [2023] QDC 130 

The District Court of Queensland has recently considered the implications of a Plaintiff’s alleged non-disclosure of pre-existing injuries and illnesses within the context of a claim for damages arising from a motor vehicle accident. 

Background

The Plaintiff, Talitha Ann Towell, claimed damages for personal injuries allegedly arising as a result of a motor vehicle accident that occurred on 30 August 2019. It was accepted by the parties that the collision occurred as a result of the negligence of the First Defendant, and that the Second Defendant, Allianz Australia Insurance Limited, was liable for the negligence of the First Defendant, and any consequential injury and loss, by operation of the provisions of the Motor Accident Insurance Act 1994 (Qld).  

The court considered a number of triable issues, including the nature and extent of the injury the Plaintiff sustained in the subject accident, along with a number of heads of damage, such as past and future economic loss. Of note was the court’s consideration of the implications of the Plaintiff’s alleged failure to make appropriate disclosure of previous injuries, illnesses, and claims in her Notice of Accident Claim Form (‘Notice’).  

Plaintiff’s Credibility

At trial, the Defendants submitted that the Plaintiff’s evidence ought to be approached with caution, as the Plaintiff falsely declared the contents of her Notice, particularly in respect to the question regarding whether she had suffered a prior “significant disability”, being a personal injury, illness or disability that was either relevant to the assessment of the extent of the injury suffered by the Plaintiff in the accident, or one that had subsisted for a period of four weeks or more. The Defendants cited six (6) separate events in support of this submission, including injuries that gave rise to claims for damages.  

The Plaintiff submitted that only one of those events cited by the Defendants could properly be considered a “significant disability”, being a car accident in 2009 which led to the Plaintiff receiving damages for personal injuries sustained in the incident. The court “accept[ed] the thrust of those submissions on behalf of the plaintiff”.  

With respect to the 2009 incident, the court noted that the law firm instructed to act on the Plaintiff’s behalf in relation to that incident was the same firm representing the Plaintiff in the matter before the court. In this regard, the court noted that if there was to be criticism of anyone in relation to the non-disclosure of the 2009 incident, it would be the solicitor who prepared the Notice.  

Of significance to the court when considering her credibility in light of the non-disclosure was that the Plaintiff had disclosed the 2009 incident to medico-legal specialists who assessed her in connection with the proceeding, and that information pertaining to the incident was easily accessible by the Defendants through WorkCover records. Of further significance was the Plaintiff’s acknowledgement at trial that the incident ought to have been disclosed in her Notice.  

The court opined that whilst the non-disclosure of the 2009 incident was “unfortunate”, it did not detract in any way from the Plaintiff’s credibility in respect of her evidence, either that evidence given orally at trial, as well as through the histories provided to the medico-legal specialists. As such, the court rejected the submissions by the Defendants that the Plaintiff was an inherently unreliable witness.  

Implications

The court’s decision in Towell demonstrates that whilst a court may be willing to provide some leeway to Plaintiff’s in relation to non-disclosure of their pre-accident medical history, there remains scope for such non-disclosure to bear negatively upon the credibility of a Plaintiff’s evidence.  

It is incumbent on solicitors to be diligent when taking instructions in respect of, and in the drafting of, a client’s Notice of Accident Claim Form. The court’s decision also highlights the importance of appropriately briefing medico-legal experts with documentation and information pertaining to client’s pre-accident medical history.  

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