The District Court of Queensland has recently considered the scope of Section 48 of the Motor Accident Insurance Act 1994 (QLD) (‘the MAIA’), after an application was made on behalf of the Applicant by Littles Lawyers.

Background

The Applicant was injured in a motor vehicle accident on 26 August 2022, suffering spinal injuries, an injury to her left hip and upper limbs, and a psychological injury. 

From 3 November 2022, the Applicant was placed under surveillance by the Respondent. On 23 November 2022, the Respondent wrote to our firm disclosing sixteen (16) photographs from the surveillance footage and alleged that the contents of the footage contradicted the symptoms and ongoing restrictions reported by the Applicant to her treatment providers. They asserted that she was not suffering from any impairment and that the claims made for assistance at home were untruthful. The Respondent further mentioned that they were considering referring the Applicant for prosecution for making false and misleading statements.  

Littles Lawyers wrote to the Respondent requesting that they disclose a copy of the surveillance footage based upon which they were making these allegations. The Respondent provided a report prepared by the investigator, dated 28 November 2022, but refused to provide a copy of the footage itself.  

The Statutory Scheme

Sections 47(1) and (2) of the MAIA, require an insurer to provide a claimant with copies of reports and other documentary material in its possession about the claimant’s medical condition and prospects of rehabilitation. Disclosure of the surveillance footage relevant to this application was requested on this basis.  

Although section 47 imposes an obligation on an insurer to provide disclosure of relevant material during the course of a claim, section 48(3) provides an exemption to this obligation if an insurer has reasonable grounds to suspect a claimant of fraud. If this is the case, it may withhold from disclosure information or documents to the extent the disclosure would alert the claimant to the discovery of the grounds of suspicion or could help in the furtherance of fraud. Section 48(4) provides that such material must not be withheld without proper grounds. 

The key question to be determined in this application was whether the Respondent had reasonable (and proper) grounds to suspect fraud, and if so, there had in any case been a waiver of the Respondent’s right to withhold disclosure through the partial disclosure of the surveillance footage. This was the first time a court has specifically considered sections 48(3) and (4) of the MAIA in circumstances where partial disclosure had already been provided. 

Decision

His Honour Justice Kent found that the Applicant’s conduct in the surveillance relied upon by the insurer did not demonstrate reasonable grounds for a belief of fraud. Her behaviour in the footage was not in stark contrast to the symptoms reported to treatment providers and medico-legal experts, and did not give rise to a reasonable suspicion of dishonesty.

By partially withholding disclosure, the Respondent had attempted to persuade the Applicant that she had something to fear from the footage, and should therefore accept a modest settlement. However, the court further found that due to the partial disclosure, the Respondent had waived their right to rely upon the statutory provisions allowing evidence to be withheld if it would assist a claimant in the furtherance of fraud.  

The Applicant was therefore successful in her application and disclosure of the full surveillance footage was ordered.  

This decision is a useful reminder that an insurer’s refusal to provide full disclosure of surveillance on suspicion of fraud should not simply be accepted by claimants.