By David Slatyer, Partner, and Oliver Crowther-Wilkinson, Law clerk

On 19 April 2023, the plaintiff, Ms Clements, commenced proceedings for damages for personal injuries suffered from a motor vehicle accident, including:

• ‘ongoing pain to her right forehead, cervical spine, lumbar spine, pelvis’;
• ‘headaches, dizziness and reduced balance and vertigo’; and
• ‘restricted recreational activities including… trekking’.

Despite this, the plaintiff undertook multiple overseas hiking trips post-accident, many of which contained physical activity such as trekking, a pilgrimage walk, and canoeing.

With liability admitted, but the issue of quantum remaining, the defendant (Allianz) made an application that the plaintiff provide details of the activities undertaken, travel and transport information, photographs, videos and social media posts in relation to her trips.

Section 45 of the Motor Accident Insurance Act 1994 (Qld) (‘MAIA’) requires a claimant to cooperate with the insurer by providing the insurer with information about their medical condition or prospects of rehabilitation, and when reasonably requested by the insurer, about any consequent disabilities.

Allianz argued the requested material was relevant to assess the plaintiff’s functional capacity and credibility. The plaintiff refused Allianz’s request on the basis that it would be unreasonably onerous, an invasion of privacy, and unlikely to be directly relevant.

1. Was the material requested directly relevant to matters in issue?

Given the nature of the recreational activities the plaintiff undertook on her various overseas trips, Grigg DCJ believed the information and documents requested by Allianz ‘is not outside the bounds of common sense’; that they will demonstrate and reflect the extent of her injuries, and prospects of rehabilitation.

Her Honour held the request to be ‘directly relevant’ to the matters in issue, as they will prove or disprove ‘the plaintiff’s capacity for activities… and therefore her capacity for employment and need for care…’.

2. Would the disclosure be unreasonably onerous?

Given the fact that the plaintiff admitted to having copies of photographs and videos of her trips electronically, Grigg DCJ did not believe producing the requested material would be an overburdensome task.

3. Would the disclosure involve an unreasonable invasion of privacy?

Her Honour reasoned that personal injury claims are by nature intrusive, and considered the comments of Dutney J in Attard v Hore [1], where His Honour stated that the price of seeking personal injury damages is the ‘disclosure of a great deal of material which in other circumstances would be considered confidential.’

Grigg DCJ made the following order:

1. Pursuant to sections 45 and 50 of the MAIA, the plaintiff must deliver the requested material to Allianz by way of a statutory declaration confirming:

• • dates of various hikes taken along with details of transportation to hiking locations;
  • photographs and any videos documenting the plaintiff’s various hiking adventures; and
  • social medial posts relating to her adventures.

The Court affirmed the breadth of the duty to cooperate under ss 45 and 50 of the MAIA and the corresponding disclosure regime under the Uniform Civil Procedure Rules 1999 (Qld).[2] Note similar obligations exist for public liability claims and workers compensation claims in Queensland.

The decision underscores that evidence demonstrating a claimant’s physical capabilities is not only directly relevant to assessing consequential disabilities and functional capacity but is also essential to ensuring that medical opinion evidence is evaluated against an accurate factual foundation.

Further, the Court’s rejection of objections based on burden and privacy re-emphasises the intrinsically intrusive nature of personal injury litigation, and that such concerns raised by the plaintiff cannot outweigh the defendant’s statutory entitlement to information necessary to conduct a complete assessment of quantum (and where relevant, liability).

Therefore, this case signals courts will take a robust approach to compelling disclosure where recreational activities appear inconsistent with claimed injuries and highlights the increasing relevance of electronic and social media material as evidence in personal injury litigation.

[1] [2002] QSC 437.

[2] Uniform Civil Procedure Rules 1999 (Qld) r 223, 702.