Disclosure of surveillance reports in motor accidents

Zavodny v Couper & QBE [2018] QSC 238

The plaintiff who was injured in a traffic collision brought an application under rule 223 of the Uniform Civil Procedure Rules (UCPR) shortly before the trial, seeking disclosure of documents, including surveillance, as referred in the insurer’s updated list of documents, but for which privilege was claimed.

While the applicant did not challenge the issue of privilege, the applicant contended that section 48(2) of the Motor Accident Insurance Act (MAIA) required disclosure even if the document is protected by legal professional privilege:

“48 Non-disclosure of certain material

(1) A claimant or insurer is not obliged to disclose information or documentary material under this division if the information or documentary material is protected by legal professional privilege.

(2) However, investigative reports, medical reports and reports relevant to the claimant’s rehabilitation must be disclosed even though protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.

(3) If an insurer has reasonable grounds to suspect a claimant of fraud, the insurer may withhold from disclosure under this division information or documentary material (including reports that would, apart from this subsection, have to be disclosed under subsection (2)) 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. …”

Henry J considered the objects of the MAIA included to resolve matters speedily and promotes disclosure at an early stage.

The issue to be determined was whether surveillance reports were to be considered “investigative reports”. In considering the State of Queensland v Allen [2012] 2 Qd R 148 and her Honour White J’s discussion of “reports” and “investigative” as it was used in the Personal Injuries Proceedings Act 2002, Henry J found that surveillance was an investigation and therefore, investigative reports. His Honour also found the reports were relevant in relation to rehabilitation. His Honour was not prepared to limit the reports to medical and allied health reports. Accordingly, the application was allowed, and the insurer was ordered to provide copies of the surveillance reports.


David Cormack – Brisbane Barrister & Mediator

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