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An injury compensation claimant who lodged her motor accident claim in September 2022 had a surveillance team assigned to her just one month later.
Insurer QBE admitted liability for the August 2022 accident in October and immediately ordered investigators Procare to conduct a video stake out of 29 yr old Candice Peterkovic.
The CTP insurer was apparently alarmed by her claim for voluntary assistance of 6.5 hrs/week for the next 55 years as a result of injuries to her spine, left hip and upper limbs as well as a psychological injury.
It promptly provided 16 surveillance pics from the video footage of the executive assistant to her solicitors – that they said contradicted the complaints she had made to her medical providers – asserting she was in no way impaired by any injuries.
Those photos showed her wearing a back brace – and sometimes not wearing it – doing various things including vigorously shovelling garden soil into a wheelbarrow and pushing it across the road over a two-hour period.
They invited the withdrawal of the claim and suggested a referral for prosecution over the statements that had been furnished that they contended were false and misleading.
Not to be deterred, Petrekovic’s solicitors demanded a copy of the entire 180 minutes of vision the investigators had captured and the 189 still surveillance pics extracted from it that had been supplied to QBE.
When their requests were rebuffed, they applied to the District Court for orders compelling their disclosure pursuant to MAIA s 47 as material in its possession concerning the applicant’s medical condition and prospects of rehabilitation.
QBE resisted disclosure claiming to have reasonable grounds to suspect Peterkovic of fraud and that withholding the items was permitted by MAIA s 48 (3) as it would prevent the furtherance of fraud.
The application came before Judge Michael Kent KC in Brisbane who formed the view that the vision of the claimant – including the digging of soil episode – was not necessarily inconsistent with what she had told medical specialists.
She had after all explained that she needed to push through her pain to complete tasks but suffered later having done so; and some pain had improved and some pain had worsened.
“It is not yet known how much pain the applicant says this caused her, at the time, or later,” he observed.
In his view there was no “inexplicable disconnect between the applicant’s observable abilities and her complaints” as to render them “starkly at odds” and allow the insurer to form reasonable grounds for a suspicion of fraud.
That the claim had been perhaps presented – in the Notice of Accident Claim – as a more serious spinal injury than what it proved to be was beside the point.
“It is not unusual that claimants, through their lawyers, couch their claims at the higher end of what may be reasonably claimable, from the understandable – and not dishonest – perspective of maximising the claim and being able to commence negotiations in the hope of reaching a reasonable compromise.”
That was enough for the claimant to be granted an order for disclosure of the remaining footage and pictures.
Judge Kent went on though to consider Peterkovic’s second argument that QBE had – by reason of the partial disclosure of otherwise protected material – waived its right to keep the remaining footage confidential.
He rejected the insurer’s contention that public policy demanded it be exempt from considerations of waiver.
“Not so” said the judge who then had to decided whether a waiver had in fact occurred.
Having surmised that QBE’s strategy had been to alarm Peterkovic by demonstrating “evidentiary problems” to her, such conduct was in his view conduct inconsistent with the continued existence of the right of nondisclosure.
“Accordingly, the rights of the respondent under s 48(3) have been waived,” he ruled.
Peterkovic v QBE Insurance (Australia) Limited Kent KC DCJ 28 November 2023
Categories: car accident