LEGAL ETHICS IN CTP LITIGATION. Hon John Doyle AC, QC Peter Day, Jeffcott Chambers Brenton James, Hunt & Hunt

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1 LEGAL ETHICS IN CTP LITIGATION Hon John Doyle AC, QC Peter Day, Jeffcott Chambers Brenton James, Hunt & Hunt

2 JD (John Doe) was involved in a motor vehicle accident. He was a passenger travelling with his two 17 year old twin children, Sam Doe and Hannah Doe and his wife who was the driver at fault Mr Doe submits a claim for personal injuries, loss and damage through the Motor Accident Commission (and its claims agent Allianz Australia SA - CTP). Mr Doe seeks legal advice.

3 The family approach the Law Firm for assistance in pursuing claims for personal injuries, loss and damage

4 Assume Mr Doe suffered a significant head injury and requires a litigation guardian.

5 Assume (hereafter), it is not an injury requiring a litigation guardian Mr Doe's solicitors arrange and obtain a detailed statement from Mrs Doe regarding the circumstances of the accident and her observations of the injuries and effects upon her husband.

6 In the course of giving instructions Mr Doe discloses that he had a previous motor vehicle accident 5 years ago for which there was a claim and various documents, including Court proceedings and medical reports. He does not recall the particulars of any settlement and says that he had fully recovered by least 2 years prior to the subject accident.

7 He provides an Authority to his current solicitors to obtain any relevant documentation from his previous solicitors. The current solicitors do not obtain copies of any documents from the previous solicitors for the time being.

8 The claimant's solicitors seek a report from the plaintiff's general practitioner as well as an orthopaedic surgeon (who assesses the plaintiff for medico legal purposes). The solicitors do not mention the earlier accident in the letter of instructions. When the reports are received no mention is made of the previous injury in either of the reports

9 In presenting the initial letter of claim to the insurer, the plaintiff s solicitors refer to the previous injury and indicate that on their instructions the injuries had resolved well before the subject collision.

10 The insurer refers the matter to solicitors. The insurer's solicitors see that they have a claim previous file and call up the previous file including the proceedings, medical reports etc. When providing their advice to insurer they have regard to information and documentation from the earlier file.

11 The insurer's solicitors interview the wife (as insured). The interview covers not only the circumstances of the accident but deals in some detail with the injuries sustained by the plaintiff and other information relating to the claimant (such as other health issues and pre/post accident employment).

12 Prior to presenting a formulation of claim, the plaintiff s solicitors attend at the general practitioner's office to view (but not take possession of) the general practitioner's records. Those records indicate that the previous injuries were quite significant and the plaintiff was continuing to complain of symptoms right up until shortly prior to the motor vehicle accident (and even beyond). In presenting a formulation of claim the plaintiff s solicitors do not therefore include any reference to the previous accident other than noting that the plaintiff had been involved in the previous accident. In particular, there is no amendment or correction to the earlier correspondence regarding the instructions at that time. The formulation of claim relates only to the effects of the subject accident.

13 Assume the children proceed with their claim. In a medical report obtained for her claim Hannah discloses that her father is working at a particular restaurant. The insurer then arranges for John Doe to be placed under surveillance at that restaurant and video film of him is taken working at the restaurant. That information was only obtained through the medical evidence in Hannah's claim.

14 The plaintiff has given instructions to his solicitors that he has been unable to work since the accident in any capacity. On an evening when the plaintiff s solicitors are out having dinner they observe the plaintiff working as a waiter at a restaurant. They observe the plaintiff working for a number of hours performing quite physical work. The plaintiff subsequently admits to his solicitors that he has been doing some work

15 The matter goes to trial. Whilst waiting for Judgment, the plaintiff s solicitors learn that the plaintiff is terminally ill and only has a few months to live.

16 And the last issue to consider over afternoon tea

17 At the end of the matter, John Doe tells his lawyers he was actually the driver!