The plaintiff was ordered to disclose material, including photographs, video footage and social media posts, relating to her post-accident hiking trips on the grounds that such disclosure was directly relevant to assessing damages and was not an invasion of her privacy or overly burdensome.
In issue
- Whether disclosure requested from the plaintiff relating to various hiking trips she had undertaken post-accident was 'directly relevant' to an allegation in issue in the pleadings pursuant to Rule 211 of the Uniform Civil Procedure Rules 1999 (the UCPR) and if so, whether its provision was unreasonably onerous.
The background
On 31 July 2019, the plaintiff suffered injuries in a motor vehicle accident. Liability was admitted and quantum remained in dispute.
On 19 April 2023, the plaintiff commenced proceedings against the defendants by a Claim and Statement of Claim (SOC). In the SOC, the plaintiff alleged she suffered from ongoing pain in her cervical spine, lumbar spine and pelvis; headaches; dizziness; reduced balance; vertigo; and a reduced capacity for recreational activities including trekking.
It was not in dispute that the plaintiff had travelled overseas on several occasions since the incident. She provided Statutory Declarations on 25 October 2024 and 22 November 2024 advising that she had undertaken several hiking trips, including a guided trekking holiday across the Arctic Circle in January 2020; a nine day guided gorilla trekking tour in Uganda in July 2022; a trip to Tanzania in July 2022; and a hiking trip of the El Camino pilgrimage trail in Spain from 28 August 2024 to 18 September 2024, in addition to a hiking holiday across Tasmania (the hiking trips).
The second defendant filed an application pursuant to sections 45(1) and 50 of the Motor Accident Insurance Act 1994 (Qld) (the MAIA) requesting disclosure of documents (including itineraries, transport and accommodation details), photographs, video footage and social media posts related to the hiking trips (the requested disclosure).
The second defendant submitted that the requested disclosure was directly relevant to assessing the plaintiff’s claimed disabilities and functional capacity, including her capacity to undertake the hiking trips and carry her own hiking pack in light of her alleged injuries and restrictions in the SOC.
The plaintiff refused to provide the requested disclosure. She opposed the application on the basis that the second defendant’s request lacked specificity and was not directly relevant to 'the real issues in the proceedings.' She also alleged its provision was unnecessarily burdensome and constituted a 'gross invasion of her privacy.'
The decision
The key issues the subject of the application related to whether provision of the requested disclosure:
- was directly relevant to an issue in the pleadings,
- would be unreasonably onerous, and
- would involve an unreasonable invasion of the plaintiff’s privacy.
Judge Grigg accepted the requested material was directly relevant to an assessment of any consequent disabilities and the plaintiff’s functional capacity, including her capacity for her activities of daily living and recreational activities since the accident, which was reflected in the pleadings and therefore fell within the disclosure obligations imposed on the plaintiff pursuant to Rule 211 of the UCPR and section 45(1) of the MAIA.
Her Honour was not satisfied that disclosure of the requested material was unreasonably onerous. She noted the plaintiff accepted during cross-examination that she had access to photographs and video footage saved on a USB drive which could be filtered by date stamps and the request for disclosure of social media posts related only to specific activities and dates, rather than to thousands of posts and/or photographs.
Her Honour also rejected the plaintiff's argument that the disclosure would constitute an unreasonable invasion of privacy, noting that personal injury claims inherently involve some level of intrusion and that the requested disclosure (on the plaintiff’s own evidence) primarily consisted of photographs of animals and scenery.
The second defendant’s application was successful, with Judge Grigg ordering the plaintiff to provide the requested disclosure to the second defendant’s solicitors within 14 days, including a statutory declaration detailing the dates, transportation, accommodation, itineraries, routes, and checkpoints relating to the hiking trips. The plaintiff was also ordered to pay the second defendant’s costs of the application.
Implications for you
This decision illustrates that a party to a personal injury claim will not be excused from fulfilling their disclosure obligations due to any alleged invasion of privacy (having regard to the inherent nature of the claim), or in circumstances where a request for disclosure is specific in terms of the type and volume of information and documents sought (including dates ranges where applicable) and is directly related to an issue in dispute on the pleadings.
