Category Archives: Insurance

Pokemon Go: a change of landscape for insurers and gamers alike

As a concerned parent, I have recently had cause to discuss with few fellow mums and dads the whys and wherefores of the Pokemon Go ‘phenomenon’; which, like the word ‘crisis’, has become one of those hyperbolic usages that characterises this age of sensationalism we are living in.

In line with accepted best practice parenting, one particular couple said they took the immersive approach, having decided to spend last Saturday afternoon playing it with their 12-year-old son.

Their rather tame introduction took them as far as the local shops in search of the nearest Pokemon to capture, which for the uninitiated, is the principal aim of the game. And sure enough, right there, smack bang in the middle of the road (in reality, well sort of) was the coveted creature.

It was at this point in telling the story that the boy’s father made the observation that the Google Map data used to determine the player’s location and distribute the various Pokemon is not vetted. Therefore players could well be led onto a busy road in search of glory; or off a cliff perhaps. Yikes!!

However, could or should it be? The conventional wisdom among gamers is that Pokemon are distributed by operation of an algorithm (a bit like the mysterious way Google sees some people’s websites arrive higher up the list of search responses than others). Therefore, it seems to be somewhat random.

The game’s terms and conditions say players should “be aware of [their] surroundings and play safely. …[and take] responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies … reasonably necessary for any injuries.”

But what about the 5 year-old child who all alone embarks on the same trip to the shops on a Pokemon Go quest and is busy standing in the middle of the road trying to make a catch when a car screams around the corner…

Even if such a disclaimer would have any force at law, surely it couldn’t be used to protect against this kind of claim.

Subject to a contributory negligence reduction (which would be little or none for a child of this age), this situation would be the responsibility of the CTP insurer. However, if I were the CTP insurer, I’d be ready for battle with a cross claim for contribution from the game provider. Surely such a tragic result is foreseeable enough to give rise to a duty of care on its part. The misplaced Pokemon could perhaps be likened to the ‘snail in the bottle’ a la Donoghue v Stevenson.

Then the question arises as to how reasonable it is to expect the system to be sufficiently controlled by the provider so as not to put its users in such obvious peril. That would make for a fascinating debate, though it may never reach a courtroom given it would likely result in the scrutiny of the top secret Pokemon distribution algorithm itself.

Airbnb now offers complimentary landlord style insurance to its subscribers whose use of the property as a short term rental might see them excluded by a conventional policy. So I’m sure there is an insurer brave enough to take on this new risk at the right premium, something I’d be strongly recommending if it hasn’t been done already.

Apparently, there’s already a Russian bank already offering to insure users themselves (https://www.rt.com/business/351813-pokemon-go-sberbank-insurance).

Watch this space (no pun intended).

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Filed under Civil, contributory negligence, Insurance, Negligence

Admissibility of Police Reports

 

Police reports can often provide a useful contemporaneous account of an incident that later becomes the subject of court proceedings, criminal or civil.

However, police reports are prima facie a form of hearsay, so unless the party seeking to rely on the document can enliven one of the exceptions to that rule, the report will be inadmissible.

In this regard, it is also uncontroversial that police reports are a form of business record and therefore fall within the ambit of the exception to the hearsay rule contained in section 69 of the Evidence Act. If admitted as a business record, the report can then be used as evidence supporting the truth of the matters recorded therein, which is of course the main game when it comes to evidence at trial.

However, section 69 contains a couple of exclusions for the kinds of business records that do not pass the smell test for reliability that a document created in the course of everyday business (eg. an email) would otherwise possess.

One of these exceptions covers a situation where the matters contained in the report are recorded “in connection with an investigation relating or leading to a criminal proceeding” (per ss 69(3)(b)). That kind of report would ordinarily be inadmissible, the rationale being that once a criminal investigation is underway, human nature dictates that people, including perhaps even the police themselves, may tend to behave in a self-serving fashion.

In a recent decision that could ultimately prove frustrating for insurers in cases where fraud is alleged, Basten JA in Averkin v Insurance Australia Ltd [2016] NSWCA 122 ruled strictly on the question of the admissibility of a police report.

In any argument over the admissibility of a report, the principal question will be whether, objectively speaking, the police report reveals the police to have undertaken “an investigation which would probably lead to a criminal proceeding.” (Averkin at [28]).

The police report in Averkin described the incident as a ‘stolen vehicle’ case, noted a view that there was likely an accelerant used to start the car fire and recorded the nature of inquiries made of the car owner’s wife and neighbours.

The trial judge took the view that the test is whether the investigation has reached a particular stage where, in the ordinary course of events, it would have led to a criminal proceeding. In the instant case, where the police inquiries were very much of a preliminary nature, the trial judge found that the test wasn’t satisfied and therefore the report was admissible.

However, his Honour Basten JA took the following contrary view (at [28]) and found the report should have been ruled inadmissible:

It is patently obvious that on arrival at the scene the police had quickly formed the view that at least two serious property offences had been committed. If the correct approach is an objective assessment [of whether criminal proceedings are probable], this Court should come to the same view on the facts then apparent to the police.

There is an argument that the first few interviews and inquiries police make can be valuable in revealing a picture that is untainted by invention, collusion and lawyerly intervention. However, where even the slightest possibility of impartiality is revealed his Honour has deemed the risk of unfairness too great.

It is sometimes costly, inconvenient and even impossible to have in court the witnesses whose representations are recorded in police reports. However, when the report reveals even a preliminary view on the investigating officer’s part, parties will now need to find another way to make their case.

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The evidence is the only truth we know

One of the things non-lawyers find most problematic about litigation is the notion of truth in the courtroom. Litigation lawyers on the other hand, especially the battle-weary ones, realise how fraught, and indeed relative, such a notion can be.

 

It is perhaps one of the most thorny discussions one can have with a client, which ordinarily goes something like, ‘I know what you’re telling me is the truth but the evidence points in another direction…perhaps we should settle the case.”

 

It is this gap between what the evidence bespeaks and the version of events embraced by each party, which appears at the root of many of the cases that reach trial. In my experience, it is only the boldest of litigants who are willing to lie under oath and ordinarily it is more likely they are simply convinced of their own version over that of the other side.

 

Sometimes a particular version of events will seem plausible yet the way the evidence unfolds, especially in the hands of a capable advocate, casts some doubt on the favoured scenario. This is where the lay-person and the lawyer diverge.

 

Truth is as much a feeling for a non-lawyer, one uncorrupted by the analytical mindset that necessarily becomes a part of who we are as lawyers. The lawyer says that where a detailed analysis of the evidence casts sufficient doubt on that which may seem the most likely version of events, it cannot be accepted by the court, viz, it isn’t true.

 

Judges can also be affected by the same kind of ‘gut-feel’ that one version of events gives over the other. However, this can be the root of a host of problems when from this starting point they then construct their reasons. The clinical ravages of the appellate process await.

 

The recent case of Bradley v Matloob [2015] NSWCA 239 was the one that got me thinking about all of this. The plaintiff was approaching a set of traffic lights driving along a dual carriageway when a car travelling in the opposite direction made a right hand turn into her path. Whilst the plaintiff managed to avoid a collision with the vehicle, she lost control and collided with a truck further along the road causing her serious injury.

 

About 15-20 metres away there was an eye-witness to the accident (who we’ll call “P”). P said that the other car was a ‘tannish brown’ Ford with a black sun grille installed across the outside of its back window. P also said that as the Ford drove off along the street into which it had made its turn he decided to follow it until he observed it turn into a nearby factory unit. About 10 minutes later P drove into the factory unit and found a car that he thought was the same car as he had seen earlier and took its registration. He also drove around the whole car park to ensure there were no other cars like it. The registration P recorded was that of the first defendant’s car.

 

Seems pretty compelling at first glance. Yet the owner of the vehicle matching that registration, Mr Bradley, denied any knowledge of the incident when interviewed by the police.

 

The plaintiff also sued the Nominal Defendant, which for the uninitiated is a statutory body funded by a levy on CTP premiums to compensate the victims of car accidents where the negligent party is either uninsured or cannot be identified. So the dispute as to who should pay came down to one between the Nominal Defendant and Mr Bradley.

 

At the trial it was never suggested to Mr Bradley that he had lied about his involvement in the incident. Instead, the way it was put to him in cross-examination was:

 

“Q: If you had come within a metre of an oncoming car as you made a right hand turn that would be something that you would be well and truly be aware of?

 

A: Yes.”

 

The witness P’s evidence however, was heavily challenged in cross-examination, revealing two matters that enabled his reliability to be questioned:

 

  • He was shown pictures of Ford vehicles of clearly differing colours yet he described them both in the same way as he described the plaintiff’s vehicle, ie. ‘tannish’ or ‘tannish brown’ (at one stage, when shown a photo of Mr Bradley’s vehicle, P agreed that it was not the offending vehicle, though this was tidied up in re-examination by his barrister); and
  • He made repeated reference to the black grille on the rear window of the car he saw, yet the plaintiff’s car did not have one installed.

 

Both of these things, the trial judge was willing to overlook. However, here’s the rub, as it was skilfully submitted by Mr Bradley’s barrister – to find Mr Bradley liable the judge would have to have find that his evidence was not credible. Furthermore, the Court would have to find that Mr Bradley had in fact lied to the police shortly after the incident (and in court) in saying he had no knowledge of it.

 

Whether he was fully cognisant of the need to do so or not, the trial judge largely avoided this submission, which lay somewhat inconveniently in the way of the account he wanted to accept, ie. that of P. The knock-on effect of this failing was in Beech-Jones J’s view (with Leeming JA in agreement) to render the trial judge’s reasons inadequate by failing to ‘engage with, or grapple or wrestle with, the cases presented by each party’ (at [75]).

 

Nor did either of the other parties to the litigation suggest to Mr Bradley that he had lied. This resulted in a lack of procedural fairness, which placed the situation squarely in Browne v Dunn territory, a rule which also applies equally to judges (as pointed out by McColl JA at [6]).

 

The absence of a proper finding that Mr Bradley had lied left only one possible result: that the identity of the driver at fault simply could not be established…judgment reversed and entered against the Nominal Defendant instead!

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Filed under appeals, Civil, evidence, Insurance