Australia: What information can be obtained in your personal injury claim

When making a personal injury claim, it is important for potential claimants to be aware that the insurer has the authority to seek, and obtain, extensive personal information about the claimant which it perceives to be relevant to the claim.

Below are a list of common disclosure issues that claimants should be aware of when lodging a claim for compensation.

Am I obligated to disclose my personal information or records to the insurer?

The short answer to this is yes.

When lodging a claim for personal injuries, the insurer is entitled to investigate what loss they may be liable for in terms of a monetary compensation, either via a lump sum payment or by way of ongoing treatment.

The insurer will not simply pay a claimant without proper evidence to support the claim.

When you lodge a Compulsory Third Party ('CTP') Injury claim form, you are obligated to disclose not only details about the collision and your injuries, but also details regarding your personal information such as income, employment details and any pre-existing injuries or claims.

This is an important step as truthful disclosure of this information will assist not only the insurer, but you and your solicitor, to determine what documents are needed in order to progress your claim in a timely and efficient manner. It also means that any issues can be addressed at the outset of the claim.

Can the insurer directly access my records after I have submitted the claim?

Under the current CTP Scheme, when lodging a claim the claimant is required to sign what is called a Prescribed Authority ("Authority").

This Authority allows the CTP insurer to access relevant documents. Some of those which are commonly sought include:

  • Complete medical history and GP clinical notes;
  • Hospital records
  • ATO taxation returns/financial documents;
  • Medicare/PBS History;
  • Documents relating to past personal injury or WorkCover claims;
  • Employee records from both past and present employers;
  • Centrelink file; and
  • Other government department files, such as those held by the Department of Education & Child Development, Department for Child Protection, etc.

It is important to note that while the Authority can be revoked by you and/or your solicitor after six months, this will not necessarily stop the insurer from being able to request and access other personal information.

Can the insurer request anything they like, or does it have to be relevant?

Any information requested by the insurer must be relevant to the claim in order for them to access the information. It cannot simply be a 'fishing expedition' and the insurer must have proper reasons for needing to request and obtain certain documents.

For example, if a claimant has pre-existing injuries, it would be relevant for the insurer to investigate the impact and extent of the pre-existing injuries prior to the accident in order to ensure that any treatment and compensation paid to the claimant are accurately assessed and only related to injuries caused directly from the accident.

Taxation records are also a common request. Both the insurer and your solicitors will usually require this information in order to assess any compensation claim for past or future economic loss.

Can I refuse to provide the information requested?

In some instances, a claimant can refuse to comply with some of the requests made by the insurer if the information sought is not relevant to the claim.

Another option for the claimant is to raise their concerns with the insurer, either directly or via their solicitors, and discuss possible ways to limit the scope of the request to ensure that it is directly related to their injury claim.

Insurers will generally try to accommodate any concerns raised by claimants and work with them to progress the claim without ongoing issues.

Can my private social media records be used in personal injury claims?

The extent of the information that is able to be obtained by the insurer in personal injury claims has also been extended to social media records.

In the recent South Australian case of Drakoulis v Tsogas, the claimant alleged that she had experienced substantial pain and suffering, as well as a loss of enjoyment of life as a result of her injuries.

The claimant further alleged that her ability to participate in and enjoy recreational and social activities had also been substantially curtailed because of the injuries and she sought compensation for these losses.

On that basis, the defendant insurer made an application for the claimant's Facebook records, through her solicitor in the first instance, to investigate these claims. This request was refused by the claimant and her solicitor on the basis of privacy.

The claimant's Facebook privacy settings were on a high setting, and as such, the defendant insurer was unable to simply view her profile or activity online.

An application was made to the Court by the defendant insurer seeking her Facebook records from 12 months prior to the accident to the present date, on the basis that the material was directly relevant to the case at hand and the losses sought by the claimant.

The defendant insurer was successful in its application and was granted an order allowing the insurer to access the claimant's Facebook records as requested.

This case not only shows the extent of relevant information insurers can obtain in personal injuries claims, but also the increasing use of social media being used as evidence in court proceedings.

It is important for claimants to be aware of what obligations they have in terms of disclosing information to insurers when making a claim for personal injuries.

While it may feel like a breach of privacy having to disclose your personal information, ultimately both your insurer and your solicitor will require this in order to accurately assess ongoing funding for treatment and any lump sum compensation.

If you have any concerns about requests made by the insurer during your claim, you should obtain advice from a solicitor who specialises in personal injuries in order to determine if the information requested is relevant, and what other options may be available to you in relation to the request.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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