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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions