Allianz Australia Insurance Limited v Sarofim

[2024] NSWPICMP 346

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Sarofim [2024] NSWPICMP 346
CLAIMANT:	Inas Sarofim
INSURER:	Insurance Australia Ltd t/as NRMA
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	29 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer sought to issue direction on NSW Police for production of records concerning the motor accident, such as statements obtained by persons involved; test of relevance; whether production is reasonably likely to add to the relevant evidence; Waind v Hill referred to; whether the subpoena has a legitimate forensic purpose; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council referred to; matter of common sense that the nature and speed of the impact may affect the extent of the injuries sustained; Held – leave granted to issue direction.
DETERMINATIONS MADE:	1.     Leave granted to the insurer to file and serve a direction on the New South Wales Police in accordance with the terms of its letter/message dated 27 April 2024.

REASONS

1. The claimant was involved in a motor accident on 6 November 2019 and her entitlements are governed by the provisions of the Motor Accident Injuries Act 2017. 

2. There is presently an application for medical assessments before two Medical Assessors. The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.

3. The insurer has requested leave to issue a direction on the New South Wales Police for various documents relating to the motor accident including unredacted statements and photographs of the motor accident.

4. The claimant objects to the Personal Injury Commission granting leave to the insurer to serve the direction on the New South Wales Police.

5. The matter was allocated to me on 24 May 2024. The claimant was then directed to file any submissions objecting to the issuing of the proposed direction.

6. The claimant filed submissions in response which incorporated its previous submissions. I have read those submissions which provide a detailed summary of the timeline of events concerning the insurer’s request to serve a direction for production for various records on the New South Wales Police Service and the claimant’s opposition to that request.

7. On the scope of the relevance of the documents sought to be produced, the claimant submitted:[1]

   “The Claimant cannot see how statements from both drivers and one photograph will assist a Medical Assessor in determining the medical issues currently in dispute. This is a medical dispute, whether medical assessor has been asked to determine whether the injury sustained by the claimant would cause the subject accident and the degree of permanent impairment. The documents which ensure recruitment quest be produced by the New South Wales police have, the claimant submits, no relevance to the issues currently in dispute.

   [1] Claimant’s submissions, para 10.

8. The insurer previously submitted that it requested unredacted documents as they are a “contemporaneous record of the severity the accident and the injuries the claimant alleges to have sustained therein and ought to be part of the material before the Medical Assessor”.

9. I have not requested the insurer’s representative to provide any submissions in response. The claimant’s opposition to production on the grounds of relevance is without merit. I am deciding the matter without requesting further submissions and avoiding further wasted costs.

10. The issue of causation of injury is a matter for the Medical Assessor.[2]

    [2] Motor Accidents Authority of NSW v Mills [2010] NSWCA 82.

11. As a matter of commonsense, the severity and manner of the accident may be relevant to the nature and extent of the claimant’s injuries. The insurer otherwise correctly submitted that the documents would provide a contemporaneous account of the motor accident and possibly any complaints of injury.

12. The test of relevance of a subpoena was described by the Court of Appeal in Waind v Hill[3] as whether the production is reasonably likely to add in some way or another to the relevant evidence in the case.[4] Later cases described the test as whether the subpoena has a legitimate forensic purpose.[5] Clearly these tests are satisfied in this matter.

    [3] [1978] 1 NSWLR 372 (Waind).

    [4] Waind at 384.

    [5] See for example Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.

13. It is often submitted by claimants in medical assessment matters that the motor accident was “serious” or by insurers that the accident was of low impact in addressing the nature and extent of any injuries. As I noted, all of this is a matter of commonsense, that is, the nature and speed of the impact may affect the nature of, and the seriousness of the injuries sustained in a motor accident.

14. It is unnecessary and I do not address the relevance of the documents for any reporting obligations. The documents clearly have relevance to the issue before the Medical Assessors.

15. I have not requested submissions from the insurer in response and solely relied on the claimant’s recent submissions. If the insurer has suffered any injustice, then it has liberty to immediately relist the matter before me to clarify the scope of the direction sought to be issued.

16. The insurer is granted leave to file and serve a direction on the New South Wales Police for unredacted records in accordance with the terms of its letter dated 27 April 2024.