Sarwary v Allianz Australia Insurance Limited

The claimant, Sarwary, was involved in a motor accident on 2 March 2021 and sought reimbursement for the cost of a transcutaneous electrical nerve stimulation (TENS) machine. The defendant, Allianz Australia Insurance Limited, disputed the payment of the machine's cost, which was valued between $100 and $400. The case was heard in the Personal Injury Commission, which was required to determine whether the insurer was obligated to pay for the TENS machine under the Motor Accident Injuries Act 2017 (2017 Act).

The primary legal issue the court had to decide was whether the TENS machine was a reasonable and necessary expense under the 2017 Act. The court examined the insurer's obligations under clause 4.76 of the Motor Accidents Guidelines, which provides that expenses are reasonable and necessary if they are appropriate and tailored to the injured party's circumstances. The court also considered whether the cost to the parties and the Commission was proportionate to the importance and complexity of the matter. The claimant had not been re-examined, and the court referred to section 42(4) of the Personal Commission Act 2020, which allows for the examination to be waived if it would be of no utility. The court noted that the TENS machine had no downside and was a low-cost, recognised, and appropriate treatment for reducing the perception of pain.

The court found that the TENS machine was a reasonable and necessary expense under the 2017 Act. It determined that the machine was tailored to the claimant's circumstances and that there was no downside to its use as an aid to reduce the perception of pain. The court also considered the proportionality between the cost to the parties and the Commission and the importance and complexity of the matter. Given that the claimant had not been re-examined, the court found that an examination would be of no utility. Therefore, the court ordered the insurer to pay for the cost of the TENS machine and revoked the original assessment.