How CTP Insurers May Investigate Claims After 2017 Reforms
After the 2017 reforms to the NSW motor accident compensation system, CTP insurers may still conduct surveillance investigations to assess the credibility of injury claims. However, the legal framework now places stronger limits on when and how surveillance may be used. Under the Motor Accident Injuries Act 2017 (MAIA), insurers must have reasonable grounds to suspect that a claimant’s injuries or activities are inconsistent with their reported condition. Surveillance must not be used to harass, intimidate or unfairly scrutinise a claimant. The primary purpose remains to verify the nature and extent of injuries, not to undermine a claim without evidence.
What Changed in Surveillance Practices Since 2017
The 2017 reforms introduced greater procedural fairness and transparency in insurer investigations. Prior to 2017, surveillance was often conducted without clear limits, sometimes leading to claims being denied based on limited or misinterpreted observations. Since then, insurers must follow SIRA’s guidance on reasonable grounds and proportionality. Surveillance is not permitted merely because a claimant is receiving benefits or has a long-term injury. Insurers must demonstrate that the claimant’s reported limitations are inconsistent with observable behaviour, and that the surveillance is necessary to resolve a genuine dispute about injury or capacity.
Legal Protections for Claimants During Surveillance
Claimants have several legal protections under the MAIA and SIRA’s Motor Accident Guidelines. Insurers cannot conduct surveillance in private areas such as homes, bathrooms, or changing rooms without a court order. Surveillance must not involve deception, such as disguises or hidden recording devices, unless authorised under a court order. Any video or photographic evidence obtained must be used only for the purpose of assessing the claim and cannot be shared with third parties without consent. Claimants have the right to request a copy of any surveillance material obtained by the insurer, and to challenge its accuracy or relevance.
What Evidence Matters in Surveillance Investigations
Insurers typically rely on photographic or video evidence to assess a claimant’s physical capacity. However, the law requires that surveillance must be part of a broader assessment process. Relevant evidence includes:
- Medical reports detailing the nature and severity of injuries
- Treatment and care records, including rehabilitation progress
- A record of the claimant’s daily activities before and after the accident
- Witness statements about changes in mobility, strength or function
- Correspondence between the claimant and insurer
Surveillance alone cannot override medical evidence. If a claimant is medically assessed as having a permanent impairment, that assessment remains binding unless challenged with new, credible evidence.
When Surveillance May Be Considered Reasonable
Surveillance is more likely to be considered reasonable when there is a clear inconsistency between a claimant’s reported limitations and observable behaviour. For example, if a claimant reports being unable to walk more than 100 metres due to back pain, but video evidence shows them walking 500 metres in a public area over several days, the insurer may have grounds to investigate further. However, the insurer must still provide a written explanation for why the surveillance was conducted and how it relates to the claim.
A claimant who is recovering from a soft tissue injury may still be able to perform light household tasks, such as cooking or folding laundry, which do not necessarily contradict a claim for ongoing pain or reduced capacity. Insurers cannot assume that any physical activity equates to full recovery.
Practical Steps if Surveillance Is Conducted
If a claimant becomes aware that surveillance is being conducted, they should:
- Document the date, time, location and details of any observation
- Avoid altering behaviour in response to the surveillance
- Continue to follow medical advice and treatment plans
- Keep a record of all communications with the insurer
- Seek independent legal advice if they believe the surveillance is unreasonable or intrusive
It is not a legal requirement to report surveillance to a medical practitioner, but doing so may help ensure consistency in medical records.
Hypothetical Example: Surveillance in a Claim with a Reported Back Injury
A 42-year-old woman was involved in a rear-end collision in a car park in Sydney in August 2024. She reported ongoing lower back pain and was assessed as having a 12% whole person impairment. She received treatment and care benefits and weekly income payments for 40 weeks. In January 2025, her insurer obtained video footage showing her lifting boxes at a community event. The insurer used this to question her claim for ongoing pain and reduced capacity. The claimant challenged the video as not showing her lifting heavy items or performing tasks that would contradict her medical reports. The insurer was required to justify why the video was relevant and to provide a written explanation under SIRA’s guidelines.
Time Limits and Dispute Options
There is no fixed time limit for when surveillance may be conducted, but insurers must act within a reasonable timeframe. If a claimant believes surveillance was conducted unfairly or in breach of SIRA’s guidelines, they may request a review from the insurer or apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. The claimant must notify the insurer in writing if they believe the surveillance was improper. Disputes over surveillance must be resolved before a claim can proceed to damages assessment.
Next Steps: When to Seek Advice
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