Insurer gains access to NSW boater’s blood alcohol test

This week’s NSW Civil and Administrative Tribunal ruling is the first time that the NSW courts have granted an insurer full access to a boater’s police blood alcohol test results while a police investigation is still underway.

The decision opens the door to other insurance companies keen to tap into police evidence in their bid to quickly settle or deny any claim, even before the matter goes to court.

The challenge relates to a boat that collided with an “unknown object” near Crescent Head, NSW in April last year.

The tribunal heard all three men on board were injured in the collision. The claim relates to $341,000 in damage done to the boat.

NSW Police launched an investigation into who was the master of the boat immediately after the crash and took a blood sample from one of the men on board for analysis.

The test results have come back, and NSW Police are yet to lay charges over the incident. In NSW, insurers can apply to police for copies of crash reports.

Lawyers for the insurer said the man tested had agreed for the results to be shared with the insurance company.

Police initially refused to release the result of the blood sample analysis to the insurer, claiming the “disclosure of information relating to an open criminal investigation outweighed the public interest considerations in favour of disclosure”.

Concerns were also raised that releasing the information would infringe privacy laws, with the test results revealing the identity of the person that supplied the blood sample.

This week, though, the NSW Civil and Administrative Tribunal sided with the insurers, saying that it was in the public interest for police to hand over the test results.

“The release of the blood sample analysis will enable the insurer to determine the indemnity claim in respect of damage to the vessel,” NSW Civil and Administrative Tribunal senior member Michael Wall said in his findings.

"In turn that could result in a potential financial benefit to the insured.

“These are valid reasons for seeking access to the results and are weighty considerations," Wall said.

“On the evidence before me, I consider that the release of the information could contribute in a substantial way to the resolution of the insurance claim.”