ByLawyers News and Updates

Motor vehicle accident – NSW

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Entitlements for people injured in motor vehicle accident claims under the Motor Accident Injuries Act 2017 have become easier to access.

From 1 April 2023, weekly statutory benefits can be obtained from the date of a motor vehicle accident, even if sought more than 28 days after the date of the accident. The 28 day timeframe was previously a strict requirement.

Now, the claim for weekly benefits can be lodged within three months of the motor vehicle accident, if accompanied by a full and satisfactory explanation for the delay in making the claim.

Whether the claimant has a full and satisfactory explanation for the delay is determined by reference to the factors set out in the regulations, namely whether the claimant was aware of the right to make the claim, was under a legal incapacity, or was prevented from making the claim before the expiry of the 28 day period because of illness or injury.

The insurer has 14 days to reject the claimant’s explanation, otherwise it is taken to be a full and satisfactory explanation.

See cl 8A of the Motor Accident Injuries Regulation 2017 and s 6.13 of the Motor Accident Injuries Act 2017.

The following updates to the Motor Accident Guidelines MAG 9.1 also take effect from 1 April 2023:

  • the defined term Minor injury is replaced by Threshold injury; and
  • eligibility for statutory benefits is extended from 26 weeks to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

These changes arise from the commencement of provisions under the Motor Accident Injuries Amendment Act 2022. Refer to our previous News and Updates post from 5 December 2022 for the other amendments under that Act.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

CTP claims costs – NSW

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Reporting of CTP claims costs by legal practitioners in NSW is now lodged via an online portal.

The State Insurance Regulatory Authority (SIRA) has launched a new Claims Costs Disclosure (CCD) portal to capture settlement costs data relating to Compulsory Third Party (CTP) damages claims made under the Motor Accident Injuries Act 2017 (MAIA).

Legal practitioners representing a CTP claimant must provide SIRA with a breakdown of costs related to the settlement of the claim, including:

  • the total amount for which the claim was resolved;
  • all deductions, including all legal costs and disbursements;
  • the total amount paid to the claimant.

CTP claims costs for damages claims settled on or after 1 March 2023 need to be lodged via the new portal. Retrospective disclosure prior to 1 March 2023 is not required. Registration for the portal has been available since 8 February 2023.

The By Lawyers Motor Vehicle Accident – From 1 December 2017 (NSW) guide has been updated accordingly.

Motor accident claims – NSW

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From 28 November 2022 there are some important changes to the legislation for motor accident claims in NSW. Further amendments are scheduled for later commencement.

The Motor Accident Injuries Amendment Act 2022 amends the Motor Accident Injuries Act 2017, which applies to all motor vehicle claims in NSW where the accident occurred on after 1 December 2017.

The amending Act has been informed by a statutory review of the 2017 Act and the motor accident claims scheme it established. The review assessed whether the policy objectives of the Act remain valid and whether the terms of the Act, the Motor Accidents Injuries
Regulation 2017 and the Motor Accidents Guidelines are appropriate for those objectives.

Provisions of the amending Act commencing now include:

  • a new regulation-making power that can allow payment of statutory benefits in the period between the accident and when the claim is made even if the claim is made outside the required 28 days;
  • removing the requirement for internal review by the insurer before a dispute can be referred to the Personal Injury Commission for medical assessment for disputes about the degree of permanent impairment caused as a result of the injuries sustained in a motor vehicle accident;
  • removal of the 20 month waiting period to bring a claim for damages for certain types of claim;
  • removal of the three year time limit on referring damages claims to the Personal Injury Commission without a full and satisfactory explanation of the delay;
  • removal of the bar to claimants with less than 10% whole person impairment settling a claim within two years of the accident; and
  • clarifying that the liability of the nominal defendant and the legislative provisions for claiming against the nominal defendant apply to statutory benefits claims as well as damages claims.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Other amendments in the Act remain pending, scheduled for commencement on 23 April 2024 unless proclaimed earlier. These include provisions for:

  • further regular statutory reviews of the 2017 Act;
  • changing the defined term minor injury to threshold injury;
  • extending weekly payments and statutory benefits for treatment and care expenses from 26 to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

By Lawyers are monitoring the progress of these additional amendments and the guide will be further updated when they commence.

Amendment of the PIC rules – NSW

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Recent amendment of the PIC rules impacts procedure for motor accident claims and workers compensation claims in the Personal Injury Commission.

The Personal Injury Commission Rules 2021 govern proceedings in both of the Commission’s divisions. The rules have received their first review since the PIC commenced operations. The review has resulted in a number of relatively minor tweaks and additions, and one substantial change.

The minor amendments include:

  • provision for consistency across the divisions as to the material that is lodged in applications;
  • provision for compliance with notices for production across divisions;
  • procedure for lodgment and admission of surveillance recordings;
  • provision for SIRA to intervene in Merit Review Panel proceedings;
  • clarification that an application to refer a medical dispute for assessment can be may be made at any time.

Amendment to time limits for appeals

The substantial amendment relates to time limits. An anomaly in the legislation that established the PIC meant that there has until now been no discretion for the Commission to extend the time for an application or appeal beyond the 28-day period provided in the Act. The legislation has now amended to alleviate that situation, and a new Rule 133A is included in this amendment of the PIC rules to enable the time for applications and appeals to be extended where necessary.

The criteria for extension of time under the new rule is that, for the applicant to lose the right to lodge would result in demonstrable and substantial injustice.

The commentaries in By Lawyers Motor Accident Claims – from 1 December 2017 and Workers Compensation publications have been amended accordingly.

Motor Vehicle Accidents – NSW

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The Costs section in the By Lawyers Motor Vehicle Accidents From 1 December 2017  guide has been reviewed and enhanced.

The By Lawyers NSW Motor Vehicle Accident publication contains two separate guides – one for motor vehicle accidents which occurred before 1 December 2017, another for motor vehicle accidents which occurred from that date. This reflects the two separate statutory schemes which apply.

The Costs section of the matter plan and commentary has been re-organised with new sub-headings for improved searchability and additional content. Enhancements include:

  • Restrictions on costs generally clarified and emphasised, given their significance to practitioners for claims under the Motor Accident Injuries Act 2017;
  • Costs in statutory benefits claims – maximum allowances for work relating to each of the three types of disputes in statutory benefits claims – merit, medical and miscellaneous;
  • Costs in common law claims – the allowable costs for common law claims divided into stages of the matter now listed in the commentary;
  • Contracting out of the maximum costs provisions, with commentary on the restrictions that apply;
  • Addition of the recent case AAI Limited trading as GIO v Moon [2020] NSWSC 714 on the ability of the Dispute Resolution Service to award costs above the maximum in certain cases;
  • Payment – how a practitioner submits a tax invoice to the insurer; and
  • Costs disclosure to SIRA – lawyers representing claimants are required to provide SIRA with a breakdown of the costs charged to the client at the end of the matter.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Motor vehicle accidents – NSW

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The By Lawyers NSW Motor vehicle accidents publication has been reviewed by our author, experienced solicitor Kim Rickards, an accredited specialist in personal injury law.

This publication contains two separate guides, covering the two different statutory schemes for motor vehicle accidents which occurred before, or on and after, 1 December 2017.

Accidents prior to 1 December 2017

Claims arising from motor vehicle accidents which occurred prior to 1 December 2017 are governed by and made under the Motor Accidents Compensation Act 1999 (MACA).

Recent decisions which have considered MACA and the operation of the scheme have been added to this commentary. These include IAG Limited T/as NRMA Insurance v Khaled [2019] NSWSC 320  and IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382.

The main issue in these cases was whether an assessor had properly considered, under the SIRA guidelines, whether to issue a certificate under s 92(1)(b) of MACA that the matter was not suitable for assessment by the Claims Assessment and Resolution Service (CARS). The issue of such a certificate is required before the applicant can commence court proceedings for a claim.

Accidents on or after 1 December 2017

Claims arising from motor vehicle accidents which occurred on or after 1 December 2017 are governed by and made under the Motor Accident Injuries Act 2017.

Enhancements to this commentary have been made in a number of areas including Costs and Common law claims, including the very practical suggestion that the insurer be requested to concede that the threshold of 10% whole person impairment is overcome, so as to permit prompt commencement of a common law claim where fault exists on the part of another driver.

 

Updated Motor Accidents Guidelines – NSW

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The Motor Accidents Guidelines which apply to motor accidents in New South Wales after 1 December 2017 under the Motor Accidents Injuries Act 2017 have been updated.

The Motor Accidents Guidelines are available on the SIRA website. The new Guidelines apply from 15 January 2019.

Links and applicable commentary references in the By Lawyers Motor Vehicle Accidents (NSW) guide have been updated accordingly.

Indexation of maximum costs – Motor accident injury claims – NSW

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Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Motor Vehicle Accidents NSW – Post 1 December 2017 amendments

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The Motor Vehicle Accidents NSW Publication has been amended in relation to the new regime brought in by the the Motor Accident Injuries Act 2017 which commenced in full on 1 December 2017 and applies to all motor vehicle accidents occurring after that date. The Motor Accidents Compensation Act 1999 continues to apply to accidents prior to that date and there are accordingly two separate regimes operating for at least three years.

This comprehensive and easy to follow publication helps practitioners to navigate the convoluted and restrictive legislation which applies to motor accident claims in NSW. There are two separate Guides – one for accidents which occurred prior to 1 December 2017 and another for accidents occurring on or after 1 December 2017. Each Guide contains commentary, precedents and forms specific to the relevant statutory regime.

The new Guide is available to all LEAP cloud users and via subscription to the ByLawyers website.

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