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.

Compensation indexation – NSW

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Various amendments for compensation indexation have been applied to the By Lawyers Injuries publications in New South Wales.

Each year on 1 October the various statutory compensation schemes and legislative caps have indexation applied to the maximum amounts recoverable by injured persons.  For 2022 these changes are contained in the following pieces of subordinate legislation:

  • Civil Liability (Non-economic Loss) Amendment Order 2022
  • Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022
  • Motor Accidents (Determination of Non-Economic Loss) Amendment Order 2022
  • Motor Accidents Compensation (Determination of Loss) Order 2022
  • Workers Compensation (Indexation) Amendment Order (No 3) 2022

Wherever applicable, the commentary and precedents – particularly the Retainer instructions precedents – have been updated for these changes in the following By Lawyers publications:

By Lawyers always update our publications for statutory indexing. This typically occurs in most jurisdictions on 1 January, 1 July, and, as in the case of NSW injuries legislation, 1 October each year.

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.

Statutory benefits – MAIA – NSW

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A recent case on statutory benefits under the Motor Accident Injuries Act 2017 has been added to the By Lawyers Motor Accidents From 1 December 2017 (NSW) Guide.

The Act provides that benefits for treatment and loss of income are payable to those injured in motor vehicle accidents, regardless of fault. Where the accident is wholly or mostly caused by the claimant, those benefits cease after 26 weeks.

In AAI Limited v Singh [2019] NSWSC 1300 the Supreme Court considered the potentially complicated question of when the claimant is, or might be deemed to be, at fault and therefore whether statutory benefits should cease after 26 weeks. The court identified an anomaly in the legislation, being an inconsistency between s 5.1 and s 5.6 and opined that ‘Amendment will be necessary if a spate of litigation generated by the obscurities of these provisions is to be avoided’.

The court in this instance determined that the statutory benefits payable to a driver of a single vehicle accident, who was not at fault, should not cease after 26 weeks.

This case has been added to the By Lawyers Commentary under the sections titled No-fault accidents and When do statutory benefits cease, as valuable guidance for subscribers acting for claimants in receipt of statutory benefits.

 

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