ByLawyers News and Updates

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 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.

 

Workers Compensation and Motor Accident changes – NSW

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The Workers Compensation Legislation Amendment Act 2018 amends both the Workers Compensation Act 1987 and the Motor Accident Injuries Act 2017.

Some provisions of the amending Act have now commenced, namely those removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury.

Schedules 1, 2 and 3 of the amending Act, which are yet to commence, provide for:

  • the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment;
  • the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with a new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

The By Lawyers NSW Workers Compensation and Motor Vehicle Accident publications have been updated to deal with these amendments.

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 Accident NSW

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View the Motor Vehicle Accident publication on By Lawyers

NOVEMBER 
  • New commentary added on recent amendments to maximum costs recoverable by practitioners – Amendments by Motor Accidents Compensation Amendment (Claims) Regulation 2016
OCTOBER 
  • Retainer instructions – Motor accident claim – Updated references to indexed maximum amounts of damages.
  • Costs Agreements – Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.

Motor Vehicle Accident QLD

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Motor Vehicle Accident

OCTOBER
  • Costs Agreements – Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
AUGUST
  • Added commentary on the National Injury Insurance Scheme Queensland
  • Initial letter to client and Retainer Instructions – information added concerning eligibility for the NIIS scheme after award of damages.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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