ByLawyers News and Updates

Motor accident claims portal – NSW

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The Personal Injury Commission has introduced an online motor accident claims portal for electronic lodgement and document management.

The Commission’s Pathway portal went live on 20 June. All new matters are now lodged using the new portal and existing matters have been migrated.

Division 4.3 of the Personal Injury Commission Rules 2021 deals with lodgement of documents into the Commission’s Electronic Case Management (ECM) system, now called Pathway.

See the Commission website for information on how to access Pathway. Practitioners must register and obtain login access.

The new motor accident claims portal is intended to allow for the creation and management of documents and related information in a matter. The parties and the Commission can also communicate through the platform.

The Commission’s website provides extensive information for practitioners, including a detailed online course that steps practitioners through how to:

  • Lodge an application in Pathway Portal
  • Complete a reply request
  • View a reply
  • Send and receive messages
  • View allocation details
  • View outcome documents

The By Lawyers Motor Vehicle Accident – From 1 Dec 2017 guide has been updated 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 statutory scheme for motor vehicle accidents in NSW varies depending upon whether the accident occurred before or after 1 December 2017. The Motor Accidents Compensation Act 1999 applies to accidents before that date. The Motor Accident Injuries Act 2017 applies to accidents that occurred after that date.

A new Motor Accidents Compensation Regulation 2020 commenced on 1 September 2020. It repeals and replaces the Motor Accidents Compensation Regulation 2015. These regulations are under the Motor Accidents Compensation Act 1999 – that is, they relate to claims for motor vehicle accidents which occurred BEFORE 1 December 2017.

By Lawyers Motor vehicle accidents publication has two separate guides to assist practitioners when acting for clients injured in motor accidents under both statutory schemes, before and after 1 December 2017.

The 2020 regulation

The explanatory memorandum for the new 2020 regulation notes:

The object of this Regulation is to remake, with some changes, the Motor Accidents Compensation Regulation 2015, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989. The Regulation provides for the following matters—

(a) the maximum costs for legal services provided in connection with claims relating to motor accidents covered by the compulsory third-party insurance scheme under the Motor Accidents Compensation Act 1999,

(b) the circumstances in which a legal practitioner and party may contract out of those maximum costs for legal services (to the extent they are payable on a practitioner and client basis),

(c) the maximum fees for medico-legal services and expert evidence provided in respect of claims,

(d) the assessment of claims by claims assessors,

(e) other matters relating to costs including what is to occur if a claimant fails to attend a medical assessment, the rate of certain travel expenses and providing for GST to be taken into account,  

(f) the maximum amounts payable by insurers for certain treatment provided to claimants,

(g) the classes of motor vehicles that are taken to be subject to an unregistered vehicle permit for the purposes of section 10A (Treatment of certain vehicles for purposes of third-party policy) of the Act,

(h) the time in which an insurer must pay an assessed amount of damages to a claimant,

(i) prescribing the Australian Prudential Regulation Authority as an authority to which protected information may be divulged for the purposes of section 217 (Secrecy of information obtained from or relating to insurers or proposed insurers and other persons) of the Act,

 (j) providing for information about settlement amounts, deductions and amounts paid to claimants to be disclosed to the State Insurance Regulatory Authority by legal practitioners,

 (k) creating a duty for legal practitioners not to give or receive fees or other consideration in respect of referrals in relation to claims,

 (l) savings and transitional matters.

Publication updates

The changes introduced by the 2020 version of the regulations are not substantial. The most significant is the provision, with some exceptions, for the automatic adjustment for inflation of the maximum costs for legal services and maximum fees for medico-legal services.

The By Lawyers Motor Vehicle Accidents – Accidents prior to 1 December 2017 Guide has been updated accordingly.

Motor Accident claims disputes – NSW

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The NSW State Insurance Regulatory Authority (SIRA) has launched its new digital portal for motor accident claims disputes. The new platform allows online lodgement, gives all parties to a dispute access to real-time status updates, and is designed to enhance communication and efficiency.

Motor accidents in NSW which occurred after 1 December 2017 are covered by the Motor Accidents Injuries Act 2017 (MAIA). Under the MAIA disputes scheme there is a SIRA Dispute Resolution Service (DRS) established by sections 7.2 and 7.3 to consider and determine a wide range of disputes as set out in Schedule 2 of the MAIA.

The types of disputes fall into three broad categories:

  • Merit Review;
  • Medical Assessment issues;
  • Claims Assessment matters;
  • Miscellaneous disputes.

Essentially, the DRS is the ‘one-stop shop’ for disputes under the scheme.

Application for resolution of motor accident claims disputes can now be lodged online via the SIRA DRS portal.

The portal can also be used to check the progress of applications, receive notification of the outcome of the dispute and to lodge any review if required.

To use the portal practitioners need to register an account with Service NSW and link the account with SIRA.

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

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.

Motor vehicle accident – NSW – Calculating interest

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New commentary has been added to the Motor Vehicle Accident (NSW) Guides regarding how to calculate a claim for interest for the period from when the loss to which the damages relate was first incurred, until the date on which the damages are awarded.

The amount of interest is to be calculated in accordance with the principles ordinarily applied by a court for that purpose. The rate of interest is to be three-quarters of the rate prescribed for the purposes of CPA s 101: s 4.16(5) – with the “prescribed rate” being the rate of interest prescribed by reg 36.7 of the UCPR.

Updates to Motor Vehicle Accidents NSW Guide

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Some helpful additions have been made to the commentary:

  • Effect of any settlement or award of damages on income protection policies;
  • Enhanced commentary on statutory benefits under the post-December 2017 scheme, including the critical definition of ‘minor injuries’, with further headings and content for improved readability;
  • Direct link to the ‘Apply for personal injury benefits’ page on the SIRA website, including SIRA’s simple ‘how-to’ video on claiming statutory benefits.

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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