This article continues our series on motor accident compensation in NSW. You can read about the modern motor accident compensation scheme in part 2 found here.
Generally speaking, the procedural requirements under the Motor Accidents Compensation Act 1999 (“MAC Act“) are less onerous than under the new Motor Accidents Injuries Act 2017 (“MAIA“). Some of these requirements are:
s70- Time for Reporting Accident to Police
Unless a police officer attends the scene, a motor accident that gives rise to a claim must be reported to a police officer by or on behalf of the claimant within 28 days after the motor accident. This is the police accident report requirement. See section 70 (1) of the MAC Act. Police usually will not attend a motor accident unless there are serious injuries or multiple vehicles reported to 000. It is not uncommon for Police not to enter details at the Police station when a person attends to report an accident. It is good practice to lodge a written report and be sure to detail a COPS report number.
s72- Time for and Notice of Making of Claims
1. A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death
2. A claim is made by giving notice of the claim as follows:
a. in the case of a claim against a person whose insurer is a third-party insurer, to the person’s insurer,
b. in any other case, to the person against whom the claim is made.
3. The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:
a. that person is dead; or
b. that person cannot be given notice
s73- Late Making of Claims
1. A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
2. Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.
3. If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:
a. the insurer has lost the right to reject the claim on the ground of delay; or
b. a Claims Assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim; or
c. the claim is referred only for a certificate of exemption from assessment under Part 4.4.
4. The insurer loses the right to reject a late claim on the ground of delay if the insurer:
a. does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay; or
b. does not, within 2 months after receiving an explanation for the delay, reject the explanation.
5. If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.
6. An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.
7. On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.
8. In this section, a reference to an insurer includes a reference to the person against whom the claim is made.
Note. The combined effect of sections 72 and 73 is as follows:
A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.
Section 96 provides that a dispute about whether a late claim can be made may be referred to a Claims Assessor.
s74- Form of Notice of Claim
1. A Notice of a claim under this Part must:
a. be in the form approved by the Authority, and
b. set out or be accompanied by such particulars and information as may be required by that form.
s85A- Duty of Claimant to Provide Relevant Particulars of Claim
1. A claimant must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
2. The Authority may approve a form to be completed by claimants in connection with the provision of particulars in compliance with this section.
3. For the purposes of this section, relevant particulars about a claim are full details of:
a. the injuries sustained by the claimant in the motor accident; and
b. all disabilities and impairments arising from those injuries; and
c. any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
s86(1)- Medical and Other Examination of Claimant
A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:
a. to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or
b. to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or
c. to undergo an assessment in accordance with Motor Accidents Medical Guidelines,
Not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.
s89A- Parties Required to Participate in Settlement Conference
1. The parties to a claim must participate in a settlement conference as soon as practicable after the insurer makes an offer of settlement to the claimant under section 82.
2. A claim cannot be referred to the Authority for assessment under this Part until the parties have participated in a settlement conference.
3. A party can however refer a claim for assessment if a Claims Assessor is satisfied that the party is ready and willing to participate in a settlement conference but the other party has refused or failed to participate despite having had a reasonable opportunity to do so.
4. A settlement conference is a conference, the purpose of which is to settle the claim, in which the following persons participate:
a. the claimant, the claimant’s guardian or some other person authorised by the claimant to settle the claim on the claimant’s behalf,
b. a person authorised by the insurer to settle the claim on the insurer’s behalf.
s89B- Parties to Exchange Documents Before Settlement Conference
1. Before the parties’ settlement conference, each party to the claim must provide the other party or parties to the claim with a copy of all the documents on which the party proposes to rely for the purposes of the assessment of the claim under this Part.
2. If a party does not provide a copy of a document before the parties’ settlement conference, the document (and any information contained in the document) is not to be considered or otherwise taken into account by a Claims Assessor for the purposes of the assessment of the claim under this Part unless the Claims Assessor admits the document to assessment on being satisfied that the probative value of the document substantially outweighs any prejudicial effect it may have on another party.
3. An insurer is not required to provide a copy of documents under this section if the insurer suspects on reasonable grounds that the claim is fraudulent or otherwise not made in good faith.
s89C- Settlement Offers to Be Made if Claim Not Settled
1. If the parties participate in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes.
2. A claim cannot be referred to the Authority for assessment under this Part until each party has made the required offer of settlement.
3. An offer of settlement must include a schedule of damages sufficient to explain the manner of calculation of the damages to which the offer relates.
4. A party who has made the required offer of settlement can refer the claim for assessment if more than 14 days have elapsed since the settlement conference concluded and a Claims Assessor is satisfied that the other party has refused or failed to make the required offer of settlement.
s91- Time Limits for Referring Claims
1. A claim may not be referred for assessment under this Part unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by section 89C.
2. However, a claim may be referred for assessment under this Part at any time if:
a. Division 1A (Document exchange and settlement conference before claims assessment) does not apply to the claim (as provided by section 89E), or
b. a provision of Division 1A allows the claim to be referred for assessment under this Part without the parties having participated in a settlement conference or without each party having made the offer of settlement required by section 89C, or
c. the claim is referred for assessment by way of referring the claim for a certificate of exemption from assessment under this Part, or
d. a Medical Assessor has (under section 132 (3)) declined to make an assessment of the degree of permanent impairment of the injured person.
Regulation of Costs
Maximum costs for the provision of legal services and medico-legal services relating to motor accident claims are regulated under the MAC Act. These provisions seek to ensure that transaction costs associated with the Motor Accidents Scheme do not unreasonably contribute to the cost of CTP premiums.
Introduction of the Special Benefit for Children
The children’s special benefit provides the necessary treatment, rehabilitation and care to all children under 16, who are injured in car accidents, regardless of who was at fault. The introduction of the children’s special benefit was a significant change to the previous fault based scheme where a child had to prove they were injured by the fault of the driver to be able to make a claim.
Lifetime Care and Support for the Very Seriously Injured
The Lifetime Care and Support Scheme was introduced in 2006 for children and in 2007 for adults to provide treatment, rehabilitation and attendant care services to people who are very seriously injured in motor accidents in NSW. Services are available regardless of who caused the accident. The scheme is administered by icare lifetime care and is funded by a levy collected through Green Slips.
The changes introduced by the MAIA give to the CTP scheme some of the features of the worker’s compensation scheme. The no-fault principle was introduced under the 1999 MAC Act in relation to Blameless accidents. That principle was expanded under the 2017 MAI Act which is based on no-fault entitlement to limited statutory benefits, to which I shall return. Briefly, at-fault drivers are entitled to weekly compensation and treatment, for a maximum of 26 weeks post-accident. The same restrictions apply to innocent motor accident victims who suffer minor injuries. As we shall see, the devil is in the detail of the definition of Minor Injury. The traditional actor’s admonition to break a leg takes on a whole new meaning.
Read more about Motor Accident Compensation in NSW in part 4 of the series, “Specific Features of the MAIA”, available here.