From December 2017, the way compensation can be claimed for car accident injuries has changed substantially. McAuley Hawach can assist you navigate these changes which can be summarised as follows.
On 1 December 2017, New South Wales saw changes to the Compulsory Third Party Scheme and the Motor Accident Injuries Act 2017 (‘the Act’) come into effect coupled with the Motor Accident Injuries Amendment Regulation 2017 (‘the Regulation’), the Motor Accident Guidelines 2017, and a new Application for Personal Injury Benefits.
The changes affect those injured in car accidents which occur on or after 1 December 2017. Claimants can now be divided into those who are at fault and/or have sustained minor injuries; and, those who are not at fault and have sustained more than minor injuries.
Section 1.6 of the Act defines a minor injury as follows:
“1.6 Meaning of “minor injury”
(1) For the purposes of this Act, a minor injury is any one or more of the following:
(a) a soft tissue injury,
(b) a minor psychological or psychiatric injury.
(2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
(3) A minor psychological or psychiatric injury is (subject to this section) a psychological or psychiatric injury that is not a recognised psychiatric illness.
(4) The regulations may:
(a) exclude a specified injury from being a soft tissue injury or from being a minor psychological or psychiatric injury for the purposes of this Act, or
(b) include a specified injury as a soft tissue injury or as a minor psychological or psychiatric injury for the purposes of this Act.
(5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act (including provision for or with respect to the resolution of disputes about the matter by the Dispute Resolution Service).”
Clause 4 of the Regulation further states as follows:
“4 Meaning of “minor injury” (section 1.6 (4) of the Act)
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
(2) Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act:
(a) acute stress disorder,
(b) adjustment disorder.
Note. See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a minor injury.
(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013.”
Statutory benefits including treatment and wage loss are payable on a no-fault basis for 6 months. Thereafter, benefits will only continue for those who are not at fault and who sustain more than minor injuries. Claimants who were injured whilst performing work duties may be transferred to the workers compensation scheme if eligible.
The Act provides for no fault treatment and wage loss unless the at fault driver is guilty of a serious driving offence or is the driver of an uninsured vehicle. A driver who was contributorily negligent by 61% or more is considered to be at fault. A child under the age of 16 with more than a minor injury is not to be considered at fault.
The Lifetime Care and Support Scheme/ICARE still provides the catastrophically injured with no fault care and treatment for life.
The injured person is still obliged to report the accident to the police within 28 days and a claim for statutory benefits must be made within 3 months from the date of the accident. If a claim for statutory benefits is not made within 28 days from the date of the accident, weekly benefits will not be payable for the period before that claim was made. The Insurer is to advise on liability within 4 weeks for statutory benefits claims made during the first 6 months. Thereafter, the Insurer has 3 months to determine liability for statutory benefits claims. A statutory benefits determination relating to fault is not binding in relation to damages claims.
For claimants who have sustained more than a minor injury and who are not at fault, there is a reduction in statutory benefits after 6 months. If there is contributory negligence, there will be a proportionate reduction to weekly benefits after 6 months. A contributory negligence finding will not however reduce compensation for treatment. Weekly benefits will cease at 104 weeks (2 years) unless there is a pending claim for damages. If there is a damages claim, such benefits will continue for up to 3 years if the claimant has sustained a less than 10% whole person impairment and up to 5 years if the claimant has sustained a more than a 10% whole person impairment. Weekly payments will terminate at retirement age.
For the first 13 weeks, the Claimant may receive 95% of the difference between their pre accident weekly earnings and their post accident capacity. From 14 weeks to 78 weeks, the Claimant may receive 80 or 85% of their pre accident wage if they are totally or partially unable to work. There is a statutory cap for weekly benefits.
After 5 years, treatment benefits may be transferred and paid by the Life Time Care and Support/ICARE.
A claimant has 28 days to seek an internal review on an insurer’s determination. If a claimant is still aggrieved, a merit review must be lodged with the Dispute Resolution Service within 28 days. If required, a claimant can seek a further review by a review panel within 21 days.
For claimants who have sustained more than a minor injury, the damages which may be claimable include but are not limited to non-economic loss, economic loss, Fox v Wood, travel/accommodation expenses and Funds management fees.
For claimants with a whole person impairment of more than 10%, a claim for damages including non-economic loss can be made at any time. For claimants with a whole person impairment of less than 10%, they must wait 20 months before claiming damages. An insurer has three months to determine liability in relation to a claim for damages. For claimants with a whole person impairment of more than 10%, a claim for damages can be settled with the Insurer at any time. For those with a whole person impairment of less than 10%, a claim for damages cannot be settled within 2 years.
There is a 3 year time limit for a damages assessment. If you receive damages, no further economic loss statutory benefits are payable.
Clause 22 of the Regulation fixes maximum legal costs for work done in a motor accidents matter at those set out in Schedule 1 to that Regulation. Clause 25 of the Regulation however does permit a solicitor to contract out of these maximum costs provisions in respect of costs paid on a solicitor and client basis unless the amount paid in resolution of the claim is $75,000 or less.
No costs are payable for legal services provided in connection with an application for internal review by the insurer under Part 7 of the Act. However, pursuant to Clause 24 of the Regulation, this does not apply to a claim that is exempt from assessment under section 7.34 of the Act.
Section 8.3(4) of the Act provides that an Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits in connection with the claim unless payment of those legal costs is permitted by the regulations or the Dispute Resolution Service. The Dispute Resolution Service can permit payment of legal costs only if satisfied that the Claimant is under a legal disability, or, exceptional circumstances exist that justify payment of legal costs incurred.
If the Claimant is a minor (under the age of 18), the claim will be an exempt claim and Clause 26 of the Regulation fixes maximum legal costs for work done in relation to those claims unless, pursuant to Clause 26(4) of the Regulation, the claim resolves for an amount more than $75,000.00.
Lawyers are still required to provide the State Insurance Regulatory Authority with a costs breakdown in the approved form as soon as practicable after the claim is finalised.
For claimants who have recently had a car accident, you may be thinking “how do I claim compensation after a car accident ” or “who is the best compensation lawyer “.
By Samantha Curro, Senior Associate
McAuley Hawach Lawyers
Telephone: (02) 9633 1826
Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia
PO Box 873 | Parramatta NSW 2124 | Australia
DX 8282 Parramatta
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