Claims Assessment and Resolution Service Assessor Guidance Material

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1 Claims Assessment and Resolution Service Assessor Guidance Material Costs regulation 2015

2 Disclaimer This publication contains information about claims assessments under the NSW Compulsory Third party scheme. Claims Assessments are subject to relevant provisions of the Motor Accidents Compensation Act, the Motor Accidents Compensation Regulations and MAA Claims Assessment Guidelines. Information on the latest law relating to claims assessments can be checked by visiting the NSW legislation website This publication is provided to Claims Assessors to promote accurate and consistent decision making. This publication is made available to the public but does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. Members of the public should seek independent legal advice if they need assistance on the application of the law to their particular situation. Motor Accidents Authority

3 Contents Legislative framework 3 The Act 3 The Regulations 3 Unregulated costs 4 General matters 4 Specific provisions in clause 4 4 Clause 4(b) accountants reports 4 Clause 4(c) health practitioner reports 5 Clause 4(d) other professional reports 5 Clause 4(e) interpreter or translation services 6 Clause 4(f) court fees 6 Clause 4(g) claimant travel and expenses 6 Clause 4(h) witness expenses 6 Legal practitioner costs 7 Clause 6 maximum legal costs 7 Schedule 1 Table A generally 7 Schedule 1 Table A Stage 2 7 Schedule 1 Table A Stage 3 8 Schedule 1 Table A Stage 4 8 Schedule 1 Table A Stage 5 9 Schedule 1 Table A Stage 6 9 Issue with Schedule 1 Table A What is the amount of the assessment? 10 Issue with Schedule 1 Table A Liability not wholly admitted? 10 Other costs for legal services 10 Costs associated with a medical dispute 11 Costs associated with a section 96 dispute 12 Cost of representation at an assessment conference 13 Cost of conference related to an assessment of the claim 14 Country loadings 14 Medico-legal fees and expert witnesses 15 Clause 10 maximum fees for medico-legal services generally 15 Schedule 2 maximum fees for particular medico-legal services 16 Photocopying 16 Clause 11 Limit on costs for expert witnesses 17

4 Costs penalties 17 Division 1A of the Act 17 Clause 15 costs where insurer does not accept assessment 17 Clause 16 non-attendance or cancellation of appointment 17 Other matters 18 Clause 13 assessment of costs to produce information 18 Clause 17 private motor vehicle travel expenses 18 Clause 18 GST may be added to costs 18 The assessment of costs process 19 Clause 12 claims assessor may assess costs 19 How are costs assessed? 19 Appendix 1 21

5 Legislative framework The Act 1. There are a number of sections of the Motor Accidents Compensation Act 1999 (as amended) relevant to the assessment of costs at CARS. 2. Section 94A applies to claims made on or after 1 October 2008 and empowers a Claims Assessors to assess costs. The source of the Claims Assessors power to assess costs for claims made before 1 October 2008 is clause 12 of the Motor Accidents Compensation Regulation Sections 149 and 150 contain the regulation making power for the maximum costs recoverable by legal practitioners and medical practitioners undertaking medico-legal work in connection with a claims assessment. The Regulations 4. Since the passage of the Motor Accidents Compensation Act 1999, the Parliament has enacted the following regulations to cover, amongst other things, the assessment of costs for claims in the scheme: a. Motor Accidents Compensation Regulation 1999 b. Motor Accidents Compensation Regulation 2005 (noting that the amount of costs and fees was increased in 2008) c. Motor Accidents Compensation Regulation The Motor Accidents Compensation Regulation 2015 applies generally on and after 1 April 2015 however the savings and transitional provisions require careful consideration: a. The amounts provided for in Tables A and B apply only to claims made on or after 1 April 2015 b. Costs for MAS matters apply only to referrals to MAS made on or after 1 April 2015 c. Costs for special assessments apply only to referrals to CARS (CARS form 5A) lodged on or after 1 April 2015 d. Fees for medico-legal reports apply only to services requested in writing on or after 1 April 2015 e. Costs for assessment conferences representation (including loadings) apply only to assessment conferences occurring on or after 1 April To assist Claims Assessor a summary commencement timing table is included as appendix 1 to this guidance material. 7. A reference to a clause of the regulation in this guidance material is, unless otherwise provided a reference to a clause in the Motor Accidents Compensation Regulation As this material is directed at, and is written for Claims Assessors there is no detailed consideration of those parts of the 2015 regulation not dealing with the assessment of costs at CARS. However Assessors should be aware of the following provisions that relate to costs and concern practitioners in the scheme as well as other clauses not relevant to costs at all: a. Clause 7 the regulation of legal costs and medico-legal services only applies for claim not exempt from assessment. If a claim is exempt, the claim is exempt from the costs regulation scheme b. Clause 8 permits contracting out as between a claimant and his or her solicitor c. Clause 19 the regulation of treatment expenses d. Clause 20 unregulated vehicle permits e. Clause 21 the time for an insurer to pay damages assessed f. Clause 22 APRA is a prescribed authority g. Clause 23 efficiency of the scheme practitioners are to provide a costs breakdown at the conclusion of an assessment h. Clause 24 referral fees not permitted. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

6 Unregulated costs General matters 9. Certain costs are not regulated as clause 4 opens with these words: Costs referred to in this Part (Division 4 excepted) do not include any of the following: 10. If a disbursement or cost is claimed in respect of a report or service listed in clause 4 or which could be interpreted as coming within the scope of one of the listed items, it is likely to be included in the assessment and allowed in full subject to general and Legal Profession Act 2004 principles of reasonableness, usefulness and so on. Note also section 149(3) might also apply to the assessment of unregulated costs by a Claims Assessor. 11. If a disbursement or cost is claimed in respect of a report or service not otherwise regulated and not listed in clause 4 or which cannot be interpreted as coming within the scope of one of the listed items it is not likely to be allowed eg general photocopying and facsimile fees incurred by the claimant s solicitor. 12. If the claimant claims the costs of a report obtained but not served on the insurer and not relied on during the CARS assessment, the costs are not likely to be allowed unless the claimant can demonstrate it is reasonable to allow the costs. 13. Disbursements which are in reality treatment (or diagnostic) expenses (eg CT or MRI scans and reports about those scans obtained at the request of a solicitor and not by way of a referral from a doctor) are not likely to be allowed as disbursements. 14. Professional work contracted out and claimed as disbursements (eg taking statements from witnesses on quantum issues) will be carefully scrutinised and may not come within the scope of clause 4. Specific provisions in clause 4 Clause 4(a) accident investigation and reconstruction reports Fees for accident investigators reports or accident reconstruction reports 15. Police reports are usually claimed under this sub-clause. It is usual to allow the costs or fee associated with the police report under this section as claimants require the report to fill in the claim form and the small fee (less than $100) if paid, would likely save on accident reconstruction reports from experts. Claims Assessors have found on many occasions that the attending police who complete the police report are investigating the accident and making a report. 16. Fees and costs associated with making due enquiry and search (for claims made against the Nominal Defendant in respect of an unidentified vehicle) have been claimed and allowed under this sub-clause as they are fees or costs associated with investigating or reconstructing an accident preparatory to a more formal expert report. 17. Claims Assessors have found that this sub-clause does not appear to extend to the taking of statements from claimants and witnesses in relation to quantum issues. Clause 4(b) accountants reports Fees for accountants reports 18. This clause has been found by Claims Assessors to cover accountants reports about economic loss but also the fees associated with obtaining copies of taxation returns held by an accountant or from the taxation office. 4 MOTOR ACCIDENTS AUTHORITY

7 Clause 4(c) health practitioner reports Fees for reports from health practitioners (other than medical practitioners) 19. The Health Practitioner Regulation National Law (NSW) identifies 14 health professions. One of those is the medical profession and fees and costs associated with services provided by the medical profession are regulated by section 150 of the Motor Accidents Compensation Act 1999 and Schedule 2 of the Motor Accidents Compensation Regulation Fees and costs associated with services provided by the following 13 other health professions are not regulated: a. Aboriginal and Torres Strait Islander health practice b. Chinese medicine c. chiropractic d. dental e. medical radiation practice f. nursing and midwifery g. occupational therapy h. optometry i. osteopathy j. pharmacy k. physiotherapy l. podiatry m. psychology. 21. If a report from a health practitioner in one of the above 13 is submitted, it should be allowed in full subject to the overall test of reasonableness, usefulness and so on. Claims Assessors should take care when assessing costs and fees associated with psychiatrists (regulated) and psychologists (unregulated), occupational physicians (regulated) and occupational therapists (unregulated). 22. Claims Assessors have allowed the costs or fee associated with obtaining the ambulance and hospital notes under this or the next sub-clause. 23. The costs of a doctor associated with producing clinical records should not be allowed under this clause but should be allowed as a medico-legal report in accordance with Schedule 2. Clause 4(d) other professional reports Fees for other professional reports relating to treatment or rehabilitation (for example, architects reports concerning house modifications) 24. Note the definitions of rehabilitation in section 3 of the Act and treatment in section 42 of the Act are very wide indeed. 25. Claims Assessors have found that this sub-clause does not appear to extend to the taking of statements in relation to quantum issues. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

8 Clause 4(e) interpreter or translation services Fees for interpreter or translation services 26. CARS and MAS arrange and pay for interpreters to be present at CARS hearings and MAS appointments if this is noted on the application or reply forms or CARS or MAS are otherwise advised. 27. Interpreter or translation services may be incurred by the claimant s legal practitioner for events such as completing the claim form, taking instructions and completing the CARS form 2A and so on. Clause 4(f) court fees Court fees 28. Court fees is defined in section 154 (for the purposes of that section only) to mean court fees payable in respect of a claim determined by a court which was not the subject of an assessment by CARS, in other words an exempted claim. Section 154(2) is the source of the power to make provision in the regulation for court fees. 29. The reference in clause 4(f) to court fees is probably wider that the definition in section 154 and would be of relevance to Claims Assessors who may need to assess costs in relation to matters which have been to court (following an original assessment at CARS) and where a certificate is being issued following a further assessment. In that case a Claims Assessor would be assessing the legal costs and disbursements associated with the initial CARS assessment, the court proceedings and the further CARS assessment and it would be reasonable to include the court filing fees paid by the claimant. 30. Note Schedule 1 provides a stage, stage 6, allowable if a matter proceeds to court after a CARS assessment and the table for other costs for legal services in Schedule 1 of the regulation provides for the costs associated with an interlocutory matter, court hearings, country loadings and so on. Clause 4(g) claimant travel and expenses Travel costs and expenses of the claimant in the matter for attendance at the Claims Assessment and Resolution Service or a court 31. Travel costs and expenses are not regulated although the claimant s costs for attendance at medical assessments, obtaining rehabilitation or medical examinations is regulated by clause 17 of the regulation and is to be calculated at $0.55 per kilometre. Clause 4(h) witness expenses Witness expenses at the Claims Assessment and Resolution Service or a court 32. These are also not regulated other than Schedule 2 which provides for a travelling allowance of 55 cents per kilometre for medical practitioners appearing as witnesses. There is a separate fee for the time involved in a medical practitioner travelling and appearing as a witness. 33. If a health practitioner (not being a medical practitioner doctor) appears as a witness at CARS, their expenses are also regulated. 6 MOTOR ACCIDENTS AUTHORITY

9 Legal practitioner costs Clause 6 maximum legal costs (1) Except as otherwise provided by this Part, the costs set out in Schedule 1 are the maximum costs for: (a) legal services provided by a legal practitioner to a claimant or to an insurer in any motor accidents matter, and (b) matters that are not legal services but are related to proceedings in a motor accidents matter 34. The use of the word maximum suggests an assessor cannot assess costs in excess of the maximum and that there is a range from $0 to the maximum allowable. In assessing costs at less than the maximum, the Claims Assessor should consider amongst other things: a. The amount of work done (or not done) by the claimant s representative b. Who did the work (senior practitioner vs paralegal) c. The complexity of the case d. Compliance or non-compliance with directions of the Claims Assessor e. Attendance or non-attendance at CARS preliminary or assessment conferences f. Whether the matter was assessed with a three hour conference or on the papers. Schedule 1 Table A generally 35. This is the schedule that applies where a legal practitioner has been retained to assist the claimant with the claims, medical assessment and claims assessment processes. 36. The schedule also contains a Table B which only applies where a legal practitioner was first retained after a certificate of assessment is issued under section 94 of the Act. Claims Assessors should rarely have to refer to table B except in the case of further assessments. 37. Table A provides a series of six stages. No costs are allowable for the first stage (assistance provided by a legal practitioner in completing an accident notification form). Schedule 1 Table A Stage This stage provides an allowance for costs in the sum of $ in the case of a legal practitioner acting for a claimant and is described as follows: From the acceptance of the retainer to the preparation and service of a notice of claim under section 72 of the Act (including the provision of all relevant particulars about the claim to the insurer, even if those particulars are requested after the claim is served). 39. The wording for this stage does not appear to recognise that all relevant particulars of the claim (within the meaning of section 82(5) of the Act for claims made before 1 October 2008 or section 85A for claims made on or after 1 October 2008) are rarely, if ever, provided at the time of service of the claim form and will only crystallise much later when injuries resolve or stabilise. 40. If the claimant s solicitor did not fill in the claim form but did answer requests for documents and information and have otherwise acted in relation to the matter some part of the amount is likely to be allowed although the assessor may not necessarily assess the claimant s costs at the maximum amount provided again it will depend on the amount of work done and so on. 41. Solicitors acting for insurers are not entitled to any costs for any work done in this stage. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

10 Schedule 1 Table A Stage This stage provides an allowance for costs in the sum of $ in the case of a legal practitioner acting for a claimant and is described as follows: From service of the notice of claim under section 72 of the Act to the preparation and service of a response to the insurer s offer of settlement under section 82 of the Act. 43. The wording for this stage presumes the insurer makes an offer of settlement in every claim. If the insurer did not ever make an offer before a claim was referred to CARS (under section 91(2)(a) and section 89E(b)) Claims Assessors usually allow the costs associated with this stage at the maximum amount claimed because of the amount of work done after serving the notice of claim. 44. Solicitors acting for insurers are not entitled to any costs for any work done in this stage. Schedule 1 Table A Stage This stage provides an allowance for costs in the case of a legal practitioner acting for either a claimant or insurer. 46. The amount of costs allowable for this stage will vary depending on firstly the amount of damages for which the claim resolves and secondly whether liability was wholly admitted or not and is described as follows: If resolution of the claim occurs without the issue of a certificate under section 94 of the Act from service of the response to the insurer s offer of settlement under section 82 of the Act to resolution of the claim (in addition to the $724 specified for stages 2 and 3 if chargeable). a) not more than $20,000 and liability wholly admitted b) not more than $20,000 and liability not wholly admitted c) $20,001 $50,000 and liability wholly admitted d) $20,001 $50,000 and liability not wholly admitted e) $50,001 $100,000 and liability wholly admitted f) $50,001 $100,000 and liability not wholly admitted g) more than $100,001 and liability wholly admitted h) more than $100,001 and liability not wholly admitted 47. In the previous versions of the regulations, clauses (b), (d) and (h) provide that if the insurer denied liability for up to 25 per cent of the claim a higher amount was payable than if liability was never in issue. 48. In the 2015 version of the regulations the distinction in clauses (b), (d) and (h) is between liability wholly admitted and liability not wholly admitted. This recognises the change to the exemption criteria listed in clause 8.11 of the Claims Assessment Guidelines and acknowledges that there are many matters assessed at CARS where liability is in issue other than where there is an allegation of contributory negligence. 8 MOTOR ACCIDENTS AUTHORITY

11 Schedule 1 Table A Stage This stage provides an allowance for costs dependant on the sum of the assessment as follows: If resolution of the claim occurs after the issue of a certificate under section 94 of the Act but without the commencement of court proceedings - from the issue of the certificate to finalisation of the matter. The total of the following: (a) an amount determined in accordance with stage 4, by reference to the amount of the assessment as if that assessment were the resolution amount referred to in stage 4, and (b) for each dollar of the assessment amount $ Essentially a claimant is entitled to costs up to a maximum of 2 per cent of the amount of the damages assessed. 51. If the matter proceeds to assessment conference but settles at the conference and a certificate is issued by the assessor, then costs should be allowed for stage 5, but the assessor may not wish to allow the maximum depending on the time of the settlement and so on. 52. If the matter settles at a preliminary conference or after a preliminary conference, but before the assessment conference and a certificate is issued the same considerations would apply. 53. Stage 4 is described as from service of the response to the insurer s offer to finalisation of the matter if settlement occurs without the issue of a certificate. If a certificate is not issued, stage 5 has not been triggered. It is however usual practice for a Claims Assessor issuing a certificate of assessment of damages including an assessment of costs on that certificate to include an amount for stage 5. Schedule 1 Table A Stage The final stage (for claims not exempt from assessment) is stage 6 and the amount of the assessment is relevant to the calculation of the amount of costs for this stage as follows: If the matter is finalised after the commencement of court proceedings (whether by way of settlement or an award of damages) from the issue of the certificate under section 94 to finalisation of the matter: (a) an amount determined in accordance with stage 5, and (b) for each dollar of the settlement or award amount This stage is chargeable should a matter be assessed at CARS and the claimant rejects the assessment and commences legal proceedings. Generally it would be the court or the parties determining or calculating the costs associated with this stage. 56. If the claimant rejects a CARS assessment and the claim returns to CARS after court proceedings are commenced for further assessment in accordance with section 111 a Claims Assessor may have to assess costs for this stage. In doing so the Claims Assessor would need to consider: a. any disbursements incurred at or before the court (including court filing fees) b. any orders of the court in relation to any interlocutory proceedings c. the amount of any revised assessment figure which would form the basis of the costs calculated for stages 4, 5 and 6. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

12 57. If the insurer rejects a CARS assessment and the claim returns to CARS after court proceedings are commenced for further assessment in accordance with section 111 a Claims Assessor may also have to assess costs for this stage. Clause 15 provides however that the insurer is liable to pay all of the claimant s party-party costs and the maximum amount in the Regulations (stage 6) would not apply. The Claims Assessor may want to seek submissions from the parties before undertaking the assessment of costs in such matters. Issue with Schedule 1 Table A What is the amount of the assessment? 58. The costs for stages 4, 5 and 6 are based on the amount of the assessment, however no guidance is given as to whether the Claims Assessor should assess costs based on the gross amount of damages assessed or the net amount after any reduction for contributory negligence and/or any reduction for section 83 payments made by the insurer or other sums to be deducted under section Section 130 is silent on the point and the regulations do not provide any assistance. 60. Section 153(2) provides that a court when assessing costs is to assess costs after reductions or deductions provided for in Chapter 5 of the Act. This Chapter includes deductions under section 130, reductions for failure to mitigate damages (section 137 and contributory negligence (section 138). 61. Claims Assessors have adopted the practice of calculating costs based on damages assessed after the application of contributory negligence but before deducting any amounts under section The Claims Assessor may however not wish to assess the maximum costs if for example a large proportion of the assessed damages are made up of amounts such as section 83 payments that were never in dispute. Issue with Schedule 1 Table A Liability not wholly admitted? 63. When calculating the amount of costs for stage 4, the amount will depend on whether liability is or is not wholly admitted. The wording for each is as follows: if the resolution amount is... and the insurer did not wholly admit liability for the claim... if the resolution amount is... and the insurer wholly admitted liability for the claim 64. The first issue likely to confront a Claims Assessor will be when an insurer has initially not wholly admitted liability and then later wholly admitted liability. For example the insurer issues a section 81 notice within three months of receipt of the claim form denying liability because it is investigating how the accident occurred and then six months later when its investigations are complete wholly admits liability. Another example might be when an insurer admits liability and alleges 30 per cent contributory negligence in its section 81 notice but then at the assessment conference abandons any allegation of contributory negligence. 65. The use of the past tense in the regulation suggests the Claims Assessor should look at the insurer s initial liability decision to determine which of the two costs regimes applies however in determining how much of the maximum to apply the Claims Assessor might consider the time at which the change in liability occurred and the work done by the claimant addressing the liability issue. Other costs for legal services 66. Clause 2 of Schedule 1 provides an amount of costs for various other events in the life of a claim. 67. The opening wordings of sub-section (1) provide a double discretion firstly the Claims Assessor is reminded it is a table of maximum amounts (suggesting a something less than the maximum can be awarded in some claims) and secondly the Claims Assessor may include them in the assessment (but presumably does not have to). 10 MOTOR ACCIDENTS AUTHORITY

13 Costs associated with a medical dispute 68. Significant changes occurred to the quantification of costs in association with medical disputes under the 2015 regulation as follows: Costs associated with a medical dispute about a medical assessment matter under Part 3.4 of the Act, as allowed by the claims assessor or court: (a) maximum amount per medical dispute referred to the Authority under section 60 of the Act $1,000 (b) maximum amount per medical dispute referred to the proper officer of the Authority under section 62 of the Act (but only if further assessment occurs under that section) $1,000 (c) maximum amount per medical dispute referred to a review panel by the proper officer of the Authority under section 63 of the Act $1,000 (d) maximum amount per claim $2, The regulation therefore gives an amount for each initial dispute referred to the MAA under section 60, a further amount for a further assessment under section 62 or review under section 63 but only to a maximum of $2,500 per claim. 70. In the case of a referral to MAS for further assessment under section 62 or a referral for review of a medical assessment under section 63, a maximum amount of $1,000 legal costs can be assessed but only if the matter progresses past the proper officer gateway. If an insurer makes the referral for further assessment or review and the claimant replies to the application and the dispute does not progress to further assessment or a review panel then unfortunately for the claimant, no additional costs can be awarded. No specific mention is made in the regulation of a referral to the proper officer by a Claims Assessor under section 62(1)(b), but there does not appear to be anything preventing the award of costs in that circumstance, although as the Claims Assessor is making the application and no proper officer gateway test is applicable, the Claims Assessor may not want to assess costs at the maximum. 71. What is a medical dispute? Medical dispute is defined in section 57 as a disagreement or issue to which this Part applies. In determining whether there is one or more medical disputes in a matter the assessor will need to consider: a. The interpretation of section 58(1) which refers to three different types of disagreements one of which is a disagreement about whether the degree of impairment of the injured person is greater than 10 per cent. Therefore a dispute about whether John Smith s surgery is reasonable and necessary treatment is one dispute worth up to $1,000 in costs and a dispute about John Smith s whole person impairment is another dispute also worth up to $1,000. b. The interpretation of section 58(2) which refers to any issue about the three types of disagreements in proceedings before a court or in connection with the assessment of a claim by a claims assessor. c. Section 60(1) which provides that a medical dispute may be referred to the Authority for assessment and therefore the number of applications for assessment by MAS lodged by the claimant or insurer may not be relevant but the number of disputes. A claimant may refer a dispute about whole person impairment to MAS and nominate physical injuries only. The claimant may then refer his psychiatric injury for assessment at a later date. Although two separate applications were lodged only one dispute (about the degree of whole person impairment) existed. d. Section 60(2) which provides for the referral of the dispute to one or more medical assessors. Therefore the number of assessments is relevant to the assessment of costs in terms of determining whether $0 $1,000 is allowed but which may not determine whether up to $2,500 is allowed. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

14 72. When determining whether or not to allow the maximum for a MAS dispute or alternatively how much to assess for the legal costs associated with a MAS dispute the assessor may consider: a. Who lodged the application to MAS, the claimant or the insurer? b. Did CARS refer the disagreement or issue and did the parties have to do anything? c. If the insurer lodged the application did the claimant lodge a reply form? d. If the claimant lodged the application how detailed was the application? e. Was the dispute a realistic dispute where for example permanent impairment was borderline, or was the application in respect of an injury never likely to get over the threshold such as a healed broken finger? f. Were there multiple appointments/reports or was there one appointment and one report? 73. If a medical dispute was the subject of an application that was made but was subsequently rejected or dismissed by MAS should costs be allowed? Costs are not likely to be allowed if the application was made incorrectly and was rejected at the application stage. If however the matter was dismissed at the preliminary assessment stage after the application and reply had been received, an amount is likely be allowed, but the Claims Assessor is not likely to allow the maximum. 74. Note the transitional provisions which allow the 2015 amended regime for costs of a medical dispute only in disputes referred to the MAS on or after 1 April Clearly if an original first referral under section 60 was made to MAS after 1 April 2015 the new higher costs are allowable but if the dispute was originally referred to MAS under section 60 before 1 April 2015 but the application for review under section 63 was lodged after 1 April 2015, the answer is not so clear. It would appear that the original referral would be subject to the maximum allowed in the 2005 regulation ($670) while the application for further assessment or review would attract the new fee of up to $1,000. Costs associated with a section 96 dispute 75. If an application for special assessment is made (CARS form 5A) costs may be awarded either at the conclusion of the general assessment (assessment of the claim under section 94) or after the assessment of the dispute. The 2015 regulation makes significant changes to this regime as well and says: Costs associated with a dispute referred to in section 96 of the Act, as allowed by the claims assessor: (a) maximum amount per dispute $1,200 (b) maximum amount per claim (not including any amount for a dispute referred to in section 96(1)(e)-(g) $2, The regulation permits costs of $1,200 per dispute up to a maximum of $2,500 for the claim however an unlimited number of disputes is permitted if the type of dispute is about particulars, payment of treatment expenses or payment of a hardship payment. This would appear to be because the number of these disputes is not within the control of the claimant and could operate unfairly. 77. For claims made on or after 1 October 2008 section 96(5) empowers a Claims Assessor to assess the costs associated with a section 96 dispute at the time of the special assessment. It is doubtful that clause 15(1) now allows an assessor to assess (and put on the certificate) costs of a section 96 dispute at the time the section 96 certificate is issued if the claim was made before 1 October There is nothing in the regulations that prevents an assessor assessing costs for an unsuccessful claimant but as costs would usually be expected to follow the event Assessors will need to provide even more detail in the Statement of Reasons to explain to both parties why the assessment of costs is being made. 12 MOTOR ACCIDENTS AUTHORITY

15 Cost of representation at an assessment conference 79. This part of the schedule provides: Costs of representation at an assessment conference under section 104 of the Act (a) maximum flat fee $1, (b) maximum additional amount per hour for each hour in excess of 2 hours $ The fee of $1, would not be allowed if the matter was assessed without an assessment conference ie on the papers. 81. While the regulations provide for Counsel s fees for appearing at court, there is no additional fee for counsel appearing at a CARS conference therefore the costs for representation at an assessment conference is payable if the claimant is represented by a barrister and/or a solicitor. Therefore if both a barrister and solicitor appear the cost is effectively shared between them. 82. The additional hourly fee is at the Claims Assessor s discretion but assessors might want to consider: a. When the 2 hours commences the 2 hours should start at the time the assessor commences the assessment and should include any time the assessor allows the parties to explore settlement after opening the conference. b. Or part of an hour suggests that the assessor should round up the hour rather than round down. c. The additional costs might not be allowed if, for example, the claimant or the claimant s legal representatives wasted time or were late. d. The additional hourly maximum cost might not be allowed (ie something less than an hour) depending on who was representing the party (para-legal vs experienced Counsel). 83. Is a preliminary conference an assessment conference under section 104 and therefore if the claimant is represented at a preliminary conference can the fee of $1,250 be claimed? An assessment conference is defined in section 104(1) as: any conference or other proceeding held with or before a claims assessor in connection with an assessment of a claim, and includes any such proceedings at which the parties (or some of them) participate by telephone, closed circuit television or other means. 84. On its face it would appear that a preliminary conference is a type of assessment conference. However the guidelines clearly distinguish between a preliminary conference as part of the preliminary assessment of the claim (chapter 14 and particularly clause ) and an assessment conference (chapter 15) as part of the assessment of the claim. An assessment conference may be done by way of a teleconference but that does not make every teleconference an assessment conference. Even if a preliminary conference is an assessment conference and would attract this fee, the fee is a maximum of $1,250 and as a preliminary conference usually last no more than 30 minutes it is likely the full amount would and should not be allowed. However a preliminary conference is likely to attract the fee of $300 discussed below. 85. In terms of the cost of representation note also that clause 2(2) of Schedule 1 provides as follows:... an amount for the fees for senior counsel, or more than one advocate, are not to be included unless the court so orders. 86. The amounts allowed for senior and junior counsel refer clearly to representation in court and do not relate to CARS assessments however Claims Assessors are reminded of clause of the Claims Assessment Guidelines which provides that if more than one advocate is to represent a party at the assessment conference prior approval is to be obtained from the claims assessor. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

16 Cost of conference related to an assessment of the claim 87. This part of the schedule is worded as follows: Cost of conference directly related to an assessment of the claim or a court hearing, per hour $ The regulation requires there to be a direct relationship between the conference and the CARS assessment therefore a preliminary conference between the Claims Assessor and the two representatives of the parties to the assessment would appear to attract this fee. A conference between the claimant and solicitor to settle the personal injury claim form is not likely to attract the conference fee whereas a conference between the claimant and solicitor to settle the application for general assessment form, statements, schedule of damages and so on would probably attract the fee. 89. The fee for a conference is not restricted to conferences between client, solicitor and barrister (counsel). However if a barrister and a solicitor were conferring the claimant can only recover one fee of $300 per hour and not two conference fees. 90. The wording of this clause has been changed from previous iterations of the regulations. Before the fee was allowed per hour, or part thereof. The words part thereof have been removed but it is doubtful that this would cause any alteration in the way these costs would be assessed. The costs are after all a maximum and if a conference lasted 30 minutes the Assessor might not wish to allow $300 being the maximum. 91. The overriding consideration in relation to this regulation is reasonableness of the conference in all the circumstances of the case: a. Is there a direct relationship between the conference and the assessment? b. How long is the conference claimed? Is this reasonable? Was a conference necessary? Did the conference add anything to the assessment? c. Was an interpreter required, was it a complex matter this may affect the length of the conference? d. How many conferences are claimed? Is this a reasonable number? Were all conferences necessary? What value were the conferences to the assessment? e. The evidence provided by the claimant and/or the legal representatives about how many conferences occurred and the length of the conferences. Country loadings 92. Clause 3 of Schedule provides for country loadings and can be summarised as follows: a. Sydney advocates get a loading for a country assessment b. Country advocates get a loading for a city assessment c. Country advocates get a loading for an assessment in a country location outside their region. 93. Considerations for assessors: a. if a town is not included in the list of country places use the nearest town b. if the advocate has two matter listed for assessment on the one day the loading is to be shared between them c. if the assessment is heard interstate, the loading is a reasonable one. 94. The loadings sections allow an advocate to recover a loading and for the assessor to include it in the assessment. The term advocate is usually associated with a barrister and therefore if a barrister is representing the claimant it is clear he or she will be entitled to a loading. If a solicitor appears as advocate without a barrister to represent the claimant then a loading would also seem appropriate. But what if for example both the solicitor and the barrister come from the country to conduct an assessment in Sydney or interstate is one or both entitled to a loading? 14 MOTOR ACCIDENTS AUTHORITY

17 95. Note clause of the Claims Assessment Guidelines provide that a party may be represented at an assessment conference by a legal practitioner A party may not be represented by more than one advocate without the prior approval of the assessor. Therefore as only one loading is allowed per advocate unless the Claims Assessor has allowed there to be more than one advocate it is likely only one loading will be allowed per matter. Medico-legal fees and expert witnesses 96. Section 150 of the Act and clause 9 and 10 regulate medico-legal services by medical-practitioners. This Division is made under section 150 of the Act and applies in respect of fees for the provision of medical reports, and appearances as witnesses, by medical practitioners. 97. The regulation making power comes from section 150 of the Act which provides that: (1) The regulations may make provision for or with respect to fixing maximum fees for the provision by medical practitioners of the following services: (a) provision of any medical report for use in court proceedings in connection with a claim, or for use in connection with the assessment of a claim by a claims assessor, or for use in connection with a medical assessment by a medical assessor, (b) appearance as a witness in court proceedings or before a claims assessor in connection with a claim. 98. The regulations can therefore only regulate medico-legal fees in accordance with section 150, that is, reports provided by medical practitioners (doctors) for use in connection with the assessment of a claim at CARS or for use in connection with a medical assessment by MAS. Clause 10 maximum fees for medico-legal services generally 99. Schedule 2 of the regulation provides a series of fees payable for medico-legal services. Clause 10 provides the basis for the schedule as follows: The maximum fees for providing a service specified in Schedule 2 in relation to any motor accident are the fees set out in that Schedule for that service, except as otherwise provided by this Part Again the use of the word maximum suggests a range and a CARS assessor cannot assess costs in excess of the maximum. In assessing costs at less than the maximum, the assessor will need to consider: a. The amount of work done or not done by the medical practitioner b. The complexity of the case, medical dispute or issue c. The relevance, usefulness and accuracy of the report d. Any other relevant facts and correspondence Schedule 2 provides for the fees payable for the appearance of health practitioners as witnesses (note section 150 permits the regulation of fees payable by medical practitioners only) both as witnesses generally and as expert witnesses. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

18 Schedule 2 maximum fees for particular medico-legal services 102. Schedule 2 provides for two types of medical reports (with or without a re-examination) written by a medical practitioner who falls into one of three categories (general practitioner, attending/treating specialist or medicolegal expert) as follows: 1. Report made by an attending general practitioner: (a) if a re-examination of the patient is not required $250 (b) if a re-examination of the patient is required $ Report made by an attending specialist: (a) if a re-examination of the patient is not required - $800 (b) if a re-examination of the patient is required $ Report made by a specialist who has not previously treated the patient: (a) if a re-examination of the patient is not required - $800 (b) if a re-examination of the patient is required $1, In assessing costs in respect of medical reports the CARS Assessor should first determine which of the above three categories the medical expert fits into and then determine whether a re-examination of the claimant was or was not required If a detailed report was obtained from a treating GP or specialist, which warranted an extensive review of the clinical notes but not a re-examination it is clear that to get the higher fee a re-examination of the patient is required The 2015 regulation also introduces a new fee for a joint examination as follows: Report made by a specialist who has not previously treated the patient (where both parties have jointly agreed to the appointment of the specialist): (a) if an examination of the patient is not required $1,200 (b) if an examination of the patient is required $1,600 Photocopying 106. The schedule provides charges for copying medical reports at $1 per page and therefore clearly a doctor can charge for copying medical records or reports Section 150 makes it clear that the regulations can provide for maximum fees that can be charged by medical practitioners and clause 13 makes it clear that Schedule 2 is only payable for services provided by medical practitioners therefore the claimant s legal representative cannot recover the cost of the solicitor photocopying medical reports or records. 16 MOTOR ACCIDENTS AUTHORITY

19 Clause 11 Limit on costs for expert witnesses 108. This clause is as follows: (1) Costs are not to be included in an assessment or award of damages in respect of any expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of: (a) one medical expert in any specialty (unless there is a substantial issue as to a matter referred to in section 58 (1) (c) or (d) of the Act in which case costs are payable in respect of 2 medical experts in any specialty relevant to the injury concerned), and (b) 2 experts of any other kind. (2) Sub-clause (1) does not apply if the claims assessor or court concerned agrees that costs are payable in respect of a greater number of expert witnesses in the matter. (3) This clause extends to costs incurred in connection with medical assessments Because this clause would, in practice at CARS, only ever apply to a claimant s costs and could therefore operate unfairly (because the claimant might have to restrict the number of experts he or she would otherwise have retained) practitioners and Assessors should consider clause 15.9 and of the Claims Assessment Guidelines. These clauses operate to restrict the number of expert reports either party may rely on at a CARS Assessment. Costs penalties Division 1A of the Act 110. Section 89D applies to claims made on or after 1 October 2008 and provides for a 25 per cent costs penalty for non-compliance with the Division 1A requirements: a. Settlement conferences (section 89A) if one party is willing to participate but not the other b. Final offers (section 89C) where one party serves an offer but the other party fails to do so and c. Service or exchange of documents (section 89B) where a party seeks to rely on a document at an assessment which had not been exchanged at the time of the settlement conference 111. The 25 per cent penalty is applied either by increasing the claimant s costs by 25 per cent (to punish the insurer) or reducing the claimant s costs by 25 per cent (to punish the claimant) and in that section costs includes disbursements. Clause 15 costs where insurer does not accept assessment 112. If the claimant accepts a CARS assessment, but the insurer does not, thereby forcing the claimant to commence legal proceedings, clause 15 requires the insurer to pay all the costs of the claimant incurred after the certificate of assessment was issued and the maximum amount of costs do not apply The insurer is only liable to pay the claimant s party party costs This clause may be relevant if a Claims Assessor has to assess costs after a claim is remitted for further assessment under section If the claimant does not accept the CARS assessment, section 151 comes into play. While the insurer is liability for costs calculated in accordance with stage 6 of Schedule 1 (2 per cent of damages) section 151 imposes costs sanctions on the claimant who does not do more than $2,000 or 20 per cent better at court compared to CARS. Clause 16 non-attendance or cancellation of appointment 116. The regulations provide for the recovery, by the MAA, of some or all of any costs reasonably incurred by the MAA in respect of appointments for medical assessments where the claimant, without reasonable excuse fails to attends or cancels the appointment with very short notice Claims Assessors should be aware that the MAA sometimes enters into agreements with parties that the insurer is to deduct any such cancellation or non-attendance costs in which case this should be noted by the Assessor in the reasons. CLAIMS ASSESSMENT AND RESOLUTION SERVICE ASSESSOR GUIDANCE MATERIAL COSTS REGULATION

20 Other matters Clause 13 assessment of costs to produce information 118. This clause provides: A Claims Assessor may assess the reasonable costs in relation to the issuing of, or compliance with, a direction under section 100 of the Act Section 100 empowers a Claims Assessor to issue a direction to a party to the assessment (claimant or insurer) or to a third party for the provision of information or documentation about the claim. The clause enables the Assessor to assess both the costs of the parties regarding their involvement (if any) in the issuing of the direction as well as the costs incurred by the party or person actually providing the information or documentation In terms of the costs of the parties incurred in the issuing of the direction, the Assessor may wish to consider: a. What work was done by the parties? Was everything done by the Assessor? b. Did the parties have to identify who the direction should be addressed to? Did the parties draft the scope of the questions to be answered or the documents to be produced? c. How much time was spent on the section 100 directions? These costs should be assessed at the conclusion of the assessment of the claim and included in the costs calculator and referred to in the reasons In terms of the costs of the party who is producing the information or the documentation: a. Who produced the information or documentation (professional vs clerk)? b. What time was involved (minutes vs hours) c. How many pages were produced (noting the rate allowed in the table for medical practitioners permits $1 a page if doctors are required to produce documents) d. What is the usual rate for producing information or documents in other forums, for example, subpoena fees at courts) These costs are likely to be assessed during the course of the assessment of the claim when a third party has produced documents or wishes to produce documents and claims a fee. Note that in accordance with section 100(1B) the MAA pays the costs of a third party providing information or producing documents so these costs should not be included in the costs calculator and do not need to be mentioned in the reasons. Clause 17 private motor vehicle travel expenses 122. The 2015 regulation provides a rate of $0.55 per kilometre for the cost of travel by private motor vehicle when attending a medical assessment, obtaining rehabilitation services or attending the insurer (or claimant s) medical examination or rehabilitation assessment The travelling costs of attending a CARS assessment are not regulated. Clause 18 GST may be added to costs 124. This clause provides: Despite the other provisions of this Part, a cost fixed by this Part may be increased by the amount of any GST payable in respect of the service to which the cost relates, and the cost as so increased is taken to be the cost fixed by this Part The effect of this clause is that GST should be added to the fixed costs and fees. It is the claimant s solicitor who remits the GST to the tax office not the insurer Most medico-legal and other report fees will attract GST however some reports (for example those provided by treating doctors, hospitals and so on) may not. Assessors and practitioners will need to check by reviewing accounts and receipts to determine if GST should be allowed. 18 MOTOR ACCIDENTS AUTHORITY

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