How To Amend The Motor Accident Compensation Act 1999

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1 CUR CURWOODS NEWS BULLETIN Background Motor Accident Injuries Amendment Bill 2013 The NSW State Government tabled the Motor Accident Injuries Amendment Bill 2013 (the Bill) on 9 May The Bill purports to amend the Motor Accidents Compensation Act 1999 (the Act) to create a no-fault statutory benefits scheme for those Claimants who cannot establish greater than 10% WPI. A Claimant who can prove negligence and who can establish greater than 10% WPI retains modified common law rights. Some aspects of the new scheme remain unknown, particularly with regard to costs, pending the drafting of Regulations and Guidelines. It is also yet to be seen to which claims the new provisions will apply. The Bill states that it will commence on a day or days to be proclaimed. This will be announced, in the future, by the Minister in the Government Gazette. Overview In general terms, the Bill creates two classes of CTP Claimant: Claimants with less then 10% WPI No-fault statutory entitlements to be determined, if necessary, in the Claims Assessment and Resolution Service (CARS), and Claimants with greater than 10% WPI Fault-based modified common law entitlements to be determined, if necessary, by either CARS or the Court. First Party Scheme Most claims will now be made against the Insurer of the vehicle in which the Claimant was travelling. Pursuant to s 79A, the Insurer against whom the claim is made acts as agent for the at-fault Insurer should a claim for damages be made in Court (where fault must still be established). Section s 79A sets out the mechanism by which adjustments are made between Insurers. No Fault Statutory Entitlements Background The Bill inserts Chapter 3A into the Act, which provides for a scheme of no-fault statutory benefits. CURWOODS LAWYERS ABN Level 9, 95 Pitt Street, SYDNEY NSW 2000 T:

2 Section 65C confirms that the no-fault scheme of statutory benefits only applies where the accident occurred in NSW after the commencement of the Chapter. As indicated, Chapter 3A will commence on a date in the future upon proclamation by the Minister. Liability Section 65A provides that statutory benefits are payable irrespective of whether the relevant injury or death is caused by the fault of the owner or driver of the motor vehicle. All that is required is that the death or injury is caused by a motor accident'. The existing definition of motor accident' continues to apply and will not be amended by the Bill. As such the injury must still be a result of and caused during the driving of the vehicle, a collision (or action taken to avoid a collision), the vehicle running out of control or a dangerous situation. Whilst the statutory benefits scheme is on a no-fault basis, there are circumstances where an injured person is precluded from claiming: Where the at-fault driver is controlling an uninsured vehicle, unless he or she reasonably believed they had the owner's authority to drive the vehicle and that the vehicle was insured (s 65ZZD), Where the Claimant is charged with a serious driving offence that contributes to his or her injury, unless later acquitted (s 65ZZF), Where the Claimant's injury is self-inflicted (s 65ZZG). Given the definition of statutory benefits decision' in s 65ZT, which included a decision about liability for statutory benefits', any dispute regarding the scope of the above exclusions is to be determined first by internal review (s 65ZU) and then by a CARS Assessor (s 65ZV). There is recourse to the Supreme Court on questions of law (Part 3A.10). There is no provision in Chapter 3A for statutory benefits to be reduced for contributory negligence. Scope of Statutory Benefits Statutory benefits which may be claimed under Chapter 3A include: Death benefits Funeral benefits up to $9,000 (to be indexed annually) (s 65D) and expenses for transporting the body within Australia (s 65E); Weekly payments: Section Period Weekly Benefit 65G First 13 weeks Total loss - 95% of pre-accident earnings Partial loss 95% of difference in earnings 65H Weeks 14 to 78 Total loss - 80% of pre-accident earnings Partial loss 85% of difference in earnings 65I Weeks 79 to 260 Total loss - 80% of pre-accident earnings Partial loss 85% of difference in earnings 65J After 260 weeks No allowance unless Claimant establishes greater than 20% WPI Page 2 of 9

3 Note 1: Note 2: Sections 65K to 65P define earner', loss of earnings', pre-accident weekly earnings' and post-accident earning capacity', including in relation to students, apprentices, trainees and young people. Section 65ZA provides for the indexation of weekly statutory benefits. Treatment and Care Benefits: Section Item of Treatment Scope of Benefit 65ZD Treatment and care Reasonable cost of treatment and care plus reasonable and necessary travel and accommodation and (if under 18) the travel and accommodation expenses of a carer 65ZF Childcare Services Reasonable expenses incurred in employing a person to provide domestic services to dependants provided the injured person would have provided the services, but for the accident, for at least 6 hours per week for a period of at least 6 consecutive months Lump Sum Benefits Note 1: Section 65ZE provides that no statutory benefits are payable for the provision of gratuitous care services. Note 2: Section 65ZI provides that no statutory benefits for treatment or care are payable more than 260 weeks after the motor accident unless the Claimant has suffered greater than 10% WPI. WPI Lump Sum 10% to 15% $18,700 15% to 20% $26,950 20% to 25% $38,500 25% to 30% $52,250 30% to 35% $66,000 35% to 40% $79,750 40% to 45% $96,800 45% to 50% $116,050 50% to 55% $135,300 55% to 60% $154,550 60% to 65% $173,800 65% to 70% $193,050 70% to 75% $213,300 75% or above $220,000 Note 1: Section 65ZL(2) provides that an award of a lump sum is once and for all and no further sum can be claimed if the impairment later increases. Page 3 of 9

4 Note 2: Section 65ZL(4) provides that any WPI dispute is to be resolved by MAS. Note 3: Section 65ZM provides that psychiatric impairment cannot be added to physical impairment and the Claimant is entitled to lump sum compensation for the higher class of impairment (ie physical v psychiatric). Redemption A Claimant may redeem his or her statutory entitlements through the mechanism provided in Part 3A.6. Generally, a claim cannot be redeemed except by agreement or with the approval of a CARS Assessor (s 65Z0). Section 65ZP provides that a CARS Assessor may not approve a redemption unless satisfied that the redemption is appropriate, the amount to be paid is adequate and the proposed redemption satisfies the MAA Claims Assessment Guidelines (to be drafted). Section 65ZS provides that where a payment is made in redemption of a claim: All liability to pay statutory benefits is discharged, but Any liability to pay damages is not affected. MAS Jurisdiction MAS retains jurisdiction to assess the Claimant's WPI. Section 57B introduces some laudable objects of MAS, including, inter alia, fairness and consistency. The Bill amends s 58 with the apparent intention to give MAS the explicit power to assess whether an injury was caused by the motor accident. The issue of causation (s 58(1)(c)) has been separated for the issue of permanent impairment (s 58(1)(d)). Section 61 operates to render these assessments binding. Given that causation is now a separate medical assessment matter', it appears that the decision on causation will be binding for all purposes, not just non-economic loss. Importantly, the Bill modifies s 60(1) to provide that in a claim for statutory benefits, a medical dispute regarding degree of permanent impairment may be referred to MAS by either party or the Claims Assessor. However, other disputes relating to treatment, care and causation may only be referred by the Claims Assessor. Notably, s 60(3) empowers MAS to refuse to accept a referral in the absence of sufficient information regarding the dispute. Section 60B has been introduced which allows a MAS Assessor to make an interim WPI assessment where the Claimant's impairment is not yet permanent. An interim assessment is defined as an assessment that is highly probable that the injured person will have a degree of permanent impairment of greater than a particular percentage'. That is, the Claimant's minimum likely impairment may be assessed in order to determine the Claimant's entitlement to statutory benefits beyond 5 years (for example). Section 62 appears to be amended to restrict the power to request a further assessment to the Court or a Claims Assessor and not the parties. Page 4 of 9

5 CARS Jurisdiction Where an injured person is not satisfied with an Insurer's statutory benefits decision' (defined in s 65ZT), the first, mandatory, step is to seek internal review within 30 days (s 65ZU). Should the Claimant be unhappy with the outcome of the internal review, he or she may apply to have a CARS Assessor determine the dispute within 30 days (s 65ZV). CARS has exclusive jurisdiction to examine, hear and determine' all statutory entitlement disputes (s 65ZZI). Independent Review Officer If a party is concerned by the procedure applied by the Insurer in assessing a Claimant's earning capacity, the Claimant may seek review by an Independent Review Officer (s 65ZX). This review focuses only on the processes employed by the Insurer and not the merits of the decision. Part 8.2 sets out the appointment and function of Independent Review Officers. Court Jurisdiction The decision of a CARS Assessor regarding a Claimant's entitlement to statutory benefits under Chapter 3A is binding on the parties (s 65ZZI(1)). Neither party has the right to reject a CARS assessment and proceed to the District Court for a hearing de novo (s 65ZZ1(2)). However, prior to determining a statutory entitlements dispute, an Assessor may refer a question of law to the Supreme Court for determination, with the permission of the PCA (s 65ZZK). This may be done on the Assessor's own motion or at the request of the parties. Furthermore, either party may commence proceedings in the Supreme Court, following the Assessor's determination, if they believe the CARS Assessor has committed an error of law (s 65ZZL(1)). The Supreme Court, however, is only empowered to remit the matter for determination according to law if an error is identified (s 65ZZL(2)). Leave of the Supreme Court is required if the decision under appeal regards costs only, relates to an amount in dispute less than $20,000 or is from a decision made with consent (s 65ZZL(4)). Costs Section 65ZZA provides that an Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services to a party to a claim for statutory benefits (whether the Claimant or the Insurer) unless payment of those legal costs is permitted by the Regulations OR a Claims Assessor'. It is yet to be seen what restrictions the Regulations (which are yet to be drafted) place on the right to recover costs. However, s 65ZZA(3) provides that a Claims Assessor can permit payment of legal costs incurred by a Claimant if satisfied that the Claimant is under a legal disability or there are exceptional circumstances. This provision appears to give the Claims Assessor power to depart from the Regulations in exceptional circumstances and award costs even where they are not permitted under the Regulations. Page 5 of 9

6 Section 65ZZA applies only to disputes heard by a Claims Assessor and does not apply to proceedings in the Supreme Court under ss 65ZZK or 65ZZL. Fault-Based Common Law Damages Liability To claim modified common law damages, an injured person must: Establish negligence, and Demonstrate greater than 10% WPI (s 123B). The current definition of motor accident,' which includes reference to fault, continues to apply. Section 65A provides that statutory benefits under Chapter 3A are payable whether or not the motor accident was caused by the fault of the owner or driver of the vehicle. There is no equivalent provision in respect of claims for common law damages in Court. As such, to establish an entitlement to damages for an injury caused by a motor accident, the Claimant must still prove fault. Whilst the Bill repeals the provisions relating to no-fault recovery by children, the blameless accident provisions have been retained. Section 7E, however, has been amended with the intention of overcoming the decision in Axiak v Ingram. It provides that there is no entitlement to recover damages on the grounds that the accident is blameless if the motor accident was caused by an act or omission of that person'. The existing form of s 7E excludes only the driver at fault, whereas the amended version excludes any Claimant who caused his or her own injury through an act or omission. Damages may be reduced for contributory negligence (s 138). The Regulations may, once they are drafted, define specified rates of deduction for specified kinds of contributory negligence (s 138(4)). Pursuant to s 123A, a Claimant for common law damages can only claim past and future economic loss and non economic loss. Modified Common Law Damages Non-Economic Loss Sections 131 to 133 will be repealed by the Bill because they are redundant. A Claimant may only seek modified common law damages if he or she is assessed by MAS to have greater than 10% WPI or there is agreement on this issue. Once entitled to damages for non-economic loss, the amount to be awarded is at large, subject to the maximum in s 134. Modified Common Law Damages Economic Loss Section 124(1)(a) provides that damages that may be awarded for past economic loss are damages for past economic loss due to loss of earnings'. Section 124(1)(b) provides that damages for future economic loss may be awarded for future economic loss due to the deprivation or impairment of earning capacity. Presumably s 124 has been inserted to ensure that economic loss' is limited to claims for lost earnings or lost earning capacity and not other species of economic loss, such as domestic assistance and treatment expenses. Page 6 of 9

7 Section 125 regulates the maximum sum which may be awarded for economic loss. The provision limits the sum which may be awarded to the maximum weekly statutory benefits amount. Notably, the maximum statutory benefit is a gross sum, whereas common law damages are awarded on a net loss. The current form of s 126 remains and is not amended by the Bill. As such, it is still necessary to compare the Claimant's economic circumstances to his or her most likely future circumstances' but for the accident. Modified Common Law Damages Gratuitous Care Sections 141B, 141C and 142 are repealed by the Bill. Furthermore, s 123A provides that an injured person entitled to bring a claim for modified common law damages may only claim economic loss and non-economic loss. It is, therefore, clear that there is no longer any entitlement to damages for past or future gratuitous care. A Claimant may, however, claim the cost of paid care as part of his or her statutory benefits. MAS Jurisdiction Whether an injured person has suffered greater than 10% WPI is to be determined by MAS (s 123C). The Court may refer a claim back to MAS at any stage in the proceedings (s 123C(2)). The new powers possessed by MAS are reviewed above. The Bill introduces s 60(1A) which provides that in a claim for damages, a medical dispute may be referred to MAS by the parties or the Court. CARS Jurisdiction A claim for common law damages must still proceed through CARS before proceeding to Court. The Bill modifies the current system by: Providing that the obligation on the Claimant to provide Section 85A Particulars and on the Insurer to make a Section 82 Offer only applies to claims for damages, Repealing the mandatory exchange of documents and mandatory settlement conference provisions in s 89A to s 89E, Providing that the provisions relating to CARS assessment of damages applies whether or not the Insurer admits liability, Inserting a time limit whereby a claim for damages cannot be referred to CARS until 42 days have passed since notice was given of an intention to make a CARS Application, Inserting a time limit whereby a claim cannot be referred to CARS more than 3 years after the motor accident unless the party provides a full and satisfactory explanation for delay. Page 7 of 9

8 Section 95 still provides that neither party is bound by an assessment of liability by a CARS Assessor and that the Insurer is bound by the assessment of damages if it admits liability and the Claimant accepts the damages assessment within 21 days. In addition, s 82A provides that a claim for damages cannot be settled unless the Claimant is represented by an Australian legal practitioner or the settlement is approved by a Claims Assessor. CARS therefore has a role in damages claims to approve settlements where the Claimant is unrepresented. Court Jurisdiction The provisions relating to status of CARS assessments and exemption from assessment have been retained. A claim for damages must, therefore, proceed through CARS before going to Court for determination (if necessary). Costs There is no provision in the Bill which limits the entitlement to costs in Court proceedings except s 149(1A) which empowers the Regulations (yet to be drafted) to fix the maximum costs a Claimant can recover by reference to the amount he or she recovers as damages. Repayment of Statutory Benefits Section 65ZZH(1)(a) provides that where a Claimant recovers damages in Court, his or her right to weekly payments or lump sum payments ceases. Furthermore, s 65ZZH(1)(b) provides that if the Claimant has already been paid weekly statutory benefits for lump sum statutory benefits, then these sums are to be deducted from the damages and repaid. However, the Claimant retains the right (it seems) to continue to recover statutory payments for treatment and care notwithstanding any damages award. Advantage of Damages Claim Given the way the Bill is framed, a question arises as to what advantage a Claimant would have in pursuing a damages claim in Court, particularly given that such a Claimant must prove negligence and may suffer a reduction for contributory negligence. At the outset, the Claimant does not lose his or her right to statutory benefits if proceedings are commenced for damages. If the Claimant establishes greater than 10% WPI, he or she continues to be entitled to recover treatment and care costs as part of the statutory entitlement (s 65ZI). Other advantages include: At a date 5 years post accident, a Claimant is only entitled to continue to receive weekly benefits for lost earnings if he or she has greater than 20% WPI (s 65J). By contrast, damages for loss of earnings can be pursued in Court if the Claimant establishes the lower threshold of greater than 10% WPI (s 123B). Whilst s 125(2) places a limit on the sum which may be recovered for lost earnings in Court, it does so by stating that the net loss may not exceed the statutory entitlement Page 8 of 9

9 under Part 3A, which is a gross figure. As such, the maximum weekly sum in a damages claim in Court is higher than the statutory rate. The entitlement to damages for non-economic loss in not restricted by a sliding scale and is only subject to the cap in s 124. Curwoods Lawyers Page 9 of 9