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  • The Motor Accident Injuries Act will celebrate its second anniversary on 1 December 2019. A review of the whole scheme is planned for 2020 and a 2019 review of the ‘minor injury’ definition is imminent.
  • The Law Society’s recent Roundtable session identified that practitioners want more information about how the scheme is operating and how issues are being addressed.
  • This is the first in a series of articles about the scheme which will cover topics such as costs and claims communication, benefits and damages, time limits and dispute resolution.

On 4 June 2019, the Law Society’s Injury Compensation Committee held a roundtable session attended by the President and approximately 50 personal injury practitioners. The aim was to inform those attending about the work the Law Society was doing in the CTP area and what issues had been raised with the State Insurance Regulatory Authority (‘SIRA’). There were separate breakout groups dealing with six separate topics and an opportunity to provide feedback to the wider group about how the Act was working, practitioner experience of the scheme, and what injured persons were saying about the scheme. Complexity, confusion and a lack of clarity about many aspects of the scheme were constant themes in the feedback provided, and it was suggested by attendees that there should be more information provided to practitioners to help them manage the significant changes in the new scheme.

Two years ago, Tim Concannon wrote an article for this publication entitled ‘The nuts and bolts of the new NSW CTP scheme’ (2017) 34 LSJ 71. At that time, the Motor Accident Injuries Act 2017 (NSW) (‘the Act’) had been passed but had not yet commenced, and there was no regulation, no guidelines and little idea about how it was all going to work. As we approach 1 December 2019 and the second anniversary of the commencement of the scheme – and in the light of the feedback from the CTP roundtable – it is an appropriate time to update practitioners on how the scheme is progressing now there is a body of claims and some dispute experience to share.

General overview of the scheme

The Act provides for two types of claims: claims for statutory benefits and claims for common law damages. This is one of the fundamental changes to the previous accident compensation and insurance schemes. There are separate forms, processes and procedures for both types of claims and a significant shift in mindset expected when dealing with claims for statutory benefits. Claims for statutory benefits are expected to be made promptly within days or weeks of an accident, however common law claims cannot be made until 20 months have passed since the accident (unless a claimant has a greater than 10 per cent whole person impairment).

Claims for statutory benefits can result in the payment of income support payments if the injured person was an ‘earner’ and the provision of treatment and care is reasonable, necessary and related to the injuries caused by the accident.

Common law claims for damages are restricted to the payment of non-economic loss and certain economic losses, but no award for past or future treatment and care is allowed – even when no statutory benefits claim has been made or when a statutory benefits claim has been denied. If a person is killed in a motor vehicle accident, ‘reasonable’ funeral expenses are claimable as a statutory benefit, while claims for the cost of the headstone and any dependants’ loss of financial support under the Compensation to Relatives Act 1897 are considered common law claims.

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