Almost five years since the introduction of the Motor Accident Injuries Act 2017 (MAI Act), significant changes have recently been proposed via the Motor Accident Injuries Amendment Bill 2022 and the Personal Injury Commission Amendment Bill 2022. The changes are reflective of a number of recommendations made following the statutory review of the scheme in 2021, and the subsequent report prepared by Clayton Utz and Deloitte.
Key changes While the proposed amendments contain changes that significantly depart from the original legislation, the following are worth noting in terms of the practical effect on the scheme going forward: Removal of the ‘minor’ injury terminology, now be known as a ‘threshold injury’ Extension of the entitlement of statutory benefits for claimants wholly or mostly at fault, for a period of up to 52 weeks SIRA’s (State Insurance Regulatory Authority, NSW) ability to enact guidelines which specify what treatment and care will be considered necessary for treatment of certain injuries Amendments to the timeframe requirements for lodgement of a statutory benefits claim, relevant to the payment of weekly statutory benefits Additional power to be given to SIRA in terms of appointing those who can provide treatment and rehabilitation services under the scheme Removal of the requirement to seek internal review before commencing a permanent impairment dispute in the Personal Injury Commission (PIC) Threshold requirements applicable to bringing a damages claim against the Nominal Defendant now also apply to statutory benefits claims Removal of the 20 month timeframe, relevant to the lodgement of a damages claim, under s6.14 of the MAI Act Ability to resolve a damages claim at any time without the restrictions formally placed by s6.23 of the MAI Act Removal of the s7.33 timeframe requiring claims assessment applications to be lodged within three years of the accident Introduction of mediation as an alternative dispute resolution mechanism within the motor accident division of the PIC. Extension of weekly benefits – wholly or mostly at fault claims The proposed extension of benefits for those wholly or mostly at fault will not involve the operation of s3.38 of the MAI Act, which currently allows for benefits to be reduced after 26 weeks where there is an allegation of contributory negligence. At the same time, it appears the proposed amendment will stipulate that weekly payments made between 26 weeks and 52 weeks will instead be reduced by 61%. There will otherwise be a requirement for an insurer to issue the relevant decision under s6.19 in respect of ongoing benefits, within nine months of receipt of the statutory benefits claim. Early lodgement of damages claim forms As the above amendments propose the removal of the previous 20 month timeframe under s6.14, it would appear that a damages claim form will be able to be lodged at any point in the claim. It is anticipated that this step will result in concurrent liability assessment hearing in the PIC and most certainly will see the earlier progression of damages matters more generally. Introduction of mediation procedures The amendments propose the implementation of mediation in matters referred for review or assessment under Divisions 7.4 to 7.6 of the MAI Act. These Divisions include merit review matters, medical assessment matters and claims assessment – therefore the scope of this requirement could be far-reaching. At the same time, the amendments indicate that the President ‘may’, before allocating a matter to a review or assessment, refer the matter to mediation. Therefore it would seem that this requirement will not be a necessary step in all dispute types. It will be of interest to see whether the requirement will extend to liability denied damages claims, or medical assessment disputes involving whole person impairment or minor injury determinations. Application of amendments The amendments, except as otherwise provided, will extend to any: motor accident occurring before the commencement of the amendment, but not before 1 December 2017, and a claim for statutory benefits or damages made before the commencement of the amendment, but not before 1 December 2017, and proceedings pending before a merit reviewer, a medical assessor, or claims assessor or court immediately before the commencement of the amendment However, it has been subsequently clarified that the amendments will only apply to accidents occurring after the commencement of the amendments, in terms of the extension of the entitlement to statutory benefits up to 52 weeks for those wholly or mostly at fault. Matters not addressed One key matter raised in the Clayton Utz report was the lack of scope for the investigation and deterrence of fraud by insurers under the MAI Act. In this report, it was suggested that in order to enable the making of recommendations in the future there was a need to gather data to inform an accurate assessment. At this time the proposed amendments do not address those concerns, despite the deterrence of fraudulent claims a key objective of the Act. Going forward Overall, the proposed amendments will involve significant change to the scheme, with the scope of those changes to be observed with interest. Further information / assistance regarding the issues raised in this article is available from the author, Helene Tretheway, Special Counsel, or your usual contact at Moray & Agnew.
The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation at the date of publication. You should seek legal advice on specific circumstances before taking any action.
