The Motor Accident Injury Bill 2017 was passed by the NSW Parliament on 30 March 2017 and whilst awaiting assent and a commencement date, we provide a brief overview. At first glance the main changes are:
- CARS and MAS will be replaced by a Dispute Resolution Service – in addition to the Assessors (old MAS and CARS) there will be ‘merit reviewers’ – they will deal with ‘Merit Reviews’ (what a surprise) for all the interlocutory type of matters such as late claims, no due inquiry and search etc.
- Reviews from decisions will still apply re medical assessment and from merit reviews but no reviews from disputes about statutory payment claims.
- It looks like the old MAS (now to be part of DRS) will in addition to their previous work will also be able to assess disputes about impairment of earning capacity.
- No settlements possible within 2 years of the accident (note below most minor claims will disappear after 6 months) unless whole person impairment is greater than 10%. All settlements will have to be approved by the DRS unless the claimant is legally represented.
- Unless exempt claims will still have to proceed to DRS (like CARS) before any right to go to Court but no need for the old exchange of documents and s.89A MACA conference. A claim cannot be referred for assessment more than 3 years after the accident without a full and satisfactory explanation for the delay.
- Decisions of the DRS Assessors on compensation (i.e. both statutory benefits and damages) if accepted by the claimant are binding on the insurer but decisions on liability are not – this also has not changed but will likely have greater importance now that DRS may well handle all liability disputes but we have to wait for the regulations on this one.
- A no fault scheme for the first 6 months after the claim with defined statutory benefits payable for economic loss, treatment and care expenses.
- The claim for these statutory benefits must be made within 3 months of the accident.
- No further entitlement after 6 months for minor injury (e.g. whiplash, soft tissue) – this effectively seeks to remove the volume claims.
- Awards for after the first 6 months are made up of statutory benefits and common law damages.
- Max weekly statutory benefits $3,853.00.
- After the first 6 months where the claimant was not most at fault (after any contributory negligence is applied) or was under 16 years old their claim can proceed but statutory benefits for economic loss generally are payable only for 2 years but up to 5 years since the accident in some circumstances.
- A claim for damages must be made within 3 years of the accident and cannot be made before 20 months from the accident unless it is for a death or WPI exceeds 10%.
- Nominal Defendant scheme remains.
This scheme ought to free up insurer’s management of claims where previously there was a disproportionate occupation with the volume of minor injury claims. This will ensure that the most at need claimants are the focus of the support provided by the NSW CTP scheme.