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Australian Insurance Law Association Seminar Motor Accidents Compensation Act 1999

Contents

1. Scheme Changes - Entitlements and Procedures

There continues to be a very great lack of general community understanding of our motor accident third party system. It is and always has been a somewhat complex and bewildering legal and insurance structure to the vast majority of citizens including many lawyers and most individuals who do sustain injury and loss in motor vehicle accidents.

The difficulty for many people in maintaining touch with our system has been compounded by the far reaching changes that we have seen in the last 15 years including the amendments to the 1942 Motor Vehicles (Third Party Insurance) Act in the mid 1980's which established the GIO as the sole insurer, the abolition of common law rights in 1987 and the establishment of Transcover, the abolition of the Transcover and the introduction of the modified Common Law Motor Accidents Act Scheme. Then the substantial amendments to the Motor Accidents Act in 1995 including significant reductions and the availability of damages for non economic loss.

The 1999 Act involves further substantial and far-reaching structural change certainly the most significant change since the abolition Transcover and the enactment of the Motor Accidents Act, 1988.

The introduction of the 10% whole person impairment threshold for non economic loss together with a largely non court administered assessment procedure will be a measure which should impact significantly on claimant behaviour and claim numbers in the short, medium and long term.

2. Overview Scheme Changes - Entitlements and Procedures

2.1. SUMMARY OF CHANGES

2.1.1. APPLICATION

Act to apply from 1 October 1999 in respect of accidents occurring thereafter.

2.1.2. NEW SCHEME FOR PAYMENT OF MINOR TREATMENT

On serving a new form known as an Accident Notification Form within 28 days of the accident a claimant may be entitled to recover from an insurer treatment expenses incurred during the first 6 months after injury and not exceeding $500.00. This provision is not a prerequisite to making a claim in the usual fashion but may dispose of some minor claims by a simpler procedure.

2.1.3. CLAIMS

The existing system is basically retained as are most time limits and procedural requirements.

The insurer is, however, obliged within 3 months of receiving a claim to either admit or deny liability in writing. The insurer is required to make a reasonable offer of settlement (unless liability is wholly denied) within no later than one month after the injury is stabilised as agreed or two months after full particulars have been supplied.

2.1.4. PRE-HEARING CLAIMS ASSESSMENT

Any time more than two months after the insurer's mandatory offer of settlement or if there is a denial of liability then at that time, either party may refer the claim for assessment. It is pre- requisite to any party subsequently commencing court proceedings that they go though this claims assessment procedure unless a certificate is issued by the Motor Accidents Authority exempting the particular claim from the procedure.

The assessor has regard to whatever evidence is in front of him or her and makes a non-binding assessment on liability and an assessment on damages that is binding on the insurer unless rejected by the claimant within 21 days.

The assessor also has the power to determine various other disputes regarding late claims, inadequacy of particulars, reasonableness, treatment expenses, etc. Both parties are entitled to legal representation before the assessor.

2.1.5. COURT PRDCEEDINGS

Providing a claim has been assessed and a certificate issued by the assessor and hat assessment not accepted by the claimant or the claim has been exempted from assessment and the relevant certificate issued, then within the existing three year period court proceedings can be commenced. The insurer however may require the claimant to commence proceedings by notice given that a claimant has failed to commence proceedings for at least six months after being entitled to do so and at least eighteen months have elapsed since the accident. Failure to then commence will deem the claim withdrawn.

2.1.6. AWARD OF DAMAGES

Economic Loss - no compensation for the first 5 days and earnings in excess of $2,500.00 net per week to be ignored for any calculations.

Future Economic Loss - Cushion - to be allowed only where more probable than not and be appropriately discounted having regard to that probability.

Non-Economic Loss - fundamental threshold is greater than 10% permanent impairment which impairment cannot have regard to psychiatric injury unless the only injury is psychiatric in nature.

The existing non-economic loss scale to be abolished and the maximum of $260,000.00 to be retained. Once the plaintiff exceeds the 1 0% threshold then damages to be assessed by the court having regard to the severity of the injury up to $260,000.00.

2.1.7. MEDICAL ASSESSMENT

Medical practitioners to be appointed to determine conclusively in many cases a number of possible medical disputes between parties including the reasonableness of treatment expenses, stability of injury and impairment of earning capacity.

Medical assessors are fundamentally to determine the degree of permanent impairment and whether or not a claim exceeds the 1 0% threshold, subject to provision for appeal to a panel of three medical practitioners and the overriding power of the court to substitute its own determination of permanent impairment in special circumstances.

Medical disputes or impairment requests to be referred for assessment of either party, the court or a claims assessor.

2.1.8. COSTS

Regulations to prescribe maximum costs on both solicitor/client and partylparty basis for legal services provided to a claimant and to an insurer and maximum fees for medical reports and witness expenses.

Where a claimant does not exceed except an assessor's certificate then cost penalties will apply if the claimant does not do better then that assessment.

3. DAMAGES FOR NON-ECONOMIC LOSS

3.1. The fundamental change is that Non-Economic Loss is not to be awarded unless the injured person has permanent impairment greater than 10% (s131). It would seem in practice that the impairment threshold could be achieved in at least the following ways:

3.1.1. The parties will agree that the particular matter exceeds the threshold in which event the parties would refer the matter for assessment;

3.1.2. If either party refers the impairment question for determination by a medical assessor at the preliminary stage and before assessment or proceedings are commenced;

3.1.3. The impairment question not having previously been determined, the claims assessor refers that issue for determination;

3.1.4. The matter not having been previously referred, the court refers the matter for determination. In practice it is difficult to see many instances where the last option would apply because presumably for the matter to get to court in most cases it has already been through the assessment procedure and/or there has already been a preliminary determination as to the level of impairment andlor the parties have agreed. Thus for the parties to be still in dispute when the matter is at court as envisaged by s132(2) presumably that would only apply where a claim has bypassed the assessment procedure because of a certificate of exemption (eg: serious fraud liability issue, etc);

3.1.5. The court makes a determination itself pursuant to s61(6). Presumably the court could, pursuant s132(1), make an award for damages and determine that the non-economic loss impairment threshold establishes the test set out in s131, finding that any certificate from a medical assessment to the contrary is to be rejected on the grounds of their having been a denial of procedural fairness that would give rise to a substantial injustice in accordance with s61(12) with the court substituting its own more favourable determination in accordance with s61(6).

3.2. In assessing permanent impairment, regard must not be had to psychiatric or psychological injury unless the impairment is solely with respect to psychiatric or psychological injury (eg nervous shock type claim) (s133(3)). In other words one cannot boost the impairment by adding on a component for psychiatric injury to say, for instance, a soft tissue or fracture claim.

3.3. The non-economic loss percentage of an extreme case scale under the old s79 and s79A has been abolished, although the maximum of $260,000.00 has been retained. Once a plaintiff exceeds the 10% threshold then damages will be assessed by the court having regard to the court/assessor's view of the severity of the injury and up to $260,000.00 but with no other limitation imposed (s134). Pursuant to s135 there is provision for the Motor Accident Authority to publish information to assist the courts in determining the appropriate levels of non-economic loss but such information is not binding on any court.

4. Damages For Economic Loss

4.1. Past Economic Loss - no compensation for first five days of loss of earnings (s124). Sick leave entitlement will be utilised.

4.2. For Past or Future Economic Loss the court is to disregard any "but for injury' earnings in excess of $2,500.00 net per week of the injured person. The maximum loss is not $2,500.00 but the maximum possible earnings to be considered is $2,500.00 therefore, for instance, an injured person who would have been earning but for the accident $3,000.00 but because of the accident was only able to earn $2,000.00 then the maximum wage loss claimed would be $500.00 not $1,000.00.

4.3. When making an award for Future Economic Loss the claimant must first satisfy the court that the assumptions to be made about future earning capacity accord with the claimant's most likely future circumstances but for the injury and any such lump sum award must include a statement of the assumptions on which the award is based and the relevant percentage by which damages were adjusted (s126).

This is an attempt to tighten up in particular the "buffer' system of awards and the test would seem to be that it is "more probable than not as opposed to more possible than not" that the plaintiff will suffer a loss and thus that the loss is at. least 50% likely to occur.

Further, should there be an award it will be adjusted by the relevant percentage determined by the court. If the court therefore determines that it is 60% likely that there will be loss presumably the award for future loss damages is to be 60% of the estimated future loss.

5. DAMAGES - OTHER ISSUES

5.1. The injured person is obliged to mitigate his or her damages and a court must have regard to the steps taken in mitigating damages in assessing the claim. Steps to be considered as having been taken or not include undergoing medical treatment, rehabilitation, pursuing employment opportunities, giving early notice of claim.

The onus of proving all reasonable steps to mitigate damages have been taken lies upon the party making that allegation, being the insurer (s136(4)). In any dispute over failure to mitigate, the court is to give consideration and to take into account any evidence that an insurer failed to assist in mitigating damages (s136(6)).

5.2. Other provisions in respect of assessment of damages contained in the Motor Accidents Act 1988 are preserved largely unaltered, eg: prohibitions on interest, gratuitous care, contributory negligence and psychiatric injury.

5.3. The Act has however abolished the availability of the loss of services claim available to an employer for injury to employee (actio per quad servitium amisit) (s142).

The "loss of services exclusion" does not apply to an award for damages under the Compensation to Relatives Act, but the Act makes it clear that for a Compensation to Relatives Act, the restrictions imposed under s128 (old s72) in respect of gratuitous attendant care services shall apply in respect of loss of services of the deceased person insofar as the award relates to attendant care services (s142(2) & (3)).

Presumably the intent is that, for instance, in respect of loss of services of the deceased provided between date of death and date of hearing by way of services around the house will be limited to 40 hours per week etc and the relevant average weekly earning rate per hour. There is a definition of "attendant care services" in s3 of the Act and they mean .services that aim to provide assistance to people with everyday tasks and include, for example, personal assistance, nursing, home maintenance and domestic services". 

6. Procedure - Early Payment Of Treatment Expenses Part 3.2

6.1. A new regime for payment of treatment expenses is codified in Part 3.2 subject only to the exceptions in s47(2)(a) and (b) - What is the meaning of s47(a) payment of treatment expenses not required if "expenses are paid by the insurer under a claim made in respect of the matte@'? Presumably this means that if the claimant proceeds to lodge a claim form under Part 4 without lodging an Accident Notification Form, then the procedure is pursuant to s83 (namely, the old s45).

6.2. It is a prerequisite for the payment of treatment expenses that the accident be reported to the police (s48).

6.3. It is a further prerequisite that a claimant must first lodge a new form known as an Accident Notification Form to be issued by the Motor Accidents Authority and the form must be submitted to the insurer within 28 days of the accident (s48).

6.4. The Accident Notification Form is to contain a declaration on behalf of the injured person that the accident was not caused wholly or mainly by the fault of the injured person (s48(d)).

6.5. An insurer must, within ten days after receiving the Accident Notification Form, give written notice to the injured person stating whether or not it accepts provisional liability in respect of treatment expenses (s50(i) and (i i)) -

6.6. There would appear to be a no fault regime where the injured person is a passenger or a pedestrian (s50(3)).

6.7. If the insurer fails to so notify the injured person then the insurer is taken to have accepted provisional liability (s50(4)) This provision, however, does not apply where the Nominal Defendant is involved and the Nominal Defendant must give written notice before it is taken to have accepted provisional liability (s50(5)). The acceptance of provisional liability is not deemed to be an admission for the purposes of any subsequent claim in respect of a motor accident (s50(8)).

6.8. The penalty for non-compliance appears to be that it is a breach of the insurer's licence.

It would seem that the section as drafted does not overcome the objections highlighted in Stubbs -v- NRMA Insurance Limited 42 NSWLR 550 wherein the court found that that provision did not confer upon a person injured in a motor accident private right of action to enforce the duty of the relevant insurer to make payments to or on behalf of that person.

A similar comment could be directed at a number of the procedural provisions in the Act where the insurer is obliged to take certain steps such as making an Offer of Settlement, making a decision on liability, payment of treatment expenses under s83, etc. In such instances, apart from some cases where the claimant has a right to progress the matter, the penalty for failure will be only such penalty that may be imposed by the Authority in respect of or relating to the insure@s licence.

6.9. The maximum amount of treatment expenses required to be paid in respect of any person (not accident) under this part is $500.00 (s51).

However, the insurer is entitled to pay in excess of the maximum or approve any treatment and is- not prevented from doing so by Part 3.

6.10. Treatment expenses are only required to be paid under this Part for treatment provided within six months of the accident and even if the expenses are less than $500.00 but relate to a period after the first six months they are not required to be paid under this Part but, of course, may be required to be paid under the ordinary claims procedure of s83 (s51(4)).

6.11. The Motor Accidents Authority is entitled to issue guidelines in respect of appropriate treatment and procedures for treatment of injured persons and if the treatment requested by the insured person does not accord with approved treatment, then there is no obligation on the insurer to pay (s52(1)). The insurer is also entitled to refuse to pay if the treatment concerned is considered unreasonable or unnecessary or did not relate to the injury caused by the accident (s53). The test is no doubt an objective one, to be applied in the first instance by the insurer. If there is dispute on same then such dispute may be referred by either party to a medical assessor pursuant to Part 3.4.

6.12. Where the insurer makes payment of treatment expenses under Part 3 and the injured person is likely to incur additional expenses or has incurred additional expenses, the insurer is required to inform that person in writing as soon as possible after making payment of the insured's person's right to make a claim in respect of those additional expenses (s52(3)).

7 Payments To Hospitals, Doctors And Others - Part 3.3

7.1. Regulations to the Act may make provision for fixing the maximum amount which an insurer is liable to pay in respect of any claim for medical, dental or other treatment not provided at hospitals (s56). It would seem that, whilst the insurers obligation is so limited, the injured person is obliged to pay any difference over and above that maximum to the provider.

8 Medical Assessment - Part 3.4

8.1. This Part provides a framework for solving medical disputes between a claimant and an insurer on a number of medical issues, being (s58):

8.1.1. Whether the treatment to be provided is reasonable and necessary in the circumstances;

8.1.2. Whether the treatment relates to the injury caused by the motor accident;

8.1.3. Whether the injury has stabilised;

8.1.4. The degree of permanent impairment;

8.1.5. The degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident.

The provisions of this Part also apply where such issues arise before the court or a claims assessor.

8.2. The Motor Accidents Authority is to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of making such determinations (s59).

8.3. Any such medical dispute may be referred for assessment by either party or by the court or claims assessor (s60(1)), but if the insurer disputes all liability, the dispute cannot be referred for assessment by the claimant alone, but would require joint referral or by the court or claims assessor (s60(2)).

8.4. The medical assessor is to certify the matters referred for assessment. Certifications as to the 10% permanent impairment threshold, the reasonableness etc of treatment and whether or not an injury has stabilised are deemed to be conclusive evidence before any court or before a claims assessor (s61(2)). A certificate in respect of any other matter is evidence but not conclusive evidence (s61(3)).

8.5. If any certificate is admitted into evidence in any court proceedings, the court may, despite anything to the contrary, reject the certificate on grounds of denial of procedural fairness to a party but only if the court is satisfied the admission of the certificate would cause substantial injustice to the party (s61(4)). On such rejection the court is to refer the matter again for assessment under Part 3.4 and to adjourn the proceedings until a further certificate is given and admitted (s61(5)).

The provisions of s61(2) (conclusive evidence of certificate) and s61(5) (the requirement on the court to refer the matter for re-assessment by a medical assessor if the court rejects the certificate) appear to be in conflict with s61(6) whereby the court is given an overriding power to not only reject the certificate as to the degree of permanent impairment and refer the matter for assessment but to substitute its own determination in special circumstances. Presumably, therefore, where an injured person is assessed at under the threshold that person, after proceeding through the formality of obtaining an assessment certificate (s108), could commence proceedings and request the court to determine the threshold issue.

It would seem that some further amendments will be required to tidy up this area of drafting.

8.6. There is provision for review of such an assessment where either party alleges there is a deterioration of the injury or additional relevant information or where a court or claims assessor deems it necessary (s62).

8.7. There is provision for further review of such an initial assessment where either party requests that an assessment by a single medical assessor go to a review panel of medical assessors (s63). Such an application can only be made on the grounds that the assessment was incorrect in a material respect and will go before at least three medical assessors and provided the Authority is satisfied there is reasonable cause for referral. The review panel may confirm or revoke the certificate and issue a new certificate.

8.8. Costs of medical assessments under Part 3.4 are payable by the insurer and include the costs of travel of the injured person (s64).

9 Motor Accident Claims - Part 4

9.1. These provisions replace the old Part 5 provisions.

9.1.1. Claims to be first reported to the police (s70). The claimant is generally required to provide a full and satisfactory explanation to the court for non-compliance with the reporting requirements of this section provided that if a claimant has already provided an explanation to the insurer and the insurer did not reject it within two months after receiving it, then the claimant is not required to provide a further explanation to the court.

9.1.2. The Authority is authorised to obtain from the police certain specific details regarding the accident including registration details, identities of persons involved in the accident, identity of hospitals and identity of the vehicle most likely to have been at fault. The Authority is authorised but not obliged to give a copy of any such information obtained to the injured person or relative (s71).

9.1.3. There is still a six month time limit to make a claim (s72).

9.1.4. The provisions for late claims are similar in some respects only to the old provisions. The insurer is still obliged to take issue with any late claim or inadequate explanation within the requisite two month period (s73) or it loses such right to challenge for procedural irregularity. There have, however, been significant changes from the existing system in that under the existing system where a claim was made more than twelve months after the accident, then in addition to the explanation for delay, the claimant was obliged to satisfy the insurer/court that the claimant would be likely to obtain at least 10% of the maximum non-economic loss ($26,000.00).

Further, the court was obliged to dismiss proceedings unless satisfied that there was both a satisfactory explanation for delay and also that all damages likely to be awarded would exceed the said 10%. Pursuant to the amendments, the reference to the 10% threshold for late claims is omitted and the only requirement on a claimant is to provide a full and satisfactory explanation for the delay and a court must dismiss proceedings unless there is such an explanation provided (s73).

A dispute about whether a late claim can be made can be referred to a claims assessor rather than to the court (s96).

9.1.5. The insurer is required to give written notice to the claimant within three months after receiving a claim as to whether it admits or denies liability (s81).

9.1.6. The insurer is then required to make a reasonable offer of settlement to the claimant (unless liability is wholly denied) within one month after the injury has stabilised, as agreed by the parties or as determined by a medical assessor or two months after the claimant has provided all necessary particulars, whichever is the later (s82). This provision does not apply in respect of a death claim or where an injury has not stabilised within three years after the accident.

9.1.7. The insurer is not entitled to delay making an offer of settlement on the basis that particulars are insufficient unless the insurer requests further particulars within two weeks of the claimant providing particulars (s82(6)). If there is a dispute about the sufficiency of particulars then that dispute may be referred to a claims assessor pursuant to s96.

9.1.8. s83 replaces the old s45 in respect of payment of expenses. This provision can, of course, be distinguished from the early payment provisions pursuant to Part 3.2. Under s83 the obligation to pay depends on admission of liability and is not limited by any maximum amount and the payments are still required to be reasonable, necessary, properly verified and relate to the injury caused.

The obligation to pay treatment expenses has been extended to include attendant care services but not gratuitous care and only for seriously injured long-term needs. Disputes regarding the application of this section may be referred by either party to a medical assessor under Part 3.4 or to a claims assessor under s96.

There is a new regime for early payment of witness expenses.

10. Claims Assessment And Resolution-Part 4.4

10.1. This part applies whether or not an insurer admits or denies liability. It must further be noted that a person cannot commence court proceedings in respect of a claim unless it has been referred for assessment under this Part or an exclusion certificate has been issued (s108).

10.2. A claim may be referred to the Authority by the claimant or the insurer for assessment under s90.

10.3. Generally a claim may not be referred until two months has elapsed since the insurer has made an offer under s82 or unless the insurer has failed to make an offer within the required period (s91).

10.4. Notwithstanding the above, a claim may be referred for assessment at any time if there is a denial of liability by the insurer or it is in respect of the death of a person or it is in respect of an injury which has not stabilised within three years after a motor accident (s91(2)).

10.5. Claims may be certified as being exempt from assessment if it is a claim which fits within the relevant MAA claims assessment guidelines or a claims assessor has determined that it is not suitable for assessment, in which event a certificate is to be issued to enable court proceedings to be commenced (s92). One would assume that this provision could apply where there are issues of fraud, credit or complex questions of law or the claimant has suffered catastrophic injuries.

10.6. Where a claim is referred for assessment the assessor makes an assessment on the issue of liability (unless already admitted) and damages. The assessment is made on the evidence available to the assessor. If one party does not cooperate or ceases to cooperate and provide evidence, then the assessor will make the assessment on whatever evidence is before him/her. The assessment will include a brief statement as to reasons (s94).

10.7. An assessment on liability is not binding on any party (s95(1)), but an assessment on damages is binding on the insurer and the insurer must pay the amount so specified if the insurer accepts liability and the claimant accepts the amount set out in the certificate within 21 days of - the issue of same (s95(2)).

10.8. The assessor may determine disputes as to late claims (s73), satisfactory explanation for non-reporting to the police (s70), compliance with format of a claim form (s74), inadequacy of particulars (s82) or whether various treatment expenses should be paid (s83). Any such dispute may be referred to the Authority for assessment (s96).

10.9. An assessment will not be binding on the claimant unless it specifically accepts the assessment within 21 days. In other words, if the claimant either rejects the assessment or does nothing, then the assessment is not capable of acceptance and will not be binding on the insurer or the claimant.

10.10. The claims assessor may direct either party to produce documents which the assessor considers relevant and furnish specified information within a particular time frame. Failure to do so is an offence under the Act. If a party fails to comply with such a direction to produce documentation or evidence, then the party cannot have that document or information admitted in subsequent proceedings before the court unless the court otherwise orders (s100).

10.11. Where any information is produced to the assessor then the assessor may furnish the documents to the other party, although the regulations may provide certain exemptions to this power (s101). It remains to be seen whether the regulations will exempt investigation and surveillance type reports and the approach an insurer will adopt in respect of same. An insurer may wish to rely on same for the purposes of issues of credibility and cross examination of the claimant or other witnesses. if these documents have to be produced to the assessor and are then furnished to the other side, clearly they would be of limited value if the matter was to proceed to court.

10.12. The principal claims assessor may issue a summons requiring the attendance of a party to an assessment or to a conference where the assessor is satisfied the party has failed without reasonable excuse to comply with the request to attend (s102).

10.13. There does not appearto be any particular guidance in the Act as to how the assessor is to calculate damages, but of course the assessor is appointed under the Act and the Act is a code for motor accidents claims. Therefore, damages are no doubt to be calculated in accordance with Part 5. It is interesting, however, to note that throughout Part 5 there are frequent references to "a court" but no references to an assessor. There are various other references to an "award of damages" whereas the assessment provisions refer to "assessment" or "amount of damages". There also seems to be no particular provision regarding the power of the assessor to award costs, although presumably costs will follow the event. In that regard, query whether the assessor would have the discretion to make adverse costs orders if the insurer had made an offer that was greater than the assessment finally made. There does not appear to be any provision for "offers of compromise" although s152(2) makes it clear that the rules of court concerning offers of compromise apply where there are court proceedings and no claims assessment. By inference they would not apply where there is a claims assessment and of course proceedings are not on foot. Also there does not appear to be any provision that would deal with "Calderbank" type offers. Therefore the system presumably will be that the insurer will pay the costs unless possibly when there is a finding that is accepted by the parties that the Defendant is not liable, in which event the costs consequences are not clear.

10.14. Parties are entitled to legal representation before the assessor (s103(2)).

10.15. The assessor must take into account any written submissions prepared by a legal practitioner acting for a party to the assessment and submitted on behalf of such party whether or not there is legal representation at the assessment (s104(4)). It remains to be seen whether some parties will choose to make detailed written submissions to the assessor and not attend the assessment.

The assessor is not obliged to hold any formal hearing or assessment conference and may have any particular parties in attendance. However, if the assessor so wishes helshe may arrange for the attendance of a party or parties or experts (query whether this provision would entitle the assessor to consult with experts not retained by either party). The assessor may arrange for a separate assessment conference in private with any party or any expert (s104).

10.16. A statement made during an assessment conference is not admissible in subsequent court proceedings and nor is the result of the assessment to be disclosed (s104(7) and s115). However, such statements may be admissible in proceedings pursuant to Part 4.6 (fraudulent claims).

10.17. It will be necessary to carefully monitor the procedures adopted by assessors, given that the provisions contemplate that an assessor can hold conferences in private with a witness from one side without the other side having any opportunity of being present at that conference or being aware of the submissions made or evidence given in such a conference. Questions of procedural fairness and natural justice could arise given in particular that the assessment will be binding on the insurer unless the claimant disputes it.

11. COURT PROCEEDINGS AND CLAIMS-PART 4.5

11.1. There are a number of prerequisites to any claim being:

11.1.1. The claim has been assessed and a certificate issued (s108).

11.1.2. The claim is exempt from assessment and a certificate has been issued (s108).

11.1.3. The claim must be commenced within three years of the accident provided the three year time period will be suspended in effect for the period from the time when the claim has been referred to a claims assessor to a date two months after the certificate of assessment or exemption certificate is issued (s109(2)).

11.1.4. The existing procedures for leave outside the three year period have been maintained (s109).

11.2. A new s110 has been inserted whereby the insurer may require a claimant to commence court proceedings by giving notice to the claimant to commence proceedings if the claimant has been entitled to commence proceedings for at least six months and at least 18 months have elapsed since the date of the accident (s110(1)).

The claimant must comply with the notice to commence within three months after receipt, and if the claimant does not comply, then the claimant is taken to have withdrawn the claim, although the claimant may apply to the court in such circumstances for reinstatement, which will be granted if the court is satisfied that a full and satisfactory explanation for the failure to comply has been given (s110(2)-(5)).

11.3. A new s111 has been inserted whereby the claim is to be remitted for further assessment where significant new evidence is produced in court proceedings and where a claims assessor has issued a certificate under s94 (s111(1)). In such circumstances, the court is required to adjourn the proceedings until the matter has been referred to further assessment under Part 4.4 and further certificate has issued.

"Significant evidence" is evidence that the court considers may have materially affected the assessment by the claims assessor if it had been made available at the relevant time (see s151 for cost penalties where the evidence was available at the time of the original assessment).

11.4. A Claims Register is to be established by the Motor Accidents Authority and insurers are to forward to the Authority such details of each claim received by the insurer as the Authority may require (section 120).

12. Costs - Chapter 6

12.1. Regulations will be prescribed to provide for maximum costs for legal services provided to a claimant or to an insurer together with maximum costs for non-legal services such as investigations, medical reports, etc (s149). Regulations will also provide for the fixing of maximum fees for medical reports and witness expenses for medical practitioners (sl 50).

12.2. Fundamentally it should be noted that the cost provisions are said to apply in respect of costs payable on a party/party basis or on a solicitor/client basis (s148(2)). A legal practitioner is not entitled to recover costs exceeding any maximum costs fixed by the regulations. It is not clear whether it is intended that solicitor/client costs be abolished or alternatively if they are to be preserved, then the regulations may fix maximum recoverable amounts for both party/party and solicitor/client costs.

12.3. The following cost penalty provisions apply where a claimant does not accept an assessor's certificate under Part 4.4 within 21 days of the certificate being issued (s151(2)).

12.3.1. The insurer is liable to pay the cost if the amount awarded by the court exceeds the amount in the certificate by $2,000.00 or 20%, whichever is the greater or exceeds the certified amount by $200,000.00;

12.3.2. Each party is to pay their own costs if the amount awarded by the court exceeds the amount of damages certified in the certificate but the insurer is not otherwise liable to pay pursuant to (a) above, namely it does not exceed by 20% or $2,000.00 or $200,000.00;

12.3.3. If the claimant recovers less than the certificate then the claimant will pay the costs.

12.4. Where a party adduces evidence at the court which was available at the time of the original assessment leading to proceedings being adjourned for further assessment then the failure will be a fact that the court will have regard to in making possible adverse costs orders (s151(3)).

12.5. Section 153(1) empowers the Court to make an order that the parts from the provisions of Chapter 6 - "in an exceptional case and for the avoidance of substantial injustice".

13. GUIDELINES - MAA

13.1. There is provision therefore for :-

13.1.1. MAA medical guidelines (section44).

13.1.1.1.

13.1.2. MAA claims handling guidelines (section 68).

13.1.3. MAA claims assessment guidelines (section 69).

14. TIME FRAMEWORK

14.1. Early treatment regime

Accident Notification Form to be submitted by claimant within 28 days. Insurer within 10 days to give written notice re acceptance of liability.

14.2. Claims procedure

Claimant to report to Police as required by law and lodge full claim within 6 months of the accident.

14.2.1. Insurer within 3 months of receiving claim must admit or deny liability in writing.

14.2.2. Insurer to make a reasonable offer of settlement (unless liability denied) within 1 month of injury stabilising as agreed or within 2 months of the receipt of full particulars.

14.2.3. After 2 months from offer of settlement or when liability denied either party may refer claim to assessment.

14.2.4. Assessment binding on insurer unless rejected by claimant within 21 days of assessment.

14.3. Court Proceedings

14.3.1.3 year limitation period applied but suspend from the time claim referred for assessment until 2 months after receipt of assessment certificate.

14.3.2. Insurer can require claimant to commence proceedings by notice given that claimant has failed to commence action at least 6 months after able to do so and 18 months has passed since the accident.

15. Scheme Changes - Entitlements and Procedures: Conclusion

The changes incorporated in the Motor Accidents Act Compensation Act will impact seriously at all levels of the scheme and on all stakeholders -

(a) Motorists will achieve a reduction in third party premium;

(b) Motor accident victims should benefit from more effective claims handling and early intervention from insurers. However cases of quite significant injury will now fail to yield a result in terms of non economic loss;

(c) Insurers confront new obligations in claims handling requirements and greater sanctions for non-compliance;

(d) There will be a reduction in legal involvement in claims although the civil court tort system remains the backstop to the system. 

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