Stacks Goudkamp Special Counsel Belinda Cassidy discusses two significant issues that have emerged in the early days of the new Motor Accident Injuries Act 2017 (NSW): No-fault or blameless accidents and Workers Compensation problems. She previously presented on this topic at the seminar Motor Vehicle Injuries: Where are we now?
No-fault or blameless accidents
Section 5.1 defines a no-fault accident in identical terms to s 7A of the previous Motor Accidents Compensation Act so covers inevitable or blameless accidents. Section 5.2 is like the previous s 7B and, in a claim for damages or statutory benefits imposes liability on an insurer by deeming fault on the part of the driver that caused the accident.
Section 5.4 is similar to the previous s 7E and prevents the driver of the vehicle that caused the accident from recovering damages or statutory benefits but this section has been retrospectively amended to remove the reference to statutory benefits. [Statute Law (Misc Provisions) Act (No 2) 2018].
Because s 3.1 provides that anyone injured in a car accident can claim statutory benefits regardless of who, if anyone was at fault or even if the claimant was at fault, the amendment to s 5.4 makes it clear that statutory benefits are payable to blameless drivers in a no-fault accident.
However, insurers are relying on Part 5 and s 5.2 in particular as the means of cutting off the ‘blameless’ driver’s benefits after the first 26 weeks by submitting that ‘wholly at fault’ in s 3.11 or 3.28 includes drivers deemed to be wholly at fault.
It is hoped that further legislative clarification will occur to prevent disputation.
Workers compensation problems
Section 3.35 of the Act says that a person injured in a motor accident is not entitled to statutory benefits if they have a workers compensation claim.
Problems occur if a workers compensation claim is rejected or benefits under that legislation cease – and motor accident CTP claim will be late and making a late claim requires explanation and often involves disputation.
The MAI Act permits an injured person to pursue a common law claim but damages are limited to non-economic loss and lost wages and loss of earning capacity (but not treatment, care etc because they are considered statutory benefits).
A problem arises because s151Z of the workers compensation legislation requires a Claimant to repay out of the damages claim all workers compensation paid (including treatment and care paid by the workers compensation insurer).
This problem has been rectified by the Workers Compensation Legislation Amendment Act 2018 which amended:
- s 3.35 (of MAI Act) to allow claims for treatment and care after a workers compensation claim has finalised
- s 6.13 (of MAI Act) to allow a claim for statutory benefits to be made within 3 months after workers compensation payments cease
- ss 151A and 151Z to limit recovery to the amount paid in weekly benefits and permanent impairment and pain and suffering compensation (up to an amount awarded for NEL under MAI Act)
There is still a problem when an interstate workers compensation claim is made because of course the amendments to the NSW workers compensation legislation can only affect NSW workers compensation claims.
Special Counsel Belinda Cassidy joined Stacks Goudkamp after 18 years as the Principal Claims Assessor at the State Insurance Regulatory Authority (formerly the Motor Accidents Authority). Belinda currently holds an appointment as a Claims Assessor under the Motor Accidents Compensation Act. Belinda has always worked in the personal injury litigation field, first as a Junior Solicitor at Hickson Lakeman and Holcombe and then as an Associate and later Partner at Windeyer Dibbs. Admitted in 1989, Belinda has specialist accreditation in Personal Injury Law and is one of the state’s leading experts in assessing motor accident compensation. While acknowledging the importance of the Courts, Belinda is a passionate supporter of independent, cost effective and timely alternate dispute resolution services. Belinda, is an accredited Mediator and a member of the NSW Law Society, the Council of Australasian Tribunals, the Australian Institute of Administrative Lawyers and the Australian Institute of Judicial Administrators. Belinda has recently become a member of the Australian Institute of Company Directors. Connect with Belinda via LinkedIn