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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Motor Accidents Compensation
Amendment (Claims and Dispute
Resolution) Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Motor Accidents Compensation Act 1999
No 41 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendment of Motor Accidents Compensation Act 1999 3
Schedule 2 Amendment of other Acts 32
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Motor Accidents Compensation
Amendment (Claims and Dispute
Resolution) Bill 2007
Act No , 2007
An Act to amend the Motor Accidents Compensation Act 1999 to make further
provision for claims procedures and assessment, dispute resolution and medical
assessment; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Motor Accidents Compensation Amendment (Claims and Dispute
Clause 1 Resolution) Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Motor Accidents Compensation Amendment (Claims and
Dispute Resolution) Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Motor Accidents Compensation Act 1999 No 41
The Motor Accidents Compensation Act 1999 is amended as set out in
Schedule 1.
4 Amendment of other Acts
Each of the Acts specified in Schedule 2 is amended as set out in that
Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
Schedule 1 Amendment of Motor Accidents
Compensation Act 1999
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
Principal Claims Assessor means the person holding office as
Principal Claims Assessor under section 99A.
[2] Section 34 Claim against Nominal Defendant where vehicle not identified
Omit "after due inquiry and search" from section 34 (1).
[3] Section 34 (1AA)
Insert after section 34 (1):
(1AA) A claim cannot be made against the Nominal Defendant under
this section unless due inquiry and search has been made to
establish the identity of the motor vehicle concerned.
[4] Section 34A
Insert after section 34:
34A Rejection of claim for failure to make due inquiry and search to
establish identity of vehicle
(1) If due inquiry and search has not been made to establish the
identity of the motor vehicle concerned, a claim against the
Nominal Defendant under section 34 cannot be referred for
assessment under Part 4.4 unless:
(a) the Nominal Defendant has lost the right to reject the claim
for failure to make that due inquiry and search, or
(b) a claims assessor has, on the assessment of a dispute as to
whether the claim may be rejected for failure to make that
due inquiry and search, assessed that due inquiry and
search has been made, or
(c) the claim is referred only for a certificate of exemption
from assessment under Part 4.4.
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
(2) The Nominal Defendant loses the right to reject a claim for
failure to make due inquiry and search to establish the identity of
a vehicle if the Nominal Defendant:
(a) does not, within 2 months after the claim is made, reject
the claim for failure to make that due inquiry and search or
ask the claimant to make that due inquiry and search, or
(b) does not, within 2 months after being notified of efforts to
establish the identity of the vehicle, refuse to accept that
there has been due inquiry and search to establish the
identity of the vehicle.
(3) If court proceedings are commenced on a claim against the
Nominal Defendant under section 34, the Nominal Defendant
may apply to the court to have the proceedings dismissed on the
ground that due inquiry and search to establish the identity of the
vehicle has not been made.
(4) An application to have proceedings dismissed on that ground
cannot be made more than 2 months after the statement of claim
is served on the Nominal Defendant and also cannot be made if
the Nominal Defendant has lost the right to reject the claim on
that ground.
(5) On an application to have proceedings dismissed on that ground,
the court must dismiss the proceedings unless satisfied that due
inquiry and search to establish the identity of the vehicle has been
made.
[5] Section 44 Medical Guidelines of Authority
Insert "and review of assessments" after "procedure for assessment" in
section 44 (1) (d).
[6] Part 3.2, heading
Omit the heading. Insert instead:
Part 3.2 Early payment for treatment and lost
earnings of injured persons
[7] Section 46 Definitions
Insert in alphabetical order:
lost earnings means past loss of earnings resulting from injuries
to an injured person.
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Motor Accidents Compensation Amendment (Claims and Dispute
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
[8] Section 47 Payment for treatment and lost earnings of injured persons
Insert "and lost earnings" after "treatment expenses" in section 47 (1).
[9] Section 47 (2)
Omit the subsection. Insert instead:
(2) Payment for treatment expenses and lost earnings is not required
under this Part to the extent that:
(a) they are paid for by the insurer under a claim made in
respect of the matter, or
(b) (in the case of treatment expenses) they are paid or
recovered under Part 3.3 (Payments to hospitals, doctors
and others).
[10] Section 47 (3) and (4)
Insert after section 47 (2):
(3) Payment is not required under this Part for treatment expenses or
lost earnings incurred after a claim is made in respect of the
matter.
(4) An insurer is not required to pay for lost earnings under this Part
if the insurer is reasonably of the opinion that the claimant is
likely to make a claim in respect of the matter because the
claimant is entitled to recover damages in excess of the amount
that would otherwise be payable under this Part or is entitled to
recover under other heads of damage.
[11] Section 48 Notification of motor accident to police and submission of
accident notification form to insurer
Insert "or lost earnings" after "treatment expenses".
[12] Section 49 Accident notification forms
Insert after section 49 (2) (b):
(b1) information about any loss of earnings suffered by the
injured person to be completed by or on behalf of the
injured person, and
[13] Section 50 Acceptance of provisional liability by insurer
Insert "and lost earnings" after "treatment expenses" wherever occurring in
section 50 (1), (3) and (7).
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Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[14] Section 50 (5)
Omit the subsection. Insert instead:
(5) Despite anything to the contrary in this section, an insurer who is,
or is acting for, the Nominal Defendant under section 34 (Claims
against Nominal Defendant where vehicle not identified) is not
taken to have accepted provisional liability unless the insurer has
given written notice accepting provisional liability.
[15] Section 50 (7)
Omit "in respect of those expenses". Insert instead "in respect of them".
[16] Section 50 (8)
Omit the subsection. Insert instead:
(8) Payments under this Part are payments as compensation for the
treatment expenses or lost earnings concerned, but neither those
payments nor the acceptance of provisional liability under this
Part by an insurer constitutes an admission of liability by the
insurer in connection with a claim in respect of the motor
accident.
[17] Section 51
Omit the section. Insert instead:
51 Limit on preliminary payments
(1) The maximum amount that an insurer is required to pay under
this Part as the total amount of treatment expenses and lost
earnings of an injured person is $5,000 or such other amount as
may be determined by the Authority under subsection (2).
(2) The Authority:
(a) is to review the amount referred to in subsection (1)
annually, and
(b) may, by order published in the Gazette, vary that amount
to take account of inflation or other matters.
(3) If 2 or more injured persons were injured in the same motor
accident, the maximum total amount of treatment expenses and
lost earnings under this section applies to each such person and is
not reduced by the payment of the treatment expenses or lost
earnings of any other such injured person.
(4) Treatment expenses and lost earnings of an injured person are
only required to be paid under this Part for treatment provided or
loss of earnings suffered within 6 months after the motor accident
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Motor Accidents Compensation Amendment (Claims and Dispute
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
concerned (even if the total amount payable is less than the
maximum total amount fixed by this section).
(5) Treatment expenses are to be paid in priority to lost earnings and
for that purpose payment for lost earnings is not to be made until
the end of the 6 months after the motor accident concerned and is
to be made only to the extent that payment for treatment expenses
for treatment provided in that 6 months will not exceed the
maximum total amount fixed by this section.
[18] Section 57 Definitions
Insert in alphabetical order:
medical assessment matters means any of the matters referred to
in section 58.
[19] Section 57A
Insert after section 57:
57A Motor Accidents Medical Assessment Service
(1) The Authority is to establish in association with its operations a
unit, to be known as the Motor Accidents Medical Assessment
Service.
(2) The Service is to consist of medical assessors and such officers
of the Authority as the Authority determines.
[20] Section 58 Application
Insert "(referred to in this Part as medical assessment matters)" after "the
following matters" in section 58 (1).
[21] Section 58 (1) (c)
Omit the paragraph.
[22] Section 58 (1) (d)
Omit the paragraph. Insert instead:
(d) whether the degree of permanent impairment of the injured
person as a result of the injury caused by the motor
accident is greater than 10%,
[23] Section 58 (1) (e)
Omit the paragraph.
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Motor Accidents Compensation Amendment (Claims and Dispute
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[24] Section 60 Medical assessment procedures
Insert "to the Authority" after "referred" in section 60 (1).
[25] Section 60 (2)
Omit section 60 (2)(4). Insert instead:
(2) The Authority is to arrange for the dispute to be referred to one
or more medical assessors.
[26] Section 61 Status of medical assessments
Omit section 61 (2). Insert instead:
(2) Any such certificate as to a medical assessment matter is
conclusive evidence as to the matters certified in any court
proceedings or in any assessment by a claims assessor in respect
of the claim concerned.
[27] Section 61 (3)
Omit the subsection.
[28] Section 61 (7) and (8)
Omit "matter referred to in subsection (2) (a), (b), (b1) or (c)" wherever
occurring.
Insert instead "medical assessment matter".
[29] Section 61 (10) and (11)
Insert after section 61 (9):
(10) The following procedure is to apply if the assessment of more
than one medical assessor is required to assess whether the
degree of permanent impairment of the injured person is greater
than 10% (not being an assessment of the degree of permanent
impairment resulting from psychiatric or psychological injury):
(a) each medical assessor is to give a certificate as to the
degree of permanent impairment of the injured person
resulting from the particular injury or injuries with which
the medical assessor's assessment is concerned,
(b) based on the matters certified in each such certificate a
medical assessor nominated by the Authority for the
purpose is to make an assessment of the total degree of
permanent impairment resulting from all the injuries with
which those certificates are concerned and is to give a
certificate (a combined certificate) as to that total degree
of permanent impairment,
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
(c) the combined certificate is conclusive evidence as to
whether the degree of permanent impairment of the injured
person is greater than 10% and this section applies to the
combined certificate accordingly.
(11) If a medical assessor is satisfied that a certificate under this
section contains an obvious error, the medical assessor may issue
a replacement certificate to correct the error.
[30] Section 62 Referral of matter for further medical assessment
Insert after section 62 (1):
(1A) A matter may not be referred again for assessment by a party to
the medical dispute on the grounds of deterioration of the injury
or additional relevant information about the injury unless the
deterioration or additional information is such as to be capable of
having a material effect on the outcome of the previous
assessment.
(1B) Referral of a matter under this section is to be by referral to the
officer of the Authority designated by the Authority for the
purpose (in this Part referred to as the proper officer of the
Authority).
[31] Section 63 Review of medical assessment by review panel
Insert after section 63 (2):
(2A) If a medical assessment under this Part (a combined certificate
assessment) is based on the assessments of 2 or more single
medical assessors (resulting in a combined certificate as to the
total degree of permanent impairment), the combined certificate
assessment cannot be the subject of review under this section
except by way of the review of any of the assessments of the
single medical assessors on which the combined certificate
assessment is based.
[32] Section 63 (3A)
Insert after section 63 (3):
(3A) The review of a medical assessment is not limited to a review
only of that aspect of the assessment that is alleged to be incorrect
and is to be by way of a new assessment of all the matters with
which the medical assessment is concerned.
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[33] Section 63 (5)(7)
Omit section 63 (5). Insert instead:
(5) If on the review of a medical assessment of a single medical
assessor on which a combined certificate assessment is based a
new certificate is issued by the review panel, the review panel is
also to issue a new combined certificate to take account of the
results of the review.
(6) Section 61 applies to any new certificate or new combined
certificate issued under this section.
(7) The MAA Medical Guidelines may limit the time within which
an application under this section may be made.
[34] Section 64 Costs of medical assessment
Omit section 64 (3). Insert instead:
(3) The costs of medical assessments under this Part include the
following:
(a) the remuneration of medical assessors,
(b) the reasonable and necessary costs and expenses incurred
by the injured person, and by a parent or other carer of the
injured person in order to accompany the injured person, in
attending the medical assessor or assessors for the
purposes of the assessment,
(c) any costs incurred by the Authority in connection with
medical assessments under this Part,
(d) such other costs in connection with medical assessments
under this Part as may be prescribed by the regulations.
[35] Section 64 (5)
Insert after section 64 (4):
(5) The regulations may prescribe a rate at which the cost of travel
by any specified mode of transport is to be calculated for the
purposes of the payment of travel costs under this section.
[36] Section 65 MAA monitoring and oversight
Insert after section 65 (2):
(3) A medical assessor is not subject to control and direction by the
Authority or any public servant with regard to any of the
decisions of the assessor that affect the interests of the parties to
a medical assessment, and the Authority or any public servant
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
may not overrule or interfere with any such decision of a medical
assessor in respect of any such assessment.
[37] Section 70
Omit the section. Insert instead:
70 Reporting of motor accident to police
(1) Unless a police officer attended the motor accident, a motor
accident that gives rise to a claim must be reported to a police
officer by or on behalf of the claimant within 28 days after the
motor accident. This requirement is referred to in this section as
the police accident report requirement.
(2) A person who makes a claim must provide to the insurer a full
and satisfactory explanation for any non-compliance with the
police accident report requirement.
(3) If the police accident report requirement for a claim is not
complied with, the claim cannot be referred for assessment under
Part 4.4 unless:
(a) the insurer has lost the right to reject the claim on the
ground of that non-compliance, or
(b) a claims assessor has, on the assessment of a dispute as to
whether the claimant has a full and satisfactory
explanation for the non-compliance, assessed that
sufficient cause existed to justify the delay in reporting the
motor accident to a police officer and that a report of the
motor accident to a police officer was made within a
reasonable period in the circumstances, or
(c) the claim is referred only for a certificate of exemption
from assessment under Part 4.4.
(4) The insurer loses the right to reject a claim on the ground of
non-compliance with the police accident report requirement if the
insurer:
(a) does not, within 2 months after receiving the claim, reject
the claim on the ground of that non-compliance or ask the
claimant to provide a full and satisfactory explanation for
the non-compliance, or
(b) does not, within 2 months after receiving an explanation
for the non-compliance, reject the explanation.
(5) If court proceedings are commenced on a claim in respect of
which the police accident report requirement has not been
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
complied with, the insurer may apply to the court to have the
proceedings dismissed on that ground.
(6) An application to have proceedings dismissed on the ground of
non-compliance with the police accident report requirement
cannot be made more than 2 months after the statement of claim
is served on the defendant and received by the insurer and also
cannot be made if the insurer has lost the right to reject the claim
on the ground of that non-compliance.
(7) On an application to have proceedings dismissed on the ground
of non-compliance with the police accident report requirement,
the court must dismiss the proceedings unless satisfied that
sufficient cause existed to justify the delay in reporting the motor
accident to a police officer and that a report of the motor accident
to a police officer was made within a reasonable period in the
circumstances.
(8) In this section, a reference to an insurer includes a reference to the
person against whom the claim is made.
[38] Section 73 Late making of claims
Omit section 73 (3) and (4). Insert instead:
(3) If a late claim is made, the claim cannot be referred for
assessment under Part 4.4 unless:
(a) the insurer has lost the right to reject the claim on the
ground of delay, or
(b) a claims assessor has, on the assessment of a dispute as to
whether a late claim may be made in accordance with this
section, assessed that the claimant has a full and
satisfactory explanation for the delay in making the claim,
or
(c) the claim is referred only for a certificate of exemption
from assessment under Part 4.4.
(4) The insurer loses the right to reject a late claim on the ground of
delay if the insurer:
(a) does not, within 2 months after receiving the claim, reject
the claim on the ground of delay or ask the claimant to
provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation
for the delay, reject the explanation.
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
(5) If court proceedings are commenced on a late claim, the insurer
may apply to the court to have the proceedings dismissed on the
ground of delay.
(6) An application to have proceedings dismissed on the ground of
delay cannot be made more than 2 months after the statement of
claim is served on the defendant and received by the insurer and
also cannot be made if the insurer has lost the right to reject the
claim on the ground of delay.
(7) On an application to have proceedings on a late claim dismissed
on the ground of delay, the court must dismiss the proceedings
unless satisfied that the claimant has a full and satisfactory
explanation for the delay in making the claim.
(8) In this section, a reference to an insurer includes a reference to the
person against whom the claim is made.
[39] Section 74 Form of notice of claim
Omit "either or both" from section 74 (2).
Insert instead "any one or more".
[40] Section 74 (2) (c)
Insert after section 74 (2) (b):
(c) authorise the insurer to provide information and
documents so obtained by the insurer to persons specified
in the authorisation.
[41] Section 74 (2A)
Insert after section 74 (2):
(2A) A copy of an authorisation for the obtaining of information and
documents from a person is sufficient authorisation for that
purpose and may be relied on as if it were the original
authorisation.
[42] Section 76
Omit the section. Insert instead:
76 Rejecting claims for failure to comply with section 74
(1) If section 74 has not been complied with, a claim cannot be
referred for assessment under Part 4.4 unless:
(a) the insurer has lost the right to reject the claim for
non-compliance with section 74, or
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
(b) a claims assessor has, on the assessment of a dispute as to
whether the claim may be rejected for non-compliance
with section 74, assessed that the non-compliance is
technical and of no significance, or
(c) the claim is referred only for a certificate of exemption
from assessment under Part 4.4.
(2) The insurer loses the right to reject a claim for non-compliance
with section 74 if within 2 months after receiving the claim the
insurer does not reject the claim for non-compliance with that
section.
(3) If court proceedings are commenced on a claim in respect of
which section 74 has not been complied with, the insurer may
apply to the court to have the proceedings dismissed on the
ground of non-compliance with section 74.
(4) An application to have proceedings dismissed on the ground of
non-compliance with section 74 cannot be made more than 2
months after the statement of claim is served on the defendant
and received by the insurer and also cannot be made if the insurer
has lost the right to reject the claim on the ground of that
non-compliance.
(5) On an application to have proceedings dismissed on the ground
of non-compliance with section 74, the court must dismiss the
proceedings on that ground unless satisfied that the
non-compliance is technical and of no significance.
(6) In this section, a reference to an insurer includes a reference to the
person against whom the claim is made.
[43] Section 82 Duty of insurer to make offer of settlement
Omit section 82 (1) (a). Insert instead:
(a) within 1 month after the injury is sufficiently recovered to
enable the claim to be quantified, or
[44] Section 82 (1) (b)
Omit the paragraph. Insert instead:
(b) within 2 months after the claimant has provided to the
insurer all relevant particulars about the claim as required
by section 85A,
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Amendment of Motor Accidents Compensation Act 1999 Schedule 1
[45] Section 82 (4) (b) and (c)
Omit section 82 (4) (b). Insert instead:
(b) a claim in respect of an injury that is not sufficiently
recovered within 3 years after the motor accident to enable
the claim to be quantified, or
(c) a claim in respect of which a medical assessor has declined
to make an assessment under Part 3.4 of the degree of
permanent impairment of the injured person because the
impairment caused by the injury has not become
permanent.
[46] Section 82 (5)
Omit the subsection.
[47] Section 83 Duty of insurer to make hospital, medical and other payments
Insert after section 83 (2):
(2A) If the MAA Medical Guidelines approve particular treatment as
appropriate treatment, or particular procedures as appropriate
procedures with respect to the provision of rehabilitation services
or attendant care services, in respect of any matter, any treatment,
rehabilitation services or attendant care services provided to the
injured person that accords with the approved treatment or
procedures is taken to be reasonable in the circumstances for the
purposes of subsection (2) (a)
Note. Subsection (2) (a) also requires that treatment and services be
necessary in the circumstances.
[48] Section 83 (6)
Insert after section 83 (5):
(6) The amount of a payment made under this section to or on behalf
of a claimant is to be included in the damages recoverable by the
claimant for the purposes of any reduction of those damages by
reason of the contributory negligence of the deceased or injured
person.
Note. If damages are to be reduced by reason of contributory
negligence, subsection (6) ensures that the reduction extends to
amounts paid by an insurer under this section.
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[49] Section 84 Duty of insurer with respect to rehabilitation of injured person
Insert after section 84 (5):
(6) The regulations may prescribe a rate at which the cost of travel
by any specified mode of transport is to be calculated for the
purposes of the payment of travel costs under this section.
[50] Section 84A
Insert after section 84:
84A Duty of insurer to make interim payments in case of financial
hardship
(1) Once liability has been admitted (wholly or in part) or determined
(wholly or in part) against the person against whom the claim is
made, it is the duty of an insurer to make payments to or on behalf
of the claimant in respect of economic loss but only to the extent
that such a payment is necessary to avoid the claimant suffering
financial hardship.
Note. A dispute about payments under this section may be referred to a
claims assessor under section 96 for assessment.
(2) It is a condition of an insurer's licence under Part 7.1 that the
insurer must comply with this section.
(3) A payment made under this section to or on behalf of a claimant
before the claimant obtains judgment for damages against the
defendant is, to the extent of its amount, a defence to proceedings
by the claimant against the defendant for damages.
(4) The amount of a payment made under this section to or on behalf
of a claimant is to be included in the damages recoverable by the
claimant for the purposes of any reduction of those damages by
reason of the contributory negligence of the deceased or injured
person.
Note. If damages are to be reduced by reason of contributory
negligence, subsection (4) ensures that the reduction extends to
amounts paid by an insurer under this section.
[51] Sections 85A and 85B
Insert after section 85:
85A Duty of claimant to provide relevant particulars of claim
(1) A claimant must provide the insurer of the person against whom
the claim is made with all relevant particulars about the claim as
expeditiously as possible after the claim is made.
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(2) The Authority may approve a form to be completed by claimants
in connection with the provision of particulars in compliance
with this section.
(3) For the purposes of this section, relevant particulars about a
claim are full details of:
(a) the injuries sustained by the claimant in the motor
accident, and
(b) all disabilities and impairments arising from those injuries,
and
(c) any economic losses and other losses that are being
claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a
proper assessment of the claimant's full entitlement to damages.
85B Consequences of failure to provide relevant particulars of claim
(1) If after a period of 2 years and 6 months since the motor accident
concerned a claimant has failed without reasonable excuse to
provide the insurer with all relevant particulars about the claim
(as required by section 85A), the insurer may by a written
direction given to the claimant within 2 months after the end of
that period require the claimant to provide those particulars.
(2) The insurer's direction must be given in the form approved by the
Authority.
(3) If the claimant does not comply with the direction within 3
months after it is given, the claimant is taken to have withdrawn
the claim.
(4) The claimant may make an application for reinstatement of the
claim:
(a) to the Authority for a claim that is not exempt from
assessment under Part 4.4, or
(b) to a court of competent jurisdiction for a claim that is
exempt from assessment under Part 4.4.
(5) An application for reinstatement made to the Authority is to be
referred for assessment as a dispute under section 96:
(a) by a claims assessor if made less than 3 years after the date
of the motor accident, or
(b) by the Principal Claims Assessor if made 3 years or more
after the date of the motor accident.
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Schedule 1 Amendment of Motor Accidents Compensation Act 1999
(6) If the application for reinstatement is made less than 3 years after
the date of the motor accident, the claim is to be reinstated if the
court or claims assessor is satisfied that the claimant has a full
and satisfactory explanation for the failure to provide the required
particulars.
(7) If the application for reinstatement is made 3 years or more after
the date of the motor accident, the claim is to be reinstated if the
court or the Principal Claims Assessor is satisfied that:
(a) the claimant has a full and satisfactory explanation for the
failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the
claimant if the claim succeeds are not less than 25% of the
maximum amount that may be awarded for non-economic
loss under section 134 as at the date of the motor accident.
(8) This section does not apply to a claim that, as at 2 years and 6
months since the motor accident concerned, is the subject of a
determination by a medical assessor declining to make an
assessment under Part 3.4 of the degree of permanent impairment
of the injured person because the impairment caused by the injury
has not become permanent.
[52] Section 86 Medical and other examination of claimant
Omit "the travelling and other expenses of the claimant of or incidental to the
examination or assessment" from section 86 (2).
Insert instead "the reasonable and necessary costs and expenses incurred by
the claimant in connection with the examination or assessment".
[53] Section 86 (3)
Insert "or the Authority" after "a medical assessor".
[54] Section 86 (4) (a)
Omit "a claims assessor". Insert instead "the Authority".
[55] Section 86 (5)
Insert after section 86 (4):
(5) The regulations may prescribe a rate at which the cost of travel
by any specified mode of transport is to be calculated for the
purposes of the payment of travel costs under this section.
[56] Section 88 Definitions
Omit the definition of Principal Claims Assessor from section 88 (1).
Page 18
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
[57] Part 4.4, Division 1A
Insert after Division 1 of Part 4.4:
Division 1A Document exchange and settlement
conference before claims assessment
89A Parties required to participate in settlement conference
(1) The parties to a claim must participate in a settlement conference
as soon as practicable after the insurer makes an offer of
settlement to the claimant under section 82.
(2) A claim cannot be referred to the Authority for assessment under
this Part until the parties have participated in a settlement
conference.
(3) A party can however refer a claim for assessment if a claims
assessor is satisfied that the party is ready and willing to
participate in a settlement conference but the other party has
refused or failed to participate despite having had a reasonable
opportunity to do so.
(4) A settlement conference is a conference, the purpose of which is
to settle the claim, in which the following persons participate:
(a) the claimant, the claimant's guardian or some other person
authorised by the claimant to settle the claim on the
claimant's behalf,
(b) a person authorised by the insurer to settle the claim on the
insurer's behalf.
89B Parties to exchange documents before settlement conference
(1) Before the parties' settlement conference, each party to the claim
must provide the other party or parties to the claim with a copy of
all the documents on which the party proposes to rely for the
purposes of the assessment of the claim under this Part.
(2) If a party does not provide a copy of a document before the
parties' settlement conference, the document (and any
information contained in the document) is not to be considered or
otherwise taken into account by a claims assessor for the
purposes of the assessment of the claim under this Part unless the
claims assessor admits the document to assessment on being
satisfied that the probative value of the document substantially
outweighs any prejudicial effect it may have on another party.
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Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
(3) An insurer is not required to provide a copy of documents under
this section if the insurer suspects on reasonable grounds that the
claim is fraudulent or otherwise not made in good faith.
89C Settlement offers to be made if claim not settled
(1) If the parties participate in a settlement conference but the claim
is not settled, each party must make an offer of settlement within
14 days after the settlement conference concludes.
(2) A claim cannot be referred to the Authority for assessment under
this Part until each party has made the required offer of
settlement.
(3) An offer of settlement must include a schedule of damages
sufficient to explain the manner of calculation of the damages to
which the offer relates.
(4) A party who has made the required offer of settlement can refer
the claim for assessment if more than 14 days have elapsed since
the settlement conference concluded and a claims assessor is
satisfied that the other party has refused or failed to make the
required offer of settlement.
89D Compliance with Division
(1) A claims assessor may, in assessing costs on a claim that is the
subject of assessment under this Part, impose a costs penalty on
a party to the claim if the claims assessor is satisfied that:
(a) the party has failed without reasonable excuse to
participate in a settlement conference or to make an offer
of settlement as required by this Division, or
(b) the party has failed without reasonable excuse to provide a
copy of a document to other parties before the parties'
settlement conference and the document was subsequently
admitted to assessment under this Part despite that failure.
(2) The costs penalty that may be imposed on a party is a penalty of
up to 25% (imposed by increasing the costs to be awarded against
the party, or decreasing the costs to be awarded in favour of the
party, by up to 25%). In this section, costs means costs for the
provision of legal services (including disbursements).
(3) It is a condition of a licence granted under Part 7.1 that the
licensed insurer must comply with the requirements of this
Division.
Page 20
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
89E Certain claims excluded from Division
This Division does not apply to a claim if:
(a) the claim is exempt from assessment under this Part
pursuant to section 92 (1) (a), or
(b) the period within which the insurer was required to make
an offer of settlement to the claimant under section 82 has
expired and the insurer has failed to make the offer, or
(c) the insurer wholly denies liability in respect of the claim,
or
(d) the claim is in respect of the death of a person, or
(e) the claim is in respect of an injury that is not sufficiently
recovered within 3 years after the motor accident to enable
the claim to be quantified.
[58] Section 91
Omit the section. Insert instead:
91 Time limits for referring claims
(1) A claim may not be referred for assessment under this Part unless
a period of 28 days has elapsed after each party to the claim has
made an offer of settlement as required by section 89C.
(2) However a claim may be referred for assessment under this Part
at any time if:
(a) Division 1A (Document exchange and settlement
conference before claims assessment) does not apply to the
claim (as provided by section 89E), or
(b) a provision of Division 1A allows the claim to be referred
for assessment under this Part without the parties having
participated in a settlement conference or without each
party having made the offer of settlement required by
section 89C, or
(c) the claim is referred for assessment by way of referring the
claim for a certificate of exemption from assessment under
this Part, or
(d) a medical assessor has (under section 133) declined to
make an assessment of the degree of permanent
impairment of the injured person.
Page 21
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[59] Section 94 Assessment of claims
Omit section 94 (1) (b). Insert instead:
(b) the amount of damages for that liability (being the amount
of damages that a court would be likely to award).
[60] Section 94A
Insert after section 94:
94A Claims assessor may assess costs
(1) In making an assessment and specifying damages under section
94 in respect of a claim, a claims assessor may include in the
assessment an assessment of the claimant's costs (including costs
for legal services and fees for medico-legal services) in the
matter.
(2) An assessment of those costs may also be made (whether or not
an assessment has been made under subsection (1)) if a court does
not determine a matter after the issue of a certificate under section
94 but remits the matter for further assessment under this Part.
(3) In making an assessment under this section, a claims assessor:
(a) may have regard to the amount of any written offer of
settlement made by either party to the matter, and
(b) must give effect to any requirement of a court under
section 151 (3), and
(c) must give effect to any requirement of the regulations
under Chapter 6 as to costs that may be included in an
assessment or award of damages or fixing maximum fees
and costs,
(d) must have regard to the matters set out in section 363 of the
Legal Profession Act 2004.
(4) A claimant or an insurer (or an Australian legal practitioner
acting for a claimant or an insurer in respect of the relevant claim)
has the same right of appeal against an assessment made under
this section as the claimant, insurer or legal practitioner would
have under section 384 or 385 of the Legal Profession Act 2004
if the assessment were a determination made by a costs assessor
under Part 3.2 of that Act in respect of a bill of costs.
Page 22
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
[61] Section 95 Status of assessments
Insert after section 95 (2):
(2A) The amount of damages payable by an insurer (including any
costs assessed as payable by the insurer) must be paid within such
period as may be prescribed by the regulations and the
regulations may require the payment of interest on so much of the
amount payable as is from time to time unpaid after the end of
that period. The rate of interest may be set by reference to the rate
of interest prescribed for the purposes of section 101 of the Civil
Procedure Act 2005 but may not exceed that rate.
[62] Section 96 Special assessments of certain disputes in connection with
claims
Insert before section 96 (1) (a):
(a1) whether for the purposes of section 34 (Claim against
Nominal Defendant where vehicle not identified) there has
been due inquiry and search to establish the identity of a
motor vehicle, or
[63] Section 96 (1) (b)
Omit the paragraph. Insert instead:
(b) whether the claimant has a full and satisfactory
explanation for non-compliance with the police accident
report requirement under section 70, or
[64] Section 96 (1) (d)
Omit the paragraph. Insert instead:
(d) whether the insurer is entitled to delay the making of an
offer of settlement under section 82, or
[65] Section 96 (1) (f)(i)
Insert at the end of section 96 (1) (e):
, or
(f) whether a payment is required to be made under section
84A (Duty of insurer to make interim payments in case of
financial hardship), or
(g) whether a request made of a claimant under section 85
(Duty of claimant to co-operate with other party) is
reasonable or whether a claimant has a reasonable excuse
for failing to comply with that section, or
Page 23
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
(h) whether the insurer is entitled to give a direction to the
claimant under section 85B (Consequences of failure to
provide relevant particulars of claim), or
(i) whether a claim that is taken to have been withdrawn under
section 85B should be reinstated.
[66] Section 96 (5) and (6)
Insert after section 96 (4):
(5) An assessment of a dispute under this section may include an
assessment of the claimant's costs (including costs for legal
services and fees for medico-legal services) in the assessment.
Section 94A extends to an assessment of those costs.
(6) An assessment of the claimant's costs on a dispute is binding on
the insurer and the insurer must pay to the claimant the amount of
the assessed costs.
[67] Section 99 Claims assessors
Omit section 99 (3).
[68] Section 99A
Insert after section 99:
99A Principal Claims Assessor
(1) The Minister is to appoint a person who is an Australian lawyer
as Principal Claims Assessor.
(2) The Principal Claims Assessor has and may exercise all the
functions of a claims assessor under this Act.
(3) The Principal Claims Assessor can delegate to any member of
staff of the Authority any of the Principal Claims Assessor's
functions under this Act, except this power of delegation.
(4) Schedule 3 has effect.
[69] Section 100 Power of claims assessor to require information
Insert at the end of section 100 (1) (b):
, or
(c) to give within a time specified in the direction any
specified consent, authority or direction that the assessor
considers necessary or desirable for the purpose of
facilitating the provision by another person of documents
Page 24
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
or information pursuant to a direction under
subsection (1A).
[70] Section 100 (1A) and (1B)
Insert after section 100 (1):
(1A) A claims assessor may give a direction in writing to a person who
is not a party to an assessment under this Part requiring the
person:
(a) to produce to the assessor, at a time and place specified in
the direction, specified documents in the possession of the
person, being documents that the assessor considers
relevant to the assessment of the claim concerned, or
(b) to furnish specified information to the assessor within a
time specified in the direction, being information that the
assessor considers relevant to the assessment of the claim
concerned.
(1B) The Authority must pay the reasonable costs incurred by a person
in complying with a direction under subsection (1A).
[71] Section 100 (2)
Omit "party to an assessment". Insert instead "person".
[72] Section 100 (4) (b)
Omit "subsection (1)". Insert instead "this section".
[73] Section 101 Power of claims assessor to provide documents and
information to a party
Insert after section 101 (1):
(1A) When documents or information are produced or furnished to a
claims assessor by a person who is not a party to an assessment
(pursuant to a direction under section 100 (1A)), the assessor may
produce or furnish the documents or information to any party to
the assessment.
[74] Section 101 (2) (c)
Omit "another party". Insert instead "a party".
Page 25
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[75] Section 105 Control and direction of claims assessors
Insert at the end of section 105 (3):
The Principal Claims Assessor is, in the exercise of his or her
functions, subject to the general direction and control of the
General Manager.
[76] Section 109 Time limitations on commencement of court proceedings
Omit section 109 (2). Insert instead:
(2) Time does not run for the purposes of this section from the time
that a claim has been referred to the Authority for assessment and
until 2 months after a certificate as to the assessment or
exemption from assessment is issued.
[77] Section 122 Damages in respect of motor accidents
Insert after section 122 (2):
(3) This Chapter applies to and in respect of the assessment of
damages by a claims assessor under Part 4.4 in the same way as
it applies to and in respect of an award of damages by a court.
[78] Section 123 General regulation of court awards
Insert at the end of the section:
(2) To remove doubt it is declared that if the substantive law of New
South Wales is to govern a claim for damages in respect of a
motor accident, the provisions of this Chapter are part of that
substantive law and are to be applied accordingly by the court
that determines the claim (including a court of another
jurisdiction).
(3) If a court (including a court of another jurisdiction) awards
damages to a person in respect of a motor accident contrary to this
Chapter, the person against whom the award is made:
(a) is not required to pay those damages to the extent that the
award is contrary to this Chapter, and
(b) is, to the extent that the person has paid as damages an
amount in excess of the amount awarded in conformity
with this Chapter, entitled to recover the excess as a debt
from the person to whom the payment is made.
[79] Section 124 Damages for economic loss--no compensation for first 5
days of loss of earnings etc
Omit the section.
Page 26
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
[80] Section 132 Assessment of impairment required before award of
damages for non-economic loss if dispute over impairment threshold
Omit "until the assessor is satisfied that the injury has stabilised" from section
132 (3).
Insert instead "until the assessor is satisfied that the impairment caused by the
injury has become permanent".
[81] Section 141
Insert after section 140:
141 Standard of care not affected by knowledge of driver's skill and
experience
(1) For the purposes of proceedings for damages payable in relation
to a motor accident, the standard of care required of the driver of
a motor vehicle who owes another person a duty of care is not
diminished or otherwise affected by any actual or imputed
knowledge of the other person as to the skill or experience of the
driver as the driver of a motor vehicle.
(2) This section does not affect any determination of whether a
person who has suffered harm has been contributorily negligent
in failing to take precautions against risk of harm, or any
determination as to voluntary assumption of risk by such a
person.
[82] Section 209 Functions of Council
Insert "and lost earnings" after "treatment" in section 209 (1) (c).
[83] Section 212 Motor Accidents Authority Fund
Insert after section 212 (3) (c1):
(c2) expenditure incurred by the Authority pursuant to any
arrangements under section 215A (Payment of workers
compensation indemnity on behalf of insurers),
[84] Section 215A
Insert after section 215:
215A Payment of workers compensation indemnity on behalf of insurers
The Authority may enter into arrangements with one or more
licensed insurers under the Workers Compensation Act 1987 for
the payment by the Authority on behalf of licensed insurers under
this Act (motor accident insurers) of amounts required to be paid
Page 27
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
by motor accident insurers by way of indemnity referred to in
section 151Z of that Act.
[85] Schedule 3
Insert after Schedule 2:
Schedule 3 Provisions relating to Principal
Claims Assessor
(Section 99A)
1 Term of office
(1) The Principal Claims Assessor holds office for the period, not
exceeding 7 years, specified in his or her instrument of
appointment.
(2) A person is eligible for re-appointment as Principal Claims
Assessor.
2 Remuneration and allowances
The Principal Claims Assessor is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other
Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister
may from time to time determine.
3 Acting Principal Claims Assessor
(1) The Minister may, from time to time, appoint a person to act in
the office of the Principal Claims Assessor during the illness or
absence of the Principal Claims Assessor (or during a vacancy in
the office of Principal Claims Assessor) and a person, while so
acting, has all the functions of the Principal Claims Assessor.
(2) The Minister may, at any time, remove a person from the office
of acting Principal Claims Assessor.
(3) The acting Principal Claims Assessor is entitled to be paid such
remuneration (including travelling and subsistence allowances)
as the Minister may from time to time determine.
4 Vacancy in office
(1) The office of Principal Claims Assessor becomes vacant if the
person:
(a) dies, or
Page 28
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Minister under this clause or
by the Governor under Chapter 5 of the Public Sector
Employment and Management Act 2002, or
(e) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes an assignment of his or
her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence which is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an
offence which, if committed in New South Wales, would
be an offence so punishable, or
(h) engages in any paid employment outside the duties of the
office of Principal Claims Assessor, except with the
consent of the Minister.
(2) The Minister may remove a person from the office of Principal
Claims Assessor at any time.
5 Filling of vacancy in office
If the office of Principal Claims Assessor becomes vacant, a
person is, subject to this Act, to be appointed to fill the vacancy.
6 Leave
(1) The entitlement of the Principal Claims Assessor to annual and
other leave is to be as stated in the Principal Claims Assessor's
instrument of appointment.
(2) The Principal Claims Assessor may be granted leave by the
General Manager.
7 Effect of certain other Acts
The Public Sector Employment and Management Act 2002 does
not apply to the appointment of the Principal Claims Assessor
and a person is not, as Principal Claims Assessor, subject to that
Act (except Chapter 5).
Page 29
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 1 Amendment of Motor Accidents Compensation Act 1999
[86] Schedule 5 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Act 2007
[87] Schedule 5, Part 6
Insert after Part 5:
Part 6 Provisions arising from the Motor
Accidents Compensation Amendment
(Claims and Dispute Resolution) Act 2007
24 Definition
In this Part:
2007 amending Act means the Motor Accidents Compensation
Amendment (Claims and Dispute Resolution) Act 2007.
25 General operation of amendments
Except as otherwise provided by this Part or by regulations under
this Schedule, an amendment made by the 2007 amending Act
does not apply in respect of a motor accident that occurs before
the commencement of the amendment.
26 Settlement conferences
Division 1A (Document exchange and settlement conference
before claims assessment) of Part 4.4 extends to a claim made
after the commencement of the Division even if the motor
accident concerned occurred before that commencement.
27 Duty of insurers to make hospital, medical and other payments
An amendment made by the 2007 amending Act to section 83
extends to a claim made after the commencement of the
amendment even if the motor accident concerned occurred before
that commencement.
28 Provision of relevant particulars of claim
Sections 85A and 85B extend to a claim made after the
commencement of those sections even if the motor accident
concerned occurred before that commencement.
Page 30
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Amendment of Motor Accidents Compensation Act 1999 Schedule 1
29 Medical assessment
An amendment made by the 2007 amending Act to Chapter 3
(Motor accident injuries) extends to a matter referred for
assessment under Part 3.4 after the commencement of the
amendment even if the motor accident concerned occurred before
that commencement.
30 Duty of insurer to make offer of settlement
An amendment made by the 2007 amending Act to section 82
extends to a claim made after the commencement of the
amendment even if the motor accident concerned occurred before
that commencement.
31 Claims and assessment procedures
The following amendments and provisions extend to a claim
made after the commencement of the amendment or provision
even if the motor accident concerned occurred before that
commencement:
(a) an amendment made by the 2007 amending Act to Part 2.4
(Uninsured or unidentified motor vehicles), Part 4.2
(Claims and other preliminary matters) or Division 2
(Assessment of claims) of Part 4.4,
(b) sections 85A (Duty of claimant to provide relevant
particulars of claim) and 85B (Consequences of failure to
provide relevant particulars of claim).
32 General regulation of court awards
An amendment made by the 2007 amending Act to section 123
extends to a claim made after the commencement of the
amendment even if the motor accident concerned occurred before
that commencement.
33 Standard of care of inexperienced driver
Section 141 (as inserted by the 2007 amending Act) extends to a
claim made after the commencement of the section even if the
motor accident concerned occurred before that commencement.
Page 31
Motor Accidents Compensation Amendment (Claims and Dispute
Resolution) Bill 2007
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Civil Procedure Act 2005 No 28
[1] Section 81 Definitions and application
Omit section 81 (2) (not including the note to that subsection). Insert instead:
(2) This Division does not apply to an award of damages to which
Chapter 5 of the Motor Accidents Compensation Act 1999 applies
except as specifically provided by section 82 (7).
[2] Section 82 Court may order interim payments
Insert after section 82 (6):
(7) The court may make an order under this section in proceedings
for the recovery of damages to which Chapter 5 of the Motor
Accidents Compensation Act 1999 applies, but only an order for
one or more payments to be made to the plaintiff of part of the
damages for economic loss sought to be recovered in the
proceedings and only if the court is satisfied that the plaintiff
would suffer financial hardship if such a payment were not made.
2.2 Statutory and Other Offices Remuneration Act 1975 (1976
No 4)
Schedule 2 Public offices
Insert at the end of Part 1:
Principal Claims Assessor under the Motor Accidents
Compensation Act 1999
Page 32
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