In this video, Award-Winning Lawyer Scott Hall-Johnson answers the commonly asked questions relating to compensation and cycling accidents. Most importantly, strict time limits apply in these matters and seeking advice promptly is recommended.
After 1 December 2017, if you are a cyclist and have been injured in a collision with a motor vehicle on New South Wales roads, then you will be able to claim damages pursuant to the provisions of the Motor Accidents Injuries Act (NSW) 2017.
Your claim can be made against the CTP green slip insurer of the motor vehicle or bus with which you had the collision and if the vehicle was unregistered then you are still able to bring a claim against the Nominal Defendant.
Pursuant to the provisions Division 2.4 of the Motor Accidents Injuries Act, the State Insurance Regulatory Authority (SIRA) is for the purposes of this Act the Nominal Defendant.
The writer has acted for many cyclists who have been seriously injured in accidents involving another motor vehicle.
It is now a common sight to see cyclists on our roads, both during the day and also at night.
The NSW Government has recognised this fact and has enacted new laws in relation to driver behaviour regarding cyclists.
Since 1 March 2017, drivers in NSW must leave at least one metre of space when passing a cyclist in speed zones of 60 km per hour or less. They must leave at least 1.5 metres in higher speed zones.
Furthermore, if it is safe to do so, drivers can cross centre dividing lines or continuous lane dividing lines to overtake a cyclist. They can also drive on painted islands and dividing strips to pass a bicycle when safe to do so. If it is not safe, drivers must slow down and wait until there is enough space to pass.
As far as cyclists’ behaviour concerning other motor vehicles, the minimum passing distance is not specified for cyclists and they are advised to leave sufficient room to avoid a collision when passing cars.
The writer has been involved in several cases where cyclists were thrown from their bicycle and sustained serious injuries and in one circumstance was rendered unconscious. It is therefore important if you are a cyclist at all time you have with you photo identification and also a mobile phone. It has also been mandated by the government there is a requirement for bicycle riders to produce photo identification when stopped by police who have suspected they may have committed an offence.
It is helpful if you also carry a photo ID in the event that a person or persons witness your accident and may wish to keep in contact with you and provide you with statement regarding your accident to assist you in your claim. I have been involved in a number of cases where the statements by independent witnesses were crucial in proving the cyclist was not at fault and the entire blame for the accident fell upon the driver of the motor vehicle.
It is always important to have a mobile phone with you to be able to photograph the registration plate of a motor vehicle if needed and also record details of the driver including taking a photograph of their driver’s licence.
All of this information will assist you when completing the Application for Personal Injury Benefits which is the new claim form required to be completed for all accidents after 1 December 2017 and must be lodged with the relevant CTP insurer within three months of the date of your accident.
There may also be circumstances where a cyclist has sustained injuries from falling off their bike because of defects in the road surface such as a pothole or other dangers such as loose gravel, however, these claims are governed by the provisions of the Civil Liability Act (NSW) 2002 and such claims against the local council, who are responsible for the maintenance of the road, require far more investigation.
The local council will endeavour to seek immunity from suit pursuant to the provisions of Section 43 of the Civil Liability Act. It will be necessary to seek the advice of an Accredited Specialist in Personal Injury Law with regards to proceedings of this nature.
If you are injured whilst riding your bicycle on NSW roads, then contact the specialist accredited lawyers at BPC Lawyers who will be able to provide you with immediate assistance.
A worker who is injured at work is entitled to compensation benefits including (subject to restrictions) payment of medical expenses, compensation for wage loss, and compensation for permanent impairment suffered.
But what about traveling to work? Are you covered?
Travel to and from work
Ordinarily, you will not be covered for travel to and from your home to your place of work. It did always used to be the case however, recent changes have restricted the scope of workers compensation; Section 10 Workers Compensation Act 1987 (NSW).
However, once you reach work, further travel during work hours can be covered.
Exception – Travelling to work/work site for work sake
As you can appreciate, workers compensation law must determine who is covered in all types of work. Some industries see workers travel straight from home out to a work site, or are road based, such as truck drivers.
It is to those types of working based situations that the law protects. What needs to be established is that there is a, “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.” Section 10 (3A) Workers Compensation Act 1987 (NSW).
It is well settled that a worker, during their employment, can be on a journey from a place of abode to a place of employment at the same time. For example, in the case of Hooke v Rolfe (1986) 7 NSWLR 40, the New South Wales Court of Appeal was under no hesitation to find that motor vehicle accident can have multiple purposes in the sense of being both for employment purposes and for travelling to or from places of abode.
Hence, if your job is one which by its very nature requires you to travel, or even better you’re paid to travel for work, then you may have a claim under a whole number of different provisions designed to grant a positive right to compensation: Harvard v Illawarra Meat Co Ltd  WCR 4 and Thompson v Lewisham Hospital  WCR 111.
We have run many of these cases with great success.
In the matter of Zammit v The Bush Doctor (NSW) Pty Limited (2014) (Unreported 14 September 2014), an employee was employed to attend various bush sites to use pesticide.
He was driving his own motor vehicle and suffered a crash when a spider climbed up his arm. He was taking tools and products (herbicide) to the work site where he was directed to go by his employer. He was paid an extra allowance for the travel.
Hence, the Senior Arbitrator (now Presidential member) Michael Snell (as in Maurino v Amberlor Pty Limited (1996) 14 NSWCCR 16) found in favour of the injured worker and found that this was not just a trip to work, but was a part of his work duties; thus, he was awarded workers compensation entitlements.
Many workers, like us lawyers, are office based. We travel from home to work by car, bus, train, ferry, bike or even just using our legs. Many injuries are suffered on our way to work (many at no fault of our own).
Regrettably, most workers have lost their right to workers compensation in these circumstances.
However, there are exceptions. To know if you fall into one of these exceptions, we need to look at the whole work situation – your employment contract, what you’re paid for, duties performed and the reasons for your travel.
Changes to the Rights of Victims of Motor Vehicle Accidents
What rights do those injured in Motor Accidents presently have in NSW?
It is compulsory for drivers in New South Wales to hold third-party insurer which covers any injuries covered to any person whilst driving a motor vehicle. The policy is not limited and it means that all victims of motor vehicle accidents are covered for the injuries that they suffer.
The compensation that is payable is usually referred to by the courts as ‘damages’.
a/ CTP Scheme Common Law Damages – Modified – for Victims of At Fault Accidents
Victims of motor vehicle accidents in New South Wales are currently entitled to modified common law damages. The object of an award of damages is to put the person back in the same situation as if the accident had not occurred. For reasons of economy, the entitlement to compensation is capped in several respects. Damages are awarded on a ‘once and for all time’ basis.
Damages are tailor made to the specific circumstances of the injured party. The damages are assessed in ‘heads’. The heads of damage that are usually claimed include:
i/ General damages for pain and suffering.
ii/ Loss of wages. This includes past loss of wages as well as the anticipation of loss in the future, including the loss of opportunity for profit, advancement or promotion.
iii/ Past and future medical expenses.
iv/ Nursing and domestic assistance.
Some of the ways in which the entitlement to damages is currently modified, or limited, include:
i/ There is no entitlement to recover general damages for pain and suffering except where the injury is found to have constituted a less than 10% whole person permanent impairment.
ii/ There is no entitlement to recover damages for care and assistance gratuitously provided unless the care has been provided for at least 6 hours per week and for greater than six months.
iii/ The reliance upon a 5% actuarial multiplier which lowers the damages awarded for future losses.
b/ No-Fault Compensation
Damages are also available irrespective of fault in the following limited circumstances:
i/ Catastrophically injured victims of motor vehicle accidents receive medical expenses and care on an as incurred basis.
ii/ Damages are available when the injuries are suffered in a “blameless” motor vehicle accident (the Sophie Delizio amendment).
iii/ Children under the age of 16 have a special entitlement to recover damages for medical expenses, care and funeral expenses irrespective of fault.
iv/ Medical expenses and potentially loss of wages are payable up to $5,000.00 irrespective of fault, provided the claim form is issued within twenty eight days of the accident.
c/ Benefits of the Current Scheme
i/ Compensatory Damages:
For the majority of innocent victims of motor vehicle accidents of New South Wales, the compensation awarded to them is assessed depending upon their particular circumstances. The intent of compensatory damages is to ensure that the injured party does not suffer as a result of another driver’s fault.
ii/ Immediate Payment of Medical and Rehabilitation Expenses:
During the course of the claim most medical expenses are paid as incurred and at the conclusion of the claim an amount is awarded to cover additional anticipated future expenses.
iii/ Payment of Legal Costs:
A victim of a motor vehicle accident who establishes an entitlement to compensation is entitled to have the majority of their legal costs paid by the insurer of the party at fault. In some circumstances the amount that can be recovered for legal costs is capped, but there is no restriction on a person’s entitlement to retain a lawyer at their own cost. When we buy a cupboard from Ikea, we expect an instruction manual. Most of us would be in a great deal of trouble without that assistance.
iv/ A Tailor Made Approach:
At common law, the court has an open discretion to award such amount of compensation as is necessary to put the injured party back in the situation as if the accident hadn’t occurred. While money can only do so much, it is intended that the compensation will cover all loss that has been suffered. This is important because no two cases are ever the same. Consider, for example:
- An apprentice who will expect to receive a significantly greater wage when they obtain trade qualification;
- Medical treatment that has been completed but may require a joint replacement in the future;
- An injured party that is able to return to work after an accident but may need to retire early;
- A mother who intends to return to work in the future.
CHANGES TO THE SCHEME
The Benefit Designs Options paper provided by the Government appointed reference panel stipulates at Page 1 that it has already been determined as Government policy that there will be changes to the CTP scheme to introduce a hybrid model of compensation, with benefits defined in the legislation (defined benefits) available to all, regardless of fault and limited common law damages available to those who can prove fault on the part of an owner or driver and whose injuries give rise to a permanent impairment of greater than 10% whole person impairment. The Benefit Designs Options paper, together with consultation documents provided by SIRA, indicates that the severely injured will have vastly reduced common law benefits under the proposed hybrid compensation model.
a/ Moderate to Minor Injuries
It appears clear that an arbitrary whole person impairment rating level is likely to be viewed as the gateway for accessing any form of common law benefits
For those who have not suffered a whole person impairment of greater than 10%, entitlement to loss of wages will likely be dictated by the insurer who is participating in the scheme for profit. Page 4 of the paper suggests that an insurer can undertake a work capacity decision for a person at any time. It appears that persons considered to be moderately injured or with ‘minor’ injuries, will have no access to legal representation unless a claimant lacks legal capacity or an insurer has denied liability for all benefits (example, by an allegation of fraud). Access to justice by way of legal representation appears to be further limited by a stated policy that legal practitioners be prohibited from contracting out of prescribed set maximum legal fees in matters where claimants are allowed to utilise the services of lawyers.
Those injured would be entitled to defined benefits irrespective of fault. Injuries would be compartmentalised and the payment of a benefit would largely depend upon the categorisation of the injury, rather than the actual loss suffered. Wage loss would be compensated as the loss arises, but only as a proportion of the actual loss. The entitlement to claim loss of wages would end at a defined point in time irrespective of whether the injured person has the ability to return to work.
b/ Severely Injured
The government has as its preferred option an additional entitlement for the victims of “at fault” motor vehicle accidents, only in circumstances where the injury meets a requisite threshold: 10% whole person permanent impairment.
The impairment threshold is arbitrary and intended to operate as a gateway to define the ‘haves’ and ‘have nots’. There is no pretence that the 10% threshold is just or equitable, but merely economical. For example, a person who is in a coma for six months but then recovers may be found to have a 0% whole person permanent impairment.
WHY ARE THE CHANGES UNFAIR?
a/ Access to Legal Rights
The government proposes that ordinarily only those who are severely injured will be legally represented. The victim of a motor vehicle accident will be prohibited from paying for legal advice from their own pocket unless they are severely injured. A severely injured victim may not realise that they have the opportunity of passing through the gateway and being determined as ‘severely injured’ without the benefit of legal advice. Good luck with that Ikea flat pack.
In all aspects of our daily life we look to experts for advice. It is a fundamental tenet of a free and just society that we are able to obtain legal advice about our rights. The government wishes to curtail access to legal advice because people who do not understand their rights will not make claims.
The independent review of insurer profit conducted at the request of the government found people who were legally represented obtained outcomes that are eight times greater than the outcomes for unrepresented Claimants.
Further, the proposed changes deny even an unrepresented victim access to the courts. The government proposes that disputes about a level of pay or the reasonableness of medical expenses would be determined by bureaucrats after hearing from the injured victim and the insurer, or its lawyer. The evidence that would be considered by the bureaucrat would be the documents obtained by the insurance company and submissions that it, or its lawyer, prepared compared to the documents that the unrepresented injured party was able to offer.
b/ Defined Benefits
The common law approach of assessing what loss and damage a victim has suffered is substituted for defined benefits which seek to pigeonhole compensation. The government intends to save money by paying defined benefits with the intention that the cost of the scheme will be more easy to calculate and as a result mean the cost of a green slip can be more readily determined. In fact, the saving will be made by reducing the entitlement to compensation.
In our experience, most people who suffer injury want a final resolution. That usually involves payment for past losses and an allowance to cover the future all paid in one lump sum. The changes to the scheme will mean that even seriously injured victims will not be allowed closure. For the severely injured, payments of medical expenses can be accessed for life but subject to satisfying an insurer that the treatment is reasonable and necessary.
We are sceptical of the government’s intention with respect to the changes to the scheme. The government wants to remove access to justice and put in its place a bureaucratic scheme that offers defined benefits. The government is significantly more concerned with the cost of a green slip than it is of the rights of those injured in motor vehicle accidents. Aside from insurers, very few people will benefit from the government’s proposal. Motor Accidents (Lifetime Care & Support) Act 2006  Chapter 1, Pt 1.2, Div 1 Motor Accident Compensation Act 1999  Chapter 1, Pt 1.2, Div 2 Motor Accident Compensation Act 1999  Chapter 3, Pt 3.2 Motor Accident Compensation Act 1999
Why Does the Government Want to Change the Scheme?
Stated goals of reform
The stated goals of reform are as follows:
i/ Increase the proportion of benefits to more seriously injured people;
ii/ Reduce the time it takes to resolve a claim;
iii/ Reduce opportunity for claims fraud and exaggeration; and
iv/ Reduce the cost of green slips.
Subject to ascertaining how many additional claims are made by persons at fault in accidents, regardless of whether they are deemed to have minor to moderate injuries or serious injuries referable to a whole person impairment scale, it appears that the proposed reforms will achieve the stated goal of increasing the proportion of benefits to more seriously injured people. The key issue with this stated goal, in the author’s opinion, is that it will be of little comfort to the persons assessed as being ‘more seriously injured’ that they are receiving out of the scheme a greater proportion of compensation than before, if each of their individual claims results in the actuality of them receiving less compensation per claim than they would have before. It is clear from the Benefit Designs Options paper that seriously injured people will receive far lesser sums for general damages and will have an inability to capitalise future claims for other heads that are presently available. Subject to how many additional claimants enter the scheme, by virtue of it being opened up to drivers at fault, beyond those catered for under the $5,000.00 limit pursuant to the Accident Notification Form process, for seriously injured people to receive a greater proportion of the overall benefits available to all injured persons, anyone with a minor to moderate injury will necessarily need to receive some fraction of the compensation previously available to them – which appears to be the clear scheme design.
In relation to the second stated goal of reform, reducing the time it takes to resolve a claim, it is difficult to see how any injured person, whether having injuries deemed to be minor, moderate or warranting the descriptor ‘more seriously injured’ can benefit from timeframes for cases being necessarily reduced. That is, under the present scheme, all innocent victims of accidents due to the fault of others are able to receive interim payments for medical expenses and for wage loss due to financial hardship and must allow a longer period to receive the balance of damages available as stabilisation of injuries under the medical guidelines is paramount for properly determining future impacts upon earning capacity, requirements for medical treatment and for domestic assistance. Forcing claimants to finalise claims without legal representation in order to achieve ‘claims velocity’ is likely to necessarily cause claims to be closed for persons before any opportunity is available to properly assess the longer term effects of their injuries. This appears to be a significant basis of concern for persons deemed to have minor to moderate injuries.
The third stated goal of reform is to reduce the opportunity for claims fraud and exaggeration.
To this extent, the Government should be congratulated on introducing a fraud task force for the purposes of achieving this end. One may be entitled to be more circumspect about praising media announcements to the effect that fraud is costing the NSW CTP Scheme in excess of $400,000,000.00 annually. It is inherent in discussing the fraud element of any compensation scheme, that the extent of fraud can only ever be estimated. That is, if fraud were able to be measured with accuracy, there ought to be steps taken in order to address those responsible for the fraudulent activities and the discussion of the extent and cost of fraud in the scheme reflective upon statistics compiled referable to actual documented cases.
In any event, the introduction of the fraud task force is of such recent occurrence, that it appears premature to force upon innocent victims of motor accidents a reduced compensation scheme before the longer term work of the fraud investigation task force is known and understood.
The Government has taken positive steps to promote the reporting of suspected fraudulent claim activities.
Concern attaches to the extent to which the proposed scheme reform can eliminate or reduce fraud.
To a large extent, the policing of fraud has been within the province of the insurers who have derived on average 19% profit per annum for operating under the licensed conditions pertaining to the NSW CTP scheme. It would not appear unreasonable to suggest that the insurers would increase their activity to deter, monitor and report fraudulent claims.
It is unclear as to how the introduction of a no-fault scheme will deter fraud. The experience in the United Kingdom with the introduction of a no-fault scheme appears to indicate that opportunities for fraud actually increase in a no-fault environment. That is, the initial accident reporting procedures and ease with which persons can obtain entrance to the scheme are consistent with persons of mala fides electing to chance their hand to obtain compensation payments on a repeated basis.
In relation to the goal of reducing the cost of green slips, it is still not the case that any Government representative has guaranteed that premiums will reduce by way of response to introduction of proposed scheme reforms.
It appears reasonable to assume that by mere virtue of its existence, the fraud task force recently set up by the Government will reduce the tendency of some persons to attempt claims exaggeration or fraud and will have a significant effect on systemic attempts by any networks of persons to initiate fraudulent claims.
On that basis alone, it would appear prudent in relation to allow for the further passage of time before imposing wholesale change upon the scheme.
Why Do I Pay for a Green Slip?
NSW motorists of registered vehicles pay green slips because it is compulsory to do so. The compulsory third party system was introduced many decades ago in order that there be protection to motorists from law suits and to ensure that persons injured by motorists can have the certainty of there being an insurance policy behind any necessary claim for compensation.
The green slip payment in NSW also covers persons injured in circumstances where injuries are caused by an unregistered or unidentified vehicle – the Nominal Defendant Scheme.
The Nominal Defendant meets compensation claims by appointing a licensed CTP insurer to deal with such claims commensurate with its percentage market share overall.
Is CTP Insurance Expensive?
The answer to the question largely depends upon what a person receives in exchange for paying the compulsory third party premium.
Under the proposed new system, there will necessarily be many more Claimants than presently under the existing scheme.
For this to occur and for there to be no significant premium increase as a result, it follows necessarily that each injured person (whether innocent or at fault) will receive compensation that is some fraction of what innocent (not at fault) victims presently receive under the existing scheme.
A green slip does not hold much value for an injured person if they are unable to receive adequate compensation for injuries and are forced out of the compensation scheme due to a unilateral review of entitlement to wage loss, as appears to be proposed.
The Government’s own internal report (published by State Insurance Regulatory Authority) into the review of insurer profits in the scheme, indicates that in real inflation adjusted terms, green slip premium prices “are comparable to those of fourteen years ago”. This report, published by SIRA of the independent review of insurer profit within the scheme, is publicly available.
The report needs to be read in the context of the broadened coverage that is provided by way of categories of claimants under the scheme presently by virtue of introduction of blameless accident provisions and the no fault compensation scheme that already exists up to the sum of $5,000.00 for drivers at fault (all of which was introduced during the fourteen year period referred to). That is, presently, persons injured in motor accidents (including usually a motorist who in turn pays for a CTP premium) is getting more coverage out of the present compensation system for the same price in real terms.
The Injured Persons Association in 2013, when writing to the then Acting Minister for Finance, Andrew Constance MP, pointed out that over a longer period of time, the average premium from 1988 to 2013 had increased by only 60% to an average of $550.00. The CPI had increased 120% over that same period.
In nominal terms, as well as in relative terms, CTP insurance is cheaper than ensuring a motor vehicle comprehensively for property damage and the coverage, in real terms, is much greater.
Has Anyone Made Submissions Regarding Changes to be Made on Behalf of the Insured to Date?
Submissions were allowed to be publicly made by any interested person at the invitation of SIRA in relation to proposed scheme reform.
Submissions were made by and on behalf of the usual ‘stakeholders’.
It appears obvious that the most numerous stakeholders – the millions of premium paying motorists in NSW and the tens of thousands of persons effected directly and indirectly by motor accident related injuries in NSW each year, have not been adequately consulted. Most individuals do not properly understand what they will lose in terms of legal rights and insurance coverage by way of the proposed claims.
The first time that most people will find out about the true extent and consequence of the proposed change is when they have to make a claim in respect to injuries that affect their ability to work and provide for family members.
Aside from the noticeable increase in advertising by insurance companies promoting income protection insurance policies, there appears to have been no real step taken to adequately warn innocent victims of motor accidents of an increased need to consider taking out additional insurance policies such as income protection policies and sickness and accident policies in order to offset the harsh effects of the proposed legislation on compensation rights.
It appears likely that tens of thousands of individuals including those who rely directly upon bread winners within the family will be adversely affected within twelve months of the introduction of any legislation that purports to offer less than basic and fair compensation pursuant to the basic compensation principle that underpins the common law.
This appears to be yet another reason for the State Government to allow more time to elapse before hurriedly putting through proposals that appear to be patently harsh and disadvantageous to the majority.
In discussions between the ‘stakeholders’, as opposed to the members of the public who have no idea about the true nature of the proposed changes, it has been observed that the vast majority of citizens within NSW would prefer to sacrifice a potential saving of $2-3 per week in green slip pricing to remain with proper common law based compensation, rather than risk the financial perils of being unable to meet mortgage payments and other necessary payments that may occur in circumstances where persons are forced out of the system with inherent residual restrictions that effect their earning capacity, both short term and long term.
Submissions have been offered by various bodies including the Australian Lawyers Alliance, DRIVE, The Law Society of NSW and the Bar Council.
The submissions have ranged on focusing on the historical super profits made by insurers under the scheme with the suggestion that this ought to be the only area of focus for legislators in formulating any renewed CTP legislation. The submissions offered by persons purporting to represent injured persons in NSW have included representations to the Government that it would be appropriate to set capped legal fees for claims which have less than a certain quantum value (the quantum suggestions have ranged from $30,000.00 upwards to $50,000.00).
Has Anyone Made Submissions on Behalf of the Insurers to Date?
Submissions have been made on behalf of various insurers in relation to schematic change. These submissions have focused on a suggestion that all injuries that are not catastrophic injuries can be successfully rehabilitated within a relatively short time. The submissions also point to claims exaggeration and fraud.
How Do Insurers Manage Claims Against People Without Legal Representation?
Duty to shareholders
Insurers have a duty to shareholders, not road users and certainly not injured persons who need to make claims for motor accident compensation.
Insurers are not criticised for fulfilling their primary obligation, which is to maximise profits for shareholders. It is simply necessary to acknowledge that obligation exists when giving consideration to how insurers are expected to behave when provided with a claims scheme that enables them to make unilateral decisions in relation to whether claimants remain within the scheme without fear of the claimants obtaining access to justice through legal representation.
The suggestion by insurers that rehabilitation is the way of solving problems for all persons injured on the road except for those most seriously injured with injuries greater than 10% whole person impairment may not fully acknowledge the necessary tendency of those doctors who are empanelled by insurers to take steps to ensure they remain on the panel of providers after the next internal review by insurers.
SIRA proposes, with the suggested scheme changes that appear to be on the table, to oversee and manage the actions of the insurers through adherence to guidelines through its staff (which will need to increase in numbers by a multiple that is difficult to estimate). The experience of thousands of injured workers in the workers compensation scheme in an analogous context pertaining to merit reviews performed by insurers in relation to wage loss disputes will be the subject of an Upper House inquiry in relation to the workers compensation scheme in October this year.
Again, when considering who the real stakeholders are in relation to the CTP scheme, it is important to acknowledge that insurers must account to their shareholders, not to their member road users.
Involvement of Compensation Lawyers
Legal costs have understandably been the focus of much of the discussion and perhaps form the major impetus for the proposed scheme reforms. Less than twelve months has passed since SIRA introduced compulsory reporting of solicitor/client costs and disbursements by lawyers in NSW representing injured plaintiffs.
The precise data has not been released in this regard.
We would suggest that, as with the introduction of the fraud investigation squad, the mere existence of the reporting requirements ought to be such that any untoward practises by a few would have ceased in a way that requires the passage of at least a further twelve (12) months before any probative review of the figures can be provided in terms of scheme outlook (and hopefully published).
On the statistics front, the SIRA report in to the independent review of insurer profits in the scheme notes that for claimants with legal representation under the scheme as it presently exists, the gross pay out figure has on average been 8 times greater than for claimants who are unrepresented. This would appear to be a fairly logical stand upon which to support the fact that individuals require legal representation when dealing with insurance companies.
It is acknowledged by most observers of the scheme, including the minister introducing the scheme reforms, that scheme stability is critical to the ability of the insurers to predict their profits and in turn, adequately price green slip premiums to cover the cost of claims.
In actual fact, according to SIRA’s own documentation (admittedly in the context of analysis of insurer profits, not reducing Claimant’s rights) the Scheme has been stable in terms of pricing relative to inflation for in excess of 14 years, despite broadened coverage that has occurred with introduction of blameless accidents and the no fault entitlements under the Accident Notification Forms.
It is entirely predictable that injured persons under the proposed CTP Scheme will be removed from the Scheme without being adequately compensated pursuant to common law principles in relation to any future heads of damage.
Persons exited from the proposed new scheme will have their needs met by the tax payer, if they are entitled to receive Centrelink benefits.
Persons medical and financially able to obtain income protection policies will be the few not adversely affected by the changes.
Mark Nelson, BPC Lawyers
Australians Alerted To Proposed Changes To Motor Accident Compensation Laws – Press Release
Option 1 – retain the current common law, fault based scheme with process improvements;
Option 2 – retain the current common law, fault based scheme with adjustments to benefit levels as well as process improvements;
Option 3 – move to a hybrid no fault, defined benefit scheme with common law benefits retained in parallel; and
Option 4 – move to a fully no fault, defined benefit scheme with caps, thresholds and no common law.As these discussions have progressed since March 2016, it appears the Government is in favour of option 3.
This proposed scheme is similar to the scheme presently operating in Victoria which is managed by the Transport Accident Commission. BPC Lawyers believe it is important to note the present scheme in New South Wales is already a hybrid scheme with no fault benefits paid to a significant number of classes of persons injured in New South Wales. For example, upon lodgement of the Accident Notification Form payments are made to injured persons up to the sum of $5,000.00 for medical expenses. There is also the blameless accident legislation, Lifetime Care and Support Scheme and no fault coverage for children. In the Victorian scheme there are no payments made for gratuitous domestic assistance. At the present time in New South Wales, persons who are injured can receive assistance from friends or relatives with self-care and domestic chores but such assistance must be not less than 6 hours per week and for a period not less than 6 months. The rate is legislated by statute at $29.44 per hour and is CPI indexed.
If the present legislation is changed, BPC Lawyers believes there is cause for concern in ascertaining the entry level or threshold for access to common law benefits. Most objective observers of the proposed changes are concerned that the CTP scheme will not provide adequate economic loss compensation in most cases – meaning that those who cannot afford to pay for separate income protection insurance will be left ‘high and dry’.
Mr Mark Nelson, Partner of BPC Lawyers said, “more than ever, injured persons need to consult experienced practitioners in the area of personal injury litigation and seek the assistance of solicitors who have many years’ experience in personal injury claims.”
BPC Lawyers offers the services of accredited personal injury law specialists who are ready to assist members of the community.
About BPC Lawyers
BPC Lawyers is a leading Sydney legal practice with accredited motor accident compensation lawyers. The practice has its origins as a legal practice started by Barry Beilby in 1975. The business expanded significantly in 1993 when the practice merged with that of Flannery Mura & Costello, a firm specialising in Compensation law.
For more information, please visit The website
Mr Mark Nelson
Address: Level 18, 201 Elizabeth St., Sydney, NSW Australia 2000
Phone: +61 (02) 8280 6900
Recent Compensation Case
There was a recent decision in the New South Wales Court of Appeal involving an application by an injured claimant to set out aside a decision of Supreme Court Judge, Mr Justice Fagan, to refuse the injured person’s application to seek judicial review of a decision by the Proper Officer of the Medical Assessment Service. The case was Dominice –v- Allianz Australia Insurance Limited  NSWCA 171.
The injured claimant suffered injuries in a motor vehicle accident in July 2013. In order to obtain compensation for non-economic-loss (bodily injury) it is necessary to demonstrate a degree of permanent impairment greater than 10%. The claimant was initially assessed as having a whole person impairment of 18%. The CTP insurer, Allianz, sought a review of that determination.
The review application was determined by The Proper Officer of the Medical Assessment Service of the Motor Accidents Authority. The Proper Officer is required to refer the application to a review panel of medical assessors but only if the Proper Officer “satisfied there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.”
The Proper Officer decided to refer the application by the CTP insurer to a review panel. The injured claimant instructed her lawyers to challenge that referral decision by way judicial review pursuant to Section 69 of the Supreme Court Act 1970 [NSW].
The claimant’s application was dismissed by His Honour, Mr Justice Fagan in the Supreme Court on 31 August 2016.
Justice Basten stated at paragraph 4 “no error has been identified in the judgment of the primary judge, Fagan J. If the primary judge erred in any respect, it was according too much credence to the complaints of the Appellant. In fact, the appellant’s case was based on four inter-related assumptions which were inadequately explored.”
Furthermore, it is important to note what Justice Basten also stated in his judgment:-
“Where the Proper Officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss.
However, when the error is said to have resulted in the failure of the Proper Officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least were the bona fides of the Proper Officer was not in question, would have strong reasons for rejecting the application on discretionary grounds.”
This case is important for legal practitioners to consider when challenging a Proper Officer’s decision to refer an assessment to a review panel. In view of what has been stated above by Mr Justice Basten, a solicitor acting for a claimant in such circumstances would need very good reasons to bring application for judicial review to set aside the decision of the Proper Officer to send the matter for review.
It would be more prudent to allow the matter to proceed to the review panel and depending on the outcome of their decision, decide whether or not an application for judicial review is warranted.
At BPC Lawyers, we are able to assist our clients in regard to any application for judicial review and will ensure any application to the Supreme Court has good prospects for success.
“Whiplash associated disorders – (WAD)”
A soft tissue injury occurs due to trauma to the human body when the tissues that connect, support or surround other structures and organs of the body are damaged. By definition, soft tissue includes muscles, tendons, ligaments, fascia nerves, fibrous tissues, blood vessels and synovial membranes.
Usually, the spine and the shoulders are often affected in this type of injury.
Immediate disability does follow injury to ligaments and healing, from a functional view point is seldom perfect.
Since soft tissue injury always heals with scar or fibrous tissues, it lacks the viability or elasticity of the original tissue, therefore soft tissue is always weaker after injury (whilst bone will be strengthened by scar tissue).
On occasions, some medico legal doctors imply that a whiplash associated disorder can be detected using an MRI scan. There is research to the contrary.
There was a study conducted in Sweden in 1994 where 39 consecutive cases of whiplash injury of the neck were examined clinically and with an MRI at a mean of 11 days after trauma.
26 of these showed changes on MRI with disc lesions in 25 cases, 10 of which were classified as disc herniations and a muscle lesion in one case. All of these persons had neck pain or headache.
29 cases had neurological deficits, mostly sensibility disturbances. 22 of the 26 cases with pathological MRI had neurological signs, as had 7 of the 10 cases with disc herniation.
The relationship between the MRI findings and the clinical symptoms and signs was poor.
The study was undertaken to evaluate if MRI within two days of a motor vehicle accident could reveal pathology of importance for understanding long term disability after whiplash neck sprain injuries.
As part of a prospective study, cervical and cerebral MRI was performed on 40 neck sprain patients with whiplash injury after car accidents.
The imaging was done with two days of the injury to make sure that any neck muscle bleeding, oedema or other soft tissue injuries could be detected.
The MRI findings from the patients were both correlated to report symptoms six months after the accident and compared to a control group of 20 volunteers.
The MRI of both the brain and neck revealed no significant differences between the patients and the control group.
When the patients were grouped according to the main MRI findings at intake and compared according to the development of subjective symptoms reported by the patients, the only significant difference was more headaches at six months in the groups with disc pathology or spondylosis when compared to the group with no pathology.
MRI scan within two days of the whiplash neck sprain injury could not detect pathology connected to the injury nor predict symptom development and outcome.
In conclusion, pain residuals, which may last for months or even years, may be due to the scar tissue which has replaced the previous normal tissue. Its inelastic quality can cause pain with certain movements. The lengthy period of healing may be explained by the fact that it takes a long time for soft tissue to heal and mend.
D R Ford
10 March 2017
Late making of claims under the Motor Accidents Compensation Act (1999):
Requirement for a “Satisfactory” explanation
You should refer to our earlier article in relation to the making of late motor accident claims. This paper adds to the topic in relation to the need for an explanation not only to be full, but also to be satisfactory.
The High Court considered the meaning of satisfactory delay in Russo v Aiello  215 CLR. At 463, Gleeson CJ said:
“What would justify a reasonable person in a position of the claimant ‘experiencing’ a delay? It is impossible to give an exhaustive list of possible justifications. Delay in the onset of symptoms is one example; and as an example of some relevance to this case. It is to be noted that what the Act requires is justification for the delay; not demonstration of the delay caused no harm….The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it.”
In Walker v Howard  NSWCA 408 the Court of Appeal (sitting as a bench of five) considered the case of the claimant who was suffering serious brain damage. They suggested the case gives useful guidance as to the attributes the claimant that ought be considered when applying the objective tests under s.66(2) of the Act, that is the “reasonable person in the position of the claimant” test.
Firstly, the Court said that the position of a claimant with a disability includes that disability:
“….that placement of a fictional person in that position could be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable in the claimant’s position….The phrase ‘position of the claimant’ is not limited in terms of the personal or physical characteristics of the claimant. It connotes aspects of a place and circumstances relevant to the enquiry….. It can be acceptable that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the ‘position of the claimant’….. to the extent that the test requires the subjection of the reasonable person in the position of the claimant to their circumstances in the full explanation and a “justification” of experiencing them, such a constraint demands normative evaluation”.
Young, JA noted that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant includes the age, sex and capacity of the claimant as well as her or her cultural background.
In Figgliuzzi v Yonan  NSWCA 290 the Court considered the earlier but similar incantation of the satisfactory explanation provisions in the Motor Accidents Compensation Act 1988 and held that that the explanation for the failure to lodge the claim within the time prescribed was not satisfactory because she had failed to obtain legal advice in a timely fashion. McColl, JA makes clear in Figgliuzzi at  FF, the Act is one of many statutory schemes whereby the legislature has fixed definite time limits for the prosecution of civil claims because, “the public interest requires that disputes be settled as quickly as possible.” (CF Brisbane South Regional Health Authority v Taylor  HCA 25; (1996) 186 CLR 541 at 553 per McHugh, J). Unlike other limitation provisions, however, those fixed by MA are not absolute. The various authorities Her Honour collects in that judgment clearly “….demonstrate that a legislative concern with a prompt notification and timeous resolution of claims for damages arising out of motor vehicle accidents” and “what would constitute justifiable delays to be considered in the light of these legislative purposes”. The majority held that determining whether a claimant has provided a satisfactory explanation involves a ‘normative judgment’. Arising from the accident, Ms Yonan had complimentary rights under the workers compensation and motor accident legislative regimes. Ms Yonan who was employed by the Legal Aid Commission as a clerk offered as her explanation a belief that having made a claim for workers compensation she was not then able to claim damages under the motor accident regime.
At  Tobias JA, said:
“Accordingly, the critical question concerns behaviour of a reasonable person in a position of the [claimant] who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because the accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act. Would that reasonable person in the respondent’s position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practise or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?”
Santow JA, did not accept the view of the majority that it was unreasonable for her not to have sought legal advice and to have relied upon her ‘bush’ legal analysis. In dissenting, Santo JA said at :
“For a person to have a civil claim under two regimes, namely workers compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive. Therefore she did not feel the need to verify her belief when that belief was ex-facie reasonable does not to my mind render that belief unreasonable. A reasonable person in [the claimant’s] circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief intrinsically irrational, that her own employer by its actions had implicitly confirmed. Her employer did so by requiring her to complete a workers compensation claim form. The Commission neither then, nor subsequently, informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work. While [the claimant’s] ignorance of the law did not of itself excuse her from complying with the statutory time period,…..nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”. I would therefore have reached the same conclusion as the primary Judge in this matter, applying the reasonable person test.”
More recently, Colefax DCJ in the unreported decision of Annetts v Bone & Anor, 04 December 2014 made reference to the following normative considerations:
(a) The limited formal education of the plaintiff;
(b) The knowledge or belief of the plaintiff that his condition was caused by the collision;
(c) The fact that the plaintiff took little time off work because of the injury for the first ten years after the accident;
(d) That the plaintiff was not out of pocket in relation to expenses associated with treatment of his injury because of the payments of workers compensation;
(e) The plaintiff had a broad knowledge of a separate method of compensation for injuries sustained in the motor vehicle accident other than workers compensation;
(f) The separate methods of compensation not only had time limits but also thresholds, thresholds which did not appear to have been exceeded until ten years after the accident;
(g) The separate method of compensation provided that if proceedings were commenced and lost an adverse costs order would be made and could be enforced against the plaintiff;
(h) Finally, a serious deterioration in the plaintiff’s condition ten years after the accident.
In Gedel v Tihic  NSWDC 87, Leavy DCJ, considered the explanation offered by a plaintiff who upon medical advice did not initially believe his injuries to be serious. His Honour said:
“A reasonable person in the circumstances of the plaintiff would have more likely put up with a measure of discomfort experienced by the plaintiff…. and would most likely to have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve.”
And in relation to the delay following the plaintiff’s initial consultation with his solicitors:
“In that regard, he was also required to come to grips with flow-on effects of these matters concerning his employment and his financial obligations generally as well as very real and worrying concerns over his mortgage liabilities and commitments… It is therefore not surprising and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result became to a degree un-focused and disorganised concerning his personal affairs.”
The reasonable person test involves a degree of objective analysis which may vary according to assumptions made about the person. Further, the position of the claimant is not limited to merely personal or physical characteristics, but has been said to involve both injuries suffered in the accident (including any disabilities suffered) and the circumstances relevant to the delay. The test in Walker is an objective test that is whether a reasonable person would have been justified in experiencing the delay and involves a normative evaluation of the claimant’s behaviour in this regard. What is required is justification of the delay, not demonstration that the delay caused no harm or prejudice to the insurer.
In Brierley v Ellis  NSWCA 230 (17 July 2014), the Court of Appeal held that where there was no objection made by the insurer to evidence being produced by way of statutory declaration, and no contradictory evidence is tendered, the evidence should be given no less weight than if the information contained had been provided by way of oral evidence.
Can an insurer revise their position?
For people injured in a motor vehicle accident in NSW, there are strict time frames for the making of a valid claim for compensation. The 3 most important dates (from the incident) to remember are:
- 28 days – the need to lodge with the CTP insurer an Accident Notification Form;
- 28 days – the need to notify the police of the incident and obtain an event number (unless they attended the scene, and
- 6 months – the need to lodge a Personal Injury Claim form.
If the above are complied with, then the insurer must (upon receiving your personal injury claim form) make a decision about liability within 3 months.
This does not give the insurer a lot of time, and sometimes they fail to respond within 3 months.
What happens if the insurer initially accepts liability, but later, changes its mind? Can the insurer deny a claim in that circumstance?
The Gabriel & Mordue decisions
The fundamental principle is that the insurer IS bound by their formal Section 81 Notice. It can only amend that notice IF it is to change their decision from denying liability to accepting liability.
Accordingly, if the insurer accepts liability under a Section 81 Notice, any amended notice served at a subsequent time is of no effect.
Even if the insurer makes an honest mistake, it’s too late to amend.
There are however, exceptions which make this situation complicated. The two major exceptions are:
- The insurer can amend its Section 81 Notice to deny indemnity under the policy, and
- The insurer can go against their Section 81 Notice in Court proceedings.
In this case, the insurer admitted liability with an allegation of contributory negligence.
However, contrary to the admission of liability, the insurer attempted to change its position by denying liability in the pleadings once the matter went to Court.
In a 2:1 decision the NSW Court of Appeal held that the Section 81 Notice admissions did not bind the insurer once Court proceedings were commenced.
In this case a person was injured in a motor vehicle accident off road at a car rally.
The insurer at first admitted liability but later denied the claim as the CTP policy did not respond to loss for ‘off road’ accidents.
In a 2:1 decision the NSW Court of Appeal held that the ORIGINAL Section 81 Notice admissions of ‘liability’ were different to admissions of ‘indemnity’ and thus the insurer, QBE could rely on the amended notice.
As can be seen, the principle that an insurer cannot go against its Section 81 Notice has qualification. If the insurer wants to, and can, they will try and get your claim into Court so that they can get around their notice as they’re permitted to.
People who are injured in a motor vehicle accident in which liability is not in issue should note that their claim doesn’t usually need to go to Court to be assessed but will go through an administrative process called CARS. If this is the case, then this forum will enforce against the insurer their 81 Notice.
However, an insurer does not have to accept the decisions of CARS and if that is the case, they can go to Court where their Section 81 Notice will not prevent them from denying liability (this is predominantly in relation to late claims).
That being the case, it is advisable that you contact a lawyer or firm with experience in Motor Vehicle accident claims so that you can avoid falling into the many traps that exist.
18 October 2016
Do I Have To Go To Court To Receive Compensation?
Smalley v Motor Accidents Authority of NSW
Following the success that Mr Smalley enjoyed in his Court of Appeal victory, the Motor Accidents Authority issued amended Claims Assessment Guidelines which were gazetted on 11 April 2014. The intent of the amendments is that CARS be given the ability to determine liability disputes where a CARS Assessor is of the opinion that course is appropriate.
In Smalley, the Court found by inference that where an insurer denies liability then fault is necessarily denied and the Claimant is entitled to an exemption. The amended Guideline that deals with this exemption entitlement is 8.11.1, which reads as follows:
“Liability is expressly denied by the insurer, in writing, but only in circumstances where liability is denied because the fault of the owner or driver of a motor vehicle in the use or operation or the vehicle is denied.”
Mr Smalley complained that because the insurer denied liability, the insurer was not required to meet his medical expenses as they were incurred or comply with any of its other obligations under the Act. The insurer was, in effect, having its cake and eating it too.
The other difficulty with a CARS Assessor determining a liability dispute is that the finding is not binding upon the insurer. That is of course not the case where liability is admitted (see s95(2) of the Motor Accidents Compensation Act).
Where a Claimant is forced to commence court proceedings because the insurer will not pay the CARS Award, legal costs payable by the insurer are capped. Fortunately, that predicament was remedied to a considerable extent as a result of the Motor Accidents Compensation Regulation 2015. Generally, as a result of that Regulation, if an insurer does not accept liability then it is required to pay all of the Claimant’s costs incurred after the CARS Certificate. This should provide a disincentive for insurers not accepting a CARS Award.
It is clear that many liability disputes will now be heard and determined by CARS. That is not of itself a difficulty for Claimants because the CARS assessment process generally provides a swift and economic answer to a claim. The difficulty however arises that insurers are not bound by the CARS Award which may force a Claimant to then commence court proceedings on the claim. Hopefully the obligation on the insurer to pay indemnity costs in that circumstance will make insurers think twice before refusing to pay a CARS Award.
Do I have to go to Court to receive compensation?
This will depend, in fault denied matters, whether the insurer accepts the determination of damages by CARS.
There was a recent decision in the Supreme Court of NSW involving an application by the NRMA Insurance to set aside the decision of a Claims Assessor of the State Insurance Regulatory Authority.
The case was IAG Limited trading as NRMA Insurance V. Ozdemir and Ors  NSWSC 756.
The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 2 March, 2012. At that time, Mr Ozdemir was stationary in his motor vehicle at the intersection at Chisolm Road and Mona Street at Auburn waiting for the lights to turn green. The motor vehicle driven by the NRMA Insured driver drove through the intersection and attempted to make a right hand turn into Chisholm Road. The insured driver lost control of his vehicle and collided with the vehicle being driven by Mr Ozdemir.
Mr Ozdemir (the plaintiff) was in good health at the time of the accident and was working full time as a forklift driver.
The Plaintiff stated he suffered injuries to his neck, left shoulder, upper back and thoracic spine which aggravated pre-existing injuries. The plaintiff had been involved in a prior motor vehicle accident in 2002 in which he had sustained lower back and neck injuries which had been the subject of an earlier claim for compensation.
It became apparent the CTP Insurer was concerned about the pre-existing injuries suffered by the plaintiff in this earlier motor vehicle accident in 2002. The plaintiff had returned to work after the earlier accident but had suffered on-going difficulties and was off work from time to time as a result. Furthermore, working as a forklift driver had contributed to his shoulder and neck problems and a workers compensation claim had been made in respect of a workplace injury which occurred on 9th October 2009. Subsequently, the plaintiff underwent shoulder surgery in 2010.
The plaintiff was able to return to full-time work in late December 2011. As a consequence of the injuries sustained in the subject motor vehicle accident in March 2012, these injuries led the plaintiff to be dismissed from his employment as a forklift driver and he had been unemployed since then.
The Plaintiff made a claim for loss of income and injury to his capacity to work, past and future treatment expenses and past and future domestic care. The plaintiff’s injuries were not in excess of the 10% Whole Person Impairment threshold under the AMA (Fourth Edition) guidelines and accordingly, the plaintiff was not able to make a claim for non-economic loss (pain and suffering).
The CTP insurer admitted liability and the only issue in dispute was quantum of damages. However the insurer also took issue with the credit of the plaintiff.
The Claims Assessor after conducting a General Assessment Conference and after receiving submissions from both parties assessed the plaintiff’s damages at $882,131.00 plus legal costs were assessed at $55, 583.00. The reasons for the award were quite detailed and comprised 34 pages.
The CTP insurer made a number of contentions in their submissions that the Assessor had made a number of jurisdictional errors and alternatively errors of law on the face of the record in the course of making his decision. In summary, it was contended the Claims Assessor had made two errors. Firstly being an error in failing to deal with significant aspects of the plaintiff’s case and an error in failing to provide proper and lawful reasons for his Assessment.
Justice Wilson gave quite a detailed judgement and quoted at length from the Claims Assessor’s reasons.
It is now worth quoting paragraph 64 of Her Honour’s decision where she states as follows:
“64. It is clear that the Assessor fully understood the point of contention, and considered the insurer’s submissions in this regard, were simply not persuaded by them or by the medical evidence upon which they were based. Whilst others might have reached a conclusion different to that of the Assessor, I cannot conclude that the Assessor did not deal with the issue at all, or did so inadequately. He dealt with it in the “relatively” brief fashion recognised by the statute and reached a conclusion adverse to the NRMA.”
Furthermore, and more importantly at paragraph 82, Her Honour states as follows:
“84. There is no obligation on an Assessor to address in the statement of reasons every piece of evidence adduced or every argument advanced by the parties to the claim.”
And in summary, Her Honour, confirms an Assessor “in a statement of brief reasons” as required by the Motor Accidents Compensation Act, is not required to address every argument advanced by the insurer nor does the Assessor have to deal with every aspect of the evidence referred to. It is important the Assessor understand the principle contentions and areas of dispute between the parties to the claim and addresses those issues. The Assessor must set out the conclusions he has reached and his reasons for those conclusions.
At BPC Lawyers, we always ensure in our applications for General Assessment that the submissions, schedule of damages and statements of the claimant and supporting witnesses are detailed and provide the Claims Assessor with all of the information which he or she may require in order to assist them in delivering a sound and properly justified reasons for the award.
When you’ve been in a motor vehicle accident as a result of the negligence of another driver, there is generally a clear entitlement to compensation for injured drivers and passengers.
But what happens when someone gets injured in a motor accident, and no one is to blame?
There was a recent decision in the District Court at Sydney involving an interpretation of the “blameless” accident provisions of the Motor Accident Compensation Act 1999 (NSW). The case was Garry Connaughton –v- Pacific Rail Engineering Pty Limited and was heard on 12 February 2015. The case was determined by Her Honour, Judge Norton SC.
CASE BACKGROUND – Garry Connaughton –v- Pacific Rail Engineering Pty Limited
The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 13 July 2011. At that time, the Plaintiff was a driver of a motor vehicle which was involved in a single vehicle accident involving a tree which fell onto the road. The Plaintiff, Garry Connaughton, was driving his truck in a northerly direction on Mount Ousley Road at Mount Ousley at approximately 10:30am when a roadside tree fell and struck the cabin of the truck, which then ran out of control but subsequently came to a halt. The Plaintiff was badly injured in the accident and injury was conceded by the Insurer and there was no issue regarding contributory negligence.
The Plaintiff had little recollection regarding the accident. He was driving his truck in the curb side lane of the road and his first recollection was a man yelling out and his last recollection was driving up the road and there being nothing on the road in front of him.
The Judgment is quite detailed but in summary, Her Honour was asked to decide three questions:
- Has there been a motor vehicle accident?
- If so, is it a blameless accident?
- Is the Plaintiff excluded from recovery under the blameless accident provisions by operation of Section 7E in relation to drivers?
in summary, Her Honour found there had been a motor vehicle accident and it was a blameless accident. Furthermore, the Plaintiff was not excluded from recovery under the blameless accident provisions by operation of Section 7E as she found the Plaintiff did not cause this accident. His driving on the raod was no more than a background fact which explains why he was in a position where he could be struck by a tree. Plus the driving of the Plaintiff was nothing more than “the mere occasion of the injury”.
Furthermore, at Paragraph 73 Her Honour stated:-
“73. Looking at the words of the Section and bearing in mind the words used in the second reading speech (of Parliament) I find that even under the extended definition of causation of Section 7E there was no act or omission on behalf of the Plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean the driver in single-vehicle accidents are deemed to have caused that accident.”
Accordingly, in summary, there was a verdict entered in favour of the Plaintiff which means liability was wholly determined in his favour against the Defendant Insurer. There was a further order made by Her Honour that damages are to be assessed.
In the end, it was found that because no act by the man who suffered injury in his blameless motor accident, either voluntary or involuntary, could have caused the accident, with a verdict in favour of the plaintiff delivered to assess his damages from the insurance company.
If you have been in a motor accident, regardless of whether it is negligent or blameless, we will be happy to offer a complimentary, free consultation to discuss your claim and determine whether you have a genuine claim for compensation.
David R. Ford, Special Counsel
Extremely important decision for severely injured plaintiffs
Rhiannon Gray by her Tutor Kathleen Anne Gray v Richards [2014 HCA 40]
On 15 October 2014, the High Court of Australia unanimously allowed, in part, an appeal from the New South Wales Court of Appeal in respect of the methodology to be used to calculate damages for fund management. This is an extremely important decision for severely injured plaintiffs in relation to the calculation of damages for fund management.
Our client sustained a traumatic brain injury as a result of a motor vehicle accident causing significant disabilities, a need for constant care and an incapacity to manage her own affairs. Proceedings were commenced against the driver of the motor vehicle claiming that he was liable in negligence for her injuries. Those proceedings settled on terms that required the CTP insurer of the defendant’s vehicle to pay damages in the sum of $10,000,000.00 plus an amount of damages to be assessed to cover expenses associated with managing the settlement funds (the fund management damages).
Our client was declared incapable of managing her own affairs by reason of her severe brain injury and a private trustee was appointed to manage her estate pursuant to legislative requirements in New South Wales. The private trustee charges management fees on the whole of the funds under management including the settlement monies and the fund management damages. This is a typical commercial arrangement in the marketplace.
In 2011, Justice McCallum in the Supreme Court of New South Wales determined that the fund management damages should include an amount to offset the cost of managing the fund management damages and a further amount to offset the cost of managing the fund’s predicted future income. These amounts were awarded on the basis that the fund management damages and the predicted future income of the fund would need to be managed and would therefore attract their own management charges. The CTP insurer appealed this decision and the New South Wales Court of Appeal reversed the decision of the primary judge ordering that an amount of damages for the cost of managing the fund management damages and the fund’s predicted future income should not be awarded.
BPC Lawyers was successful in obtaining special leave to appeal to the High Court of Australia. On 15 October 2014, the appeal was allowed in part. The High Court held that the New South Wales Court of Appeal had erred in deciding that no allowance should be made for the cost of managing the fund management damages, but was correct in deciding that no amount should be made for the costs of managing the fund’s predicted future income.
This is an extremely important decision for cases involving severe injuries which render a person incapable of managing their own affairs. The High Court has unanimously held that an injured person is entitled to recover costs associated with management of damages awarded for the purpose of managing all funds under management. Pursuant to this decision, an incapacitated plaintiff is now entitled to recover costs associated with managing the component of damages which has been awarded to meet the cost of managing lump sum compensation recovered by way of damages. In this case, it was held as follows:-
“The Court’s concern is to ensure that the plaintiff’s actual loss is compensated. There is, for example, no scope for the Court to say that the amount is simply ‘too much’ as a matter of intuition or impression if the plaintiff has no practical ability to bargain for a lesser charge.”
The High Court also stated as follows:-
“It is well settled that ‘the common law does not permit difficulties of estimating the loss in money to defeat an award of damages’ by way of compensation for loss actually suffered.”
This decision of the High Court unanimously determines the methodology to be adopted when calculating damages in respect of fund management. The High Court has held that fund management damages include the cost of managing the fund management component of an injured person’s damages consistent with the principle of “restitutio in integrum”.
This case summary is provided by Kate Henderson, a senior solicitor and accredited specialist in personal injury law at BPC. Kate acted on behalf of the plaintiff in the Supreme Court of New South Wales, the New South Wales Court of Appeal and High Court of Australia. Kate has a special interest in catastrophic injury claims. For more information or to speak with Kate, or any of our specialist lawyers, please contact us on (02) 8280 6900 or firstname.lastname@example.org
I hope for your sake that you never have to be cross-examined; it is never an easy or pleasant experience.
Questions are often confusing and repetitive and it is difficult in the moment to determine exactly the right words to use. I have been required to give evidence on several occasions and have never enjoyed the experience.
There are however a few simple rules that can make life easier. For example, a witness should never use the term “never”. Never is a very long time and our memory is not perfect, particularly under pressure. Had Barry O’Farrell, received this advice he may not have lost his job.
I tend to think that Mr O’Farrell was being honest when he suggested that he had “never” received a bottle of Grange, but if he had not been so dogmatic and replied, for example, “I do not recall ever having been given a bottle of Grange”, he would not have been in the same predicament.
If you are likely to give evidence in the near future you should ask your lawyer about what to expect and how you should deal with questions as they arise.
If you would like to discuss the rules of giving evidence, you can contact our Scott Hall-Johnston, or one of the other lawyers at BPC, to discuss the other rules about giving evidence.
About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.
We are pleased to note that we were recently successful in an important decision before the Court of Appeal.
On 09 August 2013 the Court of Appeal delivered Judgment in Smalley –v- Motor Accidents Authority of NSW1 which will have a significant impact upon the way that motor accident claims are administered in New South Wales.
The scheme for compensation for personal injuries in New South Wales is governed by the Motor Accident Compensation Act (1999). That Act provides for two ‘streams’ of claims. Where liability (that is the insurer’s obligation to pay for a claim) is admitted, then an insurer is obligated to pay for medical expenses, make an offer of settlement and attend a settlement conference in a timely manner. If those obligations do not lead to a conclusion of the claim then the entitlement to compensation is to be determined by an Assessor appointed by the Motor Accidents Authority of NSW.
In the event that liability is declined, that is the insurer disputes its obligation to pay for a claim, then the claim is to be dealt with by the District Court of NSW.
It has been our more recent experience that some insurers have failed in their obligation to determine liability within three months as required by the legislation which results in the injured Claimant unable to effectively enforce their rights.
Mr Smalley’s Claim:
Mr Smalley was injured in a motor vehicle accident on 16 December 2005. He lodged a claim for compensation with the third party insurer on 14 January 2010, well outside the six-month limit. The insurer requested an explanation for the late claim which was provided by Mr Smalley. The insurer rejected the explanation and denied liability for his claim. That issue was referred to the Motor Accidents Authority for determination, who decided that Mr Smalley had in fact provided a full and satisfactory explanation and that the claim should proceed. Notwithstanding the decision of the Motor Accidents Authority, the insurer continued to deny liability while accepting that its insured driver was at fault in the accident.
Mr Smalley made three applications to have his claim exempted from CARS and the administrative process so that he could proceed to Court and seek a final determination. The difficulty facing Mr Smalley was that he was being asked to proceed firstly through CARS, notwithstanding that the insurer steadfastly refused to accept any determination that was made by CARS, thereby causing him unjust cost and delay.
Judgment of the Court of Appeal:
In a unanimous decision, the Court determined that ‘liability’ means the acceptance by an insurer of its obligation to pay a claim, even though the amount that is required to be paid may be in dispute. As a result, it is now clear that where an insurer disputes its obligation to pay on a claim, a person injured in a motor vehicle accident is entitled to proceed directly to Court.
The administrative scheme (“CARS”) is intended to be a quick, cheap and efficient means to resolve claims. The bargain for the insurer is that if it wishes to take advantage of this scheme, it is obliged to act quickly and comply with the obligations set out in the legislation. As a result of this judgment, an injured party who is aggrieved by an insurer’s failure to comply with its obligations will be able to proceed directly to Court and enjoy the benefits of the Court’s greater and binding authority.
About BPC: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC has its origins in a legal practice started by Barry Beilby in 1975.