The Motor Accident Injuries Act 2017 changed the way in which compensation is payable for injuries suffered in motor vehicle accidents.
Previously, the Court would award a ‘once and for all’ payment that included compensation for past and future losses. The common law scheme was changed slightly by the Motor Accidents Compensation Act which provided that the insurer was required to pay for medical expenses as and when they were incurred.
The new legislation however breaks the scheme essentially into two parts. Statutory payments which cover medical expenses and care are payable straight away. There is also a weekly payment of compensation payable for some income earners who are unfit for work. That part of the scheme is readily accessible and efficient.
The second component of the scheme is a claim for damages. Damages are only payable when the injured party is not mainly at fault in the accident and has suffered a non-minor injury.
The damages that are available are past and future economic loss including loss of superannuation benefits and loss of profit. A claim for pain and suffering can also be made provided that the injuries have caused a whole person permanent impairment of greater than 10%.
Section 6.14 of the Act states that a claim for damages cannot be made before the expiration of 20 months after the motor vehicle accident. There is however an exception to this rule and that is where the injuries have caused a degree of permanent impairment that is greater than 10%.
It is difficult to understand why the legislature would wish to have claims delayed. When the legislation was passed, the government fiercely advocated that claims should be dealt with quickly and that the scheme was set up to have claims resolved without delay. We are, quite frankly, at a loss to understand the reason why this section has been included.
Whilst the exception (that is, where the impairment is greater than 10%) may seem to be helpful, it is unlikely to be of great assistance. A whole person permanent impairment cannot be assessed until medical treatment has finished and the injuries have stabilised. Stabilisation requires that the condition is not likely to change by more than 3% in a twelve-month period.
Therefore, an assessment of the injuries being over the threshold is unlikely to take place until at least a year after the accident and more often until at least 18 months after the accident.
The effect of the section, therefore, is to delay a claim for damages in almost all circumstances. It is, unfortunately, the case that a damages claim cannot be made until, in most cases, 20 months after the accident has occurred and cannot be settled until two years after the accident.