Updates to the Motor Accident Injuries Act 2017: minor injury rebranded, statutory benefits extended

Much needed changes to the New South Wales CTP scheme were introduced as part of the Motor Accident Injuries Amendment Bill 2022. All changes will be in effect as of 1 April 2023. Most, but not all, of the changes will be retrospective.

The Motor Accident Amendment Bill 2022 will remove the minor injury term and will replace it with a new term threshold injury. This is essentially a rebranding. The actual substance of the definition remains unchanged. The rest of the substantial changes are listed below.

Statutory benefits

• Regardless of fault or threshold injury, claimants will now receive statutory benefits for up to 52 weeks instead of the current 26 weeks.

• If a claim for statutory benefits is not made within 28 days of the accident, weekly statutory payments may still be made for the time before the claim was made if the regulations allow it.

• The insurer's first liability decision, which is still due within four weeks after a claim is lodged, will now state if the insurer accepts liability for the payment of statutory benefits during the first 52 weeks after the accident.

• The insurer's second liability decision will now be due nine months after the claim is lodged, not the current three months. The second liability decision will state if the insurer accepts liability for the payment of statutory benefits after the first 52 weeks.

• If the Claimant is partially at fault but not over 61%, their weekly benefits may only be reduced for contributory negligence after 52 weeks from the accident date rather than the current 26 weeks.

• Currently, Claimants with a minor injury may still be eligible for treatment and care after 26 weeks, if the provided treatment and care would improve the injured person's recovery or if the insurer delayed approval. This Section 3.28(3) subsection will be removed come 1 April 2023. From 1 April 2023 if the injured motorist has a threshold injury they will no longer be eligible for any treatment or care expenses after 52 weeks.

• The Nominal Defendant will be liable in a statutory benefit claim in the same way it is liable in a common law damages claims. This means:

1. Claimants who cannot identify the vehicle at fault, now need to establish there has been due search and inquiry when making a statutory benefits claim against the Nominal Defendant.

1. Claimants who make a claim against an uninsured vehicle now need to establish that the accident occurred on a road or road related area when making a statutory benefits claim against the Nominal Defendant.

• SIRA will establish a trauma support service for members of the family of persons who have been injured or who have died due to a motor accident. What that service is, is yet to be announced.

• The Motor Accident Injuries Act 2017 now gives the Motor Accident Guidelines the power to regulate what treatment and care is reasonable and necessary and what cost of treatment and care is reasonable. It is also noteworthy that the current draft Guidelines for the Provision of Relevant Services (Health and Related Services) proposes to empower SIRA to regulate the provision of treatment and care by healthcare providers. It is anticipated that there will be significant developments in this area of the Scheme once the Guidelines are published.

• All medical and other examinations, such as functional and vocational capacity assessments, rehabilitation assessments and attendant care assessments must now be undertaken by a person authorised by SIRA. The insurer still has the right to nominate the assessor, however, that assessor must be authorised by SIRA.

Damages

• For whole person impairment disputes only, the Claimant is no longer required to lodge an internal review before being able to refer the matter to the Personal injury Commission. The insurer still has three months to make a decision on whole person impairment.

• Claimants no longer need to wait for 20 months before making a common law claim.

• Claimants no longer need to wait for two years before settling their common law claim.

• The three-year time limit to commence a damages dispute in the Personal Injury Commission has been removed. However, the three-year time limit to commence Proceedings in Court remains.

It is disappointing that the changes to the minor injury definition are primarily in name only and not in substance. This is a missed opportunity to overhaul the minor injury definition. Notwithstanding this, the changes which have been introduced are most welcome. The changes will assist injured motorists obtain a faster resolution of their claims and provide with a longer period of support. It is anticipated that SIRA will release a new Motor Accident Guideline to complement the new changes.