The Motor Accident Injuries Amendment Act (NSW) (MAIAA 2022) has introduced greatly needed change to the Motor Accident Injuries Act 2017 (NSW) (MAIA 2017) following its Statutory Review which was finalised in September 2021. This article looks at those changes that are now in force and what insurers and practitioners need to be aware of.
The MAIA 2017 was introduced by the NSW state government overhauling the compulsory third party (CTP) scheme following the perception of an increasingly high price for insurance premiums and allegations of high levels of fraudulent claims relating to personal injury and death as a consequence of being involved in a motor vehicle accident.
The Statutory Review of the MAIA resulted in 73 recommendations for changes and improvements required to the scheme following widespread concern expressed from the legal profession that those injured in motor vehicle accidents were not receiving adequate financial support and medical treatment that should be provided for by the scheme.
What are the changes?
- Minor Injury terminology
- The MAIAA 2022 removes the term 'minor injury' and replaces it with a new term 'threshold injury'. The MAIA 2017 categorised injuries as either 'minor' or 'non-minor'. The substance of the definition does not change, however, acknowledges the issue with the previous terminology, as some injuries that were severe and disabling towards an injured persons' life following a motor vehicle accident were anything but synonymous with being minor.
- Statutory Benefits claims
- Regardless of fault or threshold injury, claimants will receive statutory benefits for up to 52 weeks instead of 26 weeks. This amendment will only apply to motor vehicle accidents that occur from 1 April 2023;
- Where there is an allegation of contributory negligence that a claimant is partially at fault for the accident, which is not greater than 61 per cent, weekly benefits of compensation may be reduced for contributory negligence after 52 weeks from the date of the motor vehicle accident rather than 26 weeks which it was previously. This amendment will only apply to motor vehicle accidents that occur from 1 April 2023;
- Threshold requirements that were applicable to bring a claim for damages against the Nominal Defendant, now also apply to a statutory benefits claim;
- An insurer's first liability decision after 1 April 2023 will state if the insurer accepts liability for paying statutory benefits after the first 52 weeks after the motor vehicle accident. The requirement for this decision to be provided within four weeks from the claim being lodged remains unchanged;
- Where a claim for statutory benefits was not made in the 28 days after the motor vehicle accident, weekly payments of statutory benefits may be backdated to the date of the motor vehicle accident;
- There has been the removal of the words "attendant care" from section 3.31 of the MAIA 2017 meaning the Motor Accident Guidelines may include provisions to limit "services" rather than just "attendant care services" for which statutory benefits are payable;
- The State Insurance Regulatory Authority (SIRA) has the power to stipulate in the Motor Accident Guidelines what treatment and care is to be considered reasonable and necessary for certain injuries;
- SIRA has the power to appoint an authorised person to conduct medical assessments for the purpose of determining attendant care needs and vocational capacity;
- A claimant is not required to attend a medical assessment organised by the insurer for the purpose of assessing attendant care services of vocational capacity if the assessor is not a person authorised by the Motor Accident Guidelines.
- Claims for Modified Common Law
Damages
- There has been the removal of the 20-month waiting period before a claimant can lodge a claim for modified common law damages;
- There has been the removal of section 6.23(1) which will now enable parties to resolve claims for damages at any time. Previously, parties were unable to resolve a claim within 2 years of a claim being lodged unless there was a concession by the insurer of the claimant sustaining whole person impairment greater than 10%;
- There has been the removal of the 3-year time limit on referring a claim for assessment in the Personal Injury Commission. This does not alter the operation of section 6.32 of the Act and claimants are still required to commence court proceedings in respect of their claim within 3 years of the date of the accident.
- There has been the removal of the requirement to seek internal review prior to lodging a medical dispute to determine the degree of whole person impairment. However, where an insurer has communicated a decision not to concede an injured person's whole person impairment is greater than 10% prior to 28 November 2022 then an internal review must still be undertaken before the matter can be referred for medical assessment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
