(1) For the purposes of this Act, a minor injury is any one or more of the following—
(a) a soft tissue injury, (b) a minor psychological or psychiatric injury. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
(cf s 13 MACA) (1) A third-party policy taken to have been issued for a motor vehicle has effect for the period for which the licensed insurer who is taken to have issued the policy is on risk in accordance with this section. (2) In this section— new insurer means the licensed insurer whose insurance is later in time.old insurer means the licensed insurer whose insurance is earlier in time.period of grace means the period of 14 days after the registration, or renewal of registration, of a motor vehicle expires.period of registration means the period, not exceeding one year, for which the registration or renewal of registration of a motor vehicle is effected, but if, within that period, the registration or renewal of registration is cancelled or surrendered, it means the period for which the registration or renewal of registration is actually in force.(3) The old insurer and the new insurer may be the same licensed insurer or different licensed insurers. (4) In the case of the registration (but not the renewal of registration) of a motor vehicle, the licensed insurer is on risk for the period of registration of the motor vehicle.
(cf s 14 MACA) (1) A licensed insurer has no power to cancel a third-party policy. (2) A third-party policy may only be cancelled in accordance with this section. (3) A third-party policy is cancelled on the cancellation of the registration of the motor vehicle to which it relates, except where the registration is cancelled under Division 3 of Part 4 of the . Fines Act 1996 (4) If the whole or any part of the premium payable in respect of a third-party policy is paid by cheque or by credit or debit card, and the cheque is not met on due presentation or the card transaction is not duly honoured or is fraudulent, the licensed insurer may request TfNSW to suspend the registration of the motor vehicle to which the policy relates for a period of 14 days.
(1) A review by the Authority of premium income of licensed insurers to determine whether premiums and Fund levies under Division 10.4 should be adjusted to avoid excess profits or excess losses—
(a) may be undertaken, with the approval of the Board of the Authority, if the average realised underwriting profits of insurers for 1 or more years are substantially greater or less than the average filed profits of insurers, and (b) must be undertaken if the average realised profits of insurers for 1 or more years are greater than the average filed profits of insurers by 2% or more of the average filed premiums, and (c) must be undertaken if, for at least 2 years in a row, the average realised profits of insurers are less than the average filed profits of insurers by 5% or more of the average filed premiums. (2) The Motor Accident Guidelines may, following such a review, make special arrangements for the adjustment of premiums and Fund levies under Division 10.4 to avoid excess profits or excess losses, including an appropriate refund of premiums previously paid by policy holders or an appropriate reduction or increase in future premiums payable by policy holders. Note— Motor Accident Guidelines with respect to insurance premium matters may only be made with the approval of the Board of the Authority—see section 10.3. (3) If, as a result of the exercise of a function under this section, the Authority determines that premiums and Fund levies under Division 10.4 should be adjusted to avoid excess profits, the Authority must take action to make adjustments to avoid those excess profits.
(1) The Motor Accident Guidelines relating to the determination of insurance premiums for third-party policies may provide for the payment of premiums of third-party policies. (2) Without limiting subsection (1), the guidelines may—
(a) provide for part of the premium to be paid before the issue of a third-party policy and the remainder of the premium to be paid during the period for which the policy is issued, and (b) provide for refunds by licensed insurers of part of the premium paid for a third-party policy for taxis or hire vehicles during or after the period for which the policy is issued, and (c) impose requirements on providers of passenger services or booking services relating to taxis, hire vehicles or other classes of vehicles, or on other persons conducting a business relating to the vehicles or on licensed insurers, concerning the following—
(i) terms for the payment of premiums, including reporting requirements and timeframes, (ii) invoicing arrangements for the payment of premiums, (iii) arrangements concerning the payment of GST for premiums.
(cf s 34A MACA) (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 2.30 cannot be referred for assessment under Division 7.6 unless—
(a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or (b) the Commission has determined that due inquiry and search has been made, or (c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
(cf s 40 MACA)
(1) The statutory benefits payable under this Part are payable by the relevant insurer. (2) The relevant insurer is (subject to this section and section 3.3)—
(a) if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or (b) if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or (c) in any other case—the Nominal Defendant. Note— The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4. (3) However, in the case of the payment of statutory benefits for treatment and care provided more than 5 years after the motor accident concerned, the relevant insurer is the Lifetime Care and Support Authority of New South Wales.
(1) If the death of a person results from a motor accident, statutory benefits are payable for reasonable funeral expenses to—
(a) the legal personal representative of the deceased, or (b) if there is no legal personal representative—the person who has paid or is liable to pay those expenses.
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period. Note— Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(1) An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the second entitlement period. Note— Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(1) A person who is injured as a result of a motor accident and suffers a total or partial loss of earning capacity as a result of the injury is entitled to weekly payments of statutory benefits under this section after the end of the second entitlement period, but only if the person—
(a) is at least 18 years of age (whether or not the person is an earner), or (b) is under 18 years of age and is an earner. Note— The person’s age after the second entitlement period is relevant to determining entitlement to statutory benefits after the second entitlement period. A person’s age at the date of the motor accident is not relevant. Schedule 1 defines when a person is an earner.
(1) An injured person must provide to the insurer—
(a) certificates of fitness for work in accordance with this section in respect of the period in respect of which the person is entitled to weekly payments of statutory benefits under this Division, and (b) a declaration in accordance with the Motor Accident Guidelines as to whether or not the person is engaged in any form of employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section. (2) If a decision to reject a claim for weekly payments of statutory benefits or to cease weekly payments of statutory benefits is set aside, a person is not required to comply with this section in respect of any period from the date that the decision took effect until the day on which the decision is set aside. (3) A certificate of fitness for work must—
(a) for a first certificate provided by the injured person to the insurer—be a certificate given by a treating medical practitioner in accordance with the Motor Accident Guidelines, and (a1) for a second or subsequent certificate provided by the injured person to the insurer—be a certificate that complies with the requirements specified in the Motor Accident Guidelines, including the form of the certificate, and (b) certify as to the person’s fitness for work and whether the person has current fitness for work or has no current fitness for work during the period, not exceeding 28 days, stated in the certificate, and (c) specify the expected duration of the person’s unfitness for work.
(1) If, because of a claimant’s return to or commencement of employment or a change in employment that affects the claimant’s earnings—
(a) the claimant is not entitled under this Division to any weekly payments of statutory benefits that have been paid to the claimant, or (b) the amount of any weekly payments of statutory benefits that have been paid to the claimant exceeds the amount to which the claimant is entitled under this Division, the Commission may direct the claimant to refund to the person who made the payments any amount to which the claimant is not entitled in respect of payments during the period of 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment. (2) Any such refund may, in accordance with the terms of the direction of the Commission, be deducted from future weekly payments of statutory benefits to the claimant or be recovered as a civil debt under subsection (6).
(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant’s dependants, but only if—
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in this section—the claimant provided the services to those dependants before the motor accident, and(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the claimant’s injury, the claimant would have provided the services to the claimant’s dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.
(1) An injured person is not entitled to statutory benefits under this Part if compensation under the ( Workers Compensation Act 1987 workers compensation ) is payable to the injured person in respect of the injury concerned (or would be payable if the liability for workers compensation had not been commuted).(2) The relevant insurer for a claim for statutory benefits under this Part is not entitled to refuse payment of statutory benefits under this Part on the grounds that workers compensation is payable in respect of the injury unless—
(a) the injured person has made a successful claim for workers compensation in respect of the injury, or (b) the injured person has failed to comply with a request by the relevant insurer under this section to make a claim for workers compensation in respect of the injury. (3) A claim for workers compensation is considered to have been successful if liability for any workers compensation has been accepted by the insurer for the claim under the . Liability is considered to have been accepted until liability is wholly denied (and for that purpose a denial of liability does not count while it is the subject of a dispute under that Act). Workers Compensation Act 1987
(1) Statutory benefits are not payable under this Part in respect of the death of or injury to a person resulting wholly or mostly from the fault of the person as the owner or driver of a motor vehicle in the use or operation of the vehicle if the vehicle was an uninsured vehicle at the time of the motor accident.
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident. (2) A finding of contributory negligence must be made in the following cases—
(a) where the injured person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the injured person satisfies the insurer or the Commission that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where—
(i) the injured person (not being a minor) was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so, (e) where the defence of volenti non fit injuria would have been available, but for section 4.18 (Defence of voluntary assumption of risk), in proceedings for an award of damages in respect of the motor accident, (f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(1) The description of the Lifetime Care and Support Authority as the relevant insurer for the purposes of this Act does not make that Authority an insurer when it exercises functions under this Act, but provisions of this Act relating to insurers extend (subject to the regulations) to that Authority in connection with the exercise of those functions.
(cf s 122 MACA)
(cf s 123 MACA)
(cf s 126 MACA)
(cf s 137 MACA) (1) Limited statutory entitlement A claimant has only such right to interest on damages payable in relation to a motor accident as is conferred by this section.
(cf s 138 MACA) (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) A finding of contributory negligence must be made in the following cases—
(a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the claimant satisfies the court or Commission that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where—
(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so, (e) in the case of any other conduct of the injured person or deceased person that is prescribed by the regulations for the purposes of this section.
(1) The Commission when undertaking a claims assessment, or a merit reviewer when undertaking a merit review under Part 7, may give directions to a party to a claim for the purpose of ensuring compliance by the party with a duty arising under this Division.
(cf s 70 MACA)
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(cf ss 72 and 73 MACA) (1) A claim for damages cannot be made before the expiration of 20 months after the motor accident to which the claim relates unless the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%. (2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(cf ss 74 and 76 MACA) (1) A notice of a claim under this Division is to be given in the form approved by the Authority. (2) The approved form may, without limitation, provide for the giving of notices of claims by a computer system, whether or not operated by insurers, that makes the notices available to the insurers or other persons to whom the notices are required to be given.
(1) If an insurer denies liability (whether for part or all of a claim), the Commission may, in assessing costs on the claim, impose a costs penalty under this section if the Commission is of the opinion that there was no reasonable basis for the denial of liability.
(cf s 82 MACA) (1) It is the duty of an insurer to make a reasonable offer of settlement to the claimant on a claim for damages as soon as practicable unless the insurer wholly denies liability for the claim.
(cf s 85B MACA) (1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), 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 accordance with the Motor Accident Guidelines.
(cf s 86 MACA) (1) A claimant must comply with any request by the insurer—
(a) to undergo a medical or other health related examination by one or more health practitioners nominated by the insurer, or (b) to undergo a rehabilitation assessment or an assessment to determine attendant care needs by a qualified person nominated by the insurer, or (c) to undergo an assessment to determine functional and vocational capacity (including pre-accident or post-accident earning capacity) by a qualified person nominated by the insurer, or (d) to undergo an assessment in accordance with the Motor Accident Guidelines, not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.
(cf s 109 MACA) (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after—
(a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person—the date of death, except with the leave of the court in which the proceedings are to be taken.
(cf s 111 MACA)
(1) A claimant may apply to the President in accordance with the Commission rules for a review of a reviewable decision under this Division (a merit review ).(2) The President is to arrange for the merit review application to be dealt with by a merit reviewer. (3) As soon as practicable after making a merit review application, the claimant is to give notice of the application in writing to the insurer whose reviewable decision is the subject of the application.
(1) In determining a merit review application, the merit reviewer is to decide what the correct and preferable decision is having regard to the material then before the reviewer, including the following—
(a) any relevant factual material, (b) any applicable written or unwritten law. (2) For that purpose, the merit reviewer may exercise all of the functions that are conferred or imposed by or under this or any other Act on the insurer.
(1) A merit reviewer may include in the certificate as to the determination of a merit review an assessment of the claimant’s costs in the matter, including costs for legal services and fees for medico-legal services.
(1) A claimant or an insurer may apply to the President to refer a decision of a single merit reviewer determining a merit review application to a review panel of merit reviewers for review. (2) An application for the referral of a decision to a review panel may only be made on the grounds that the decision was incorrect in a material respect.
(cf s 60 MACA) (1) A medical dispute about a claim may be referred to the President for assessment under this Division by—
(a) either party to the dispute, or (b) a court or the Commission, or (c) a merit reviewer. (2) The President is to arrange for the dispute to be dealt with by one or more medical assessors.
(cf s 62 MACA) (1) A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.
(cf s 63 MACA) (1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review. (2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect. (3) A medical assessment may not be referred for review under this section on more than one occasion. (4) If a medical assessment under this Division 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) (a combined certificate assessment ), 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.
(cf s 90 MACA)
(cf s 94 MACA) (1) The Commission is, in respect of a claim referred to the Commission for assessment, to make an assessment of—
(a) the issue of liability for the claim (unless the insurer has admitted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).
(cf s 94A MACA)
(1) This section applies where a decision is made in accordance with this Part by an insurer on an internal review or by a decision-maker on a merit review, medical assessment or assessment of a dispute about a miscellaneous claims assessment matter.
(1) In any proceedings before a court for damages or in connection with a merit review under Division 7.4, a medical assessment under Division 7.5 or the assessment of a claim under Division 7.6, evidence given by a health practitioner in relation to a medical matter concerning an injured person is not admissible unless—
(a) the practitioner is a treating health practitioner of the injured person, or (b) the practitioner is authorised by the Motor Accident Guidelines to give evidence in the proceedings.
(cf s 149 MACA) (1) The regulations may make provision for or with respect to the following—
(a) fixing maximum costs for legal services provided to a claimant or to an insurer in any motor accidents matter, (b) fixing maximum costs for matters that are not legal services but are related to proceedings in any motor accidents matter (for example, expenses for investigations, for witnesses or for medical reports), (c) declaring that no costs are payable for any such legal services or other matters of a kind specified in the regulations. (2) Without limiting subsection (1), the regulations may fix maximum costs for legal services provided to a claimant by reference to the amount recovered by the claimant.
(cf s 150 MACA)
(cf s 56 MACA) (1) The regulations may make provision for or with respect to fixing the maximum amount for which an insurer is liable in respect of any claim for—
(a) the fee payable for any treatment and care of an injured person to the provider of that treatment and care (other than treatment and care that is provided to in-patients or out-patients at a hospital and for which any payment is required to be made to the hospital and not to the provider of that treatment and care), or (b) the fee payable for any treatment and care of an injured person to a private hospital for treatment and care at the private hospital.
(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(cf s 212 MAA) (1) There is established a Motor Accidents Operational Fund, belonging to and vested in the Authority.
(1) There is established a Motor Accident Injuries Treatment and Care Benefits Fund, belonging to and vested in the Lifetime Care and Support Authority.
(cf s 121 MACA)
(Section 3.5 (2))
(Section 7.1)