The Motor Accident Injuries Amendment Bill 2022 was introduced to NSW Parliament on 19 October 2022. Amongst the changes include changes to terminology, clarify the application to claims for statutory benefits, extend the entitlement period to payment of statutory benefits, and amendments to funding for legal costs.
Change of terminology from “minor injury” to “threshold injury”
Currently the Motor Accident Injuries Act NSW 2017 defines a “minor injury” as a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”. The Bill proposes to amend the terminology from “minor injuries” to “threshold injuries”.
Clarification of what is “reasonable” treatment and care
The Bill proposes a guideline making power to outline the circumstances in which the cost and type of treatment and care is taken to be reasonable. There is currently a number of disputes at the Personal Injury Commission to be assessed as to what constitutes “reasonable and necessary” treatment and care. More established guidelines will clarify the issue for insurers, reduce the need to lodge internal reviews as to treatment disputes, and reduce the number of treatment disputes before the Personal Injury Commission.
A guideline making power under the principal Act will clarify, limit and extend attendant care services for which statutory benefits are payable to services providers of an approved class.
The Bill also proposes the establishment of a trauma support service for members of the family of persons who have been injured or dies as a result of the motor accidents.
Extending the entitlement period from 26 weeks to 52 weeks for payment of weekly benefits and medical treatment
The Bill proposes to extend the period after which a motor accident for which payments of statutory benefits are payable to an injured person wholly or mostly at fault or with threshold injuries from 26 weeks to 52 weeks.
The extension will ensure that injured persons will have better and more consistent treatment and care and continued financial support for rehabilitation and return to pre-accident activities.
Removal of certain restrictions to commencing common law claims
The current legislation prevents the lodgement of a common law claim before the expiration of 20 months after the motor accident unless the degree of permanent impairment of the injured person is greater than 10%.
The Bill proposes to remove the 20-month waiting period so that a person who sustains more than a “threshold injury” and who is not wholly or mostly at fault can lodge a damages claim at any time. This will prevent injured persons waiting for a resolution of their claim and receiving their entitlements in a timely manner.
Furthermore, the Bill proposes to remove the restriction on settling certain damages claims within 2 years unless the degree of permanent impairment is greater than 10%.
The Bill also proposes to remove the restriction on referring a claim for damages for assessment to the Personal Injury Commission more than 3 years after the motor accident unless the claimant provides a full and satisfactory explanation for the delay. There have been instances where the claimant’s injuries had yet to be assessed as non-minor after the 3-year period.
Removal of requirement for internal review for permanent impairment disputes
The Bill proposes to remove the requirement of an internal review from the insurer in relation to an injured person’s permanent impairment. Currently, an injured person must seek an internal review before his injuries can be referred to the Personal Injury Commission for a medical assessment.
This proposal will expedite claims and facilitate quicker resolution of dispute. The proposed amendment is reasonable because the insurer’s internal reviewer is usually not a qualified medical professional to assess permanent impairment.
When can we expect these changes?
The Bill is currently before the Legislative Assembly to be debated and will need to be passed before both Houses. We expect the changes to come into effect from 1 April 2023.
