As of 1 December 2017, the Motor Accident Injuries Act 2017 (MAI Act) is in force in New South Wales, replacing the former Motor Accident Compensation Act 1999.
Below is a snapshot of the features and changes to the law under the new MAI Act, which you should be aware of if you are injured in Motor Vehicle Accident and you make a Compulsory Third Party (CTP) Insurance claim.
The new MAI Act introduces a no-fault statutory compensation scheme covering medical treatment expenses and lost wages for a period of up to 6 months, followed by further fault-based statutory benefits scheme and modified fault-based damages.
This is a move away from the purely fault-based scheme under the old Motor Accident Compensation Act 1999, where fault needed to be attributed to another owner or driver for the injured person to be eligible for damages.
While some injured people may benefit more under the no-fault scheme, some may find it difficult to navigate the new scheme, particularly if they find themselves at odds with a well-resourced and motivated insurance company. Early advice from a solicitor may be vital.
The new scheme can be broadly split into a three-step claim process:
Step 1 – No-Fault Statutory Benefits – First 6 Months
The first step in making a claim is applying for Statutory Benefits. Unlike the old scheme, even if you are at fault for the motor vehicle accident that caused your injury, you can receive benefits under this first step. Some important things to remember if you are injured include:
1. A statutory benefits claim must be made within 3 months of the accident. Failure to make a claim within this time may result in a loss of statutory benefit entitlements.
2. For up to 6 months, an injured person can claim “reasonable and necessary” medical treatment and payment for lost wages, regardless of fault. This means you may be eligible for these benefits even if you are responsible for the accident that caused your injury, unless you are convicted of a serious driving offence.
Step 2 – Fault-Based Statutory Benefits – Beyond 6 Months
If your injuries are the result of a motor vehicle accident caused by the fault of another driver, you may be entitled to statutory benefits beyond the initial 6-month period. If, however, you are at fault, or your injury is a “minor injury” (discussed below), you will not be entitled to claim statutory benefits beyond the initial 6-month period.
1. To continue receiving medical treatment and lost wages after the initial 6-month period, you must be able to show that another driver was at fault for the accident that caused your injury, and that your injury is not a “minor injury”.
2. Payment for lost wages will cease after 2 years unless you have made a claim for damages (discussed below – Note: you may not be able to make a claim for damages until 20 months after the accident, depending on the severity of your injuries.) If a damages claim is made, lost wages will be paid for maximum of 5 years under the statutory benefits scheme.
3. The insurer will continue medical treatment for up to 5-years provided it is “reasonable and necessary”. After the initial 5-year period, reasonable and necessary medical treatment will continue for life under a government paid scheme called “iCare” or “the Lifetime Care and Support Scheme”.
4. In certain circumstances where the accident causing your injury is faultless (fault is not attributable to any driver) you may still be eligible for statutory benefits beyond the initial 6-month period.
While you are receiving statutory benefits, you will be obligated to comply with a number of insurer demands, including providing continuing medical evidence of your injury, completing fitness for work assessments, engaging in rehabilitation and vocational training, and obtaining pre-approval by the insurer for all treatment. Failure to comply may lead to your weekly benefits being suspended.
Minor Injuries
If your injury is considered a “minor injury” you will not be entitled to statutory benefits beyond 6 months and you will not be entitled to seek damages.
The Act defines a “minor injury” as being one or more of a “soft tissue injury” or a “minor psychological or psychiatric injury”, where:
1. A “soft tissue injury” is an injury to tissue that connects, supports or surrounds other structures or organs of the body …. but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
2. A “minor psychological or psychiatric injury” is a psychological or psychiatric injury that is not a recognised psychiatric illness.
Step 3 – Damages
You may be eligible to make a claim for damages if the driver or owner of the vehicle, other than you, was partially or completely at fault. Some exclusions apply, including if:
1. your injury is a “minor injury”;
2. the accident was your fault; or
3. you were found more than 61% contributorily negligent for the accident.
You may also be entitled to claim damages for circumstances where no one is at fault for the accident, like an unavoidable collision due to a mechanical failure, although there are limitations on no-fault claims where you are the driver and there is no other vehicle involved.
Damages is a sum of money payed to an injured person as compensation for losses arising as a result of that person’s injuries.
These losses include:
1. Economic loss: for example, loss of past and future earnings or impairment of earning capacity over and above the 5 years covered by the statutory benefits scheme; and
2. Non-Economic loss: if your injury results in a “whole person impairment” of more than 10%, you may be eligible for a lump sum payment that represents the pain, disability, loss of enjoyment of life, disfigurement or associated circumstances that you suffer because of your injuries, up to a maximum of $612,500 for the most extreme case.
Importantly, your percentage of “whole person impairment” is determined by a medico-legal specialist and can only be assessed once your injury has reached its maximum level of improvement.
You can no longer claim damages for medical treatment under the MAI Act, because any reasonable and necessary medical treatment will be covered under the statutory benefit scheme for the first 5 years and by the government iCare scheme after the initial 5-year period.
If you have been injured in a Motor Vehicle Accident, Ticli Blaxland Lawyers offers a free consultation to discuss your rights and obligations under the new MAI Act.
This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.
