On 17 November 2022, the Motor Accident Injuries Amendment Bill 2022 (NSW) passed through NSW Parliament and, on 28 November 2022, came into force after receiving the Governor General’s assent and seal.
How might these amendments affect you?
If you have been injured in a motor vehicle accident in NSW since 1 December 2017, these are some of the following changes which may affect your claim.
‘Minor Injury’ replaced with ‘Threshold Injury’
In this Act, the term ‘minor injury’ has been replaced by ‘threshold injury’. Prior to this amending Act, ‘minor injuries’ were defined by the Act as a “soft tissue injury” and/or “a psychological or psychiatric injury that is not a recognised psychiatric illness”.
Nothing has really changed except the label – therefore, it appears that the NSW Government are attempting to address the concerns raised by injured person who felt, quite understandably, that their injuries were being minimised by being referred to as “minor”.
These particular changes will apply on and after 1 April 2023 or an earlier date by proclamation.
Extension of Statutory Benefits
Previously, individuals who sustained ‘minor injuries’ (now ‘threshold injuries’) – and/or their injuries which were caused wholly or mostly by the subject accident – had their statutory benefits cut off after twenty-six (26) weeks after the subject accident.
*statutory benefits include weekly payments made for loss of income, if applicable, and payment of reasonable and necessary treatment expenses.
With the introduction of the Amending Act, this period of entitlement to statutory benefits has now been extended to fifty-two (52) weeks after the subject accident. We strongly support this move by the NSW Parliament, as the previous Act often left claimants unable to work due to their injuries, or unable to return to their full pre-injury capacity – which, in turn, left those injured people struggling to meet the costs of living and cost of medical and treatment expenses. These particular changes will apply from and after 1 April 2023 or earlier by proclamation.
Note: these changes do not apply retrospectively and will therefore not apply to motor vehicle accidents that occurred before this amending Act.
Internal Review
Previously, there was a requirement to request an internal review by the insurer once the insurer disputed a claimant’s degree (or level) of whole person permanent impairment. There was a requirement for the claimant to have requested a review prior to referring the matter to the Personal Injury Commission for determination. This requirement has now been removed. We strongly support this move as internal reviews were rarely successful and would only increase time and costs for claimants, rather than promoting the just, quick and cheap resolution of matters.
These particular changes came into force immediately, but do not apply retrospectively and will therefore not apply to motor vehicle accidents that occurred before this amending Act.
Treatment & Care
The amending Act has now stated that the Motor Accident Guidelines may provide for “circumstances in which the cost of treatment and care is taken to be reasonable” and “circumstances in which treatment and care is taken to be reasonable and necessary”. Previously, the Act included very little guidance on interpretation as to “reasonableness” of treatment and care, which left the door open to insurers to take a very conservative approach, leading to a large number of disputes being referred for determination by the Personal injury Commission. This change is another positive one for claimants and came into force immediately.
At the time of writing this article, we are yet to see how the Motor Accident Guidelines will be amended to follow suit, but the assumption is that it should become easier for claimants to access reasonable and necessary treatment earlier, and will minimise the number of disputes being referred to the Personal Injury Commission for determination.
Time Limits for Damages Claims
Previously, the Act stated that a claim for damages (lump sum compensation for economic loss and/or non-economic loss) could not be made until twenty (20) months after the subject accident unless the claimant had a degree of impairment which was agreed or assessed as being greater than 10%.
This sub-section has now been removed, thereby allowing claimants to make damages claims earlier, in order to resolve claims more quickly. The requirement to lodge damages claims within three (3) years after the accident is maintained.
The Amending Act also removes the sub-section preventing claimants with a degree of impairment less than 10% to settle their damages claim within two (2) years after the subject accident.
Lastly, the section preventing claimants from referring claims to the Personal Injury Commission more than three (3) years after the subject accident (without providing a ‘full and satisfactory explanation’ for the delay) has been removed. These changes came into force immediately.
Overall, the above changes will enable claimants to resolve their claims in a timely manner and avoid spending so much time tied up in legal disputes.
We support these amendments as being reasonable and necessary in order for injured people to minimise time and expense following traumatic motor vehicle accidents.
If you, or someone you know, has been injured in a motor vehicle accident, we would be pleased to meet with you to discuss your options on a no-win, no-fee basis. Please contact our friendly team on (02) 4050 0330, to make an appointment with one of our specialist personal injury solicitors.
