CTP Legisation update - effective as of 1 April 2023

The following is an excerpt from an article we wrote for the Law Society Journal.

The State government assented the Motor Accident Injuries Amendment Act 2022 (‘2022 Amendment Act’), on 28 November 2022 and all changes came into play on April Fools Day, 1 April 2023. Most, but not all, of the changes are retrospective.

The significant changes are detailed below.

Minor injury

A significant part of the 2017 legislation is the categorisation of injuries as ‘minor’ or ‘non-minor’. This terminology has led to much debate in terms of the use of the word ‘minor’ to describe injuries that are arguably quite severe and impactful on an injured person.

The 2022 Amendment Act removes the ‘minor injury’ term and replaces it with a new term: ‘threshold injury’. This is essentially a rebranding as the substance of the definition remains unchanged. The amendment is a step in the right direction in acknowledging the problematic nature of the previous terminology.

Statutory benefits

Statutory benefits refer to the benefits paid to injured road users for loss of wages and medical treatment. Almost all injured road users are entitled to this benefit for a fixed period. The 2022 Amendment Act has introduced the following changes to the statutory benefits scheme:

• Regardless of fault or threshold injury, claimants will now receive statutory benefits for up to 52 weeks instead of the previous 26 weeks. This amendment commences on 1 April 2023 and will only apply to accidents that occur after the commencement date.

• If the claimant is partially at fault, but not over 61 per cent at fault for the accident, their weekly benefits may only be reduced for contributory negligence after 52 weeks from the accident date rather than the current 26 weeks. This change also commences on 1 April 2023 and will only apply to accidents that occur after the commencement date.

• The insurer’s second liability decision will now be due nine months after the claim is lodged, not the current three months. The second liability decision will state if the insurer accepts liability for the payment of statutory benefits after the first 52 weeks. This amendment only applies to accidents that occur after 1 April 2023.

• If a claim for statutory benefits is not made within 28 days of the accident, weekly statutory payments may now be backdated to the date of the accident.

The 2022 Amendment Act removes the ‘minor injury’ term and replaces it with a new term: ‘threshold injury’.

• The insurer’s first liability decision, which is still due within four weeks of a claim being lodged, will, after 1 April 2023, state if the insurer accepts liability for paying statutory benefits during the first 52 weeks after the accident.

• Under the current section 3.28(3) of the 2017 Act, claimants with a minor injury could be eligible for treatment and care benefits after 26 weeks if the treatment and care would improve the injured person’s recovery or if the insurer delayed approval. Subsection s 3.28(3) will be removed on 1 April 2023. From 1 April 2023, if the injured road user has a threshold injury, they will no longer be eligible for any treatment or care expenses after the first statutory benefits entitlement period.

• The Nominal Defendant will be liable in a statutory benefits claim in the same way it is liable in a common law damages claim. This means:

1. Claimants who are not able to identify the vehicle at fault must now conduct, and prove they have conducted ‘due search and enquiry’ into the identity of the vehicle at fault when making a statutory benefits claim against the Nominal Defendant;

2. Claimants who make a claim in circumstances where the vehicle at fault is uninsured must now establish that the accident occurred on a road or road-related area when making a statutory benefits claim against the Nominal Defendant.

• The regulator, State Insurance Regulatory Authority (‘SIRA’), will establish a trauma support service for family members of injured or deceased road users. The details of the service have not yet been outlined.

• The 2017 Act now gives the Motor Accident Guidelines the power to regulate what treatments and care are reasonable and necessary, and what treatment and care costs are reasonable.

• All medical and other examinations, such as functional and vocational capacity assessments, rehabilitation assessments and attendant care assessments, must now be undertaken by a person authorised by SIRA. The insurer still has the right to nominate the assessor, however, that assessor must be authorised by SIRA.

Damages

The 2022 Amendment Act has introduced the following changes to common law damages in the motor accident compensation scheme:

• For whole person impairment disputes only, the claimant is no longer required to seek an internal review from the insurer before having the opportunity to refer the matter to the Personal Injury Commission.

• Claimants are no longer required to wait 20 months before making a common law claim.

• Claimants are no longer required to wait two years before settling their common law claim.

• The three year time limit to commence a damages dispute in the Personal Injury Commission has been removed.