Car accidents can happen to anyone, at any time, and often leave victims grappling with the physical, emotional, and financial repercussions. In the state of New South Wales (NSW), the Motor Accident Injuries Act 2017 plays a pivotal role in providing a legal framework for those involved in motor accidents, ensuring they receive the necessary support and compensation. Even more important are the changes to the MAIA Act 2017 that came into effect in April 2023.
It is important for residents of NSW to understand what this legislation and any changes to it mean for them, as it directly impacts how individuals can claim compensation, access benefits, and seek resolution in the unfortunate event of a motor accident.
Whether you are a driver, passenger, or pedestrian, it’s crucial to comprehend your rights, obligations, and the available avenues for redress under this legislation. We aim to empower you with the knowledge and information needed to navigate the legal landscape surrounding motor accidents, making a challenging situation more manageable.
Understanding the Basics of the Motor Accident Injuries Act 2017
The key to understanding a piece of legislation is the meaning of terminology used, the proposed objective of the Act, and knowing who benefits from this legislation.
Key Terminology and Definitions
Key terminology and their definitions for the MAIA is listed in the legislation under section 1.4. There is a long list, but some key terms it is important to understand include:
- Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.
- damages means damages (within the meaning of the Civil Liability Act 2002) in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but does not include statutory benefits.
- driver means a person driving a motor vehicle, and includes—
- (a) a person riding and operating a motorcycle, and
- (b) a person for the time being in charge of a motor vehicle.
- fault means negligence or any other tort.
- injured person means a person who has suffered an injury in respect of which this Act applies as provided by Division 1.3.
- injury means personal or bodily injury and includes—
- (a) prenatal injury, and
- (b) psychological or psychiatric injury, and
- (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
- motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
- (a) the driving of the vehicle, or
- (b) a collision, or action taken to avoid a collision, with the vehicle, or
- (c) the vehicle’s running out of control, or
- (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
To see the full list of terms and their definitions, visit section 1.4 of the Motor Accident Injuries Act 2017 No 10.
Purpose and Objectives of the Act
The MAIA 2017 was introduced by the NSW state government overhauling the compulsory third party (CTP) scheme. According to section 1.3 of the Act, the objective of the legislation was:
- to encourage injured person to seek out appropriate care/treatment earlier to achieve optimum recovery and to maximise their return to work or other activities,
- to provide early and ongoing financial support for persons injured in motor accidents – covering a variety of costs, such as medical expenses, resources for recovery, etc.,
- to continue to make third-party bodily insurance compulsory for all owners of motor vehicles registered in New South Wales and to keep premiums for those third party insurance policies affordable,
- to promote competition and innovation in the setting of premiums for third-party policies, and to provide the Authority with a role to ensure the sustainability and affordability of the compulsory third-party insurance scheme and fair market practices,
- to deter fraud in connection with compulsory third-party insurance,
- to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,
- to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme.
Who does the Act apply to?
According to section 1.8 of the Act, “the Act does not apply to or in respect of a motor accident occurring before the commencement of this Act.” In short, the legislation and changes to the legislation only apply to new motor accident injuries that have occurred after the commencement of the legislation or legislative changes.
Updates to the 2017 MAIA Act: Motor Accident Injuries Amendment Act 2022
A Statutory Review of the Motor Accident Injuries Act 2017 (NSW) resulted in 73 recommendations for changes to and improvement of the scheme following widespread concerns from the profession.
Following the review, some of the much needed changes were introduced as part of the Motor Accident Injuries Amendment Act 2022 No 78, assented to on 28 November 2022. Some changes commenced on 28 November 2022, but most of the changes came into effect on 1 April 2023 and it is worth noting that not all changes are retrospective.
From 1 April 2023, there will be changes to the definition of minor injury, statutory benefits scheme and claims for damages:
Changes to Minor Injury Terminology
The MAIAA 2022 removes the term ‘minor injury’ and replaces it with a new term ‘threshold injury’. The MAIA 2017 categorised injuries as either ‘minor’ or ‘non-minor’. The importance of this change was to acknowledge that some injuries can be severe and disabling towards an injured persons’ life following a motor vehicle accident. In these circumstances, an injury could not rightfully be considered ‘minor’ and the terminology change reflects this.
Changes to Statutory Benefits Claims
The following changes have been made to statutory benefits claims:
– Threshold requirements that were applicable to bring a claim for damages against the Nominal Defendant, now also apply to a statutory benefits claim;
– After 1 April 2023, an insurer’s first liability decision will state if the insurer accepts liability for paying statutory benefits after the first 52 weeks following the accident. The insurer is still required to provide this decision within four weeks from the claim being lodged;
– The period in which a claimant will receive statutory benefits has increased from 26 weeks to 52 weeks, regardless of fault or threshold injury. This amendment will only apply to motor vehicle accidents that occur from 1 April 2023;
– Weekly benefits of compensation may be reduced for some claimants after 52 weeks from the date of the motor vehicle accident, which was previously after 26 weeks. This would happen in cases where there is an allegation of contributory negligence that a claimant is partially at fault for the accident, which is not greater than 61 per cent. This amendment will only apply to motor vehicle accidents that occur from 1 April 2023;
– Where a claim for statutory benefits was not made in the 28 days after the motor vehicle accident, weekly payments of statutory benefits may be backdated to the date of the motor vehicle accident;
– The words “attendant care” have been removed from section 3.31 of the MAIA 2017 meaning the Motor Accident Guidelines may include provisions to limit “services” rather than just “attendant care services” for which statutory benefits are payable;
– SIRA (State Insurance Regulatory Authority) has the power to stipulate in the Motor Accident Guidelines what treatment and care is to be considered reasonable and necessary for certain injuries;
– SIRA has the power to appoint an authorised person to conduct medical assessments for the purpose of determining attendant care needs and vocational capacity;
– A claimant is not required to attend a medical assessment organised by the insurer for the purpose of assessing attendant care services of vocational capacity if the assessor is not a person authorised by the Motor Accident Guidelines.
Changes to Claims for Modified Common Law Damages
The following changes have been made to the legislation regarding claims for modified common law damages:
– The 20-month waiting period before a claimant can lodge a claim for modified common law damages has been removed;
– Section 6.23(1) has been removed, which will now enable parties to resolve claims for damages at any time. Previously, parties were unable to resolve a claim within 2 years of a claim being lodged unless there was a concession by the insurer of the claimant sustaining whole person impairment greater than 10%;
– The 3-year time limit on referring a claim for assessment in the Personal Injury Commission has been removed. This does not alter the operation of section 6.32 of the Act and claimants are still required to commence court proceedings in respect of their claim within 3 years of the date of the accident.
– The requirement to seek internal review prior to lodging a medical dispute to determine the degree of whole person impairment has been removed. However, an internal review will still apply in cases where an insurer has communicated a decision not to concede an injured person’s whole person impairment is greater than 10% prior to 28 November 2022. Once the internal review has happened in these cases, the matter can then be referred for medical assessment.
Has the Claims Process for Motor Vehicle Accident Compensation Changed Due to the MAIA Amendment Act 2022?
The changes from the MAIA Amendment Act 2022 has not altered the process for initially submitting a claim for compensation to an insurer. The process is still the same for injured persons wanting to make a claim. However, to fully understand the process, your rights and responsibilities in claiming compensation, and how these changes may affect you, it’s best to seek legal advice from an experienced compensation lawyer.
Work with Experienced Personal Injury & Compensation Lawyers - Call Burke Mead Lawyers Today
About the Author
Sean is a member of the personal injury team with extensive experience in representing injured clients at the Personal Injury Commission as well as in the District and Supreme Courts of NSW.