The changes which are now in force, which insurers and practitioners should be aware of, include:

• Threshold requirements applicable to bringing a damages claim against the Nominal Defendant now also apply to statutory benefits claims (schedule 1 [10]-[14]).
• The State Insurance Regulatory Authority (‘SIRA’) has the power to stipulate in the Motor Accident Guidelines what treatment and care is to be considered reasonable and necessary for certain injuries (schedule 1 [19]).
• Removal of the word “attendant care” from section 3.31 of the Motor Accident Injuries Act 2017 (‘the Act’), meaning the Motor Accident Guidelines may include provisions to limit “services”, rather than just “attendant care services” for which statutory benefits are payable (schedule 1 [25]).
• Where a claim for statutory benefits is not made within 28 days after the accident, weekly payments of statutory benefits may be paid in respect of the period before the claim is submitted, if permitted by the regulations (schedule 1, [30]).
• Removal of the waiting period of 20 months before an injured person can lodge a claim for modified common law damages (schedule 1, [31]).
• Removal of s6.23(1), enabling parties to resolve damages claims at any time. Previously parties were unable to resolve a claim within 2 years of the claim being lodged unless there was a concession of a greater than 10% whole person impairment (schedule 1, [34]).
• The power of SIRA to appoint an authorised person to conduct medical assessments for the purpose of determining attendant care needs and vocational capacity (schedule 1, [35]).
• The claimant is not required to attend a medical assessment organised by the insurer for the purpose of assessing attendant care services or vocational capacity if the assessor is not a person authorised by the Motor Accident Guidelines (schedule 1, [35]).
• Removal of the requirement to seek internal review prior to lodging a medical dispute to determine the degree of whole person impairment (schedule 1, [37]). It is important to note that, 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, then an internal review must still be undertaken before the matter can be referred for medical assessment.
• Removal of the 3 year limitation on referring a claim for assessment (schedule 1, [38]). This does not alter the operation of section 6.32 of the Act, and injured persons are still required to commence court proceedings in respect of their claim within 3 years of the date accident.

Moving forward

With one exception, the above amendments apply to all claims in which accidents occurred on or after 1 December 2017, to statutory benefit disputes and damage assessments made before the commencement, and to proceedings pending before a merit reviewer, medical assessor, claims assessor or a court immediately before the commencement of the amendments.

The exception is any matter in which the insurer has, prior to 28 November 2022, determined an injured person’s whole person impairment is not in excess of 10%. In that case, an internal review is still required before any WPI dispute can be referred to the Commission.

Insurers and practitioners should be aware of the changes to ensure compliance with the Act and the statutory obligations therein.

The balance of the changes in the Motor Accident Injuries Amendment Bill 2022 are set to take effect on 1 April 2023.

Further information / assistance regarding the issues raised in this article is available from the authors, Jamie Bruce, Senior Associate, Emma Wallace, Lawyer or your usual contact at Moray & Agnew.