Changes to NSW motor accident laws – your definitive guide

First entitlement period (first 13 weeks following DOA)

Employed
During the first 13 weeks following your accident, regardless of fault, you’re entitled to 95% of the difference in your pre-accident and post-accident income. In the above example, that would be equal to $190 per week (95% of $200).

University students
If, at the time of the accident, you were a full-time university student, then you will be classified as an earner from the time you would have completed your studies. Your pre-accident income from that time is calculated based on what you would have earned on the completion of your studies.

Students
If, at the time of the accident, you were a full-time student, then you will be classified as an earner from the time you would have completed your studies and reached the age of fifteen. Your pre-accident income from that time is calculated based on what you would have earned on the completion of your studies.

Apprentices, trainees and young people
If, at the time of the accident, you were under the age of 21 years or were a trainee or apprentice and you would have expected your earnings to increase because of your age or the terms of your contract, then your payment may be increased accordingly.

Second entitlement period (14 – 78 weeks following DOA)
Your payment in the second entitlement period depends on whether your are totally or partially incapacitated:

• Total incapacity
  means that you are totally unfit for work because of your injuries
• Partial incapacity
  means that you are fit for some, but not all of your usual work because of your injuries

In the event of total incapacity, you will receive 80% of the difference between your pre-accident income and post-accident income. In the example above you would have to assume that there is no ability to earn $800 after the accident and therefore your loss is $1,000 per week. That would then entitle you to $800 per week (80% of $1000).

In the event of partial incapacity, you will receive 85% of the difference between your pre-accident income and post-accident income. Using the above example, that would equate to $170 per week ($1000 pre-accident income, reduced to $800 because of partial incapacity, meaning a loss of $200. 85% of $200 = $170).

Once you reach 26 weeks (six months) after the date of accident, your payments may be stopped or reduced depending on how serious your injuries are and whether you were at fault in causing the accident or were contributorily negligent.

Minor injuries
If your injuries are minor injuries, then your payments will cease completely after 26 weeks.

Minor injuries are soft tissue injuries. This means injuries to the tissue that connects, supports, or surrounds other structures or organs of the body, like:

However, the definition of “minor injuries” excludes injury to nerves or a rupture of a tendon, ligament, menisci, or cartilage (complete or partial).

Your doctor should document your injuries and provide you with a medical certificate indicating the extent of them.

Exceptions to the definition of minor and non-minor injuries will be published shortly and you should seek legal advice if you believe that your injury has been incorrectly classified by your insurer.

At fault
If you were wholly or mostly at fault for the accident, then your payments will cease completely after 26 weeks.

“Mostly at fault” is defined in the new law to mean that the contributory negligence of a person was 61% or more. This refers to a blame percentage that is attributed to the people involved in a motor accident.

An example may be where one driver exits a driveway onto a street and is hit by another car. While the car on the street failed to stop in time, and thus caused damage, it could be argued that the car leaving the driveway failed to properly scan the road for hazards and ultimately was more to blame.

However, this is a simplified example. In the real world, the attribution of blame depends on all the circumstances of the incident and no two cases are the same.

The insurance company will tell you if they consider that you were mostly at fault. You may dispute this if you do not agree.

Living outside Australia

An injured person who resides outside of Australia (whether you have moved after the accident, or have returned to your country of origin) is not entitled to weekly statutory benefits, except in the following cases:

• The Dispute Resolution Service has determined that your loss of earnings is likely to be permanent (due to the severity of the injury, for example); AND
• You comply with any additional requirements that may be set out in the motor accident guidelines to be issued in the coming months. (This guide will be updated when that information is available).

Reduction in payments

Contributory negligence
Your payments will be reduced after 26 weeks (six months) from the date of accident if the accident was partly your fault (“contributory negligence”).

This could be due to:

• Alcohol or drug impairment
• Being a voluntary passenger of a driver who is impaired by alcohol or drugs
• Not wearing a seatbelt
• Not wearing a helmet (if applicable)
• Willingly placing yourself in danger (known as volenti non fit injuria, translated as “to a willing person, injury is not done”) – for example, if you were car surfing.

Third entitlement period (after 78 weeks)
Payments for loss of earnings will only continue after 78 weeks (1.5 years) if you meet the
following conditions:

• You are over the age of 18 (regardless of earner status); or
• You are under the age of 18 but classified as an earner

These age conditions are calculated at the date of the entitlement, not the date of the accident.

When do payments stop after 78 weeks?
If you are still receiving payments after 78 weeks, then your payments will stop:

• After 104 weeks
  (two years) if you do not have a claim for damages pending
• After 156 weeks
  (two and a half years) if you have a damages claim pending but your “whole person impairment” (WPI) is less than 10%.“Whole person impairment” is calculated according to specific guidelines by a specialist doctor. You cannot calculate your WPI yourself.
• After 260 weeks
  (five years) if you have a damages claim pending and your WPI is greater than 10%.
• Upon reaching retirement age + 12 months.
  In Australia there is no set retirement age, However, Centrelink determines your eligibility for the ‘Age Pension’ as being between 65 and 67 years of age, depending on your date of birth:

Birth date range	Required age for the age pension
1st July 1952 – 31st December 1953	65 years and six months
1st January 1954 – 30 June 1955	66 years and six months
1st July 1955 to 31 December 1956	66 years and six months
From 1st January 1957	67 years

Failure to comply
Your payments will be reduced after 26 weeks (six months) from the date of accident if the accident was partly your fault (“contributory negligence”).

Tip: If you’re not taken to hospital following the accident, you should still visit your doctor as soon as possible, both for treatment and to record your injuries shortly after the accident. This will greatly aid your claims and insurance processes.

If you’re injured in a motor accident, then you’re entitled to medical and treatment expenses provided that they are “reasonable and necessary”. Your doctor may need to provide a letter or certificate to the insurer confirming that the treatment is reasonable and necessary.

If you need to pay for someone to help you around the home as a result of your injuries, known as domestic services, then this may be covered as long as you require it for a minimum of six hours per week continuously for six months or more. These types of tasks could be general cleaning, mowing the lawn, or other domestic assistance tasks that you are unable to complete by yourself because of your injuries.

There are no statutory benefits for “gratuitous attendant care”, which refers to help from a non-professional carer like a friend or family member, ie someone you wouldn’t pay to help care for you.

If you have to travel to attend treatment, then you are entitled to claim the travel and accommodation expenses that you incur in attending treatment.

If you are under the age of 18, have a disability, or the extent of your injuries means that you need a special assistant when travelling, then expenses incurred by a parent or carer can also be claimed.

When do payments for treatment and care stop?

At fault or mostly at fault
Payments for treatment and care stop after 26 weeks (six months) if you were at fault or mostly at fault for the accident and you were over 16 years of age.

Minor injuries
Payments for treatment and care stop after 26 weeks (six months) if your injuries are classified as minor.

Exclusion from treatment and care benefits

Lifetime Care and Support Scheme
You are not entitled to payments for treatment and care if you are participating in the Lifetime Care and Support Scheme.

Living outside Australia
You are not entitled to payments for treatment and care if you are living outside Australia. If you move overseas or return to your home country outside Australia then your payments would stop. If you were injured while on holidays in Australia then you may be entitled to statutory benefits until you return home.

If the motor accident results in death, funeral expenses are covered by statutory benefits.

You can claim damages for:

• Economic loss; and
• Non-economic loss

Economic loss, as you may have guessed, is the financial loss you suffer because of the injuries you sustained in the motor accident. Damages are claimed based on your net (after tax) losses and you do not have to pay tax on them.

The economic loss damages you can claim for are:

• Past loss of earnings (including superannuation)
• Future loss of earnings or impairment of earning capacity (including superannuation)
• The cost of financial management of any damages that are awarded to you, for example, if you require professional assistance in managing your money because you are under the age of 18 or are mentally impaired
• Reimbursement of tax paid or payable on workers’ compensation benefits

Non-economic loss damages is an amount of money to represent the pain, disability, loss of enjoyment of life, disfigurement or associated circumstances that you suffer because of your injuries.

Non-economic loss is only payable to you if your whole person impairment is greater than 10%.

If you are claiming statutory benefits or damages, you must comply with the verification requirements. At the time of writing, the requirement is to notify the police of the accident within 28 days.

In order to claim statutory benefits, a “notice of claim” needs to be lodged with the relevant insurer. The relevant insurer is:

• The insurer of the motor vehicle if there is only one vehicle involved;
• The insurer of the at-fault motor vehicle if more than one vehicle is involved (if more than one vehicle is at fault, then the one which was most at fault);
• The nominal defendant if the motor vehicle was uninsured or unidentified.

You need to lodge a claim with the insurer to claim your statutory benefits. There are time frames for doing so. There will be guidelines released in the coming months that outline specific claim forms and further details. We will update this guide when those are available.

28 days
It is in your best interests to submit your claim to the relevant insurer within the first 28 days after the accident. This will ensure that you can receive weekly payments from the date of the accident.

If you do not submit your claim within the first 28 days, your weekly payments will only be payable from when you make that claim, not from the date of the accident, so you could lose some benefits.

Within three months
While the 28 day timeframe is optimal, you must make your claim within three months of the date of the accident. Just remember that if you submit your claim after 28 days, then you’re only entitled to payments from the date you submitted your claim, not from the date of the accident.

After three months
You can still lodge a claim with the insurer outside three months but you may not be entitled to payments unless:

• You can provide a full and satisfactory explanation for the delay in lodging your claim; AND
• Your claim is made within three years; or
• Your permanent impairment is greater than 10% or the claim relates to death.

Insurer’s response

Your insurer must give you notice as to whether they will accept liability for the first 26 weeks of statutory benefits payments within four weeks from your claim submission.

Furthermore, your insurer must give you notice if they accept liability for payments after the first 26 weeks within three months from the date you submitted your claim.

If you disagree with a decision of the insurer then you can dispute that decision.

The types of things you might disagree with the insurer about include:

• The amount of your pre-accident income or earning capacity
• Whether you were an “earner” before the accident
• Whether your injuries are “minor injuries”
• Whether the motor accident was caused partly or wholly by your fault
• Whether, and how much, you were contributorily negligent
• Whether your injuries result in greater than 10% whole person impairment
• Whether your treatment is reasonable and necessary
• Whether you require paid domestic services

How do I dispute the insurer’s decision?

Step 1: Request an internal review
The first step is to request an internal review of the decision. This simply means asking the insurer to review their decision.

The insurer has 14 days to complete the review and notify you of the results of their review.

Step 2: Refer to Dispute Resolution Service
If the insurer does not change their mind or you are still unhappy with their decision, you can refer a dispute to the Dispute Resolution Service.

It’s worth noting here that should you need to dispute an insurer’s decision, you will have almost certainly sought legal advice. If you haven’t yet done so, and are considering disputing an insurer’s decision, then speak to a lawyer first.

Within three years
Your damages claim must be made within three years of the date of your motor accident. This is important because if you attempt to claim outside the three year period, then you’ll need to provide a full and satisfactory explanation for your delay and may lose your right to claim altogether.

After 20 months
You have to wait for 20 months from the date of your accident before you can claim for damages unless:

• The claim is for the death of a person; or
• Your whole person impairment is greater than 10%.

On this topic, it’s also worth noting that the claim cannot be settled within two years of the date of the accident unless you meet one of the above two exceptions.

After the claim has been made, you must submit what’s known as “relevant particulars”. The relevant particulars of your claim are the full details of the accident, the nature of your injuries and disabilities, and the details of all your losses.

For example these may be:

• Accident report (referred to as an Event Report by the police)
• Injury report, including disabilities, impairments and your WPI if applicable (provided by a doctor)
• Record of economic losses
• Record of non-economic losses (NEL)

If you fail to do so by 30 months (two and a half years) then the insurer can formally request that you supply the necessary information. It is in your best interests to provide these details at the earliest opportunity because otherwise you can lose your right to claim.

Once you have provided all the particulars of your claim, the insurer is required to make an offer as soon as practicable, unless they wholly deny liability for your claim.

The insurance company cannot delay making an offer based on insufficient particulars unless they request further particulars from you within two weeks of you supplying all the relevant particulars to them.

Claims assessment by the Dispute Resolution Service
Once you and the insurer have used your best endeavors to try to settle your claim, if you haven’t been able to reach agreement then you can refer your claim for assessment to the Dispute Resolution Service. This must be done within three years of the date of the accident.

In some circumstances you can be exempt from this step. Instead you will need to get a Certificate of Exemption from the Dispute Resolution Service and then commence court proceedings. You might be exempt from the claims assessment process if, for example, the insurance company wholly disputes liability for your claim.

Court proceedings
Most matters will be resolved through the claims assessment process, but if your claim is an exempt claim then you may commence court proceedings.

If you are unhappy with the assessment of your damages made by the Dispute Resolution Service then you can commence court proceedings.

You must commence court proceedings within three years of the date of accident. The three years is paused while your claim is referred to the Dispute Resolution Service for assessment or for the issue of a Certificate of Exemption.

If you do not commence court proceedings within three years of the date of accident, then you may lose your right to claim altogether except in limited circumstances.

The first thing to remember when you’ve been in a motor accident is to try to remain calm. Acting angrily or aggressively towards the other driver(s) will not only increase the effects of stress, shock and panic for you and the other parties, but it could lead to serious criminal charges, additional injuries and unnecessary difficulties.

Furthermore, you could find yourself in shock and/or full of adrenaline, which can make it difficult to remain focused on protecting yourself both physically and legally.

Check on the occupants of your vehicle to see if anyone has sustained injuries and, if so, whether they require urgent medical attention. If you, your passengers, or occupants of the other vehicles involved do require medical assistance, it is critical that you dial 000 for an ambulance immediately.

If you are able to vacate your vehicle, then you will need to assess the severity of the damage to your vehicle and to any of the other vehicles involved in the accident. If the damage is significant, you will need to contact the police who will come to document the accident and talk to the involved parties and witnesses.

It may be a good idea to take photographs of the damage to your vehicle and the other vehicle for insurance purposes and even to take photographs of the general area and where the vehicles are positioned if possible.

Fault is determined not by the driver(s), but by the authorities like the police and the courts after careful review of all the circumstances surrounding the accident and by following proper legal procedures.

If the police are involved in your motor accident claim, then they will record the details of the accident and provide you with an “event number”. This number can be used to request the police report on your accident.

You, your legal counsel, or your insurer can request your incident report via the Insurance Services Unit or by downloading the ‘P862 Application for Incident Report’ form.

Blameless accidents
A motor accident is deemed blameless when its cause cannot be directly attributed to the operational failure of the motor vehicle(s) by their driver(s). In other words, if the accident is caused by an external factor not influenced by either driver, then neither driver can be blamed.

An example of a blameless accident could be when one driver suffers a heart attack that causes them to crash into another vehicle.

Hit and run
A “hit and run” is when the driver(s) of one or more of the vehicles involved in the accident depart the scene without swapping any details. In this event, you must contact the police, report the accident and explain the situation. They will advise on the next steps involved, but they will usually attend the scene, speak to any witnesses and record the details of the accident with you.

Aside from the relevant emergency services, there are other parties that you will want to contact, depending on the severity of the damage and extent of injury.

If the accident is minor, no vehicles require towing, nobody is injured and both parties have swapped details, then there is no need to contact the police.

Towing services
If the damage to a vehicle requires it to be towed from the scene, then you will need to report the accident to the Police Assistance Line. You’ll receive an incident report number to use for the duration of your insurance claim and legal proceedings, if applicable.

Medical

If you or a passenger are injured in the accident, but do not need to be taken to hospital, you should go to a medical centre or your GP as soon as possible in order to record your injuries formally.

Your doctor will provide you with a medical certificate and a report that details all injuries caused by the accident, along with any treatment that is required to heal those injuries.

Mechanic
Should your car be damaged, but drivable, you will want to take it to your local (or insurer approved) mechanic so they can provide you with a formal damage report that you can use for your insurance claim and legal proceedings, if applicable.

Manufacturers of objects in your vehicle
In order to assess damages accurately, you may be required by your insurer to have any goods that were inside your car and damaged during the accident to be valued by the manufacturer or a relevant store.

This process will be largely dictated by your insurer. It is important that you comply with their requests to ensure you receive the maximum benefits.

The meaning of a motor vehicle (for claims purposes) is a vehicle that is built to be propelled by a motor that forms part of the vehicle. It can include motorbikes, buses, trucks, trailers, and construction vehicles.

There is no difference in the claims process provided the vehicle is a “motor vehicle”. Also, you can claim if you were a pedestrian or cyclist, as long as a motor vehicle was involved.

Trucks, buses, and other large vehicles almost always require the assistance of police, as they are normally an impediment to traffic and require a level of signalling and traffic control to clear the scene.

If no traffic management is required and damage is minimal, follow the same steps as detailed above, ensuring to swap all driver details and take photographs.

The police will attend the motor accident scene if it meets their criteria. They will talk to those involved, including witnesses, and will officially document the incident. You can use this report for your claim.

You may need to seek advice from a lawyer (solicitor) in regard to your claim. They can assist you in dealing with disputes that arise concerning your statutory benefits and/or in claiming damages.

Sometimes your lawyer will engage a barrister on your behalf when presenting your case to the Dispute Resolution Service. If your matter proceeds to court, then your lawyer would engage a barrister to present your case in court.

The insurance claims manager is the person who will handle your motor accident insurance claim. It’s their job to help you process your claim.

At various points during your claim you may be required to attend a medico-legal doctor to assess your injuries, your treatment and care needs and/or your whole person impairment. You may be required to attend a medico-legal doctor for the insurer, for your lawyer and for the Dispute Resolution Service.

Motor accident assessors in the Dispute Resolution Service
If you dispute an insurer’s decision with the Dispute Resolution Service, or you refer your damages claim for assessment by the Dispute Resolution Service, then an assessor will be allocated to your matter to make a decision or assessment about those matters in dispute.

While most claims don’t end up in court, if you do commence court proceedings then your case will eventually be heard by a judge who will determine your case.