Chapter 4 Motor accident claims
(cf s 40 MAA)
(1) In this Chapter:insurer, in relation to a person, means the insurer who insures the person against the person’s liability for damages in respect of a claim, whether or not under a third-party policy, and includes:
(a) the Nominal Defendant, and(b) where a claim is handled on behalf of an insurer by another insurer, the other insurer.(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
(cf s 41 MAA)
(1) This Chapter applies to and in respect of a claim relating to a motor accident occurring after the commencement of this Act.(2) This Chapter applies to and in respect of such a claim whether or not there is a third-party policy in respect of the claim.Note. This Chapter applies only if the vehicle has motor accident insurance cover for the claim. See section 3B.
68 Claims Handling Guidelines of Authority
(cf s 40B MAA)
(1) The Authority may issue to licensed insurers guidelines with respect to the manner in which insurers and those acting on their behalf are to deal with claims (MAA Claims Handling Guidelines).(2) The Authority may amend, revoke or replace MAA Claims Handling Guidelines.(3) The Authority is to consult the following about any proposed MAA Claims Handling Guidelines:(a) Insurance Council of Australia Limited,(b) Council of the Bar Association,(c) Council of the Law Society.(4) MAA Claims Handling Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.(5) It is a condition of an insurer’s licence under Part 7.1 that the insurer comply with MAA Claims Handling Guidelines.
69 Claims Assessment Guidelines of Authority
(1) The Authority may issue guidelines for or with respect to procedures for the assessment of claims under Part 4.4 and associated matters (MAA Claims Assessment Guidelines).(2) The Authority may amend, revoke or replace MAA Claims Assessment Guidelines.(3) The Authority is to consult the following about any proposed MAA Claims Assessment Guidelines:(a) Insurance Council of Australia Limited,(b) Council of the Bar Association,(c) Council of the Law Society.(4) MAA Claims Assessment Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.(5) MAA Claims Assessment Guidelines are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.(6) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to MAA Claims Assessment Guidelines in the same way as those sections apply to statutory rules.Editorial note. For Guidelines issued pursuant to this section see Gazettes No 30 of 3.3.2006, p 1100; No 87 of 11.7.2008, p 7016 and No 122 of 4.9.2009, p 4969.
Part 4.2 Claims and other preliminary matters
70 Reporting of motor accident to police
(1) Unless a police officer attended the motor accident, a motor accident that gives rise to a claim must be reported to a police officer by or on behalf of the claimant within 28 days after the motor accident. This requirement is referred to in this section as the police accident report requirement.(2) A person who makes a claim must provide to the insurer a full and satisfactory explanation for any non-compliance with the police accident report requirement.(3) If the police accident report requirement for a claim is not complied with, the claim cannot be referred for assessment under Part 4.4 unless:(a) the insurer has lost the right to reject the claim on the ground of that non-compliance, or(b) a claims assessor has, on the assessment of a dispute as to whether the claimant has a full and satisfactory explanation for the non-compliance, assessed that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident to a police officer was made within a reasonable period in the circumstances, or(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.(4) The insurer loses the right to reject a claim on the ground of non-compliance with the police accident report requirement if the insurer:(a) does not, within 2 months after receiving the claim, reject the claim on the ground of that non-compliance or ask the claimant to provide a full and satisfactory explanation for the non-compliance, or(b) does not, within 2 months after receiving an explanation for the non-compliance, reject the explanation.(5) If court proceedings are commenced on a claim in respect of which the police accident report requirement has not been complied with, the insurer may apply to the court to have the proceedings dismissed on that ground.(6) An application to have proceedings dismissed on the ground of non-compliance with the police accident report requirement cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of that non-compliance.(7) On an application to have proceedings dismissed on the ground of non-compliance with the police accident report requirement, the court must dismiss the proceedings unless satisfied that sufficient cause existed to justify the delay in reporting the motor accident to a police officer and that a report of the motor accident to a police officer was made within a reasonable period in the circumstances.(8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.
71 Authority’s access to police information
(cf s 42A MAA)
(1) At the written request of the Authority with respect to a motor accident specified by it, the Commissioner of Police must provide a statement to the Authority in relation to the following matters if information as to those matters is held by a member of the NSW Police Force:(a) the registration numbers of all motor vehicles involved in the accident,(b) the names of all persons killed or injured in the accident,(c) the names of the hospitals to which the injured persons were taken,(d) the motor vehicle or vehicles most likely to have been at fault in the accident.(2) The Authority is authorised to give a copy of a statement provided to it under this section to the next of kin of a person killed in the accident or to a person injured in the accident (or to an appropriate representative of either such person), or to an insurer.(3) A statement or copy of a statement provided to or by the Authority under this section is not admissible in legal proceedings concerning a claim made under this Act.
72 Time for and notice of making of claims
(cf s 43 MAA)
(1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.(2) A claim is made by giving notice of the claim as follows:(a) in the case of a claim against a person whose insurer is a third-party insurer, to the person’s insurer,(b) in any other case, to the person against whom the claim is made.(3) The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:(a) that person is dead, or(b) that person cannot be given notice.
(cf s 43A MAA)
(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.(2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.(3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:(a) the insurer has lost the right to reject the claim on the ground of delay, or(b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.(4) The insurer loses the right to reject a late claim on the ground of delay if the insurer:(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.(5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.(6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.(7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.(8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.Note. The combined effect of sections 72 and 73 is as follows:A claim generally must be made within 6 months after the date of the accident or the date of death.
If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.
Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor.
(cf s 44 MAA)
(1) A notice of a claim under this Part must:(a) be in the form approved by the Authority, and(b) set out or be accompanied by such particulars and information as may be required by that form.(2) A notice of claim given to an insurer may, if approved by the Authority, require the claimant to do any one or more of the following:(a) furnish a medical certificate relating to the claim signed by a medical practitioner,(b) authorise the insurer to obtain information and documents relevant to the claim from persons specified in the authorisation,(c) authorise the insurer to provide information and documents so obtained by the insurer to persons specified in the authorisation.(2A) A copy of an authorisation for the obtaining of information and documents from a person is sufficient authorisation for that purpose and may be relied on as if it were the original authorisation.(3) The Authority may approve different forms according to the persons to whom the notice is to be given.(4) A notice of a claim given to an insurer must be verified by statutory declaration.
(cf s 44A MAA)
(1) The Authority may approve forms (other than the form for a notice of claim) for use by insurers for the purposes of this Chapter.(2) Approved forms may include, but are not limited to, a certificate of earnings and a rehabilitation plan.
76 Rejecting claims for failure to comply with section 74
(1) If section 74 has not been complied with, a claim cannot be referred for assessment under Part 4.4 unless:(a) the insurer has lost the right to reject the claim for non-compliance with section 74, or(b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for non-compliance with section 74, assessed that the non-compliance is technical and of no significance, or(c) the claim is referred only for a certificate of exemption from assessment under Part 4.4.(2) The insurer loses the right to reject a claim for non-compliance with section 74 if within 2 months after receiving the claim the insurer does not reject the claim for non-compliance with that section.(3) If court proceedings are commenced on a claim in respect of which section 74 has not been complied with, the insurer may apply to the court to have the proceedings dismissed on the ground of non-compliance with section 74.(4) An application to have proceedings dismissed on the ground of non-compliance with section 74 cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of that non-compliance.(5) On an application to have proceedings dismissed on the ground of non-compliance with section 74, the court must dismiss the proceedings on that ground unless satisfied that the non-compliance is technical and of no significance.(6) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.
77 Insured not to admit liability or act in respect of claim
(cf s 46 MAA)
(1) A person may not, without the consent in writing of the person’s insurer:(a) enter upon, or incur any expense in, any litigation, or(b) make any offer or promise of payment or settlement, or(c) make any payment or settlement, or(d) make any admission of liability,in respect of a claim. However, this section does not prevent any person from truthfully answering any question reasonably asked of the person by a police officer.(2) An offer, promise or admission made in contravention of this section is of no effect.
78 Power of insurer to act for insured
(cf s 47 MAA)
(1) When a claim is made against a person, the person’s insurer may:(a) conduct and control negotiations in respect of the claim, and(b) conduct, or take over the conduct of, any legal proceedings in respect of the claim and may conduct those proceedings in the name and on behalf of the person, and(c) at any stage of those negotiations or proceedings, compromise or settle the claim, and(d) exercise any function conferred by this Act on the person in respect of the claim.(2) The person against whom the claim is made is required to sign all such warrants, authorities and other documents as may be necessary to give effect to this section.(3) If the person fails to do so or is absent or cannot be found, the insurer may sign the warrants, authorities or other documents on behalf of the person.(4) Nothing said or done by an insurer under this section in connection with the settlement of a claim or the conduct of proceedings in respect of a claim is to be regarded as an admission of liability in respect of or in any way prejudice any other claim, action or proceeding arising out of the same occurrence.
79 Power of insurer to intervene in legal proceedings
(cf s 47A MAA)
An insurer may apply to the court to be joined as a party to legal proceedings brought against a defendant who is insured under a third-party policy with the insurer in order to argue that in the circumstances of the case it has no obligation under the policy to indemnify the defendant.
Part 4.3 Duties with respect to claims
80 General duty of insurer to try to resolve claim expeditiously
(cf s 45 (1) MAA)
(1) It is the duty of an insurer to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible.(2) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.
81 Duty of insurer with respect to admission or denial of liability
(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.(2) If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted.(3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.(4) Nothing in this section prevents an insurer from admitting liability after having given notice denying liability or after having failed to comply with this section.(5) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.
82 Duty of insurer to make offer of settlement
(1) It is the duty of an insurer to make a reasonable offer of settlement to the claimant (unless the insurer wholly denies liability for the claim):(a) within 1 month after the injury is sufficiently recovered to enable the claim to be quantified, or(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim as required by section 85A,whichever is the later.(2) An offer of settlement is to specify an amount of damages or a manner of determining an amount of damages.(3) If an offer of settlement is made on the basis that the insurer admits only part of the liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is admitted.(4) This section does not apply to:(a) a claim made in respect of the death of a person, or(b) a claim in respect of an injury that is not sufficiently recovered within 3 years after the motor accident to enable the claim to be quantified, or(c) a claim in respect of which a medical assessor has declined to make an assessment under Part 3.4 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.(5) (Repealed)(6) The insurer is not entitled to delay the making of an offer of settlement under this section on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars.Note. Section 96 provides that a dispute about whether particulars about a claim are sufficient may be referred to a claims assessor.(7) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.Note. Section 91 provides that 2 months after the insurer makes an offer of settlement the claim, if not resolved, may be referred for assessment. If an offer is not duly made, the claim may be referred for assessment as soon as the time for making the offer has expired.
83 Duty of insurer to make hospital, medical and other payments
(cf s 45 (2)–(4) MAA)
(1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of:(a) hospital, medical and pharmaceutical expenses, and(b) rehabilitation expenses, and(c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and(d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay),as incurred.(2) The duty of an insurer under this section to make payments applies only to the extent to which those payments:(a) are reasonable and necessary in the circumstances, and(b) are properly verified, and(c) relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates.Note. Medical disputes about payments under this section may be referred by the insurer or claimant to a medical assessor for assessment under Part 3.4. Other disputes may be referred to a claims assessor under section 96 for assessment.(2A) If the MAA Medical Guidelines approve particular treatment as appropriate treatment, or particular procedures as appropriate procedures with respect to the provision of rehabilitation services or attendant care services, in respect of any matter, any treatment, rehabilitation services or attendant care services provided to the injured person that accords with the approved treatment or procedures is taken to be reasonable in the circumstances for the purposes of subsection (2) (a).Note. Subsection (2) (a) also requires that treatment and services be necessary in the circumstances.(3) An insurer may agree to make payments to or on behalf of the claimant in respect of attendant care services provided by a person who is related to the claimant or by a person other than a person with appropriate training to provide those services.(4) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.(5) A payment made under this section to or on behalf of a claimant before the claimant obtains judgment for damages against the defendant is, to the extent of its amount, a defence to proceedings by the claimant against the defendant for damages.(6) The amount of a payment made under this section to or on behalf of a claimant is to be included in the damages recoverable by the claimant for the purposes of any reduction of those damages by reason of the contributory negligence of the deceased or injured person.Note. If damages are to be reduced by reason of contributory negligence, subsection (6) ensures that the reduction extends to amounts paid by an insurer under this section.
84 Duty of insurer with respect to rehabilitation of injured person
(cf ss 37 (2) and (5), 38 MAA)
(1) An insurer (to the extent of the insurer’s liability under a third-party policy or this Act) must do all such things as may, in accordance with MAA Medical Guidelines, be reasonable and necessary for the rehabilitation of an injured person, including:(a) meeting the reasonable and necessary costs and expenses of travel and accommodation incurred by the person in order to obtain rehabilitation services, and(b) if the injured person is under the age of 18 years, meeting the reasonable and necessary costs and expenses of travel and accommodation incurred by a parent or other carer of the injured person in order to accompany the injured person while he or she is obtaining rehabilitation services.(2) In the provision of rehabilitation services, an insurer must, as far as practicable, ensure that those services are provided to an injured person as soon as possible after an admission of liability is made by the insurer.(3) If rehabilitation services are provided to an injured person before an admission of liability is made by the insurer, the provision of those services is not to be taken to be an admission of liability.(4) An insurer has no responsibility for the rehabilitation of an injured person whose claim has been settled or in relation to whom a judgment has been entered except as provided by the terms of any order referred to in section 143.(5) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.(6) The regulations may prescribe a rate at which the cost of travel by any specified mode of transport is to be calculated for the purposes of the payment of travel costs under this section.
84A Duty of insurer to make interim payments in case of financial hardship
(1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of economic loss but only to the extent that such a payment is necessary to avoid the claimant suffering financial hardship.Note. A dispute about payments under this section may be referred to a claims assessor under section 96 for assessment.(2) It is a condition of an insurer’s licence under Part 7.1 that the insurer must comply with this section.(3) A payment made under this section to or on behalf of a claimant before the claimant obtains judgment for damages against the defendant is, to the extent of its amount, a defence to proceedings by the claimant against the defendant for damages.(4) The amount of a payment made under this section to or on behalf of a claimant is to be included in the damages recoverable by the claimant for the purposes of any reduction of those damages by reason of the contributory negligence of the deceased or injured person.Note. If damages are to be reduced by reason of contributory negligence, subsection (4) ensures that the reduction extends to amounts paid by an insurer under this section.
85 Duty of claimant to co-operate with other party
(cf s 48 MAA)
(1) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person’s insurer for the purpose of giving the person and the insurer sufficient information:(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and(b) to be able to make an early assessment of liability, and(c) to be able to make an informed offer of settlement.(2) In particular, the claimant must comply with any reasonable request by the other party or the other party’s insurer:(a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or(b) to provide a photograph of and evidence as to the identity of the claimant.(3) The reasonableness of a request may be assessed having regard to criteria including the following:(a) the amount of time the claimant needs to comply with the request,(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,(d) how onerous it will be for the claimant to comply with the request,(e) whether the information is privileged,(f) whether the information sought is sufficiently specified,(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.(4) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.
85A Duty of claimant to provide relevant particulars of claim
(1) A claimant must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.(2) The Authority may approve a form to be completed by claimants in connection with the provision of particulars in compliance with this section.(3) For the purposes of this section, relevant particulars about a claim are full details of:(a) the injuries sustained by the claimant in the motor accident, and(b) all disabilities and impairments arising from those injuries, and(c) any economic losses and other losses that are being claimed as damages,sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
85B Consequences of failure to provide relevant particulars of claim
(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 85A), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.(2) The insurer’s direction must be given in the form approved by the Authority.(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.(4) The claimant may make an application for reinstatement of the claim:(a) to the Authority for a claim that is not exempt from assessment under Part 4.4, or(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Part 4.4.(5) An application for reinstatement made to the Authority is to be referred for assessment as a dispute under section 96:(a) by a claims assessor if made less than 3 years after the date of the motor accident, or(b) by the Principal Claims Assessor if made 3 years or more after the date of the motor accident.(6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or claims assessor is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.(7) If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Principal Claims Assessor is satisfied that:(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the motor accident.(8) This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Part 3.4 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.
86 Medical and other examination of claimant
(cf s 49 MAA)
(1) A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:(a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or(b) to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or(c) to undergo an assessment in accordance with MAA Medical Guidelines,not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.(2) Any such examination or assessment is at the cost of the person who requests it. The claimant may decline to undergo the examination or assessment unless that person pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.(3) A claimant must comply with any request by a medical assessor or the Authority to undergo a medical examination or an assessment by the medical assessor for the purposes of a medical assessment under Part 3.4.(4) If the claimant fails without reasonable excuse to comply with such a request:(a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and(b) court proceedings cannot be commenced or continued in respect of the claim while the failure continues.(5) The regulations may prescribe a rate at which the cost of travel by any specified mode of transport is to be calculated for the purposes of the payment of travel costs under this section.
87 Duty of owner and driver to co-operate with insurer
(cf s 50 MAA)
(1) A person who at the time of the motor accident to which a claim relates was the owner or driver of the motor vehicle concerned must co-operate fully with the vehicle owner’s insurer in respect of the claim.(2) In particular, the owner or driver of any motor vehicle involved in a motor accident must:(a) within 28 days after the accident, give written notice of the accident to the vehicle owner’s insurer, unless the owner or driver had no reason to suspect that the accident could have given rise to a claim against the owner or driver, and(b) within 28 days after the receipt of:(i) any claim made against the owner or driver, or(ii) any written notice received from any claimant that the claimant intends to make a claim against the owner or driver,give notice of the claim or intention to make the claim to the vehicle owner’s insurer.(3) The owner or driver of a motor vehicle at the time of the motor accident to which a claim relates must furnish to the insurer such information as the insurer may reasonably request in connection with the claim.Maximum penalty (subsection (3)): 20 penalty units.
Part 4.4 Claims assessment and resolution
(1) In this Part:party to an assessment under this Part means the claimant or the insurer in respect of the claim referred for assessment.
specify an amount of damages includes specify a manner of determining the amount of damages.
(2) A reference in this Part to referring a claim for assessment under this Part includes a reference to referring a claim for a certificate of exemption from assessment under this Part.(3) A reference in this Part to an assessment of a claim includes a reference to the result of the assessment.
(1) This Part applies to any claim, whether or not the insurer admits or denies liability.(2) Nothing in this Part prevents a claim from being settled at any time.Note. Section 108 provides that a person cannot commence court proceedings in respect of a claim unless it has been referred for assessment under this Part and a certificate as to the exclusion of the claim from assessment or as to the results of assessment has been issued.
Division 1A Document exchange and settlement conference before claims assessment
89A Parties required to participate in settlement conference
(1) The parties to a claim must participate in a settlement conference as soon as practicable after the insurer makes an offer of settlement to the claimant under section 82.(2) A claim cannot be referred to the Authority for assessment under this Part until the parties have participated in a settlement conference.(3) A party can however refer a claim for assessment if a claims assessor is satisfied that the party is ready and willing to participate in a settlement conference but the other party has refused or failed to participate despite having had a reasonable opportunity to do so.(4) A settlement conference is a conference, the purpose of which is to settle the claim, in which the following persons participate:(a) the claimant, the claimant’s guardian or some other person authorised by the claimant to settle the claim on the claimant’s behalf,(b) a person authorised by the insurer to settle the claim on the insurer’s behalf.
89B Parties to exchange documents before settlement conference
(1) Before the parties’ settlement conference, each party to the claim must provide the other party or parties to the claim with a copy of all the documents on which the party proposes to rely for the purposes of the assessment of the claim under this Part.(2) If a party does not provide a copy of a document before the parties’ settlement conference, the document (and any information contained in the document) is not to be considered or otherwise taken into account by a claims assessor for the purposes of the assessment of the claim under this Part unless the claims assessor admits the document to assessment on being satisfied that the probative value of the document substantially outweighs any prejudicial effect it may have on another party.(3) An insurer is not required to provide a copy of documents under this section if the insurer suspects on reasonable grounds that the claim is fraudulent or otherwise not made in good faith.
89C Settlement offers to be made if claim not settled
(1) If the parties participate in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes.(2) A claim cannot be referred to the Authority for assessment under this Part until each party has made the required offer of settlement.(3) An offer of settlement must include a schedule of damages sufficient to explain the manner of calculation of the damages to which the offer relates.(4) A party who has made the required offer of settlement can refer the claim for assessment if more than 14 days have elapsed since the settlement conference concluded and a claims assessor is satisfied that the other party has refused or failed to make the required offer of settlement.
(1) A claims assessor may, in assessing costs on a claim that is the subject of assessment under this Part, impose a costs penalty on a party to the claim if the claims assessor is satisfied that:(a) the party has failed without reasonable excuse to participate in a settlement conference or to make an offer of settlement as required by this Division, or(b) the party has failed without reasonable excuse to provide a copy of a document to other parties before the parties’ settlement conference and the document was subsequently admitted to assessment under this Part despite that failure.(2) The costs penalty that may be imposed on a party is a penalty of up to 25% (imposed by increasing the costs to be awarded against the party, or decreasing the costs to be awarded in favour of the party, by up to 25%). In this section, costs means costs for the provision of legal services (including disbursements).(3) It is a condition of a licence granted under Part 7.1 that the licensed insurer must comply with the requirements of this Division.
89E Certain claims excluded from Division
This Division does not apply to a claim if:(a) the claim is exempt from assessment under this Part pursuant to section 92 (1) (a), or(b) the period within which the insurer was required to make an offer of settlement to the claimant under section 82 has expired and the insurer has failed to make the offer, or(c) the insurer wholly denies liability in respect of the claim, or(d) the claim is in respect of the death of a person, or(e) the claim is in respect of an injury that is not sufficiently recovered within 3 years after the motor accident to enable the claim to be quantified.
Division 2 Assessment of claims
A claim may be referred to the Authority by the claimant or the insurer, or both, for assessment under this Part.
91 Time limits for referring claims
(1) A claim may not be referred for assessment under this Part unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by section 89C.(2) However a claim may be referred for assessment under this Part at any time if:(a) Division 1A (Document exchange and settlement conference before claims assessment) does not apply to the claim (as provided by section 89E), or(b) a provision of Division 1A allows the claim to be referred for assessment under this Part without the parties having participated in a settlement conference or without each party having made the offer of settlement required by section 89C, or(c) the claim is referred for assessment by way of referring the claim for a certificate of exemption from assessment under this Part, or(d) a medical assessor has (under section 132 (3)) declined to make an assessment of the degree of permanent impairment of the injured person.
92 Claims exempt from assessment
(1) A claim is exempt from assessment under this Part if:(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or(b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).
93 Arrangements for assessment
The Principal Claims Assessor is responsible for making arrangements as to the claims assessor who is to assess any particular claim or class of claims that are not exempt from assessment.
(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:(a) the issue of liability for the claim (unless the insurer has accepted liability), and(b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).(2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate.(3) The assessment is to specify an amount of damages.(4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.(5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment.(6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.
94A Claims assessor may assess costs
(1) In making an assessment and specifying damages under section 94 in respect of a claim, a claims assessor may include in the assessment an assessment of the claimant’s costs (including costs for legal services and fees for medico-legal services) in the matter.(2) An assessment of those costs may also be made (whether or not an assessment has been made under subsection (1)) if a court does not determine a matter after the issue of a certificate under section 94 but remits the matter for further assessment under this Part.(3) In making an assessment under this section, a claims assessor:(a) may have regard to the amount of any written offer of settlement made by either party to the matter, and(b) must give effect to any requirement of a court under section 151 (3), and(c) must give effect to any requirement of the regulations under Chapter 6 as to costs that may be included in an assessment or award of damages or fixing maximum fees and costs,(d) must have regard to the matters set out in section 363 of the Legal Profession Act 2004.(4) A claimant or an insurer (or an Australian legal practitioner acting for a claimant or an insurer in respect of the relevant claim) has the same right of appeal against an assessment made under this section as the claimant, insurer or legal practitioner would have under section 384 or 385 of the Legal Profession Act 2004 if the assessment were a determination made by a costs assessor under Part 3.2 of that Act in respect of a bill of costs.
(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment.(2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if:(a) the insurer accepts that liability under the claim, and(b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued.Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued.(2A) The amount of damages payable by an insurer (including any costs assessed as payable by the insurer) must be paid within such period as may be prescribed by the regulations and the regulations may require the payment of interest on so much of the amount payable as is from time to time unpaid after the end of that period. The rate of interest may be set by reference to the rate of interest prescribed for the purposes of section 101 of the Civil Procedure Act 2005 but may not exceed that rate.(3) It is a condition of an insurer’s licence under Part 7.1 that the insurer complies with this section.
96 Special assessments of certain disputes in connection with claims
(1) This section applies to a dispute between a claimant and an insurer as to:(a1) whether for the purposes of section 34 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identity of a motor vehicle, or(a) whether a late claim may be made in accordance with section 73, or(b) whether the claimant has a full and satisfactory explanation for non-compliance with the police accident report requirement under section 70, or(c) whether a claim may be rejected for non-compliance with section 74, or(d) whether the insurer is entitled to delay the making of an offer of settlement under section 82, or(e) whether a payment is required to be made under section 83 (not being a medical dispute that may be referred to a medical assessor under Part 3.4), or(f) whether a payment is required to be made under section 84A (Duty of insurer to make interim payments in case of financial hardship), or(g) whether a request made of a claimant under section 85 (Duty of claimant to co-operate with other party) is reasonable or whether a claimant has a reasonable excuse for failing to comply with that section, or(h) whether the insurer is entitled to give a direction to the claimant under section 85B (Consequences of failure to provide relevant particulars of claim), or(i) whether a claim that is taken to have been withdrawn under section 85B should be reinstated.(2) Any such dispute may be referred at any time to the Authority by the claimant or the insurer, or both, for assessment under this Part.(3) Any such dispute is to be referred to a claims assessor, the dispute is to be assessed and a certificate is to be issued by the claims assessor in accordance with the relevant provisions of this Division relating to the assessment of claims. Division 3 applies to the assessment of the dispute in the same way as it applies to the assessment of a claim.(4) An assessment of a dispute under this section is binding on the parties to the dispute to the extent that it relates to the duties of the parties with respect to the claim under Part 4.3.(5) An assessment of a dispute under this section may include an assessment of the claimant’s costs (including costs for legal services and fees for medico-legal services) in the assessment. Section 94A extends to an assessment of those costs.(6) An assessment of the claimant’s costs on a dispute is binding on the insurer and the insurer must pay to the claimant the amount of the assessed costs.
(1) The regulations may make provision for or with respect to any aspect of procedures to be followed under this Part, including provision for or with respect to:(a) the manner of referring claims or disputes for assessment, and(b) the documentation that is to accompany such a reference of a claim or dispute for assessment, and(c) the manner of presenting documents and information to a claims assessor by the parties, including time limits for the presentation of the documents and information, and(d) the making of assessments, and(e) the manner of specifying an amount of damages, and(f) the extension or abridgment of any period referred to in this Part.(2) (Repealed)
Division 3 Provisions relating to claims assessors
98 Motor Accidents Claims Assessment and Resolution Service
(1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Claims Assessment and Resolution Service.(2) The Service is to consist of claims assessors and such other officers of the Authority as the Authority determines.
99 Appointment of claims assessors
(1) The Authority may appoint as a claims assessor any person who, in the opinion of the Authority, is suitably qualified to be a claims assessor. Such a person may be a member of staff of the Authority.(2) A claims assessor has the functions that are conferred on the claims assessor by or under this Act.(3) The Authority may remove a claims assessor from office at any time.(4) A claims assessor is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Authority may from time to time determine in respect of the claims assessor.
(1) The Minister is to appoint a person who is an Australian lawyer as Principal Claims Assessor.(2) The Principal Claims Assessor has and may exercise all the functions of a claims assessor under this Act.(2A) The Principal Claims Assessor is, in the exercise of his or her functions, subject to the general direction and control of the Chief Executive Officer. However, the provisions of section 105 (2)–(5) apply to the Principal Claims Assessor in the same way as they apply to a claims assessor.(3) The Principal Claims Assessor can delegate to any claims assessor any of the Principal Claims Assessor’s functions under this Act, except this power of delegation.(4) Schedule 3 has effect.
100 Power of claims assessor to require information
(1) A claims assessor may give a direction in writing to a party to an assessment under this Part requiring the party:(a) to produce to the assessor, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the assessor considers relevant to the assessment of the claim concerned, or(b) to furnish specified information to the assessor within a time specified in the direction, being information that the assessor considers relevant to the assessment of the claim concerned, or(c) to give within a time specified in the direction any specified consent, authority or direction that the assessor considers necessary or desirable for the purpose of facilitating the provision by another person of documents or information pursuant to a direction under subsection (1A).(1A) A claims assessor may give a direction in writing to a person who is not a party to an assessment under this Part requiring the person:(a) to produce to the assessor, at a time and place specified in the direction, specified documents in the possession of the person, being documents that the assessor considers relevant to the assessment of the claim concerned, or(b) to furnish specified information to the assessor within a time specified in the direction, being information that the assessor considers relevant to the assessment of the claim concerned.(1B) The Authority must pay the reasonable costs incurred by a person in complying with a direction under subsection (1A).(2) A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.Maximum penalty: 50 penalty units.
(3) If a party to an assessment fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before a court have the document or information admitted in the proceedings unless the court otherwise orders in the special circumstances of the case.(4) The regulations may make provision for or with respect to any of the following matters:(a) exempting specified kinds of documents or information from the operation of this section,(b) specifying cases and circumstances in which a claims assessor is required to exercise the assessor’s powers under this section.
101 Power of claims assessor to provide documents and information to a party
(1) When documents or information are produced or furnished to a claims assessor by a party to an assessment (whether or not pursuant to a requirement under this Act), the assessor may produce or furnish the documents or information to any other party to the assessment.(1A) When documents or information are produced or furnished to a claims assessor by a person who is not a party to an assessment (pursuant to a direction under section 100 (1A)), the assessor may produce or furnish the documents or information to any party to the assessment.(2) The regulations may make provision for or with respect to any of the following matters:(a) exempting specified kinds of documents or information from the operation of this section,(b) specifying cases and circumstances in which a claims assessor is required to exercise the assessor’s powers under subsection (1),(c) specifying circumstances in which documents or information produced or furnished to a claims assessor may not be produced or furnished by the assessor to a party to the assessment.
102 Summons to appear at assessment conference
(1) The Principal Claims Assessor may issue a summons requiring the attendance of a party to an assessment at an assessment conference (as referred to in section 104) on the assessment of a claim if the Principal Claims Assessor is satisfied that the party has failed without reasonable excuse to comply with a request by a claims assessor to attend an assessment conference on the assessment.(2) A person must not fail without reasonable excuse to comply with a summons served on the person under this section.Maximum penalty: 50 penalty units.
103 Protection of claims assessors
(1) A matter or thing done or omitted to be done by a claims assessor in the exercise of the assessor’s functions does not, if the matter or thing was done or omitted in good faith, subject the assessor personally to any action, liability, claim or demand.(1A) However, any such liability attaches to the Crown.(2) A claims assessor is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a claims assessor.
104 Proceedings before claims assessors
(1) In this section:assessment conference means any conference or other proceeding held with or before a claims assessor in connection with an assessment of a claim, and includes any such proceedings at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(2) A person who is a party to an assessment under this Part is entitled to be represented by an Australian legal practitioner or by an agent. The claims assessor may however refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.(3) A party to an assessment at an assessment conference is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at the assessment conference.(4) A claims assessor must take into account any written submission prepared by an Australian legal practitioner acting for a party to the assessment and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at an assessment conference on the assessment of the claim).(5) A claims assessor may, subject to any general directions of the Principal Claims Assessor, hold an assessment conference with all relevant parties in attendance and with relevant experts in attendance, or a separate assessment conference in private with any of them.(6) If the claims assessor is satisfied that sufficient information has been supplied to him or her in connection with an assessment, the assessor may exercise functions under this Act without holding any assessment conference or other formal hearing.(7) In proceedings before a court with respect to a claim (other than proceedings under Part 4.6), evidence of a statement made during an assessment conference is not admissible unless the person who made the statement agrees to the evidence being admitted.Note. See also section 115 with respect to disclosure of result of assessment.
105 Control and direction of claims assessors
(1) A claims assessor is, in the exercise of his or her functions, subject to the general control and direction of the Principal Claims Assessor.(2) However, a claims assessor is not, in his or her capacity as a claims assessor, subject to control and direction by the Principal Claims Assessor, the Authority, any member of staff of any Division of the Government Service or any other person with regard to any of the decisions of the assessor that affect the interests of the parties to an assessment.(3) The Principal Claims Assessor, the Authority, any member of staff of any Division of the Government Service or any other person cannot overrule or interfere with any decision of a claims assessor who is a member of staff that affects the interests of the parties to an assessment in respect of any such assessment.(4) This section does not prevent the making of arrangements for the training of claims assessors, and does not prevent claims assessors from obtaining advice, to ensure consistently correct application of the provisions of this Act and the regulations and of other relevant matters.(5) This section does not affect the exercise of the functions of the Chief Executive Officer under the Public Sector Employment and Management Act 2002 with respect to claims assessors who are members of staff of the Authority.
106 MAA monitoring and oversight
(1) Claims assessments under this Part are subject to relevant provisions of MAA Claims Assessment Guidelines relating to those assessments.(2) The Authority may make arrangements for the provision of training and information to claims assessors to promote accurate and consistent claim assessments under this Part.
Part 4.5 Court proceedings on claims
107 Forum for court proceedings
(cf s 51 MAA)
Proceedings in respect of a claim may be taken in any court of competent jurisdiction.
108 Claims assessment or exemption pre-condition for commencement of court proceedings
(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).(2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim.
109 Time limitations on commencement of court proceedings
(cf s 52 MAA)
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:(a) the date of the motor accident to which the claim relates, or(b) if the claim is made in respect of the death of a person—the date of death,except with the leave of the court in which the proceedings are to be taken.(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.(3) The leave of the court must not be granted unless:(a) the claimant provides a full and satisfactory explanation to the court for the delay, and(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
110 Insurer may require claimant to commence court proceedings
(cf s 52B)
(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.(2) The claimant must comply with the notice within 3 months after its receipt.(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.
111 Matter to be remitted for further claims assessment where significant new evidence produced in court proceedings
(1) This section applies to court proceedings in respect of a claim for which a claims assessor has issued a certificate under section 94.(2) If significant evidence is adduced in the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until:(a) the party who has adduced the evidence has referred the matter for further assessment under Part 4.4, and(b) a claims assessor has issued a further certificate under section 94 in respect of the claim.(3) For the purposes of this section, significant evidence is evidence that the court considers may have materially affected the assessment made by the claims assessor if it had been made available to the claims assessor when the initial claims assessment was made (whether or not it was available at that time).Note. See section 151 for cost penalty where the new evidence was available at the time of the original claims assessment.
(cf s 53 MAA)
(1) For the purposes of:(a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and(b) the third-party policy, if the vehicle concerned is an insured motor vehicle,any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.(2) Nothing in this section is to be taken to imply any ratification by the owner of the motor vehicle of the acts of the person driving the motor vehicle.(3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also:(a) where the owner or driver is dead, with respect to proceedings against the owner or driver’s estate pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and(b) where the owner or driver is dead or cannot be served with process, with respect to:(i) proceedings against the person’s insurer under section 113 or the Nominal Defendant, and(ii) proceedings in which the owner or driver, the owner’s or driver’s estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1946, or as a party to proceedings for recovery of contribution by or against a joint tortfeasor pursuant to Part 3 of that Act.
113 Proceedings against insurer if insured dead or unable to be served
(cf s 54 MAA)
(1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant and a person claiming contribution or indemnity between joint tortfeasors may:(a) take proceedings in respect of the claim against the person’s insurer, and(b) recover in those proceedings an amount for which the claimant or the person claiming contribution or indemnity could have obtained a judgment against the insured person.(2) The fact that a person cannot be served with process is not to be regarded as having been proved unless it is established that all reasonable inquiries have been made in an effort to effect service.
114 Proof of inability to serve process and give notice
(cf s 55 MAA)
The fact that a person cannot be served with process or given notice of a claim may be proved orally or by the affidavit of the person who endeavoured to effect service.
115 Disclosure of offers or assessment by claims assessor
(cf s 56 MAA)
(1) This section applies to:(a) the amount of an offer of settlement under section 82 in connection with a claim, or(b) the amount of an assessment of damages by a claims assessor under Part 4.4.(2) Except as prescribed by the regulations, any such amount is not to be specified in any pleading, affidavit or other document filed in or in connection with court proceedings, and is not to be disclosed to or taken into account by the court, before the court’s determination of the amount of damages in the proceedings.
Part 4.6 Miscellaneous provisions
116 Licensed insurers to deter fraudulent claims
(cf s 64A MAA)
A licensed insurer must take all such steps as may be reasonable to deter and prevent the making of fraudulent claims.
(cf s 65 MAA)
A person who makes a statement knowing that it is false or misleading in a material particular:(a) in an accident notification form under Part 3.2, or(b) in a notice of a claim given to a person or an insurer under Part 4.2, or(c) in the course of the assessment of a claim under Part 4.4, or(d) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident,is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
118 Remedy available where claim fraudulent
(cf s 66 MAA)
(1) This section applies to a claimant or insurer if it is established that, for the purpose of obtaining a financial benefit, the claimant or insurer did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading.(2) If this section applies to a claimant:(a) a person who has a liability in respect of a payment, settlement, compromise or judgment relating to the claim is relieved from that liability to the extent of the financial benefit so obtained by the claimant, and(b) a person who has paid an amount to the claimant in connection with the claim (whether under a settlement, compromise or judgment, or otherwise) is entitled to recover from the claimant the amount of the financial benefit so obtained by the claimant and any costs incurred in connection with the claim.(3) If this section applies to an insurer, the claimant is entitled to recover from the insurer as a debt the amount of the financial benefit so obtained by the insurer and any costs incurred by the claimant in connection with the claim.
119 Joinder of insurer where false claim alleged
(cf s 66A MAA)
(1) If:(a) court proceedings have been commenced against a person in respect of a claim, and(b) the person’s insurer has given the plaintiff particulars alleging that the claim has not been made in good faith,the insurer may apply to the court to be joined as a party to the proceedings.(2) If the court gives the insurer leave to be joined as a party, the insurer may call as a witness any person able to give evidence relating to the occurrence out of which the claim arose or evidence of other matters relating to the claim, including a person who was, at the time of the occurrence, the owner or the driver of the motor vehicle.(3) The insurer may examine the witness as to the occurrence out of which the claim arose and may also, with the leave of the court, examine the witness as to:(a) any other claim in which the witness was involved either as a claimant, a witness or an owner or driver of the motor vehicle, and(b) the credibility of the witness.(4) If the court gives leave to do so, the insurer may:(a) cross-examine the witness, and(b) lead other evidence to refute the evidence given by the witness,as to any or all of the matters as to which the insurer might have examined the witness under subsection (3).(5) Any right to examine or cross-examine a witness arising under this section is additional to and not in diminution of any right to examine or cross-examine the person arising under any other law.(6) This section applies despite anything to the contrary in section 38 of the Evidence Act 1995.(7) Subsections (3)–(6) apply to a licensed insurer as defendant in relation to any claim in the same way as those subsections apply to a licensed insurer who is granted leave to be joined as a party.
(cf s 67 MAA)
(1) Within such period after receiving notice of a claim as the Authority may reasonably require, an insurer must forward to the Authority such details of the claim as the Authority requires.(2) An insurer must provide such additional details to the Authority for inclusion in the register under this section as the Authority may reasonably require from time to time.(3) The Authority and the WorkCover Authority are authorised to exchange information concerning claims under this Act and claims under the Workers Compensation Acts.(3A) The Authority and the Lifetime Care and Support Authority are authorised to exchange information concerning claims under this Act, payments made to or on behalf of participants in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 and the treatment and care needs of those participants.(4) The NSW Self Insurance Corporation constituted under the NSW Self Insurance Corporation Act 2004 is authorised to provide to the Authority any information concerning claims under the Motor Vehicles (Third Party Insurance) Act 1942 and the Transport Accidents Compensation Act 1987.(5) The Authority is to maintain a claims register comprising:(a) details of claims notified by insurers under this Act, and(b) details of claims made on the Nominal Defendant, and(c) details of claims under the Workers Compensation Acts, the Motor Vehicles (Third Party Insurance) Act 1942 or the Transport Accidents Compensation Act 1987 of which the Authority is informed under this Act, and(d) such additional details as the Authority considers appropriate for inclusion in the register, and(e) details of which the Authority is informed under this Act of payments made to or on behalf of participants in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 and of the treatment and care needs of those participants.(6) The claims register is to be open to inspection only by licensed insurers and such other persons or bodies as may be approved by the Authority.(7) Licensed insurers are authorised to exchange information concerning claims notified by them under this Act.(8) In this section:claim includes an accident notification form under Part 3.2.
this Act includes the Motor Accidents Act 1988.
121 Regulation of advertising and other marketing of services
(1) The regulations may make provision for or with respect to regulating (including prohibiting) conduct by any person (including advertising) that relates to:(a) the marketing of services to be provided by an Australian legal practitioner or an agent in connection with claims under this Act, or(b) the use of the expression “green slip” in connection with any commercial services (whether in connection with claims under this Act or the issue of third-party policies under this Act), other than services provided by or on behalf of the Authority or licensed insurers.(2) A regulation may not be made under this section except with the concurrence of the Minister administering the Legal Profession Act 2004.(3) Any such regulation may impose a penalty not exceeding 200 penalty units for any contravention of the regulation.(4) Nothing in this section prevents advertising by a bona fide consumer or community advocacy or advice body.