Motor accidents disputes - 1999 scheme
Disputes are assigned to the most appropriate dispute resolution pathway.
- Assessment conference
- Agreements and decisions
When to lodge an application for damages assessment
The claimant must first lodge a claim with the insurer within 6 months of the date of accident. If the claim is made late, the insurer can reject it and the claim can only be made if the insurer accepts the claimant’s explanation for the delay, or a member finds that the claimant has provided a full and satisfactory explanation for the delay (see above “Special Assessment”).
If a claim can be made and there is a dispute over the claim, an application for damages assessment at the Commission may be made by the claimant, the insurer or both.
There are a number of circumstances where a claim may be exempt from general assessment at the Commission. If any of these circumstances are met, the claim will not be assessed at the Commission and a member will issue a certificate for the claimant to pursue proceedings in court.
Some claims are automatically exempt from damages assessments by the Commission because the Motor Accidents Compensation Act 1999 excludes them. These are claims:
- in which liability is expressly denied by the insurer because the fault of its insured owner or driver of the motor vehicle is denied
- in which the claimant is a person under legal incapacity
- involving an action under the Compensation to Relatives Act 1897 (NSW) brought on behalf of a person under legal incapacity
- made against a person other than an insurer
- in which an allegation of fraud has been made against the claimant by the insurer
- where the insurer has declined to indemnify the owner or driver of the at-fault vehicle under their third party policy.
Some damages claims are not automatically exempt from assessment but may not be suitable for assessment. Such claims may be granted an exemption. In these claims, a Member makes a preliminary assessment of the claim and determines, with the approval of the Principal Registrar, that the claim is not suitable for assessment in the Commission.
In determining whether a claim is not suitable for a claims assessment, the Member and the Principal Registrar will have regard to the objects of the Motor Accidents Compensation Act 1999, the objects of the Personal Injuries Commission Act 2020, and all the circumstances of the claim. This may include, but is not limited to, whether:
- the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim
- the claim involves issues of liability, including issues of contributory negligence, fault and/or causation
- a claimant or a witness, considered by the claims assessor to be a material witness, resides outside New South Wales, or
- a claimant or insurer seeks to proceed against one or more non-CTP parties and/or the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries or loss or damage sustained in the accident, giving rise to the claim.
If you are seeking an exemption for a compensation to relatives claim please use the appropriate link in the online portal.
How to lodge an application for a claim for damages assessment or exemption from assessment
Applications for a claim for damages assessments or exemption from assessment should be lodged via the Commission’s online portal.
If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission.
An application must include details of:
- information on how the time limits are satisfied, such as a period of 28 days has elapsed after each party has made an offer of settlement (these are different for pre 1 October 2008 and post 1 October 2008).
- whether the claim is suitable for assessment, and if not why not (for example, the claimant is exempt from assessment)
- whether the matter is ready for assessment
- whether there are liability issues
- how the claimant is entitled to non-economic loss.
How to respond to an application
The respondent will receive a sealed copy of the application from the applicant and must respond within 20 working days from that date.
The response should be lodged through the Commission’s online lodgement portal. If a self-represented respondent is unable to use the portal to lodge their response, they may contact the Commission to obtain a PDF copy of the form or have a copy mailed to them. These forms and the accompanying documents may be lodged via email or post, or in person at the Commission.
All relevant information that has not been included by the applicant should be attached by the respondent at the time the response is lodged. Respondents may not be able to submit further information at a later time.
The member may determine the claims assessment procedure, which may include undertaking the assessment on the documents provided (on the papers) or via teleconference, videoconference or face-to-face meeting, as appropriate. The member conducting the assessment is not bound by the rules of evidence and may enquire into any matter relevant to the issues in dispute in such manner as they think fit.
What to expect at a teleconference
The member conducting the teleconference will have read all the information on which each party relies.
The teleconference is usually attended by:
- the claimant’s legal representative
- the insurer
- the insurer’s legal representative
- an interpreter, if needed.
The member will decide how the matter should proceed. It may be appropriate to issue directions to provide further information and documentation, schedule another teleconference, or allow the dispute to proceed to the next stage of the resolution process (an assessment conference).
Parties may not contact the member directly. All correspondence must be conducted via the Portal or through the Commission.
Preparing for a teleconference
The parties involved in a teleconference will usually choose to participate from a quiet location where there are no distractions or background noise. Claimants can participate from their home or they may prefer to attend their legal representative’s office to participate.
Only documents that have previously been lodged with the dispute resolution application, or the reply to the dispute resolution application, can be referred to during the teleconference, unless the Commission allows the addition of further documents.
What to expect at an assessment conference
The assessment conference is usually held at the Commission’s premises in Sydney, or at one of the Commission’s regional locations. In some circumstances a videoconference may be used instead of a face-to-face meeting. The member who conducted the teleconference will usually also hold the assessment conference.
The assessment conference may be attended by:
- the claimant
- the claimant’s legal representative
- the insurer
- the insurer’s legal representative
- an interpreter, if needed.
The member will explain the process, assist the parties to identify the issues in dispute, then attempt to bring the parties to an agreement about some, or all, of the issues. The parties may be allowed some time to discuss the issue between themselves.
As the member is independent and impartial, they will not talk to any party unless all other parties are present.
If the dispute is resolved at this stage, the proceedings will end, the Commission will generally issue a Certificate of Determination, and the Commission's file will be closed.
If the member forms the view that the dispute is not capable of being resolved by agreement of the parties, the member will proceed with the assessment of the claim.
The member will hear evidence from the claimant and any witnesses. The member and the representatives from both parties may ask the claimant and any witnesses questions about the motor accident and injuries.
The member will also review the information and documentation provided by the parties and discuss the issues about the claim or the dispute. The claimant may be asked to attend another assessment conference or provide additional information or documentation about the claim if the member thinks it necessary.
In conducting a claims assessment, the member must make a determination on the issue of liability and specify the amount of damages for the claim. In doing so, they should have regard to information that is conveniently available to them.
The member may include an assessment of the claimant’s costs in their decision.
What happens after the assessment?
The member will consider all the available documentation and information, including any information provided by the claimant or any witnesses at the assessment conference hearing (if asked to attend one).
The member will provide the claimant (or their lawyer, if they have one) with a certificate setting out the decision and the supporting reasons. In most cases the certificate and reasons will be sent within three weeks after the assessment conference.
Is the member’s decision binding?
Assessments about the amount of compensation to be paid in relation to a claim can be binding on the insurer. If there is no dispute about liability for the claim and the claimant accepts the member’s assessment, the insurer must pay the amount of compensation assessed. If there is a dispute about liability for the claim, the member will still assess the claim, but the assessment is not binding and both the claimant and the insurer can reject the assessment.
The claimant must decide whether to accept or reject the member’s assessment. To accept the assessment the claimant (or their lawyer) must notify the insurer in writing within 21 calendar days of the certificate being issued, or the claimant will be taken to have rejected it and the insurer will have no obligation to pay the amount assessed. If the claimant rejects the assessment, or is taken to have rejected it, the claimant may need to go to Court if they want to pursue their claim.
How long will an assessment take?
The Commission aims to finalise most assessments within five to six months from the time an application is received for assessment. The process may take longer if the claimant or the insurer has not provided all relevant documentation and information.
There are several steps in the process and at each step both the claimant (or their lawyer) and the insurer have the opportunity to comment and/or provide information.
Agreements and decisions
When an agreement is reached between parties
The parties may come to an agreement about a dispute at any time before the dispute is determined by a member. Parties may file consent order so the Commission can endorse the terms of the resolution and issue a formal record of the outcome.
When a settlement is reached at the teleconference
If a settlement is reached at the teleconference, the member will discuss the orders to be made with the parties and prepare a Certificate of Determination setting out the orders the parties consented to.
When the dispute resolution application is discontinued
When dispute resolution proceedings are discontinued, the Commission will dismiss the application and close the file. This means no further action will be taken in the proceedings. A party may wish to bring fresh proceedings, for example, when further relevant evidence is obtained.
When a decision is made by a member
If no agreement is reached between the parties, a member will determine the dispute and the Commission will issue a Certificate of Determination to all parties setting out the member’s decision and reasons for their decision.
The Commission is committed to the publication of its decisions. To find a decision made by the Commission, please follow this link.