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Motor accidents bulletin - November 2016

In this edition: we have a new website, Legislative Standing Committee on Law and Justice, update on CTP reform, automated vehicle project, WPI update, health service provider guides review, service provider education, used car safety ratings and news from dispute services.

Memo from the Executive Director

We have come a long way in 13 months as the regulator of compulsory insurance schemes for motor accidents, workers compensation and home building in NSW.

This week, we launched our new website at www.sira.nsw.gov.au with consolidated and updated content from three previously separate websites.

Our establishment has been followed by a process of significant organisational restructuring within each branch, focusing on service delivery, efficiency and flexibility.

The new structure will allow us to continue to deliver our specialist insurance regulatory activities, while recognising synergies, minimising functional duplication, and giving us the flexibility to meet new regulatory demands.

Under the new structure, three branch leaders report to the Chief Executive of the State Insurance Regulatory Authority.

They include:

  • Andrew Nicholls, Executive Director, Motor Accidents Insurance Regulation (MAIR)
  • Carmel Donnelly, Executive Director, Workers and Home Building Compensation Regulation. Bridget Barrett is currently acting in this role
  • Cameron Player, Executive Director, Dispute Resolution Services.

MAIR now has directors of Claims and Claimant Outcomes, Market and Premiums, Policy and Performance, and CTP Reform.

To avoid duplication, certain functions will be shared, including business support services; data, analytics and reporting; compliance, investigations and enforcement; and injury prevention, recovery and rehabilitation.

Recruitment action is being conducted for executive positions first, then non-executive roles.

To be closer to our Department of Finance Services and Innovation colleagues we will also be relocating our offices in early 2017 to the McKell Building at 2-24 Rawson Place, Haymarket (near Central Station).

We will endeavour to keep you informed of any changes that might have an impact on you in the coming months as people, positions and places are confirmed.

Andrew Nicholls
Executive Director
Motor Accidents Insurance Regulation
State Insurance Regulatory Authority

We have a new website!

Finding information about SIRA and our services is now much easier following the launch of our website at www.sira.nsw.gov.au

The website combines information about the three compulsory insurance schemes we regulate: motor accidents, workers compensation and home building.

The Motor Accidents Insurance Regulation section features Green Slips, recovery advice, details of the claims process, and information for professionals.

Stakeholder engagement is important to us, so we’ve included a dedicated area for consultations to seek feedback on regulatory matters. There’s also a resource library for health and legal professionals and insurers.

Much time and effort has gone into creating the new website, and we’re interested to hear what you think of it. Feedback may be sent to digitalcomms@sira.nsw.gov.au

Legislative Standing Committee on Law and Justice

On 19 August 2016, the Legislative Council Standing Committee on Law and Justice published its report on its review of the NSW Motor Accidents Compulsory Third Party (CTP) scheme.

The report makes eight recommendations for possible action by the Government and SIRA.

This is the Standing Committee’s first review of the CTP scheme since the establishment of SIRA. The Standing Committee has monitored and reviewed the CTP scheme and the exercise of the functions of the former Motor Accidents Authority at least once every two years since 1999.

The major themes of the review included the emerging trend of fraud, exaggeration and claims harvesting; the resulting significant increase in minor severity legally represented claims; rising CTP premiums; and ride-sharing operations.

The Committee noted that it was pleasing that the Government had already implemented a range of measures and initiatives to address the issue of fraud, including the establishment of a CTP Fraud Taskforce.

Update: Reform of the NSW Motor Accidents CTP scheme

On 29 June, the Minister for Innovation and Better Regulation, the Hon Victor Dominello MP, announced the Government’s preferred option for the reform of the NSW Motor Accidents CTP scheme.

A hybrid scheme will provide for defined benefits available to all people injured in a motor vehicle accident, regardless of fault, and modified common law damages (which are fault-based) for the more seriously injured.

Stakeholder consultation, conducted by an expert reference panel chaired by former NSW Government Minister John Della Bosca and Deputy Chair of the State Insurance Regulatory Authority Board Nancy Milne, has concluded and the Government is considering the feedback and options.

More information on the reforms is available at greenslipreforms.nsw.gov.au

National Transport Commission project on automated vehicles

The National Transport Commission (NTC) is in the process of investigating the legal barriers to automated vehicles. Its aim is to develop a set of recommendations to support a nationally consistent regulatory framework for automated vehicles.

SIRA has provided advice to NTC in relation to CTP scheme policy and automated vehicles.

An NTC discussion paper and further details on its project on regulatory options for automated vehicles is available on its website.

SIRA has also been leading ongoing national discussions in relation to autonomous vehicles and CTP insurance through the Heads of Australian and New Zealand Motor Accidents Insurance Schemes.

Budget Estimates Committee Hearings 2016

The Minister for Innovation and Better Regulation, the Hon Victor Dominello MP, appeared before the NSW legislative Council’s General Purpose Standing Committee No. 6 on 1 September 2016. The Minister answered a range of questions pertaining to his portfolio responsibilities, including the Government’s proposed reforms to the CTP scheme.

A transcript of the Minister’s Committee hearing is available on the NSW Parliament website.

Injury management and prevention updates

Whole person impairment update

The following WPI Guidance Note was re-published for use by Medical Assessors from June 2016:

Guidance Note 13 - Assessment of multiple scarring.

In addition, two case studies are provided in the Appendix of this Guidance note as follows:

  1. Multiple scarring – right upper limb and left lower limb (update)
  2. Multiple scarring – right lower limb. A new case study to illustrate assessment of multiple scarring that falls in the 3-4% range of impairment

For further details visit the SIRA website.

WPI enquiries

The WPI email enquiry service:

  • helps stakeholders understand the methodology of WPI assessment and
  • helps with the interpretation of the guidelines that apply to WPI assessment: 
    • AMA 4 Guides to the Evaluation of Permanent Impairment (4th Edition) and
    • MAA Permanent Impairment Guidelines, 1 October 2007.

Should you wish to make an enquiry, email WPI Enquiry.

Here are some recent enquiries received:

Question: How is pain assessed in the NSW CTP scheme?

Answer: The Permanent Impairment Guidelines, 2007, is definitive in relation to the assessment of pain. Clause 1.40 p7 of the Guidelines instructs that assessors should make no separate allowance for permanent impairment due to pain and that Chapter 15 of the AMA 4 Guides should not be used. However, each chapter of the AMA 4 Guides includes an allowance for associated pain management.

Question: My enquiry relates to a claimant who has a non-functioning kidney that has not been removed. Would this be assessed as 0% as the kidney remains or would the claimant be assessed automatically as 10% impairment for loss of an essential organ, as the loss of one kidney is assessed as 10% WPI?

Answer: The AMA 4 Guides p250 Criteria for Evaluating Impairment of the Upper Urinary Tract is clear in the second paragraph, “The individual with one kidney, regardless of cause, should be considered to have a 10% WPI because of the loss of the essential organ”.

Case studies are also available on the SIRA website. They demonstrate how SIRA’s Permanent Impairment Guidelines and the AMA’s Guide to the Evaluation of Permanent Impairment (4th Edition) are applied to determine the degree of permanent impairment of injuries sustained in a motor accident.

Health service provider guides review

SIRA is reviewing its service provider guides for communication between health service providers and CTP insurers.

A new motor accidents guide for allied health practitioners will provide essential information for all allied health practitioners.

In addition, four new forms for treatment services will include:

  • Allied Health Recovery Request (AHRR) – for single service treatment requests (shared with workers compensation claims)
  • Rehabilitation Services – to report on an initial needs assessment, case management, workplace rehabilitation or a review of the current treatment plan and request approval to fund recommended services
  • Attendant Care – to request paid care services required to assist the injured person's recovery
  • Equipment Request – for equipment required to assist the injured person’s recovery.

CTP insurers, peak associations representing allied health practitioners working with CTP claimants, and allied health practitioners on the SIRA workshop attendance register, will be advised when these are made available.

Email us for more information.

Research

Over 230 academics, clinicians and CTP specialists attended the John Walsh Centre for Rehabilitation Research forum, Rehabilitation and recovery after injury, on 29 August 2016.

The keynote speakers, Professors Glenn Pransky and Mick Sullivan, brought a wealth of information and insight about recovery in compensation systems and lessons from the North American experience.

The annual forum provides an excellent opportunity for CTP professionals to come together and learn from the evidence and experts in the field.

Service provider education

SIRA continues to provide training throughout the year to help health service providers better understand how to work in the NSW Motor Accidents CTP scheme. It also offers workshops for insurers and legal professionals to understand whole person impairment assessment.

Details are available on the SIRA website.

Used car safety ratings – a step towards zero

SIRA supports the release of the 2016-17 update of the Used Car Safety Ratings as part of its road safety and injury prevention strategy.

When buying a used car, consumers may not think about whether the vehicle offers good protection from injury in the event of a crash. In many cases, making a smarter safety choice does not cost more money.

The advice in the User Car Safety Ratings is based on data collected from car crashes in Australia and New Zealand where someone was killed or seriously injured. Over seven million police-reported crashes were analysed in the latest ratings.

The ratings reflect the relative safety of vehicles in preventing severe injury to people involved in crashes for crashworthiness and protection for other road users.

If all vehicles had the latest vehicle safety features, the number of fatal and disabling injuries could be significantly reduced.

Through SIRA’s engagement with Transport for NSW, it is committed to making the vehicle fleet safer for all road users and getting NSW TOWARDS ZERO deaths and serious injuries on the road.

News from Dispute Services

Court cases/decisions of interest

Citation: IAG Limited Trading as NRMA Insurance v Ozdemir & Ors [2016] NSWSC 756

  • Hearing date: 11 May 2016
  • Decision date: 10 June 2016
  • Court: Supreme Court of NSW
  • Before: Wilson J

Decision:

  1. The summons is dismissed.
  2. Costs on an ordinary basis in favour of the first defendant, subject to any submission either party seeks to make to the Court.
  3. Any submission in regard to costs is to be filed with the Court and served upon the opposing party, by close of business on 17 June 2016.
  4. Any submission in reply to be filed and served by 24 June 2016.
  5. Any further application with respect to costs to be determined on the papers.

Citation: Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138

  • Hearing date: 9 May 2016
  • Decision date: 22 June 2016
  • Court: NSW Court of Appeal
  • Before: Basten JA, Ward JA & Gleeson JA

Decision:

  1. Appeal allowed with costs.
  2. Set aside the judgment and orders made by Campbell J on 1 September 2015 and, in lieu thereof, dismiss with costs the plaintiff’s summons seeking judicial review.
  3. Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

Citation: Allianz Australia Insurance Limited v Sleiman [2016] NSWSC 851

  • Hearing date: 10 June 2016
  • Decision date: 23 June 2016
  • Court: Supreme Court of NSW
  • Before: Schmidt J

Decision:

  1. The assessor’s decision is set aside.
  2. The matter is remitted to the State Insurance Regulatory Authority to be dealt with according to law, by a different claims assessor.
  3. Unless the parties approach to be heard on costs, the costs order will be an order in favour of Allianz.

Citation: Jubb v Insurance Australia Ltd [2016] NSWCA 153

  • Hearing date: 27 May 2016
  • Decision date: 4 July 2016
  • Court: Supreme Court of NSW
  • Before: Meagher JA, Gleeson JA & Payne JA

Decision:

  1. Grant leave to file a further amended notice of appeal deleting ground
  2. Direct the appellant to file a further amended notice of appeal within 14 days.
  3. Appeal dismissed.
  4. Appellant to pay the first respondent’s costs.

Citation: Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

  • Hearing date: 3 June 2016
  • Decision date: 5 July 2016
  • Court: NSW Court of Appeal
  • Before: Basten JA, Leeming JA & Simpson JA

Decision:

  1. Dismiss the appeal.
  2. Order that the appellant pay the costs of the first respondent (Trent Nathan Milton).
  3. Order that the appellant pay the costs of the second respondent (the Authority) and the third respondents (the members of the Review Panel) on a submitting basis.
  4. Direct that the appellant’s solicitor file by 19 July 2016 any written submissions with respect to the matters raised in [70] of the judgment of Leeming and Simpson JJA, failing which proposed order (5) will be made.
  5. Unless the appellant’s solicitor files written submissions as provided in order (4), order that the appellant’s solicitor 
    a) not charge his client with any of the costs and disbursements associated with preparing the Blue appeal books;
    b) to the extent that such costs or disbursements have already been paid or might be paid in the future, reimburse the client for that amount; and
    c) give the client written notification of the terms of this order.
    6. Direct that order (5) not be entered until directed by the presiding judge.

Citation: AEW v BW [2016] NSWSC 905

  • Hearing date: 16 & 25 May 2016
  • Decision date: 14 July 2016
  • Court: NSW Court of Appeal, Equity – Protective List
  • Before: Lindsay J

Decision:

Orders made for management of the protected estate of a defendant by the plaintiff on terms that require consideration of: (a) whether a purported settlement of a claim for compensation made, on behalf of the defendant, under the Motor Accidents Compensation Act 1999 NSW should be approved as in the interests, and for the benefit, of the protected person; (b) whether costs and disbursements deducted from settlement moneys by the defendant’s compensation solicitors should be approved as fair and reasonable; and (c) whether any (and, if so, what) steps should be taken on behalf of the defendant consequentially upon the answers to these questions.

Citation: Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192

  • Hearing date: 27 July 2016
  • Decision date: 4 August 2016\
  • Court: NSW Court of Appeal
  • Before: McColl JA, Gleeson JA & Leeming JA

Decision:

In 2016/17278:

  1. Amend the parties so that the first defendant is Perilya Broken Hill Ltd.
  2. Dismiss the summons filed 18 January 2016 with costs.

In 2016/101717:

  1. Dismiss the summons seeking leave to appeal with costs.

Citation: Insurance Australia Limited t/as NRMA Insurance v Asaner [2016] NSWSC 1078

  • Hearing date: 5 August 2016
  • Decision date: 5 August 2016
  • Court: Supreme Court of NSW
  • Before: Campbell J

Decision:

  1. Set aside the decision of the third defendant made on 28th August 2015 refusing the plaintiff’s application for referral for further medical assessment under s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW).
  2. Remit the matter to the second defendant for the determination of the application by its proper.
  3. The first defendant is to pay the plaintiff’s costs.

Citation: Layt v Allianz Australia Insurance Ltd [2016] NSWSC 1107

  • Hearing date: 12 August 2016
  • Decision date: 12 August 2016
  • Court: Supreme Court of NSW
  • Before: Garling J

Decision:

  1. Amended Summons filed 17 June 2016 dismissed.
  2. Plaintiff to pay the defendants’ costs.

Citation: IAG Limited t/as NRMA Insurance v Rahif Adhami [2016] NSWSC 1117
Hearing date: 17 August 2016
Decision date: 17 August 2016
Court: Supreme Court of NSW
Before: Harrison AsJ
Decision:

The Court declares that:

  1. The decision of the claims assessor of the State Insurance Regulatory Authority of New South Wales in matter number 2015/12/0946 made on 7 October 2015 is vitiated by jurisdictional error.
    The Court makes an order:
  2. In the nature of certiorari removing into the Court the decision of the claims assessor of the State Insurance Regulatory Authority of New South Wales in matter number 2015/12/0946 made on 7 October 2015 and quashing that decision.The Court further orders that:
  3. Matter number 2015/12/0946 is remitted to the State Insurance Regulatory Authority of New South Wales to be determined in accordance with law.
  4. The first defendant is to pay the plaintiff’s costs on an ordinary basis as agreed or assessed.

Citation: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229
Hearing date: 25 May 2016
Decision date: 25 August 2016
Court: NSW Court of Appeal
Before: Meagher JA, Simpson JA & Payne JA
Decision: Appeal dismissed with costs.

Citation: Dominice v Allianz Insurance [2016] NSWSC 1241
Hearing date: 31 August 2016
Decision date: 31 August 2016
Court: Supreme Court of NSW
Before: Fagan J
Decision:

  1. The summons is dismissed.
  2. The plaintiff is to pay the defendants costs.