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Legal costs in claims for CTP statutory benefits

This information describes how legal costs can be charged for statutory benefit claims, effective from 1 December 2017.

1. What has changed in the CTP scheme?

The Motor Accident Injuries Act 2017 (the Act) commenced on 1 December 2017, marking the beginning of a new compulsory third party (CTP) Green Slip scheme designed to better support people injured in a motor vehicle accident in NSW on and after 1 December 2017. The Act is supported by the Motor Accident Injuries Regulation 2017 (the Regulation) and the Motor Accident Guidelines.

The new scheme introduces a new statutory benefits regime and a modified common law damages regime.

The new scheme is not retrospective. Anyone injured in a motor accident before 1 December 2017 will continue to claim in accordance with the legislation that applied at the time of the accident.

Under the new scheme most injured people, regardless of fault, are entitled to claim statutory benefits for up to 26 weeks. This is made up of defined benefits for weekly income payments, medical and treatment costs, and commercial attendant care. Exceptions to this general rule are listed under Division 3.5 of the Act (e.g. where the injured driver has committed a serious driving offence, or where workers compensation is available).

People with ‘minor injuries’ as defined in the Act (that is, soft tissue and/or minor psychological or psychiatric injuries) or those who were wholly or mostly at fault in the accident are limited to 26 weeks of weekly payments of statutory benefits.

The maximum weekly payment period for injured people whose injury is not minor and who were not the person mostly at fault in the accident, is up to 104 weeks unless the injured person has a pending damages claim.

Treatment benefits and commercial attendant care are paid as statutory benefits and are not payable in any lump sum compensation in personal injury damages claims.

A claim may still be made for damages but these are now limited to damages for economic loss and non-economic loss. No damages may be awarded to an injured person if the person’s injuries resulting from the motor accident were minor injuries.

An injured person who has a pending claim for damages may claim statutory benefits for loss of earnings or earning capacity up to 156 weeks if the degree of permanent impairment as a result of the injury is not greater than 10%, and up to 260 weeks if the person has a pending damages claim and the degree of permanent impairment as a result of the injury is greater than 10%.

This means there are different CTP schemes operating at the same time, and that will continue until all claims under previous Acts are finalised.

2. What can I charge for legal services in connection with a statutory benefits claim?

Part 8 of the Act deals with costs and fees.

Section 8.3 of the Act limits the matters for which an Australian legal practitioner is entitled to be paid or recover for a legal service in relation to CTP claims. It also allows Regulations to be made that limit the legal services for which a legal practitioner is entitled to be paid, and to set maximum costs for those legal services.

Part 6 of, and Schedule 1 to, the Regulation provide, among other things, for the maximum legal costs in connection with statutory benefit claims and disputes arising in respect of those claims. The Regulations govern what legal fees can be charged in connection with legal work performed and do not prohibit the provision of legal advice and/or assistance nor pro-bono arrangements.

Section 8.10 of the Act provides for the recovery of costs and expenses in relation to claims for statutory benefits. Where costs are payable in a statutory benefit claim, the insurer is responsible for payment of those costs. A claimant for statutory benefits is only entitled to recover reasonable and necessary legal costs if payment of those costs is permitted by the Regulations or the Dispute Resolution Service.

The Dispute Resolution Service may permit the payment of costs in special circumstances including where the claimant is under a legal disability, an infant, or in exceptional circumstances that justify payment of legal costs incurred by the claimant.

Clause 23 of the Regulation provides that no costs are payable for legal services provided to a claimant or to an insurer in connection with an application for internal review by the insurer under Part 7 of the Act.

3. Maximum costs for legal services

Except as otherwise provided in Part 6 of the Regulation, Schedule 1 to the Regulation sets out the maximum costs for legal services. Schedule 2 of the Regulation sets out the maximum fees for medico-legal services. From 1 October 2018, the maximum legal costs and medico-legal fees will be indexed each year in line with inflation.

The maximum costs that apply from 1 October 2018 – 30 September 2019 for statutory benefits claims are as follows:

Merit review, medical assessment and miscellaneous claims assessment

From 1 October 2018, the maximum costs for legal services provided in connection with a merit review involving a regulated review matter, medical dispute, or miscellaneous claims assessment involving a regulated miscellaneous claims assessment matter is $1,633 (to a maximum of $6,124 per claim).

The maximum costs for legal services provided in connection with a further medical assessment or with a review of a decision about any merit review matter or medical assessment by a review panel (including in connection with the application for referral of the decision or medical assessment to the review panel) are as follows:

(a)  if the proper officer of the Authority approves the application for referral—$1,633

(b)  if the proper officer of the Authority refuses to approve the application:

(i)  for legal services provided to the applicant—nil,

(ii)  for legal services provided to the respondent—$816.

4. What can I charge for?

The items for which costs can be charged are outlined below:

Regulated merit review matters

Dispute types subject to costsCommentary Act Regulation Internal review required?1
Whether the insurer is entitled to refuse payment of statutory benefits due to death Effect of death on entitlement to statutory Section 3.34
Schedule 2, Clause 1(s)
Schedule 1, Part 1, Clause 1(2)(a)

Yes

Whether the insurer is entitled to refuse payment of statutory benefits where workers compensation payable No statutory benefits if workers compensation payable Section 3.35 Schedule 2, Clause 1(s) Schedule 1, Part 1, Clause 1(2)(b) Yes
Whether the insurer is entitled to refuse payment of statutory benefits where the at-fault driver or owner’s vehicle is uninsured No statutory benefits for at-fault driver or owner if vehicle uninsured Section 3.36 Schedule 2, Clause 1(s) Schedule 1, Part 1, Clause 1(2)(c) Yes
Whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 Limitation on statutory benefits in relation to certain mental harm

Section 3.39 Schedule 2, Clause 1(t)

Schedule 1, Part 1, Clause 1(2)(d)

Yes

Whether the insurer is entitled to refuse payment of statutory benefits where recovery of damages has occurred

Effect of recovery of damages on statutory benefits

Section 3.40 Schedule 2, Clause 1(t) Schedule 1, Part 1, Clause 1(2)(e) Yes
Whether the insurer is entitled to delay the making of an offer of settlement Duty of insurer to make an offer of settlement on claim for damages Section 6.22 Schedule 2, Clause 1(w) Schedule 1, Part 1, Clause 1(2)(f) Yes
Whether the injured person has reasonably requested or has an excuse for failing to comply with the duty to cooperate Duty of claimant to cooperate with other party Section 6.24 Schedule 2, Clause 1(x) Schedule 1, Part 1, Clause 1(2)(g) No
Whether the injured person has provided relevant particulars about a claim Duty of claimant to provide relevant particulars of claim for damages Section 6.25 Schedule 2, Clause 1(y) Schedule 1, Part 1, Clause 1(2)(h) No
Whether the insurer is entitled to give a direction to the injured person Consequences for failure to provide particulars for claim for damages Section 6.26 Schedule 2, clause 1(z) Schedule 1, Part 1, Clause 1(2)(i) No

Note 1. Regulation, clauses 10-11

Regulated miscellaneous claims assessment matters

Dispute types subject to costsCommentary Act Regulation Internal review required?1
Whether (for the purposes of a Nominal defendant claim where vehicle not identified) due search and enquiry has taken place to establish the identity of a motor vehicle Claim against the Nominal defendant where vehicle not identified Section 2.30 Schedule 2, Clause 3(a) Schedule 1, Part 1, Clause 3(2)(a) Yes
Whether the Nominal defendant has lost the right to reject a claim for failure to make due search and inquiry Rejection of claim for failure to make due inquiry and search to establish identity of vehicle Section 2.31 Schedule 2, Clause 3(aa) Schedule 1, Part 1, Clause 3(2)(b) Yes
Whether the death of, or injury to, a person has resulted from a motor accident in NSW for the purposes of determining whether statutory benefits are payable Statutory benefits payable in respect of death or injury resulting from motor vehicle Section 3.1 Schedule 2, Clause 3(b) Schedule 1, Part 1, Clause 3(2)(c) Yes
Whether the motor accident concerned was caused by the fault of another person for the purposes of cessation of weekly payments after 26 weeks Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks Section 3.11 Schedule 2, Clause 3(d) Schedule 1, Part 1, Clause 3(2)(d) Yes
Whether the motor accident was caused mostly by the fault of the injured person for the purposes of cessation of statutory benefits after 26 weeks Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries Section 3.28 Schedule 2, Clause 3(e) Schedule 1, Part 1, Clause 3(2)(e) Yes
Whether the motor accident was caused mostly by the fault of the injured person for the purposes of determining whether statutory benefits are payable to the driver or owner of an uninsured vehicle No statutory benefits for at-fault driver or owner if vehicle uninsured Section 3.36 Schedule 2, Clause 3(e) Schedule 1, Part 1, Clause 3(2)(e) Yes
Whether the insurer is entitled to refuse payment of statutory benefits due to a serious driving offence No statutory benefits payable to injured person who commits serious driving offence Section 3.37 Schedule 2, Clause 3(f) Schedule 1, Part 1, Clause 3(2)(f) Yes
Whether the insurer is entitled to reduce statutory benefits payable after 6 months for contributory negligence Reduction of weekly statutory benefits after 6 months for contributory negligence Section 3.38 Schedule 2, Clause 3(g) Schedule 1, Part 1, Clause 3(2)(g) Yes
Whether for the purposes of Part 6 of the Act, the injured person has given a full and satisfactory explanation for non-compliance with a duty or for delay General duties and duties when dealing with claims and preliminary matters relating to claims, and times for making claims or commencing proceedings Part 6 Schedule 2, Clause 3(h) Schedule 1, Part 1, Clause 3(2)(h) Yes
Whether for the purposes of section 6.9 or 6.10 of the Act, verification requirements have been complied with for a claim for statutory benefits or a claim of damages Section 6.9 - Compliance with verification requirements--claim for statutory benefitsSection 6.10 - Compliance with verification requirements--claim for damages Section 6.9, Section 6.10 Schedule 2, Clause 3(i) Schedule 1, Part 1, Clause 3(2)(i) Yes
Whether notice of a claim has been given in accordance with section 6.12 of the Act. Notice of claim for statutory benefits or damages Section 6.12

Schedule 2, Clause 3(j)

Schedule 1, Part 1, Clause 3(2)(j) Yes
Whether the insurer is entitled to refuse weekly payments in accordance with section 6.13 of the Act Time for making of claims for statutory benefits Section 6.13
Schedule 2, Clause 3(k)
Schedule 1, Part 1, Clause 3(2)(k) Yes
Whether a late claim may be made in accordance with section 6.14 of the Act Time for making claims of damages Section 6.14
Schedule 2, Clause 3(l)
Schedule 1, Part 1, Clause 3(2)(l) Yes

Note 1. Regulation, clauses 10-11

Medical disputes

Dispute types subject to costsCommentary Act referenceRegulation referenceInternal review required?1
The degree of permanent impairment that has resulted from an injury caused by a motor accident Percentage of permanent impairment Section 7.21
Schedule 2, Clause 2(a)
Schedule 1, Part 1 Clause 2 Yes
Whether treatment and care is reasonable and necessary Entitlement to statutory benefits for treatment and care Section 3.24
Schedule 2, Clause 2(b)
Schedule 1, Part 1 Clause 2 Yes
Whether treatment or care provided will improve the recovery of the injured person Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries Section 3.28 Schedule 2, Clause 2(c) Schedule 1, Part 1 Clause 2 Yes
The degree of permanent impairment of the earning capacity of an injured person that has resulted from an injury caused by a motor accident Impairment of earning capacity Schedule 2, Clause 2(d) Schedule 1, Part 1 Clause 2 Yes
Whether an injury is a minor injury ‘Minor injury’ as defined in section 1.6 of the Act Schedule 2, Clause 2(e) Schedule 1, Part 1 Clause 2 Yes

Note 1. Regulation, clauses 10-11

The Authority may recover from a claimant all or part of the costs reasonably incurred as a consequence of a non-attendance at, or cancellation of, a medical assessment within 72 hours of a scheduled medical assessment (section 7.28(1) and (3)(d) of the Act).

5. What can’t I charge for?

There are some disputes for which costs cannot be recovered. These are listed below.

No costs are payable for legal services provided to an injured person or to an insurer in connection with an Application for Internal Review by the Insurer.

Matters not subject to costs

Matters not subject to costsCommentary – examples Act Regulation Internal review required?1
The amount of statutory benefits that are payable Funeral expenses Section 3.4
Schedule 2, Clause 1(a)
Not authorised by Schedule 1 Yes
The amount of statutory benefits that are payable Weekly payments
Pre-accident weekly earning, post-accident earning capacity and calculations
Division 3.3;
Schedule 2, Clause 1(a)
Not authorised by Schedule 1 Yes
Which insurer is the insurer of the ‘at-fault’ motor vehicle Determination of relevant insurer Section 3.3
Schedule 2, Part 3(c)
Not authorised by Schedule 1 No
Whether the injured person’s injury is the subject of a pending claim for damages Cessation of weekly payments to injured persons not most at fault and not with minor injuries after maximum weekly payment period Section 3.12;
Schedule 2, Clause 1(b)
Not authorised by Schedule 1

Yes

Whether a motor accident that caused the injury has happened before the person has reached retirement age Termination of weekly payments on retiring age Section 3.13;
Schedule 2, Clause 1(c)
Not authorised by Schedule 1 Yes
Suspension of weekly payments of statutory benefits for failure to provide authorisations or medical evidence Obligation to provide authorisations and medical evidence Section 3.14;
Schedule 2, Clause 1(d)
Not authorised by Schedule 1 Yes
Suspension of weekly payments of statutory benefits for failure to provide evidence as to fitness for work Requirement for evidence as to fitness for work (e.g. whether special reasons >28 days should be accepted) Section 3.15;
Schedule 2, Clause 1(d)
Not authorised by Schedule 1 Yes
Suspension of weekly payments of statutory benefits for failure to comply with insurer requirement to undertake reasonable and necessary treatment Reasonable treatment, rehabilitation and vocational assessment Section 3.17;
Schedule 2, Clause 1(d)
Not authorised by Schedule 1 Yes
Whether the insurer has given the required period of notice before discontinuing or reducing weekly payments Notice required before discontinuing or reducing weekly payments Section 3.19;
Schedule 2, Clause 1(e)
Not authorised by Schedule 1 Yes
Whether statutory benefits are recoverable by the injured person due to the insurer committing a notification offence under section 3.19(1), and the amount of statutory benefits so recoverable Recovery of statutory benefits where insurer has reduced or discontinued payments without proper notice Section 3.19(3);
Schedule 2, Clause 1(f)
Not authorised by Schedule 1 Yes
Whether the injured person is or has been residing outside Australia Weekly statutory benefits to persons residing outside Australia Section 3.21;
Schedule 2, Clause 1(g)
Not authorised by Schedule 1 Yes
Whether the insurer is required to vary the amount of weekly statutory benefits Indexation of weekly statutory benefits Section 3.22;
Schedule 2, Clause 1(h)
Not authorised by Schedule 1 Yes
Whether the cost of treatment and case provided to the claimant is reasonable Entitlement to statutory benefits for treatment and care Section 3.24(1)(a);
Schedule 2, Clause 1(i)
Not authorised by Schedule 1 Yes
Whether statutory benefits for loss of capacity to provide gratuitous domestic services are payable, and if so the amount payable Loss of capacity to provide gratuitous domestic services Section 3.26;
Schedule 2, Clause 1(j)
Not authorised by Schedule 1 Yes
Whether expenses have been properly verified Verification of expenses for treatment and care Section 3.27;
Schedule 2, Clause 1(k)
Not authorised by Schedule 1 Yes
Whether treatment and care expenses have been incurred after the expiration of the period during which statutory benefits are payable Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or persons with minor injuries – treatment and care Section 3.28;
Schedule 2, Clause 1(l)
Not authorised by Schedule 1 Yes
Whether treatment and care expenses are authorised by the Motor Accident Guidelines (except determination of whether treatment and care will improve the recovery of the injured person) Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or persons with minor injuries Section 3.28(3);
Schedule 2, Clause 1(m)
(Note: not decisions covered by clause 2(c))
Not authorised by Schedule 1 Yes
Whether treatment and care expenses have been paid or recovered No statutory benefits for treatment and care expenses already compensated Section 3.29;
Schedule 2, Clause 1(n)
Not authorised by Schedule 1 Yes
Whether the cost of treatment and case exceeds any limit imposed by the Motor Accident Guidelines Limits under Motor Accident Guidelines for particular treatment and care expenses Section 3.31;
Schedule 2, Clause 1(p)
Not authorised by Schedule 1 Yes
Whether treatment and care provided to the injured person is treatment and needs or excluded treatment and needs No treatment and care benefits if needs covered by the Lifetime Care and Support Scheme Section 3.32;
Schedule 2, Clause 1(q)
Not authorised by Schedule 1 Yes
Whether treatment and care provided to an injured person has been provided while the person is residing outside Australia Treatment and care provided while persons residing outside Australia Section 3.33;
Schedule 2, Clause 1 (r)
Not authorised by Schedule 1 Yes
Whether the insurer is entitled to suspend weekly payments of statutory benefits for failure to minimise loss Duty of claimants to minimise loss Section 6.5
Schedule 2, Clause 1(za)
Not authorised by Schedule 1 Yes
Whether the cost and expenses incurred by a claimant are reasonable and necessary Recovery of costs and expenses in relation to claims for statutory benefits Section 8.10
Schedule 2, Clause 1(aa)
Not authorised by Schedule 1 No

Note 1. Regulation, clauses 10-11

Reviews and further assessments

Dispute types subject to costsApplication approvedApplication refusedNotes
Appeal of any merit decision by a review panel, including the application for referral of the decision to the review panel (clause 1(3) of Schedule 1 to the Regulation) $1,633 Applicant - $Nil
Respondent - $816
These are in addition to costs for a regulated matter
A further medical assessment, including the application for referral of the decision for further assessment (clause 2(2) of Schedule 1 to the Regulation) $1,633 Applicant - $Nil
Respondent - $816
These are in addition to costs for a regulated matter
A review of a medical assessment by a review panel (including the application for referral of medical assessment to the review panel), clause 2(3) of Schedule 1 to the Regulation $1,633 Applicant - $Nil
Respondent - $816
These are in addition to costs for a regulated matter

Note 1. Regulation, clauses 10-11

6. What disbursements can I charge?

Section 8.4 of the Act and clauses 27 and 28 of the Regulation make provision for the fixing of maximum fees with respect to medico-legal reports. There is no provision to contract out of these maximum fees.

Maximum fees recoverable by a medical practitioner are set out in Schedule 2 to the Regulation. The maximum fees for medico-legal services that apply from 1 October 2018 – 30 September 2019 are as follows:

Maximum fees for medico-legal services

Appearances as witnesses
Health practitioners called to give evidence other than expert evidence, per hour (or proportionately if not for a full hour) to a maximum of $919 $459
Health practitioners called to give expert evidence:  
(a)  for the first 1.5 hours (including time travelling to the court from the medical professional’s home, hospital, place of practice, office or other place and return to that place from the court) $1,225
(b)  for every full hour after the first 1.5 hours (or proportionately if not for a full hour) to a maximum of $3,674 $459
Travelling allowance (for travel by private motor vehicle) in connection with appearance as witness—per kilometre $0.66
Accommodation and meals in connection with appearance as witness reasonable costs

Medical reports
Report made by a treating general practitioner:  
(a)  if a re-examination of the patient is not required $383
(b)  if a re-examination of the patient is required $505
Report made by a treating specialist:  
(a)  if a re-examination of the patient is not required $1,225
(b)  if a re-examination of the patient is required $1,633
Report made by a specialist who has not previously treated the patient (where both parties have not jointly agreed to the appointment of the specialist):  
(a)  if an examination of the patient is not required $1,225
(b)  if an examination of the patient is required $1,633
Report made by a specialist who has not previously treated the patient (where both parties have jointly agreed to the appointment of the specialist):  
(a)  if an examination of the patient is not required $1,837
(b)  if an examination of the patient is required $2,245
Charges for copying medical reports—per page $1

Cancellation
Fee if appearance or medical report is not required Not more than 50% of the relevant amount specified in this Table

Section 7.52 of the Act places a restriction on which health practitioners may give evidence in dispute proceedings. This will mean that practitioners who are not the injured person’s treating health practitioner, or who are not authorised by the Motor Accident Guidelines, cannot give evidence in proceedings before a court for damages or in connection with a merit review under Division 7.4, a medical assessment under Division 7.5 or the assessment of a claim under Division 7.6. A list of authorised practitioners can be found on our website – www.sira.nsw.gov.au/for-service-providers/A-Z-of-service-providers/medico-legal

Clause 20 of the Regulation sets out which disbursements are not regulated by Part 6 of the Regulation.

7. Where can I find more information?

You can seek assistance from the following: