Compensation for injuries suffered in road accidents
Most compensation claims for people injured in road accidents in New South Wales are either settled at settlement conferences between their lawyers and insurance companies, or are determined by the Claims Assessment Resolution Service (CARS). Very few cases proceed to a court hearing.
What typically happens in a road accident compensation claim is that once settlement negotiations have been exhausted the claimant generally files an application with the State Insurance Regulatory Authority (formerly known as the Motor Accidents Authority) for a CARS Assessor to be appointed to determine the outcome of the claim.
SIRA allocates the claim to one of approximately 30 CARS Assessors who then arranges a telephone hook-up between the claimant and the insurer’s representatives to discuss the nature of the claim and to ascertain whether the claim is suitable and ready to be formally assessed at an Assessment Conference.
CARS Assessors generally read all the paper work prior to the commencement of an Assessment Conference which allows the Assessor to be fully appraised of the facts and the issues in the claim and to ask many of the questions.
In most cases it is only the claimant who attends the Assessment Conference and who is asked questions. It is very rare indeed for doctors to be called to give evidence.
It is up to each CARS Assessor to determine the method of conducting the Assessment Conference. Some CARS Assessors are inquisitive and ask most, if not all, of the questions. Other CARS Assessors take a more passive role. Whilst the rules of evidence don’t apply at a CARS Assessment Conference the claims assessor is expected to be fair and reasonable at all times.
At the conclusion of the Assessment Conference, which generally takes 2 to 3 hours, the assessor has 15 working days to send his or her Reasons to the parties and to SIRA. The assessor’s Reasons are not published to the public. The assessor’s decision is binding on the insurer. The claimant however can reject the award and elect to take the case to the District Court. However there are significant costs risks in doing so.
If an insurer feels aggrieved by the decision and considers that the assessor has failed to provide the insurer with procedural fairness the insurer can file a Summons in the Supreme Court to seek judicial review of the decision. Such applications are few and far between.
The vast majority of compensation claims for people injured in road accidents in NSW are either settled at settlement conferences between their lawyers and the insurance companies or are determined by CARS Assessors. CARS stands for “Claims Assessment Resolution Service”.
There are approximately 30 personal injury lawyers who have been appointed CARS Assessors.
What typically happens in a road accident claim is that once settlement negotiations have been exhausted one of the parties, generally the claimant, files an application with CARS for a CARS Assessor to be appointed to determine the outcome of the case.
The applications are lodged with the State Insurance Regulatory Authority (formerly the Motor Accidents Authority) which allocates the claim to one of the CARS Assessors who does not have any conflict of interest, for example a claim will not be allocated to a CARS Assessor who also does work for the insurance company involved in the case.
All the paper work lodged by the claimant and the insurer is sent to the nominated CARS Assessor who then appoints a telephone conference with the lawyers, within weeks of receiving the paper work, to ascertain whether the claim is both suitable and ready to be formally assessed.
If the Assessor and the parties agree that the case is suitable and ready the Assessor will list the claim for a hearing, called an “Assessment Conference” in the following weeks or months. The hearings are generally held at Level 21, 1 Oxford Street, Sydney in special hearing rooms. The Assessor sometimes makes directions with which the lawyers for both sides have to comply, e.g. the provision of written submissions and an updated assessment of damages.
A CARS Assessor will generally read all the paper work prior to the Assessment Conference so that he or she is fully appraised of the facts and the issues in the case.
Every CARS Assessor has his or her own way of conducting the Assessment Conferences. Some are inquisitive and ask most if not all of the questions. Others take a more passive role. The rules of evidence don’t apply but the Assessor is expected to be fair and reasonable at all times.
In most cases it is only the claimant who is asked questions. Doctors are rarely called to give evidence. Nor are lay witnesses.
Once a hearing has concluded the Assessor generally has 15 working days to send his or her Reasons to the parties and to SIRA. The Reasons are not published to the public and the Assessor’s decision is binding on the insurer. The claimant however can, if dissatisfied with the outcome, reject the award for compensation and elect to take the case to the District Court. However there are risks for the claimant in doing so as the District Court Judge who hears the case will not be informed of the outcome of the CARS Assessment Conference and will penalise the claimant on costs if the Judge’s award is not 20% more than the CARS award, which the Judge will only learn about at the end of the court proceedings.
Occasionally an insurer will file a Summons in the Supreme Court to have the assessment set aside on the basis that the CARS Assessor failed to fully state the reasons for various decisions and has also failed to provide the insurer with procedural fairness. These are called “Judicial Reviews”. Most are rejected by the Supreme Court. Where the Judicial Review is successful the claim is generally returned to SIRA to be allocated to another CARS Assessor.
The costs payable by the insurer in CARS matters are regulated and are quite low which generally means that the injured claimant ends up paying costs over and above what is paid by the insurer.
If you or someone you know has been injured in a motor vehicle accident, you may be entitled to compensation. To arrange a free, no obligation assessment of your case from one of our compensation experts, call Stacks Goudkamp on 1800 25 1800 or alternatively make an online enquiry.
Written by Tom Goudkamp.