Motor vehicle accident compensation claims for people injured in road accidents in New South Wales are generally either settled or are determined by the Personal Injury Commission (PIC). Very few cases proceed to a court hearing.
What typically happens in motor vehicle accident claims is that once settlement negotiations have been exhausted, the claimant generally files an application with the Personal Injury Commission for a Member to be appointed to determine the outcome of the claim.
The Personal Injury Commission allocates the claim to one of its Members. The Member then arranges a telephone conference 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 hearing.
If the motor vehicle accident claim is not ready to be formally assessed it is likely that the Member will make a number of directions to progress the claim such as providing medical evidence, statements and submissions by a certain date.
Members generally read all the paperwork prior to an assessment conference hearing. This means that the Member will be fully appraised of the facts and the issues in the claim.
In most cases the claimant is the only witness who attends the an assessment conference hearing. It is very rare for doctors to be called to give evidence.
It is up to each Member to determine the method of conducting the an assessment conference hearing. Some Members are inquisitive and ask questions. Others take a more passive role. Whilst the rules of evidence do not apply at an assessment conference hearing the Member is expected to be fair and reasonable at all times.
At the conclusion of the assessment conference hearing which generally takes between 2 and 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 made publicly available.
The CARS guidelines and DRS guidelines stated that Assessors had 15 days to provide reasons. These no longer apply.
There is nothing in the Act, Rules or in any of the practice directions issued by the President of the Personal Injury Commission that provides a timeframe for the provision of reasons to the parties.
A Member’s decision is, as a general rule, binding on the insurer. The claimant however, can reject the award and take the case to the District Court of New South Wales. However, there are significant costs risks involved in doing so. The District Court Judge who hears the case will penalise the claimant on costs if the Judge’s award is not 20% more than the CARS award. The Judge will learn about the CARS award only at the end of the court proceedings.
Whilst, as mentioned, decisions of a Member of the Personal Injury Commission are generally binding on insurers, an insurer who considers that the Member had made an error or law can file a Summons in the Supreme Court to seek judicial review of the decision. Such judicial review applications are few and far between. If the application for judicial review succeeds, the Supreme Court will not assess the personal injury claim itself. Rather, the matter will be re-allocated to another Member for re-determination.
The costs payable by the insurer in matters before the Personal Injury Commission are regulated and are quite low. This generally means that the injured claimant ends up paying costs over and above what is paid by the insurer.
HOW CAN STACKS GOUDKAMP HELP?
By choosing Stacks Goudkamp to represent you for your motor vehicle accident claim, you will be in the best of hands. You can be confident that your lawyer will have the knowledge and the experience and the personality and character to do his or her very best for you to ensure that your claim is successful and that the compensation process is as stress free for you as possible.
We will act for you on a no win, no fee basis. We will gather evidence from various medical experts, the police and other experts. We will also examine how your injuries have impacted your ability to participate in the activities you enjoyed prior to the accident and your ability to continue working. We conduct thorough negotiations with at-fault parties and insurers in order to obtain the maximum amount of compensation you are entitled to. In many cases, we are able to do this successfully without the need of going to court.
If you or someone you know has been injured you should contact Stacks Goudkamp, on (02) 9237 2222 or enquire online.
Written by Karina Goodall
Karina Goodall is a Practice Group Leader at Stacks Goudkamp and specialising in motor vehicle claims, superannuation and TPD claims.
