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June 5, 2020
Personal Injury tribunal legislation currently before parliament – Belinda Cassidy summarises this new development for dispute resolution in NSW workers and motor accident compensation claims.
Some time ago the NSW Parliament’s Upper House Law and Justice Committee recommended the expansion of the Workers Compensation Commission (WCC) into the area of motor accident or CTP dispute resolution.
Parliament is soon to be considering the Personal Injury Commission Bill which, if passed into law will establish the Personal Injury Commission and the anticipated start date is 1 December 2020. The PIC will replace the WCC and take over most of the decision-making jurisdiction of the motor accident Dispute Resolution Service. The PIC is a tribunal not a court but it will be independent (of SIRA the government department that will fund and staff it) and headed by a President who must be a judge.
While there will be harmonisation and commonality of some functions (for example a combined registry and similar medical assessments), there will be two separate divisions. This recognises the specialisation required to deal with the complex legislative framework of the very different workers compensation and motor accidents jurisdictions. Some attempts at harmonising disparate practices have been adopted by the PIC for example in medical reviews / appeals the WCC model of two medical assessors with one legal member has been adopted for all matters. However harmonisation has not been achieved in other areas for example in the Workers Compensation Division a summons can be issued to a party or a witness to attend a hearing whereas in the Motor Accidents Division a summons cannot be issued to a witness only to the injured person or the insurer.
Some of the key features of the PIC Bill are:
There will be a President, Deputy Presidents (only in workers compensation matters), principal members, senior members (only in workers compensation matters) and general members to be appointed by the Minister.
There will also be Mediators (only in workers compensation matters), medical assessors and merit reviewers to be appointed by the President.
A rule committee will be formed to review the rules of the Commission which is made up of nine persons including the President, each of the Division Heads, two nominees from SIRA, two of the President’s nominees and one member nominated by the Bar Association and one by the Law Society
The Bill announces ‘a guiding principle’ for the PIC is ‘to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings’. PIC proceedings are to be conducted with as little formality and technicality as possible and the PIC not bound by the rules of evidence.
One of the stated objects of the PIC is for it to be accessible, professional and responsive to the needs of users and open and transparent about it processes.
One of the ways to ensure access to justice is to enable those who come the PIC to have legal representation to help them navigate the complexity of the compensation system governing their rights and entitlements. The PIC enshrines the right to have legal representation before proceedings in the Commission. In the Workers Compensation Division, the lawyers for injured workers have access to a form of ‘legal funding’ through the ILARS system. Sadly, in the Motor Accident Division the legislation does not allow lawyers to be paid at all and for some matters, lawyers acting for injured road users can recover costs but at a level significantly lower than for similar disputes in the Workers Compensation Division. Access to legal representation and the payment of a reasonable level of costs for that legal representation should be something the government addresses at the same time as consideration of the PIC Bill in order to achieve the goal of just, quick and cost-effective dispute resolution.
If you have been injured in a motor vehicle or work accident and you want expert advice, you may be entitled to compensation. To arrange a free, no obligation assessment of your claim, please call Stacks Goudkamp on 1800 251 800, or make an online enquiry.
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