How are motor vehicle compensation cases finalised?
Most motor vehicle compensation claims for injuries suffered in road accidents in New South Wales are either settled or decided by a Claims Assessor through the Claims Assessment and Resolution Service – CARS, rather than judges.
Indeed, the only road accident compensation cases which these days are decided by judges are those where an insurer has totally denied liability on behalf of its insured driver, where the injured person lacks “legal capacity” because of brain injury, if the injured person is a minor, if the insurer has alleged that the claim is a fraudulent one, if the claim is too complex to be assessed by a Claims Assessor or possibly where the injured person lives overseas.
There are approximately 30 Claims Assessors. They are all highly experienced lawyers specialising in handling motor vehicle compensation cases in their own practices, either for claimants or insurers.
The CARS system of deciding what compensation ought to be paid to injured road accident victims, whilst not perfect, is extremely efficient and considerably less stressful than having such cases decided in a court of law. For example:
- Claims Assessors generally have more experience in assessing motor vehicle compensation claims than judges.
- The assessment hearings conducted by the Claims Assessors are less stressful than court hearings. That is because Claims Assessors read all the material, including medical reports, statements and written submissions well before the hearing commences. Therefore the Claims Assessors already know what the case is all about before the hearing even starts. Judges on the other hand often have no idea what a case is about until the court hearing is underway.
- The normal rules of evidence do not apply at an assessment hearing, unlike a court hearing. Cross-examination of claimants are generally kept to a minimum. In some instances the Claims Assessor actually asks the majority of the questions.
- The assessment hearings are conducted in a hearing room with the claimant sitting at one end of a table and the Claims Assessor at the other. The lawyers for the claimant and the insurer sit on each side of the table. Generally, no other witnesses give evidence. Doctors are not required to attend to be cross-examined on their opinions. The claimant does not have to give evidence under oath although Claims Assessors normally warn the claimant at the beginning of a hearing to be truthful at all times.
- Assessment hearings tend to be relatively short. The average time for an assessment healing is less than two hours, including time spent on submissions made at the assessment hearing. Court hearings on the other hand can take days or even weekAt the end of an assessment hearing the claims assessor has just three weeks to make a decision. Judges on the other hand can take months to make their decisions.
- The decision of a Claims Assessor is generally binding on the insurer, with no right of appeal. The claimant on the other hand retains the option of taking the case to the District Court (in practice this rarely happens because the District Court judge who ultimately hears the case will not be allowed to know the outcome of the assessment hearing. Furthermore, if the judge awards compensation which is not at least 20% higher than what the Claims Assessor awarded, the claimant will be ordered to pay the insurer’s legal costs).
One downside of the CARS system is that the claimants often have to pay a higher proportion of the legal costs than would be the case if the claim was decided by a court. This is because the costs payable by insurers to claimants in CARS cases are regulated and depend on the size of the CARS award. The lower the award the lower the costs the insurer has to pay. The gap between what the insurer has to pay for costs and the costs payable to the claimant’s solicitors can be significant.
If you or anyone you know is injured has been injured in a car accident, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.
Written by Tom Goudkamp OAM.