Australia: Section 82(1) Offers: To Be or Not to Be?

Curwoods Industry News
Last Updated: 2 September 2010
Article by Peter Hunt

In Brief

  • The Principal Claims Assessor currently holds the view that there is no distinction between offers made under s 82(1) of the Motor Accidents Compensation Act 1999 (the Act) and offers not made under s 82(1).
  • In our view, the PCA's interpretation of s 82(1) discourages early negotiations and conflicts with the legislative object of encouraging early resolution of claims.
  • In our opinion, the preferable interpretation is that the parties are free to enter into early, informal negotiations and that the formal processes laid down by the Act are only invoked when those negotiations fail and the claimant provides Section 85A Particulars (assuming sufficient recovery has also been achieved).


The Principal Claims Assessor (PCA) presented a Masterclass at Curwoods on 24 August 2010 on the time limits imposed by the October 2008 amendments to the Motor Accidents Compensation Act 1999 (the Act).

Those who attended will recall that the PCA questioned whether there were "Section 82 Offers" and "Non-Section 82 Offers". She favoured the view that no such distinction existed and that the insurer's first offer discharged the insurer's obligations under s 82(1).

In our view, the PCA's interpretation of s 82(1) is misconceived.

Section 82(1)

Section 82(1) provides:

(1) It is the duty of an insurer to make a reasonable offer of settlement to the claimant (unless the insurer wholly denies liability for the claim):
(a) within 1 month after the injury is sufficiently recovered to enable the claim to be quantified, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim as required by section 85A,
whichever is the later.

As we understand it, the PCA's position is that s 82(1) is "about the insurer's duty to make an offer" so, once an offer is made, s 82(1) "has no more work to do."

For the reasons outlined below, we disagree with this construction.

The Implications of the PCA's Interpretation

In our view, the PCA's interpretation of s 82(1) is problematic for Insurers and does not accord with the objects of the Act, which include early resolution of claims.

If the PCA's construction were correct:

  • The making of an early offer would discharge the insurer's duties under s 82(1);
  • If the claimant has not already provided Section 85A Particulars, he or she is no longer under any duty to do so;
  • Given that the making of a Section 82 Offer triggers the obligation to conduct a Section 89A Conference, the claimant may insist that such a Conference be convened; and
  • If the insurer refuses to participate in the proposed Section 89A Conference, the claimant is arguably at liberty to immediately lodge a CARS 2A – Application for General Assessment.

Given these consequences, the PCA's interpretation of s 82(1) constitutes a significant disincentive to the making of early offers of settlement.

Why would the insurer make an early offer – with a view towards early resolution – if this would potentially allow the claimant to avoid providing Section 85A Particulars and proceed directly to a Section 89A Conference?

Conflict with Objects of the Act

It is our view that the PCA's interpretation conflicts with the objects of the Act.

Pursuant to s 5(1)(b), one of the key objects of the legislation is to "encourage the early resolution of compensation claims".

On the PCA's interpretation, the insurer's first offer discharges the insurer's duty to make an offer under s 82(1) with the adverse consequences described above. As such, the PCA's interpretation discourages early offers and fails to promote early resolution.

The Correct Interpretation

In our view, there is a clear distinction between the informal negotiations which take place during the early stages of a claim and the formal negotiations which take place after the procedures laid down by the Act are invoked.

Those informal negotiations are essential to the operation of the Scheme. Many matters resolve that way, before significant costs are incurred.

Section 82(1) comes into play – and "has work to do" – only when "sufficient recovery" has been achieved and the claimant provides Section 85A Particulars.

In our opinion, the dividing line between the early, informal negotiations routinely entered into by the parties and the insurer's formal Section 82(1) Offer is the provision of Section 85A Particulars.

Provided the claimant has achieved "sufficient recovery", the event which invokes the insurer's duty to make a formal Section 82(1) Offer is the claimant's act of formally defining the scope of his or her claim by providing Section 85A Particulars.

This interpretation of the relevant provisions:

  • Encourages early negotiation by ensuring that no adverse consequences flow to the insurer when it makes an early offer; and
  • Provides for a formal negotiation process in the event that the early, informal negotiations fail to resolve the claim.


The PCA's (in our view) erroneous interpretation of Section 82(1) will not come to the fore until she is required to formally decide whether a CARS 2A has been lodged in compliance with the new time limits imposed by the October 2008 amendments.

In the meantime, we recommend that insurers continue to honour their duty to attempt early resolution of claims by engaging in informal negotiations pending sufficient recovery and the provision of Section 85A Particulars.

Any such offers should be accompanied by a clear statement that the offer in question is not a Section 82 Offer.

In the event that the PCA refuses to dismiss a CARS 2A which has been lodged following an early offer of settlement, prior to sufficient recovery and/or without the provision of Section 85A particulars, serious consideration should be given to challenging the PCA's interpretation in the Supreme Court.

In short, the PCA's interpretation potentially provides claimants with a short-cut to CARS. Ironically, the short-cut only becomes available when the insurer adheres to its duty to attempt early resolution of claims.

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.