Australia: Changes To CARS And MAS Assessments

Last Updated: 19 June 2007
Article by Curwoods Lawyers

Publish Date: February 25, 2007

Prior to the passage of the Motor Accidents Compensation Act 1999, all questions in disputed cases for claims for personal and non-economic damages resulting from motor vehicle accidents were decided by the courts. The Motor Accidents Compensation Act (MACA) changed that with the new procedure being that all medical disputes have since been referred to the Medical Assessment Service (MAS) whilst other disputes are referred to the Claims Assessment Resolution Service (CARS).

CARS is an independent assessment body that attempts to help parties reach resolution in cases where the injured party and the insurance company cannot agree on the amount of compensation to be awarded. All disputed cases must go to CARS before it can go to court. CARS has the power to exempt a case from resolution services, in which case it will issue an exemption certificate to the parties and the parties are free to take this matter to litigation.

The application process to CARS is not simple and recent changes to the CARS claims procedure has made the process even more complicated. Thus any prospective claimant is strongly advised to seek legal advice before lodging any claim with CARS.

Claimants who might believe that they have an open and shut case, and who believe that they may not need to incur the cost of legal advice, should be aware of the possible pitfalls brought along by these changes.

As of 1 May 2006, all applications for CARS assessments are subject to changes that might have a significant influence on the outcome of a CARS assessment:

  • All documentation has to be provided as part of the application for a CARS assessment. Therefore, all and any submissions and signed statements need to be submitted with the application; once the application has been made, no additional material may be submitted for consideration.
  • The only time that additional documents can be submitted, is if the other party consents, or if an assessor or officer of CARS specifically directs that additional documents be lodged. In the case of the former, such documents must be exchanged with the other party before lodgment with CARS.

The CARS assessors have also been given additional powers.

  • The CARS assessor has the power to dismiss any claim that does not comply with directions
  • If it appears as if the claimant is not pursuing the claim, the CARS assessor may dismiss a claim. Needless to say this also applies where the applicant has withdrawn the application.
  • A CARS assessor can request further documents or information from either party
  • A CARS assessor cab advise the PCA that in his or her view, the matter is not suitable for assessment and ought to be exempted. This can be done at the assessor’s discretion, or upon application by one of both parties.
  • If the PCA agrees, she will provide the parties with a certificate of exemption. If the PCA does not agree, the matter will be allocated to another assessor.

Unfortunately it would appear as if CARS no longer assess a claim where it appears that the injuries are unlikely to amount to 10% Whole Person Impairment (WPI). It is unclear what qualifications the person who does the initial WPI assessment holds, however there appears to be no appeal process should the assessment not be in favour of the claimant.

Once a claimant has passed the 10% WPI test, they then rely upon the assessment of the Medical Assessment Service (MAS) to determine what their medical and non-economic loss amount to.

Non-economic loss includes loss of amenities and potential enjoyment of life. Maree was a 47 year old female flight catering officer with Qantas who enjoyed gardening, playing golf, walking and shopping before her accident. After a rear-end collision in which the defendant’s car failed to stop, Maree sustained a neck sprain, a direct blow to her right leg and aggravation to an existing left knee pain. Maree’s main complaint was the pain to her neck and her left knee which caused her to no longer enjoy playing golf, although she was able to return to work with some restrictions. Maree had been injured in an earlier accident in which she sustained a fractured sternum, blow injuries to her left knee, a neck sprain, lumber contusions and haematuria.

Maree’s injuries from this accident did not pass the 10% WPI test as it was found that no more than 30% of her pain and suffering could be attributed to the recent accident; the balance of her ailments were attributed to the earlier accident. Maree had no avenue for appeal.

Proposed changes to the CARS application process are earmarked for early 2007. These proposed changes include that no party may apply for a CARS assessment until such time as a settlement conference has taken place and settlement offers have been exchanged.

With the storm of litigation that Australia currently faces, one can only but wait and see what other legislative changes lie in wait where CARS and MAS are concerned.

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.

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