The introduction of the Motor Accident Injuries Bill
2017 into NSW Parliament heralds changes to the third party
motor accidents scheme. We analyse how the Bill will impact the
current stance on damages for such accidents, how it will interact
with s 151Z of the Workers' Compensation Act 1987
(NSW) and the statutory benefits available.
Current stance—damages for blameless motor vehicle
A person injured in a blameless motor accident on or after 1
October 2007 is entitled to damages under the Motor Accidents
Compensation Act 1999 (NSW) (MACA). Section 7A of the MACA
defines a blameless motor accident as "a motor accident not
caused by the fault of the owner or driver of any motor vehicle
involved in the accident in the use or operation of the vehicle and
not caused by the fault of any other person".
In December 2016 the Court of Appeal decided in State of NSW
v Wenham  NSWCA 336 that a workers' compensation
insurer can claim recovery under s 151Z where a worker has been
injured in a blameless motor accident. Given the entitlement to
recovery applies to injuries on and after 1 October 2007, there are
opportunities for insurers to review and press claims not
previously considered viable. However, any payment made more than
six years prior to the date of the filing of proceedings will be
Proposed motor accident amendments
The new Bill provides damages for no-fault motor accidents.
Subject to any amendment to the Bill, s 151Z will continue to have
application to no-fault motor vehicle accidents, as the definition
mirrors that for a blameless accident under the MACA.
Reduced quantum for damages
The quantum of damages recoverable for all common law claims
under the new legislation will be less. As a result, workers may
decide not to bring a claim for damages against the compulsory
third party insurer, preferring to maintain their ongoing
workers' compensation rights.
Insurers will need to progress more claims independently and be
vigilant in identifying and progressing matters with potential
Given the reduced damages available, the amounts payable for
work injury damages claims will be more in line with the damages
assessed under s 151G of the Workers' Compensation Act
The Bill provides for the payment of statutory benefits
regardless of fault—other than for uninsured at-fault drivers
or owners and for claimants who have committed a serious driving
offence. These include weekly payments, paid domestic assistance,
and medical and related expenses.
However, while the Bill suggests that where workers'
compensation is payable, statutory benefits are not, there may
still be some crossover and entitlement to payments in certain
circumstances. One such situation is where liability is denied
under the workers' compensation legislation but no longer the
subject of a dispute.
The Bill also suggests that a worker who settles a claim for
damages against their employer will be required to repay any
statutory benefits paid under the Bill.
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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