The Insurer is not required to serve a Section 82 Offer when
the Claimant has not achieved a "sufficient recovery to enable
the claim to be quantified" even where the Claimant has
provided Section 85A Particulars.
On an application by the Insurer to dismiss the Claimant's
CARS 2A, the PCA has demonstrated that she is prepared to analyse
the medical evidence to determine whether "sufficient
recovery" has been achieved.
A Claimant can not comply with the obligation to provide
Section 85A Particulars where the Claimant's entitlement to
non-economic loss damages has not been agreed or assessed by
An Insurer is not obligated to make a Section 82 Offer whilst a
MAS permanent impairment assessment remains outstanding (including
review and further assessment applications).
Section 85A does not obligate the Claimant to provide documents
to substantiate the assertions made in the Section 85A
The Principal Claims Assessor has recently provided an insight
into her construction of some of the critical provisions contained
in the October 2008 amendments to the Motor Accidents
Compensation Act 1999.
In two related matters, the Insurer submitted that the Claimant
had failed to comply with the new pre-CARS procedure and that the
CARS 2A should be dismissed. The PCA agreed with the Insurer in
each matter and found that the Claimant's CARS 2A was
Trigger for Section 82 Offer
At the outset, the PCA made it clear that the entire pre-CARS
procedure is triggered either by the Insurer's Section 82 Offer
or the Insurer's failure to make such an Offer when required to
Furthermore, the PCA noted that the Insurer was not required to
make a Section 82 Offer until the Claimant had
"sufficiently recovered to enable the claim to be
quantified" and the Claimant had served compliant Section
In each matter, the PCA analysed the available medical evidence
and determined that she was not satisfied that "sufficient
recovery" had been achieved.
In the first matter, the PCA noted that the Claimant was
undergoing psychiatric treatment and, as such, she could not be
satisfied that the claim could be quantified "with any
real precision". In the second matter, the PCA came to
the same conclusion on the basis that there was insufficient
medical information available to allow an assessment of
Given the PCA's approach, it is important to note that the
provision of Section 85A Particulars is not the only trigger for a
Section 82 Offer. The Insurer is not required to make a Section 82
Offer where it can validly argue that the Claimant's condition
has not yet "sufficiently recovered" to permit a
proper assessment of the likely quantification of the claim.
It is also important to note that the PCA has demonstrated that
she is prepared to delve into the medical evidence in order to
determine whether she is satisfied that a sufficient recovery has
Compliance with Section 85A when MAS Assessment
In one of the matters she dismissed, the PCA considered whether
the Claimant could comply with her obligation to provide Section
85A Particulars in circumstances where the Claimant's
entitlement to non-economic loss damages had not yet been agreed or
The PCA decided a Claimant is not able to comply with Section
85A where his or her entitlement to non-economic loss damages
The PCA reasoned as follows:
"Section 85A(3) defines what
all relevant particulars about the a claim are. Importantly, they
include "all disabilities and impairments arising from those
injuries". The underlined words are critical in respect of
this case as the claimant seeks a review of MAS assessment in
respect of her psychological injuries and the MAS assessment of her
physical injuries has not yet concluded... Impairments are of
course important and it is incumbent upon the claimant to
particularise them so that the insurer knows whether or not to
include an amount for noneconomic loss in its initial offer. How
can the claimant have provided all relevant particulars of her
impairment when the issue of what the degree of her impairment are
is yet to be determined?"
The PCA made it clear that the purpose of Section 85A
Particulars is to enable the Insurer to make a genuine Section 82
Offer which has the potential to resolve the claim. Once this
purpose is understood, it naturally follows that Section 85A
Particulars are not complete where the Claimant is not able to
particularise whether or not there is an entitlement to
non-economic loss damages.
It follows from the PCA's reasoning that an Insurer is not
obligated to make a Section 81 Offer whilst MAS permanent
impairment assessments remain outstanding (including review and
further assessment application).
Absence of Documents to Support Particulars
On the other hand, the PCA rejected the Insurer's argument
that the Claimant had failed to comply with Section 85A because the
Claimant had neglected to provide some documents – such
as tax returns – to substantiate some of the assertions
the Claimant had made.
The PCA made the point that it is not for the Insurer to prepare
the Claimant's case. If the Claimant lodges a CARS 2A with
insufficient documents – or with documents which had not
previously been exchanged – then that is a problem which
the Claimant has to overcome.
Please contact any of the CTP partners should you wish to
discuss these decisions further.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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”
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).