Page 1058 - Week 03 - Thursday, 23 March 2017
Integral to the resolution of the claim through the court’s processes, is the need for the claimant to prove that the driver of the vehicle that caused the injury was at-fault.
(12) As jurisdictions’ systems differ in the way their CTP schemes are designed (at-fault or not-at-fault), this has an influence on how each goes about resolving claims. However, it is possible to group states with similar systems.
The ACT, NSW, Queensland and WA 1 have primarily Common Law based systems. These schemes offer Common Law settlement of treatment and care costs in addition to, for eligible persons, economic loss and general damages.
In NSW, there are two dispute resolution bodies – the Medical Assessment Service (MAS) and the Claims Assessment & Resolution Service (CARS). The MAS independently assesses disputes between insurers and injured people concerning medical treatment and impairment. Decisions made by expert medical specialists concerning treatment and permanent impairment are binding on the parties, CARS and the courts. CARS is a non-adversarial forum for resolving claims early and outside of the court system. All disputed claims must be referred to CARS for certification as a precondition to the commencement of court proceedings.
In Queensland, claimants use the CTP insurer’s internal dispute resolution process to help identify/resolve issues regarding their claim. The ultimate avenue for a claimant is application to the Court. The Motor Accident Insurance Commission (MAIC) can appoint a mediator to resolve questions/issues regarding care only.
The CTP schemes in Victoria, Tasmania and the Northern Territory are largely no-fault schemes, where defined statutory benefits are available to those injured in a transport accident regardless of fault. Statutory payments for hospital, medical, treatment, economic loss, and impairment are paid as necessary.
In Victoria claimants can dispute a scheduled payment decision of the TAC by applying in writing through the client’s legal representative for a pre-issue review (dispute application). In a number of cases, the claimant, through their legal representative, can also issue an application for review by the Victorian Civil and Administrative Tribunal (VCAT).
In Tasmania, claimants can dispute a scheduled payment decision of the Motor Accidents Insurance Board (MAIB) by applying to the Motor Accidents Compensation Tribunal (MACT). When the parties have concluded the preparation of their case, including all relevant medical evidence, the case will proceed to a conciliation conference with the aim of resolving the dispute.
If a case is not resolved at the conciliation conference it will be listed for hearing before the Tribunal, with the Tribunal making a determination. A person aggrieved by a determination of the Tribunal may appeal to the Supreme Court.
(13) It is normal practice for the CMTEDD to keep a watching brief on all jurisdictional reviews of CTP insurance schemes. CMTEDD regularly participates in inter-jurisdictional forums to share knowledge and ideas of CTP issues that are facing all Australian jurisdictions and New Zealand.