Motor Vehicle Accident
This comprehensive and easy to follow publication helps practitioners to navigate the convoluted and restrictive legislation which applies to motor accident claims in NSW. There are two separate guides - one for pre-December 2017 accidents and another for post-December 2017 accidents, to which different legislative schemes apply. Links to the necessary forms and precedents are supplied.
This valuable publication will allow a practitioner to advise with confidence on the critical time limits and dispute resolution processes for each step of a claim, understand the highly restricted nature of the benefits available and costs recoverable for claimants and address the supporting material required to obtain the best result for the claimant.
Recent updates can be viewed on Obiter - our blog.
Popular precedents provided with both guides include:
- Gathering information letters to client/insurer/relevant authorities et cetera
- Medical authorities
- Various letters to client explaining the process at each stage
- Letters to doctors
- Applications for statutory benefits
- Example pleadings and particulars for common law damages
Guides in this publication
MATTER PLAN
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“ Provisions of the Workers Compensation Legislation Amendment Act 2018 amending the Motor Accident Injuries Act 2017 have commenced, removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to ... ”
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“ New South Wales ”
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“ An angiogram is an X-ray test that uses a special dye and camera, fluoroscopy, to take pictures of the blood flow in an artery, such as the aorta, and can be used to look at the arteries or veins in the head, arms, legs, chest, back, or belly. Abduction ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ SIRA Website SIRA Resources Library ”
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“ District Court Civil (NSW) Supreme Court Civil (NSW) ”
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“ The Motor Accidents Injuries Act 2017 (“the MAIA”) replaces the Motor Accidents Compensation Act 1999. The new Act shifts the scheme further towards a no-fault / administrative scheme and away from the original common law litigation model, with statutory benefits, medical assessments, internal ... ”
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“ Established by the State Insurance and Care Governance Act 2015, SIRA is responsible for regulating motor accidents, workers compensation insurance, compulsory third party (CTP) insurance and home building compensation insurance within NSW. SIRA is referred to within MAIA as “the Authority”. The ... ”
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“ The new scheme is intended to ensure: Early notification and treatment; ”
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“ A no-fault accident is an accident which was not caused by the fault of the owner or driver of the motor vehicle or by the fault of any other person: s 5.1. A suggested example is where the driver of a vehicle has a sudden heart attack which leads to a collision. ”
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“ The Lifetime Care and Support Authority of NSW is a statutory corporation established under the Motor Accidents (Lifetime Care and Support) Act 2006 (MALCASA) The authority is responsible for the administration of the Lifetime Care and Support Scheme (the LCASA scheme). The scheme provides lifelong ... ”
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“ Claims for accidents which are the fault of unidentified or unregistered motor vehicles are made against the nominal defendant. The nominal defendant (for insurance purposes) is SIRA, but in any proceedings should be identified as “The Nominal Defendant”. For unregistered vehicles: ”
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“ A client will either come in to see a lawyer specifically because they want to receive advice about an injury that they or a family member have suffered in an accident, or sometimes they will be consulting you about an entirely different matter and happen to mention difficulties that they are ... ”
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“ There are significant restrictions which apply not only to compensation available to claimants under the MAIA, but also to both the amount of costs recoverable from the insurer and the amount of costs chargeable upon the client. These restrictions should be kept in mind at the outset of the matter ... ”
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“ There are a number of requirements which must be met in order for a claim to be properly made. Although s 6.8 of the MAIA refers to the MAG in relation to the proper notification of the claim, the MAG in turn only appear to refer to requirements for making a statutory benefits claim. It is ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ Part 3 of the MAIA sets out the statutory benefits which are payable by the relevant insurer in respect of the death of, or injury to, a person arising from a motor accident within NSW regardless of fault. These benefits comprise: reasonable funeral expenses, weekly income payments and payment for ... ”
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“ Notice of a claim for damages must be made by use of the Application for damages under common law form and provision of all information set out in the form - MAG clause 4.90. The insurer then has 3 months to determine liability for the damages claim and a written notice must be provided in ... ”
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“ The categories of economic loss for which damages may be awarded are set out in section 4.5: past or future loss of earnings or impaired earning capacity ”
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“ The client may be able to prove a need for attendant care services. This is usually established by expert evidence in the form of a report from an expert qualified in this field. Section 141B provides compensation for attendant care services are only applicable if they are provided for at least 6 ... ”
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“ Section 141C provides an award of damages may include compensation for reasonable and necessary respite care in respect of a claimant who is seriously injured and in need of constant care over a long term. This would also be proven by an expert report. No damages relating to treatment and care ... ”
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“ To obtain damages for non-economic loss, there must be agreement or certification that the client has suffered greater than 10% permanent impairment due to the subject accident - see section 4.11. In the event of disagreement, an approved medical assessor must determine the degree of permanent ... ”
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“ Once a claim has been properly notified, the claimant must promptly provide the insurer with all relevant particulars of the claim so as to enable proper assessment of the nature and extent of the claimant's entitlement to damages- see section 6.25. It is customary for insurers to request ... ”
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“ For all disputes under the MAIA scheme there is a Dispute Resolution Service ("DRS") established by sections 7.2 and 7.3, under the auspices of SIRA, to consider and determine a wide range of disputes as set out in Schedule 2 of the MAIA. The types of disputes fall into three broad categories: ”
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“ The process for claims and dispute resolution is: Claim is lodged with insurer; ”
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“ The following types of claims are exempt from assessment by DRS: claims made for a person under legal incapacity; ”
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“ Before seeking instructions to settle or to proceed to an assessment of the claim, it is very important to obtain a full and detailed summary of all amounts which are likely to be deducted from any sum payable to the claimant, by Medicare, a private health fund or any insurer which has paid medical ... ”
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