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The Proper Lookout Podcast

#128 – FEDERAL JURISDICTION – Interstate Claimants And NSW CTP Insurers

In this episode, In Stanton v Winning, the District Court clarified the vexing question of whether a dispute between an interstate claimant and a licenced NSW CTP insurer involves an exercise of federal jurisdiction within the meaning of Div 3.2 of the Personal Injury Commission Act 2021. Peter Hunt explains the decision and outlines the implications.

Relevant case law and legislation

 

#127 – Adjourning a PIC Assessment Conference

In this episode, Helen Huang and Katherine Teague discuss the ways available for parties to seek to vacate an Assessment Conference in the Personal Injury Commission, particularly during a Pandemic.

Relevant case law and legislation

 

#126 – FEDERAL JURISDICTION: State Residents against the State

In this episode of the Proper Lookout Podcast, Peter Hunt summarises his thinking on what types of CTP claims involve an exercise of federal jurisdiction.

Resources

 

#125 – FEDERAL JURISDICTION: Is the Nominal Defendant “the State”?

Pursuant to Part 3.2 of the Personal Injury Commission Act 2020, the Personal Injury Commission has no power to  exercise federal jurisdiction. In this episode, Peter Hunt discusses the District Court decision in Ritchie v The Nominal Defendant which examines whether a dispute between a resident of Queensland and the NSW Nominal Defendant involves an exercise of federal jurisdiction.

 

#124 – On the front foot; proactive WPI applications

In this episode, Helen Huang and Katherine Teague discuss the implications of the Claimant not seeking internal review of the Insurer’s permanent impairment determination and how to progress the matter without any further delays under the Motor Accidents Injuries Act.

 

#123 – What are the grounds for Mandatory and Discretionary Exemptions under MAIA?

In this episode, Rihab Abdul-Rahman and Tasnim Ali, discuss Mandatory and Discretionary Exemptions from the assessment of damages in the Personal Injury Commission.

Relevant case law and legislation:

 

  • Section 7.34(1)(a) of the Motor Accident Injuries Act 2017

Motor Accident Injuries Act 2017 No 10 – NSW Legislation

  • Clause 14 of Motor Accidents Injuries Regulations

Motor Accident Injuries Regulation 2017 – NSW Legislation

  • Section 92 of Motor Accident and Compensation Act 1999

Motor Accidents Compensation Act 1999 No 41 – NSW Legislation

#122 – The PIC Stood Over List

In this episode, Helen Huang and Katherine Teague, discuss the implications of not lodging a damages dispute within the specified time limit and how to progress a damages claim to the Personal Injury Commission if it is not yet ready for assessment.

Relevant case law and legislation:

#121 – Read but not disclosed; denying parties procedural fairness

In this episode, Katherine Teague and Tasnim Ali kickstart their first mini-series “Are you being afforded Procedural Fairness?” by discussing how decision-makers may fail to afford procedural fairness when the fail to disclose to the parties material they have relied upon in reaching their decisions.

Relevant case law and legislation:

#120 – After the Common Law claim resolves; liability for treatment and care

In this episode, Helen Huan and Rihab Abdul-Rahman, discuss the impact of section 3.35 of the Motor Accident Injuries Act 2017 and section 151A(5) of Workers Compensation Act 1987 on liability in respect to ongoing treatment and care after a claim for common law damages has resolved.

Relevant case law and legislation:

#119 – You’ve resolved the claim! Let the Personal Injury Commission know.

In this episode, Katherine Teague and Tasnim Ali discuss the different ways available to alert the Personal Injury Commission that a claim has resolved, when a Claimant is represented and unrepresented.

Relevant case law and legislation:

  • Rule 71 of the Personal Injury Commission Rules 2021

118 – Amendments Proposed to MAIA No-Fault Provisions

The NSW State Government has introduced a Bill to amend aspects of the Motor Accident Injuries Act 2017 (and the Workers Compensation legislation). In this episode, Peter Hunt discusses how the Bill addresses the criticism of Part 5 of MAIA levelled in AAI v Singh.

Relevant case law and legislation

#117 – The true power of S85B MACA and S6.26 MAIA and ensuring they are effectively utilised

In this episode, Renée Reddy and special guest, Marco Nesbeth, of Counsel, discuss their recent Supreme Court administrative review case. They discuss the outcome and the precedent this case sets with respect to statutory non-compliance and the true power of S85B and S6.26 Notices (and other similar provisions) within the MACA and MAIA framework.

#116 – How the cause of psychological sequelae impacts an entitlement to damages

In this episode of the Proper Lookout Podcast, Rihab Abdul-Rahman and Bethany Mahler explore the recent decision in Dungan v Padash [2021] NSWCA 66.

Relevant case law and legislation

#115 – Approval of settlements with unrepresented Claimants – A new age (Part 2)

In this episode of the Proper Lookout Podcast, Renée Reddy and Laurette Rizk are back to discuss the Personal Injury Commission’s settlement approval process and what happens when a Member is required to decide on an application for approval.

#114 – What I learned from reading the PIC Directions

The Personal Injury Commission (PIC) opened its Commission doors on 1 March 2021. Every stakeholder should familiarise themselves with the PIC’s Procedural Directions. In this episode, Peter Hunt discusses the clauses which jumped out when he read through the Commission’s Directions.

Relevant case law and legislation

#113 – Approval of settlements with unrepresented Claimants – A new age (Part 1)

In this episode of the Proper Lookout Podcast, Renée Reddy and Laurette Rizk discuss the new procedure surrounding settlements with unrepresented Claimants in the Personal Injury Commission.

#112 – Unregulated Claimant’s costs in claims by minors under MAIA. But what about Insurers?

In this episode of the Proper Lookout Podcast, Audrey Egan looks at unregulated costs in claims by minors under the Motor Accident Injuries Act 2017, and considers whether this applies only to the Claimant’s costs.

Relevant case law and legislation

#111 – Everybody gets Statutory Benefits. But what about the driver of an uninsured vehicle?

In this episode of the Proper Lookout Podcast, Laura D’Alessandri explores when a driver of an uninsured vehicle can be denied statutory benefits under the Motor Accident Injuries Act 2017, even during the first 26 weeks.

Relevant case law and legislation

#110 – Documentation in the Personal Injury Commission

In this week’s episode, Homira Haideri and Helen Huang discuss the Personal Injury Commission Rules and in particular, part 4 of the rules, relating to documents.

  • Division 4.1 – forms and documents
  • Division 4.2 – amendment of documents
  • Division 4.4 – service of documents

Relevant case law and legislation

#109 – Introduction to the Personal Injury Commission

In this episode of the Proper Lookout Podcast, Homira Haideri and Helen Huang discuss what is the Personal Injury Commission, why it was created and what changes it will bring to the Workers Compensation and Compulsory Third Party Insurance Schemes.

#108 – Serious driving offences: does the Insurer have to show causation?

Section 3.37 of MAIA provides that an Injured Person is excluded from the statutory benefits scheme when charged or convicted of a serious driving offence that is ‘related to the motor accident’. The hot issue is whether the Insurer has to demonstrate a causative link between the serious driving offence and the accident. In this episode, Peter Hunt discusses two DRS decisions which came to opposite conclusions on that question.

Relevant case law and legislation

#107 – Autonomous vehicles – The state of play 

In this episode, Andrew Gorman discusses the current position of the evolution of driverless vehicles, the regulatory framework and implications for insurers, and how the pandemic has impacted.

#106 – Same but different – MAIA Common Law Procedure

In this episode, Peter Hunt compares and contrasts MAIA’s procedural requirements against those imposed by MACA. As a three-Act CTP veteran, Peter even gives the old Motor Accident Act the odd mention.

#105 – Top mistakes in WPI assessments (Part 2)

In this episode of the Proper Lookout Podcast, Eden Christopher and Bethany Mahler are back with four more common mistakes in WPI assessments.

Relevant case law and legislation

#104 – Signposts for assessing Pre-Accident Weekly Earnings

In this episode, Peter Hunt takes a walk through coal-face DRS decisions in PAWE disputes and erects some signposts.

Relevant case law and legislation

#103 – Top mistakes in WPI assessments (Part 1)

In this episode of the Proper Lookout Podcast, Eden Christopher and Bethany Mahler take a look at some of the common mistakes in WPI assessments.

Relevant case law and legislation

#102 – Not because it is easy, but because it is hard…

In this special edition of the Proper Lookout Podcast, Peter Hunt discusses innovation in legal process automation with Minwoo Yim of Checkbox. Peter and Min worked together, along with McCabe Curwood’s Knowledge and Statutory Insurance Teams, to build the McCabe Curwood Motor Accident Xplorer (MC Max), which earned McCabe Curwood a #7 ranking on the AFR Boss Most Innovative Professional Services Companies list for 2020.

Relevant case law and legislation

#101 – They say “life’s a beach”, but is a beach a ‘road’?

In this week’s episode of the Proper Lookout Podcast, Eden Christopher and Michael Li will look at whether a driveway of a service station, a carpark or a beach is considered a road or road-related area for the purposes of either MACA or MAIA.

Relevant case law and legislation

#100 – Celebrating 100 Episodes of the Proper Lookout Podcast

To celebrate our collective ton, Renée Reddy, Vid Dragomirovic and Peter Hunt discuss some of their favourite episodes from the extensive back catalogue of the Proper Lookout Podcast.

#99 – When will an Assessor’s reasons be adequate?

We carry on our recent trend of reviewing case law about jurisdictional errors with a podcast focusing on what constitutes ‘adequate reasons’ in a CARS award. Eden Christopher and Laurette Rizk take a look at the competing obligations placed on CARS Assessors to be ‘brief’ whilst also explaining their reasons.

Relevant case law and legislation

#98 – Is a Vineyard a road? What about a loading dock or dirt track?

In this week’s episode of the Proper Lookout Podcast, Eden Christopher and Michael Li will look at the three cases of Zerella Holdings, McBain, and Ryan v Nominal Defendant to explore when a road is considered a road or road-related area for the purposes of the Road Transport Act 2013.

Relevant case law and legislation

#97 – Exceptional circumstances may produce exceptional costs outcomes in DRS disputes

In this week’s episode of the Proper Lookout Podcast, Daniel Nastevski and Michael Li look at whether a claimant can be awarded legal costs in DRS disputes in excess of those fixed in the Regulations.

Relevant case law and legislation

#96 – Meeting with both triumph and disaster

In a product of its times, this episode takes the Proper Lookout Podcast in an expected direction as Peter Hunt addresses CTP in the age of Coronavirus through poetry; with sincere apologies to Rudyard Kipling.

#95 – The theory of relative culpability

Whether assessing contributory negligence at Common Law or assessing whether an applicant for Statutory Benefits is mostly at fault, the concept of relative culpability lies at the heart of the exercise. In this episode, Peter Hunt takes us through the theory.

#94 – When will a denial of cross-examination constitute jurisdictional error?

In this week’s episode of the Proper Lookout Podcast, Rihab Abdul-Rahman and Eden Christopher review instances where the denial of a parties’ cross-examination of a witness has constituted a jurisdictional error.

Relevant case law and legislation

#93 – What is jurisdictional error?

In this episode of the Proper Lookout Podcast, Eden Christopher, law graduate Bethany Mahler, and paralegals Ashleigh Trezise and Josephine Pan look at jurisdictional error and a number of different examples to help when reviewing a CARS award, MAS Certificate, Exemption Certificate or Proper Officer decision.

Relevant case law and legislation

#92 – The Personal Injury Commission

The NSW Government plans to commence the Personal Injury Commission in December 2020; providing one tribunal to determine both motor accident and workers compensation disputes. In this episode, Peter Hunt quizzes the former Principal Claims Assessor, Belinda Cassidy, on how the PIC will operate and what changes practitioners should expect.

#91 – When witnesses go rogue: what to do when your witness unravels

This week in the Proper Lookout Podcast, Eden Christopher, Bethany Mahler and Ashleigh Trezise return to discuss what steps to take under the Evidence Act to deal with a rogue witness in the witness box. They also look at some scenarios where experts go outside their expertise to highlight the importance of selecting the right expert to defend your matter.

#90 – Contributory negligence in blameless accidents

Paul Wholohan and Lily Barbouttis discuss the current state of the law and whether a finding of 100% contributory negligence is possible.

Relevant case law and legislation

#89 – How things have changed, from MACA to MAIA

Join Renée Reddy and Laurette Rizk as they discuss the new features in MAIA regarding medical assessments, limiting the scope of reviews and non-binding assessments (s7.15, s7.25 and s7.27).

Relevant case law and legislation

#88 – MAIA 101: How does the Merit Review Process work?

Join Lily Barbouttis, Renée Reddy and Christina Vorillas as they discuss the ins and outs of the merit review process under the Motor Accident Injuries Act 2017.

#87 – Gun shot wounds, a sticky fan-belt and a startled horse – Is it a motor vehicle accident?

In this week’s podcast, Eden Christopher, Bethany Mahler and Ashleigh Trezise go through some interesting scenarios where plaintiffs are injured outside the usual circumstances of a motor vehicle accident. They look at the wording of section 3A of the Motor Accidents Compensation Act 1999 (NSW) and discuss three cases that explore whether injured plaintiffs in drive-by shootings, horse accidents or repairing road-side vehicles can lodge a claim under the Act.

#86 – When a Solicitor’s oversight constitutes an “exceptional circumstance”

Join Renée Reddy and Ilkay Antepuzumu as they discuss the case of Alam v Allianz Australia Insurance Limited [2018] where the Insurer’s Solicitor neglected to file a MAS Review Application in time. The Claimant opposed the request for an extension on the grounds that mere oversight does not constitute an “exceptional circumstance”. Was the Proper Officer right in granting the extension?

#85 – Same, same but different? Notice of claims and late claims under MAIA

Join Renée Reddy, Lily Barbouttis and Christina Vorillas as they discuss the requirements for notice of claims and late claims for statutory benefits under MAIA (Motor Accident Injuries Act 2017).

Relevant case law and legislation

#84 – Recovery from uninsured drivers/owners by the Nominal Defendant

Danyal Ibrahim from the Litigation and Dispute Resolution Team worked with our Laura D’Alessandri to enforce a judgment debt against an uninsured driver. They discuss a case with everything; mistaken identity, default judgment, bankruptcy proceedings, garnishee orders, and (spoiler alert) the insurer client receiving a big fat cheque at the end!

Relevant case law and legislation

#83 – The Diamond-Grade Advice

Join Chad Farah and Renée Reddy as they discuss the professional skills they have learnt over the years and the four ‘C’s of what comprises a ‘diamond-grade’ advice.

#82 – Third degree tax questions in the Third Entitlement Period

The Supreme Court has recently addressed the critical question of whether Weekly Benefits are taxable in the Third Entitlement Period under MAIA. In this week’s episode, Peter Hunt discusses the implications.

Relevant case law and legislation

#81 – The impact of JobKeeper on CTP claims in the age of Coronavirus

Join Peter Hunt and Renée Reddy as they help you understand the impact of the Coronavirus Economic Response Package, specifically the JobKeeper Allowance, on CTP claims. They explain how, and when, to take a JobKeeper Allowance into account when assessing economic loss.

Amidst navigating the new government legislation and its potential impact on CTP claims, Peter and Renée also take us behind the mic and shed some light on their WFH journeys due to the current health climate.

Relevant case law and legislation

#80 – Can CTP insurers recover Statutory Benefits from Third Party Tortfeasors?

Regrettably, the Motor Accident Injuries Act 2017 does not include any provision similar to s 151Z of the Workers Compensation Act 1987. In this episode, Peter Hunt discusses whether s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 can be used by CTP insurers to recover the Statutory Benefits they pay to an Injured Person from third party tortfeasors such as a local road authority.

Relevant case law and legislation

#79 – What is a “minor injury” under MAIA and what are the entitlements to treatment and care?

While working from home, Christina Vorillas and Ilkay Antepuzumu discuss the burning topic of what constitutes a “minor injury” under the Motor Accident Injuries Act 2017 and the entitlement to treatment and care. When can statutory payments of treatment and care continue beyond 26 weeks, despite suffering a minor injury? Can statutory payments for treatment and care continue indefinitely?  Is an injured person entitled to claim domestic service expenses provided to their dependants?

Relevant case law and legislation

#78 – Can a participant remain on NDIS benefits after settling their compensable injury matter?

This week, Helen Huang and Homira Haideri discuss what happens after a participant settles their compensable injury matter, are they entitled to remain on NDIS benefits? Is there a preclusion period similar to Centrelink? Is the participant’s benefits reduced by a compensation reduction amount?

Relevant case law and legislation

#77 – Section 62(1)(b): Fettering the unfettered discretion

Section 62(1)(b) of the Motor Accidents Compensation Act 1999 allows a CARS Assessor to refer a WPI dispute back to MAS for further assessment in appropriate circumstances. Importantly, a similar power exists in s 7.24(1) of the Motor Accident Injuries Act 2017. In this episode, Renee Reddy moderates a discussion between Paul Wholohan and Peter Hunt, both former CARS Assessors, regarding the factors which should be taken into account in exercising the discretion.

Relevant case law and legislation

#76 – How does the National Disability Insurance Scheme seek recovery?

This week, Helen Huang and Homira Haideri discuss the process of how the National Disability Insurance Scheme seeks recovery from a potential compensation payer.

Relevant case law and legislation

  • Sections 99, 109, 111 to 113, and 105 of the National Disability Insurance Scheme Act 2013 (Cth).

#75 – Suitability vs capability – is there a difference?

Join Renée Reddy and Ilkay Antepuzumu as they discuss the case of NRMA v Gurbuz Aslan [2019] NSWSC 158. Renée and Ilkay discuss the considerations that a Claims Assessor must engage with when determining discretionary exemption applications pursuant to Section 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW).

Renée and Ilkay further lionize judicial review decisions on discretionary exemption applications where the Insurer alleges false or misleading statements pursuant to 14.16.11 of the Guidelines in circumstances where a S 100 Directions may lack teeth.

Relevant case law and legislation

#74 – University v Paralegal life

This week, Angelina Boutouridis and Josephine Pan discuss their experiences in working as paralegals whilst completing their legal studies at university. The pair also discuss their first thoughts about CTP insurance law compared to what it is like to work in the area now, with more experience.

#73 – National Disability Insurance Scheme, who?

This week, Helen Huang and Homira Haideri discuss the National Disability Insurance Scheme governed by the National Disability Insurance Scheme Act 2013 (Cth). In particular, who they are, what their purpose is, and how NDIS impacts on a participant’s personal injury claim.

Relevant case law and legislation

#72 – The Medical Assessment Service Review Panel – do they need to have all the requested documents?

What happens when a Medical Assessment Service appointment proceeds without documents they have specifically requested? Christina Vorillas and Michael Li examine this notion with reference to whether there is a legal duty to abstain from the medical assessment and whether the parties are afforded procedural fairness when the appointment continues without the requested documentation.

Relevant case law and legislation

#71 – Statutory benefits for replacement services

Whilst an injured person may recover statutory benefits to replace their services to dependant nieces and nephews, the care of pets is not covered. In this episode, Peter Hunt discusses this, and other restrictions on the recovery of statutory benefits for replacement services.

Relevant case law and legislation

#70 – The lessons we were not taught

In this special episode of the Proper Lookout Podcast, Renée Reddy, Vid Dragomirovic and Peter Hunt discuss what they wish they had been taught in Law School but weren’t!

#69 – Top 3 cases from 2019

Welcome to 2020! To start the year, Eden Christopher has decided to take a look back at some of the cases he found most interesting from 2019 including AAI Limited v Singh, assessments of contributory negligence, and the defence of ‘joint illegal enterprise’ when a drug deal goes bad.

Relevant case law and legislation

#68 – The Mostly at Fault test in practice

The Mostly at Fault test has now been in play for over 2 years and the Dispute Resolution Service has been called upon to resolve a number of disputes between Insurers and Injured People. In this episode, Peter Hunt reviews actual DRS decision published on the SIRA website, involving pedestrian, single vehicle and driver versus driver claims.

Relevant case law and legislation

#67 – Multiplicity of issues in a CARS Re-hearing

In this episode, Renée Reddy and special guest, Marco Nesbeth, of Counsel, discuss a CARS Re-hearing in the District Court. The matter is podcast-worthy because it featured a hotly contested contributory negligence issue, a maze of inconclusive evidence on the Plaintiff’s economic loss and, ultimately, an argument over what costs orders should flow when the Plaintiff failed to improve his position from CARS.

#66 – EXTRA SPECIAL EDITION: Introducing MC Max

We have exciting news! In this episode of the Proper Lookout Podcast, members of the Statutory Insurance Group describe our intuitive app, MC Max, which is go for launch.

#65 – From Joni Mitchell to Darth Vader, what is it really like working for the Dark Side?

In this episode, Paul Wholohan and Chad Farah draw on their own experiences in breaking down some common myths about practising in insurance and provide a helpful checklist for both sides to, well, keep in check!

#64 – How does Singh impact Common Law claims?

In episode 60, we explored the Supreme Court decision in AAI v Singh, with a primary focus on its impact on statutory benefit claims. But what about common law claims? In this episode, Peter Hunt discusses whether Singh changes our thinking on no-fault accident claims under MAIA or blameless accident claims under MACA.

Relevant case law and legislation

#63 – Back to the future! Do we need a definition for a minor injury under MAIA? 

Join the esteemed MAIA Masterclass Panel comprised of Belinda Cassidy, Andrew Stone SC and Peter Hunt, as they discuss the current SIRA Review into the minor injury definition.

Relevant case law and legislation

#62 – The interplay of the mental harm provisions of the Civil Liability Act and MAIA

This week’s episode of the Proper Lookout Podcast continues our series following the MAIA Masterclass that we conducted on 17 September 2019 with Belinda Cassidy, Andrew Stone SC and Peter Hunt. Our esteemed panel were asked to consider the application of the mental harm provisions of the Civil Liability Act 2002 (NSW) to MAIA.

Relevant case law and legislation

#61 – Taxing times at the McCabe Curwood MAIA Masterclass

In this episode of the Proper Lookout Podcast, we present a snippet from the MAIA Masterclass we conducted on 17 September 2019. Our esteemed panel members, Belinda Cassidy and Andrew Stone SC answer a question regarding how the Scheme is performing, leading up to MAIA’s second birthday.

#60 – SPECIAL EDITION: AAI v Singh; the practical implications

On 17 September 2019, we conducted a MAIA Masterclass at McCabe Curwood with Belinda Cassidy, Andrew Stone SC and Peter Hunt as presenters. One of the topics discussed was the matter of AAI v Singh, which deals with how no-fault accidents interact with the statutory benefits regime. Singh had been argued in the Supreme Court the previous Friday and Judgment has now been handed down by Fagan J.

In this Special Edition of the Proper Lookout Podcast, we have reproduced all of Andrew Stone’s discussion at the Masterclass regarding Singh and Peter Hunt has added his own commentary regarding the outcome together with the practical implications for the management of statutory benefit claims.

Relevant case law and legislation

#59 – When to use a ‘buffer’ approach and how

In this week’s edition of the Proper Lookout Podcast, Vid Dragomirovic and Eden Christopher discuss when awards of damages based on a ‘buffer’ approach can be made and then how to make such an award stand up to judicial scrutiny. The award of buffers under the Motor Accidents Injuries Act 2017 is discussed as well as the recent decision of IAG v Priestly.

Relevant case law and legislation

#58 – Common law defence of joint illegal enterprise, how does it apply?

This week, Helen Huang discusses the recent NSW Court of Appeal decision of Bevan v Coolahan [2019] NSWCA 217. In particular, whether the driver owes the Plaintiff a duty of care where both the Plaintiff and the driver were on illicit drugs at the time of the accident.

Relevant case law and legislation

#57 – Obsession with minor injury test; is it pathological?

This week, Laura D’Alessandri and Peter Hunt look at some recent DRS decisions and some novel submissions on the relevance of pathology in assessing whether an Injured Person suffers a minor injury.

Relevant case law and legislation

#56 – Who was the driver? The High Court discusses the glaringly improbable

Laura D’Alessandri and Eden Christopher discuss the recent High Court decision of Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 28 (4 September 2019). In particular, they look at the High Court’s take on how the Court of Appeal ought to approach the trial judge’s advantage.

Relevant case law and legislation

#55 – Who is an earner who is not earning? 

In this episode of the Proper Lookout Podcast, Laura D’Alessandri and Chad Farah re-examine the definition of ‘earner’ under MAIA and the methods of calculating pre-injury earnings specifically in the context of a claimant who is injured whilst on maternity leave. In addition – and in exciting news – Chad reveals the winner of the question he posed in episode #47!

Relevant case law and legislation

#54 – Ayre v Swan: from Lethal Weapon to personal responsibility

In this episode, Katherine Teague and Peter Hunt discuss the recent decision of Ayre v Swan, where the Court of Appeal – in increasing contributory negligence from 50% to 80% – further diminished the `lethal weapon’ principle in assessing contributory negligence and gave more weight to the Plaintiff’s personal responsibility to look after their own safety. In less serious content, Katherine discusses the movie characters who have most inspired her career.

Relevant case law and legislation

#53 – Belinda Cassidy talks funeral expenses

The Motor Accident Injuries Act allows relatives of a deceased person to claim funeral expenses in the Statutory Benefits arena. In this episode, our first guest Podcaster, Belinda Cassidy, delves into some intriguing issues arising from what should be a straight-forward claim. Belinda is a Special Counsel of Stacks Goudkamp, a CARS Assessor in the old Scheme and both a DRS Assessor and a Merit Reviewer of the new Scheme.

Relevant case law and legislation

#52 – Liability Notices; what happens in Statutory Benefits stays in Statutory Benefits?

In this episode, Peter Hunt discusses the hot topic of whether an Insurer can change its position on liability when a claim is made for common law damages.

Relevant case law and legislation

#51 – It’s not my fault. I had a medical emergency!

Paul Wholohan and Vid Dragomirovic consider whether there are grounds to seek recovery from an insured driver who suffered from a medical emergency at the time of the motor vehicle accident.

#50 – Celebrating 50 episodes of the Proper Lookout Podcast

As we raise our bat and acknowledge the applause for our 50th episode, Renée Reddy, Vid Dragomirovic and Peter Hunt get together for an informal and unscripted chat about their favourite episodes of the podcast series.

#49 – Square pegs and round holes – applying CLA mental harm provisions to MAIA

Section 3.39 of the MAIA mandates that the mental harm provisions in Part 3 of the Civil Liability Act be applied to claims for statutory benefits “with necessary modifications”. Peter Hunt, in this episode, explores what necessary modifications might be required to fit the square peg of Part 3 of the CLA into the round hole of Part 3 of MAIA.

Relevant case law and legislation

#48 – Who is the relevant insurer when both vehicles are partly at fault?

The Motor Accident Injuries Act 2017 has introduced the CTP world to a number of new concepts including that of ‘the relevant insurer’. In this episode of the Proper Lookout Podcast, Lily Barbouttis and Eden Christopher run through the basics of who is ‘the relevant insurer’.

Relevant case law and legislation

#47 – So, who is an “earner”?

Under MAIA, injured persons are entitled to weekly payments to compensate for partial or total wage loss, as a result of an MVA, but only if they were an ‘earner’ when they were injured. Chad Farah looks at the meaning of the word ‘earner’ in this episode and provides a useful checklist for our listeners!

Relevant case law and legislation

#46 – More thoughts on the vexing Mostly at Fault dynamic

In this episode, Peter Hunt discusses some intriguing – but welcome – feedback we have received on recent podcasts regarding when an injured person might be mostly at fault.

Relevant case law and legislation

#45 – Resolving indemnity disputes in the Statutory Benefits arena

CTP practitioners will be familiar with the Court’s power to join an Insurer to court proceedings when the Insurer denies indemnity to its Insured. In this episode, Andrew Gorman addresses a (prominent) listener’s question regarding whether CTP insurers can deny indemnity in the Statutory Benefits arena of MAIA and how those indemnity disputes are resolved.

Relevant case law and legislation

#44 – MAIA Scheduled Costs; all the ins and outs

In this week’s episode, join Renée Reddy as she talks listeners through costs in the old scheme versus the new scheme. Renée discusses the application of MAIA Scheduled Costs as well as what happens with costs when either the Claimant or Insurer rejects the DRS assessment of Damages.

Relevant case law and legislation

#43 – What happens when the injured person is partially, but not mostly, at fault?

When can weekly statutory benefits be reduced for contributory negligence under section 3.38 of MAIA? In this episode, Homira Haideri and Helen Huang discuss the impact of partial fault on statutory benefits.

Relevant case law and legislation

#42 – When will a passenger be ‘mostly at fault’ under the Motor Accident Injuries Act?

In this week’s episode of The Proper Lookout Podcast, Jessica Shillington and Eden Christopher talk about a number of past decisions where a passenger would have been found ‘mostly at fault’ under the Motor Accident Injuries Act 2017.

#41 – When are injured people mostly at fault?

One of the new concepts introduced by the Motor Accident Injuries Act is the mostly at fault test. But what does an injured person have to have done wrong to be found mostly at fault for the accident? In this episode of the Proper Lookout Podcast, Peter Hunt talks listeners through the McCabe Curwood Mostly at Fault Guidelines.

Relevant case law and legislation

#40 – Date of discoverability and commencing proceedings – more than a state of mind?

In this week’s podcast, Daniel Nastevski and Boris Necovski look at the 2019 NSW Supreme Court decision of Pomare v Hogan, which looks at the following sections of the Limitation Act 1969:

  • Section 50C which addresses commencing proceedings within 3 years after a cause of action is discoverable; and
  • Section 50D(1)(b) which addresses when a Plaintiff knew or ought to have known of a Defendant’s fault.

They delve into the importance of identifiable facts and documentary evidence pertaining the Plaintiff’s state of mind, in order to discharge a Defendant’s duty to prove what a Plaintiff knew or ought to have known regarding a Defendant’s fault prior to the date of discoverability.

Relevant legislation

Relevant case law

#39 – Statutory benefits for pure mental harm

How do the mental harm provisions of the Civil Liability Act 2002 play out in the statutory benefits arena under the Motor Accident Injuries Act 2017? In this episode, Mandy Jaswal examines this fascinating question.

Relevant legislation

#38 – Costs under MAIA v costs under Workers Compensation

In this episode, Chad Farah examines the costs recoverable and payable for both statutory and common law claims under the MAIA Regulations, and how they compare to costs under the Workers Compensation and Work Injury Damages schemes. How similar are those schemes in terms of costs? What lessons can we learn from each? Tune in for a detailed analysis.

#37 – When can statutory benefits be cut off under MAIA?

Can statutory benefits be cut off under MAIA? Vid Dragomirovic takes us through the restrictions and limitations that are in place after a claim is made.

Relevant legislation

#36 – Verification of a motor vehicle accident under MAIA and dispute resolution

Daniel Nastevski and Katherine Teague, in this episode, discuss the various requirements in order to verify a motor vehicle accident under MAIA and when an Insurer can begin to deal with claims for statutory benefits or claims for damages.

Relevant legislation

#35 – Can you explain a 16-year delay?

Is it even possible to satisfactorily explain a 16-year delay in lodging a claim? In this week’s podcast, Eden Christopher looks at the decision in Wellington v Lawler where an injured person had to explain why he did not lodge a CTP claim until 2015 for a motor vehicle accident that occurred in 1998!

Relevant case law

#34 – Grounds for suspension of weekly payments under MAIA

Katherine Teague, in this episode, discusses the various grounds in which the Insurer can suspend weekly payments under MAIA and comments upon the similarities between the NSW CTP and Workers Compensation schemes.

Relevant legislation

#33 – Is the 10% WPI threshold relevant under MAIA? Let me count the ways

In addition to representing the gateway to an award of damages for non-economic loss, the 10% threshold has an expanded role under MAIA in both the Statutory Benefits Arena and in claims for Common Law Damages. In this episode, Andrew Gorman counts the ways.

Relevant legislation

#32 – Common law claims procedure under MAIA

With MAIA common law claims expected in 2019, Vid Dragomirovic looks at the procedural requirements which the Claimant must meet to make a common law claim.

Relevant legislation

#31 – Assessing post-accident capacity after 78 weeks

In this episode, Peter Hunt continues the mini-series of podcasts addressing how weekly statutory benefits are calculated by exploring how the test for post-accident capacity changes after 78 weeks.

Relevant legislation

#30 – Close encounters of the third kind: calculating weekly payments

After podcasting about PAWE, we now turn to the formulas for calculating weekly payments of statutory benefits in the first, second and third entitlement periods. In this episode, Tain Moxham has a close encounter with how the formula changes after 78 weeks.

Relevant legislation

#29 – Assessing PAWE for students, apprentices and trainees under MAIA

Katherine Teague, in this episode, explores how pre-accident weekly earnings must be assessed under MAIA where injury is sustained by a young person, at the start of their career.

Relevant legislation

#28 – How to calculate PAWE and other complexities

One of the critical issues in statutory benefit claims under MAIA is how to calculate the injured person’s pre-accident average weekly earnings, particularly where their earnings are not consistent. In this episode, Peter Hunt examines the relevant provisions and discusses two interesting Merit Review decisions.

Relevant legislation

#27 – The first claims for common law damages under MAIA

With claims for common law damages under the Motor Accidents Injuries Act expected in August this year, Eden Christopher from our statutory insurance team provides a brief snapshot of who can lodge claims for damages and what they can claim.

#26 – Top 10 differences between MAIA and the Workers Compensation Scheme

In this episode Chad Farah examines the superficial similarities between MAIA and the Workers Compensation Act 1987, but more so the fundamental differences between the two schemes as well as the pros and cons of their respective regulatory frameworks.

#25 – Phantom passengers and the onus of proof

In the first episode of the Proper Lookout Podcast for 2019, Helen Huang unmasks the law on who bears the onus of proof in phantom passenger cases.

Relevant case law

#24 – Early assessment of minor physical injuries

In the final episode of the Proper Lookout Podcast for 2018, Audrey Egan examines how DRS has been assessing minor physical injuries.

#23 – Navigating the unchartered territory of minor psychological injuries

Join Renée Reddy & Elana Chandran as they explore what constitutes a minor psychological injury according to MAIA. They explore some of the recent decisions by the DRS regarding the interpretation of minor psychological injuries and the challenges that lie ahead.

#22 – Happy first birthday MAIA – let’s party like it’s 1999

As the Motor Accident Injuries Act 2017 celebrates its first birthday this week, Peter Hunt takes the opportunity, in this episode of the Proper Lookout Podcast, to review some statistics provided by SIRA and to identify some early trends.

#21 – The scope of a CTP insurer’s liability in industrial accidents

When an accident, involving a motor vehicle, occurs on a work site or in a warehouse, tricky issues arise over whether the CTP policy responds. In this episode of the Proper Lookout Podcast, Boris Necovksi, from our public liability and statutory insurance teams, discusses some key cases with Eden Christopher, from our statutory insurance team.

Relevant case law

#20 – The Zenith of Pedestrian Case Law – Derrick v Cheung

This week, the McCabe Curwood Insurance and Government teams have made themselves at home at the Zenith Centre in Chatswood, with the option of hot-desking at the MLC office when necessary. With a focus on agility and mobility, Future Workplace is here. To mark the occasion, Peter Hunt, in this episode of the Proper Lookout Podcast, reviews the impact of the most famous CTP claim arising from a motor accident in Chatswood.

Relevant judgments

#19 – To review or not to review – that is the question

Judicial Review involves a consideration of what constitutes ‘the face of the record’. Whilst a claims assessor’s reasons clearly form part of the record, what about schedules to an accountant’s report which are adopted by the assessor in his calculation of economic loss? In this episode, Paul Wholohan discusses a recent Court of Appeal decision which answers this question.

#18 – No-fault accidents and driver exclusions

Pending enactment of amending legislation currently before the NSW Parliament, injured drivers in no-fault accidents occurring after 1 December 2017 remain excluded from both common law damages and statutory benefits. But will the amendment be sufficient to give drivers in single no-fault accidents a remedy? And if they are entitled to statutory benefits, must those benefits cease after 6 months? In this episode, Andrew Gorman discusses the mental gymnastics necessary to get to the answer.

#17 – What constitutes a minor psych injury

Persons suffering minor injury are limited to 6 months of statutory benefits and are unable to claim common law damages under the Motor Accident Injuries Act 2017. In a previous episode of the Proper Lookout Podcast, James Kang used an injury to his own elbow to examine what constitutes a minor physical injury. In this episode, Andrea Dickinson discusses minor psychiatric injuries, by distinguishing between an adjustment disorder, major depression and post-traumatic stress disorder.

Relevant legislation

#16 – What is a ‘serious driving offence’ pursuant to MAIA?

Section 3.37 of the Motor Accident Injuries Act 2017 provides that statutory benefits are not payable to an injured person after the person has been charged with or convicted of a ‘serious driving offence’ that was related to the motor accident.  In this episode, Christina Vorillas and Amy Joyce look at what constitutes a serious driving offence.

Relevant legislation

#15 – What’s my liability anyway?

The Motor Accident Injuries Act 2017  has introduced a complex interaction of provisions, involving a mixed first party / third party scheme and a hybrid system of fault and no-fault statutory benefits supplemented by a totally fault-based entitlement to limited common law damages. Adding to the complexity is the injection of blameless accident provisions which apply both to statutory benefits and common law damages. Gone are the days when Claimants simply sued the owner or driver alleged to be at fault for damages.

In this episode of the Proper Lookout Podcast, Peter Hunt provides some insight into how the complex scheme might operate in practice by contrasting an Insurer’s liability for statutory benefits in the first six months, statutory benefits beyond six months and for common law damages.

Relevant documentation

#14 – How Section 118 permits recovery of payments obtained through deception

Section 118 of the Motor Accidents Compensation Act 1999 allows the Insurer to recover the amount of financial benefit obtained by reason of misleading conduct. In this episode of the Proper Lookout Podcast, Homira Haideri and Elana Chandran discuss what the Insurer has to do to invoke s 118.

Relevant case law and legislation

#13 – How does the MAIA affect a workers compensation insurer’s right to recovery pursuant to s 151Z?

Section 3.35 of the Motor Accident Injuries Act 2017 provides that an injured person is not entitled to CTP statutory benefits if they are entitled to workers compensation arising from the same accident.

How does this affect a workers compensation insurer’s right to recovery pursuant to Section 151Z of the Workers Compensation Act 1987? Laura D’Alessandri and Jessica Shillington discuss a range of issues arising from this interplay in this episode of The Proper Lookout Podcast.

Relevant case law and legislation

#12 – Court of Appeal tells us when to apply a reduction for vicissitudes on future treatment and commercial care

Anybody involved in personal injury litigation is accustomed to applying a 15% deduction to their calculation of future loss of earnings to reflect the vicissitudes of life. But should we also apply vicissitudes to future treatment and future commercial care? Chad Farah and Eden Christopher discuss this intriguing question in this episode of The Proper Lookout Podcast.

Relevant case law and legislation

#11 – Elbow Bone of Contention – What constitutes a “minor injury”?

With the introduction of the Motor Accident Injuries Act, the Insurer’s “minor injury assessment” plays a critical role in determining an injured person’s entitlement to ongoing statutory benefits and their right to pursue common law damages. But what is a “minor injury”? In a remarkable act of self-less devotion, James Kang injured his left elbow in a snowboarding accident to obtain first-hand experience of what distinguishes a minor injury from a non-minor injury. He discusses his findings in this episode of the Proper Lookout Podcast.

Relevant case law and legislation

The accident on YouTube

#10 – The Hunt for the Red Corolla – Is due inquiry and search required in statutory benefit claims?

There has been some debate over whether an injured person is required to conduct due inquiry and search in claims for statutory benefits against the Nominal Defendant. In this episode of the Proper Lookout Podcast, Tain Moxham and Eden Christopher attempt to produce the definitive word.

#9 – Better late than never

Our Statutory Insurance Team has seen an exponential rise in the late lodgement of Personal Injury Claim Forms and the commencement of proceedings outside the statutory limitation period under the Motor Accidents Compensation Act 1999 (NSW). This has occurred following the enactment of the Motor Accident Injuries Act 2017 (NSW), demonstrating an active attempt at pushing through tail end claims under the old scheme. Vid Dragomirovic goes back to the basics in testing the theory – it’s better late than never.

#8 – No-nonsense negotiating – the science behind achieving settlements

On this week’s podcast, Zeb Holmes dives into what behavioural economics and psychology can teach us about achieving settlements. From arranging your conference to sending the finalised deed, Zeb looks at some easy tips and tricks that will make you a Jedi Negotiation Master.

#7 – Just Say No – How is contributory negligence influenced by alcohol?

This week, James Kang and Eden Christopher return to the Proper Lookout to discuss the level of contributory negligence you might expect where either the Plaintiff or the driver of the vehicle is affected by alcohol.

#6 – Autonomous Vehicles – The State of Play

Fully autonomous, or self-drive vehicles are likely to be on the roads of Australia in real numbers in 5 to 10 years. Analysts are predicting a massive new economy will evolve around the industry as it emerges. An industry which, according to Boston Consulting Group, will be worth US$42 billion by 2021. In this episode of the Proper Lookout Podcast, Andrew Gorman examines the state of play of the technology here and abroad, the evolution of the regulatory framework and guidance to be taken from very recent UK legislation in terms of liability when accidents happen.

#5 – Settlement shenanigans!

The recent Supreme Court case of Midland Metals Overseas v Australian Cablemakers Association (No 2) [2018] NSWSC 1128 got Udipta Harrypersadh and Laura D’Alessandri sharing settlement stories they’ve collected from the McCabe Curwood team.

Relevant case law and legislation

#4 – MAIA puts contributory negligence under the spotlight, again!

Everyone’s talking about contributory negligence and what, “Mostly at Fault” means under the newly enacted Motor Accidents Injuries Act 2017.  Under MAIA, statutory benefits cease after 6 months if the party is found ‘mostly at fault’ for the accident.  So what is, ‘mostly at fault’?  James Kang and Eden Christopher have a look at some interesting examples involving bicycles and blameless accidents to provide guidance on how contributory negligence is assessed in these situations and consider what it means to be ‘mostly at fault’…

Relevant case law and legislation

 #3 – When MACA met MAIA – Pirates of Nambucca Heads

Everybody loves a war story. In this episode of the Proper Lookout Podcast, Laura D’Alessandri asks Peter Hunt to describe his most memorable CTP accident from the past and – in a theme which will be revisited frequently in the `When MACA met MAIA” mini-podcast series – how the claim would be handled differently under the Motor Accident Injuries Act 2017.

Relevant legislation

#2 – All the single vehicles! (all the single vehicles!) – now put your hands up!

Many single vehicle blameless accident claims, under the Motor Accidents Compensation Act 1999, have been withdrawn following the Court of Appeal’s decision in Whitfield v Melenewycz [2016] NSWCA 235. Yet claims by employees driving work vehicles continue to linger. In this episode of The Proper Lookout Podcast, Laura D’Alessandri discusses her triumph in Galluzzo v JJ Richards [2018] NSWDC 165 and how insurers can use the decision to their advantage.

Relevant case law and legislation

#1 – Through the Looking Glass

How can no-fault Claimants be denied Statutory Benefits in a no-fault scheme?

Baby MAIA is now 7 months old and is exhibiting some teething problems. One such problem, which is causing MAIA’s carers to reach for the pacifier, is how the no-fault provisions apply in a statutory benefits scheme where the injured person is not required to demonstrate fault. Peter Hunt does his best to make sense of this madness in the first edition of “The Proper Lookout”, a Podcast Series by McCabe Curwood.

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