Claims for damages assessment
Disputes are assigned to the most appropriate dispute resolution pathway.
Parties to a claim must use their best endeavours to settle the claim before referring it for assessment.
Motor accidents disputes – 2017 scheme
Disputes are assigned to the most appropriate dispute resolution pathway.
Select content
Lodgment
- Lodgment
- Teleconference
- Assessment conference
- Agreements and decisions
Lodgment
When to lodge an application for claim for damages assessment
A claim for damages may be lodged with the Commission by the claimant, the insurer or both. The claim must be lodged within three years of the accident occurring, unless the applicant provides a full and satisfactory explanation for the delay and the Commission grants leave for the claim to be referred for assessment.
Exempt claims
Some claims are exempt from damages assessments by the Commission because the Motor Accidents Injuries Act 2017 excludes them. These are claims:
- in which the claimant is a person under legal incapacity
- involving an action under the Compensation to Relatives Act 1897 (NSW) brought on behalf of a person under legal incapacity
- made against a person other than an insurer
- in which an allegation of fraud has been made against the claimant by the insurer, or
- where the insurer has declined to indemnify the owner or driver of the at-fault vehicle under the at-fault vehicle's third party policy.
Some damages claims are not automatically exempt from assessment but may not be suitable for assessment. Such claims may be granted an exemption. In these claims, a member makes a preliminary assessment of the claim and determines, with the approval of the Division Head, that the claim is not suitable for assessment in the Commission.
In determining whether a claim is not suitable for a claims assessment, a member and the Presidentwill have regard to the objects of the Motor Accident Injuries Act 2017, the objects of the Personal Injuries Commission Act 2020, and all of the circumstances of the claim. This may include, but is not limited to, whether:
- the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim
- the claim involves issues of liability, including issues of contributory negligence, fault and/or causation
- a claimant or a witness, considered by the member to be a material witness, resides outside New South Wales
- a claimant or insurer seeks to proceed against one or more non-CTP parties and/or the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries or loss or damage sustained in the accident, giving rise to the claim.
What happens when a claim is exempt?
When a claim is exempt, the Division Head will issue a certificate of exemption and court proceedings will need to be commenced within timeframes set out in the legislation.
How to lodge an application
Applications to resolve a claim for damages dispute should be lodged via the Commission’s online portal.
If a self-represented claimant is unable to use the portal to lodge their application, they may contact the Commission to obtain a PDF copy of the form or have an application mailed to them. These applications may be lodged via email or post, or in person at the Commission.
An application for a damages claims assessment, including for exemption from assessment, must include details of:
- the best endeavours that the parties have used to try to settle the claim before referring it for assessment, including for exemption from assessment
- the issues in dispute between the parties.
How to respond to an application
The respondent to an application for mandatory exemption from claims assessment must lodge a reply to the application and serve a sealed copy of the reply on the other parties within 14 days of the registration of the application.
In the case of an application for discretionary exemptions, respondents must lodge and serve a sealed copy of the reply on the other parties within 21 days of the application being registered with the Commission.
The response must be lodged through the Commission’s online lodgement portal.
If a self-represented respondent is unable to use the portal to lodge their response, they may contact the Commission to obtain a PDF copy of the form or have a copy mailed to them. These forms and the accompanying documents may be lodged via email or post, or in person at the Commission.
All relevant information that has not been included by the applicant should be attached by the respondent at the time the response is lodged. Respondents may not be able to submit further information at a later time.
Teleconference
A teleconference is frequently the first contact the parties will have with the member to whom the claims dispute is allocated.
What to expect at a teleconference
The member conducting the teleconference will have read all the information on which each party relies.
The teleconference is usually attended by:
- the claimant’s legal representative
- the insurer
- the insurer’s legal representative
The member will decide how the matter should proceed. It may be appropriate to issue directions to provide further information and documentation, schedule another teleconference, or allow the dispute to proceed to the next stage of the resolution process (an assessment conference).
Parties may not contact the member directly. All correspondence must be conducted via the Portal or through the Commission.
Preparing for a teleconference
The parties involved in a teleconference will usually choose to participate from a quiet location where there are no distractions or background noise. Claimants can participate from their home or they may prefer to attend their legal representative’s office to participate.
Only documents that have previously been lodged with the dispute resolution application, or the reply to the dispute resolution application, can be referred to during the teleconference, unless the Commission allows the addition of further documents.
Assessment conference
An assessment conference is a meeting conducted by a Member, who will attempt to bring the parties to agreement but will make a final determination in the matter where agreement cannot be reached.
What to expect at an assessment conference
The assessment conference is usually held at the Commission’s premises on level 21, 1 Oxford Street, Darlinghurst, Sydney, or at one of the Commission’s regional locations. In some circumstances a videoconference may be used instead of a face-to-face meeting.
The assessment conference may be attended by:
- the claimant
- the claimant’s legal representative
- the insurer
- the insurer’s legal representative
- an interpreter, if needed
- relevant witnesses, if permitted by the Member.
The Member will explain the process, assist the parties to identify the issues in dispute, then attempt to bring the parties to an agreement about some, or all, of the issues. The parties may be allowed some time to discuss the issue between themselves.
As the Member is independent and impartial, they will not talk to any party unless all other parties are present.
If the dispute is resolved at this stage, the proceedings will end, and the Commission's file will be closed.
If the Member forms the view that the dispute is not capable of being resolved by agreement of the parties, the Member will make an assessment based on the information and proceedings to date.
In conducting a claims assessment, the Member must make a determination on the issue of liability and specify the amount of damages for the claim. In doing so, they should have regard to information that is conveniently available to them.
The Member may include an assessment of the claimant’s costs in their decision.
Agreements and decisions
A dispute may be finalised or resolved in three ways: by agreement between the parties; by the applicant discontinuing the application; or by the Member making a decision.
When a decision is made by a member
If no agreement is reached between the parties, the member will determine the dispute and the Commission will issue a Certificate of Determination to all parties, setting out the Member’s decision and reasons for their decision.
The Commission is committed to the publication of its decisions. To find a decision made by the Commission, please follow this link.