Ian Jones, Partner, gives us his ‘top ten CTP developments’ for 2014 and the impact they’ve had on the industry

Author: Ian Jones

Citation: n/a

Jurisdiction: Various

“2014 has seen a number of important legal developments. We have seen a shift in the way the Court apportions contributory negligence, a High Court decision dealing with the cost of funds management, a string of Court of Appeal decisions regarding buffers and future economic loss, and significant changes to the Claims Assessment Guidelines and the Personal Injury Claim Form. Our top 10 CTP developments for 2014 will refresh your memory and ensure you’re on top of the key developments of the year. Our team are always available to talk though the key points of a decision, in an informal one-on-one conversation or by holding a personalised, face-to-face seminar with your team. Merry Christmas and a happy New Year from everyone at Curwoods”.

1. Contributory negligence

The judgments in Boral Bricks Pty Ltd v Cosimidis and T and X Company Pty Ltd v Chivas demonstrated a ‘changing of the guard’ from relative culpability to respective carelessness. This is a dramatic shift and should be understood by all your team members because it has significant implications in pedestrian v motor vehicle accidents. We provided an Industry News briefing in July 2014, which foreshadowed further changes when a matter comes before the full Bench of the Court of Appeal.

2. Changes to the Claims Assessment Guidelines and section 81 notices

In May, the Claims Assessment Guidelines underwent an overhaul as a result of the 2013 decision of Smalley. The most notable change was that the Claims Assessment and Resolution Services (CARS) will now handle all matters involving an allegation of contributory negligence and the form and content of section 81 notices came under the microscope to give more certainty to claimants. For a summary of all the changes see our Industry News from April 2014. 

3. Future economic loss and buffers

When there are uncertainties in calculating and predicting a future earning capacity, a CARS Assessor or Judge is afforded discretion in apportioning weight to factors that he or she considers appropriate or relevant (QBE v Volokhova). Likewise, awards of future economic loss must be based on identifiable assumptions as to the claimant’s most likely circumstances but for the injury (Pham v NRMA).

4. Assessing damages for non-economic loss

Quantifying and estimating non-economic loss can be difficult. RACQ v MAA provides a reminder that calculating this head of damage relies on multiple factors informed by the common law and not the percentage proportionality principle.

5. The evidentiary standard for an award of future commercial domestic assistance

In the matter of Gordon v Truong, amongst other implications, the Court of Appeal determined that inferences may be drawn in favour of the plaintiff where there is no evidence to support an award for future commercial domestic assistance.

6. When is a vehicle 'driving' to enliven the Motor Accidents Compensation Act 1999 (NSW)?

Eptec v Alaee focused on the ‘intention to drive’ as an important element in determining whether an injury involving a motor vehicle was caused, ‘during the driving of a motor vehicle’. In Leach v Nominal Defendant, a claimant contended that a drive-by shooting which caused an injury enlivened the Act. The Court ruled that the dominant cause was not the driving of a motor vehicle but the purposeful discharge of the firearm. Therefore, the proximate cause of the injury has nothing to do with the use or operation of the vehicle.

7. 'Funds management on funds management'

This is probably one of the more confusing concepts and we are often asked to explain what it is in more detail. The decision of Gray v Richards provides a definitive High Court judgment confirming that a claimant is entitled to be compensated for the costs of managing the fund management component of the awarded damages. 

8. New Personal Injury Claim Form

As from January 2015, the Personal Injury Claim Form no longer needs to be accompanied by a statutory declaration. Statutory protection of insurers against fraudulent claims still exists and a new claim form is currently being circulated. The full implications were outlined in our Industry News from November 2014.

9. Causation and the reverse onus of proof

In Allianz v Mackenzie, the Medical Assessment Service (MAS) Review Panel made a determination and stated that there was insufficient evidence provided to oppose that an injury occurred as a result of a motor accident. This effectively required the insurer to prove an injury did not occur. The judge in this case held that this is an incorrect approach when determining causation and sent the matter back to MAS for determination according to the law. See Allianz v Mackenzie for a detailed breakdown.

10. Procedural fairness at the MAS Review Panel

Procedural fairness is a foundation of our justice system. The MAS Review Panel is required to draw critical facts to the attention of the claimant. The decision in Frost v Kourouche  highlights that the Motor Accidents Authority guidelines will always be subservient to the primacy of the common law and the Motor Accidents Compensation Act 1999 (NSW). 

Please see individual case notes for a list of applicable citations.