Welcome to the The Proper Lookout Podcast published by the Statutory Insurance Group of McCabe Curwood. In this series, our CTP experts discuss a range of topics – sharing their thoughts on an industry trend or intriguing legal issue, explaining the intricacies of an important case, and hopefully imparting some of the knowledge they have gained.
#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?
#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.
#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  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.
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.
#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.
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.
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.
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.
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.
#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.
#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.
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.
#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  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.
#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  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.
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!
#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.
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.
#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.
#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’.
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!
#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.
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.
#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.
#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.
#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.
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.
#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.
#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.
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!
#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.
#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.
#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.
#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.
#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 Farahexamines 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.
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.
#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.
#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.
#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.
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.
#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 Chandrandiscuss what the Insurer has to do to invoke s 118.
#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.
#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.
#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.
#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)  NSWSC 1128 got Udipta Harrypersadh and Laura D’Alessandri sharing settlement stories they’ve collected from the McCabe Curwood team.
#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’…
#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.
#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  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  NSWDC 165 and how insurers can use the decision to their advantage.
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.