The Proper Lookout Podcast

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.

#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.