Under the new CTP scheme which commenced on 1 December 2017, claimants are entitled to statutory benefits for at least six months, regardless of whether they are at fault or not.
At approximately three months after the accident, the insurer will make a determination as to whether or not the claimant was at fault for the accident, or mostly at fault for the accident. In the event it is determined that the claimant was wholly at fault or mostly at fault (calculated at 61% or more), the insurer will determine that the claimant is no longer entitled to statutory benefits. This will also prevent the claimant from making a claim for common law damages, even when they have sustained more than a minor injury.
In our experience under the new scheme, insurers appear to be very quick to deny liability on the basis of an assertion that the claimant was at fault. In many cases, the insurer’s decision has been unjustified with little to no investigation or evidence supporting the decision. For this reason, it is crucial that injured motorists seek legal advice when a determination has been made that they were at fault, or mostly at fault for an accident.
In respect of statutory benefit disputes, a miscellaneous dispute application needs to be lodged with the Dispute Resolution Service. As with all applications under this scheme, time is of the essence. Failure to seek an internal review immediately after a decision may prevent a claimant from accessing the Dispute Resolution Service. In those situations they would be left with the insurer’s decision.
It is recommended that claimants keep records in relation to motor accidents, particularly where there is a fault dispute. Such records would include photographs, diary notes, emails and property damage information. CCTV, mobile phone footage and dash cam footage can also prove to be valuable.
In most cases, the fault dispute will be determined by a Claims Assessor at the Dispute Resolution Service by way of a teleconference or a in some circumstances, a face to face hearing. Therefore, these matters usually require detailed statements and submissions. Accordingly, it is recommended that claimants seek legal advice at the earliest opportunity so that this material may be adequately prepared.