Motor accident changes to exemptions post-Smalley

13/02/2014

Late last year the MAA announced revisions to various guidelines following the NSW Court of Appeal decision in Smalley. The primary change was to keep all cases where breach of duty of care was denied or contributory negligence alleged within the CARS system. The Bar Association made representations to the MAA, pointing out potential negative consequences. The MAA has relented somewhat. New guidelines are to be gazetted in early March.

Under the new guidelines

• All children’s cases will continue to be exempted.
• Cases where breach of duty of care is denied will be exempted.
• An allegation of contributory negligence will not be enough to see a matter have a mandatory exemption, although there can still be a discretionary exemption.
• Deny of liability for a procedural breach (late claim, absence of due search and inquiry, absence of diagnosable psychiatric condition) will see the case kept within the CARS system (subject to a discretionary exemption).

Exemptions on discretionary grounds

These provisions are set to apply to all applications for exemption lodged after the guideline changes are gazetted. The primary change is that procedural denials of liability and allegations of contributory negligence in excess of 25% will now be kept within the CARS system and only exempted on discretionary grounds.

Applications before the end of February

Practitioners who have such cases and wish them exempted should be advising instructing solicitors to lodge an application before the end of February. A link to the MAA’s most recent correspondence regarding the proposed changes is here. A link to the Bar Association’s submission in relation to the original proposal is here.