The recent NSW regulations, in particular 11(1)a has had an effect on the amount of work in NSW and increases the fee schedule for expert witnesses. I have included a commentary from McInnes Wilson Lawyers
(1) Costs are not to be included in an assessment or award of damages in respect of any expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of:
(a) one medical expert in any specialty (my emphasis) unless there is a substantial issue as to a matter referred to in section 58 (1) (d) of the Act
(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as
“medical assessment matters” ):
(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The Regulations retain the existing fee structure with respect to medical treatment and medico-legal services however, provide an increase on the maximum allowable fees.
With respect to medical treatment, Clause 19 states that an insurer is not required to pay beyond what is specified in the Australian Medical Association (‘AMA ’) List of Medical Services,
The maximum fees recoverable for medico-legal services are set out in Schedule 2. These are based on the Schedule of Suggested Fees for Medical xaminations and Reports which is determined by the Law society of NSW and the AMA. There is an increase in medico-legal fees to reflect current market rates. For example, a medico-legal report obtained from a specialist who has not previously treated the claimant and requires an examination has increased from $720 to $1,200. There is also an incentive for parties to obtain joint medico-legal reports by providing a higher recoverable fee (up to $1,600) in an attempt to reduce appointments for an injured claimant.
A further amendment contained within the Regulations is the inclusion of Clause 10(3) which states that the costs of obtaining an initial treating medical report cannot be claimed by an injured claimant’s practitioner if the insurer has already obtained a report and provided a copy to them. If, however, a request has been put in writing for a copy of the report, and the insurer has failed to provide same within a reasonable time, the cost of a second report can be claimed. This restriction does not extend to updated treating reports subsequent to the initial report.
Investigation Reports and Expert Witnesses
Clause 11 of the Regulations maintains the restriction on claiming costs related to expert witnesses and reports.
There is a presumption that only one medical expert in any specialty and two experts of any other kind can be included in an assessment or award of damages.
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