After many years and a large volume of legal proceedings over personal injury and wrongful death claims arising from road accidents, Fiji has decided not just to update its legislation but to completely overhaul its system, by mandating a ‘no fault’ system of compensation in place of motor vehicle third party insurance.
The Legislation that came into force on 1 January 2018 is – The Accident Compensation Act 2017 (the “Act”) and related regulations
In this commercial law update we analyse how the new legal framework of 'no fault' compensation is intended to work and highlight some grey areas.
What does the new Act mean for drivers purchasing 3rd party insurance?
Prior to 1 January 2018, all motor vehicle owners were obliged by law to procure or renew motor vehicle third party insurance policies from one of Fiji's insurance providers. However, from 1 January 2018 the motor vehicle owners must pay a new compulsory levy to the Land Transport Authority (“LTA”) for cover under the Act. Existing policies as of 1 January 2018 continue in force until they expire, but all claims for accidents occurring on or after 1 January 2018 are handled pursuant to the Act.
The Act repeals the Motor Vehicles (Third Party Insurance) Act ("repealed Act"), however all personal injury and wrongful death claims from road accidents arising prior to 1 January 2018 are still governed by the provisions of the repealed Act.
The Act creates the Accident Compensation Commission Fiji
The Act creates the Accident Compensation Commission Fiji (the “Commission”). The Commission is a statutory body that replaces the role previously undertaken by the insurance companies but with some notable differences.
As per the Accident Compensation Regulations, the Commission is limited to paying a maximum amount of compensation as follows:
· Permanent partial incapacity - $75,000
· Permanent full incapacity -- $150,000
· Other injuries than (a) or (b) - $75,000
· Death - $75,000
New legal process for Claimants
Under s 33 of the Act, any claim for compensation for personal injury or death from a road accident occurring on or after 1 January 2018 covered by a third party insurance policy must be made to the Commission (not the third party insurer).
Any person who is the victim of an accident in Fiji from 1 January 2018 must under the new Act, file his or her claim with the Commission within 3 years from the date of the accident. The claimant must complete the prescribed form attached to the Accident Compensation Regulations 2017.
In terms of the legal obligations of Claimants and others, it is imperative to involve the Commission prior to commencing any legal proceedings in Court. For example:
· Section 20 of the Act says any applicant seeking compensation for personal injury or death arising out of a road accident occurring after 1 January 2018 must apply to the Commission within the three year period.
· Under s 23 of the Act, if third party insurance applied, the insurer must reimburse the Commission for any compensation paid to the extent of the insurance cover.
· Under s 28 of the Act, any person instituting a proceeding in any court or tribunal, whether for themselves or another person, for compensation or damages for personal injury or death from a road accident, must serve a copy of all pleadings in the proceeding on the Commission. If the Commission is not served, the Tribunal or Court will not hear the claim until it is satisfied that the Commission has been duly served.
New legal process and obligations for Defendants
Any person against whom any proceedings arising from an accident is instituted, (i.e. named as a defendant), must notify the Commission immediately and provide it with copies of the pleading. Any such defendant must not make any offer, payment, settlement or admission of liability, or agree on quantum of damages or compensation, without first obtaining the Commission’s consent in writing.
The Act will affect Courts and tribunals
The Act provides that Courts and tribunals are not to hear or determine claims for compensation for personal injuries or death arising from a road accident until they are satisfied that the Commission has been served with all the pleadings in the proceedings and been given an opportunity to appear, be heard and defend those proceedings.
The Commission may undertake settlement, take over the conduct of the proceeding or defend the proceeding, and the defendant is deemed to have authorized this.
The effect on third party insurers
Third Party Insurers should be careful to comply with the notice requirements of the Act in respect of any claims arising after 1 January 2018, and not handle the claims on their own. Existing third party policies may be transferred to the Commission on payment of the remaining premium on such policies to the Commission, as per the regulations.
The effect of a Claim under the Act
Under s 24 of the Act, acceptance of compensation under the Act bars any other claims or proceedings in any court or tribunal for compensation or damages for personal injury or death from that accident.
A claimant can only proceed to court after the rejection of compensation
If the claimant rejects the compensation offered by the Commission, the claimant may continue with legal proceedings to recover compensation or damages. The Commission is still liable to pay the resulting judgment under s 18 of the Act.
When a claimant cannot make a claim under the Act - Exclusions from ‘no fault’ cover
Under the Accident Compensation Regulations 2017, there are a number of instances that are excluded from compensation under the Act, including a claimant driving under the influence of alcohol or drugs, driving without a valid license, convicted of an offence directly causing the accident, suicide or attempted suicide, claiming for an injury not directly arising from the accident and a claimant who is the owner of a motor vehicle who hasn’t paid the levy.
Grey areas - that will need to be clarified
It is not clear how the Act will work in conjunction with the workers compensation statutory scheme where the road accident has occurred in the course of employment.
At present, employees suffering personal injuries or death as a result of an accident while in the course of employment may claim compensation for their injuries under the Workmen’s Compensation Act (Cap 94). However, s 25 of the Workmen’s Compensation Act, while allowing an employee or the employee’s representative to sue the employer in a civil court independently of the Workmen’s Compensation Act, also states that a judgment in those civil proceedings is a bar to any proceeding. This suggests that proceedings under the Workmen’s Compensation Act could be a bar to independent civil proceedings, and acceptance of payment under the Workmen’s Compensation Act by written agreement pursuant to s 16 of that act is a bar to any other proceedings to recover compensation or damages for the same accident.
It is unclear at this point in time whether the statutory bar to other proceedings in any court or tribunal applies to claims under the Act as well as to common law claims, given that claims under the Act are made without commencing legal proceedings and are made to a Commission, not a court or tribunal.
It also seems unclear as to how the Commission would react to a claim for compensation under the Act where the claimant has also claimed under the Workmen’s Compensation Act without instituting legal proceedings, as there may be a question of possible double recovery. However, section 26 of the Act provides that when a person decides to disregard the Act and institutes a claim in another court or tribunal under a different branch of law for damages for personal injury or death arising from a motor vehicle accident, the Commission will consider that proceeding, assess it and make an offer to the person. If the person accepts the Commission’s offer then it will have the effect of terminating the proceeding that the person has instituted under the different branch of law or Act. Section 27 of the Act provides that if the offer is not accepted, then that person is free to continue his original claim.
This raises a practical issue relating to how can the Commission know the facts of claims filed in other courts or keep track of the nature of cases in all the Tribunal and Court system in Fiji for it to make an offer? It seems likely that the onus may fall on the defendants in those other cases. For example, if the Employer is facing a claim for Workman's Compensation arising from a road accident the Employer or its legal representative may have to serve the particulars of the proceeding to the Commission. It is possible that this could also benefit the Employer as it will face only one claim rather than two.
It would be sensible for legal representatives to retain a checklist to ensure that any claim brought is within the Act's limitation period but also whether any additional claim has been brought in any other court or tribunal.
For further information, please contact Mary Muir: email@example.com
This commercial law update is provided for general information purposes only and it is not, and should not be relied on as, legal advice.