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ROAD AND CAR ACCIDENT LAWYER

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on your benefits. Speak to a lawyer immediately after your accident.

Car Accident, Road Accident and Motor Vehicle Accident Claims

Vehicles are an integral part of our lives in Australia. People give very little thought to the fact that every time we drive a vehicle; there is a risk of an accident occurring whether our fault or the fault of others. Every driver in NSW has a duty of care; that is he or she must take reasonable care to avoid acts or omissions which are likely to cause an injury or harm to others. Drivers also have a duty to keep a proper lookout even when reversing from their own driveway. 

If you are a driver, rider, passenger, pedestrian or cyclist who has been involved in a motor vehicle accident (or motorcycle accident); you are entitled to make a personal injury compensation claim.  

 

Personal injury compensation refers to a one-off lump sum payment that takes into account past and future loss. This includes loss of earning, medical expense, cost of personal care domestic assistance, and non-economic loss ie. pain and suffering. 

 

In New South Wales, the Motor Accident Injuries Act 2017 established a new scheme of CTP insurance and provision of benefits and support relating to an injury sustained as a result of a car accident. Compulsory Third Party (CTP) insurance companies in NSW include NRMA, QBE, GIO, AAMI, Suncorp and Allianz. 

 

In Victoria, residents can make a claim for personal injury¬†claim through the Transport Accident Commission (TAC) which is Victoria’s Governments CTP Insurer.¬†

Road accidents can be complex in all Australian states. The general rule is that a claim for compensation can be made if the other driver is at fault. If you are at fault of the accident, you may be entitled to claim for some benefits but you will not be entitled to claim for damages under common law.  

 

Generally, personal injury lawyers are motor vehicle accident lawyers. Personal injury covers a number of types of compensation claims including motor vehicle accidents. 

Motor Vehicle Accident claims are governed by NSW legislation. The State Insurance Regulatory Authority (SIRA) regulates the way in which claims are run and ensures that insurers comply with the relevant guidelines. 

 

As of December 2017, the law relating to motor vehicle accident claims in NSW has changed. The entire process of bringing and running a claim has been varied. In fact, the law has given much more power to insurance companies and created a prolonged process to recover motor vehicle accident compensation.

The 2017 Legislation and regulation apply to motor vehicle accidents that occurred from December 2017 onward. If you were involved in a motor vehicle accident prior to December 2017, your claim should be brought under the Motor Vehicle Accident Compensation Act 1999 NSW.¬†“Motor vehicle” is defined in the Road Transport Act 2013 to mean¬†a vehicle that is built to be propelled by a motor that forms part of the vehicle.¬†The definition is so broad so as to include almost any type of vehicle including, cars, motorbikes, boats, jet skis, excavators, etc.¬†

 

Don’t just assume that motor vehicle accident refers to car accident injuries. Also, the injury could refer to physical or psychological injury… So speak to one of our lawyers today about your accident and injury involving any type of vehicle with a built-in motor to see if you are entitled to make a claim.¬†

Motor Vehicle Accidents before December 2017

Motor Vehicle Accident claims were governed by the Motor Vehicle Accident Compensation Act NSW 1999. Any motor vehicle accident which occurred before December 2017 should be brought pursuant to the 1999 Act. Motor accident is defined in the Act. It means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a)  the driving of the vehicle, or
(b)  a collision, or action taken to avoid a collision, with the vehicle, or
(c)  the vehicle’s running out of control, or
(d)  a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

Once it is established that a motor accident has occurred, it must be established that an injury was sustained as a result. It must be a permanent injury that has caused you loss. For example, whiplash injury is not considered permanent, however, a disc bulge or tear maybe, depending on the severity of the injury. With regard to psychological injuries, it must a recognised psychiatric condition in order for and assessment to be provided.

Entitlements

The loss that you have incurred as a result of the injury is referred to as a head of damage. The following are the potential head of damages that you may be entitled to claim:

Non-economic loss refers to the injury you sustained that has resulted in loss of enjoyment of life. This is also sometimes referred to as pain and suffering compensation. Simply, you are entitled to this component purely as a result of the injury you sustained and the loss that transpired which is not financial in nature. 

In order to claim this head of damage, you must be assessed in accordance with the relevant guidelines by an approved medico-legal doctor who ascertains that your whole person impairment as a result of the injuries sustained in the subject accident is greater than 10%. Greater than 10% means 11% or more. If you are assessed at 10% or less, you are not entitled to claim non-economic loss. 

This does not mean however that you are not entitled to compensation. You are still able to proceed with a claim for compensation for economic loss only. 

In NSW, thee guidelines which the approved doctors must comply with are referred to as AMA 4. The guidelines outline the manner in which impairment should be assessed and how to categorise various injuries. 

Your Solicitor should refer you to a medico legal doctor for an assessment of your whole person impairment. If you are assessed at greater than 10%, your solicitor should serve the of the report of the doctor on the insurer asking they concede that your whole person impairment as a result of the injuries sustained in the subject motor vehicle accident exceeds 10%. The insurer will generally refer you for an assessment with their medico legal doctor. before making a decision. If the parties agree that your whole person impairment exceeds 10%, this component of the claim should be factored into your final settlement amount. If not, you will be referred to an independent medical assessor to determine whether you exceed the threshold of 10% or not. The independent doctors' determination is binding and will determine whether you receive compensation for non-economic loss.

Remember, whether you are entitled to non-economic loss will impact the amount of compensation you receive. You will receive a greater settlement or verdict if it includes a component for non-economic loss.

If you are working at the time of the accident or had intended to commence working, you are entitled to claim loss of earning or earning capacity. Reference to the loss of earning capacity takes into account potential loss. For example, if you had been completing the course at the time of the accident that would have enabled you to have your own business and were unable to complete that due to the accident, your loss would be calculated on the basis of your potential earnings as a business owner.

This lump sum factors in actual past out of pocket expenses and proposed future treatment expenses even they are will not be incurred immediately. For example, if your doctor has recommended surgery in the future, the cost of the surgery and related treatment expenses will be accounted for as part of this component.

Personal care and domestic assistance may be provided on a gratuitous or commercial basis. 

In order to be entitled to claim compensation for past gratuitous personal care and domestic assistance, you must satisfy the threshold imposed by the civil liability act. 

The Act states that no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): 

(a) for at least 6 hours per week, and 

(b) for a period of at least 6 consecutive months.

This limitation does not apply to future care and assistance which is generally claimed on a commercial basis.

NSW New CTP Scheme

A claim for personal injury compensation will be made against the driver’s (driver at fault) CTP insurer.¬†

You must establish that you have suffered a serious injury (non-minor injury) for example a  brain injury and that you have suffered a loss as a result of the car accident. 

It is extremely important that investigations commence as soon as a car accident occurs as the new CTP scheme places strict time limits as to when a claim form must be lodged. For this reason; you should contact our law firm immediately after an accident for legal advice. 

The CTP insurer will attend to payment of all reasonable and necessary medical treatment, hospital and medical expenses, rehabilitation and medication. In addition, you can claim for loss of earnings, loss of enjoyment of life and pain and suffering as well reimbursement of all your out of pocket expenses relating to your injuries. 

A large component of car accident claims is damages (compensation) for non-economic loss that is pain and suffering. The Motor Accidents Injuries Act 2017 dictates that an injured person is only allowed to claim for pain and suffering if the degree of whole person impairment is more than 10%. The maximum payout that an injured person can claim for pain and suffering is $521,000. This does not include your entitlements for past and future economic loss which is the loss of income.

What are the steps for making a claim?

STEP 1

Serve Accident Notification Form and/or Motor Accident Personal Injury Claim Form on the insurer

There are strict time limits within which to serve these claim forms. An Accident Notification form should be served within 3-months. A Motor Accident Personal Injury Claim Form should be served within 6-months. A delay in serving your claim form will result in the need to provide a full and satisfactory explanation to the insurer for the delay.

STEP 1

STEP 2

Insurer advises whether they accept or deny liability

This is where the insurer lets you know whether they accept that their insured owner or driver of the vehicle was at fault. They may admit that their insured was only partly at fault.

STEP 2

STEP 3

Medical Assessment

Collect medical records and get assessed by medico-legal doctor for whole person impairment assessment.

STEP 3

STEP 4

Go through MAS if insurer denies impairment exceeds 10%

Insurer concedes that your degree of whole person impairment exceeds 10% OR you file an application with the Medical Assessment Service (MAS) for an independent assessment and determination.

STEP 4

STEP 5

Serve Schedule of Damages

Serve a Schedule of Damages on the insurer and participate in dispute resolution, ie informal settlement conference or mediation.

STEP 5

STEP 6

Settlement

Settlement if a successful agreement with insurer OR if not successful – lodge application with Claims Assessment and Resolution Service (CARS) or file Statement of Claim in Court (depending on whether liability is in question).

STEP 6

STEP 7

CARS or Court

Go through the CARS process or Court process until you reach resolution, hearing and/or verdict.

STEP 7

STEP 1

Lodge Form with insurer

Lodge Personal Injury Benefits Claim form with the insurer. This claim form informs the relevant insurer of your claim and entitles you to statutory benefits for the first 26-weeks post-accident, including loss of earnings and medical expenses. 

STEP 1

STEP 2

Insurer advises whether they accept or deny liability

This is where the insurer lets you know whether they accept that their insured owner or driver of the vehicle was at fault. They may admit that their insured was only partly at fault.

STEP 2

STEP 3

The insurer determines seriousness of injury

After 26-weeks the insurer will determine whether your injury is minor/non-minor. If the insurer determines your injury is minor, you are able to apply to the Dispute Resolution Service for an independent assessment and determination which is binding.

If the insurer and/or the Dispute Resolution Service determines that your injury is non-minor you are able to proceed with your claim. Otherwise, your entitlement to claim compensation ends here.

STEP 3

STEP 4

Medical Assessment

Collect medical records and get assessed by medico-legal doctor for whole person impairment assessment.

STEP 4

STEP 5

Serve Schedule of Damages

Insurer concedes that your degree of whole person impairment exceeds 10% OR you file an application with the Dispute Resolution Service (DRS) for an independent assessment and determination.

STEP 5

STEP 6

Schedule of Damages

Serve a Schedule of Damages on the insurer and participate in dispute resolution, ie informal settlement conference or mediation.

STEP 6

STEP 7

Settlement

Settlement if a successful agreement with insurer OR if not successful – lodge application with Dispute Resolution Service (DRS) or file Statement of Claim in Court (depending on whether liability is in question).

STEP 7

STEP 8

DRS or Court

Go through the DRS process of Court process until you reach resolution, hearing and/or verdict.

STEP 8

No Win No Fee

Motor vehicle accidents claims are run on a no win no fee basis which means that you will not pay for our legal fees unless we have successfully resolved your matter.

Generally, compensation claims are run on a No Win No Fee basis which means that you don’t pay a cent on legal fees if you are unsuccessful, however, some solicitors still charge for disbursements.¬†

At Jameson Law, we have a guaranteed No Win No Fee Agreement including any disbursements we incur to run your case. This means that if your claim is not successful, we do not charge you anything. This allows us to maintain a high rate of success as we will let you know up front if we feel that your case will not win. 

Any costs payable to Jameson Law will be deducted from, and will not exceed, any compensation that you are entitled to receive meaning you will not pay anything out of pocket.

Frequently Asked Questions.

A claim for personal¬†injury compensation will be made against the driver’s (driver at fault) Compulsory Third Party better known as CTP insurer.¬†You must establish that you have suffered a serious injury (non-minor injury) for example a brain injury and that you have suffered a loss as a result of the car accident.¬†

It is extremely important that investigations commence as soon as a car accident occurs as the new CTP scheme places strict time limits as to when a claim form must be lodged. For this reason, you should contact our law firm immediately after an accident for legal advice. 

The CTP insurer will attend to payment of all reasonable and necessary medical treatment, hospital and medical expenses, rehabilitation and medication. In addition, you can claim for loss of earnings, loss of enjoyment of life and pain and suffering as well reimbursement of all your out of pocket expenses relating to your injuries. 

 

A large component of car accident claims is damages (compensation) for non-economic loss that is pain and suffering. The Motor Accidents Injuries Act 2017 dictates that an injured person is only allowed to claim for pain and suffering if the degree of whole person impairment is more than 10%. The maximum payout that an injured person can claim for pain and suffering is 521,000. This does not include your entitlements for past and future economic loss which is the loss of income. 

 

At Jameson Law, our car accident lawyers guarantee to achieve the best possible outcome for your car accident compensation claim. You may also be eligible to claim for Total and Permanent Disablement (TPD) as a result of Motor vehicle accidents claims are taken on a no win no fee basis which means that you will not pay for our legal fees unless we have successfully resolved your matter. 

Pain and suffering is proved by medical evidence. This includes clinical notes and reports from treating doctors, diagnostic imaging reports (x-rays, MRIs, CT scans)as well as obtaining reports from doctors who are authorised to comment of the degree of impairment. 

The maximum amount of compensation that can be awarded for pain and suffering is $521,000.

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