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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.
Car Accident, Road Accident and Motor Vehicle Accident Claims
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?
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.
How do I defend a motor vehicle claim?
If you have been involved in a motor vehicle accident and another party claims that you were at fault, generally the claims process will simply involve referring the claimant to your compulsory third party (ctp) insurance provider. If however you do not wish to accept fault for the accident, it is open to you to deny the claim and engage in dispute resolution, which may include negotiating with the claimant, seeking further information about the basis of the compensation claim, and/or defending the claim in a magistrates court.
If you do wish to defend a motor vehicle claim, it is worthwhile seeking legal advice about the options available to you, and assistance in navigating the negotiation, settlement and potential civil litigation process. Our law firm specialises in defending motor vehicle claims, and for a free, honest consultation about the options available to you, contact our expert lawyers today.
Common Questions for those that have caused injury or harm:
- What should I do if I agree with the claim?
If you agree that you were at fault, you should contact your CTP insurance company immediately. Your insurance provider will likely take responsibility for handling the claim.
- What if I do not agree with the claim?
If you deny that you were at fault, it is worthwhile seeking legal advice about the options available to you. Failing to respond may result in the claimant instituting legal proceedings against you which is expensive and time-consuming.
- How should I respond to a motor vehicle claim?
It is best to engage a lawyer to advise the best way of responding to the claimant’s correspondence, as often it is advisable to respond in writing. You will also need to work out whether you want to deny responsibility completely or maintain that you were both partly responsible, thus minimising (rather than eliminating) your liability.
- What information should I ask for?
You should seek any information relating to the costs of repair, including any bills, receipts, and invoices as proof of damage. If there is a police or third party report of the accident, you should also seek this information, in addition to the claimant’s written opinion about how the accident happened and the reasons that you are at fault.
If you deny fault for a motor vehicle accident and do not wish to accept liability or the insurance claim, it is best to obtain independent advice about your options in handling your specific circumstances. Contact our legal practice for a free, honest and confidential consultation about our no win no fee legal services today.
Dislaimer
The above is general legal information only and should not be considered legal advice. You should contact our Sydney law firm for legal advice tailored to your specific legal matter. The courts deal with matters on a case-by-case basis. It should also be noted that there may be court delays due to COVID-19 and alternative arrangements made for legal proceedings.
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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.
If you are found to be at fault in a motor vehicle accident you may be entitled to weeklies and some treatment, however you cannot claim damages.
This holds, except where the liability/negligence can be shifted to the owner of a vehicle. This is founded in the case of Harmer v Hare [2011] NSWCA 229 where it was found that the owner of the vehicle was required to prevent a defective vehicle being driven and there is no general obligation on driver to enquire as to roadworthiness. In this case, Court of Appeal upheld a lower court’s decision to award a driver substantial damages, when the car he was driving, with bald tyres, ran off the road in the wet and collided with a pole.
Both Courts found that:
- The car had a mechanical defect (bald tyres)
- The owner failed to warn the Plaintiff of the defect.
- The owner was negligent in permitting the driver to drive the car, despite the fact that the owner and
driver who had both been drinking were on their way to pick up tyres so they could do burnouts.
Despite the purpose of their journey, the court found that the driver did not have a duty to check and inspect the tyres nor was the driver aware of the condition of the tyres.
A blameless accident such as one where the driver suffers from an epileptic fit, seizure or heart attack without warning is definitely grounds for a claim for all injured parties. If you have suffered under such circumstances reach out.
A blameless accident such as one where the driver suffers from an epileptic fit, seizure or heart attack without warning is definitely grounds for a claim for all injured parties. If you have suffered under such circumstances reach out.
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