Motor Vehicle Accidents

If you have been injured in a motor vehicle accident that was someone else’s fault, you may be entitled to a claim for compensation.

If you are catastrophically injured (which is determined by the State Government’s Lifetime Support Scheme) you may be entitled to ongoing payments for treatment, care and support regardless of who is at fault for the accident and in some cases where no driver is at fault.

When you pay your car registration, a percentage of this goes towards Compulsory Third Party (CTP) Insurance. This insurance covers road users in the event of an injury and is used to compensate road accident victims.

If a vehicle involved in causing a personal injury cannot be identified or is not registered, an injured person can still make a claim.

Eligibility for motor accident compensation

Provided the physical or psychological injury sustained by you in the accident has been caused by the negligence (or fault) of a driver of, or a passenger in, a motor vehicle (not being yourself), you may be entitled to claim damages relating to various types of losses, subject to certain eligibility requirements and thresholds being satisfied.

There are exceptions to the fault based principle in relation to catastrophic injury and injury to minors. We can provide further details, if applicable, when we meet to discuss your claim.

Factors limiting claims and reducing compensation

Various factors may limit your claim for damages, the most common being:

  • The fact that you were partly at fault in relation to the accident.
  • The failure to wear a seatbelt or helmet, as applicable.
  • Intoxication by way of drugs or alcohol.
  • Relying on the care and skill of a driver whom you were aware, or ought to have been aware, was under the influence of drugs or alcohol.

Lodging a claim for compensation

If you have been injured in a motor vehicle accident that was not your fault, then you need to lodge a claim with your CTP Insurer within 6 months of the accident. You will need to complete an Injury Claim Form and submit it to your insurer. If you are unsure how to complete the form, please contact our office for assistance.

If you have not yet contacted your CTP Insurer we can initiate the claim on your behalf by notifying the Insurer that you are legally represented and that you have instructed us to make a claim for compensation.

If you have already dealt directly with the CTP insurer before seeking legal advice and we accept instructions to represent you, we will notify the insurer that you are legally represented and all contact between the CTP Insurer and yourself will cease and we will assume the conduct of your claim.

Time limits for lodging claims

You are required to lodge a claim with your CTP Insurer within 6 months of the motor vehicle accident. If you are over 18 years, you have 3 years from the date of the collision to settle a claim with your CTP Insurer. If the claim fails to settle within this period, court proceedings must be filed before the 3-year anniversary of the collision. This is known as the “statute barred date”.

If you are late filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under 18 years at the time of the accident, you have 3 years from the date of your 18th birthday to issue court proceedings in relation to your claim, however, your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf any time before this date. Much depend on the nature and long term consequences of your injuries.

Compensation payable

Categories of compensation are also known as “heads of damages”, not all of which may be applicable in your personal circumstances.

Your entitlements may or may not include the following:

Non Economic Loss: An amount for pain, suffering and loss of enjoyment of life (that is the extent to which your ability to engage in sport, leisure activities and so on has been restricted) may be claimed if you are assigned an injury scale value (ISV) of 11 or greater on a scale from 0 to 100.

If an ISV of 10 or less is applicable to your injuries, you will not have any entitlement to damages for pain and suffering unless you can establish that:

  • the consequences of the personal injury with respect to non economic loss are exceptional when judged by comparison with other cases involving the same injury; and
  • the application of the threshold in the circumstances of your case would be harsh and unjust.

Past and Future Economic Loss: Where you have been incapacitated for work, with the exception of the first week, an amount equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.

To be entitled to damages for future economic loss or impairment of future earning capacity, you must demonstrate an ISV of 8 or greater.

A court may award damages for loss or impairment of future earning capacity to an injured person where an ISV is 7 or less, if the court is satisfied that:

  • the consequence of the personal injury with respect to loss or impairment of future earning capacity are exceptional; and
  • the application of the threshold would, in the circumstances of the particular case, be harsh and unjust.

Services Provided by Others (Voluntary Services): Where as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and/or personal services on your behalf, you may (subject to eligibility requirements and a threshold) make a claim for compensation for the gratuitous services that were provided. However, damages for gratuitous services will not be awarded unless an ISV of 11 or greater is achieved and the services are provided for at least six hours per week and for a period of at least six consecutive months.

Paid Domestic Services: Where ongoing domestic services may be required as a result of any incapacity resulting from your injuries, an award may be made for past and future paid services if you can demonstrate that the expenses have been or will be reasonably and necessarily incurred as a result of the injuries you sustained in the collision. There are no thresholds and eligibility requirements relating to this aspect of your claim.

Personal Care: If you required and/or will require the services of a personal carer, an award may be made for the costs of services that have been reasonably and necessarily incurred as a result of the injuries you sustained in the collision.

Equipment and Appliances: In circumstances where you require equipment, aids and appliances, vehicle or home modifications by reason of your injuries, you will be entitled to an award to cover the associated costs, together with the costs of future replacements, if applicable.

Treatment Expenses: Treatment expenses reasonably incurred will be allowed at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.

Travel Expenses: Reimbursement for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.

Legal Costs: Whether you receive a contribution towards your legal costs will depend on the magnitude of your claim.

Assessing compensation

Compensation is assessed with reference to the evidence supporting your claim. Therefore, in the initial stages of a claim, time is taken to collect the evidence required. This includes obtaining a report from the general practitioner who treated you for your injuries and, depending on the seriousness of the injuries, obtaining hospital records and specialist reports.

Copies of medical reports are forwarded to your CTP Insurer, which is also entitled to arrange for you to attend independent medical examinations to obtain further medical reports.

Your general practitioner and the medical specialists will provide opinions on the nature of your injuries, whether your condition has stabilised and is capable of final assessment, and whether you have been left with permanent disabilities which may affect your work and/or domestic capacity.

It is not advisable to settle a claim when the full consequences of your injuries are not yet known.

If you have sustained financial loss, we will obtain copies of your taxation records, pay advices, sick certificates and other information from your employer. In some cases, we may also need to obtain a forensic report from an accountant to assist in quantifying your financial loss.

Timeframe for settling a claim

This depends on how long it takes for your injuries to stabilise to the point where it is possible to assess the loss flowing from the injuries and any residual disabilities. Only when your injuries have stabilised is it possible to assess your future medical treatment needs, any future domestic services which may be required and future economic loss arising from a reduced earning capacity.

If your injuries are not serious, it would be reasonable to expect that your claim will resolve within 12-24 months.

If liability is in issue the finalisation of your claim may be further delayed. Liability becomes an issue when your CTP Insurer does not accept that the insured party – usually another driver – was at fault for the collision. In such cases we will investigate the circumstances of the collision by inspecting the scene, interviewing witnesses, obtaining information regarding the damage to the motor vehicles, and if necessary, obtaining a report from an accident reconstruction expert. Your CTP Insurer may undertake similar investigations.

How much will my claim cost?

We will provide an estimate of fees prior to the commencement of your matter.  Upon the successful conclusion of your claim we will seek to recover our fees from your settlement proceeds.

Your CTP Insurer may be obliged to pay a contribution towards your legal fees. This will largely depend on the magnitude of your claim and can be as much as 70% of your legal fees.  The balance is paid from your settlement proceeds.

Repayment of Centrelink, Medicare and private health insurance benefits

If you received Centrelink benefits after the accident and your compensation includes an amount for economic loss, Centrelink will be entitled to recover some, and possibly all, of the post accident benefits paid to you. If your award is substantial you may also be precluded from claiming benefits for a period after the conclusion of your claim.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.

Our clients are the primary focus of our practice, and our experienced and compassionate lawyers have protected the rights of numerous motor accident victims as they navigate the legal processes involved in obtaining fair compensation for their injuries and loss.

If you would like to discuss a potential motor accident claim with us, and it is our opinion that your claim would not succeed and you do not pursue the claim further, you will not be charged in relation to this initial interview.

If you need any assistance contact one of our lawyers [email protected] or call (08) 8202 0099 for a no-obligation discussion and for expert legal advice.