Motor Vehicle Accidents

Before you consider the questions set out in this section we recommend that you first read the introduction regarding motor vehicle accident claims under OUR EXPERTISE.

I have been injured in a motor vehicle accident. Am I eligible to receive compensation?

Providing 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.

What factors might limit my claim and therefore result in a reduction to my compensation?

There are a number of factors which may limit your claim for damages, the most common of which are listed below:

  • 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.

When we discuss your claim with you we will explain how these and other reductions are applied.

How do I lodge a claim for compensation?

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

Sometimes an injured party has already dealt directly with the CTP Insurer. In such circumstances you may still seek legal advice. If you decide to instruct us to represent you in relation to your claim, and we agree to do so, then we will notify your CTP Insurer of the fact that you are now legally represented and, thereafter, all contact between the CTP Insurer and yourself will cease and we will assume the conduct of your claim.

Is there a time limit for lodging a claim?

You are required to lodge a claim with your CTP Insurer within 6 months of the motor vehicle accident.  If you are over the age of 18 years then 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 in 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 the age of 18 years at the time of the accident then you have 3 years from the date of your 18th birthday to issue court proceedings in relation to your claim. However, at any time after the accident your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years old. Much depends on the nature and long term consequences of your injuries.

What might I be paid by way of compensation?

The categories of compensation are also known as “heads of damages”. Not all of the heads of damage may be applicable to you and will depend on your personal circumstances.

Accidents occurring before 1 July 2013

If the accident in which you were involved occurred before 1 July 2013 your entitlements may or may not extend to 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). This amount will be based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.

  • Past and Future Economic Loss

Where you have been incapacitated for work then, with the exception of the first week, you will be entitled to an amount of money 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.

  • Treatment Expenses

Treatment expenses reasonably incurred 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.

  • 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 personal services on your behalf then you will be entitled to make a claim for compensation for the voluntary services that were provided.

  • Future Domestic Services

Where ongoing domestic services may be required as a result of any incapacity resulting from your injuries, then an award may be made for future paid services.

  • Personal Care

Likewise, if you required and/or will require the services of a personal carer, then an award may be made for the costs of such services.

  • Equipment and Appliances

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

  • Travel Expenses

You are entitled to be reimbursed for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.

  • Legal Costs

A contribution towards your legal costs which will depend on the magnitude of your claim.

Accidents occurring after 1 July 2013

If the accident in which you were involved occurred after 1 July 2013 then, in accordance with recent legislative changes, your entitlements may or may not extend to 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 then, with the exception of the first week, you will be entitled to an amount of money 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. Under Section 56A(5) of the Civil Liability Act any past and future economic loss or impairment of earning capacity that you are able to demonstrate must be reduced by 20%, and accordingly you will only be entitled to 80% of your past and future losses.

In order for you 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

That 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, then you may (subject to eligibility requirements and a threshold) be able to 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, then an award may be made for past and future paid services so long as 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

Likewise, if you required and/or will require the services of a personal carer, then 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, then 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

You are entitled to be reimbursed 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.

How is compensation assessed?

Your compensation will be 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.

We will need to obtain a report from the general practitioner who treated you in relation to your injuries and, depending on the seriousness of the injuries, it may be necessary to obtain hospital records and specialist reports. Copies of all medical reports obtained are then forwarded to your CTP Insurer, which is also entitled to arrange for you to attend independent medical examinations for the purpose of obtaining further medical reports. Your general practitioner and the medical specialists will provide opinions as to 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 the claim when the full consequences of your injuries are not yet known.

If you have sustained financial loss then it may be necessary to obtain copies of your taxation records, pay advices, sick certificates and other information which your employer may be able to provide to assist you in progressing your claim. In certain circumstances it may also be necessary to obtain a forensic report from an accountant to assist in quantifying your financial loss.

How long does it take for a claim to be settled?

This will depend 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 then it would be reasonable to expect that your claim would resolve within a period of 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 a situation 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 required, obtaining a report from an accident reconstruction expert. Your CTP Insurer may undertake similar investigations.

How much will my claim cost?

Upon the successful conclusion of your claim your CTP Insurer may be obliged to pay a contribution towards your legal costs and disbursements, the extent of which will be difficult to estimate until such time as your injuries have stabilised. Once your injuries have stabilised, an ISV can be assessed and we will be in a position to advise you whether or not you will be able to claim damages for Non Economic Loss (pain and suffering), Future Economic Loss, Gratuitous Services and Loss of Consortium. If your ISV assessment is insufficient to meet the threshold for those claims, your claim will be modest. The amount of costs and disbursements you will be able to recover from Allianz will largely be dependent upon the magnitude of your claim. Section 127C of the Motor Vehicles Act 1959 sets out the basis upon which claimants can recover their legal costs against CTP Insurers, as summarised below:

  • Claims of $25,000.00 or less – Nil costs allowable unless there are exceptional circumstances to justify the award of costs.
  • Claims over $25,000.00 to $100,000.00 – Recovery of costs pursuant to the Magistrates Court Scale of party/party costs and disbursements.
  • Claims in excess of $100,000.00 – Recovery of costs in accordance with the District Court Scale of party/party costs and disbursements.

There will be a shortfall between your actual costs and any contribution recovered from your CTP Insurer.

If you would like to meet with us to discuss whether you might have a claim for compensation arising from a motor vehicle accident and the chances of succeeding in that claim, and it is our opinion that your claim would not succeed and you do not proceed further, then you will not be charged in relation to this initial interview. The advice provided to you on that occasion will be free.

Centrelink, Medicare and private health insurance benefits: Will these need to be repaid if I receive compensation for my injuries?

If you received Centrelink benefits subsequent to the accident and your compensation includes an amount for economic loss, then 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.