Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Motor Vehicle Accidents – compensation claims and understanding your rights as a road user


Here, we explain what happens when motor vehicle accidents occur on our roads and how to claim compensation for injuries and road fatalities.  

People usually hope that by driving safely, we will avoid being involved in any major accidents on our roads. Most of us do not realise just how often people are killed or seriously maimed in traffic accidents.

In the first three months of 2021, there was a whopping 69 fatalities on Queensland roads due to motor vehicle crashes. That is about 6 deaths per week.

This devastating number is 50% greater than the same period the year before.

In Queensland, the number of people injured in accidents badly enough to warrant treatment at hospital comes to approximately 4,000-6,000 per year. That is about 95 people badly injured per week.

Road trauma is wide reaching and impacts not only everyone involved in the accident but their families and friends too.

All fatalities are devastating, leaving those left behind to suffer incomprehensible grief and loss from what is usually a senseless and avoidable traffic accident. The deceased’s family members and dependents often suffer psychiatric conditions, depression and anxiety disorders, resulting in their own treatment costs, time off work, and further complications. They are no longer able to rely on their deceased loved one for income, support, or services. The many repercussions of road fatalities impact those left behind for life.

For those that are injured, the accident is only the beginning. What comes next is often months or years of physical pain and restriction, psychological distress, medical treatment, rehabilitation, time off work, financial instability, and general uncertainty about the future. The ongoing impact usually affects the injured person’s relationships with their partners, family members and friends.  Relationship breakdowns are frequent. Injured people can lose their careers, fall into default on their mortgages, and be prevented from engaging in their favourite sports, hobbies or pastimes because of their injuries.  

The financial burden of motor vehicle accidents in Australia is significant. The Department of Infrastructure, Regional Development and Cities completed research in 2017 that estimated the annual cost of road trauma to Australia was around $27 billion. The Centre for Accident Research and Road Safety Queensland (CARRS-Q) broke this estimate down even further and suggested that road trauma costs our country approximately $70 million per day.

Unfortunately, there is always going to be a risk involved when you are sharing the road with other motorists. Accidents happen. Most accidents are caused by the negligence of one or more motorist (e.g. through inattention, speeding, running a red light, failing to give way, etc.). Fortunately, vehicles are required to be registered and insured with CTP insurance to ensure that if you are injured in a motor vehicle accident because of someone else’s negligence, you will have access to a CTP compensation claim.

For those that are injured, CTP claims usually include obtaining payment of your medical expenses along the course of your claim (where liability for the accident is admitted by the insurer) and then a once-off lump sum compensation settlement that comprises funds for medical treatment, loss of income, care and assistance requirements, and pain and suffering.

In cases of road fatalities, the deceased person’s dependants can claim compensation for their own psychiatric injuries, and for their loss of dependence on the deceased’s income and services (known as a “dependency claim”).

Motor vehicle accidents occur all the time. Despite the safety improvements in vehicles, technology, and government efforts to address motor vehicle accidents, we continue to experience a significant number of road accidents every day.

It is important to understand your rights as a road user, and the steps you need to take if you are injured (or a loved one is killed) in a motor vehicle accident.

Road User Behaviour

Studies tell us that road safety is one of the most concerning issues Australians have, with 80.5% of respondents to the ESRA (E-Survey of Road Users Attitudes) Australian project stating they were very concerned about motor vehicle accidents and road safety.

However, in the Community Attitudes to Road Safety 2017 Survey, the scary truth about road user behaviour is exposed, telling us that:

  • 39% of drivers do not completely separate alcohol and driving
  • 64% of drivers use a mobile phone while driving
  • 47% of drivers indicate they have driven while fatigued
  • 23% of survey respondents admit they have fallen asleep at the wheel

Most drivers consider themselves to be safe, responsible road users and that road accidents are usually caused by young people texting, drink or drug drivers, elderly people who should not be driving, or tailgating P-platers. However, even usually safe drivers can cause accidents from a moment’s inattention.

Certain road user behaviours increase the likelihood of accidents and it is imperative that we as a community stay vigilant in ensuring widespread education about driver and road safety generally.

Compensations claims and motor vehicle accidents

If you are injured in a motor vehicle accident in Queensland, the rules are very different from those injured in New South Wales accidents.

Queensland has a fault-based scheme. This means that whoever causes the accident is the negligent party and their CTP insurer covers anyone who was injured as a result of the accident. You can be another driver, passenger, pedestrian, motorcyclist, or bike rider, and you will be covered by the negligent motor vehicle’s insurance. The insured (negligent) driver has paid premiums to the insurer specifically so that the insurer will step into the driver’s shoes to pay out any claim for compensation made against the driver.

The steps to make a claim are straightforward:

  • Report the accident to police;
  • Complete a Notice of Accident Claim Form;
  • Have your GP complete the CTP Medical Certificate that comes with the claim form;
  • Lodge your claim with the CTP insurer of the vehicle at-fault.

The CTP insurer will then lodge your claim, decide whether to pay for your treatment costs on an ongoing basis, and undertake further investigations to progress your matter towards a resolution.  After undertaking investigations, the CTP insurer will admit or deny liability for the claim. Where liability is straightforward, the CTP insurer will often admit liability within a few weeks of the claim being lodged.

What happens if you are injured in a motor vehicle accident, but it was your fault?

Accidents in Queensland

Motor vehicle accidents

In Queensland, you cannot make a CTP claim if you are the party that caused the accident. Other people who were injured in the accident (including your own passengers) would likely make a claim against your CTP insurer.

If you caused the accident, you can access treatment through Medicare, or private health insurance if you have it.  If you have suffered a catastrophic injury you may be able to seek support through the government’s NDIS Scheme.  For income support, you may be able to access Centrelink payments, or in the cases of serious injury, a Disability Support Pension.

Motor vehicle accidents in the course of your work

If you caused the accident, but you were working at the time of your accident (e.g. you were a courier driver), you may be able to access workers’ compensation benefits on the no-fault workers’ compensation scheme.  If you seek benefits through workers’ compensation, you can claim weekly payments and medical treatment.  This can also apply if you suffered the accident going to or from work, or on an authorised recess.

Accidents in New South Wales

In New South Wales, the Motor Accident Injuries Bill 2017 was passed by Parliament which shifted the New South Wales’ CTP scheme from a fault-based system to a no-fault scheme for accidents occurring on or after 1 December 2017.

Under the New South Wales’ CTP scheme, you can apply for statutory benefits for up to six-months, irrespective of who was at fault or the severity of the injury. If your injuries are more than minor and you were not at fault or mostly at fault (more than 61% contributorily negligent), you can seek further benefits, medical treatment and care, however the system does limit who can recover benefits after this initial 6 month period.

CTP Premiums – QLD vs NSW

Queensland’s CTP scheme allows for appropriate payouts of compensation for an injured person’s losses. This means CTP insurers actually cover what your losses are if you have been injured in a motor vehicle accident because of a negligent driver or motor vehicle operator.

In contrast, the NSW scheme unreasonably restricts your eligibility to make a claim. In NSW, CTP premiums are quite high. Despite these high premiums, the NSW scheme heavily restricts what injured people can claim on CTP insurance. The NSW scheme is such that motorists are made to fork out huge CTP premiums to cover them, but the scheme does not make CTP insurers pay enough compensation to the injured people that need to claim on it. Motorist and injured people lose out in NSW – the scheme heavily supports insurance companies rather than individual citizens.  

On the other side, Queensland has proven to have a very fair and balanced system. The NSW Government would do well to adopt the Queensland CTP scheme in its entirety.

What if I am injured by a hit-and-run driver?

This is unfortunately a common scenario. If you have been involved in a motor vehicle accident but are unable to identify the other driver at fault, the Nominal Defendant steps in to deal with your compensation claim in the same way a CTP insurer would.

The Nominal Defendant is a statutory body established under the Motor Accident Insurance Act 1994 for the purpose of compensating people who are injured as a result of an unidentified negligent driver or an uninsured or unregistered motor vehicle.

Very strict time limitations apply to claim against the Nominal Defendant and you must prove that you have undertaken proper search and enquiry (meaning that you have exhausted all reasonable endeavours to locate the negligent driver/vehicle).

Steps to take if you have been injured in a motor vehicle accident

Step 1:  Obtain medical treatment – whether that is first aid, roadside ambulance assistance or transport to hospital for assessment. Most people who have just been involved in an accident experience a high degree of shock and do not fully appreciate the extent of their physical injuries. Injured people often decline ambulances or assistance that they require. We always recommend visiting your doctor or the hospital if you have been involved in an accident before you go home or go back to work.

Step 2:  If possible, do everything you can at the scene to get the registration details of the vehicle at fault, including details of any other vehicles (and drivers) that may have been involved in the accident. The information you should try to collect includes:

  • Names and licence details of other drivers/witnesses;
  • Registration numbers for each vehicle involved;
  • Insurance details for the at-fault vehicle;
  • The name of the police who attended the accident (if applicable) or a reference number for the traffic accident.

Step 3:
If possible, you should try to take photos, or a video of the vehicles involved (or have someone do this for you). This can help mitigate the risk of insurers trying to allege that alternative scenarios played out. For example, if one of the insurers alleges that you were on the wrong side of the road, a post-accident photo or video can help show the insurer how the accident truly occurred. Dashcam footage can be extremely useful in demonstrating the leadup to the accident, and what every other vehicle was doing at the time.

Step 4: Seek legal advice as soon as possible. You can find out where you stand, what your rights are, and the steps you need to take, over the phone, by contacting our compensation law team at any time. At Attwood Marshall Lawyers, we can make sure that you protect your interests from the beginning and have the assistance you need in completing the above steps.

Step 5: Complete and lodge a Notice of Accident Claim Form and Medical Certificate with the CTP insurer of the vehicle at fault.

Time limitations

If you are injured in a car accident in Queensland, there are time limits which you should follow when lodging a claim. In Queensland, you have 9 months from the date of the accident to put in a claim form. If you miss this time limitation, it is not fatal to your claim but you will be required to provide the insurer with a reasonable excuse for the delay. In most cases, you are still able to lodge your claim successfully.

However, there is a three-year time limitation that applies to the claim. Unless you were a minor (i.e. under the age of 18), if you fail to lodge a claim within 3 years from the date of the accident, you will be precluded from doing so.  In the case of minors, the time limitation is extended until 3 years from the date they turn 18 (i.e. their 21st birthday) to lodge their claim.

The earlier you can get your claim processed, the easier it is for insurers and your lawyer to work out the details, determine what your claim is worth, and ensure you have much greater prospects of success. We recommend acting quickly and complying with all time limits at all times.

How much is my motor vehicle accident claim worth?

The amount that a motor vehicle compensation claim is worth is determined by many different factors that vary from case to case.

Factors that are taken into consideration include:

  • your age
  • employment status
  • what income you were earning at the time of the accident and in your employment history to date
  • severity of your injuries
  • what the doctors say as to your prognosis
  • the permanency or otherwise of your injuries
  • whether you have any pre-existing or unrelated injuries or conditions

Depending on thresholds that apply, a motor vehicle claimant can typically claim compensation as a full and final, once-off lump sum payment that includes compensation for:

  • general damages (pain and suffering)
  • past and anticipated future treatment costs, aids, equipment and similar
  • past income loss (including interest and superannuation)
  • income that you may lose in the future (including superannuation payments)
  • past and future care and assistance costs.

Depending on the value of your claim, the insurer often also has to contribute to your total legal costs.

How are motor vehicle accident claims resolved?

Motor vehicle compensation claims are rarely determined in court.  Most motor vehicle claims are settled informally between the parties or at out-of-court settlement conferences.

If the claim cannot be settled informally, then a compulsory settlement conference will be arranged where the parties meet at a conference in a genuine attempt to resolve the matter without the need for it to go to court.

If you are unable to reach an agreement at the compulsory conference, a second settlement conference (called a mediation) is usually scheduled about 6-9 months later to try to resolve the matter.  In the rare cases where motor vehicle claims fail to settle at the mediation, they will usually resolve between the parties prior to court rather than going through a trial to receive a determination from a Judge.

Attwood Marshall Lawyers can help

Attwood Marshall Lawyers are dedicated to helping injured people seek the treatment they need and to obtain meaningful compensation to help them on their road to recovery. As the legal systems between NSW and QLD are extremely different, we have the state-specific knowledge and experience to assist anyone who has suffered injuries on Queensland and New South Wales roads.

If you have been injured in a motor vehicle accident, we can help you every step of the way throughout your compensation claim. Contact our Compensation Law Department on 1800 621 071 to organise a free and confidential initial appointment. You can visit our experienced team at any of our conveniently located offices at Robina Town CentreCoolangattaKingscliffBrisbaneSydney or Melbourne.

Stay safe!

We have seen far too many motor vehicle fatalities and serious accidents in recent years.

Please be safe when you are driving on the roads. Slow down, put away your phone, concentrate on what other drivers are doing, leave a gap between your vehicle and the one in front, and do your part to reduce the risk. 

When the worst happens out there on our roads, we are here to help.

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Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

Jeff Garrett

Legal Practice Director
Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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