NSW Motor Vehicle Claims
Drivers, motorcycle riders, passengers and pedestrians enjoy the protections available under the Motor Accidents Compensation Act 1999 for compensatory damages arising from injuries received in a motor vehicle accident in New South Wales.
Unlike some other states, New South Wales as a fault based system and a blameless accident system (a no fault system).
This means that if you are injured from the negligent driving of a motor vehicle or injured in a blameless accident, you are able to make a claim for compensatory damages under New South Wales law.
The accident must occur within the state of New South Wales in order for the claim to be successful. If the motor vehicle accident occurs in another state then the laws of that state will apply to the motor vehicle accident.
The fault based accident scheme in New South Wales basically means that if you have been injured by the fault of another driver you are able to claim compensation for your injuries.
If the other driver is given an infringement notice or charged with an offence this is normally good evidence that you will be able to show fault or negligence on the part of the other driver.
Please note it is not essential for a driver to receive an infringement notice or be charged in order to show negligence on the part of that driver, negligence must be proven on the balance of probabilities.
Under the NSW Motor Accidents Compensation Act blameless accidents are now also compensable under the Act. An example of a blameless accident is a person driving a car or truck when a tree from the side of the road falls on the cabin of the car or truck causing the drivers injuries.
Another example is a person driving on a country road when a kangaroo hops in front of the vehicle and the driver has no time to take evasive action, strikes the kangaroo and then crashes resulting in injuries to the driver and/or passengers.
Both of these scenarios would be considered a blameless accident under New South Wales law under which you can make a claim.
If you are fully or partially at fault in the circumstances of the accident, i.e. stepping out in front of a moving vehicle, your damages can be reduced or even reduced to zero depending on your level of culpability or blameworthiness for the accident
Damages are categorised under 4 “heads” of damages. These are:
1. General damages (damages for non-economic loss or pain and suffering).
2. Past and future out of pocket expenses, i.e. medical expenses.
3. Past and future wage loss including superannuation.
4. Past and future domestic care benefits.
- General Damages or Pain and Suffering Damages
A threshold exists under New South Wales law for the payment of these entitlements.
No compensation is payable for pain and suffering (non-economic loss damages) unless you are above a 10% whole person impairment under the AMA 4 Guidelines and the Motor Accident Guidelines for the Evaluation of Permanent Impairment. Very few people qualify for non-economic loss damages. Only 10% of claimants injured in motor vehicle accidents qualify for pain and suffering damages under New South Wales law. Of the10% that do qualify for general damages the payment is significant, normally over $100,000.00 under that head of damages.
2. Past and Future Out of Pocket Expenses
Past and future out of pocket expenses is essentially the medical expenses that you incur or will incur from your injuries including doctor’s visits, pharmaceuticals, physiotherapy, surgeon’s fees, assistant surgeon’s fees, psychiatrist and psychologist visits and travel expenses at the rate of $0.55/km to the various treatment providers.
3. Past and Future Wage Loss
If you have been unable to work as a result of your injuries you are able to claim your net wage loss from the accident. Net wage loss is claimed. Gross wages are not claimed because the amount in tax is normally not received whilst you are working. In addition, you can also make a claim for superannuation contributions which you have been deprived of, by not being at work due to the accident. If you have returned to work on lesser hours or if the accident shortens your working life you are also able to make a claim for wage loss on that basis.
Some injuries will result in the development of arthritis in various parts of the body which will not materialise or become symptomatic until many years after the accident. On this basis a claim can be made for future economic loss when those conditions materialise at a later date.
4. Domestic Care Benefits
A claim for domestic assistance is subject to a threshold of 6 hours per week for more than 6 months. Unless you meet this strict threshold no claim for domestic assistance is payable. The prescribed amount for domestic assistance is approximately $29.00 per hour, however that amount changes depending on when the domestic assistance is provided. The amount is indexed upward.
If a family member needs to do more around the house as a result of the accident, for example washing, cleaning, ironing, transport, looking after pets etc. then this amount can be claimed as domestic assistance. If you hire a person to come in to perform domestic duties around the house and pay that person to provide those domestic duties then that amount is claimable as a past and future out of pocket expense listed above.
Once you have a motor vehicle accident it is incumbent upon you to follow the strict time limits for the reporting requirements. These are:-
1. Report the accident to the police within 28 days;
2. Serve a Personal Injury Claim Form within 3 months from the date of the accident;
3. Have your medical condition assessed by MAS for non-economic loss damages around the 2 year mark following stabilisation of your injuries;
4. Section 85A Particulars must be served by 2 years 6 months from the date of the claim to ensure that there is sufficient time to participate in the compulsory conference provisions before proceeding to the Claims Assessment Resolution Service (CARS).
5. Your matter must be referred to CARS or commenced in the District Court within 3 years from the date of the accident.
Most claims under the Motor Accidents Compensation Act are handled administratively by the NSW Motor Accidents Authority and the quantum of damages assessed by a CARS assessor.
The CARS assessment process is a non-adversarial process where the CARS assessor assesses the damages following submissions by both parties with the submission of medical evidence through the Motor Accidents Authority. The Motor Accidents Authority is administered under the State Insurance Regulatory Authority of NSW (SIRA).
SIRA is the government organisation responsible for the regulatory function of worker’s compensation, motor accidents compulsory third party scheme. It is only in limited circumstances that claims for injuries under the Motor Accidents Compensation Act are litigated in the District Court.
In some cases where the claim has been exempted from the CARS assessment process the claim can be commenced in the District Court without the need for a CARS assessment hearing.
A claim can be exempted from CARS only in the following circumstances :-
1. Where liability is denied by the insurer in writing because fault is denied;
2. A claimant or in a claim for an award of damages under the Compensation to Relatives Act or one of the dependents is a person under a legal incapacity;
3. The person against whom the claim is made is not a licensed or other CTP insurer (e.g. an employer as owner of a motor vehicle);
4. The insurer denies indemnity under the policy;
5. The insurer alleges that the claim is fraudulent.
The bulk of claims are decided by CARS assessors, unless settled by the solicitors beforehand.
An insurer will normally offer you a small amount of money to resolve the claim early in an attempt to have you sign away your rights and accept a lesser sum. Normally it is best to seek legal advice before you consider any such settlement. An insurance company will only make a very small offer at the start of the case on a commercial basis. If you obtain legal advice you will normally find that your damages by the end of the case may increase by some 5-10 times the amount originally offered by the insurer, depending on the severity of the injury.
If you have been injured in a motor vehicle accident, or on a motor bike, bicycle or on public transport please contact our personal Injuries Department Manager Kelli Costin on 07 5506 8220 or kcostin@attwoodmarshall.com.au for more information or book an appointment for a free initial consultation.
