Who can make a claim for damages under the motor accidents compensation act?

To make a claim under the Act you must have sustained an injury arising out of a MVA (Motor Vehicle Accident).

“Motor accident” means an accident involving the use or operation of a motor vehicle that causes death of or injury to a person and is caused (whether or not as a result of a defect in the vehicle) during:

  1. The driving of the vehicle; or
  2. A collision, or accident taken to avoid a collision, with a vehicle; or
  3. A vehicle running out of control.

You also must be able to demonstrate “fault” of the owner and/or driver of a motor vehicle. In most cases the vehicle which caused the accident is considered to be “at fault”. You must be able to prove that your injuries were as a result of the fault of the owner or driver of the other motor vehicle.

Pedestrians can also claim where they are injured by the fault of the driver of a motor vehicle.

A person who witnesses a death as a result of a motor vehicle accident can claim for “nervous shock”. Nervous shock is a known psychiatric disorder caused as a result of witnessing the motor vehicle accident. Close members of a victim’s family (including parents, children but not grandparents uncles or aunts) may also claim for “nervous shock” even if they did not witness the death.

For accidents after 1 October, 2007 a claim may now be brought by an injured person pursuant to the “Blameless Accident” provisions. This allows an injured person to make a claim where he or she cannot prove negligence by another driver but the accident was inevitable. This may cover cases where there is an unexpected mechanical failure or accidents caused by a stray animal.

How do I make a Motor Accident claim?

There are a number of steps to making a claim:

  • Report the accident to the Police

You must report the accident to the Police as soon as possible, and in any case, within 28 days after the accident.

  • Find out the NSW registration number plate of the motor vehicle you consider caused the accident.

You will need to have the registration number plate details of the motor vehicle you consider caused the accident together with the name of the driver and all other details of the accident.

To find out the CTP insurer of a NSW motor vehicle you need to call the Claims Advisory Service on 1300 656 919.

  • You need to complete a Motor Accident Act Personal Injury Claim Form

There are two types of claim forms:

  • Accident Notification Form – allows you to claim up to $500.00 in early medical treatment.
  • Personal Injury Claim Form – you need to complete this claim form if you wish to claim compensation over $500.00. This claim form must be completed and forwarded to the CTP insurer within six (6) months of the date of the accident. You may be able to make a claim after that time but only if you are able to provide a full and satisfactory explanation for the delay.
  • Complete the Medical Certificate

With the Personal Injury Claim Form is a medical certificate which you need to have completed by your doctor.

  • Collect all accounts/receipts incurred for medical treatment

You should attach any original accounts and invoices which you may have incurred in relation to medical treatment or out of pocket expenses to the claim form.

The Motor Accident Act Claim Form together with the medical certificate and any accounts/invoices should be sent direct to the CTP insurer of the motor vehicle you consider at fault. If you have a copy of the Police report in relation to the accident this should be enclosed as well.

Your lawyer is able to assist with the steps in making a claim should you require assistance.

Once the CTP insurer has received the claim form they will write to you within five (5) working days and include a claim or reference number. You may then be required to give the CTP insurer more information including photographs, documents or records and you may be requested to attend a medical examination.

The CTP insurer has a period of three months after service of the claim form in which to determine whether liability is to be accepted (fully or partially) or denied. The insurer will determine whether the driver of the vehicle was at fault.

If liability is accepted the insurer is obliged to pay for the following:

  • Reasonable or necessary hospital, medical, rehabilitation, pharmaceutical, respite care and attendant care expenses;
  • Reasonable and necessary travel and accommodation expenses associated with any treatment or rehabilitation provided;

If the CTP insurer denies liability on your claim then you should contact your solicitor immediately.

Can children under 16 years of age claim?

From 1 October, 2006 all children who are injured in motor vehicles under the age of 16 are entitled to claim hospital, medical, rehabilitation, pharmaceutical, respite care and attendant care expenses even if the accident was not caused by the owner or driver of a motor vehicle.

Is there a time limit for making a claim?

Yes. A Motor Accident Personal Injury Claim Form must be forwarded to the CTP Insurer within six (6) months from the date of the injury. Thereafter you have a period of three (3) years to lodge a claim for compensation in the District Court of New South Wales. Failure to make a claim within this time can be extended and you should contact your solicitor for further advice.

What compensation is payable?

This will depend on the type, nature and severity of your injuries. You may be eligible for payment of:

  • Hospital, medical, rehabilitation, pharmaceutical and other out of pocket expenses;
  • Travel and accommodation expenses associated with the injury;
  • Pain and suffering;
  • Loss of income;
  • Gratuitous care, respite care and attendant care expenses
  • Hospital, medical, rehabilitation, pharmaceutical and other out of pocket expenses

Once you have completed the claim form and your claim is accepted either fully or partially then the insurer is responsible to pay all reasonable and necessary hospital, medical, rehabilitation, pharmaceutical and other out of pocket expenses. You should send all of your doctors and other medical bills to the insurer.

The insurer should be asked to pay the bills and reimburse you for any money that you have paid. Remember to include your claim number with the request. You should provide to your treating medical practitioners the name of the CTP insurer and your claim number. The medical practitioner should be requested to forward all further accounts directly to the CTP insurer for payment.

If a dispute arises in respect of whether or not a particular medical treatment is reasonable and necessary you should contact your lawyer.

When your claim is assessed or settled, the insurer is also required to pay an amount for future hospital, medical, rehabilitation, pharmaceutical and other out of pocket expenses. This will depend on the severity of your injury and the nature and type of treatment you will require in the future. The amount is determined by reference to medical evidence obtained from your treating doctors. You are able to claim such treatment expenses for the remainder of your life. Your other entitlements will not be effected.

  • Travel and accommodation expenses associated with the injury

The insurer is required to pay all reasonable and necessary ravel and accommodation expenses associated with your injury. If there is any dispute in respect of whether such expenses are reasonable and necessary you should contact your solicitor.

  • Pain and Suffering

Under the Motor Accidents Compensation Act an amount of non-economic loss is payable for pain and suffering and loss of enjoyment of life. This lump sum is determined by comparing your injuries to those of a most extreme case.

No damages however may be awarded for pain and suffering and loss of enjoyment of life unless the degree of whole person permanent impairment as a result of the injury caused by the motor accident is greater than 10% WPI. The assessment of the degree of WPI is determined in accordance with the Motor Accident Authority Medical Guidelines. You may, in the event if a dispute, be examined by an independent doctor appointed by the Motor Accidents Authority who will determine whether or not you exceed 10% WPI. If you do not obtain an assessment of 11% or greater then you will receive no compensation for pain and suffering and loss of enjoyment of life.  Your other entitlements will not be effected.

  • Loss of income

You are entitled to claim your net loss of income as a direct consequence of the injury sustained in the motor vehicle accident.

You are not entitled however to receive loss of income for the first five (5) days that you are off work but thereafter you are entitled to receive an amount representing your loss of income caused by the motor vehicle accident. There is often a dispute as to the extent of such loss.

Loss of income is also payable to compensation for future loss and can include an amount representing impairment of your capacity to earn.  Future loss of earning capacity is assessed by comparing the most likely future circumstance but for the accident with the circumstances which have arisen from the accident. That is, how much you were likely to earn before the accident and what can you earn now.

It is usual for an award for future loss of income to be reduced by 15% to reflect the possibility that a person may not have achieved his or her most likely future circumstances because of some non-accident related reason such as premature death or a change in circumstances to take into account that another unrelated event may have caused a wage loss. This is known as the “vicissitudes of life”.

  • Gratuitous care, respite care and attendant care expenses

You are entitled to receive an amount of compensation in respect of attendant care services either provided gratuitously by family and friends or on a paid basis (i.e. paying for a cleaner)  provided the need has been caused by the injury .

No compensation is to be awarded for gratuitously provided care services unless the care is provided from the date of the accident for at least six hours per week and for at least six months.

Attendant care services may be claimed in respect of future loss for the remainder of a person’s life. This would include the cost of personal care, nursing assistance, cleaning assistance, gardening and lawn mowing assistance and the like. This can include gratuitous care but only if provided for at least six (6) hours per week and/or a claim for care provided by others payable at commercial rates.

No damages may be awarded for attendant care for a person who is accepted in the Life Time Care and Support Scheme. For those who sustain catastrophic injuries all treatment and care needs for the past and future is paid directly by the Life Time Care and Support Scheme.

The above losses are payable as a one off lump sum. That sum is payable when either agreement is reached with the insurance company as to the amount of compensation an injured person should receive or when you agree to accept a determination that is made by an independent assessor appointed by the Motor Accidents Authority. You are not able to claim any further compensation after the matter is settled or determined by an assessor. That is to say that the settlement is final and ends all entitlements to claim once and for all time. There is a right of appeal to the District Court of NSW if you disagree with an Assessor’s decision.

Offer of settlement

After a claim for compensation is made and accepted by the CTP insurer, the insurer is required to make an offer of settlement within three (3) months of you providing all details about your claim. The offer made on behalf of a CTP insurer can include some or all of the benefits that you may be entitled to receive. Often a CTP insurer for example will not make any offer in respect of pain and suffering although you may be entitled to a substantial amount of compensation in that regard.

It is therefore worthwhile, should you receive an offer of settlement, to obtain expert legal advice to ensure that the offer is reasonable before it is accepted.

If you accept an offer of settlement the agreement is a full and final resolution of all claims for compensation which you have arising out of the motor vehicle accident. You will not be able to return and claim any further compensation in the future even if you accepted an amount which is substantially less than you are entitled to receive. It is therefore important to seek expert advice before accepting any offer.

Conclusion

The Motor Accident Scheme in New South Wales is complex. The Act contains about 180 time limits. There are time limits for the completion of the claim forms, for the provision of information and particulars of the claim and the commencement of a claim in Court. If these time limits are not complied with they can prevent a claim from proceeding.

The Motor Accident Authority is designed to deal with disputes in relation to claims under the Motor Accidents Compensation Act and you will need the assistance of a specialist to guide you through the various types of compensation you are entitled to receive as a result of injuries sustained in a motor vehicle accident.

The CTP insurers will often make an early offer of settlement which may not represent a full and fair assessment of a person’s entitlement under the Act. Early advice is needed to ensure that you obtain proper compensation as a result of an injury arising out of a motor vehicle accident.

++ Refer to our June 2016 press release relating to proposed motor accident compensation law changes 

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