Motor Accident Compensation

motor vehicle compensation

What Rights do I have if a Motor Vehicle Accident is My Fault in New South Wales?

If you are the ‘at fault’ driver in a New South Wales car crash and need to know where you stand in legal terms, there is good news and bad news. The bad news is that, depending on the circumstances, you could be in big trouble. The good news is that you also have rights. Keep reading to learn more.

What is fault in the context of a NSW car crash?

All motorists traveling New South Wales roads have a legal obligation to drive sensibly. By exercising ‘reasonable care’, they protect themselves and other travelers from harm. Someone who fails to use this degree of caution and causes an accident may be deemed negligent. Legally this means they are to blame, or ‘at fault’. In most cases, the driver at fault engages in one or more of the following actions:

  • drink driving;
  • speeding;
  • failing to heed a traffic light or sign;
  • failing to keep a proper lookout.

Your legal rights

As a general rule, you do not have to speak to the police if you do not wish to do so.  However, as a driver involved in a car crash, you are legally obligated to provide certain information requested by police at the scene. This includes your name, address and details from your Australian driver’s licence. If you refuse, you may be fined up to 20 penalty units, which is equivalent to $2,200.

The police may also ask you for a statement about what happened. In most cases, it is best to comply.  There are two things to keep in mind here. The first is that the police cannot force you to come to the station unless you have been arrested. The second is that you should not make any assumptions. Be sure to ask the officer if you must comply with his or her requests before doing so. If you have any doubts and are in a position to, double-check with your lawyer.

Sharing the blame

A crash investigation is conducted to determine who is at fault. In some cases, it is easy to see only one person is to blame. If you are found to be the only driver at fault, you may face criminal penalties and fines. You (or your insurance provider) will also be responsible for compensating the other driver(s) and/or any occupants of their vehicle(s) who are injured.

But what if the situation isn’t so cut and dried. What if the other driver also did something to cause the crash? Legally, this is known as contributory negligence. If you can prove that the other driver also did something wrong, you will not be solely responsible for compensating any injured person.

Consider the following scenario. Your pregnant wife sends you out to get milk and some snacks on a stormy, pitch-black night. It’s late and all you want to do is get to the shop and get home. Luckily, you get to the shop without incident. That is not the case on the way home, however. Your mobile rings as you round a bend, and the momentary distraction causes you to swerve into oncoming traffic. Another vehicle is speeding when you hit it head on. You and the other driver both sustain serious injuries.

In this case, both of you were at fault. You were driving while distracted and the other driver was speeding. Neither of you exercised reasonable care. However, it will be up to a court to determine the percentage of fault based on the police investigation and other factors. For example, a magistrate may decide you are equally at fault. Or he or she may decide that you are mostly to blame (70 percent). In either circumstance, the amount of compensation you are liable for will be adjusted accordingly.

It is important to note that liability applies to property damage as well as personal injuries.

In summary

Even if it is only a minor collision, being in a motor vehicle accident is a stressful, traumatic experience. It is especially stressful if you were somehow to blame. In addition to facing potential criminal sanctions, you may also have to compensate the other driver and/or passengers for any personal injuries or property damage.

However, it is also important to remember that as the driver at fault, you also have certain rights. BPC Lawyers are specialists in the area of personal injury, negligence and compensation, and has won multiple industry awards. Contact us today on 1800 431 590 for a free case evaluation.

Single Vehicle Collision

Single Vehicle Collision – What Are My Rights?

While accidents involving motor vehicles are a frequent occurrence in Australia, one of the common misconceptions is that if your accident involves only your vehicle, you can’t claim compensation for any injury you might suffer.

Single-vehicle accidents are sometimes referred to as “blameless accidents”, in that no other party is at fault, and can commonly occur when a driver suffers a sudden illness such as a heart attack or stroke; when the vehicle suffers an unexplained mechanical or vehicle failure; or when the car unavoidably collides with an animal on the road, among other examples.

Under the no-fault compulsory third party motor vehicle insurance schemes that exist in most states and territories of Australia, someone injured in a single-vehicle accident can still make a claim for compensation but there are conditions and restrictions that apply, as we discuss in this article.

What does the law say?

After the NSW Government introduced the Motor Accidents Injuries Act 2017 (NSW) (“the MAI Act”) in December 2017, a new hybrid scheme of benefits and support under the state’s third-party insurance system was introduced to provide statutory benefits for up to 26 weeks after the accident where no person was at fault, and modified common law damages for persons with injuries other than ‘minor injuries’, where fault is established.

Statutory benefits can cover medical treatment, wage loss and funeral expenses. Any application for statutory benefits must be made within three months of the accident otherwise a claim to entitlements may lapse.

Claimants with minor injuries (defined as soft tissue and/or minor psychological injuries) or those who were wholly or mostly (‘mostly’ is defined in the legislation as contributory negligence of 61 percent or more) at fault in the accident are limited to six months of weekly payments of statutory benefits.

The statutory benefits payable under the MAI Act are payable by the relevant insurer who, in the case of a single-vehicle accident, is the insurer of the vehicle.

The MAI Act also ended the entitlement to gratuitous care damages – where a family member provides care to the injured person without payment – as either a statutory benefit or as common law damages. Costs incurred in employing someone to provide care services to the injured person, or to their dependents, is still recoverable as paid care.

The Act limits common law damages to economic loss (loss of earning capacity; costs relating to accommodation or travel; financial management of damages; reimbursement for income tax paid or payable on statutory benefits); and damages for non-economic loss where the injured person’s degree of permanent impairment is greater than 10% and their injuries are not ‘minor’.

Single-vehicle accidents that occur at work

If your accident occurs while you are at work or on a work-related journey, Section 3.35 of the MAI Act states that the injured person is not entitled to statutory benefits if compensation is instead payable under a workers’ compensation claim.

This created a problem where a workers’ compensation claim failed or the benefits ceased, impacting the injured person’s ability to make a motor accident CTP claim within the required time frame.

While an injured worker could pursue a common law claim, damages were limited to non-economic loss, lost wages and loss of earning capacity but not medical treatment and attendant care, which were considered statutory benefits.

Section 151Z of the Workers Compensation Act 1997, however, requires a claimant to repay out of the damages claim, all workers’ compensation paid, including treatment and care paid by the workers’ compensation insurer.

A problem arose because s151Z of the workers’ compensation legislation requires a claimant to repay out of the damages claim all workers’ compensation paid (including treatment and care paid by the workers’ compensation insurer).

This problem has been rectified by the Workers Compensation Legislation Amendment Act 2018 which now allows claims for treatment and care after a workers’ compensation claim has finalised; and allows a claim for statutory benefits to be made within three months after workers’ compensation payments cease. Because recovery actions arise only where there is a liability ‘to pay damages’, recovery actions apply only where the claimant has a non-minor injury.

Seeking legal advice

As is clear, despite your accident being ‘blameless’, it can be a complex and time-consuming process to claim compensation for an injury sustained in the incident. Dealing with insurance companies, differing pieces of legislation, and separate claims made at common law, require the expertise and experience of personal injury lawyers Sydney.

If you’ve been injured in a single-vehicle accident and are unsure of your rights and entitlements, contact BPC Lawyers today. We’ve won multiple industry awards for our work in this complicated area so call us now on (02) 8280 6900 for a free legal consultation about your particular circumstances.

hit and run accident

What to Do After a Hit & Run Accident

Have you been injured in a motor vehicle accident since 1 December 2017?

If so, your claim is governed by the provisions of the Motor Accident Injuries Act (NSW) 2017.

Being involved in a hit and run accident figures as a worst nightmare for most drivers. In such situations it is understandable to have visons of not being able to claim compensation because the party that caused you to be injured has ‘done a runner’.

Fortunately, this is not the case in NSW where insurers are required to be a part of the Nominal Defendant Fund, meaning a person injured by an unidentified vehicle can make a claim through the fund and not be left without adequate treatment or compensation.

First Things First

There are numerous reasons why another driver may flee the scene of an accident they caused. They could be driving under the influence of drink or drugs, they may be unlicensed, uninsured, or they may simply panic when visualising the likely costs of their act.

In any event, as the injured partner, your first priority is that you ensure the safety of yourself and anyone travelling with you by getting off the road and away from the accident scene. Emergency services and police should be immediately notified.

Once these urgent things have been attended to, it is important to try and collect as much information as possible about the accident scene and the car that hit you. This may involve you or someone with you consulting witnesses to see if they can identify the make, model, colour and any distinctive features of the other car, its licence plate number, a description of the driver and/or passengers in the car, and the direction the car was coming from.

Collect the names and contact details of any witnesses as these may be required later.  You should also try to make notes of the street name where the accident occurred, the closest cross street, any nearby landmarks, shops, or parks, the time of the day, weather conditions and direction you were travelling.

Provide all of this information to the police if they arrive at the scene or at a police station within 24 hours of the accident. You will also need to visit a medical practitioner to report any symptom or injuries and have them assessed. Be sure to obtain copies of both the police accident report and your medical report as these will be later needed for insurance claim purposes.

What do I need to do to make a Nominal Defendant claim?

Where the claim and driver that hit you remain unidentified, you can make a Nominal Defendant claim through the State Insurance Regulatory Authority. They will allocate you a CTP Insurer who will manage your claim and pay your compensation if your claim is successful. This claim needs to be made within 28 days from the date of the hit and run accident.

If the claim is successful, you can claim for:

  1. Medical, rehabilitation and hospital expenses (including any potential future expenses);
  2. Loss of earnings or earning capacity (including any potential future loss of earning capacity);
  3. Home modification and attendant care expenses, if seriously injured;
  4. Pain, suffering and loss of enjoyment of life;

In order for your claim to be successful, you will need to show that the unidentified vehicle did cause the accident. You must also show you undertook “due search and enquiry” to try and identify the offending vehicle, by methods such as speaking to witnesses, ascertaining whether any CCTV cameras in the area recorded the accident, and liaising with police.

Some of the tasks the insurer will require you to undertake are as follows:

  1. Posting an advertisement in your local newspaper asking for details of the driver or potential witnesses to your accident.
  2. Asking local businesses if they have CCTV footage of the accident (if your accident occurred outside a business).
  3. Attending homes near the scene of the accident to see if they are any witnesses.
  4. Posting on community social media page(s) asking witnesses to come forward.

After you have undertaken these steps, you will need to provide the insurer with details of the steps of the steps you have taken to identify the vehicle, any information you have obtained and copies of any online and/or newspaper advertisements forming part of your enquiries.

The insurer may also require you to provide them with further documentation.

The importance of good advice

As it is clear from the above points, there is quite a lot to do in order to make a successful Nominal Defendant claim, at a time when you may be recovering from injury and/or remain traumatised by the incident itself. In this circumstance, the importance of trustworthy legal advice and guidance is invaluable.

At BPC Lawyers, we are motor accident compensation specialists, with a number of industry awards to our credit. In terms of the things you need to do as outlined above, we can help you.

We can gather necessary evidence such as names, registration numbers and insurance details of the vehicles involved, as well as receipt for hospital care, medical treatment and medication.

By managing all stages of your claim within the relevant time frames, we can ensure you obtain the compensation you deserve to ease your pain and suffering,

For a free upfront consultation, if you have been involved in a hit and run accident, contact us today on (02) 8280 6900.

motor accident damages claim

Do You have a Motor Accident Damages Claim (non-minor injury) and You have been Self-represented up until the Present Time?

After 78 weeks from the date of your accident, you can settle your damages claim with the CTP Insurer.

If the CTP Insurer has agreed you are eligible for compensation for your injury, and pain and suffering, then you will receive an offer of settlement for those injuries in addition to any claim you may have for past loss of earnings and future loss of earnings.

If you are not eligible to receive compensation for your injury, then your damages claim will be restricted to compensation for past and future loss of earnings.

If you are self-represented then when you receive the offer of settlement from the CTP Insurer, and you decide to accept the offer, then you should be made aware of the provisions of Section 6.23 of the Motor Accidents Injuries Act 2017 (NSW).

This section provides that a claim for damages by an injured person cannot be settled within two (2) years after the motor accident (unless you are entitled to additional compensation for injury).  Furthermore, the claim for damages cannot be settled unless the following occurs:-

  1. The Claimant is represented in respect of the claim by an Australian legal practitioner, or
  2. The proposed settlement is approved by the Dispute Resolution Service (DRS).

Furthermore, the DRS is not to approve the settlement of the claim unless satisfied the settlement complied with any applicable requirements of or made under this Act or the Motor Accidents Guidelines.

It is suffice to say you should seek advice from a specialist accredited Sydney personal injury lawyers before accepting settlement of your damages claim.

At BPC Lawyers, we have accredited Sydney personal injury specialists who will advise you as to whether or not the offer of settlement from the CTP Insurer is reasonable and should be accepted by you.

If we are of the opinion the offer should not be accepted by you, then we can assist you in further preparation of your claim for damages to achieve the appropriate amount of compensation.

injured in a motor vehicle accident

BPC Lawyers – Best Advice from Specialists

Are you self-employed and have been injured in a motor vehicle accident after 1 December 2017?

The Motor Accidents Injuries Act 2017 provides reimbursement for loss of income for both employed and self-employed injured persons.  Whilst there are generally no difficulties in ascertaining the pre-accident earnings of an employed person, it is now apparent that CTP Insurers are finding it difficult to properly calculate the pre-accident earnings of a self-employed claimant.

Pre-Accident Weekly Earnings (PAWE) are defined in Schedule 1(4) of the Act.

“Gross earnings” is not defined in the Motor Accidents Injuries Act.  However, it is clear in the definition of PAWE, the term refers to the gross earnings received by an earner as an earner.  The issue for determination is therefore the amount of gross earnings received by an injured person in self-employment in the twelve (12) months before the motor accident, expressed as a weekly average.

We are presently acting for a number of clients who are self-employed and have a gross annual income in excess of $200,000.00 per annum.  Self-employed persons have a number of fixed costs which are deducted from their gross earnings to determine profit, such as:

  1. Rent;
  2. Leasing of motor vehicles;
  3. Office equipment;
  4. Computers;
  5. Secretarial services;
  6. Administration costs; and
  7. Depreciation.

Unfortunately, there have been instances where a CTP Insurer has taken in to account these fixed costs when calculating a self-employed person’s weekly earnings.  Despite the fact the injured person has been unable to work at all but is still incurring these ongoing fixed costs.

For example, one of our clients, who has gross earnings in excess of $200,000.00 per annum, was advised by the CTP Insurer they have calculated his weekly earnings to be the sum of $386.00.

This assessment is difficult to understand when the injured person’s weekly lease payments on a motor vehicle are in excess of $400.00!

At BPC Lawyers, we have the resources to be able to properly determine the weekly earnings of a self-employed person and will assist those persons in firstly seeking an internal review with the CTP Insurer. If this proves to be unsatisfactory, then we can proceed further with an Application for the matter to be determined by a Merit Reviewer appointed by the Dispute Resolution Service (DRS).

Calculate Car Accident Injury Compensation

How to Calculate Car Accident Injury Compensation for Accidents Occurring Before 1 December 2017

In a perfect world, obtaining compensation for injuries sustained in a car accident would be easy. In reality, it’s not. This is because the circumstances of your case dictate the type of compensation you can seek. On top of that, you can’t make a claim based on a simple estimate. Instead, specific methods must be used to calculate various types of compensation.

While a knowledgeable personal injury lawyer can certainly handle all of these matters for you, you can lessen your stress and uncertainty by learning the basics. Here’s what you need to know about calculating car accident injury compensation.

Types of compensation available in New South Wales

If you have been hurt in a road accident in New South Wales, you may qualify for compensation:

  • loss of income due to your inability to work because of your injury;
  • past and ongoing medical expenses due to injury;
  • continuous pain and suffering causing a loss of enjoyment with your life;
  • nurse or carer’s fees.

A brief explanation of each follows.

Loss of Income

If you’ve been unable to work because of the injuries you sustained in a NSW road accident, you can seek compensation for your loss of income. However, there is a significant catch.  This caveat is that the law limits the amount you may receive. Specifically, the  Motor Accident Compensation Act 1999 includes provisions for restrictions based on your  gross income. Under the law, that figure cannot be more than triple the average weekly earnings of New South Wales workers  in the most recent quarter. If it is, it is not counted. The maximum nett weekly earnings allowed is presently the sum of $5,008.00.

Past & Ongoing Medical Expenses

If you were injured in a road accident, the responsible party may be liable for payment of your relevant medical expenses.

Another important factor applies if you received government benefits to cover your medical expenses. If this was the case, these benefits should be refunded through the compensation amount. Any medical expenses that were covered by your own private insurance should be refunded the same way.

Ongoing Pain and Suffering

To be compensated for pain and suffering, you must meet a certain preexisting injury standard. This is calculated based on the percentage of your body adversely affected by the accident. To qualify, your injuries must permanently affect at least 10 per cent of your body. This percentage must be determined by qualified medical professionals based on strict guidelines.

The purpose of this is to prevent exploitation. However, this often has unintended consequences. In many cases, crippling injuries are wrongly dismissed for this type of compensation. Sometimes, amputation of fingers and toes, as well as permanent skin damage, don’t warrant compensation for ongoing pain and suffering.

The Motor Accident Compensation Act of 1999 also limits these claims. Specifically, it caps payouts on pain and suffering claims at $546,000.

Nurse or Carer’s fees

If you require special home care for your injuries after the accident you may be eligible for compensation. It doesn’t matter if your carer is a professional (nurse) or a friend, nor does it matter if you paid the carer or not. Keep in mind, however, that the Motor Accident Compensation Act 1999 also limits these payouts.  In accordance with this law, you must also prove that you required care for more than six hours per week and for more than six months.

How is compensation affected by contributory negligence?

The amount of compensation awarded depends on who is at fault. If the other person was solely responsible, compensation is awarded accordingly. However, an allegation of contributory negligence is a common legal strategy in personal road injury cases. When this happens, the lawyer for the defendant, or the defendant’s insurance provider, alleges that the injured party’s carelessness also contributed to the accident. If there is sufficient proof of this, both parties will share responsibility and the amount is allocated accordingly.

Basically this means that if your negligence also contributed to the accident, you won’t get as much compensation as you would otherwise. A percentage of fault in road accidents is calculated based on:

  • whether you exceeded the speed limit;
  • whether you were intoxicated;
  • whether you knowingly got in the car with an intoxicated driver;
  • whether you were wearing a seatbelt.

What if no-one was at fault?

Traffic accidents can be considered “blameless” meaning as a result of a sudden illness or vehicle failure.  Each case needs to be decided on the facts, and we can advise you in regard to this particular type of claim.

Your responsibilities regarding deadlines

In addition to everything we have just detailed, you should also be aware that there are strict deadlines for filing paperwork and other relevant material. Again, your lawyer should be able to handle most of this for you. However, there are also some things that you can and should do yourself. If you were injured in a New South Wales road accident you should:

  • Report the matter to police as soon as possible, but definitely within 28 days of the accident.
  • Serve a Personal Injury Claim Form (or have your lawyer serve one) within six months after the accident.
  • Get an officially sanctioned assessment of your medical condition within 12 months after it has been stabilised if you are seeking compensation for non-economic losses.
  • Serve any Section 85A paperwork (if applicable) within two years 18 months from the date of the claim.
  • Ensure your case is referred to Claims Assessment Resolution Service (CARS) or initiated in the District Court within three years from the date of the accident.

Contact us for help with your car accident injury case today

If you were hurt in a motor vehicle accident, your health and your recovery should be your first priority. However, it is also important that you get the compensation you need to cover relevant expenses. Time is of the essence, so contact us to arrange an initial appointment today.

Motor accident claims in Sydney

Can I Still Claim Compensation in a Road Accident Matter If I Was to Blame?

It is a well-established legal principle that you can seek compensation for injuries sustained in a motor vehicle accident when: a) someone else was negligent; and b) that negligence caused or contributed to the accident. But what if you were also partially to blame? When your own carelessness is a factor in a road accident, it is legally classified as contributory negligence. Here’s what you need to know about claiming compensation in this situation.

Types of contributory negligence

What usually happens in a road accident/personal injury case is that the injured party’s lawyer must provide evidence that the person at fault was careless or reckless (negligent), and that that person’s negligence caused or was a significant factor in the accident. If the lawyer is successful, compensation will be awarded accordingly.

However, the responsible party’s insurance company or lawyer may argue that their client is not entirely to blame. Depending on the circumstances, they may allege that:

  1. the injured party’s actions (or lack of actions) also contributed to the accident; or
  2. the claimant’s actions (or lack thereof) contributed to the severity of his or her injuries.

Both are accusations of contributory negligence. In either case, the lawyer who makes these claims must provide sufficient proof that the injured party’s action or inaction meets the legal standard to qualify as negligence.

A (hypothetical) case in point

This is a tricky concept, even for some legal professionals and insurance providers. So to simplify, let’s consider the following scenario:

‘Jane’ is driving on a narrow road near a city park when her mobile phone rings, distracting her. Although she only takes her eyes off the road for a split second, the car veers toward the roadside, where ‘Sally’ is jogging. Jane quickly realises she can’t get around Sally because of oncoming traffic so she frantically slams on the brakes and sounds the horn. But Sally is wearing earbuds, and is oblivious to the danger until it is too late. She sustains a broken leg and numerous cuts and bruises on her hands and arms when the car knocks her to the ground.

After he evaluates the circumstances, Jane’s lawyer alleges that Sally contributed to the accident by jogging on the side of the road rather than the footpath. He also alleges that she would have heard the car and taken evasive action to minimise her injuries if she hadn’t been wearing earbuds.

The calculation of contributory negligence and how it affects compensation

When there is enough proof to substantiate an allegation of contributory negligence, the court must decide how much each person’s actions or inaction contributed to the accident. Most of the time, courts assign percentages when making these decisions. In a situation such as the one we just detailed, the court may find that each party is equally negligent. Specifically, it may find that Jane is negligent because she was distracted by her mobile phone, and Sally is negligent because she was wearing earbuds while running near the road.

Because the court makes a finding of 50 per cent contributory negligence, Sally’s compensation is reduced accordingly. In other words, an award of $50,000 with no finding of contributory negligence is now reduced to $25,000.

Mandatory reductions for contributory negligence

All of that notwithstanding, there are certain circumstances in which there are mandatory reductions for contributory negligence. Under the Civil Liability Act 2002 (CLA) a plaintiff who was intoxicated when they were hurt has engaged in contributory negligence. Accordingly, the amount of compensation claimed is automatically reduced by 25 per cent. In any such case involving a motor vehicle and intoxication, the mandatory reduction is 50 per cent.  Case law provides further precedent, for example by establishing that even where someone’s failure to wear a helmet has not affected the extent of their injuries, a deduction anywhere between 5% and 25% must be applied.

On a similar note, a court is not obligated to award any compensation to someone injured whilst committing a crime. In fact, sections 52-54 of the CLA make it highly unlikely that the claimant will recover damages.  Having said that, if the court assessing the circumstances determines the lack of any compensation would be too harsh, it has the discretion to award some compensation.

Contact experienced contributory negligence lawyers to learn more

If you or a loved one has been injured in a road accident and you have been accused of contributory negligence, you need proper advice from a qualified lawyer. Depending on your situation, a finding of contributory negligence can drastically affect the compensation you can receive. We have the experience needed to assess your circumstances and help you get the compensation you deserve. Contact us today on 02 8280 6900 or for a free case consultation.

Motor Vehicle Accidents Passenger Rights

What Are My Rights as a Passenger Involved in a Car Crash?

It’s something millions of people do every day – probably without a second thought – but in truth, you are risking your life every time you settle into the passenger seat in a motor vehicle. That’s because there’s always a chance that the person driving the car you’re in could do something to cause an accident, or you may get caught up in a crash caused by someone else. In other words, as a passenger you have no control over what happens while you are in the car. The good news, however, is that you do have certain rights as a passenger involved in a car crash.

Although applicable laws may vary, you generally have the right to:

  • Obtain certain information, such as the names, addresses, vehicle registration numbers, driver’s licence and insurance information of all drivers involved in the accident. If you have any trouble obtaining this material directly, you can get it from the police.
  • Receive help getting to a doctor or hospital if you were hurt. Even if you aren’t in pain immediately after the accident, you should still see a doctor who can treat and document any injuries that aren’t readily apparent.
  • Get a copy of the official accident report from the police.  Ask the investigating law enforcement officer when the report will be ready and how to get your copy.
  • Refuse requests for statements after the accident from another driver’s insurance company. If you do want to make a statement, be sure to consult a qualified personal injury lawyer first.
  • Consult with a lawyer specialising in this area.


You are required to report the accident to the police within 28 calendar days after the accident unless a police officer attended the motor accident.

If you or a loved one were hurt in a car crash when someone else was driving, it is important to consult a qualified lawyer as soon as possible. Based on his or her experience, the lawyer can do an efficient assessment of the situation to determine if the injured party has a viable claim. If so, he or she can also determine who you should take action against, and what type of action is appropriate.

In some cases, this is an easy decision. Let’s say you sustained a nasty case of whiplash when the driver of the car you were riding in stepped on the accelerator instead of the brake, causing the vehicle to jump a curb and hit a building at a high rate of speed. In these circumstances, you would simply file a claim against the driver’s insurance provider.

But what if you sustained the same injury as a passenger in an accident involving another car? Should you file a claim against the insurance provider for the driver of the car you were riding in, or the other driver’s insurance provider? In this scenario, the answer is: “it depends”. Technically, you can make claims against both. However, in a situation in which only one driver was clearly at fault, you would only make a claim against that person’s insurance company.

If both drivers are at fault, insurance companies and lawyers will assess the contributory negligence of each driver to determine how blame is allocated and how compensation should be awarded. Because insurance providers seldom agree on the key issues, this process can be lengthy and contentious. Even so, chances are that you will be duly compensated -eventually.

But what if the insurance provider for one, or both of the drivers don’t want to provide the compensation that you are entitled to, or don’t want to compensate you at all? In those circumstances, you can sue the driver(s) and/or their insurance provider(s).

Depending on your unique circumstances, you may be able to secure compensation for:

  • Past and future medical expenses;
  • home care;
  • alterations made to your home that are necessitated by your injury/injuries;
  • loss of past and future income due to your inability to work;
  • loss of enjoyment of life (your inability to participate in activities that you enjoyed in the past).

If you were a passenger who was injured in a car accident, you may feel overwhelmed – especially if you can’t work and the bills are piling up. Even if you’re considering legal recourse, you may not know where to start. Or perhaps you just can’t cope with the thought of dealing with insurance companies or lawyers. With this in mind, it’s important that you have someone on your side who will help you get the compensation you deserve. At BPC Lawyers, we are here for you, so contact our Compensation Lawyers Sydney today.

minor injury in motor accident


If you have been injured in a motor vehicle accident since 1 December 2017, then your claim is governed by the provisions of the Motor Accidents Injuries Act (NSW) (2017).

After you have lodged a claim form with the green slip insurer seeking compensation for your injuries, you might have received a letter from the insurer, in which they advised they have classified your injury as being “minor”.

Pursuant to Section 1.6 of the Act, a minor injury is any one or more of the following:-

  1. Soft tissue injury;
  2. A minor psychological or psychiatric injury.

A soft tissue injury is defined in the Act as the following:-

“an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.”

If your injury is classified as being minor, then you will only receive statutory benefits for a period of six (6) months.

However, after the six (6) month period of benefits has ended, you may still be in a position where you are losing income as a consequence of your injuries and also require further ongoing treatment.

In many cases, you may have suffered an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) and unfortunately, such an injury is also defined as a soft tissue injury for the purposes of the Act.

However, if the injury to the nerve results in radiculopathy then it is not a minor injury.  The criteria for assessing whether radiculopathy is present, is set out in the guidelines.  For radiculopathy to be considered genuine, two (2) or more of the following clinical signs must be present:-

  1. Loss or asymmetry of reflexes;
  2. Positive sciatic nerve root tension signs;
  3. Muscle atrophy and/or decreased limb circumference;
  4. Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
  5. Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

We can assist you in finding out whether or not your injury has been properly classified as being minor.  If your injury is not minor, then you may be entitled to far more significant benefits than the statutory benefits as imposed by the Act.


If you have sustained a fracture, which should be easily identified by plain x-ray, then prima-facia a bone fracture is not classified as a minor injury.  It will be necessary, however, to determine whether or not the fracture has long-term consequences which may enable you to pursue a claim beyond statutory benefits for past and future loss of income and in certain circumstances, depending upon the seriousness of the fracture you may be entitled to receive damages for non-economic loss (your bodily injury which results in permanent impairment and pain and suffering).


If you have sustained an injury which results in permanent scarring to your body then this is not a minor injury.  Depending upon the severity of the scarring and its location on your body, there is a possibility you may be able to claim past and future economic loss if as a result you have suffered a loss of income, i.e. modelling or in the alternative, you suffer from a psychological or psychiatric injury which is not minor as a consequence of the scarring.

Please contact the accredited Personal Injury Specialists at Beilby Poulden Costello who will assist you in obtaining the proper amount of compensation to which you are entitled.

Injured on the Roads while driving cycle. Contact BPC Lawyers today for help.

Your Rights as a Cyclist if you have Been Injured on the Roads

After 1 December 2017, if you are a cyclist and have been injured in a collision with a motor vehicle on New South Wales roads, then you will be able to claim damages pursuant to the provisions of the Motor Accidents Injuries Act (NSW) 2017.

Your claim can be made against the CTP green slip insurer of the motor vehicle or bus with which you had the collision and if the vehicle was unregistered then you are still able to bring a claim against the Nominal Defendant.

Pursuant to the provisions Division 2.4 of the Motor Accidents Injuries Act, the State Insurance Regulatory Authority (SIRA) is for the purposes of this Act the Nominal Defendant.

The writer has acted for many cyclists who have been seriously injured in accidents involving another motor vehicle.

It is now a common sight to see cyclists on our roads, both during the day and also at night.

The NSW Government has recognised this fact and has enacted new laws in relation to driver behaviour regarding cyclists.

Since 1 March 2017, drivers in NSW must leave at least one metre of space when passing a cyclist in speed zones of 60 km per hour or less. They must leave at least 1.5 metres in higher speed zones.

Furthermore, if it is safe to do so, drivers can cross centre dividing lines or continuous lane dividing lines to overtake a cyclist. They can also drive on painted islands and dividing strips to pass a bicycle when safe to do so. If it is not safe, drivers must slow down and wait until there is enough space to pass.

As far as cyclists’ behaviour concerning other motor vehicles, the minimum passing distance is not specified for cyclists and they are advised to leave sufficient room to avoid a collision when passing cars.

The writer has been involved in several cases where cyclists were thrown from their bicycle and sustained serious injuries and in one circumstance was rendered unconscious. It is therefore important if you are a cyclist at all time you have with you photo identification and also a mobile phone. It has also been mandated by the government there is a requirement for bicycle riders to produce photo identification when stopped by police who have suspected they may have committed an offence.

It is helpful if you also carry a photo ID in the event that a person or persons witness your accident and may wish to keep in contact with you and provide you with statement regarding your accident to assist you in your claim. I have been involved in a number of cases where the statements by independent witnesses were crucial in proving the cyclist was not at fault and the entire blame for the accident fell upon the driver of the motor vehicle.

It is always important to have a mobile phone with you to be able to photograph the registration plate of a motor vehicle if needed and also record details of the driver including taking a photograph of their driver’s licence.

All of this information will assist you when completing the Application for Personal Injury Benefits which is the new claim form required to be completed for all accidents after 1 December 2017 and must be lodged with the relevant CTP insurer within three months of the date of your accident.

There may also be circumstances where a cyclist has sustained injuries from falling off their bike because of defects in the road surface such as a pothole or other dangers such as loose gravel, however, these claims are governed by the provisions of the Civil Liability Act (NSW) 2002 and such claims against the local council, who are responsible for the maintenance of the road, require far more investigation.

The local council will endeavour to seek immunity from suit pursuant to the provisions of Section 43 of the Civil Liability Act. It will be necessary to seek the advice of an Accredited Specialist in Personal Injury Law with regards to proceedings of this nature.

If you are injured whilst riding your bicycle on NSW roads, then contact the specialist accredited lawyers at BPC Lawyers who will be able to provide you with immediate assistance.

Injured at work? Am I Entitled to Workers Compensation, contact BPC Lawyers today.

I Have Been Injured on My Way to Work. Am I Entitled to Workers Compensation?

A worker who is injured at work is entitled to compensation benefits including (subject to restrictions) payment of medical expenses, compensation for wage loss, and compensation for permanent impairment suffered.

But what about traveling to work? Are you covered?

Travel to and from work

Ordinarily, you will not be covered for travel to and from your home to your place of work. It did always used to be the case however, recent changes have restricted the scope of workers compensation; Section 10 Workers Compensation Act 1987 (NSW).

However, once you reach work, further travel during work hours can be covered.

Exception – Travelling to work/work site for work sake

As you can appreciate, workers compensation law must determine who is covered in all types of work. Some industries see workers travel straight from home out to a work site, or are road based, such as truck drivers.

It is to those types of working based situations that the law protects. What needs to be established is that there is a, “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.” Section 10 (3A) Workers Compensation Act 1987 (NSW).

It is well settled that a worker, during their employment, can be on a journey from a place of abode to a place of employment at the same time. For example, in the case of Hooke v Rolfe (1986) 7 NSWLR 40, the New South Wales Court of Appeal was under no hesitation to find that motor vehicle accident can have multiple purposes in the sense of being both for employment purposes and for travelling to or from places of abode.

Hence, if your job is one which by its very nature requires you to travel, or even better you’re paid to travel for work, then you may have a claim under a whole number of different provisions designed to grant a positive right to compensation: Harvard v Illawarra Meat Co Ltd [1956] WCR 4 and Thompson v Lewisham Hospital [1978] WCR 111.

We have run many of these cases with great success.

In the matter of Zammit v The Bush Doctor (NSW) Pty Limited (2014) (Unreported 14 September 2014), an employee was employed to attend various bush sites to use pesticide.

He was driving his own motor vehicle and suffered a crash when a spider climbed up his arm. He was taking tools and products (herbicide) to the work site where he was directed to go by his employer.  He was paid an extra allowance for the travel.

Hence, the Senior Arbitrator (now Presidential member) Michael Snell (as in Maurino v Amberlor Pty Limited (1996) 14 NSWCCR 16) found in favour of the injured worker and found that this was not just a trip to work, but was a part of his work duties; thus, he was awarded workers compensation entitlements.


Many workers, like us lawyers, are office based. We travel from home to work by car, bus, train, ferry, bike or even just using our legs. Many injuries are suffered on our way to work (many at no fault of our own).

Regrettably, most workers have lost their right to workers compensation in these circumstances.

However, there are exceptions. To know if you fall into one of these exceptions, we need to look at the whole work situation – your employment contract, what you’re paid for, duties performed and the reasons for your travel.

If you’re injured in a motor vehicle it is best to contact our office to ensure that you obtain full access to any entitlements you may have.

Proposed Reforms to The CTP Scheme

Proposed Reforms to The CTP Scheme

Changes to the Rights of Victims of Motor Vehicle Accidents

What rights do those injured in Motor Accidents presently have in NSW?

 It is compulsory for drivers in New South Wales to hold third-party insurer which covers any injuries covered to any person whilst driving a motor vehicle. The policy is not limited and it means that all victims of motor vehicle accidents are covered for the injuries that they suffer.

The compensation that is payable is usually referred to by the courts as ‘damages’.

a/ CTP Scheme Common Law Damages – Modified – for Victims of At Fault Accidents

Victims of motor vehicle accidents in New South Wales are currently entitled to modified common law damages. The object of an award of damages is to put the person back in the same situation as if the accident had not occurred. For reasons of economy, the entitlement to compensation is capped in several respects. Damages are awarded on a ‘once and for all time’ basis.

Damages are tailor made to the specific circumstances of the injured party. The damages are assessed in ‘heads’. The heads of damage that are usually claimed include:

i/ General damages for pain and suffering.

ii/ Loss of wages. This includes past loss of wages as well as the anticipation of loss in the future, including the loss of opportunity for profit, advancement or promotion.

iii/ Past and future medical expenses.

iv/ Nursing and domestic assistance.

Some of the ways in which the entitlement to damages is currently modified, or limited, include:

i/ There is no entitlement to recover general damages for pain and suffering except where the injury is found to have constituted a less than 10% whole person permanent impairment.

ii/ There is no entitlement to recover damages for care and assistance gratuitously provided unless the care has been provided for at least 6 hours per week and for greater than six months.

iii/ The reliance upon a 5% actuarial multiplier which lowers the damages awarded for future losses.

b/ No-Fault Compensation

Damages are also available irrespective of fault in the following limited circumstances:

i/ Catastrophically injured victims of motor vehicle accidents receive medical expenses and care on an as incurred basis.

ii/ Damages are available when the injuries are suffered in a “blameless” motor vehicle accident (the Sophie Delizio amendment).

iii/ Children under the age of 16 have a special entitlement to recover damages for medical expenses, care and funeral expenses irrespective of fault.

iv/ Medical expenses and potentially loss of wages are payable up to $5,000.00 irrespective of fault, provided the claim form is issued within twenty eight days of the accident.

c/ Benefits of the Current Scheme

i/ Compensatory Damages:

For the majority of innocent victims of motor vehicle accidents of New South Wales, the compensation awarded to them is assessed depending upon their particular circumstances. The intent of compensatory damages is to ensure that the injured party does not suffer as a result of another driver’s fault.

ii/ Immediate Payment of Medical and Rehabilitation Expenses:

During the course of the claim most medical expenses are paid as incurred and at the conclusion of the claim an amount is awarded to cover additional anticipated future expenses.

iii/ Payment of Legal Costs:

A victim of a motor vehicle accident who establishes an entitlement to compensation is entitled to have the majority of their legal costs paid by the insurer of the party at fault. In some circumstances the amount that can be recovered for legal costs is capped, but there is no restriction on a person’s entitlement to retain a lawyer at their own cost. When we buy a cupboard from Ikea, we expect an instruction manual. Most of us would be in a great deal of trouble without that assistance.

iv/ A Tailor Made Approach:

At common law, the court has an open discretion to award such amount of compensation as is necessary to put the injured party back in the situation as if the accident hadn’t occurred. While money can only do so much, it is intended that the compensation will cover all loss that has been suffered. This is important because no two cases are ever the same. Consider, for example:

  • An apprentice who will expect to receive a significantly greater wage when they obtain trade qualification;
  • Medical treatment that has been completed but may require a joint replacement in the future;
  • An injured party that is able to return to work after an accident but may need to retire early;
  • A mother who intends to return to work in the future.


The Benefit Designs Options paper provided by the Government appointed reference panel stipulates at Page 1 that it has already been determined as Government policy that there will be changes to the CTP scheme to introduce a hybrid model of compensation, with benefits defined in the legislation (defined benefits) available to all, regardless of fault and limited common law damages available to those who can prove fault on the part of an owner or driver and whose injuries give rise to a permanent impairment of greater than 10% whole person impairment. The Benefit Designs Options paper, together with consultation documents provided by SIRA, indicates that the severely injured will have vastly reduced common law benefits under the proposed hybrid compensation model.

a/ Moderate to Minor Injuries

It appears clear that an arbitrary whole person impairment rating level is likely to be viewed as the gateway for accessing any form of common law benefits

For those who have not suffered a whole person impairment of greater than 10%, entitlement to loss of wages will likely be dictated by the insurer who is participating in the scheme for profit. Page 4 of the paper suggests that an insurer can undertake a work capacity decision for a person at any time. It appears that persons considered to be moderately injured or with ‘minor’ injuries, will have no access to legal representation unless a claimant lacks legal capacity or an insurer has denied liability for all benefits (example, by an allegation of fraud).   Access to justice by way of legal representation appears to be further limited by a stated policy that legal practitioners be prohibited from contracting out of prescribed set maximum legal fees in matters where claimants are allowed to utilise the services of lawyers.

Those injured would be entitled to defined benefits irrespective of fault. Injuries would be compartmentalised and the payment of a benefit would largely depend upon the categorisation of the injury, rather than the actual loss suffered. Wage loss would be compensated as the loss arises, but only as a proportion of the actual loss. The entitlement to claim loss of wages would end at a defined point in time irrespective of whether the injured person has the ability to return to work.

b/ Severely Injured

The government has as its preferred option an additional entitlement for the victims of “at fault” motor vehicle accidents, only in circumstances where the injury meets a requisite threshold: 10% whole person permanent impairment.

The impairment threshold is arbitrary and intended to operate as a gateway to define the ‘haves’ and ‘have nots’. There is no pretence that the 10% threshold is just or equitable, but merely economical. For example, a person who is in a coma for six months but then recovers may be found to have a 0% whole person permanent impairment.


 a/ Access to Legal Rights

The government proposes that ordinarily only those who are severely injured will be legally represented. The victim of a motor vehicle accident will be prohibited from paying for legal advice from their own pocket unless they are severely injured. A severely injured victim may not realise that they have the opportunity of passing through the gateway and being determined as ‘severely injured’ without the benefit of legal advice. Good luck with that Ikea flat pack.

In all aspects of our daily life we look to experts for advice. It is a fundamental tenet of a free and just society that we are able to obtain legal advice about our rights. The government wishes to curtail access to legal advice because people who do not understand their rights will not make claims.

The independent review of insurer profit conducted at the request of the government found people who were legally represented obtained outcomes that are eight times greater than the outcomes for unrepresented Claimants.

Further, the proposed changes deny even an unrepresented victim access to the courts. The government proposes that disputes about a level of pay or the reasonableness of medical expenses would be determined by bureaucrats after hearing from the injured victim and the insurer, or its lawyer. The evidence that would be considered by the bureaucrat would be the documents obtained by the insurance company and submissions that it, or its lawyer, prepared compared to the documents that the unrepresented injured party was able to offer.

b/ Defined Benefits

The common law approach of assessing what loss and damage a victim has suffered is substituted for defined benefits which seek to pigeonhole compensation. The government intends to save money by paying defined benefits with the intention that the cost of the scheme will be more easy to calculate and as a result mean the cost of a green slip can be more readily determined. In fact, the saving will be made by reducing the entitlement to compensation.

c/ Finality

In our experience, most people who suffer injury want a final resolution. That usually involves payment for past losses and an allowance to cover the future all paid in one lump sum. The changes to the scheme will mean that even seriously injured victims will not be allowed closure. For the severely injured, payments of medical expenses can be accessed for life but subject to satisfying an insurer that the treatment is reasonable and necessary.


We are sceptical of the government’s intention with respect to the changes to the scheme. The government wants to remove access to justice and put in its place a bureaucratic scheme that offers defined benefits. The government is significantly more concerned with the cost of a green slip than it is of the rights of those injured in motor vehicle accidents. Aside from insurers, very few people will benefit from the government’s proposal.

[1] Motor Accidents (Lifetime Care & Support) Act 2006

[2] Chapter 1, Pt 1.2, Div 1 Motor Accident Compensation Act 1999

[3] Chapter 1, Pt 1.2, Div 2 Motor Accident Compensation Act 1999

[4] Chapter 3, Pt 3.2 Motor Accident Compensation Act 1999

Why Does the Government Want to Change the Scheme?

Stated goals of reform

The stated goals of reform are as follows:

i/ Increase the proportion of benefits to more seriously injured people;

ii/ Reduce the time it takes to resolve a claim;

iii/ Reduce opportunity for claims fraud and exaggeration; and

iv/ Reduce the cost of green slips.

 Subject to ascertaining how many additional claims are made by persons at fault in accidents, regardless of whether they are deemed to have minor to moderate injuries or serious injuries referable to a whole person impairment scale, it appears that the proposed reforms will achieve the stated goal of increasing the proportion of benefits to more seriously injured people. The key issue with this stated goal, in the author’s opinion, is that it will be of little comfort to the persons assessed as being ‘more seriously injured’ that they are receiving out of the scheme a greater proportion of compensation than before, if each of their individual claims results in the actuality of them receiving less compensation per claim than they would have before.   It is clear from the Benefit Designs Options paper that seriously injured people will receive far lesser sums for general damages and will have an inability to capitalise future claims for other heads that are presently available. Subject to how many additional claimants enter the scheme, by virtue of it being opened up to drivers at fault, beyond those catered for under the $5,000.00 limit pursuant to the Accident Notification Form process, for seriously injured people to receive a greater proportion of the overall benefits available to all injured persons, anyone with a minor to moderate injury will necessarily need to receive some fraction of the compensation previously available to them – which appears to be the clear scheme design.

In relation to the second stated goal of reform, reducing the time it takes to resolve a claim, it is difficult to see how any injured person, whether having injuries deemed to be minor, moderate or warranting the descriptor ‘more seriously injured’ can benefit from timeframes for cases being necessarily reduced. That is, under the present scheme, all innocent victims of accidents due to the fault of others are able to receive interim payments for medical expenses and for wage loss due to financial hardship and must allow a longer period to receive the balance of damages available as stabilisation of injuries under the medical guidelines is paramount for properly determining future impacts upon earning capacity, requirements for medical treatment and for domestic assistance. Forcing claimants to finalise claims without legal representation in order to achieve ‘claims velocity’ is likely to necessarily cause claims to be closed for persons before any opportunity is available to properly assess the longer term effects of their injuries. This appears to be a significant basis of concern for persons deemed to have minor to moderate injuries.

The third stated goal of reform is to reduce the opportunity for claims fraud and exaggeration.

To this extent, the Government should be congratulated on introducing a fraud task force for the purposes of achieving this end. One may be entitled to be more circumspect about praising media announcements to the effect that fraud is costing the NSW CTP Scheme in excess of $400,000,000.00 annually.   It is inherent in discussing the fraud element of any compensation scheme, that the extent of fraud can only ever be estimated. That is, if fraud were able to be measured with accuracy, there ought to be steps taken in order to address those responsible for the fraudulent activities and the discussion of the extent and cost of fraud in the scheme reflective upon statistics compiled referable to actual documented cases.

In any event, the introduction of the fraud task force is of such recent occurrence, that it appears premature to force upon innocent victims of motor accidents a reduced compensation scheme before the longer term work of the fraud investigation task force is known and understood.

The Government has taken positive steps to promote the reporting of suspected fraudulent claim activities.

Concern attaches to the extent to which the proposed scheme reform can eliminate or reduce fraud.

To a large extent, the policing of fraud has been within the province of the insurers who have derived on average 19% profit per annum for operating under the licensed conditions pertaining to the NSW CTP scheme. It would not appear unreasonable to suggest that the insurers would increase their activity to deter, monitor and report fraudulent claims.

It is unclear as to how the introduction of a no-fault scheme will deter fraud. The experience in the United Kingdom with the introduction of a no-fault scheme appears to indicate that opportunities for fraud actually increase in a no-fault environment. That is, the initial accident reporting procedures and ease with which persons can obtain entrance to the scheme are consistent with persons of mala fides electing to chance their hand to obtain compensation payments on a repeated basis.

In relation to the goal of reducing the cost of green slips, it is still not the case that any Government representative has guaranteed that premiums will reduce by way of response to introduction of proposed scheme reforms.

It appears reasonable to assume that by mere virtue of its existence, the fraud task force recently set up by the Government will reduce the tendency of some persons to attempt claims exaggeration or fraud and will have a significant effect on systemic attempts by any networks of persons to initiate fraudulent claims.

On that basis alone, it would appear prudent in relation to allow for the further passage of time before imposing wholesale change upon the scheme.

Why Do I Pay for a Green Slip?

NSW motorists of registered vehicles pay green slips because it is compulsory to do so. The compulsory third party system was introduced many decades ago in order that there be protection to motorists from law suits and to ensure that persons injured by motorists can have the certainty of there being an insurance policy behind any necessary claim for compensation.

The green slip payment in NSW also covers persons injured in circumstances where injuries are caused by an unregistered or unidentified vehicle – the Nominal Defendant Scheme.

The Nominal Defendant meets compensation claims by appointing a licensed CTP insurer to deal with such claims commensurate with its percentage market share overall.

Is CTP Insurance Expensive?

The answer to the question largely depends upon what a person receives in exchange for paying the compulsory third party premium.

Under the proposed new system, there will necessarily be many more Claimants than presently under the existing scheme.

For this to occur and for there to be no significant premium increase as a result, it follows necessarily that each injured person (whether innocent or at fault) will receive compensation that is some fraction of what innocent (not at fault) victims presently receive under the existing scheme.

A green slip does not hold much value for an injured person if they are unable to receive adequate compensation for injuries and are forced out of the compensation scheme due to a unilateral review of entitlement to wage loss, as appears to be proposed.

The Government’s own internal report (published by State Insurance Regulatory Authority) into the review of insurer profits in the scheme, indicates that in real inflation adjusted terms, green slip premium prices “are comparable to those of fourteen years ago”. This report, published by SIRA of the independent review of insurer profit within the scheme, is publicly available.

The report needs to be read in the context of the broadened coverage that is provided by way of categories of claimants under the scheme presently by virtue of introduction of blameless accident provisions and the no fault compensation scheme that already exists up to the sum of $5,000.00 for drivers at fault (all of which was introduced during the fourteen year period referred to). That is, presently, persons injured in motor accidents (including usually a motorist who in turn pays for a CTP premium) is getting more coverage out of the present compensation system for the same price in real terms.

The Injured Persons Association in 2013, when writing to the then Acting Minister for Finance, Andrew Constance MP, pointed out that over a longer period of time, the average premium from 1988 to 2013 had increased by only 60% to an average of $550.00. The CPI had increased 120% over that same period.

In nominal terms, as well as in relative terms, CTP insurance is cheaper than ensuring a motor vehicle comprehensively for property damage and the coverage, in real terms, is much greater.

Has Anyone Made Submissions Regarding Changes to be Made on Behalf of the Insured to Date?

Submissions were allowed to be publicly made by any interested person at the invitation of SIRA in relation to proposed scheme reform.

Submissions were made by and on behalf of the usual ‘stakeholders’.

It appears obvious that the most numerous stakeholders – the millions of premium paying motorists in NSW and the tens of thousands of persons effected directly and indirectly by motor accident related injuries in NSW each year, have not been adequately consulted. Most individuals do not properly understand what they will lose in terms of legal rights and insurance coverage by way of the proposed claims.

The first time that most people will find out about the true extent and consequence of the proposed change is when they have to make a claim in respect to injuries that affect their ability to work and provide for family members.

Aside from the noticeable increase in advertising by insurance companies promoting income protection insurance policies, there appears to have been no real step taken to adequately warn innocent victims of motor accidents of an increased need to consider taking out additional insurance policies such as income protection policies and sickness and accident policies in order to offset the harsh effects of the proposed legislation on compensation rights.

It appears likely that tens of thousands of individuals including those who rely directly upon bread winners within the family will be adversely affected within twelve months of the introduction of any legislation that purports to offer less than basic and fair compensation pursuant to the basic compensation principle that underpins the common law.

This appears to be yet another reason for the State Government to allow more time to elapse before hurriedly putting through proposals that appear to be patently harsh and disadvantageous to the majority.

In discussions between the ‘stakeholders’, as opposed to the members of the public who have no idea about the true nature of the proposed changes, it has been observed that the vast majority of citizens within NSW would prefer to sacrifice a potential saving of $2-3 per week in green slip pricing to remain with proper common law based compensation, rather than risk the financial perils of being unable to meet mortgage payments and other necessary payments that may occur in circumstances where persons are forced out of the system with inherent residual restrictions that effect their earning capacity, both short term and long term.

Submissions have been offered by various bodies including the Australian Lawyers Alliance, DRIVE, The Law Society of NSW and the Bar Council.

The submissions have ranged on focusing on the historical super profits made by insurers under the scheme with the suggestion that this ought to be the only area of focus for legislators in formulating any renewed CTP legislation. The submissions offered by persons purporting to represent injured persons in NSW have included representations to the Government that it would be appropriate to set capped legal fees for claims which have less than a certain quantum value (the quantum suggestions have ranged from $30,000.00 upwards to $50,000.00).

Has Anyone Made Submissions on Behalf of the Insurers to Date?

Submissions have been made on behalf of various insurers in relation to schematic change.  These submissions have focused on a suggestion that all injuries that are not catastrophic injuries can be successfully rehabilitated within a relatively short time. The submissions also point to claims exaggeration and fraud.

How Do Insurers Manage Claims Against People Without Legal Representation?

Duty to shareholders

Insurers have a duty to shareholders, not road users and certainly not injured persons who need to make claims for motor accident compensation.

Insurers are not criticised for fulfilling their primary obligation, which is to maximise profits for shareholders. It is simply necessary to acknowledge that obligation exists when giving consideration to how insurers are expected to behave when provided with a claims scheme that enables them to make unilateral decisions in relation to whether claimants remain within the scheme without fear of the claimants obtaining access to justice through legal representation.

The suggestion by insurers that rehabilitation is the way of solving problems for all persons injured on the road except for those most seriously injured with injuries greater than 10% whole person impairment may not fully acknowledge the necessary tendency of those doctors who are empanelled by insurers to take steps to ensure they remain on the panel of providers after the next internal review by insurers.

SIRA proposes, with the suggested scheme changes that appear to be on the table, to oversee and manage the actions of the insurers through adherence to guidelines through its staff (which will need to increase in numbers by a multiple that is difficult to estimate). The experience of thousands of injured workers in the workers compensation scheme in an analogous context pertaining to merit reviews performed by insurers in relation to wage loss disputes will be the subject of an Upper House inquiry in relation to the workers compensation scheme in October this year.

Again, when considering who the real stakeholders are in relation to the CTP scheme, it is important to acknowledge that insurers must account to their shareholders, not to their member road users.

Involvement of Compensation Lawyers

Legal costs have understandably been the focus of much of the discussion and perhaps form the major impetus for the proposed scheme reforms. Less than twelve months has passed since SIRA introduced compulsory reporting of solicitor/client costs and disbursements by lawyers in NSW representing injured plaintiffs.

The precise data has not been released in this regard.

We would suggest that, as with the introduction of the fraud investigation squad, the mere existence of the reporting requirements ought to be such that any untoward practises by a few would have ceased in a way that requires the passage of at least a further twelve (12) months before any probative review of the figures can be provided in terms of scheme outlook (and hopefully published).

On the statistics front, the SIRA report in to the independent review of insurer profits in the scheme notes that for claimants with legal representation under the scheme as it presently exists, the gross pay out figure has on average been 8 times greater than for claimants who are unrepresented. This would appear to be a fairly logical stand upon which to support the fact that individuals require legal representation when dealing with insurance companies.

Scheme Stability

It is acknowledged by most observers of the scheme, including the minister introducing the scheme reforms, that scheme stability is critical to the ability of the insurers to predict their profits and in turn, adequately price green slip premiums to cover the cost of claims.

In actual fact, according to SIRA’s own documentation (admittedly in the context of analysis of insurer profits, not reducing Claimant’s rights) the Scheme has been stable in terms of pricing relative to inflation for in excess of 14 years, despite broadened coverage that has occurred with introduction of blameless accidents and the no fault entitlements under the Accident Notification Forms.

Social Consequences

It is entirely predictable that injured persons under the proposed CTP Scheme will be removed from the Scheme without being adequately compensated pursuant to common law principles in relation to any future heads of damage.

Persons exited from the proposed new scheme will have their needs met by the tax payer, if they are entitled to receive Centrelink benefits.

Persons medical and financially able to obtain income protection policies will be the few not adversely affected by the changes.

Mark Nelson, BPC Lawyers

Proposed Motor Accident Compensation Law Changes

Proposed Motor Accident Compensation Law Changes

Australians Alerted To Proposed Changes To Motor Accident Compensation Laws – Press Release

BPC Lawyers is a leading Sydney legal practice and accredited specialists in Personal Injury law. In a recent communiqué they make all Australians aware of the proposed changes to motor vehicle compensation laws.
The Minister for Innovation and Better Regulation, the Honourable, Victor Dominello MP announced in a media release on 2 March 2016 that the Government will be establishing a task force to counteract CTP fraud in New South Wales and will also conduct a review of the present CTP scheme. The Government has a clear agenda to reduce the cost of a green slip in New South Wales and is keen to see that a high proportion of the green slip premium goes towards helping the injured person. Statistical information indicates only 45% of the premium is paid in direct claimant benefits and furthermore, 19% of the premium represents profit for the licensed insurers. The Government has put on the table a number of potential reform options which are as follows:

Option 1 – retain the current common law, fault based scheme with process improvements;

Option 2 – retain the current common law, fault based scheme with adjustments to benefit levels as well as process improvements;

Option 3 – move to a hybrid no fault, defined benefit scheme with common law benefits retained in parallel; and

Option 4 – move to a fully no fault, defined benefit scheme with caps, thresholds and no common law.As these discussions have progressed since March 2016, it appears the Government is in favour of option 3.

This proposed scheme is similar to the scheme presently operating in Victoria which is managed by the Transport Accident Commission. BPC Lawyers believe it is important to note the present scheme in New South Wales is already a hybrid scheme with no fault benefits paid to a significant number of classes of persons injured in New South Wales. For example, upon lodgement of the Accident Notification Form payments are made to injured persons up to the sum of $5,000.00 for medical expenses. There is also the blameless accident legislation, Lifetime Care and Support Scheme and no fault coverage for children. In the Victorian scheme there are no payments made for gratuitous domestic assistance. At the present time in New South Wales, persons who are injured can receive assistance from friends or relatives with self-care and domestic chores but such assistance must be not less than 6 hours per week and for a period not less than 6 months. The rate is legislated by statute at $29.44 per hour and is CPI indexed.

If the present legislation is changed, BPC Lawyers believes there is cause for concern in ascertaining the entry level or threshold for access to common law benefits. Most objective observers of the proposed changes are concerned that the CTP scheme will not provide adequate economic loss compensation in most cases – meaning that those who cannot afford to pay for separate income protection insurance will be left ‘high and dry’.

Mr Mark Nelson, Partner of BPC Lawyers said, “more than ever, injured persons need to consult experienced practitioners in the area of personal injury litigation and seek the assistance of solicitors who have many years’ experience in personal injury claims.”

BPC Lawyers offers the services of accredited personal injury law specialists who are ready to assist members of the community.

About BPC Lawyers

BPC Lawyers is a leading Sydney legal practice with accredited motor accident compensation lawyers. The practice has its origins as a legal practice started by Barry Beilby in 1975. The business expanded significantly in 1993 when the practice merged with that of Flannery Mura & Costello, a firm specialising in Compensation law.

For more information, please visit The website

Media Contact

BPC Lawyers
Mr Mark Nelson
Address: Level 18, 201 Elizabeth St., Sydney, NSW Australia 2000
Phone: +61 (02) 8280 6900

Personal Injury Motor Accident Claims

Personal Injury Update

Recent Compensation Case

There was a recent decision in the New South Wales Court of Appeal involving an application by an injured claimant to set out aside a decision of Supreme Court Judge, Mr Justice Fagan, to refuse the injured person’s application to seek judicial review of a decision by the Proper Officer of the Medical Assessment Service. The case was Dominice –v- Allianz Australia Insurance Limited [2017] NSWCA 171.

The injured claimant suffered injuries in a motor vehicle accident in July 2013. In order to obtain compensation for non-economic-loss (bodily injury) it is necessary to demonstrate a degree of permanent impairment greater than 10%. The claimant was initially assessed as having a whole person impairment of 18%. The CTP insurer, Allianz, sought a review of that determination.

The review application was determined by The Proper Officer of the Medical Assessment Service of the Motor Accidents Authority. The Proper Officer is required to refer the application to a review panel of medical assessors but only if the Proper Officer “satisfied there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.”

The Proper Officer decided to refer the application by the CTP insurer to a review panel. The injured claimant instructed her lawyers to challenge that referral decision by way judicial review pursuant to Section 69 of the Supreme Court Act 1970 [NSW].

The claimant’s application was dismissed by His Honour, Mr Justice Fagan in the Supreme Court on 31 August 2016.

Justice Basten stated at paragraph 4 “no error has been identified in the judgment of the primary judge, Fagan J. If the primary judge erred in any respect, it was according too much credence to the complaints of the Appellant. In fact, the appellant’s case was based on four inter-related assumptions which were inadequately explored.”

Furthermore, it is important to note what Justice Basten also stated in his judgment:-

“Where the Proper Officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss.

 However, when the error is said to have resulted in the failure of the Proper Officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least were the bona fides of the Proper Officer was not in question, would have strong reasons for rejecting the application on discretionary grounds.”

This case is important for legal practitioners to consider when challenging a Proper Officer’s decision to refer an assessment to a review panel. In view of what has been stated above by Mr Justice Basten, a solicitor acting for a claimant in such circumstances would need very good reasons to bring application for judicial review to set aside the decision of the Proper Officer to send the matter for review.

It would be more prudent to allow the matter to proceed to the review panel and depending on the outcome of their decision, decide whether or not an application for judicial review is warranted.

Compensation Lawyers Sydney at BPC Lawyers, we are able to assist our clients in regard to any application for judicial review and will ensure any application to the Supreme Court has good prospects for success.

Whiplash associated disorders

Whiplash associated disorders

“Whiplash associated disorders – (WAD)”

A soft tissue injury occurs due to trauma to the human body when the tissues that connect, support or surround other structures and organs of the body are damaged. By definition, soft tissue includes muscles, tendons, ligaments, fascia nerves, fibrous tissues, blood vessels and synovial membranes.

Usually, the spine and the shoulders are often affected in this type of injury.

Immediate disability does follow injury to ligaments and healing, from a functional view point is seldom perfect.

Since soft tissue injury always heals with scar or fibrous tissues, it lacks the viability or elasticity of the original tissue, therefore soft tissue is always weaker after injury (whilst bone will be strengthened by scar tissue).

On occasions, some medico legal doctors imply that a whiplash associated disorder can be detected using an MRI scan. There is research to the contrary.

There was a study conducted in Sweden in 1994 where 39 consecutive cases of whiplash injury of the neck were examined clinically and with an MRI at a mean of 11 days after trauma.

26 of these showed changes on MRI with disc lesions in 25 cases, 10 of which were classified as disc herniations and a muscle lesion in one case. All of these persons had neck pain or headache.

29 cases had neurological deficits, mostly sensibility disturbances. 22 of the 26 cases with pathological MRI had neurological signs, as had 7 of the 10 cases with disc herniation.

The relationship between the MRI findings and the clinical symptoms and signs was poor.

The study was undertaken to evaluate if MRI within two days of a motor vehicle accident could reveal pathology of importance for understanding long term disability after whiplash neck sprain injuries.

As part of a prospective study, cervical and cerebral MRI was performed on 40 neck sprain patients with whiplash injury after car accidents.

The imaging was done with two days of the injury to make sure that any neck muscle bleeding, oedema or other soft tissue injuries could be detected.

The MRI findings from the patients were both correlated to report symptoms six months after the accident and compared to a control group of 20 volunteers.

The MRI of both the brain and neck revealed no significant differences between the patients and the control group.

When the patients were grouped according to the main MRI findings at intake and compared according to the development of subjective symptoms reported by the patients, the only significant difference was more headaches at six months in the groups with disc pathology or spondylosis when compared to the group with no pathology.

MRI scan within two days of the whiplash neck sprain injury could not detect pathology connected to the injury nor predict symptom development and outcome.

In conclusion, pain residuals, which may last for months or even years, may be due to the scar tissue which has replaced the previous normal tissue. Its inelastic quality can cause pain with certain movements. The lengthy period of healing may be explained by the fact that it takes a long time for soft tissue to heal and mend.

D R Ford

10 March 2017

Satisfactory Explanation For Late Motor Accident Compensation Claim

Satisfactory Explanation For Late Motor Accident Compensation Claim

Late making of claims under the Motor Accidents Compensation Act (1999):

Requirement for a “Satisfactory” explanation

 You should refer to our earlier article in relation to the making of late motor accident claims. This paper adds to the topic in relation to the need for an explanation not only to be full, but also to be satisfactory.

The High Court considered the meaning of satisfactory delay in Russo v Aiello [2003] 215 CLR. At 463, Gleeson CJ said:

“What would justify a reasonable person in a position of the claimant ‘experiencing’ a delay? It is impossible to give an exhaustive list of possible justifications. Delay in the onset of symptoms is one example; and as an example of some relevance to this case. It is to be noted that what the Act requires is justification for the delay; not demonstration of the delay caused no harm….The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it.”

In Walker v Howard [2009] NSWCA 408 the Court of Appeal (sitting as a bench of five) considered the case of the claimant who was suffering serious brain damage. They suggested the case gives useful guidance as to the attributes the claimant that ought be considered when applying the objective tests under s.66(2) of the Act, that is the “reasonable person in the position of the claimant” test.

Firstly, the Court said that the position of a claimant with a disability includes that disability:

“….that placement of a fictional person in that position could be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable in the claimant’s position….The phrase ‘position of the claimant’ is not limited in terms of the personal or physical characteristics of the claimant. It connotes aspects of a place and circumstances relevant to the enquiry….. It can be acceptable that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the ‘position of the claimant’….. to the extent that the test requires the subjection of the reasonable person in the position of the claimant to their circumstances in the full explanation and a “justification” of experiencing them, such a constraint demands normative evaluation”.  

Young, JA noted that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant includes the age, sex and capacity of the claimant as well as her or her cultural background.

In Figgliuzzi v Yonan [2005] NSWCA 290 the Court considered the earlier but similar incantation of the satisfactory explanation provisions in the Motor Accidents Compensation Act 1988 and held that that the explanation for the failure to lodge the claim within the time prescribed was not satisfactory because she had failed to obtain legal advice in a timely fashion.  McColl, JA makes clear in Figgliuzzi at [124] FF, the Act is one of many statutory schemes whereby the legislature has fixed definite time limits for the prosecution of civil claims because, “the public interest requires that disputes be settled as quickly as possible.” (CF Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553 per McHugh, J). Unlike other limitation provisions, however, those fixed by MA are not absolute. The various authorities Her Honour collects in that judgment clearly “….demonstrate that a legislative concern with a prompt notification and timeous resolution of claims for damages arising out of motor vehicle accidents” and “what would constitute justifiable delays to be considered in the light of these legislative purposes”. The majority held that determining whether a claimant has provided a satisfactory explanation involves a ‘normative judgment’. Arising from the accident, Ms Yonan had complimentary rights under the workers compensation and motor accident legislative regimes. Ms Yonan who was employed by the Legal Aid Commission as a clerk offered as her explanation a belief that having made a claim for workers compensation she was not then able to claim damages under the motor accident regime.

At [95] Tobias JA, said:

Accordingly, the critical question concerns behaviour of a reasonable person in a position of the [claimant] who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because the accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act. Would that reasonable person in the respondent’s position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practise or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?”

Santow JA, did not accept the view of the majority that it was unreasonable for her not to have sought legal advice and to have relied upon her ‘bush’ legal analysis. In dissenting, Santo JA said at [24]:

“For a person to have a civil claim under two regimes, namely workers compensation and under the Motor Accidents Act is far from self-evident in such circumstances; indeed it comes close to being counter-intuitive. Therefore she did not feel the need to verify her belief when that belief was ex-facie reasonable does not to my mind render that belief unreasonable. A reasonable person in [the claimant’s] circumstances might well consider that she did not want to expend money or time in legal costs in verifying a belief intrinsically irrational, that her own employer by its actions had implicitly confirmed. Her employer did so by requiring her to complete a workers compensation claim form. The Commission neither then, nor subsequently, informed her that she could or should bring a claim for damages under the Motor Accidents Act in circumstances where she was injured on the way to work. While [the claimant’s] ignorance of the law did not of itself excuse her from complying with the statutory time period,…..nonetheless, taking her circumstances properly into account, her account was capable of satisfying the statutory requirements for “a full and satisfactory explanation”. I would therefore have reached the same conclusion as the primary Judge in this matter, applying the reasonable person test.”

More recently, Colefax DCJ in the unreported decision of Annetts v Bone & Anor, 04 December 2014 made reference to the following normative considerations:

(a)      The limited formal education of the plaintiff;

(b)      The knowledge or belief of the plaintiff that his condition was caused by the collision;

(c)      The fact that the plaintiff took little time off work because of the injury for the first ten years after the accident;

(d)      That the plaintiff was not out of pocket in relation to expenses associated with treatment of his injury because of the payments of workers compensation;

(e)      The plaintiff had a broad knowledge of a separate method of compensation for injuries sustained in the motor vehicle accident other than workers compensation;

(f)      The separate methods of compensation not only had time limits but also thresholds, thresholds which did not appear to have been exceeded until ten years after the accident;

(g)      The separate method of compensation provided that if proceedings were commenced and lost an adverse costs order would be made and could be enforced against the plaintiff;

(h)      Finally, a serious deterioration in the plaintiff’s condition ten years after the accident.

In Gedel v Tihic [2012] NSWDC 87, Leavy DCJ, considered the explanation offered by a plaintiff who upon medical advice did not initially believe his injuries to be serious.  His Honour said:

A reasonable person in the circumstances of the plaintiff would have more likely put up with a measure of discomfort experienced by the plaintiff…. and would most likely to have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve.”

And in relation to the delay following the plaintiff’s initial consultation with his solicitors:

In that regard, he was also required to come to grips with flow-on effects of these matters concerning his employment and his financial obligations generally as well as very real and worrying concerns over his mortgage liabilities and commitments… It is therefore not surprising and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result became to a degree un-focused and disorganised concerning his personal affairs.”

The reasonable person test involves a degree of objective analysis which may vary according to assumptions made about the person. Further, the position of the claimant is not limited to merely personal or physical characteristics, but has been said to involve both injuries suffered in the accident (including any disabilities suffered) and the circumstances relevant to the delay. The test in Walker is an objective test that is whether a reasonable person would have been justified in experiencing the delay and involves a normative evaluation of the claimant’s behaviour in this regard. What is required is justification of the delay, not demonstration that the delay caused no harm or prejudice to the insurer.

In Brierley v Ellis [2014] NSWCA 230 (17 July 2014), the Court of Appeal held that where there was no objection made by the insurer to evidence being produced by way of statutory declaration, and no contradictory evidence is tendered, the evidence should be given no less weight than if the information contained had been provided by way of oral evidence.

Scott Hall-Johnston


The Importance of the Section 81 Notice

The Importance of the Section 81 Notice

Can an insurer revise their position?

For people injured in a motor vehicle accident in NSW, there are strict time frames for the making of a valid claim for compensation. The 3 most important dates (from the incident) to remember are:

  1. 28 days – the need to lodge with the CTP insurer an Accident Notification Form;
  2. 28 days – the need to notify the police of the incident and obtain an event number (unless they attended the scene, and
  3. 6 months – the need to lodge a Personal Injury Claim form.

If the above are complied with, then the insurer must (upon receiving your personal injury claim form) make a decision about liability within 3 months.

This does not give the insurer a lot of time, and sometimes they fail to respond within 3 months.

What happens if the insurer initially accepts liability, but later, changes its mind? Can the insurer deny a claim in that circumstance?

The Gabriel & Mordue decisions

The fundamental principle is that the insurer IS bound by their formal Section 81 Notice. It can only amend that notice IF it is to change their decision from denying liability to accepting liability.

Accordingly, if the insurer accepts liability under a Section 81 Notice, any amended notice served at a subsequent time is of no effect.

Even if the insurer makes an honest mistake, it’s too late to amend.

There are however, exceptions which make this situation complicated. The two major exceptions are:

  1. The insurer can amend its Section 81 Notice to deny indemnity under the policy, and
  2. The insurer can go against their Section 81 Notice in Court proceedings.


In this case, the insurer admitted liability with an allegation of contributory negligence.

However, contrary to the admission of liability, the insurer attempted to change its position by denying liability in the pleadings once the matter went to Court.

In a 2:1 decision the NSW Court of Appeal held that the Section 81 Notice admissions did not bind the insurer once Court proceedings were commenced.


In this case a person was injured in a motor vehicle accident off road at a car rally.

The insurer at first admitted liability but later denied the claim as the CTP policy did not respond to loss for ‘off road’ accidents.

In a 2:1 decision the NSW Court of Appeal held that the ORIGINAL Section 81 Notice admissions of ‘liability’ were different to admissions of ‘indemnity’ and thus the insurer, QBE could rely on the amended notice.


As can be seen, the principle that an insurer cannot go against its Section 81 Notice has qualification. If the insurer wants to, and can, they will try and get your claim into Court so that they can get around their notice as they’re permitted to.

People who are injured in a motor vehicle accident in which liability is not in issue should note that their claim doesn’t usually need to go to Court to be assessed but will go through an administrative process called CARS. If this is the case, then this forum will enforce against the insurer their 81 Notice.

However, an insurer does not have to accept the decisions of CARS and if that is the case, they can go to Court where their Section 81 Notice will not prevent them from denying liability (this is predominantly in relation to late claims).

That being the case, it is advisable that you contact a lawyer or firm with experience in Motor Vehicle accident claims so that you can avoid falling into the many traps that exist.

Timothy Driscoll

18 October 2016

motor accident compensation claims

Motor Accident Claims – Do I have to go to Court?

Do I Have To Go To Court To Receive Compensation?

Smalley v Motor Accidents Authority of NSW

Following the success that Mr Smalley enjoyed in his Court of Appeal victory, the Motor Accidents Authority issued amended Claims Assessment Guidelines which were gazetted on 11 April 2014. The intent of the amendments is that CARS be given the ability to determine liability disputes where a CARS Assessor is of the opinion that course is appropriate.

In Smalley, the Court found by inference that where an insurer denies liability then fault is necessarily denied and the Claimant is entitled to an exemption. The amended Guideline that deals with this exemption entitlement is 8.11.1, which reads as follows:

“Liability is expressly denied by the insurer, in writing, but only in circumstances where liability is denied because the fault of the owner or driver of a motor vehicle in the use or operation or the vehicle is denied.”

Mr Smalley complained that because the insurer denied liability, the insurer was not required to meet his medical expenses as they were incurred or comply with any of its other obligations under the Act. The insurer was, in effect, having its cake and eating it too.

The other difficulty with a CARS Assessor determining a liability dispute is that the finding is not binding upon the insurer. That is of course not the case where liability is admitted (see s95(2) of the Motor Accidents Compensation Act).

Where a Claimant is forced to commence court proceedings because the insurer will not pay the CARS Award, legal costs payable by the insurer are capped. Fortunately, that predicament was remedied to a considerable extent as a result of the Motor Accidents Compensation Regulation 2015. Generally, as a result of that Regulation, if an insurer does not accept liability then it is required to pay all of the Claimant’s costs incurred after the CARS Certificate. This should provide a disincentive for insurers not accepting a CARS Award.


It is clear that many liability disputes will now be heard and determined by CARS. That is not of itself a difficulty for Claimants because the CARS assessment process generally provides a swift and economic answer to a claim. The difficulty however arises that insurers are not bound by the CARS Award which may force a Claimant to then commence court proceedings on the claim. Hopefully the obligation on the insurer to pay indemnity costs in that circumstance will make insurers think twice before refusing to pay a CARS Award.

Do I have to go to Court to receive compensation?

This will depend, in fault denied matters, whether the insurer accepts the determination of damages by CARS.