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Motor Accident Compensation

Is it Possible to Claim Motor Accident Compensation If No One is at Fault? Call BPC Lawyers.

Is it Possible to Claim Motor Accident Compensation If No One is at Fault?

When you’ve been in a motor vehicle accident as a result of the negligence of another driver, there is generally a clear entitlement to compensation for injured drivers and passengers.

But what happens when someone gets injured in a motor accident, and no one is to blame?

There was a recent decision in the District Court at Sydney involving an interpretation of the “blameless” accident provisions of the Motor Accident Compensation Act 1999 (NSW). The case was Garry Connaughton –v- Pacific Rail Engineering Pty Limited and was heard on 12 February 2015. The case was determined by Her Honour, Judge Norton SC.

CASE BACKGROUND – Garry Connaughton –v- Pacific Rail Engineering Pty Limited

The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 13 July 2011. At that time, the Plaintiff was a driver of a motor vehicle which was involved in a single vehicle accident involving a tree which fell onto the road. The Plaintiff, Garry Connaughton, was driving his truck in a northerly direction on Mount Ousley Road at Mount Ousley at approximately 10:30am when a roadside tree fell and struck the cabin of the truck, which then ran out of control but subsequently came to a halt. The Plaintiff was badly injured in the accident and injury was conceded by the Insurer and there was no issue regarding contributory negligence.

The Plaintiff had little recollection regarding the accident. He was driving his truck in the curb side lane of the road and his first recollection was a man yelling out and his last recollection was driving up the road and there being nothing on the road in front of him.

The Judgment is quite detailed but in summary, Her Honour was asked to decide three questions:

  1. Has there been a motor vehicle accident?
  2. If so, is it a blameless accident?
  3. Is the Plaintiff excluded from recovery under the blameless accident provisions by operation of Section 7E in relation to drivers?

in summary, Her Honour found there had been a motor vehicle accident and it was a blameless accident. Furthermore, the Plaintiff was not excluded from recovery under the blameless accident provisions by operation of Section 7E as she found the Plaintiff did not cause this accident. His driving on the raod was no more than a background fact which explains why he was in a position where he could be struck by a tree. Plus the driving of the Plaintiff was nothing more than “the mere occasion of the injury”.

Furthermore, at Paragraph 73 Her Honour stated:-

“73. Looking at the words of the Section and bearing in mind the words used in the second reading speech (of Parliament) I find that even under the extended definition of causation of Section 7E there was no act or omission on behalf of the Plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean the driver in single-vehicle accidents are deemed to have caused that accident.”

Accordingly, in summary, there was a verdict entered in favour of the Plaintiff which means liability was wholly determined in his favour against the Defendant Insurer. There was a further order made by Her Honour that damages are to be assessed.

In the end, it was found that because no act by the man who suffered injury in his blameless motor accident, either voluntary or involuntary, could have caused the accident, with a verdict in favour of the plaintiff delivered to assess his damages from the insurance company.

If you have been in a motor accident, regardless of whether it is negligent or blameless, we will be happy to offer a complimentary, free consultation to discuss your claim and determine whether you have a genuine claim for compensation.

David R. Ford, Special Counsel

BPC Lawyers successful in the High Court of Australia

BPC Lawyers successful in the High Court of Australia

Extremely important decision for severely injured plaintiffs

Rhiannon Gray by her Tutor Kathleen Anne Gray v Richards [2014 HCA 40]

On 15 October 2014, the High Court of Australia unanimously allowed, in part, an appeal from the New South Wales Court of Appeal in respect of the methodology to be used to calculate damages for fund management. This is an extremely important decision for severely injured plaintiffs in relation to the calculation of damages for fund management.

Our client sustained a traumatic brain injury as a result of a motor vehicle accident causing significant disabilities, a need for constant care and an incapacity to manage her own affairs. Proceedings were commenced against the driver of the motor vehicle claiming that he was liable in negligence for her injuries. Those proceedings settled on terms that required the CTP insurer of the defendant’s vehicle to pay damages in the sum of $10,000,000.00 plus an amount of damages to be assessed to cover expenses associated with managing the settlement funds (the fund management damages).

Our client was declared incapable of managing her own affairs by reason of her severe brain injury and a private trustee was appointed to manage her estate pursuant to legislative requirements in New South Wales. The private trustee charges management fees on the whole of the funds under management including the settlement monies and the fund management damages. This is a typical commercial arrangement in the marketplace.

In 2011, Justice McCallum in the Supreme Court of New South Wales determined that the fund management damages should include an amount to offset the cost of managing the fund management damages and a further amount to offset the cost of managing the fund’s predicted future income. These amounts were awarded on the basis that the fund management damages and the predicted future income of the fund would need to be managed and would therefore attract their own management charges. The CTP insurer appealed this decision and the New South Wales Court of Appeal reversed the decision of the primary judge ordering that an amount of damages for the cost of managing the fund management damages and the fund’s predicted future income should not be awarded.

Compensation Lawyers Sydney at BPC Lawyers was successful in obtaining special leave to appeal to the High Court of Australia. On 15 October 2014, the appeal was allowed in part. The High Court held that the New South Wales Court of Appeal had erred in deciding that no allowance should be made for the cost of managing the fund management damages, but was correct in deciding that no amount should be made for the costs of managing the fund’s predicted future income.

This is an extremely important decision for cases involving severe injuries which render a person incapable of managing their own affairs. The High Court has unanimously held that an injured person is entitled to recover costs associated with management of damages awarded for the purpose of managing all funds under management. Pursuant to this decision, an incapacitated plaintiff is now entitled to recover costs associated with managing the component of damages which has been awarded to meet the cost of managing lump sum compensation recovered by way of damages. In this case, it was held as follows:-

The Court’s concern is to ensure that the plaintiff’s actual loss is compensated. There is, for example, no scope for the Court to say that the amount is simply ‘too much’ as a matter of intuition or impression if the plaintiff has no practical ability to bargain for a lesser charge.”

The High Court also stated as follows:-

“It is well settled that ‘the common law does not permit difficulties of estimating the loss in money to defeat an award of damages’ by way of compensation for loss actually suffered.”

This decision of the High Court unanimously determines the methodology to be adopted when calculating damages in respect of fund management. The High Court has held that fund management damages include the cost of managing the fund management component of an injured person’s damages consistent with the principle of “restitutio in integrum”.

This case summary is provided by Kate Henderson, a senior solicitor and accredited specialist in personal injury law at BPC. Kate acted on behalf of the plaintiff in the Supreme Court of New South Wales, the New South Wales Court of Appeal and High Court of Australia. Kate has a special interest in catastrophic injury claims. For more information or to speak with Kate, or any of our specialist lawyers, please contact us on (02) 8280 6900 or kate@bpclaw.com.au

About BPC Lawyers: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Cross-Examination: Making Life Easier in the Witness Box

Cross-Examination: Making Life Easier in the Witness Box

I hope for your sake that you never have to be cross-examined; it is never an easy or pleasant experience.

Questions are often confusing and repetitive and it is difficult in the moment to determine exactly the right words to use.  I have been required to give evidence on several occasions and have never enjoyed the experience.

There are however a few simple rules that can make life easier. For example, a witness should never use the term “never”.  Never is a very long time and our memory is not perfect, particularly under pressure. Had Barry O’Farrell, received this advice he may not have lost his job.

I tend to think that Mr O’Farrell was being honest when he suggested that he had “never” received a bottle of Grange, but if he had not been so dogmatic and replied, for example, “I do not recall ever having been given a bottle of Grange”, he would not have been in the same predicament.

If you are likely to give evidence in the near future you should ask your lawyer about what to expect and how you should deal with questions as they arise.

If you would like to discuss the rules of giving evidence, you can contact our Scott Hall-Johnston, or one of the other lawyers at BPC, to discuss the other rules about giving evidence.
About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Recent Win in the Court of Appeal

Recent Win in the Court of Appeal

We are pleased to note that we were recently successful in an important decision before the Court of Appeal.

On 09 August 2013 the Court of Appeal delivered Judgment in Smalley –v- Motor Accidents Authority of NSW1 which will have a significant impact upon the way that motor accident claims are administered in New South Wales.

Background:
The scheme for compensation for personal injuries in New South Wales is governed by the Motor Accident Compensation Act (1999). That Act provides for two ‘streams’ of claims. Where liability (that is the insurer’s obligation to pay for a claim) is admitted, then an insurer is obligated to pay for medical expenses, make an offer of settlement and attend a settlement conference in a timely manner. If those obligations do not lead to a conclusion of the claim then the entitlement to compensation is to be determined by an Assessor appointed by the Motor Accidents Authority of NSW.

In the event that liability is declined, that is the insurer disputes its obligation to pay for a claim, then the claim is to be dealt with by the District Court of NSW.

It has been our more recent experience that some insurers have failed in their obligation to determine liability within three months as required by the legislation which results in the injured Claimant unable to effectively enforce their rights.

Mr Smalley’s Claim:
Mr Smalley was injured in a motor vehicle accident on 16 December 2005. He lodged a claim for compensation with the third party insurer on 14 January 2010, well outside the six-month limit. The insurer requested an explanation for the late claim which was provided by Mr Smalley. The insurer rejected the explanation and denied liability for his claim. That issue was referred to the Motor Accidents Authority for determination, who decided that Mr Smalley had in fact provided a full and satisfactory explanation and that the claim should proceed. Notwithstanding the decision of the Motor Accidents Authority, the insurer continued to deny liability while accepting that its insured driver was at fault in the accident.

Mr Smalley made three applications to have his claim exempted from CARS and the administrative process so that he could proceed to Court and seek a final determination. The difficulty facing Mr Smalley was that he was being asked to proceed firstly through CARS, notwithstanding that the insurer steadfastly refused to accept any determination that was made by CARS, thereby causing him unjust cost and delay.

Judgment of the Court of Appeal:
In a unanimous decision, the Court determined that ‘liability’ means the acceptance by an insurer of its obligation to pay a claim, even though the amount that is required to be paid may be in dispute. As a result, it is now clear that where an insurer disputes its obligation to pay on a claim, a person injured in a motor vehicle accident is entitled to proceed directly to Court.

The administrative scheme (“CARS”) is intended to be a quick, cheap and efficient means to resolve claims. The bargain for the insurer is that if it wishes to take advantage of this scheme, it is obliged to act quickly and comply with the obligations set out in the legislation. As a result of this judgment, an injured party who is aggrieved by an insurer’s failure to comply with its obligations will be able to proceed directly to Court and enjoy the benefits of the Court’s greater and binding authority.

About BPC: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC has its origins in a legal practice started by Barry Beilby in 1975.