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 compensation lawyers.
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.