In this podcast, BPC Lawyers Partner and Accredited Personal Injury Law Specialist, Scott Hall-Johnston explains why people have to wait 20 months before pursuing a motor accident damages claim.
Dan: When it comes to compensation claims, depending upon the nature of the claim, it’s likely it will be governed by strict time limits. Such is the case for road accident compensation, which requires the injured person to wait 20 months before pursuing a claim. Why is this the case? Well, to find out, I’m with accredited compensation law specialist, Scott Hall-Johnston. Scott, perhaps at the outset, when we talk about motor vehicle accident compensation under the relevant legislation, we’re not just talking specifically about car accidents, are we?
Scott: No, we’re not, Dan. There are a number of accidents that fall within the definition of motor vehicle accident. For example, it might involve a motorcycle, it might involve an accident on a bus, and in certain circumstances, then it can involve, say, a forklift accident during work hours.
Dan: Let’s talk about this 20-month threshold because it’s a little bit odd in relation to compensation matters generally.
Scott: It is Dan, it’s very difficult to understand. The government, when it passed the legislation, proclaimed that it wanted people to get compensation very quickly, but introduced a 20-month time limit for the damages component of your claim that precludes you settling that claim early.
Dan: Let’s talk about damages. What actually are damages?
Scott: Yeah, it’s a good question, Dan. So the scheme is effectively divided into two sections. One, we call your statutory benefits, and that is your medical expenses and rehabilitation expenses that are paid by the insurer as incurred from the date the accident happens. The insurer is also required to pay a loss of wages if you’re unfit for work as a result of the accident. Those are what we call your statutory benefits. You’ve also got a claim for damages, which is your past and future economic loss, and also for pain and suffering if you’ve got a greater than 10 % impairment, and it’s the damages component that is delayed.
Dan: When we talk about these statutory benefits, they don’t go on forever, do they? At some point in time, the statutory benefits will stop.
Scott: Yeah, quite right. So that if you’ve got a minor injury, statutory benefits only go for six months. If you’ve got a non-minor injury, then your medical expenses do get paid for the rest of your life. That is your reasonably necessary medical expenses. But your weekly wages stop after a period of time, and that will be up to five years after the accident, unless you make a claim for damages.
Dan: Yeah, I was going to say that hence the need for people perhaps to get advice early to ensure that their legal rights aren’t compromised with respect to that damages component, which is the big component, isn’t it? From a financial perspective, potentially.
Scott: Oh, Dan, look, it’s very important, and particularly because the damages assessment is far more generous than the statutory benefits that are paid. If you’ve got your own business, if you thought you were going to be promoted in the future, if you thought your circumstances were going to change, then that’s not taken into account with statutory payments. But when you look at a damages claim, the court is entitled to look at your particular circumstances and compensate you for what you’re particularly out of pocket.
Dan: So, practically speaking, if somebody was in a motor vehicle accident, say today and they’ve sustained injuries, should they still be seeking legal advice or should they be waiting the 12 to 20-month period?
Scott: Dan, get legal advice straight away. You need to know where you stand. The insurers like to deal with injured people directly, and there’s no problem with that in dealing with the statutory benefits, but if you don’t know your rights, you can be taken advantage of, and so you’re best off knowing where you stand so that things are right from the outset.
Dan: Now at Beilby Poulden Costello should you take a particular matter on, you’ve got medical experts who you rely on who will investigate whether or not that injury may well play out well beyond a five, seven, ten-year period?
Scott: Yeah, quite right, Dan. So we have a host of experts that we use in varying fields, and we’re able to call upon the right person to give you the right advice and use that evidence when your claim is made.
Dan: It’s also one of those things as well, isn’t it? Where people who may have sustained an injury may deem it not to be that serious, but perhaps later on down the track it rears its head and renders them incapable of doing certain things.
Scott: Yeah, things don’t always show themselves straight away. Sometimes there is deterioration over the years, and sometimes you assume that you’re going to get better, and unfortunately, that’s not always the case. So it is important that a long term view be taken and it is important that you don’t just look at your own perception that you might get better because unfortunately, experience tells us that’s not always the way it will turn out to be.
Dan: At Beilby Poulden Costello, you offer a free initial no-obligation consultation?
Scott: Yeah, we certainly do, Dan. We’re happy to help people out, and we don’t charge unless and until you win your case. There’s another important feature to this Dan, and it’s very relevant when you’re talking about getting advice early. The law says that we cannot charge in respect of any disputes that arise regarding statutory benefits. So that if you’re getting advice for the early period of your claim, your lawyer is not allowed to charge you. That advice is effectively given free.
Dan: Right, and are there other time limits that are important for people to be aware of, quite apart from that 20-month period?
Scott: There are a host of time limits in this fact, and they particularly relate to periods of review of the insurer’s decisions. So a lot of times when the insurer makes a decision, you’ve only got 28 days to seek an internal review, and if you’re still dissatisfied with the decision, you’ve got to make an application to the person injury commission relatively quickly. So it is important that you’ve got legal advice.
The other thing that’s an important time limit is the exception to the 20-month rule, Dan. You’re entitled to make a claim for damages if you’ve got a greater than 10 % impairment at any time you’d like. But you can’t make that claim until your condition is stabilised, and quite often that means with a serious injury, such as where you’re over the 10 % threshold, that may not be for in excess of one year after the accident, and it’s quite often up to two years after the accident anyway.
Dan: Scott, who makes that determination of percentage? Is that done by the insurance company?
Scott: Look, Dan, an injured person needs their own independent medical examination to determine what they think is a fair assessment of the impairment. The insurer will also arrange for it, doctors who examine the claimant, and work out what it believes is the impairment.
Dan: Scott, thanks for joining me.
Scott: That’s a pleasure, Dan. Have a good day.
Thank you for listening. If you have any questions, please call Personal injury lawyers at BPC on 02 8280 6900.