Fault and no-fault personal injury claims

Personal injury claims fall into two broad categories. There are fault-based claims and no fault-based claims. If you are making a claim against a defendant with Insurance the category that your claim will fall into will be determined by the policy of insurance you are asking to respond.

An example of common no fault-based claim might be a travel insurance claim or some motor vehicle accident or workers compensation claims. Theoretically these claims should be straightforward because you don’t have to establish the elements of fault (including negligence). Unfortunately the reality is that insurance policies can be complicated and ambiguous documents and the legal regulations that govern these claims can be equally difficult to navigate.

As a general rule fault-based claims are more difficult to prove (requiring more evidence) and insurers are more likely to commit resources to defending these claims. For this reason it is very hard for someone without legal expertise to bring a fault based claim.

General guide to making a fault-based personal injury claim

The intention of this article is to explain the basic steps that are required in making a fault based claim either with legal representation or as an unrepresented claimant.

The first step in making a fault based claim is to put the defendant (and thereby the defendant’s insurer) on notice. The notice should (where possible) set out why you believe the defendant by its negligence caused the incident and your resulting injuries. It should also provide details of the specific injuries and an outline of the heads of loss being claimed.

Where evidence that is relevant to the claim is in the hands of the defendant this should also be requested in the letter of demand. If this is not forthcoming an application to the court for an order to produce that evidence may be required.

The next steps in the claim will be determined by the defendant’s response to the initial letter. If liability for the accident is admitted then the focus of your preparation will be on obtaining evidence to prove the damages to which you allege you are entitled.

In reality liability for most fault base claims is usually denied at least initially. This places the onus on you to produce evidence that proves the defendant’s negligence. This evidence should be obtained as soon as possible because the passage of time can be detrimental. Memories can fade, documents and CCTV footage can go missing.

Once the primary evidence has been collected it may be necessary to obtain a report from an expert who can indicate whether the defendants actions fell below a reasonably competent standard. This may assist in establishing that the defendants actions amount to negligence rather than being something less than perfect.

You will need to decide whether to share the evidence you have obtained with the defendant. It will certainly assist the defendant to have access to the evidence in your possession as it will allow them to understand your case and to prepare their case in response.

There are a number of factors that should be considered when deciding whether to share evidence with a defendant. These include the nature of the defendant and whether they are likely to use the evidence in order to commence negotiations on a reasonable basis or to better prepare their defence to fight the claim. You need to keep foremost in your mind the strengths and weaknesses of the available evidence and the outcome you are looking to achieve.

Limitations Period

All of the work in preparing the case should at least theoretically be prepared prior to commencing court proceedings. The limitations date, which will be different depending on the type of claim you are making and the legal jurisdiction in which your claim falls, is the date by which you are statute barred from commencing court proceedings. Where possible it is preferable to be in a position to commence negotiations with the defendant prior to the limitations date so there is an opportunity to avoid the costs associated with court proceedings.

If you are unable to negotiate or negotiations fail prior to the limitations period then court proceedings are the next necessary steps towards resolving your claim. Court proceedings have their own complexities that we will not enter into here. Suffice to say that if you do not have legal expertise you should consider long and hard before proceeding down this road.

If you or somebody you care about has been injured in an accident through no fault of your own, you may be entitled to compensation. For more information, and to arrange a free no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make and online enquiry.

Written by Alexander Morrison.

Alexander Morrison is an Associate and Solicitor in Victoria Roy’s Practice Group.  Alex has a varied practice including motor vehicle claims and public liability claims that occur both within Australia and overseas.