We have all seen the incredible dash-cam video of the Tullamarine freeway sign crashing down on an SUV causing a car accident. The driver suffered physical injuries serious enough for her to be taken to hospital although it appears thankfully not serious enough to require a lengthy admission. It was an amazing escape.
As this was not an ordinary car vs car type of motor accident, NSW readers might ask, what would the injured woman’s rights and entitlements be, if she had been injured in a similar accident in NSW and not Victoria?
Under changes made to the motor accident insurance and compensation scheme made by the current government, a person injured in a car accident in New South Wales after 1 December 2017 is entitled to statutory benefits regardless of who or what caused the motor accident.
The statutory benefits regime covers treatment, care and rehabilitation as well as lost income and is paid for by the CTP or Greenslip insurer. In NSW all drivers can claim at least six months of treatment and lost income support. Injured persons who were not wholly at fault or mostly at fault in causing the accident can claim up to five years of income support benefits as well as accident-related treatment and care for as long as it is needed. Someone injured when a freeway sign crashes down upon them is likely to be ‘innocent’ and therefore entitled to the full range of statutory benefits.
The NSW Greenslip scheme also enables an injured person to make a claim for common law lump sum damages but this requires there to be an at-fault motor vehicle to claim against. In the case of the falling sign there is no at-fault vehicle involved but the injured driver may be entitled to common law lump sum damages paid by the public liability or professional indemnity insurer of the person or entity whose fault or negligence caused the accident. In this case it would depend upon what engineers and investigators determine to be the cause of the sign falling and is likely to be any or all of the people or entities who designed, made, installed or maintained the sign and its structure. The damages that would be available would include past and future loss of earnings and loss of earning capacity and non-economic loss or general damages for pain and suffering.
If the cause of the sign falling was not due to the fault of any person and it fell down because of an extremely high unpredictable wind or during an extraordinary storm, it could be argued the accident was a ‘blameless’ motor accident caused by an ‘act of God’ which would mean the driver’s statutory benefits could be limited and the driver may not be able to recover any common law lump sum at all.
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Written by Belinda Cassidy.
Belinda Cassidy holds the position of Special Counsel at Stacks Goudkamp. She had previously held the position of Principal Claims Assessor at the State Insurance Regulatory Authority (SIRA) for 18 years, and currently holds an appointment as a Claims Assessor under the Motor Accidents Compensation Act.