Anyone injured in a motor vehicle accident, including pedestrians, drivers, riders, passengers, pillion passengers, cyclist or anyone else who uses our roads, for example skateboarders and riders of electronic scooters, may be entitled to receive monetary compensation for the injuries and losses caused by the use of operation of another vehicle.
Compensation is also available to dependants of anyone killed in a road accident or family members of someone who has been seriously injured or killed and who have suffered a psychiatric injury “nervous shock”.
Compensation is available to an injured road user even if the road user was partly to blame for the accident. This is called “contributory negligence”. Claims can also be made where the injury has been caused by an unidentified motor vehicle, for example a hit-and-run, or where the vehicle responsible for the accident is unregistered and uninsured.
All vehicles registered to be driven on our roads are covered by compulsory third party insurance, also known as “green slip insurance”. The insurance cover provides compensation for people who are injured on our roads. There is no cover for the damage caused to vehicle. These are property damage claims and not personal injury cases.
Currently there are two compensation schemes which operate in New South Wales, depending on when the accident occurred.
Compensation is paid by a single, “once and for all” tax-free lump sum, which is paid by the insurer to the injured person at the end of the claim.
In most cases the injured person bears the onus of proving that his or her injuries were caused by the fault, i.e. negligence, either totally or partially, of the driver or rider of a “motor vehicle”.
In some cases compensation is paid to the accident victim even if no one is at fault. This is called a blameless accident. An example is an accident involving a car hitting a young child who has darted out from behind a parked car. Another example is if the driver of the car which caused the injury fainted or died of a heart attack.
For injuries suffered in road accidents after 30 November 2017 compensation is paid in two parts. The first part is a claim for Statutory Benefits to cover medical expenses and partial loss of earnings. Under the Statutory Benefits scheme, fault is irrelevant. Medical expenses for injuries which are not classified as being “minor” can be paid indefinitely. Other claims include partial loss of earnings and the provision of domestic and other assistance where the injuries are extremely severe.
The second part of the 2017 scheme is for Damages to compensate an injured person for pain and suffering, loss of enjoyment of life, loss of amenities and loss of earnings and earning capacity, both past and future. These claims do not however include claims for the cost of care such as domestic and external assistance at home, or medical expenses.
A claim for Damages must not be made within 20 months of the date of the accident.
A claim for Damages can only be made if the injured person’s whole person impairment is greater than 10%. Injuries have to be serious for the injured person’s whole person impairment to be greater than 10%. The whole person impairment for physical injuries cannot be added to the whole person impairment for psychiatric injuries. Both must be assessed separately. The percentages cannot be combined.
The amount of compensation paid for pain and suffering, loss of enjoyment of life etc, also known as damages for non-economic loss, depends on many things, including the age of the injured person, the change to the injured person’s lifestyle caused by the injuries, the seriousness of the injuries and so on.
Every state and territory in Australia has its own compensation laws, some are more generous than others. Some schemes are no-fault, for example in Victoria. Some schemes still require fault to be proved, for example in Queensland South Australia.
Time limits apply to both schemes for accidents which have occurred in New South Wales.
The time limits can be quite strict. However it is possible to bring claims after the time limits have expired, in exceptional circumstances.
Stacks Goudkamp represents accident victims on a “no win, no pay” basis. Most of our legal costs are paid at the end of the cases by the insurance company.
No legal costs are payable at all in relation to claims for statutory benefits. It is in effect a free service.
Stacks Goudkamp pays all the disbursements involved in presenting a claim. These include fees for medical reports, please reports etc. Our clients pay nothing. We obtain a refund of the disbursements we have outlaid from the insurer on the successful conclusion of claims.
The law requires clients and their lawyers to enter into a Costs Agreement. This agreement ensures that you are fully protected from being charged unreasonably high costs. It also provides protection because it entitles you to challenge your lawyers’ legal costs and to have them formally assessed.
Most compensation claims for injuries suffered in road accidents are decided by Claims Assessors. These Assessors are appointed by the State government. They are generally lawyers experienced in handling these type of cases. I have been a Claims Assessor since 2001.
Where liability is fully disputed by the insurer and/or the injured person lacks the capacity to give instructions because of age or a serious traumatic brain injury claims are decided by a judge in the District Court.
In practice, the vast majority of compensation claims involving motor vehicle accidents are settled out of court, without anyone actually having to give evidence.
For settlements involving accident victims who lack capacity to give instructions e.g. infants or accident victims who have suffered severe brain injury, any settlement must be approved by a judge in the District Court. This gives the injured person added protection. If the judge who considers the application for settlement concludes that the proposed settlement is too low he or she will not approve the settlement.
Certain categories of cases, namely quadriplegia, paraplegia, severe brain injury and bilateral amputations qualify for payment of medical expenses, care, accommodation etc for life under the Lifetime Care and Support Scheme (LTCS). This is a no fault scheme.
For accident victims who are accepted into Lifetime Care and Support and who can prove that their injuries were caused by the fault of someone else through the use and operation of a motor vehicle a claim, separate to the benefits from Lifetime Care and Support, can be made for damages, namely compensation for non-economic loss and past and future economic losses, including loss of working and earning capacities. They may also be able to claim the additional expenses of home modifications and travel.
Damages are not available to participants in Lifetime Care and Support if they can’t prove fault.
Stacks Goudkamp’s motor accident team is experienced in serious injury claims and catastrophic claims including amputations, traumatic brain injuries, spinal injuries (including paraplegia and quadriplegia) and life changing psychiatric conditions. We work with the injured person and their family to build a picture of their life and how the accident has affected them. Our expert personal injury lawyers are passionate about helping their clients, and will treat you with empathy and respect at all times.
Anyone who has been injured in a motor vehicle accident should contact us no matter what their role in the accident and what the type of vehicle that was involved. Compensation claims can be made for a very wide variety of motor vehicle accidents, and our specialist compensation lawyers are experts in the following areas: