Have you been injured in a car accident?
If you have then it is likely that you have a claim for benefits from the
Motor Accidents Insurance Board (called the “MAIB”). These benefits can
include hospital, medical and ambulance expenses, a weekly disability allowance
if you were employed (or self employed) but cannot work because of your
injuries, or a housekeeping allowance if that was your role before you were
injured and you are now unable to carry out that role.
In addition, if someone else was responsible for your accident you may have a
claim for negligence against them. Negligence means legal fault. If someone’s
negligence has caused you injury, you may have a claim for damages (monetary
compensation) over and above your MAIB benefits.
When you register your motor vehicle, part of the premium you pay goes to the
Motor Accidents Insurance Board (MAIB). This payment allows you to be paid
benefits if you are injured in a motor vehicle accident.
The legislation which sets down these benefits is the Motor Accidents
(Liabilities and Compensation) Act 1973. With a few exceptions these benefits
are no fault benefits so that you do not have to prove someone else was
responsible for your injuries to get these benefits. Some of the situations in
which you will not get benefits are if you were injured and:
- you intentionally harmed yourself
- you were participating in a car race
- your vehicle was unregistered and you knew it
- you are convicted of manslaughter or death by dangerous driving
- (in some cases) you were drink driving
- (in some cases) you were unlicensed.
To claim MAIB benefits you must:
- report the accident to the police.
- complete and send to the MAIB an “Application for Benefits” form. (If
you were the owner of one of the vehicles in the accident you must also complete
a “Notice of Accident” form). You can get these forms by telephoning the
MAIB on 1800 006 224.
The MAIB benefits you may be entitled to include the following:
A (self) Employed Person’s Disability Allowance
You are entitled to a disability allowance if you were working (or in some
cases looking for work) prior to being injured and now cannot because of your
A Disability Allowance is paid at 80% of your pre-injury income until either
you recover and return to work or for 104 weeks (whichever is the sooner).
In some cases Disability Allowances can be paid for a total of 156 weeks.
You can only claim a Disability Allowance if you are wholly disabled for work
because of your injuries and if you became wholly disabled within 20 days of the
A Housekeeping Allowance is paid if you normally carried out household duties
before being injured and were wholly disabled from doing so within 20 days of
the motor vehicle accident.
The allowance is 80% of the cost of having someone do your household duties.
The allowance is paid until either recovery or 104 weeks post-injury,
whichever is the sooner.
These include medical treatment, travel to medical appointments,
rehabilitation, home alterations etc. to a maximum of $200,000.
The only exception to the $200,000 maximum is if you have a negligence claim
and will require ongoing medical care or supervision for more than two hours
every day. In this case there is no limit on the daily care costs.
If the MAIB refuses to pay Disability Allowance or for medical treatment you
may apply to the Motor Accidents Compensation Tribunal for the Tribunal to
determine what your entitlements are.
THE ESSENTIAL ELEMENTS OF A NEGLIGENCE CLAIM
To have a claim for negligence you must prove each of the three things below:
1. That the person who caused your injury (called the defendant) owed you a
duty of care.
A duty of care is a legal term for a relationship or connection between you
and the defendant of such a nature that the law says that the defendant must
take care for your safety.
A duty of care is almost always owed by a driver of a vehicle to other
drivers, pedestrians and passengers.
2. That the defendant knew or ought to have known that you were at risk of
injury and that there were practical steps which could have been taken by the
defendant to prevent you from being injured.
Some examples of common ways in which defendants are negligent in motor
vehicle accidents are:
- driving at a speed excessive in the circumstances
- failing to keep a proper lookout for other road users
- driving without proper control e.g. because of being under the influence of
drugs or alcohol.
3. That you suffered an injury as a result of the defendant’s failure to
take practical steps to avoid injury to you.
The things above must be proved by you (called the plaintiff) on the balance
of probabilities. This means that all the evidence together must show that it is
more likely than not the above factors exist (or did exist when you were
In some cases it may be that you have contributed to your own injury. This is
known as contributory negligence. Contributory negligence doesn’t mean that
you have no claim for damages but it does mean that the amount of damages will
be reduced by the percentage to which you were responsible for your injuries.
Evidence to help prove the above will vary widely depending upon the
circumstances of each case but will generally include evidence from you, your
family and friends, witnesses and doctors. Occasionally specialised expert
evidence is required to reconstruct what happened in a motor vehicle accident.
STARTING A CLAIM
The first and most important thing to be aware of is that a negligence claim
for physical or psychiatric injuries must be started within three years of you
suffering an injury.
In certain circumstances you may be able to begin a claim outside of three
years but within six years of the date you were injured, however if you are
outside the three year period you have to apply to the Court. (This is called
obtaining an extension of time.) If you need to obtain an extension of time you
will have to pay the defendant’s legal costs whether you get the extension of
time or not.
To get an extension of time you must provide reasons why you didn’t begin
your case within three years, show that you have a case for negligence worth
proceeding with and show that the defendant will not be disadvantaged by your
case being started late.
If you cannot obtain an extension of time or are outside the six year time
limit you cannot start a common law claim for that injury EVER, no matter how
badly injured you are or how good are your reasons for not starting a claim
within the six year period.
If you think that it is more than three years from the date you were injured
you should get immediate legal advice.
Another important time limit to keep in mind if you are injured in a car
accident and cannot identify the driver who you believe was at fault. In this
case you must notify the MAIB within three months of your injury of your
intention to make a claim. In some cases you may get an extension of another six
months in which to notify the MAIB. If you think this applies to you, you should
get URGENT legal advice.
A common law claim is started by a writ. A writ is a legal document which is
filed with the Supreme Court. It must be accompanied by a filing fee.
A common law claim is not started simply by telling the defendant that you
have been injured and that you believe they are liable, or by telling the MAIB
or even by just telling your lawyer about your injury.
As soon as you are injured you should write down exactly what happened, get
the names and addresses of any witnesses, take photos of the area in which you
were injured and/or draw a diagram.
You must report the accident to the police.
You must notify the MAIB that you have been injured.
When talking to another driver, witnesses or police, be careful not to be
trapped into making any admissions which may disadvantage you later, e.g. do not
say you contributed to your own injury. If you admit fault your insurance may
not cover you.
AN OUTLINE OF A NEGLIGENCE CLAIM
After the writ has been filed with the Court it must be served on the
defendant. The defendant responds with a document called an appearance.
A statement of claim is then served on the defendant by the plaintiff. A
statement of claim is a document which sets out in brief the facts which support
your case for negligence and the ways in which you say the defendant was
The defendant then has 14 days to provide a defence. A defence is a brief
response to the statement of claim.
The next part of the process is called discovery. In this step both the
plaintiff and the defendant provide lists to each other of all documents that
they have which relate to the case between them.
Each party also “interrogates” the other. This is not as bad as it sounds
but involves each party asking the other questions in writing which must be
answered under oath.
While the above steps are taking place the defendant will probably have you
medically examined by their own doctors. Your own evidence will be obtained from
your doctors, witnesses and others.
Once your injuries have stabilised and your evidence has been gathered the
next step is preparation of particulars of claim. Particulars of claim are a
document which summarises the effect the injuries have had on your life and how
your damages are calculated.
After your particulars of claim and medical evidence have gone to the
defendant (or sometimes earlier) you may participate in a Registrar’s
conference. A Registrar’s conference is a mediated conference between the
parties to try to settle your case.
Settling your case means resolving it by agreement without the case going to
Court. Generally the agreement is that the defendant will pay you a certain
amount of money in exchange for you giving up your case against them.
If your case does not settle it will go to trial in Court. A trial can be
before a judge or a judge and a jury. It may take one day or many weeks.
Sometimes a case may settle after a trial has started. If it does not then the
judge (or jury) decides the case.
The judge’s or jury’s decision is final unless they have made a legal
error in which case you may be able to appeal the decision in a higher Court.
A negligence claim from issuing a writ through until trial and a decision
usually takes between two to four years. If it settles it will generally take
Damages are monetary compensation designed to put you in the same position as
if you were not injured. The reality is that money can’t achieve that aim but
that is the principle behind damages. Generally speaking, in a negligence claim
there are three types of damages:
A. Lost Earning Capacity
This is an amount to compensate you for your lost ability to earn income. It
may include your past and future lost wages and also lost superannuation
entitlements. It may also include an amount to compensate you for your lost
employability in the labour market.
The amount you can claim depends on a comparison of your pre-injury earning
ability with your after-injury ability. You have a duty to mitigate your loss.
Mitigate means to reduce your loss, so if you have been injured and can’t do
your pre-injury work you must still make all reasonable attempts to find and do
work within your new capabilities. If you don’t you may get less damages.
Damages for lost earning ability are calculated as though you have not
received Centrelink benefits or disability allowance.
B. Medical and other expenses (Medicare)
You are entitled to claim an amount to compensate you for the cost of past
and future medical treatment required because of your injury. You may also be
able to claim rehabilitation and retraining costs, home and garden help, massage
and home alterations, depending on the extent and type of your injuries.
If you have claimed any treatment for your injury through Medicare, you will
have to repay Medicare these amounts from your damages.
C. Pain and suffering
This is an amount of damages to compensate you for your pain, suffering and
loss of enjoyment of life as a result of your injury.
Any amount of damages awarded by the Court will be reduced by the amount of
disability allowance paid to you between the date of your injury and the date of
the Court’s decision.
A few more things to know:
Tax is not paid on an award of damages.
Tax will however be payable on any interest you earn from investing your
If you have received Centrelink benefits prior to your case being decided in
Court, you will most likely have to repay some or all of that money to
Centrelink. You may also be unable to claim Centrelink benefits for a period of
time after your case is finished – how long depends upon how much damages you
get. Centrelink or your lawyer will be able to tell you how much you must repay
to Centrelink and/or how long it will be until you can claim Centrelink
Damages in a negligence claim are a “once and for all” award. That means
you get one chance to claim damages in a lump sum and if you get it wrong and
under-estimate your injuries then you miss out....you can’t go back and ask
for more money. For this reason it is very important to be sure that your
injuries have stabilised so that a proper assessment of your future needs can be
You may have heard of others obtaining a “settlement” of their legal
case. Perhaps one has been offered to you.
A settlement means resolving your case by agreement i.e. without going to
Court. A settlement usually consists of the defendant agreeing to pay you a sum
of money in exchange for you not going on with your case against them.
Theoretically, any negligence case can settle at any time but you cannot be
forced to settle. You cannot force the defendant to settle either.
A settlement is like a judgment in Court in that it is final and you cannot
go back for more money if your condition worsens.
As with an award of damages, tax is not paid on a settlement amount but must
generally be paid on any interest you earn from investing your money.
A settlement can be an excellent way of resolving your case because it means
you do not have the risk of going to Court and possibly losing your case. This
benefit is lost however if you settle your case for too little.
If a defendant makes an offer of settlement to you or asks you to sign a deed
of release in exchange for an amount of money it is a good idea to get legal
advice as soon as possible.
Some of the things you need to be aware of before settling your claim are:
- out of any settlement you may have to repay to Centrelink any benefits you
have received and may be unable to get Centrelink benefits for some time after
- out of any settlement you will have to repay Medicare for any medical bills
which have been put through Medicare and relate to the injuries you received the
- you are generally unable to claim future medical expenses that relate to
the injury you received the settlement for through your private health insurance
(although you can claim through Medicare if applicable).
The above factors alone can turn what may appear to be a good settlement into
a very ordinary one.
A settlement can be a good way of resolving your case so long as you are
Legal costs consist of two types of costs: professional fees; which are the
fees charged by your lawyer for work done on your case and disbursements; which
include the cost of doctors and other experts writing reports and giving
evidence in Court.
Professional fees are charged in accordance with an agreement between you and
your lawyer. Your lawyer must inform you when taking on your case the rate at
which they will charge you for professional fees.
The general rule of thumb is that if you win or settle your case the
defendant will pay the majority of your legal costs (although like every general
rule there are exceptions to this one).
If the defendant pays your legal costs they must generally pay your costs
based on the Supreme Court Scale, which is a list of professional fees set down
by the Court. Most lawyers charge over scale. Accordingly, similar to the
Medicare system, there is a “gap”. This gap is known as “solicitor-client
costs” and is the shortfall in costs actually incurred by you and what is
recovered by the other side. Generally you pay this “gap”.
How much your total legal costs will be depends upon whether your case
settles early on or whether it goes to trial. Your lawyer should be able to tell
you at any time how much you have incurred in legal costs.
Generally, if you are successful in your case, disbursements will be paid in
full by the defendant (although you may have to pay these costs as they are
incurred depending upon the arrangement you have with your lawyer) and the
defendant will pay about two-thirds of your legal costs. (The other one-third is
the “gap” paid by you.)
If you are not successful in your case you may have to pay the defendant’s
legal costs. These can run to a huge amount and is one very good reason why you
need to be sure you have a good case before starting a negligence claim.
Many lawyers are now willing to act in cases on a “No Win–No Pay “
basis. This means that if your lawyer believes you have a good case it will be
pursued on the basis that you will only be charged professional fees if your
matter settles or is resolved in your favour. (If you are unsuccessful however
you must still pay disbursements and the defendant’s legal costs.) This is
good insurance in litigation because it means your lawyer is putting their money
“where their mouth is”.
THE ROLE OF THE LAWYER
Sometimes it is possible for an injured person to pursue a claim for personal
injuries without a lawyer. This may be the case when the claim is quite small
and simple such as a few medical bills and a couple of weeks off work, so long
as the case does not have to go to trial.
Generally though once legal proceedings are started there are complex rules
which need to be followed and complex laws which need to be applied.
In common law claims these laws are not contained in the statute books. The
law develops by way of “precedents” where higher Courts decide the
appropriate way certain issues or cases must be dealt with. These precedents are
binding on the lower Courts until such time as the precedent is overturned by
the higher Courts, going all the way up to the High Court of Australia.
To prepare a case properly it is necessary to be aware of the relevant
legislation and regulations, the Court Rules and recent developments in the law.
The interplay between legislation, including rules and regulations and
precedents, means that the legal system is complicated and a good lawyer can
greatly increase your chances of getting a good result with a minimum of stress.
Because most defendants are insured they will be provided with lawyers by
their insurance company. This means that if you do not have a lawyer you may be
very much disadvantaged in your negligence claim and the chances of you
obtaining a lot less than you would be entitled to are greatly increased.