Are you unsure what compensation you can seek for your injuries or how to pursue a claim?

You may need some legal assistance.

When you suffer injury in a motor vehicle accident your right to claim compensation depends on who is “at fault” for the accident. If another driver was at fault, wholly or in part, you can usually obtain compensation.

Possible compensation can include damages for pain and suffering, payment of medical treatment expenses, voluntary services provided by family members, reimbursement of lost wages, payment of future medical expenses, future loss of wages and superannuation losses.

Compensation for injuries suffered in motor vehicle accidents can be negotiated with the State Government Insurance Commission but if agreement can not be reached it may be necessary to take Court action. In such cases the Court will decide whether you are entitled to compensation and also the amount of compensation you should be paid.

The aim of the law is to determine who is at fault for the accident and to assess fair compensation for your injuries. The basic issues to be considered include:

• Was another driver “at fault” or responsible for the accident wholly or in part?
• Were you also “at fault” or responsible to some extent for the accident?
• Will you qualify for compensation?
• What compensation will you receive for your injuries?
• What procedures do you have to follow to obtain compensation?
• Can you represent yourself or do you need a solicitor?
• Can you negotiate a compensation payment without going to Court?
• When should you finalise your compensation claim?
• Are there any time limits for making a compensation claim?
• What circumstances could result in your compensation payment being reduced or denied completely?
• Will you have to repay any monies to Centrelink, Health Insurance commission or other organisations out of your compensation payment?
• If you use a solicitor who will pay for the solicitor’s costs?

COMPENSATION YOU MAY BE ABLE TO CLAIM

It is possible to claim for the following types of compensation:

• Medical treatment expenses
• Hospital treatment expenses
• Pharmacy expenses
• Travel expenses including the use of a private motor vehicle or public transport
• Loss of past wages (excluding the first week of wages)
• Loss of future earning capacity
• Loss of superannuation benefits
• Compensation for pain, suffering and loss of the enjoyment and the amenities of life
• Compensation for loss of sexual relations with spouse or partner
• Future medical, hospital and pharmacy expenses
• Compensation for loss of life expectancy
• Compensation for voluntary services provided by spouse or family members
• In the case of death claims, the dependants of the deceased can claim for loss of financial support and limited “solatium” compensation.

It is important to note that a minimum threshold in respect of compensation for pain and suffering has been introduced to exclude minor claims. To meet this threshold it is necessary to establish that your quality of life has been significantly impaired for at least 7 days or that you have incurred medical expenses exceeding a prescribed amount ($2,500.00 for injuries occurring in 1999) as a result of the motor vehicle accident.

It is advisable in cases where compliance with the threshold minimum may be in question (i.e. relatively minor claims) to obtain a medical certificate from your treating doctor to confirm that you were incapacitated for work or home duties for a minimum of 7 days.

YOUR DUTIES AFTER A MOTOR VEHICLE ACCIDENT

As a driver you must stop and assist any person who is injured in the accident.

This is not required if you are injured yourself or you cannot assist any other injured persons. In addition, there are a number of steps that you are either obliged to take or should as a matter of prudence take:

What to do at the accident scene. You should (if you are able to):

1. exchange particulars of your name, address, telephone number and vehicle details (including registered ownership and registration number) with other drivers involved;
2. obtain the names and details of witnesses;
3. co-operate with any emergency services officers, police officers and ambulance officers who attend at the scene.

You are required to provide to police the following details:

1. Your name and address as a driver and the same details of the owner of the car.
2. The registration number of the car you are driving.

What to do after leaving the accident scene:

1. if police did not attend at the scene you should as soon as reasonably practicable report the accident to a Police Station, and in any event within 24 hours;
2. seek medical treatment without delay for your injuries;
3. report the accident to the compulsory third party insurer of your vehicle. If you were in a South Australian registered vehicle then that insurer is the Compulsory Third Party Claims Department of SGIC General Insurance. Its main office is at 211 Victoria Square, Adelaide. The telephone number is (08) 8233 1188. SGIC will send out the relevant report forms to you;
4. report the matter to any property insurer of your vehicle.

WHO CAN CLAIM FOR PERSONAL INJURY ARISING OUT OF A MOTOR VEHICLE ACCIDENT?

EXAMPLES OF PERSONS WHO CAN CLAIM:

1. A passenger injured in any motor vehicle accident.
2. A driver injured in a motor vehicle accident caused wholly or partly by the negligence of another driver or party.
3. A pedestrian injured by a motor vehicle.
4. The dependants of a passenger, driver or pedestrian killed as a result of a motor vehicle accident caused wholly or partly by the fault of another driver/party.

If you are unsure as to whether you could claim for personal injury arising out of a motor vehicle accident, consult a lawyer experienced in this area of law.

It is not only necessary to prove that the personal injury arose out of the use of a motor vehicle but it is also necessary to prove that the driver was negligent in the use or handling of the motor vehicle.

You must therefore show that the driver was at “fault” for the accident.

A driver will be at fault for an accident if it can be shown that he or she has not exercised due care in the use or handling of the motor vehicle.

If your own actions have contributed in some way to the occurrence of the accident, either as a driver or a pedestrian, you may be held to be partly responsible for the accident. This is known as contributory negligence and will result in partial reduction of your claim for damages.

Sometimes injuries occur involving motor vehicles which do not give rise to Third Party Compensation entitlements because the injury was not caused by the use of the vehicle. In these cases the involvement of the vehicle may not be sufficiently associated with the cause of the injury to establish that the injury “arose out of the use of a motor vehicle”. This phrase has been legally defined to restrict insurance cover to circumstances where injury or death arises from:

1. the driving of a vehicle;
2. a vehicle running out of control;
3. a person travelling on a road colliding with a vehicle when the vehicle was stationary, or action taken to avoid such a collision.

Example – Where an injury occurred in the course of loading or unloading a stationary vehicle, it may not arise out of the use of a vehicle.

If another person were injured by reason of the negligence of the driver of the stationary vehicle, the injured person would not have a claim under the Third Party Scheme.

In such circumstances the injured person may still be able to claim compensation directly from the negligent person but this would not fall within the Third Party Motor Vehicle Insurance Scheme and may not be covered by other insurance.

WHAT TYPES OF DAMAGE CAN RESULT FROM MOTOR VEHICLE ACCIDENTS

You can suffer property damage and personal injury arising out of a motor vehicle accident.

You should be aware that there are different types of insurance policies covering property damage and personal injury arising out of motor vehicle accidents.

The Compulsory Third Party insurance issued when you register a motor vehicle in South Australia does not cover the damage to your vehicle and does not cover damage which may be caused by your vehicle to other property owned by someone else (e.g. another person’s motor vehicle, traffic light, fences etc).

You must take out Motor Vehicle Property Damage insurance to cover you for property damage arising out of a motor vehicle accident.

The Compulsory Third Party insurance will cover the owner and any driver who is using the vehicle with the consent of the owner for liability in respect of personal injury to other persons. It is important to understand that this insurance protects you in the event of claims against you by other persons. You cannot claim on your own Compulsory Third Party insurance for your own injuries. If you are injured you must claim against another person whose fault or negligence caused your injuries. That person’s Compulsory Third Party insurance will handle your claim on their behalf.

The Compulsory Third Party Insurance is transferred with the ownership of the motor vehicle. When a motor vehicle is sold and ownership transferred to another person the purchaser of the motor vehicle takes over the Compulsory Third Party insurance in respect of that motor vehicle.

There is only one Compulsory Third Party injury insurer in South Australia currently and this is the State Government Insurance Commission which acts as agent for the Motor Accident Commission.

THE CONCEPT OF “FAULT” (NEGLIGENCE)

It is necessary to show another driver of a motor vehicle is at fault in respect of a motor vehicle accident to be able to bring a personal injury claim in respect of that accident. This is known as “negligence”

It has been established for many years that the driver of a motor vehicle has a very high responsibility to avoid injury to other persons using the road including the occupants of other vehicles and pedestrians. When a motor accident occurs one or more of the drivers involved will be held responsible (negligent) for causing the accident.

To determine whether a driver has been negligent, it is necessary to look at all the circumstances of the accident.

A driver may have been guilty of negligence to other road users by:

1. Failing to keep a proper lookout for other vehicles or pedestrians.
2. Driving at an excessive speed.
3. Failing to obey road signs or traffic signals, e.g. failure to stop at red traffic light.
4. Failing to apply brakes or failing to have brakes operating in an efficient manner.
5. Driving without due care having regard to other road users.
6. Turning across the path of oncoming traffic.
7. Failing to give way when required to do so.
8. Driving a vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.

It is important to understand that the question of fault or negligence is not determined by the outcome of any traffic offence prosecution that may be pursued by the Police.

A driver may not be guilty of any traffic offence but can still be at fault for an accident. This is a separate question from the issue of fault or negligence.

The Courts look at all the circumstances of the accident including the actions of all the persons involved in determining who is at fault for the accident.

It is highly advisable that you consult a lawyer as soon as possible after a motor vehicle accident to determine who is at fault. In some cases it may be necessary for enquiries to be undertaken into the circumstances before the question of fault can be determined. If such enquiries are not put in train shortly after the accident valuable evidence and witnesses can be lost. 

WHEN COULD YOU BE FOUND RESPONSIBLE FOR CONTRIBUTORY NEGLIGENCE?

After looking at the circumstances of the accident it may not be possible to say that one driver was 100% responsible for the accident. Another driver or possibly a pedestrian may have contributed to the occurrence of the accident.

In these situations that other person may be found partly responsible for the accident. This is known as a contributory negligence, and results in apportionment of responsibilities between the parties.

A common example of this is for one driver to be found 80% responsible, and another 20% responsible for a collision. (See example below).

Where a claimant is found to be partly responsible in this manner the amount of that person’s injury compensation is reduced by the percentage of contributory negligence. In the example below the injury compensation of Driver “A” would be reduced by 20% if Driver “A” is found responsible for 20% contributory negligence. 

THE NOMINAL DEFENDANT 

If a person suffers personal injury caused by a motor vehicle but the vehicle is unidentified or is uninsured (unregistered), the claim must be brought against the Nominal Defendant. This is a special provision to cover uninsured or unidentified vehicles.

In the case of an unidentified motor vehicle causing injury, it is necessary to show that extensive enquiries have been pursued seeking to identify the unknown vehicle, and the claim must be reported to the Nominal Defendant as soon as possible. These are critical requirements in the case of Nominal Defendant claims. Failure to fulfil these requirements can result in your claim being denied. We strongly recommend that you instruct an experienced lawyer to represent you at the earliest opportunity if you are injured by an unidentified vehicle.

You must still establish negligence in the normal manner on the part of the driver of the unidentified or uninsured vehicle to succeed in a claim for personal injury against the Nominal Defendant.

The Nominal Defendant will look at all the circumstances of the accident to determine whether the unidentified or uninsured driver was negligent. The principles of contributory negligence apply and your claim can be reduced if it is found that you were partly responsible for the accident. 

COMPENSATION PAYMENT AMOUNTS – LIMITATIONS AND REDUCTIONS

In addition to any reduction in compensation entitlements for contributory negligence compensation may be reduced or limited by various provisions of legislation known as the Wrongs Act 1936 (as amended). The provisions of that Act are comprehensive but an outline of important aspects of the Act follows:

1. Pain and Suffering Assessment

Compensation for Pain and Suffering is determined by reference to a points based system. Our Courts are required to fix a number between 0 and 60 to describe the level of pain and suffering of a claimant taking into account both the past and future; with the higher the number fixed, the greater the level of pain and suffering. An award of 60 points on this scale represents the worst possible case of pain and suffering. All assessments must be relative to this maximum entitlement. Compensation is then determined by multiplying the relevant points number by the prescribed amount applying to the year of injury.

2. Minimum Threshold for Pain and Suffering Claims

Compensation for pain and suffering is not payable unless the injured person’s ability to lead a normal life was “significantly impaired” for at least seven days, or alternatively medical expenses exceeding the prescribed minimum were incurred as a result of the motor vehicle accident injury. The currently applicable prescribed minimum (as at November 2000) is $2,500.00. This figure is applicable to all injuries from 1 January 1999. Prior to that date the prescribed minimum was $1,400.00.

3. Gratuitous Services

The Act provides that compensation for gratuitous services will only be claimable if the gratuitous services are provided by a child, parent or spouse of the injured person. Gratuitous services consist of voluntary assistance, nursing and general attendance to the needs of the injured person during the period of convalescence. Compensation in respect of such services is limited to circumstances where the services have been reasonably incurred by the injured person and is restricted to a maximum monetary limit of four times State average weekly earnings, unless the gratuitous services provided have or will save the injured person the cost of engaging another person to provide reasonably required services. In that event the Court can award compensation beyond the maximum of four times State average weekly earnings, but compensation awarded must not reflect a rate of remuneration for the providing of services in excess of State average weekly earnings.

4. Nervous Shock – Restrictions on persons who can claim

Limitations have been imposed on the circumstances in which compensation can be claimed for mental or nervous shock arising from motor vehicle accidents. Compensation for mental and nervous shock can only be claimed by the following persons:

• a person physically injured in the accident;
• a driver or a passenger involved in the accident;
• a person present at the scene of the accident;
• the parent, spouse or child of a person killed, injured or endangered in the accident.

5. Future Losses – Prescribed Actuarial Discount Rate

Where future economic or other future losses are to be compensated and an actuarial multiplier is used to calculate the current value of such future losses, a prescribed actuarial discount rate must be applied. The current prescribed discount rate is 5%, whereas the Courts have held that a 3% discount rate is generally applicable in these circumstances and would apply but for the Wrongs Act provisions. Application of the prescribed discount rate has the effect of significantly reducing the amount of compensation below that which would otherwise apply.

6. Alcohol/Drug 

(a) If the injured person was the driver of a vehicle in an accident, the accident was partly the fault of the injured person’s negligence, and the injured person had a blood alcohol concentration of .08 or more of alcohol or the injured person’s ability to drive the vehicle was impaired as a result of the consumption of alcohol or a drug the damages of the injured person will be reduced by a prescribed percentage or such greater percentage as may be set by the Court. The prescribed percentage by which damages will be reduced in these circumstances ranges between a minimum of 25% to 50% or could be even greater if the Court determines it is appropriate to do so.

(b) If the injured person (being 16 years or older) was a passenger in a motor vehicle and the driver of the vehicle had consumed alcohol so that the driver had a blood alcohol concentration of .08 or greater or had consumed alcohol or a drug in a quantity such that the driver’s ability to drive the vehicle was impaired at the time of the accident and the injured person was aware or ought to have been aware that the driver had consumed alcohol or a drug in such a quantity, the injured person’s damages must be reduced by the prescribed percentage. The prescribed percentage ranges between a minimum of 25% and 50% in these circumstances. This provision does not apply if the injured person could not reasonably be expected to have avoided travelling as a passenger in the motor vehicle. 

7. Seatbelts

If the injured person at the time of the accident was not wearing a seatbelt contrary to the legal obligations to do so, the damages awarded to the injured person must be reduced by 25%.

8. Helmets

If the injured person at the time of the accident was not wearing a safety helmet contrary to law, and there is a cause and effect connection between the injured person’s failure to wear a safety helmet at the time of the accident and the injured person’s injury the damages awarded will be reduced by 25%.

9. Passenger not within vehicle compartment

If the injured person (being 16 years or older) was a passenger in a motor vehicle with a passenger compartment but was not at the time of the accident within that compartment and there is a direct cause and effect connection between the injured person’s position in or on the vehicle at the time of the accident and the extent of the person’s injury the damages of the injured person will be reduced by 25%. This provision does not apply if the injured person could not reasonably be expected to have avoided travelling on the motor vehicle outside the passenger compartment.

10. No compensation for first week of economic loss

If the injured person was incapacitated for work no damages will be awarded for loss of earning capacity in respect of the first week of the injured person’s incapacity.

11. Maximum Future Economic Loss Limit

A fixed absolute maximum amount applies in respect of damages for Future Economic Loss. The Court cannot exceed this amount under any circumstances. For injury sustained in 1999 the applicable maximum is $2,000,000, with CPI adjustments applying to subsequent years.

12. No claim for Investment Advice

No compensation is claimable in respect of any costs which might be incurred in obtaining investment advice or management of compensation monies recovered. This would only be applicable in the case of very large awards in any event.

There are many technical aspects to these provisions, the precise description and application of which cannot be detailed in this summary of the provisions. Further advice should be sought from a lawyer if you are informed by the State Government Insurance Commission that they intend to reduce or reject your damages claim pursuant to any of these provisions of the Wrongs Act 1936

TIME LIMITS FOR CLAIMS

A three-year time limitation period applies to all claims for personal injury arising from motor vehicle accidents in South Australia. This requires that legal proceedings be issued out of Court within three years of the date of the accident if your claim cannot be resolved by settlement within that time. In certain circumstances an extension of this three-year time limitation period can be obtained. Should this be required we strongly recommend you take immediate action to obtain legal assistance.

In most cases medical treatment has concluded and injuries stabilised within three years so that settlement negotiations can take place before the expiry of the three-year time limit. In some cases the injuries may not stabilise within this period. Alternatively, settlement negotiations may not be successful in resolving the claim. In these cases it will be necessary to institute proceedings in Court within three years of the date of the injury. Should this be required we strongly recommend that you obtain legal representation as there are extensive Court rules which must be complied with once you issue legal proceedings.

Legal proceedings can be issued out of the Magistrates Court which, in South Australia can hear injury claims arising out of motor vehicle accidents up to $60,000.00. Larger claims are heard by the District Court or the Supreme Court which have unlimited jurisdiction to hear claims in respect of motor vehicle accident injuries.

It is important to note that a detailed settlement offer together with supporting medical reports and financial documents (usually tax returns) must be provided in writing to the insurance company at least 90 days before legal proceedings are issued. Costs penalties apply for breach of this requirement.

In personal injury cases the Courts require the parties to participate in a structured Conciliation process to enable as many claims as possible to be resolved without a trial in the Court. The majority of cases are resolved by negotiation in this manner. If your claim cannot be resolved through this process a Magistrate or Judge will be appointed to hear the evidence at a trial of your case and will then make a judgment as to the amount of compensation to be awarded. Severe costs penalties can be incurred if you proceed to trial and receive an award of damages from the Court no greater than the amount previously offered to you by the insurance company. We strongly recommend you obtain experienced legal representation before instituting any Court proceedings seeking compensation for personal injury.