If you are injured in a motor vehicle accident your right to claim for personal injuries comes from the Motor Vehicle (Third Party Insurance) Act 1943. The Act is administered by the Motor Vehicle Third Party motor vehicle personal injury division of the Insurance Commission of Western Australia.

Motor vehicle personal injury claims are sometimes referred to as “Third Party Claims”. This is because the sort of insurance policy which enables you to make the claim is called Third Party Insurance.

When the owner of the motor vehicle pays the licence fees for a Western Australian registered motor vehicle, he/she automatically takes out Third Party Insurance. This insurance covers personal injury and death but it does not cover any property damage arising out of the motor vehicle accident. In Western Australia the Insurance Commission of Western Australia (ICWA) is the only third party insurer. All claims must be directed to the Motor Vehicle Personal Injury Division Insurance of the Commission. The address is :

22nd Floor

221 St George’s Terrace

Perth WA 6000

Postal Address :

GPO L920

Perth WA 6842

Telephone No. (08) 9264 3333

Reporting and Giving Notice

If you are injured in a motor vehicle accident and believe that the accident was wholly or partly someone else’s fault you should report the accident to ICWA as soon as practicable. Failure to do so may prevent you from being able to claim compensation for your injuries.

Notification to ICWA is done by completing a Notice of Intention to Claim. This form can be obtained from ICWA.

Who Can Claim?

Persons who are eligible to claim compensation as a result of a motor vehicle accident include drivers and passengers of a motor vehicle, cyclists, pedestrians and motorbike riders.

It is also possible for persons who have not been involved in a motor vehicle accident but who are dependent upon a person who has been killed in a motor vehicle accident to claim compensation.

The injuries or death must have been directly caused by, or by the driving of a Western Australian registered motor vehicle regardless of where in Australia the accident occurred.

The term “motor vehicle” has a broad definition and can include any vehicle requiring to be licensed, such as a caravan, trailer or semi-trailer drawn or hauled by a motor vehicle.

If the accident was partly your fault you may still have a claim for compensation through ICWA, however your entitlement may be reduced to the extent of your contributory negligence.

Once ICWA have received notification of the accident they will investigate the circumstances of the accident and advise you as to whether they will admit liability for your injuries (ie if the accident was completely someone else’s fault), deny liability or apportion liability (if they believe you were partly to blame for the accident).

If ICWA denies liability or apportions liability and you are not satisfied with their determination you should seek legal advice concerning your position.

What can be claimed ?

Things that you can claim through ICWA, subject to proof, include :

• treatment accounts (doctors, physios, psychiatrists, chiropractors, etc.)
• cost of medication
• travel expenses
• lost wages
• cost of household assistance
• cost of personal carer
• special equipment you may need as a result of any disability
• rehabilitation expenses
• monetary compensation for pain and suffering and inconvenience (general damages)

Limits on what you can claim : the “deductible”

There are monetary limits on what you can claim from ICWA. If your injuries are relatively minor you can only claim for treatment accounts, medication, travel, lost wages and so on but you may not be able to claim for pain and suffering (called “general damages”) if the value of your physical/psychological injuries is assessed to be less than $10,500.00*. If the injuries are more serious, you may be entitled to monies for general damages but this may be subject to a deduction of the $10,500.00*. However, for persons who have suffered substantial injuries and the value of the pain and suffering component of the claim is assessed to be $43,500.00* or over, there will be no deductible.

There are limits on the amounts which can be claimed for personal care and household assistance provided to you by family members and friends. To be eligible to claim for these services the minimum value of the services must be $5,000.00.

* Please note that these amounts are subject to annual changes.

Statutory Limitation Periods

You should be aware that there is a 6-year limitation period in which you must have either settled your claim or commenced proceedings. If you have not done either as at the sixth anniversary of your accident you will permanently lose your rights to pursue a claim for damages.

If a person is under the age of 18 years at the time of the accident, the 6-year limitation period commences from the date of the person’s 18th birthday.

If a claim relates to a fatal accident and the claim is not settled within 1 year of the date of the death, court proceedings must be issued before the first anniversary of the death. Failure to meet this time limit will result in forfeiting any rights you have against ICWA.

Personal injuries claims should not be finalised until your medical condition is stable and your doctor has confirmed that your condition has settled.

When to settle or commence proceedings

Once your medical condition is stable then you can negotiate with ICWA as to the value of your claim or instruct solicitors to negotiate on your behalf.

Even if the value of your claim is very small you should seek legal advice to determine the adequacy of any offer which is made to you by ICWA before responding to the offer. You do not necessarily need to engage a solicitor on an ongoing basis but it is prudent for you to take some basic legal advice as to the potential value of your claim before responding to an offer or negotiating with ICWA.

Having comprehensive information concerning your damages will mean that if you eventually obtain legal advice or representation you will have the evidence at your figure tips. This will substantially cut down on legal costs as you will not need to pay a solicitor to gather the information for you. In most cases the solicitor will only need to evaluate the information and assess the value of your claim. He or she will also advise you as to what additional information needs to be gathered and the adequacy of any offer which has been made to you by ICWA. If necessary he/she can negotiate further on your behalf or issue court proceedings. In the event that the claim is not settled, we would strongly recommend that you do not issue legal proceedings without legal representation.

FURTHER INFORMATION

This Information Outline is provided courtesy of Dwyer Durack Barristers & Solicitors who are experienced in this area of law. They are located at Dwyer Durack House, 40 St. Georges Terrace, Perth, WA 6000 or call them on (08) 9325-9277 if you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

Established in 1914, Dwyer Durack is one of Western Australia's most respected and progressive law firms. It is the leading legal firm in Western Australia for the provision of a comprehensive service in the private client areas of personal injuries, family law, employment law, criminal law, consumer law and wills and estates. The firm comprises 13 Partners and a total compliment of 120 personnel. Dwyer Durack is a member of the Australia-wide PeopleLaw group.