The law has changed significantly in relation to the procedure to bring a claim and in relation to what can be claimed if you are injured in a car accident in NSW on or after 1 December 2017.
Anyone who is injured in a motor vehicle accident in NSW can apply for compensation including:
- Drivers & passengers.
- Pedestrians.
- Cyclists.
- Motorcyclists and their pillion passengers.
An injury can be:
- A physical injury, and/or.
- A psychological injury.
How do I bring a claim?
A claim is started by giving notice of a claim to the insurer of the car that you believe is at fault or most at fault for the accident.
You can give notice of the claim by either:
- Using the online claims submission system operated by the NSW governmen there.
Or
The claim form and medical certificate must be lodged within 28 days if you want to claim statutory benefits for loss of income from the day after the accident. The forms must be lodged at the very latest within 3 months of the date of the accident.
Note: If the at fault or most at fault vehicle is not registered or is unidentified (e.g., left the scene) the claim must be lodged with the Nominal Defendant.
The law also requires you to report the accident to the police.
If the police did not come to the accident scene you must report the accident to the police as soon as possible. The accident must be reported at the latest within 28 days of the accident.
The police will provide you with an Event Number for your claim and may also take a statement from you about the accident. We recommend you read your statement carefully before signing it and that you ask the police for a copy of your statement.
How can I find out the CTP (greenslip) insurer for the car at fault/most at fault?
If you know the registration number (licence plate) of the car that caused the accident – the State Insurance Regulatory Authority (SIRA)CTP Assist will be able to give you the details for the CTP insurer. CTP Assist can be contacted on 1300 656 919 or by emailing ctpassist@sira.nsw.gov.au.
What if I don’t know the Registration Number (Licence plate)?
If you don’t know the registration number, you need to take all reasonable steps to find the registration number including calling the Police Assistance Line on 131 444.
If you still can’t find the registration number – you can still make a claim. The claim is lodged with the Nominal Defendant. Call CTP Assist 1300 656 919 for assistance with finding the registration number and lodging the claim with the Nominal Defendant if the registration number cannot be found.
What if I was at Fault for the Accident?
If you were at fault for the accident, lodge the claim with the CTP insurer of the car you were driving at the time of the accident.
What can I claim?
In the first six months you can claim compensation (statutory benefits) for:
- A percentage of your pre-accident weekly wages if you require time off work due to the injuries for the motor vehicle accident.
- Medical and treatment expenses – so long as the medical expenses are reasonable and necessary and required due to your injuries from the motor vehicle accident.
- Care (domestic/handyman & personal care) if you need that care due to the injuries from the motor vehicle accident and the care is reasonable and necessary. The care provided is limited as follows:
- 1 to 4 weeks – Up to 12 hours in total over the 4 weeks.
- 5 to 8 weeks – Up to 8 hours in total over the 4 weeks.
- 9 – 26 weeks – Up to 6 hours in total over the 18 weeks.
The hours of assistance provided may exceed the allowed amount in some circumstances.
What happens after the first six months?
Your entitlement to ongoing compensation after six months depends on whether:
- You have more than a minor injury as defined under the law. The insurer must let you know in writing within three months of your claim being lodged its decision on the classification of your injury (that is minor or non-minor injury). If classified as minor the insurer will stop payments at six months.
A minor injury is legally defined in the Motor Accident Injuries Act 2017 and is any one or more of the following—
(a) a soft tissue injury,
(b) a minor psychological or psychiatric injury.
- A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
- A minor psychological or psychiatric injury is (subject to this section) a psychological or psychiatric injury that is not a recognised psychiatric illness.
Further the Motor Accident Injuries Regulation 2017 adds the following to the minor injury definition:
- An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
- Each of the following injuries is included as a minor psychological or psychiatric injury for the purposes of the Act—
- acute stress disorder,
- adjustment disorder.
And
- You were not at fault or most at fault (61% or above) for the accident. The insurer will advise you within the first six months if it considers you at fault or most at fault.
As the question of who is at fault or most at fault for a motor vehicle accident can be complicated, we strongly recommend you immediately seek legal advice if you receive a letter from the insurer advising you are at fault or most at fault for the accident.
Note: In some circumstances, the insurer will agree to pay for treatment beyond 6 months for a limited period even if your injury is a minor injury if the ongoing treatment:
- Will improve recovery, or
- Will improve capacity to return to work and/or usual activities, or
- The insurer delayed approval for treatment.
What if I Don’t Agree with the Insurer’s Decision on Minor Injury or Fault?
The first step is to apply to the insurer for an internal review within 28 days. The insurer on receipt of your application for internal review will appoint another person within the insurer to review your application and make a new decision.
If you disagree with the new decision the next step is to make an application to the Personal Injury Commission (PIC) for an independent review of the insurer’s decision. At MTM Legal we can help you with this application. Our legal costs for helping you with this application will be paid by the insurer.
Time limits can apply thus it is important to seek legal advice without delay once you receive the insurer’s decision.
If my injury is more than minor and I am not at fault or most at fault for the accident – What can I claim?
If your injury is not minor and you are not at fault or most at fault for the accident you will be entitled to claim for ongoing treatment expenses, loss of wages and care so long as it is reasonable and necessary and required because of the injuries from the accident as follows:
Medical Expenses
You may be entitled to claim medical expenses for life.
Medical expenses include:
- Medication costs.
- Dental treatment.
- Medical treatment (e.g., treatment from GPs, Specialists, psychologist, psychiatrist, etc).
- Rehabilitation expenses (treatment from physiotherapist, chiropractor etc).
- The cost of travel to/from treatment.
Care
In some cases, the insurer will provide ongoing personal care and/or domestic/handyman assistance.
Loss of Wages/Loss of Earning Capacity
The insurer will pay a percentage of your pre-accident earnings as follows:
- For the first 13 weeks after the accident at a maximum of 95% of pre-accident average weekly earnings.
- After 14 weeks at a maximum of 85% of pre-accident average weekly earnings (depending on whether you have total or partial loss of earning capacity/ability to earn).
The longest period you can claim for loss of wages is two years unless you make a claim for Common Law Damages.
Once the claim for Common Law Damages is lodged you can continue to claim weekly payments for up to three years from the date of the accident or until the common law claim is finalised if your degree of whole person impairment is 10% or less, and up to 5 years or until the common laws claim is finalised if your degree of whole person impairment is 11% or more.
What can I claim under a Common Law Lump Sum Claim?
Under a Common Law lump sum claim you can claim for:
- Non-Economic Loss compensation for pain and suffer if your degree of whole person impairment (WPI) is 11% or more.
- Economic Loss Compensation for:
- Loss of wages for the past and into the future and for loss of superannuation.
- Costs relating to accommodation or travel incurred or likely to be incurred as a result of the injury (not being a treatment or care cost).
A Common Law claim must be lodged within 3 years of the date of the accident.
The insurer has to pay for some of your legal costs in order to bring a Common Law Claim. Some of the legal costs may come from the compensation you receive.
A Member of my Family was killed in a Motor Vehicle Accident – do I have any right to claim?
You have a right to make a claim if you can demonstrate that a person other than the deceased was partially or completely at fault for the death of your family member.
Even if your relative was partially at fault in the accident you may still be able to make a claim – the amount of compensation awarded will be reduced by the percentage of the deceased person’s fault for the accident. This is called contributory negligence. Examples of contributory negligence are:
- Not wearing a helmet if a cyclist or motorcycle rider.
- Not wearing a seat belt.
- Knowingly travelling in a car where the driver is under the influence of alcohol or drugs.
- Speeding.
- Being under the influence of alcohol or drugs.
Compensation is available to relatives who were dependent on the deceased person financially or for some service at the time of death and covers:
- Loss of financial support from the deceased’s earnings.
- Loss of the value of services the deceased would have provided around the home.
- Funeral expenses.
- Economic loss suffered by a working spouse occasioned by ceasing or reducing remunerative work in order to perform the services previously performed by the deceased, e.g., services associated with the care of children.
To bring such a claim an Application to Compensation Relatives Form must be sent to the insurer of the vehicle at fault or most at fault for the accident which caused the death. This form can be accessed here, and the accident must be reported to the police within 28 days.
The insurer must tell you whether it accepts the claim or not. If you disagree with the insurer’s decision the first step is to apply for an internal review by the insurer. The insurer will appoint another person from within the insurer to review and issue a new decision.
If you do not agree with the new decision you may apply to the Personal Injury Commission (PIC) for an Independent Review.
Compensation to Relative Claimsarecomplicated and detailed. At MTM Legal we can assist you with the claim process – call us on 02 9252 8824.
What legal costs do I have to pay?
The legal costs consist of two components:
- The Professional Costs for the work we do in running your case. The insurer has to pay a proportion of those costs. You do not have to pay our professional costs until you receive compensation from your case. If you don’t receive compensation, we don’t seek the payment of our costs – this is referred to as a conditional cost agreement or a no win no fee agreement.
- In the event your case goes to court and you lose the case, the court would order you to pay a proportion of the insurer’s legal costs. I provide advice to you in relation to whether you should take your case to court.
- Disbursements – This refers to money spent on obtaining the evidence, for example medical records and reports, engineer’s reports, accountant’s reports and also expenses incurred in photocopying/printing/phone and faxes. If you can pay the disbursements as they are incurred, particularly for medical reports you will avoid incurring overdraft interest. If you win your case the insurer will have to reimburse you for a percentage of the disbursements incurred. Unless you elect to pay the disbursements as they are incurred, the disbursements also do not become payable until you receive compensation.
