Motor Vehicle Accident Claims
Ever been injured in a Motor Accident? Even if you think it was your fault, you may be entitled to significant compensation.
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Andrew McQuilkin discusses the CTP regime for accidents on or after December 1st 2017
“Recovering from injuries after an accident is a stressful time. The last thing an injured person needs is to deal with the stress of trying to get fair compensation out of an insurer. That’s where we come in. We see it as our role not only to give our clients advice but also to take the stress out of the claim so they can focus on getting better.”
– Andrew McQuilkin, Senior Lawyer
If you have been injured in a motor vehicle accident there is a really good chance that you are entitled to compensation from an insurer. You see, the NSW Government has put in place a compensation system for people injured in accidents where a motor vehicle is involved. This is often known as Greenslip or CTP insurance. You may even be covered if the vehicle involved doesn’t have insurance under the “Nominal Defendant” scheme. A “motor vehicle accident” includes accidents, which involve Cars, Motorcycles, Trucks, Forklifts, Street Sweepers and Construction / Earth moving vehicles.
Motor Accidents Prior to December 1st 2017
The system is primarily fault-based, which means you have to prove that the driver of a vehicle involved was at fault in causing the accident. However, arguments about who was at fault are complex and even if you think you are at fault you may not be under the law of negligence. The system even provides for compensation for some people who were injured when they caused the accident or when no one is at fault. You may even be covered if you are a family member of someone killed in a motor vehicle accident or have suffered a psychological injury as a result of a family member being injured or killed. You should always speak to a lawyer to find out if you are covered.
To ensure that your claim for compensation goes smoothly you should do the following as soon as possible:
- Speak to one of our lawyers.
- Report the accident to the Police within 28 days.
- Lodge an Accident Notification Form with the insurer of the vehicle you consider to be at fault within 28 days.
- Lodge a Claim Form with the insurer of the vehicle at fault within 6 months.
- Commence proceedings within 3 years.
To get the ball rolling, we will help you complete all the necessary forms and ensure that any other procedural matters have been complied with, such as, reporting the accident to the police. We will liaise with your doctors to find out what treatment you need. We will gather all the necessary evidence to support your claim for fair compensation (including witness statements, expert reports, medical reports, etc.). We will advise you of what you could reasonably expect to get if your matter was determined by a Judge and discuss what offer(s) should be put to the insurer to try and settle your claim.
We then make submissions to the insurer and try and settle your claim directly with them. If the insurer won’t play ball then we will seek your instructions to commence proceedings to make them to pay.
The types of compensation you can claim as a result of a motor vehicle accident include:
- Pain and suffering up to approximately $521,000
In order for you to be entitled to claim for pain and suffering you must register a level of disability which is assessed in accordance with an American Medical Association (AMA) Edition 4 Guidelines which require you to exceed 10% whole person impairment. At some stage after the condition has stabilised (generally 6-12 months after an accident) we will have you assessed by an independent doctor who will provide an opinion as to whether you are in fact over that threshold for pain and suffering and if so then we will make a claim for that entitlement.
If the Insurer does not accept that we are over the threshold for pain and suffering or alternatively provide medical evidence that indicates that in their view you are not over the threshold then you will be assessed by an independent assessor appointed by the Motor Accidents Authority who will then provide a binding determination as to whether you are over the threshold. If the independent assessor provides that determination then we will be able to claim pain and suffering for you.
- Loss of earnings up to $4,777 per week including loss of Superannuation
In the circumstance where you are losing wages or alternatively losing money from a business because of the injuries sustained in the motor accident then you may be eligible to claim for economic loss. Economic loss is payable in a lump sum at the conclusion of the matter as is pain and suffering and that entitlement can be assessed as the matter progresses. Economic loss is still payable regardless of whether you are over the threshold for pain and suffering and we will consider what documents we require from you in order to prove your entitlement to economic loss. We confirm that the economic loss or wage claim is payable for past loss as well as any possible loss assessed in the future.
- Medical expenses
Medical expenses reasonably related to the accident are payable for the past as well as into the future. We note that in order to determine what future medical expenses may be required we will arrange for you to be seen by a specialist who can provide an opinion as to those future expenses including the costs associated with any proposed surgery, rehabilitation, medication and other types of treatment. Once again the medical expenses apart from those paid on an ongoing basis by the insurer up to the date of hearing is payable in a lump sum at the conclusion of the matter for future medical expenses.
- The cost of family members, friends or professionals assisting you with your domestic and care needs.
We offer ‘No Win, No Fee’ and fixed fee costing arrangements. For more about our Cost Promise, click here. However, in short, we promise that:
We will never charge you costs that leave you out of pocket.
Our cost will always be fair, reasonable, and proportionate.
We will only send a bill if your claim is successful.
We are also happy to enter into fixed fee arrangements where we cap our fees.
If you feel you may have a Motor Accident compensation claim, or you just want to make sure you’re not missing out on something you may be entitled to, please contact us for a no obligation consultation.
Let us find out how much you could be entitled to. We are frequently successful, even in claims in which the insurer denies liability. By getting our team on your case early we can ensure that the right evidence is obtained so that you get maximum compensation. Doing this takes a large degree of expertise, and we like to think we’re the best at it.
By engaging Schofield King Lawyers, you are often able to get your claim paid out quickly and without a drawn-out fight from the insurer. We prefer to be on the front foot with the case and set it up for settlement discussions as soon as practicable – but if the insurer won’t pay you what your claim is worth – we’re happy to pull the trigger and run your case.
Motor Accidents After December 1st 2017
If you were injured in an accident which occurred after 1 December 2017 your entitlements to compensation are governed by the Motor Accidents Injuries Act 2017 (“MAIA”). The MAIA provides for 2 types of compensation:
- Statutory benefits; and potentially
Under the MAIA almost all persons are entitled to claim statutory benefits even if they are at fault in the accident.
In order to receive statutory benefits, you must lodge a claim form. In order to have all the necessary information for the claim form you must:
- Report the accident to the police within 28 days from the accident. To do this you will need the registration details of the vehicle that you consider to be at fault and attend a police station or contact the police assistance line on 13 14 44. This can be done 24 hours a day seven days a week. You will be provided with an Event Number which you will need to include in the claim form.
- You will also need to have your doctor complete a Certificate of Capacity to lodge with your claim form.
Once the Claim Form and Certificate of Capacity are completed the correct insurer needs to be identified. This can be done by going to https://sira.force.com/public/s/ctp-connect. This will identify the insurer responsible. You will the need to send (by email or post) the completed claim form and certificate of capacity to that insurer.
The insurer will then contact you to find out what treatment you require. If you have lost wages you will also have to provide some documentation to the insurer so that they can complete the necessary calculations to make payments for loss of earnings.
There are essentially two time limits you need to bear in mind:
- If you were working and were receiving income at the time of the accident in order to receive statutory benefits for loss of income back dated to the date of the accident you must lodge the Claim Form within 28 days of the accident.
- Otherwise you must lodge a claim form at the latest within 3 months from the date of the accident to receive any statutory benefits. If you lodge the claim outside of the first 28 days then any loss of income will only be paid from the date the claim form is lodged.
If your accident occurred more than three months ago and you haven’t lodged a claim form don’t worry there is still a chance to claim; however, the claim form must be lodged as soon as possible and you will need to provide an explanation for the delay.
If the vehicle you consider to be at fault in the accident is unidentified or unregistered the claim is made upon what “the nominal defendant”. In order to bring a claim against an unidentified vehicle you must conduct what is known as “due search and enquiry”. To satisfy this requirement you should as soon as practicable after the accident:
- Place advertisements or posters (handwritten is ok) around the accident site appealing for witnesses you should set out the date of the accident and a brief discerption of the vehicles involved and ask that any witnesses contact you. Don’t forget to include an email address or phone number for them to contact.
- Conduct door knocks on residences and businesses close to the accident site and see if you can obtain any witness details of anybody who saw the accident.
- Place an advertisement in the local newspaper appealing for witnesses.
The statutory benefits you may be entitled to include;
- Loss of earnings (weekly payments); and
- Medical and related expenses.
Loss of Earnings
For the first 13 weeks from the date of the accident the insurer can pay you 95% of your pre-accident weekly earnings (PAWE).
From week 14 onwards the maximum the insurer will pay 80% of your PAWE if you are not able to perform any work. If you are working but still losing income the insurer will top up your loss of earnings up to 85% PAWE.
Weekly payments do not continue forever and for many people they will stop 26 weeks following the accident (see below for more information regarding payments beyond 26 weeks).
Medical and Related Expenses
The insurer will also pay for your reasonable and related medical expenses. This can include:
- Medical expenses;
- Dental expenses;
- Pharmaceutical expenses;
- Rehabilitation and treatment expenses (like physiotherapy);
- Cost of travelling to and from appointments;
- Personal care and help around the home in certain circumstances.
After you have lodged your statutory benefits claim the insurer will, within 4 weeks, make a determination on liability for the claim. They will then advise you of that decision. If you are losing income they will also make a decision regarding your pre-accident average earnings. Within 3 months from lodging the claim they will make a determination about whether they accept liability beyond the 26 week period.
Any decision the insurer makes regarding the statutory benefits claim must be reviewed within 28 days if the decision is one you want to challenge.
If the reviewed decision is the same as the pervious decision or is still not correct then a merit review must be lodged within 28 days of receiving the reviewed decision from the insurer.
Failure to seek an internal review or a merit review within the 28 days may result in the end of your entitlements for statutory benefits and may also affect your entitlement to bring a claim for damages.
Entitlement to statutory benefits beyond 26 weeks from the accident depend upon number of factors. You may be entitled to statutory benefits beyond 26 weeks if:
- You are not mostly at fault in the accident. (mostly at fault means you are at least 61% responsible for the accident and the injuries sustained by you); and
- The only injuries sustained are not minor injuries (minor injuries are discussed in greater detail below).
If you are entitled to statutory benefits after the first 26 weeks following the accident then your reasonable and necessary medical expenses will generally be paid for life. The maximum period from receiving statutory benefits for loss of earnings is:
- 104 weeks unless you have a pending claim for damages;
- 156 weeks if you have a pending claim for damages and your injury dies not result in a whole person impairment greater than 10%; or
- 260 weeks if you have a pending claim for damages and the whole person impairment is greater than 10%.
All entitlements to statutory benefits for loss of earnings end at 5 years following the accident.
You may also have entitlements for loss of earnings after week 78 even if you were not earning income at the time of the accident.
The definition of “minor injury” is very import and can have a significant impact on your entitlements. If the only injuries sustained the accident were “minor injuries” as defined in the MAIA then you:
- Cannot receive statutory benefits beyond 26 weeks from the accident (other than in some very limited circumstances); and
- Cannot claim damages in respect of the accident.
What are Minor Injuries?
Minor physical injuries are soft tissue injuries that are not complete tears or ruptures of ligaments or muscles, or a spinal injury that does not result in clinically identifiable radiculopathy (referred pain).
Minor psychological injuries are psychiatric injuries that are not “officially recognised” or are an “acute stress disorder” or an “adjustment disorder”.
What is not a Minor Injury?
Non-minor injuries include (but are not limited to):
- Spinal injuries resulting in indefinable radiculopathy;
- Damage to organs;
- Injury to nerves;
- Complete or partial rupture of tendons, ligaments, menisci or cartilage;
- Recognised psychiatric injuries such as PTSD but not an “acute stress disorder” or an “adjustment disorder.
As long as you sustained one non-minor injury in the accident you have a potential entitlement to statutory benefits and, potentially a claim for damages, even if the injury has completely healed.
The insurer will make an assessment of whether your injuries were minor or not within 3 months of you lodging the claim. It is therefore very important to get properly examined and diagnosed early on. That includes obtaining radiology such as x-rays, CT scans and MRI’s at an early stage.
Damages claims are available for persons who were injured in a motor vehicle accident and who are not at fault. That is, you were not the cause of the accident. In those cases, you can bring a claim for damages. Generally, you cannot make that claim on the insurer for 20 months following the accident unless you have a whole person impairment of greater than 10%.
The damages you can claim include:
- Past and future loss of earnings including superannuation;
- Non-economic loss (pain and suffering compensation) but only if you have a whole person impairment of greater than 10%. The maximum amount that can be awarded for Non-Economic loss damages is currently around $521,000.00.
In addition to the damages you can claim you will still be entitled to have your reasonable and necessary medical expenses paid by the insurer. If your accident was also covered by workers compensation we will provide you with additional information regarding the effect of an award of damages under the MAIA.
You only have 28 days from when you receive the decision from the insurer to seek an internal review and similarly only 28 days to seek a merit review from the date you receive the Internally Reviewed Decision. These decisions can have a major impact on your entitlement to receive statutory benefits and also your ability to claim damages.
Some of the insurer’s decisions include decisions about:
- Liability for the accident;
- Earning capacity;
- Medical issue;
- Minor injuries; and
- Refusals to pay for treatment.
All legal costs associated with your statutory benefits claim are paid by the insurer.
The legal costs associated with a damages claim are generally regulated. However, as a damages claim cannot be brought for quite some time we will provide you our Cost Disclosure regarding any damages claim at the time your eligibility to make that claim is established.
Unfortunately the new scheme is designed to make it difficult for you to get legal advice. The costs that solicitors can recover from the insurer in relation to statutory benefits claims are very limited and are only available at the Merit Review stage of challenging an insurer’s internally reviewed decision. As such, Schofield King Lawyers can often only take a limited role in any statutory benefits claim.
What Can I Expect from Schofield King Lawyers?
Let us find out how much you might be entitled to. We are frequently successful, even in claims in which the insurer denies liability. By getting us on your team early we can ensure that the right evidence is obtained so that you get fair compensation.
By engaging Schofield King Lawyers, you are often able to get your claim paid out quickly and without a fight f rom the insurer. However, the fact is that insurance companies reject many of the claims that they should be paying. That’s why we’re here: to help you get what’s yours — to make insurance pay. We offer ‘No Win, No Fee’ and fixed fee costing arrangements. For more about our Cost promise, click here.
If you feel you may have a Motor Accident compensation claim, or you just want to make sure you’re not missing out on something you may be entitled to, please contact us for a no obligation consultation.
Let us do our best to make insurance pay.
Client Case Success Stories
Mike was in his 50s and was driving a truck when his vehicle was hit by another truck. Walter did not sustain any physical injuries and was not at fault in the accident. However, the driver of the other truck was badly injured and Mike tried to help him. Unfortunately, the other driver died at the scene. Mike went onto develop psychological injuries, including Post Traumatic Stress Disorder and Major Depressive Disorder.
Mike instructed Schofield King Lawyers. We successfully brought a claim on his behalf and he was awarded:
General Damages: $275,000
Loss of earnings: $513,789
Medical Expenses: $136,968
Total: $1,247,023 (plus costs)
Jack was injured when he was struck by the towbar of a motor vehicle whilst it was being reversed. He sustained a fractured left knee and a psychological injury. The Insurer admitted liability but alleged that any compensation that Joe was entitled to should be reduced by 50% because he did not take care for his own safety.
Jack instructed Schofields King Lawyers. We successfully brought a claim on his behalf and he was awarded:
General Damages: $300,000
Loss of earnings: $256,536
Medical Expenses: $62,644
Total: $953,242 (plus costs)
We successfully argued that the insurers reduced of 50% due to Jack not taking care for his safety was wrong.
Mohammad was injured a few days before he turned 42. He was driving home from work when he was involved in a head on collision with a car, which was driving in the wrong direction. He sustained multiple injuries, however, he was only in the hospital for 24 hours before being discharged.
Mohammad instructed Schofields King Lawyers and we successful brought a claim on his behalf and he was awarded:
General Damages: $250,000
Loss of earnings: $974,170
Medical Expenses: $169,545
Total: $1,826,473 (plus costs)
What Our Motor Vehicle
Accident Clients Say
Don’t just take our word for it.
Trust the word of the many clients we’ve helped.
There is really nothing to say. The proof was in their work. OUTSTANDING.
I'm very happy with the professionalism conducted from Miles and Schofield King Lawyers' staff over nearly six years of my Motor Vehicle Accident case, highly recommend.
This was my first accident ever and David King was very friendly and professional, he helped me all the way through to finalise my case in the quickest and most effective way possible.
While recovering from being hit by a car it was great to be able to discuss concerns with David King, feel supported and know that my affairs were in good hands. I also appreciated the professional and ethical manner Schofield King Lawyers always adopted while dealing with my claim. It was important to me that we achieved an outcome that was fair and reasonable to all parties, which we did. I have already recommended this company to friends.
I had a motorcycle accident on my way to work. Thankfully Dave King and his team relieved any stress I would of had with their extreme professionalism, advice and timely actions. The outcome was amazing. Without Schofield King's advice and services I would of possibly had to pay money. Thankfully their lawyers let me know what I was entitled to and how make the insurance companies pay!
I would absolutely recommend Schofield King Lawyers for their hard work, integrity and transference. I had a motor accident and have got hope from them and eventually Schofield King Lawyers made that successful for me and established my right which is really appreciating. I specially would like to thank David and Joanne who worked hard for saving my life.
I was in a Motor vehicle accident. Thanks to Schofield King Lawyers I had a quick and successful outcome. I appreciated the professionalism SK Legal demonstrated and how dedicated their team is. I would definitely recommend them to other people needing legal assistance. I have already referred my friends.
I was injured in a taxi accident which resulted in spinal injury and eventually surgery. I found that when you are really in need there is someone to help you, even though it took time and lots of input from me, my lawyer worked very hard to bring justice to me. Without his effort and knowledge, I would be having extreme difficulty surviving now. What I liked about working with Schofield King Lawyers was the honesty and ease my lawyer worked with. He made all the hard questions seem simple without making me feel foolish. I would absolutely recommend Schofield King because of the work they did and the result. They achieved our goal.
I was in a car accident, seeking compensation from injuries. Thanks to Schofield King Lawyers, I was very successful in the outcome! They satisfied all needs during the process. David King and his fellow associates were outstanding in the effort David put towards our case! His friendliness and comfort created a delightful environment through the process! I would 100% recommend Schofield King Lawyers. I have already recommended a few clients to David, and will continue to do so! After past experience with lawyers, I have come to realise, David puts the client’s needs first!
I had a brief encounter with Schofield King Lawyers when my partner was a client of theirs. They had done such a great job in dealing with his matter that when time came for my own motor vehicle accident claim, I only saw fit to use them. Legal matters can be very confusing and Schofield King Lawyers understand that, they explain the matter thoroughly so you aren’t left with any hidden costs at the end. I was provided with obligation free legal advice and continuous support throughout my proceedings. I have been very happy with the friendly service and professional manner in which Schofield King Lawyers dealt with both my partner’s and my own case that I have now used them a few times with other legal matters. I would highly recommend Schofield King lawyers to anyone who is looking for quick and low cost legal service.
Client names and photos have been changed to protect their privacy and confidentiality, but all testimonials are true and accurate accounts from the clients.