If a person suffers an injury as a result of a motor vehicle accident, then statutory benefits are now payable under the new Motor Accident Injuries Act 2017 whether or not the accident was caused by the fault of the person to whom the statutory benefits are payable.
What are statutory benefits?
This means that anyone who sustains an injury in a motor vehicle accident is entitled to statutory benefits under the Motor Accidents Injuries Act 2017 (with some limited exceptions).
Such statutory benefits are payable by the motor vehicle CTP insurer directly to the injured person. If the accident is a motor accident concerning only one motor vehicle involved, then a claim is made against the CTP insurer of that vehicle. If the motor vehicle accident involves more than one vehicle, then a claim is made against the CTP insurer of the vehicle you consider at fault.
Statutory benefits are payable for 26 weeks and include payment of weekly compensation if you are unfit for work and payment of reasonable and necessary medical expenses.
To make a claim for statutory benefits, you need to apply for personal injury benefits by completing an Application for Personal Injury Benefits form and obtain from your doctor a Certificate for Fitness. A claim can be made through the SIRA website found here - https://www.sira.nsw.gov.au/
Lawyers are generally not involved in the initial claim for statutory benefits under the act. There is no allowance for payment of any legal fees to assist a person injured in a motor vehicle accident to make a claim.
A claim should be made within 28 days from the date of the motor vehicle accident and the accident must be reported to the police.
An entitlement to statutory benefits, therefore, requires no more than for you to have sustained an injury from a motor vehicle accident.
When do statutory payments cease?
Statutory benefits cease to be payable after 26 weeks if the insurer can prove one of the following:-
- That the motor accident was caused wholly or mostly by the fault of the person claiming statutory benefits; or
- The persons injury resulting from the motor vehicle accident were minor injuries.
If the accident was your fault payments will cease after 26 weeks.
A motor accident is deemed to have been caused mostly by the fault of a person if the contributory negligence of that person is greater than 61%.
An insurer, therefore, can only terminate statutory benefits if it has evidence to satisfy one of the above two matters. If an insurer does not investigate liability and has no information about liability or the injury, then the insurer cannot discontinue statutory benefits.
The insurer within the 26 week period should conduct an investigation in relation to the accident to determine whether the person who is claiming statutory benefits was wholly or mostly at fault and whether or not the injuries resulting from the motor vehicle accident were minor injuries.
The insurer is then required to make a decision within the 26 weeks as to whether they will cease payment of statutory benefits.
Insurers have been making decisions to cease benefits without making proper investigations on either liability or whether someone has a minor injury. The onus is on the CTP insurer to positively prove that the person claiming statutory benefits was at fault or to positively prove that the person who is claiming statutory benefits has a minor injury. The injured person does not need to prove the above matters but rather it is the CTP insurer who bears that onus.
An injured person is however required to co-operate in providing information to the insurer as requested to assist them in their determination.
Any decision made by the CTP insurer to cease benefits after 26 weeks can be challenged.
If you believe that you are entitled to ongoing benefits after 26 weeks then you should contact an Accredited Specialist in Personal Injury Law who can review your matter and determine whether you have a right to challenge the insurer’s decision to receive statutory benefits beyond 26 weeks.
GARLING AND CO LAWYERS
Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.
Further Blog Articles which may interest you –