- 1. What is the scheme for people injured in motor vehicle accidents in NSW?
If you have been injured in a motor vehicle accident in NSW you are able to make a claim for personal injury compensation under the Compulsory Third Party (CTP) Scheme. This scheme is governed by the Motor Accident Compensation Act NSW (1999) (MACA) and such claims are overseen by the Motor Accidents Authority of NSW (MAA).
The MAA is a statutory corporation which regulates the Motor Accidents Scheme, provides guidelines to insurers for handling of claims and provides dispute resolution assistance between insurers and people injured in motor accidents.
- 2. What is a green slip?
A Green Slip is an insurance policy, linked to a motor vehicle that provides compulsory third party (CTP) Personal Injury Insurance. This insurance covers you or the person driving your vehicle if the driver of your vehicle is at fault and causes injury to someone else.
An injured person claims against the CTP Insurance of the vehicle which was at fault.
CTP insurance is compulsory and must be taken out when registering a Motor Vehicle in NSW.
CTP insurance does not cover damage to property or other motor vehicles, it only covers personal injury.
- 3. What is the MCIS Levy?
All green slips now show the MCIS (Medical Care and Injury Services) Levy as a separate item on the green slip.
The levy is payable to fund the Lifetime Care and Support Scheme (LTCS). The LTCS Scheme provides medical care, treatment, rehabilitation, attendant care to the catastrophically injured in car accidents such as sever spinal cord injury or traumatic brain injury.
The levy is an additional payment on top of the CTP insurance to cover the care for those people catastrophically injured in Motor Vehicle Accidents.
- 4. What do I do if I am injured in a car accident in NSW?
To make a claim for compensation you must have sustained an injury in a motor vehicle accident in NSW. You also need to be able to demonstrate that the driver or owner of a vehicle, other than your vehicle, was partially or completely responsible for the accident.
Any kind of road user can make a claim under the Act, including; the driver, the passenger, pedestrian, cyclist or motor cyclist.
If your vehicle was partly at fault for the accident you still may be able to make a claim however the compensation you will receive will be less than if you were not at fault at all.
Examples where you may be partially at fault include; not wearing a seatbelt, driving whilst drunk, or travelling in a vehicle where you know the driver to be drunk or not wearing a helmet when cycling or riding a motorcycle.
There are also two special circumstances where you can make a claim under the scheme regardless of who caused the accident.
- If the injured person is under 16 years of age and is a resident of NSW at the time of the accident you can make a claim for special benefits for hospital, common medical and rehabilitation and attendant care for any of the injuries sustained.
- If you were injured as a result of a ‘blameless accident’ you may also be able to make a claim. A blameless accident is an accident caused by unexplainable mechanical vehicle failure, driver suffering a sudden illness such as a heart attack or an unavoidable collision with an animal on the road.
There is complex law surrounding who can make a claim for a ‘blameless accident’ and you should always contact a lawyer to discuss if you have a right to make a claim.
- 5. How do I make a claim for compensation?
To make a claim you must complete a claim form and submit it to the CTP insurer of the vehicle you consider at fault.
You find out the identity of the CTP Insurer by calling the Claims Advisory Service on 1300 656 919 giving them the registration details of the vehicle you consider is at fault. They will be able to give you the name and details of the relevant CTP insurer.
You will then need to complete one of two of the following Motor Accident Forms:
- Accident Notification Form – this form allows injured people to claim up to $5000 in respect of medical treatment and lost earnings. This form must be completed within 28 days from the date of an accident.
- Personal Injury Claim Form – if your treatment expenses and loss of earnings will exceed $5000 or your condition has not completely resolved within 6 months from the date of accident you need to complete a Personal Injury Claim Form and forward it to the CTP insurer within 6 months of the accident to receive further compensation.
To make a claim for compensation you need to have undertaken the following:
- Reported the accident to the police within 28 days. If you do not do this you may not be able to make a claim.
- Find out the CTP Insurer of the person that caused the accident. Contact the Motor Accidents Authority on 1300 656 919 and provide the registration number of the vehicle you consider at fault.
- Complete a Personal Injury Claim Form within 6 months from the date of the accident and forward it to the CTP Insurer.
The personal injury claim form can be complex and you may require assistance from a lawyer in completing the claim forms.
- 6. What is an Accident Notification Form?
Anyone injured in a motor vehicle accident in NSW regardless of who was at fault can receive benefits up to a maximum of $5000 by submitting an Accident Notification Form.
The Accident Notification Form provides for early payment of reasonable and necessary medical expenses up to a maximum of $5000.
The treatment expenses and loss earning expenses is payable regardless of who was at fault in the accident.
- 7. What is a Personal Injury Claim Form?
If you have been injured in a motor vehicle accident in NSW you will be able to claim compensation if the accident was caused or mainly caused by another vehicle.
If your treatment expenses and loss of earning will exceed $5000 you need to complete a personal injury claim form, which must be completed within 6 months of the date of the accident and forwarded to the relevant CTP insurer.
You obtain the name and address of the relevant CTP Insurer by contacting the Claims Advisory Service on 1300 656 919 and providing the registration number of the vehicle you consider at fault.
You may require assistance form a lawyer in completing the claim forms as it is a complex document, and it is important that it is completed accurately.
- 8. Where do I send the Accident Notification Form or Personal Injury Claim Form?
The Accident Notification Form or the Personal Injury Claim Form is sent to the CTP insurer of the vehicle that you consider at fault. To obtain the name of the CTP Insurer you call the Claims Advisory Service on 1300 656919 and provide the registration number of the vehicle you consider was at fault who will inform you of the details of the relevant CTP insurer.
- 9. What happens after I send in a claim form?
Once you have completed a claim form you will receive a letter from the insurance company telling you that your claim has been received. You will also receive a claim number that you must use when you contact the insurer about your claim. You should also supply the claim number to your medical practitioner so they can send their accounts/invoices direct to the insurer for payment.
The insurer will then investigate your claim. They may ask you to provide information including, photos, documents and records to help them with the investigation. As part of the investigation the insurer will normally obtain a copy of the police accident report. You may also be required to speak to an insurance investigator about your accident and how it occurred.
If you are asked to speak to an insurance investigator you should always talk to your lawyer first before providing any statements to the insurance investigator.
Once the insurer has all relevant information they will determine whether the driver that you say caused the accident was at fault. The insurer must notify you in writing within 3 months of receiving the claim form of whether or not they accept their driver was at fault.
The letter advising of the insurer’s decision is called a Section 81 Notice.
In the meantime the insurer will continue to pay for reasonable and necessary hospital, medical, rehabilitation and travel expenses whilst they are investigating the claim.
If liability is accepted the insurer will continue to pay your medical expenses. If the insure does not believe that their driver is at fault they will decline the claim and cease to pay medical treatment.
- 10. What is an insurance investigator?
As part of the investigation process the CTP insurer will appoint an investigator to speak to the drivers of the vehicles and all witnesses. As part this investigation they will most likely contact you to provide a statement as to the circumstances surrounding the accident and the nature and extent of your injuries.
You should provide a statement to the investigator; however you should only do so with the assistance of a lawyer.
It is important that the information contained in the statement is accurate and relevant. Often insurance investigators can put their own spin on your words in completing a statement and you need to be careful with how the statement is worded. It is essential you have a lawyer assist you in completing any statement provided to the insurer or their investigator.
- 11. What benefits, if any, will the insurer pay when I submit the claim form?
The only compensation the insurer will pay upon receiving a claim form is medical, hospital, rehabilitation or the like treatment expenses. They will not pay upfront any loss of income if you are unable to work because of an injury.
The insurer may also appoint a rehabilitation provider to assist you in recovering from your injuries.
- 12. What happens after my claim is accepted?
If you receive a Section 81 Notice from the insurer accepting that the driver of their vehicle was at fault then you are entitled to receive compensation as allowed under the Motor Vehicle Accidents Compensation Act (NSW) 1999.
When your condition has stabilised and there is unlikely to be any change in your condition then you can reach a resolution of your claim with the insurance company either by agreement or through a dispute resolution process known as CARS.
You should always seek the assistance of a lawyer when discussing resolution of a claim with a CTP insurer, a lawyer will almost always obtain for you a much greater amount of compensation than you would obtain if you proceeded on your own.
The statistics for 2010 show people who did not have a lawyer received about $11,000 in compensation whist those who did have a lawyer received about $90,000 on average.
- 13. What type of compensation can I claim?
The amount of compensation you receive and the type of compensation you can claim depends on the nature and extent of your injuries you have sustained in the accident and is governed by the Motor Vehicle Accident Compensation Act (NSW) 1999.
Broadly speaking compensation can be claimed for economic loss or non economic loss.
- Economic loss includes the following:
- a. Payment of medical expenses including hospital and rehabilitation expenses, both past and future.
- b. Reasonable and necessary attendant care and home modification expenses.
- c. Other reasonable and necessary expenses incurred as a result of your injuries.
- d. Loss of income, both past and future.
- Non economic loss is payable for the following:
- "Pain and suffering" and loss of enjoyment of life.
Payment for non economic loss is only made to those who have serious injuries who exceed a 10% whole person impairment threshold.
If you do not have a permanent impairment of more than 10% whole person impairment then you are not entitled to claim any non economic loss damages.
If you do have a permanent impairment of more than 10% then the amount of non economic loss damages you are entitled to receive for pain and suffering is determined in accordance with common law principles by comparing your injuries to that of the most extreme case. The maximum payable for a 100% of a most extreme case is currently $415,000. You would receive a proportion of that maximum having regard to the seriousness of the injuries you have sustained.
- 14. What is early rehabilitation?
If your claim is accepted by the insurer then they will engage in early rehabilitation to assist you with treatment after the motor vehicle accident. Rehabilitation aims to return the injured person to a level of function and quality of life comparable to their pre injury level. To do this they usually appoint a rehabilitation provider. A rehabilitation provider is a company appointed by the CTP insurer to provide rehabilitation services which include Occupational Therapist, Rehabilitation Counselors, Psychologist and Exercise Psychologists.
The rehabilitation provider’s role is to assist you to develop a plan and goals to assist in your recovery and return to work.
The rehabilitation provider will assist the insurer in determining what treatment is reasonable and necessary.
- 15. What compensation benefits are paid by the insurer upfront?
The only benefits that are paid upfront by the insurer are in relation to medical expenses.
Occasionally if you are seriously injured an insurer will also pay for attendant care services. Attendant care services are services that provide assistance to people with everyday tasks and activities of daily living and can include personal assistance, nursing assistance, home maintenance and domestic services.
In the majority of claims however the insurer will only pay for the cost of medical treatment up front.
Your remaining entitlements to compensation are not payable until the conclusion of the claim.
- 16. How is a claim finished?
As part of the investigation of your claim the insurer will obtain information about your medical condition from your treating doctors and/or by arranging for you to be assessed by other medical specialists appointed by the insurance company.
They will also ask a number of questions called "particulars" in relation to the injuries you have sustained, your impairments and disabilities arising from those injuries and any economic or non economic loss you are claiming. This information will help the insurer to make a reasonable offer of settlement to finalise your claim. These particulars should be answered by your lawyer on your behalf.
The insurer will, once your medical condition stabilises, then make an offer of settlement.
If you receive an offer of settlement you need to immediately seek advice from your Lawyer who specialises in motor vehicle claims. You should not try and negotiate a resolution with the insurer yourself. A Lawyer will almost always obtain for you significantly more compensation than you can on your own.
If you accept an offer of settlement from the insurer then your claim is finalised. If your claim is finalised you are not entitled to ever return and claim any further compensation. It is a full and final settlement.
If you are unable to negotiate a resolution of your claim with the insurer then you will need assistance from a lawyer to resolve your dispute through the dispute resolution process know as CARS run by the Motor Accidents Authority and/or District Court of NSW.
- 17. What is contributory negligence?
The basic principle of Contributory negligence is that where the injury sustained to a person is a result partly from that persons own fault and partly the fault of another driver the amount of compensation payable is reduced having regard to the injured persons share in the responsibility for causing the accident.
For example if the injured person failed to keep a proper look out which may have avoided the collision then the amount of compensation could be reduced by say 25%.
- 18. Should I use a lawyer to represent me?
Yes.
No matter the nature and extent of your injuries you should always get a lawyer to represent you for a claim under the Motor Accident Compensation Act.
If you deal directly with the insurer yourself, you are likely to get significantly less compensation than if you appoint a lawyer to represent you.
The statistics are telling; in 2010 the average settlement amount for persons injured in a car accident who were not legally represented was about $11,000 in the same period the average settlement amount of those who were legally represented was about $90,000 on average.
If you appoint a lawyer between 50-70% of the legal costs are also payable by the CTP Insurer.
It makes clear financial sense to always appoint a lawyer to represent you as most of the legal costs are paid by the insurer and you will receive a much greater amount of compensation if you appoint a lawyer.
You should also only appoint a lawyer who is a Specialist in Personal Injury law as accredited by the Law Society of NSW.
- 19. How are claims resolved with the insurer?
If the insurance company denies there driver was at fault then your claim is resolved by going to court and having a judge hear and determine your claim.
If the insurer admits their driver was at fault then there are two ways to resolve the claim.
- Agree to a settlement with the insurance company; or
- If you are unable to reach a settlement agreement with the insurance company your claim will be determined through a dispute resolution process known as CARS run by the Motor Accident Authority of NSW.
- 20. What if I have a dispute with the insurer about payment of medical expenses?
If the insurer refuses to pay for medical treatment which you consider are reasonable and necessary you need to make an application to the Medical Assessment Service (MAS) run by the Motor Accidents Authority of NSW.
MAS will allocate the treatment dispute to a medical assessor to resolve the disagreement.
You are likely to be examined by a medical assessor who will review your medical records, examine you and determine whether the treatment you say is reasonable and necessary is required.
A decision by the medical assessor is binding on you and the Insurer.
Y
ou should always have the assistance of a lawyer when challenging an insurers decision to not pay for treatment as this decision may have a significant impact on the whole of the claim and affect how much compensation you will ultimately receive.
- 21. What is non-economic loss?
Non-Economic loss is payment of a lump sum amount of compensation for pain and suffering and loss of enjoyment of life.
Payment of a lump sum amount is only made to those who have sustained serious injuries in a motor vehicle accident.
You must be assessed by an independent medical assessor as having greater than 10% whole person impairment to receive any compensation for non-economic loss.
You firstly try to agree with the CTP insurer that you exceed the 10% whole person impairment threshold. If you are unable to agree with the insurer, an application is made to the Motor Accident Authority who appoints an independent medical assessor who will review your medical records and examine you to determine of your percentage whole person impairment.
If you are assessed as having a permanent impairment greater than 10% then you are entitled to claim non-economic loss. If you assessment is 10% or less than you are not entitled to any compensation for non-economic loss.
The maximum payment for 100% of the most extreme case of non-economic loss is currently $445,000. You, however, only receive a proportion of that amount having regard to the seriousness of your injuries compared to the seriousness of a most extreme case. Usually most awards of non-economic loss are between $100,000 and 150,000.
- 22. How is the whole person impairment calculated?
The whole person impairment assessment is calculated by medical assessors who determine the level of whole person permanent impairment based on the following:
- Guidelines as to how permanent impairments are made which are published by the Motor Accidents Authority of NSW
- Examine your medical records
- Conduct a physical medical examination
Based on the guidelines, your medical records and the physical examination the medical assessor determines the level of whole person permanent impairment.
- 23. What economic loss can I receive?
Economic loss is compensation for loss as a result of losing money due to an inability to work or money you might have to spend on medical expenses.
You are entitled to the following types of economic loss:
- Payment of medical expenses including hospital and rehabilitation expenses. This includes payment of expenses you have incurred in the past as well as what you are likely to incur in the future.
- Payment of reasonable and necessary attendant care and home modification expenses should you require assistance with daily activities of living or domestic assistance.
- Loss of income in the past or future due to an inability to work due to your injuries
- 24. How are disputes with an insurer resolved?
If you have a dispute with a motor vehicle insurer then you can request a review through the insurer's own internal dispute resolution procedure. In our experience however this rarely resolves the dispute.
Usually you need to make an application to the Motor Accidents Authority of NSW to resolve the dispute.
The Motor Accidents Authority has set up two (2) services to deal with disputes:
- Medical disputes are determined by the Medical Assessment Service (MAS).
- Other disputes are determined by the Claims Assessment & Resolution Service (CARS).
1. MAS
The Medical Assessment Service (MAS) assesses medical disputes about:
- Whether treatment is reasonable and necessary
- Whether treatment is related to the accident
- Whether your injuries exceed the 10% whole person impairment threshold
The determination of a MAS doctor's assessment is usually final and binding on all parties with only a limited right of appeal.
2. CARS
If you cannot reach an agreement with the insurer about procedural matters or the amount of compensation you are entitled to receive for your claim then the matter can be resolved through the Claims Assessment & Resolution Service (CARS). CARS can decide disputes including:
- Whether a late claim can be made.
- Whether an insurer can reject a claim form for being incomplete.
- Whether the insurer can reject a claim for failing to report the accident to the police.
- The amount of compensation you are entitled to receive as a result of your injuries. This is known as a General Assessment.
If you are unable to agree with the insurer and you need to file a General Assessment you will need the assistance of your Lawyer. You will need a Lawyer to assist you in obtaining the necessary evidence to determine the full extent of economic and non economic loss you are entitled to receive.
A determination by CARS is binding on the insurer however an injured person can elect to have the matter re-heard by the District Court of NSW.
- 25. What is the CARS process?
If you cannot reach an agreement with the insurer about procedural matters or the amount of compensation you are entitled to receive for your claim then the matter can be resolved through the Claims Assessment & Resolution Service (CARS) of the Motor Accidents Authority of NSW.
CARS can decide disputes including:
- Whether a late claim can be made.
- Whether an insurer can reject a claim form for being incomplete.
- Whether the insurer can reject a claim for failing to report the accident to the police.
- The amount of compensation you are entitled to receive as a result of your injuries. This is known as a General Assessment.
If you are unable to agree with the insurer and you need to file a General Assessment you will need the assistance of your Lawyer. You will need a Lawyer to assist you in obtaining the necessary evidence to determine the full extent of compensation you are entitled to receive.
A determination by CARS is binding on the insurer however an injured person can elect to have the matter re-heard by the District Court of NSW.
- 26. When can I commence court proceedings?
Certain types of claims are unable to be determined by CARS. Those claims can proceed to the District Court of NSW. This includes the following types of claims:
- Where liability has been denied by the insurer
- Where there are complex legal or other issues involved
In this case a claim can be commenced immediately in the District court of NSW and will be determined by a Judge.
Otherwise all claims must first be determined by CARS and only then if dissatisfied can an injured person elect to commence a claim in Court.
- 27. What if I don’t know the registration number of the car which caused the accident?
If you are unable to identify the registration number of the vehicle which caused the accident or if the vehicle was not registered you can make a claim against the Nominal Defendant.
You must have tried everything possible to find out the registration number of the vehicle including speaking the police, talking to witnesses or by putting an advertisement in the newspaper, or flyers in local letter boxes. You must do what you can to find out if anyone is able to identify and provide you with the registration number of the vehicle.
If you have been unable to identify the vehicle which caused the accident then you can lodge a claim form with the Nominal Defendant who will pay compensation under the Motor Accidents Act.
- 28. What is the Life Time Care & Support Scheme?
The Lifetime Care & Support Authority of NSW is responsible for administering the Lifetime Care & Support Scheme (“the Scheme”)
The Scheme provides lifelong treatment, rehabilitation and care for people who had sustained catastrophic injuries including spinal cord injury, moderate to severe brain injury, multiple amputations, serious burns or blindness as a result of a motor vehicle accident.
The Lifetime Care & Support Scheme will pay for all medical treatment required for the remainder of a person’s life. If you become a member of the Scheme you can no longer obtain compensation for future medical expenses or care as a lump sum amount at the conclusion of your claim.
You need to apply to the Lifetime Care & Support Scheme to obtain approval to fund all treatment, rehabilitation and care needs.
- 29. How are legal costs paid in motor vehicle claims?
Most lawyers will act on your behalf on the basis of a No Win No Fee Agreement also called a Conditional Costs agreement.
This means that the lawyer will only be paid legal costs if you are successful in obtaining compensation. If you are not successful the lawyer will not charge you any legal costs. They may still charge disbursements for the cost of medical reports.
If you are successful in your claim then a large part of the legal costs are payable by the CTP insurer in accordance with the Motor Accidents Compensation Regulation NSW 2005.
The CTP insurer pays legal costs based on how far the claim progresses and how much compensation is agreed or awarded to you. This amount is usually 50 -70% of the total legal costs payable by you to your lawyer.
Your lawyer is not allowed by the Legal Profession Act to charge an amount or percentage based on what you receive in compensation; this is called Contingence fees and is banned in NSW.
The legal costs and disbursements are payable to your lawyer at the conclusion of your claim.
The amount of legal costs and disbursements payable will be determined by the Conditional Costs Agreement you have signed with your lawyer and is payable from the compensation you receive. You should always make sure you clearly understand how you lawyer will charge legal costs before you sign the agreement.
If you are unsuccessful in a claim you may be ordered to pay the CTP insurer legal costs. The likelihood of this occurring is very low and only applies to claims which have been declined and need to go to Court. Any such risk will be discussed with you by your lawyer before proceeding.
