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Motor Vehicle Compensation Claims – What You Need to Know

In this guide, we have outlined the 6 most common ways that you can sabotage you own motor vehicle compensation claims.

Updated August 2021

This guide has set out what you need to know to ensure the success of your motor vehicle accident third party claim.

Having an injury due to a car accident and losing the ability to earn your regular income is both stressful and frightening. You need to make sure that you understand your legal rights, as you cannot rely on the information the third-party insurer will provide you. You need to educate yourself to secure your family’s financial security if you cannot return to the work you did before the accident.

You only get one chance, and you must get it right; your future depends on it. The fact that you are taking the time to read this information shows that you are serious about your claim. You are now on the right path to making sure your claim is as successful as possible.

Introduction

By reading this guide, you have separated yourself from all those other injured claimants who do not educate themselves and make costly errors when claiming compensation due to injuries sustained in a car accident. People often think they can proceed without a lawyer’s assistance or knowing how to ensure they do the right thing when making a claim. You only have one chance to obtain proper compensation, and you must get it right.

Insurance companies and insurance investigators are experienced professional litigators and know how to defend claims. They know what to look for from the beginning and the questions to ask that will help them put holes in your claim and reduce the amount of compensation they need to pay you. You need to understand how the system works and what the insurance company will do to ensure that they have the upper hand when it comes to your claim.

Six Most Important Things You Need To Know When Making A Claim For Compensation Under The Motor Accidents Injuries Act: –

1. You need to claim statutory benefits within 28 days from the car accident date.

To claim compensation for injuries sustained in a motor vehicle accident, you need to complete an Application for Personal Injury Benefits Form.

You will find the form on the SIRA website at www.sira.nsw.gov.au.

You should complete the Application for Personal Injury Benefits Form within 28 days of the motor vehicle accident. This will ensure that the insurer commences payment of your weekly wage and medical expenses immediately. You can complete the application within three months from the date of the motor vehicle accident; however, weekly payments and medical expenses will only commence from the date you submit the form.

To make an application, you need to have the following information:

  1. A police event number.
  2. A medical certificate from your GP outlining your injuries and your fitness for work.
  3. Evidence of your income if you are claiming loss of income.
  4. Accounts/receipts for reimbursement of medical treatment you have incurred.

Anyone who sustains an injury in a motor vehicle accident, no matter who is at fault, is entitled to weekly payments and medical expenses for up to six months from the car accident date.

You can claim if you are injured as a driver, a passenger, a pedestrian, a motorbike rider, or a cyclist. Anyone injured by a motor vehicle is entitled to compensation. You can even claim if the motor vehicle is unidentified or unregistered, such as in a hit and run. These claims are against the nominal defendant.

You cannot claim if the vehicle you were driving was uninsured and the accident was mostly your fault. You also cannot claim if you have been charged with or convicted of a serious driving offence.

Also, you are not entitled to both statutory benefits for weekly payments and medical expenses and at the same time permitted to receive Workers Compensation. In these circumstances, you will receive Workers Compensation rather than benefits under the Motor Accidents Act.

2. To claim statutory benefits, the motor vehicle accident must be “verified”.

This requires that the motor accident be reported to the NSW Police within 28 days of the motor vehicle accident. This is extremely important. If the accident is not reported within 28 days, you may be prevented from claiming statutory benefits and later claiming common law benefits.

Usually, if the accident is serious enough, the police will attend the scene of the accident. You will be given a police event number. This Event Number is required to make a claim.

If the police did not attend the accident scene, you need to contact the NSW Police to report the accident and obtain an Event Number. You can report injuries in a car accident to the police by calling their assistance line on 131 444. You need to make sure you obtain an event number.

Reporting the accident to the police is a critical step in proving that the accident was genuine, and it prevents people from making exaggerated or false claims.

3. When will payment of weekly payments and medical expenses cease under the Statutory Benefits Scheme?

Once you have claimed statutory benefits, the insurer will pay weekly compensation payments (if you cannot work) and medical expenses for six months.

Within those six months, usually around the four-month mark, the insurer will decide regarding the following: –

  1. Whether the motor vehicle accident was wholly or predominately your fault or the fault of another driver; and
  2. Whether you have a “minor injury” as defined by the Motor Accidents Injuries Act.

You are only entitled to continue to receive weekly payments after 26 weeks if the insurer decides that: –

  1. The accident was not wholly or mostly your fault; and
  2. That you do not have a minor injury

A “minor injury” is any one or more of the following: –

  1. Soft tissue injury
  2. A minor psychological or psychiatric injury

A soft tissue injury is defined as: –

“an injury to the 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 tendon ligaments, menisci or cartilage.”

The Motor Accident Regulations add the following: –

“an injury to a spinal or nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the act.”

A minor psychological or psychiatric injury is defined as: –

“a psychological or psychiatric injury that is not a recognised psychiatric illness.”

The insurer will, therefore, decide if you have a minor injury or not.

Whiplash-type injuries to your neck or back are considered a soft tissue injury. However, if you have any tendon damage, ligament damage, scarring, head injury, neurological injury, or the like, this is a non-minor injury. You will need the assistance of a lawyer to determine if your injury is minor or non-minor.

Regarding a psychological injury, an adjustment disorder is not considered a recognised psychological illness. Most of the time, you will need to satisfy that you have PTSD from the motor vehicle accident to prove that your injury is non-minor.

If you disagree with the insurance companies’ decision, you should immediately contact an accredited specialist in personal injury law.

You will need to make an application to the Personal Injury Commission.

4. Make sure your general practitioner records all your injuries and problems from the motor vehicle accident.

It is critical that after any injury in a car accident, you consult your general practitioner as soon as possible and ensure that they record in your clinical records all injuries, problems, and symptoms you have, no matter how minor.

Often hospitals and doctors concentrate on the most significant injury at the time of presentation and ignore or play down any other aches and pains you may have. Minor injuries can sometimes get worse, and if your doctor does not record them, this can cause problems later in a claim. For example, you sustained a neck injury in a car accident. You also have a slight niggling injury to your shoulder, but your GP does not record the shoulder injury. The insurer will say that you never sustained an injury to your shoulder in the accident. Unless it is recorded in your general practitioner’s notes within days of the accident, this can be a problem.

You should make sure as soon as possible that your GP records in the clinical notes all injuries, niggles, aches, and pains in all areas of your body that you have from the car accident. This can be recorded in your general practitioners’ notes, physiotherapy notes, hospital records, or any medical professional you consult due to your injuries.
The insurance company or court will first look to confirm what injury you have sustained in an accident is your hospital, general practitioner, or physiotherapist records. If those records don’t record the location of the complaint of pain, this may cause problems in your claim.

People are very stoic and do not like to complain; however, in this case, you need to ensure that everything single item is noted by your general practitioner. Now is the time to make sure that everything is recorded correctly.

5. Claiming for Common Law Damages – what is this?

You have a right to make a claim for common law damages (lump sum compensation) for your injuries if: –

  1. The insurer has accepted, or it has been determined that you have sustained a non-minor injury; and
  2. The accident was not wholly or predominately your fault.

If the insurer accepts both matters in your favour, then you can claim common law damages.

This entitles you to make a claim for lump sum compensation for two types of damages: –

  1. Damages for non-economic loss – this is pain and suffering and loss of enjoyment of life; and
  2. Damages for economic loss – this is a claim for past and future loss of income.

Non-Economic Loss:

You can claim damages for non-economic loss, which covers pain and suffering and reduced quality of life, but only if you are assessed as having a whole person impairment of more than 10%.

The assessment of whole person impairment is either agreed with the insurer or determined by an independent doctor appointed by SIRA.

Economic Loss:

You can claim a lump sum amount for past and future loss of income if your injury prevents you from earning as much money as you did before the accident. This includes the loss of superannuation.

Time limit

You need to claim common law damages at the latest 20 months following the car accident and, preferably, within 24 months from the accident date.

If you do not make a common law claim for damages within that time frame, weekly payments will stop. You need the assistance of a lawyer to complete an Application for Common Law Damages form. That form is completed and submitted to the CTP insurer.

Once that form is submitted, the insurer will continue to pay weekly payments and medical expenses until your common law claim is finalised.

If you think you have a claim for common law damages, you should consult with an accredited specialist in personal injury law as soon as possible after your injury.

6. Don’t choose the wrong lawyer to represent you in your claim.

This is probably the most critical decision you can make in any compensation claim. That is, selecting the right lawyer to represent you. You have one chance to obtain proper compensation and secure financial security for you and your family. If you chose the wrong lawyer, things could go wrong.

The lawyer you chose to represent you in a motor accident compensation claim should be: –

  1. A specialist in motor accident compensation law – they should be an accredited specialist in compensation law approved by the Law Society of NSW; and
  2. You should make sure that the person handling your case on a day-to-day basis is an accredited specialist in personal injury law.

Often in the larger firms, you may see a partner initially who is an accredited specialist, but they may not actually be the lawyer handling your claim on a day-to-day basis. Your claim will be managed by a junior lawyer who is not as experienced and is essentially learning on your claim.

You want the best lawyer you can to represent you as you only have one chance to obtain proper compensation.

Your lawyer should be able to tell you very early on in your claim the chance of success, how much your case is worth, and how long it will take to resolve. Your lawyer should be able to provide you, at the very least, with an estimate of these matters at your first consultation.

You also need to be careful about how the lawyer will charge legal costs. Most lawyers charge an hourly rate for legal fees.

This, in our view, can cause a conflict of interest between you and your lawyer. If the lawyer is charging by the hour, they want your case to be as complicated as possible and to go on for as long as possible so they can charge you for more work hours. On the other hand, you want your case to be simplified and finalised as quickly as possible with the best result possible. Therefore, we strongly recommend you find a lawyer who charges a lump sum amount based on stages of preparation rather than on an hourly basis.

BONUS:

Thank you for reading this far. As outlined above, the most critical decision you can make is choosing the right lawyer to represent you in your claim. We suggest reading our guide, How to Choose the Best Compensation Lawyer for your claim.” 

You should only choose a lawyer if: –

  1. They specialise in personal injury law.
  2. The lawyer is an accredited specialist in personal injury law by the Law Society of NSW.
  3. At the first consultation, they can tell you the chance of success of your claim and roughly how much your case is worth.
  4. They have outlined, in detail, the legal fees that will charge.
  5. Their communication is both clear and straightforward. They answer your questions, and you trust their responses.
  6. Don’t choose a lawyer simply because his office is close to your home and is convenient. Usually, the best lawyers are located in the Sydney CBD.
  7. Don’t choose a lawyer based on price. An experienced lawyer will charge more than a less experienced lawyer. A more experienced lawyer may charge you more, but they will achieve a far better result and achieve the best financial outcome. An inexperienced lawyer will be charging you to learn the job and may make mistakes.
  8. Don’t just go for the first lawyer you find. All lawyers are not the same. There are good lawyers and bad lawyers. If necessary, you need to interview several lawyers before deciding whom you want to represent you.
  9. Ensure that the lawyer handling your case on a day-to-day basis is an accredited specialist in personal injury law.

If you have found this information helpful and would like to discuss your claim, please do not hesitate to contact Matthew Garling on (02) 8518 1120 or email mgarling@garlingandco.com.au or contact us through our website.

About Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by the Law Society of New South Wales. Matthew is also a member of Australian Lawyers Alliance a group of lawyers dedicated to fighting injustice from big businesses and insurers.

Matthew specialises in compensation law and has acted for thousands of injured people in work accidents, motor vehicle accidents and negligence cases. Matthew does not act for insurance companies, in fact insurance companies hate Matthew as he knows the inside secrets they use to prevent people from obtaining proper compensation. Most of Matthew’s clients are referred by other lawyers or doctors as these professionals know he is one of the best personal injury lawyers in Sydney.

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Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
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14:23 20 Sep 21
Great attitude! they return my call every time I callI'm very confident I will reach something good with garling &co
Dulce L.
08:48 23 Aug 21
Garling & Co have been exceptional. Matthew was always professional attentive clear and concise, I felt up most confidence in his management dealing with my matter always had my best interest. i... highly recommend Garling & Co Lawyersread more
Melissa H
11:53 10 Aug 21
I am grateful to have had Matthew represent me on my motor vehicle compensation claim.After meeting with two lawyers previous to deciding on Garling and co, I was left unsure and confused as to... where I stood regarding my claim. Matthew and Allison were incredibly helpful, put my mind at ease, and took the worry and stress out of an already difficult situation.Through the settlement process they would always keep me informed and made time to answer all of my questions. I am really pleased with the outcome of the settlement.Thank you to the team at Garling and Coread more
Violeta C.
07:30 05 Aug 21
My experience with Garling & Co was great. Matthew was always professional, attentive and communicated in a clear manner. I felt confident in his management of my matter & always had my best interest... in mind.I have no reservation in recommending Matthew & the Garling & Co team.read more
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