You only have one chance to obtain proper compensation for your injury and you need to get the best result the first time. You cannot come back and try again.
By reading this guide, you have separated yourself from all of those other injured claimants who do not educate themselves and make costly errors when claiming for compensation due to injuries sustained in a car accident. People often think they can proceed without a lawyer’s assistance or knowing how to make sure they are doing the right thing when it comes to 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 have 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.
We have outlined the 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 the 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 from 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:
- A police event number.
- A medical certificate from your GP outlining your injuries and your fitness for work.
- Evidence of your income if you are claiming loss of income.
- Accounts/receipts for reimbursement of medical treatment you have incurred.
Anyone who sustains an injury in a motor vehicle accident no matter who was at fault is entitled to payment of 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 as a result of 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 not entitled to both statutory benefits for weekly payments and medical expenses and at the same time entitled to receive Workers Compensation. In these circumstances, you will receive Workers Compensation rather than benefits under the Motor Accidents Act.
2.To claim for statutory benefits, the motor vehicle accident must be “verified”.
This requires that the motor accident must be reported to the NSW Police within 28 days of the motor vehicle accident occurring. This is extremely important. If the accident is not reported within 28 days, you may be prevented from claiming for statutory benefits and later a claim for 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 scene of the accident, 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 for statutory benefits, the insurer will pay weekly payments of compensation (if you are unable to work) and medical expenses for a period of six months.
Within those six months, usually around the four-month mark, the insurer will decide regarding the following: –
- Whether the motor vehicle accident was wholly or predominately your fault or the fault of another driver; and
- 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: –
- The accident was not wholly or mostly your fault; and
- That you do not have a minor injury.
A “minor injury” is any one or more of the following: –
- Soft tissue injury.
- A minor psychological or psychiatric injury.
A soft tissue injury 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 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. The majority of the time, you will need to satisfy that you have PTSD arising 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.
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 they are not reported early, this can cause problems later on in a claim. If, for example, you sustained a neck injury in a car accident and also have a little 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 which 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 first place the insurance company or court will 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 complaining; 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: –
- The insurer has accepted, or it has been determined that you have sustained a non-minor injury; and
- 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: –
- Damages for non-economic loss – this is pain and suffering and loss of enjoyment of life; and
- Damages for economic loss – this is a claim for past and future loss of income.
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.
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 loss of superannuation.
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 claim for compensation. 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: –
- A specialist in motor accident compensation law – they should be an accredited specialist in compensation law approved by the Law Society of NSW; and
- You should make sure that the person that is 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 he or she 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, then he/she wants your case to be as complicated as possible and to go on for as long as possible so he can charge you for more hours of work. On the other hand, you want your case to be simplified and finalised as quickly as possible with the best result possible. Therefore, it is better to find a lawyer who charges a lump sum amount based on stages of preparation rather than on an hourly basis.
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: –
- They specialise in personal injury law.
- The lawyer is an accredited specialist in personal injury law by the Law Society of NSW.
- They can tell you at the first consultation the chance of success of your claim and roughly how much your case is worth.
- They have outlined, in detail, the legal fees that will charge.
- Their communication is both clear and straight forward. They answer your questions, and you trust their responses.
- 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.
- 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, which will more than make up for any additional costs. An inexperienced lawyer will be charging you to learn the job and may make mistakes.
- 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.
- 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 email@example.com or contact us through our website.