F.A.Q. Your Personal Injury Questions AnsweredOn this page your clients will find answers to frequently asked questions. We have tried to provide a detailed explanation of Motor Vehicle Accident related information for the purposes of education only. This should not be be relied upon for the purposes of legal advice. We strongly suggest that you speak to one of our Lawyers to discuss your rights.
- The accident has to be reported to Police withing 28 days of the accident. The Police will have to provide Police Event Number, which has to be provided to the relevant CTP Insurer. If Police did not attend the accident scene , you can call Police Assistance Line on 131 444 to report the accident to Police and to obtain Police Event Number.
- Personal Injury Claim Form has to be lodged within 6 months limitation period. If the claim form was lodged outside 6 months limitation period, the Insurer will required to provide full and satisfactory explanation of delay.
- Court Proceedings have to be commenced within 3 years after the date of the accident.
Pain and Suffering.
Past and Future Medical Treatment Expenses.
Past Economic Loss.
Future Economic Loss.
Past Domestic Care.
Future Domestic Care.
If a person sustained psychiatric injury this impairment can also be assessed. this impairment has to be assessed separately from the impairment resulting from a physical injury. It is important to remember that when determining whether the degree of permanent impairment exceeds 10 %, the impairment for physical injury cannot be combined with the impairment for a psychiatric injury. In other words, a person has to reach a degree of personal impairment greater than 10% based either on evaluation of physical or psychological impairment.
A person is entitled to claim for their past expenses, such as treatment received, medication purchased, reasonable transport expenses to travel to and from treatment providers and so on. All these expenses must be documented.If attending a medical provider, for whom you pay, please ensure that you keep the receipt. If you do not pay, please ensure that you provide the writer with the name and address of the provider so that we may ascertain the amount outstanding prior to the settlement or hearing.
With regard to medication expenses, it may be of assistance if you attend the same chemist on each occasion that you have a script filled or buy medication so that a print-out can be obtained prior to hearing indicating the frequency of prescriptions and the amount.
Again, with precise documentation as to past expenses, it is possible with the assistance of medical reports indicating the need for future medication, to project this forward.
This is the amount of money lost from the date of the accident to the date of trial due to your inability to attend employment. In order to assess the past wage loss, we will write to your employer at the time of the accident and any subsequent employer to obtain details of your absences and the like together with comparable employee records.
It is essential when attempting to prove past wage loss, that we provide the insurer with copies of your taxation returns from 5 years prior to the date of the accident until the date of trial. In this regard, we must provide the whole of the taxation return not merely your group certificates or notices of assessment.
Should you not be employed at the time of the accident, it may still be possible to claim for past wage loss. When your medical condition permits you to apply for work, you should make such applications keeping a note of the following:
- the name and address where you apply;
- the name of the person to whom you spoke;
- the response given.
If possible, please obtain a letter or card from each place where you apply and also a copy of your tax returns for the last 3 years.
If you have suffered loss in the past, it is reasonable to assume that that loss will continue in the future and we attempt to project that loss into the future based on your past loss and with the use of comparable earnings.
In this regard, it may be necessary to engage the services of specialised accountants and litigation support services to calculate that loss in conjunction with the writer. We would point out that should you be entitled to a future loss of wages, the past loss is not merely projected forward on a weekly basis but rather tables are used to project this amount forward taking into account the vicissitudes of life. This amount then tends to be less than by just projecting forward.
As an alternative, there may be a general diminution in your earning capacity, i.e in the future it may become more difficult for you to perform the same work procedures and a loss may be claimed on that basis.
If you are unable to partially or totally care for your home, yourself or family due to your injuries and disabilities, you may be entitled to a claim for the services provided by other persons. It is essential that you keep careful notes of the following:
- the name of the person assisting;
- the number of hours each day that the assistance is provided;
- the nature of the duties performed by the person assisting;
- the cost of the assistance.
You might care to keep these details in a diary mentioned above.
Please ensure if possible, and applicable the person that provides the service, invoices you at a Commercial Rate if applicable, generally $30.00 per hour. This will greatly assist your damages claim.
The costs associated with future care can be calculated at the rate of $35.00 – $45.00 per hour based on your needs for the future. You will be entitled to claim future Domestic Care only if we can prove that you required not less than 6 hours per week of a care in the past. A guideline in calculating the number of hours that you will require in the future will be based on the past requirements and also will be based on medical evidence to support the tasks that you cannot complete on an ongoing basis.
To demonstrate economic loss, the client has to provide supporting documents showing their income before and after the accident, usually insurers require bank statements for the last 6 months. Also, the client has to demonstrate that due to their economic loss, they experience financial hardship. The client has to provide supporting documents, such as: bills (water, electricity bills), mortgage payments, tax invoices.
In case the insurer, denies to provide an advanced payments, the client can lodge a special application to the Claims Assessment Resolution Service fro an independent Assessor to determine the dispute.
To be able to claim treatment expenses two requirements have to be satisfied. First, the liability in the matter has to be wholly or in part be admitted by the insurer. Second, the claimant has to provide all tax invoices for the treatment they want the insurer to reimburse. It is important to note that the insurer has to reimburse claimants reasonable travel expenses to attend rehabilitation provider, a medical examination arranged by the insurer or a medical assessment of MAS (Medical Assessment Service).
The insurer has to proceed with the reimbursement within 20 days of receipt of the tax invoices. In case the insurer denies to reimburse claimants treatment expenses, is has to be advised to the client in writing outlining the reasons of denial. For example, the insurer has to advise the reasons why the treatment is considered unreasonable and unnecessary, not properly verified or not related the injuries sustained in the accident.
If the insurer denies to reimburse the client for their treatment expenses, it is possible to seek an assistance from MAS (Medical Assessment Service) to resolute the dispute.
When the parties reached an agreement as to the terms of the settlement, the claim is not formally settled until the terms agreed upon are expressed in writing and the document is signed by the claimant and the insurer. Usually insurance require to sign Deed of Agreement and, therefore, there is no formal agreement until the Deed is signed by both parties.
In case some or the whole treatment received by the client was paid by Medicare it is entitled to recover any money which were spent on medical expenses from the settlement compensation. Medicare will require to the client to complete Claims History Statement where the client will have to tick off the type of treatment they received in relation to the injuries sustained in the accident.
Once Medicare receive the completed form it will issue a Notice of Charge which advises the amount that was spent by Medicare and that will be recovered from the settlement amount.
If the claim is settled and a current Notice of Charge has not been previously obtained, the insurer will forward Medicare 10percent of the settlement amount. Once Claims History Statement will be completed by the client and send to Medicare, Medicare will deduct the amount that was spent of treatment. Medicare will transfer the difference between 10% and the amount deducted directly to the client.
If the claimant was receiving Centrelink benefits since the accident, Centrelink is entitled to recover the money provided to the claimant from the Settlement amount as well.
One the money have been cleared they will occur on trust account of the firm. The law firm will deduct all legal fees disbursements made in this matter. In case a barrister has been involved in the matter, his fees will be paid from the settlement money as well. After all legal fees and disbursements have been paid, the law firm will either provide the client with a trust account cheque for the balance of the settlement money minus legal fees or will transfer the money directly to their client’s bank account.
The period between settlement and the receipt of the settlement money by the client can take from six to eight week.
Generally, the monetary assessment of claims by CARS is binding upon the insurer. However, a claimant has the right to reject the CARS monetary assessment of the claim within 28 days once a decision is made. The claimant can commence proceedings in the District Court of NSW if he or she is dissatisfied with the monetary award made by CARS following full assessment of the claim. There are however cost penalties in the event that the Court does not ultimately award damages exceeding the amount of damages assessed by CARS.
When a settlement of the claim is reached by way of direct negotiations with the insurer or otherwise in accordance with the Certificate of Assessment from CARS, a scale of party/party costs applies and the insurer will be obliged to pay a significant portion of the costs and disbursements in accordance with the Scale amount. Of course, in such circumstances the client will be liable to pay the balance of unpaid solicitor/client costs and disbursements from the settlement monies.
1. Motor Accidents Compulsory third party (CTP) insurance
2. Workers Compensation Insurance
3. Home Building Compensation
SIRA provides assistance in resolving medical and compensation disputes between the claimant and the insurer. The service of SIRA is free of charge, however, it is better to use its services only when an agreement between the claimant and the insurer cannot be reached.
SIRA resolves the following Medical Disputes:
• Treatment Approval
• Permanent Impairment
• Further Medical Assessment
• Review of a Medical Assessment
SIRA resolves the following Compensation Disputes
• Late lodgement of Personal Injury Claim
• Hardship Payments
• The amount of Compensation to be paid by the insurer
• Exempting claims from assessment on certain circumstance.
Treatment Approval – In case the insurer refuses to approve payments for some future treatment or denies to reimburse some medical expenses in relation to the past treatment, the claimant can lodge a special form with MAS disputing the decision of the insurer. The insurer does not have to pay for the treatment that was not reasonable and necessary or which does not relates to an injury sustained in the motor vehicle accident. Therefore, to prove that the treatment was reasonable and necessary or that it does relate to the injury, the claimant has to provide together with the form all medical evidence supporting the claim. The insurer will be required to serve a reply to the form within a certain time frame. After all the relevant information provided, MAS will make a decision whether the treatment was reasonable and necessary or the treatment related to the injury.
Permanent Impairment – as it was discussed in “10 Percent whole body personal impairment” – impairment is an alteration to a person’s health status, which is mean some deviation from a normal condition in a body part or organ system and its functioning. To be entitled to a lump sum for ‘Pain and Suffering” a person has to reach a degree of personal impairment greater than 10% based either on evaluation of physical or psychological impairment. Usually when person’s injuries are significant enough, lawyers and insurers organise for a person to me medically assessed by various doctors who conduct a Medico-Legal examination and, based on this examination, prepare Reports where with a percentage of whole body personal impairment. In case there is a disagreement between us and the insurer as to the degree of the whole body personal impairment, we will lodge a special form with MAS asking to resolve the dispute. After examining the documents presented and deciding whether the dispute is ready for assessment MAS will organise various medical assessments with independent medical assessors. Based on the report of these assessors MAS will make a decision whether the body impairment exceeds 10 percent. The findings of MAS is binding on the insurer, however, the claimant is able to lodge additional form seeking the review in case the findings of MAS are not satisfactory.
Further Medical Assessment
In case the injuries or the conditions of the claimants change or if there is additional relevant information about injuries and this new information can have a material effect on the outcome of previous assessment, a claimant can lodge an additional form providing further medical information.
Review of a Medical Assessment
In case the claimant can show that the decision of the Medical Assessor was wrong, a claimant has to lodge a Review Application within30 working days of receiving the certificate. If case the Application is accepted, the Review Panel will review the documents provided and either issue a new certificate or support the initial decision.
Once the claimant was late with lodging Personal Injury claim form or wit reporting the accident to the police, a full and satisfactory explanation has to be provided to the insurer for non-compliance with the limitation periods. In case the insurer does not accept the explanation of the delay, the claimant can lodge CARS Form 5A together with a Statement of issues in dispute and the explanation for delay. SIRA will review all the information provided by the both parties and make a decision whether the claim has to be rejected for non-compliance or whether it has to be accepted.
• The Amount of Compensation to be paid
In case it is not possible to resolve the case by way of negotiation with the insurer the current legislation provides confirm that this claim must be assessed by the Claims Assessment Resolution Service (CARS).
The monetary assessment of the claim by CARS is binding upon the insurer. However, the client has the right to reject the CARS monetary assessment of the claim within 28 days once a decision is made. The claimant can commence proceedings in the District Court of NSW if the claimant is dissatisfied with the monetary award made by CARS following full assessment of the claim. There are however cost penalties in the event that the Court does not ultimately award damages exceeding the amount of damages assessed by CARS.
Once your health stabilized which means further treatment will not improve your condition and the condition can improve only with the passage of time, at that point of time you can’t be medically assessed to determine whether you have any percentage of whole personal impairment.
To determine your impairment, a doctor will conduct a number of tests. For example, if you have a problem with your leg or shoulder, the doctor will perform some tests to determine the range of movement and extension.
Based on the results of the tests conducted, physical or mental examination as well as on examination of the medical evidence (clinical notes, Medical Reports, imaging reports and so on) the doctor will determine the degree of your impairment.
Each body part has its own disability rating. The doctor will combine these ratings of different body parts to determine an overall percentage of your whole personal impairment.
The rating of whole personal impairment is reflected in form of a percentage from 0% to 100% depending on the level of disability and the reduction on future earning capacity.
Assessment of permanent impairment involves examination of the claimant as well as the relevant medical history. The assessor has to determine:
- whether the condition has reached Maximum Medical Improvement (MMI). In other words, the assessor has to determine whether person’s condition is stabilised and will not improve with or without treatment in the near future.
- whether the claimant’s injury/condition has resulted in an impairment
- whether the resultant impairment is permanent
- the degree of permanent impairment that results from the injury
- the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.
In determining the percentage of whole personal impairment, assessors must apply Guidelines and AMA 5, which specify the method that assessors can use to determine the degree of Whole Personal Impairment. The Guidelines also provide the tables, graphs which have to be used to determine the degree of permanent impairment. Most of the tables require the assessor to consider the impact of the injury on activities of daily living in order to determine the percentage of whole personal impairment.
To determine psychiatric impairment a doctor will focuses on six areas of function which are:
1 Self Care and Personal Hygiene (Activities of Daily Living)
The classes are divided based on the ability of person to live independently. The ability to live independently varies to from normal, to total inability to live independently where assistance with basic functions is required
2 Social and Recreational Activities (Activities of Daily Living)
This impairment varies from going out regularly to going out occasionally or rarely to inability to leave a place of residence with tolerating a company of family members to total inability where one cannot tolerate living with anybody and are uncomfortable when visited by close friends even.
3 Travel (Activities of Daily Living)
Varies from ability to travel independently to inability to travel away without supervision and to the requirement to be supervised even at home
4 Social functioning (relationships)
Varies from no difficulty forming relationship, to inability to form or sustain long relationship, to total inability to function within society, where a person lives away from populated areas.
Varies from normal to ability to undertake basic retraining course, to inability to read more than newspaper article or to follow complex instructions, to inability to read more than a few lines or to follow simple instructions, to the requirement of constant supervision and assistance
Ability to work full time to ability to work up to 20 hours where duties require comparable skill and intellect, to ability to work less than 20 hours with less skills required, to ability to work one or two days at a time, to total inability to work.
These areas represent Psychiatric Impairment Rating Scale and are rated using class descriptions, which hare range from 1 to 5, and reflecting severity of the impairment.
The impairment has to be due to a recognised mental disorder which was caused or aggravated by the accident. For instance, travel restrictions due to poor vision are not assessed as a mental disorder.
There are two types of claims that can be lodged if you have been involved in a motor vehicle accident:
- Accident Notification Claim (ANF)
You will need to lodge ANF if:
If you require an immediate entitlement of up to $5,000.00 for your treatment expenses and lost earnings regardless of who was at fault.
- Personal Injury Claim Form
To be entitled to a sum which exceeds $5,000.00 the injured person has to lodge Personal Injury Claim Form. To be eligible to lodge Personal Injury claim form the injured person has to be not at fault of the accident, or at least to be only partially liable
There are a few steps that have to be followed in lodging the claim form:
- The accident has to be report to the police wining 28 days since the date of the accident. You will have to obtain Police Event Number from the police.
- Attend your treatment provider who has to complete page 11 of the claim, named Medical Certificate.
- The claim form has to be lodged within 6 months since the date of the accident
The claim form is lodged with the CTP insurer of the at fault driver. Therefore, it is important to make a note or photo of the registration number of the vehicle caused the accident. It is also helpful to make photos of the accident scene as this information can help the insurer to make a decision on liability, in other words to make a decision who was at fault of the accident.
If you injured by a vehicle that was not insured at the time of the accident or the registration number of the vehicle at fault is unidentified (in case the vehicle didn’t stop after the accident, for example) it is still possible to lodge Personal Injury claim form. The same cannot be applied to Accident Notification Form.
Due to these situations, the Nominal Defendant fund has been established in NSW and all insurers are required to be part of this fund. Therefore, if the registration number of the vehicle that caused that accident is unidentified or if the vehicle was uninsured, the injured person can lodge a claim against the Nominal Defendant.
This means that an injured person can complete the same personal injury claim form and send it to the State Insurance Regulatory Authority (SIRA), the Nominal Defendant. SIRA will allocate the claim to one of the insurance companies for management under the Nominal Defendant Scheme.
In case the claim has been made against an unidentified vehicle, you must try to find the registration number of the vehicle that caused the accident. These actions include, but not limited to: reporting the accident to the police, talking to the witnesses of the accident, putting advertisements in local newspapers, asking witnesses to contact you. Therefore, the insurer will likely require you to provide the details of actions taken to locate the registration number of the vehicle.
Blameless motor accident is a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.
Blameless accidents may include:
- accidents caused by a driver suffering a sudden illness, such as a heart attack or stroke
- accidents caused by an unexplained mechanical or vehicle failure, such as brake failure
- accidents caused by an unavoidable collision with an animal on the road.
There are some restrictions that may apply to drivers that were inured in motor accidents. In some cases drivers will be unable tolodge personal injury claim if they were injured in a single vehicle accident or if they were driving the vehicle that caused the accident. For example, they were the driver that suffered the heart attack or they were the driver of the vehicle that failed resulting in the accident.
If the at fault driver completes this Form, it must be sent to the CTP Insurer of the vehicle he/she were driving at the time of the accident.
To be able to Lodge ANF the person has to:
• Identify the registration number of the vehicle that caused the accident
• Report the accident to the police if case they did not attend the accident scene and obtain a Police event number
• Get the doctor to complete the medical certificate
To be able to lodge ANF it is important to:
• Identify the registration number of the vehicle that caused the accident
• Report the accident to the police within 28 days and obtain a police event number
• Send completed form to the relevant CTP insurer within 28 days of the accident
• Visit a treatment provider and get the Medical Certificate (page 6 of the Form) completed
In case the injured person is unable to identify the registration number of the vehicle that caused the accident, he/she cannot lodge ANF form. The person can complete Personal Injury claim only, which has to be lodged within 6 months of the accident.
In case you were partially at fault for your injuries, you still can lodge the claim form and access its benefits, however they will be reduced accordingly to the percentage of your contribution to the accident. When you are partially at fault, this is called Contributory negligence and it includes, but not limited to:
- Not wearing seat-belt
- Not wearing a helmet (if you were riding a motorcycle or a bicycle)
- Crossing a road otherwise than within a marked pedestrian crossing
- Driving under influence of alcohol or drugs
In case you have contributed to your injuries, the claim still will be handled the same way as if the liability was accepted. However, before settling the matter with alleged contributory negligence it is important to negotiate a percentage of the contributory negligence. Sometimes it is necessary to obtain a report from a crash investigator.
Once the percentage of the contributory negligence has been agreed on, the settlement amount will be reduced accordingly in order to reflect your contribution to the accident.
Duty of care is a legal obligation to avoid causing harm. This duty comes into existence when harm is ‘reasonably foreseeable’ if care is not taken. As well as foreseeability, there has to be a sufficient relationship of closeness between two people. For example, all drivers on the road owe a duty of care to pedestrians and to other drivers. this means they have to drive as a reasonable person would in order to avoid foreseeable injuries to others.
A breach of duty of care can only occur when one person has a duty of care toward another person and failed to take precautions against the risk. As it was already mentioned, the risk has to be foreseeable. it means that the person knew or ought to know of the risk. For example, a driver who drives over the speed limit, knows that he or she can loose control of the vehicle or to fail to stop when it is required.