Do I have a Claim?

Whether you’re a driver, ride a bike, or like to get out for a walk, you could find yourself involved in a motor vehicle accident. Even minor accidents can cause serious, ongoing physical problems down the track. In order to make a claim for compensation, it’s important to make sure you keep records of everything related to your accident, such as the other driver’s registration details, reports from police, doctors, ambulance staff, or hospitals, and the details of any witnesses.

You may be involved in a hit and run accident; in these cases it may not be possible to identify the driver of the other vehicle. Under the South Australian legislation, this is not a problem as a claim can be made even if the driver at fault is not identified.

One of the most common questions we are asked is, “what can I claim?” Depending on the severity of your injuries you may be able to claim:

  1. Medical expenses;
  2. Past loss of income (capped at 80% of your actual loss);
  3. Lump sum payment for pain and suffering;
  4. Reimbursement or payments for voluntary services;
  5. Future loss of income; and
  6. Loss of consortium payments.

As of July 1 2013, CTP (Compulsory Third Party) rules were changed to introduce the Injury Scale Values (ISV). This new system uses points from 1 to 100 to measure the severity of your injuries based on medical evidence. You will need to reach certain minimum scores on the ISV before you can make a claim for loss of earnings, pain and suffering, or personal care.

This new law has been designed to minimise claims and reduce compensation payments. However, if you suffer multiple injuries, the overall impact you injuries will be taken into account when assessing your ISV score and may increase how much you can receive.

What To Do After An Accident

The moments after a motor vehicle accident are stressful. However, immediately after an accident, at the scene you should:

  • Call the police and/or ambulance if someone is injured or if the accident was serious.
  • Swap personal details with the other parties including name, address, telephone number, drivers licence number, registration number and insurance details.
  • Record the accident circumstances including location, date and time and take photographs if possible.
  • Ask witnesses for contact details including name, address and telephone number.

After the accident:

  • If you are injured, you should seek medical attention as soon as possible.
  • Return to the scene so you can take photographs, noting the location, names of streets and other important details which may have contributed to the accident.
  • Take photographs of your damaged bike and equipment from various angles.
  • Do not immediately repair your bike or destroyed and damaged equipment (such as your helmet or clothing) until your matter has been resolved. If you are injured, these items may be required as evidence in your case.
  • Keep receipts of all relevant expenses including medical bills and invoices for repairs.
  • If another party is at fault, obtain quotes for replacement or repair of your bike or equipment. You may forward these to the other party and/or their insurer for reimbursement. If you are unsuccessful in getting reimbursed then you may need to seek legal advice.
  • Seek legal advice regarding your rights to compensation. You should do this at an early stage to prevent your claim being rejected.
What happens if the driver of the car I was in was drunk?

The High Court of Australia recently delivered its decision in the case of Alex Allen v Danielle Louise Chadwick.

In this case the Plaintiff suffered serious injuries in a car accident. The argument centred on whether the Plaintiff was entitled to compensation after not wearing a seat belt and getting into the car with a driver she knew had been drinking.

Section 47(2)(3) of the Civil Liability Act, 1936 (SA) effectively provides that if the injured person should have been aware that the driver was intoxicated, then the injured person is contributorily negligent and their damages are reduced by 50%. The exception to the rule occurs when the injured person can establish that they could not reasonably be expected to have avoided the risk of injury.

Further, section 49 of the Civil Liability Act, 1936 (SA) provides that there is a statutory reduction of 25% of the assessed damages when the injured person was not, at the time of the accident, wearing a seat belt.

In this case the High Court found that even though the Plaintiff knew that the driver had been drinking heavily, the presumption could be rebutted with respect to the 50% reduction for travelling with a drunk driver.

The Court found that the Plaintiff was a pregnant young woman, on a dark and unfamiliar country road of an uncertain distance from the township of Port Victoria in the early hours of the morning. This could lead reasonably to an evaluation of real risk of harm either from strangers or difficulty of a walk in unfamiliar territory. Further, the Court found that the substantial risk of riding with the Defendant in the car, although he was intoxicated, could reasonably be regarded as lessened to a relatively acceptable level by reason of the absence of other vehicular traffic on the road at the time.

Essentially, the risk of being driven by the Defendant was a reasonably lesser risk than walking an unknown and dark road in the hopes of finding the nearest town in these particular circumstances.

With regards to wearing a seat belt, the High Court opined that a 25% reduction was appropriate. Although the Plaintiff re-entered the vehicle and the Defendant began driving erratically and at speed, the Court found that she had the opportunity to put her seat belt on.

This was a significant victory for the Plaintiff as the Defendant, through its insurer, had argued that her damages should be reduced by 62.5% (50% for getting into the car with an intoxicated driver and then a further 25% for not wearing a seat belt). This decision means that her damages are only reduced by 25%.

Therefore the lesson here is that although there are presumptions in favour of automatic reductions for travelling in a vehicle driven by a person who you know, or ought to have known, is intoxicated and/or failing to wear a seat belt, these presumptions can, with the right facts, be overcome.

If you have been injured in a car accident contact us on 08 8396 3143 to arrange a no obligation free first interview.