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I have been injured in a motor vehicle accident – what is a common law damages claim? Can I make one?

I have been injured in a motor vehicle accident – what is a common law damages claim? Can I make one?

Published on July 26, 2023 by Emily KatheklakisEmily Katheklakis

In NSW, if you are not at fault and are seriously injured in a motor vehicle accident, you may be eligible to make a common law damages claim and receive lump sum compensation. A common law damages claim is made under the Motor Accident Injuries Act 2017 (NSW). This article explains what you can claim and who is entitled to make such a claim.

What is a common law claim?

A common law claim involves commencing an action against a negligent party. If another person was at fault for your motor vehicle accident and you have a serious injury as a result, you may be entitled to claim damages through a common law claim. The claim is made upon the Compulsory Third Party (CTP) insurer of the person responsible for your motor vehicle accident. Common law damages can be claimed in addition to the entitlements a person has under the statutory benefits scheme for treatment and care.

Who can make a claim?

To be eligible to bring a claim for damages under common law, you must have sustained a more serious injury in the motor vehicle accident, you must not be wholly at fault or causing the motor vehicle accident, and the accident must have been caused by the fault of the owner or driver in the use or operation of a motor vehicle.

When can I make my claim?

It is important to have made your claim within three years of the date of your motor vehicle accident. If you bring a claim outside this three-year time period, you must provide a full and satisfactory explanation for the delay in bringing your claim. While you may not be prevented from bringing a claim outside the three-year time period, it is best practice to bring your claim within the three years if possible.

What can I make a claim for?

1. Your economic loss

You can make a claim for your past and future economic loss as a consequence of your loss of earning or your reduced ability to earn as a consequence of your injuries. This also includes any impact your loss of earnings has had upon your superannuation income.

Section 4.5 of the Motor Accident Injuries Act 2017 (NSW) outlines the types of economic loss damages that can be claimed and includes:

  • Damages for past and future economic loss due to loss of earnings, the deprivation or impairment of earning capacity or loss of superannuation;
  • Damages for costs relating to accommodation or travel (not being the cost of treatment and care);
  • Damages for the cost of financial management of damages that are awarded, and
  • Damages by way of reimbursement for income tax paid or payable on statutory benefits or workers compensation benefits arising from the injury that are required to be repaid on an award of damages.

    2. Non-economic loss

    Damages for non-economic loss is compensation for your pain and suffering, your loss of amenities of life, any reduced life expectancy and / or any disfigurement you might sustain as a consequence of your motor vehicle accident. A claim for non-economic loss can only be claimed if your degree of whole person impairment caused by the motor vehicle accident is more than 10 per cent. The assessment regarding your whole person impairment can only be made by an accredited doctor who will assess your injuries according to the Motor Accident Guidelines issued by the State Insurance Regulatory Authority (SIRA) once your injuries have stabilised meaning that your injuries won’t get any better or worse with or without treatment.

    It is important for you to obtain legal advice if you have been injured in a motor vehicle accident and think you might be entitled to make a claim for common law damages. Contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you have been injured in a motor vehicle accident and one of our lawyers will assist you. You can also complete our Personal Injury Claim Check here

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