Publications

Motor Accident Injury Claims: Applying for Common Law damages (Lump Sum Compensation)

Published on August 19, 2022 by and Kasturi PK Kunalan

Under the NSW Compulsory Third Party Scheme, people who are not at fault and are more seriously injured in a motor accident in NSW on or after 1 December 2017 may have eligibility to make a claim for common law damages and receive lump sum compensation [1].

A claim for damages can be made if:

• The claimant has more than a minor injury,
• They were not at fault; and,
• Their injury was the fault of another driver or vehicle owner [2]. In a ‘no-fault motor accident’ damages may also be payable (i.e., the motor accident was not caused by anyone’s fault or where the claimant was only partially at fault) [3].

You generally have 3 years to make a claim for damages [4] although there can be exceptions in specific circumstances such as if the claim is in respect of the death of a person or if the claim is in relation to an injury assessed at greater than 10% permanent impairment [5]

Anyone making a claim for common law damages needs to complete the application at https://www.sira.nsw.gov.au/__data/assets/pdf_file/0004/320755/Application-for-Damages-under-Common-Law.pdf [6].

Permanent Impairment & Economic Loss

Permanent impairment refers to an injury which impairs the physical and/or mental ability of a worker existing after the date of maximum medical improvement and is well stabilised and unlikely to change substantially in the next year.

There are various rights and entitlements injured workers may be entitled to for permanent impairment injuries in accordance with the Motor Accidents Injuries Act 2017 (NSW).

Where there is 10% or less permanent impairment, an injured person can only claim for economic loss [7].

In these circumstances:

• You may make a claim for damages from 20 months after the date of the motor accident [8].
• If your claim is made in respect to the death of a person or in relation to an injury assessed at greater than 10% permanent impairment, you may make a claim before the expiration of the 20 months [9].
• If you are in receipt of income support benefits, unless a claim has been made the benefits will stop after 2 years [10].
• If you are in receipt of income support benefits and the claim has been made, income support benefits may also continue for up to 3 years allowing time for your injury to finalise [11].

Economic loss is inclusive of past or future loss of earnings and superannuation or earning capacity as a consequence of a person’s injuries [12].

Non-economic loss is inclusive of pain and suffering, impact on quality of life, impact on life expectancy and disfigurement [13].

Where there is greater than 10% permanent impairment as a result of an injury, a claim for both economic loss and non-economic loss can be made [14].

In these circumstances:

• A claim for damages can be made any time for up to 3 years after the date of the motor accident [15].
• If you are in receipt of income support benefits, unless a claim has been made the benefits will stop after 2 years [16].
• If you are in receipt of income support benefits and the claim has been made, income support benefits may continue for up to 5 years allowing time for the injury to finalise [17].

What happens after a claim is lodged?

The insurer will undertake an investigation of your claim including reviewing the police report and other evidence such as medical reports that you have provided. You may be asked to see other medical specialists for further assessment as part of this process. Within 3 months following lodgement of a claim, the insurer is required to advise you if it admits liability [18]. The insurer may also request you supply further information to support the claim [19]. If the insurer admits liability for a damages claim, then your lawyer will negotiate the settlement amount with the insurer [20].

If you are receiving income support benefits, the benefits will stop upon finalisation of the damages claim [21]. Reasonable and necessary treatment and care will continue to be covered for your lifetime [22].

If an agreement is not reached on the amount between yourself and the insurer, the insurer will advise you on the next steps [23]. This includes how you can get the decision reviewed and where to go for further help.

Note: All timeframes referred to above are from the accident date except if stated otherwise [24].

 

This article was written by Katherine Driscoll, Senior Associate, Alex Voysey, Law Clerk and Kasturi PK Kunalan, Law Clerk