31 Jul What are my rights if I sustain injury in a motor vehicle accident?
If you are injured in a motor vehicle accident, either on or off duty, you may have valuable rights under motor accident law. If you have sustained serious injury there is a possibility of recovering significant damages.
You may also have an entitlement to bring a claim if you sustain psychological injury as a result of witnessing a motor vehicle accident where another person sustains serious injury or death.
On 1 December 2017, the Motor Accident Injuries Act 2017 came into force in New South Wales. As a result, your rights under motor accident law in New South Wales now depend on whether you sustained injury prior to or after 1 December 2017.
Police Officers are frequently on the road, performing highway patrol duties, general duties and otherwise in the course of their work. Officers should be aware that they may be entitled to recover damages under motor accident law for injuries sustained at work in motor vehicle accidents due to the negligence of others.
A ‘motor accident’ is defined as an incident or accident involving the use or operation of a vehicle that causes the death of, or injury to, a person as a result of the driving of the vehicle, a collision, or action taken to avoid a collision or a vehicle running out of control.
Will a claim for damages adversely impact my employment or career advancement?
You should also be aware that damages are claimed against the Green Slip insurer of the at-fault motor vehicle and not against the NSW Police Force or the State of New South Wales. In these circumstances a claim for damages is unlikely to adversely impact upon your employment or career advancement.
ACCIDENTS PRIOR TO 1 DECEMBER 2017
Generally, the entitlement to damages for accidents prior to 1 December 2017 only arises where injury has been sustained in a motor vehicle accident caused by the negligence of another driver.
What are the time limits for bringing a claim?
There are strict time limits for bringing claims under the Motor Accidents Compensation Act 1999. Firstly, the accident must be reported to police within 28 days. Reporting to police would include a call to the Police Assistance Line subject to obtaining a reference number to verify the call. Secondly, a claim form under is required to be lodged with the insurer of the at-fault vehicle within 6 months of the motor vehicle accident. Thirdly, proceedings should be commenced within 3 years of the date of accident, although there are some circumstances where claims can proceed to assessment outside that timeframe.
Can I still lodge a claim even though I have not lodged a claim form within 6 months?
If you sustained serious injury in a motor vehicle accident prior to 1 December 2017 and have not lodged a claim you can still do so subject to providing a full and satisfactory explanation for the delay in lodging the claim.
If you are injured in a motor vehicle accident on duty and sustain serious injury, it is important that you take steps to lodge a claim under the motor accident law as soon as possible.
Can I bring a claim for damages under motor accident law if I have workers compensation rights?
Even though you may have workers compensation rights arising out of an on-duty motor vehicle accident, there is still an entitlement to bring a claim under the motor accident legislation. Initially, these rights exist side-by-side and you can receive workers compensation payments until the motor accident claim is determined.
Receipt of an award of damages under the Motor Accidents Compensation Act 1999 will, however, operate to extinguish all workers compensation entitlements for post-88 officers. For pre-88 officers, an award of damages will extinguish the right to have ongoing treatment expenses paid by Allianz Australia Insurance Ltd.
How are damages assessed?
An award of damages under the Motor Accidents Compensation Act 1999 is a once-and-for-all lump sum, tax free payment. Depending on the available evidence, claims may be made for the following heads of damage:
(a) Non-economic loss
Non-economic loss includes pain and suffering, loss of amenity of life and loss of enjoyment of life. Damages for non-economic loss are only payable if you are assessed as having sustained a whole person impairment greater than 10%.
(b) Past and future wage loss
Wage loss is calculated in accordance with your full net wage loss and loss of superannuation benefits. Even if you return to work, it is possible to be compensated for future wage loss if you can prove an impairment of your future capacity for employment. For instance, an officer with a physical injury who returns to full time employment on restricted duties may have lost the opportunity to secure future promotion, to work overtime, to earn shift allowances or may even have an incapacity for employment on the open labour market.
This compares favourably with workers compensation benefits for officers attested after 1 April 1988. An officer who is medically discharged as a result of injury sustained in a motor vehicle accident, and who remains unfit for work, would only be entitled to receive weekly compensation under the provisions of the Workers Compensation Act at the limited statutory rate.
A pre-88 officer who is medically discharged as a result of injury sustained in a motor vehicle accident would be entitled to receive damages for loss of wages calculated in accordance with his or her full net wage loss in addition to any entitlement to an indexed superannuation pension.
(c) Past and future treatment expenses
Damages can be recovered for past treatment expenses but more significantly for future treatment expenses, such as the need for future surgery, the ongoing cost of medical review and the cost of medication.
(c) Past and future domestic, gardening and/or handyman assistance
If the injury has resulted in an impairment of your domestic, gardening and/or handyman capacity, a claim may be made for the gratuitous care provided by family members or friends if the assistance was provided for at least 6 hours per week and for at least 6 months. Even if that threshold is not met, there may be an entitlement to claim the cost of future commercially sourced domestic or gardening assistance, particularly if there is no one available to undertake those tasks for you..
ACCIDENTS AFTER 1 DECEMBER 2017
The Motor Accident Injuries Act 2017 applies to injury sustained in motor vehicle accidents on and after 1 December 2017.
It is described as a ‘hybrid’ scheme because there is an entitlement to receive statutory benefits for loss of income and payment of treatment expenses for the first 6 months after the motor vehicle accident regardless of fault. Following this initial 6-month period, there is an ongoing entitlement to receive statutory benefits, subject to certain thresholds and timeframes, if you were not substantially at-fault and if you have sustained an injury which is not defined as a ‘minor injury’. A ‘minor injury’ is defined as a soft tissue injury or a minor psychological or psychiatric injury.
If the injury is not considered a ‘minor injury’ there may be an entitlement to receive ongoing statutory payments for up to 5 years. However, statutory benefits are not payable if you have an entitlement to receive workers compensation benefits where the motor vehicle accident occurs on-duty.
Other than statutory payments there is an entitlement to recover damages where the injury is not a ‘minor’ injury.
What are the time limits for bringing a claim?
The motor vehicle accident must be reported to the police within 28 days.
The claim for statutory benefits must be made within 3 months of the date of the motor vehicle accident, but if it is not made within 28 days of the date of accident there is no entitlement to payment of weekly benefits for any period before the claim is made.
A claim for damages must be brought within 3 years of the date of the motor vehicle accident subject to a number of other requirements.
Can I still lodge a claim even though I have not lodged a claim form within 3 months?
If you sustained serious injury in a motor accident after 1 December 2017 and have not lodged a claim within 3 months, you can still do so subject to providing a full and satisfactory explanation for the delay in lodging the claim.
Can I bring a claim for damages under the motor accident law if I have workers compensation rights?
Yes, you can, although there is an anomaly in the legislation which the Minister has indicated will be removed, which currently impacts on these rights Subject to those amendments, you should consider bringing a claim for damages if you have sustained an injury which is not considered minor and if you are likely to have a permanent impairment of your earning capacity, for example, the injury results in your medical discharge or you find yourself on restricted hours or duties as a result of the injury.
How are damages assessed?
(a) Non-economic loss and past and future wage loss.
An award of damages is a once-and-for-all lump sum, tax free payment. You may be able to sustain claims for non-economic loss and past and future wage loss assessed in the same way as claims under the Motor Accidents Compensation Act, 1999 (see above).
(b) Past and Future Treatment expenses
There is no entitlement to claim damages for treatment expenses although past treatment expenses, if reasonable and necessary, will be paid by the motor accident insurer or the workers compensation insurer.
Most injured persons will be entitled to payment of reasonable and necessary treatment expenses for life.
(c) Domestic, gardening and/or handyman assistance
There is no entitlement to claim damages for domestic, gardening and/or handyman assistance. However, for serious injuries there may be an ongoing entitlement to have such assistance provided commercially by the Insurer.
Conclusion
If you think you may have an entitlement to bring a claim for injury sustained in a motor vehicle accident, particularly where you have sustained a serious physical or psychological injury, you should act promptly to obtain legal advice having regard to the strict timeframes applicable to these claims.
Susan McTegg, Executive Lawyer and accredited Personal Injury Law Specialist.