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11.2 Motor vehicle accidents

30 Aug 2016 - 11:54 | Version 12 |

Contributed by ShannonCoetzee and current to 1 May 2016

This section is divided into three parts:
  • what to do after an accident
  • property damage
  • motor vehicle injuries.
The first part outlines the legal steps a driver is obliged to take, and the practical steps they should take, immediately following a motor vehicle accident. The part on property damage provides useful information for anyone who has either had their vehicle damaged or who has damaged another person's vehicle in a motor vehicle accident. And the final part, on motor vehicle injuries, outlines the grounds on which a claim for compensation for injury sustained in a motor vehicle accident can be made and the procedure for making it.

What to do after an accident

All motor vehicle accidents that result in bodily injury or damage have to be reported to the police. All drivers, if asked, must provide the following information unless they are unable to do so because as a result of injuries suffered in the accident:
  • their name and address
  • details of their licence
  • the name and address of the owner of the vehicle
  • the registration number of the vehicle.
This information must be provided to any person who has reasonable grounds for asking for it, such as a person of authority like a police officer or a person involved in the motor vehicle accident.

Where someone is injured or there is damage to the vehicles, all drivers involved in the accident must make sure that full details of the accident are given to the police. This is usually done by going to the nearest police station as soon as possible within 24 hours of the accident and completing a Motor Vehicle Crash Application form to apply for a Motor Vehicle Crash Report.

If the police attend the accident, the information can be given to the officer at the scene.

Information given to the police should include:
  • the place and nature of the accident
  • the registration numbers of all vehicles involved
  • the names and addresses of all drivers and witnesses
  • the extent of any injury or damage caused.
The driver of a vehicle involved in an accident must give assistance where necessary to any injured person, and this would include dialling 000 for an ambulance.

Calling police to the scene

The police should be called to the scene of an accident when:
  • a person has more than minor injuries
  • a driver does not stop or exchange details
  • a driver is believed to be under the influence of alcohol or drugs
  • a vehicle needs to be towed away.

Practical steps

When involved in an accident, a driver should take the following steps:
  • note down the names and addresses of any witnesses.
  • if possible, make handwritten notes of any conversation with the other person involved in the accident.
  • make a sketch plan of the scene, including distances, width of street, lane markings and any other relevant details. If possible, take photographs of the scene.
  • obtain complete details of the driver and owner of the other vehicle. Also, note the registration number of the vehicle and find out if it is insured, and if so, with which insurance company it is insured.
  • even if a driver is undecided about whether to make a claim on their insurance, it is best to report the accident to the insurance company as soon as possible. Otherwise, the insurance company may deny a claim for compensation on this basis.
  • no admissions should be made about liability for the accident as this may invalidate insurance claims.
  • before they leave the scene of an accident, drivers are generally obliged to remove any debris that fell from their vehicles. If the driver is injured in the accident and can't do this personally, the person who removes the vehicle from the scene must clear the road. Drivers should take any precautions that are necessary to prevent any other motorist colliding with the crashed vehicles.

Property damage

After a motor vehicle accident, a person who has suffered property damage due to another driver's fault generally has three possible avenues to which they may pursue to recover the costs of repair or replacement. They can:
  • claim on their insurance policy
  • if uninsured, pay the costs of repair and take no further action
  • demand payment from the other party and sue them if necessary.
In deciding what option to follow, the person who has sustained the damage should consider a range of factors, including whether they are insured and, if so, what kind of impact a claim will have on their no claim bonus. In some instances, a person may find it cheaper to pay for their own repairs than to pay the insurance excess and lose their no claim bonus (see below).

Insurance for property damage

Types of insurance

Comprehensive insurance

If a vehicle is covered by a comprehensive insurance policy, the insurance company usually handles the claim against the other driver after paying the policy holder for the cost of repairing their vehicle or after organising its own repairer to do the work. A person can decide not to claim on insurance and instead opt to handle the claim against the other driver themselves (see Making a claim without a solicitor ). In either case, the following information should be heeded.

The excess is the sum of money an insured person must pay when they claim on their insurance policy. The excess is stated in the policy and can vary from company to company. The excess payable is dependent on such factors as the age of the driver and the insured person's driving history. Many insurance companies insist on a special age excess for drivers under 25 years. A standard excess is around $300, but for drivers under the age of 25 years it may be around $600, and for those under the age of 21 years it can be in the order of $1100. A person who has made a previous claim may have their excess increased. It is best to find out the amount of the excess before making a claim. In some instances, particularly if the damage to the vehicle is minor, it may be better to pay for the repairs and not to claim on the insurance policy.

Insurance companies reward policy holders who haven't claimed on their policy by reducing the rate of annual premiums (the cost of the policy) using a no-claim bonus. A person who has made a claim on their policy will, in all likelihood, find their premium has increased the following year. It is, therefore, advisable to find out before making a claim what effect a claim will have on a no-claim bonus. Again, if the damage to the vehicle is minor, it may be better to pay for the repairs and not claim on the insurance policy.

Some companies permit customers to keep their no-claim bonuses when they are not at fault in accidents and the companies are able to recover the costs of damages from the party or parties responsible.

If a claim is made on an insurance policy and is paid out by the insurance company, it can take action against the other driver in the policy holder's name. This is known as subrogation. Subrogation enables the insured person to have their vehicle repaired with a minimum of delay. This is because the insurance company can make payment for the repairs in the knowledge that it can 'stand in the shoes' of the insured person and recover the cost of those repairs from the driver at fault. The insurance company pays the costs of the action and the policy holder may be required to give evidence.
Third party property insurance

Third party property insurance only covers damage to another person's property. Every driver should have this type of insurance because it is possible to be liable for damages, which can amount to a large sum, even when a person is only partly at fault.

Third party property insurance with fire and theft

This kind of insurance not only covers the policy holder for damage they do to another person's property, but the costs of any damage done to their own vehicle if it is stolen or in a fire.

Losing the right to claim on insurance

It is important that people read their insurance policies carefully. Most comprehensive and third party property policies have special conditions that must be met before the insurance company will accept a claim. Some common conditions that are imposed are described below.
Failing to report an accident

Most policies require the insured person to report any accident or damage as soon as possible. Even if someone does not intend to claim on their insurance, it is still advisable to notify the insurance company, making sure to indicate that the notice is not a claim.
Alcohol

Most policies stipulate that no cover will be provided if the vehicle was being driven by a person under the influence of alcohol or drugs. However, section 48 of the Traffic Act (NT) states that a conviction for such an offence does not by itself invalidate insurance cover.
Unlicensed driver

Most policies provide that the insurance company can refuse to cover a claim if the vehicle was being driven by an unlicensed driver. This includes a person to whom the owner has lent their car. An owner who agrees to lend their car to another driver should always check that the borrower has a valid and current driver's licence.
Past history of the insured person

When filling out an application for insurance (known as a proposal), it is important that all questions in the application form are answered truthfully. Questions are normally asked concerning the owner's past driving record, which the owner is obliged to answer fully and honestly. If the owner fails to tell the truth on their proposal form, the insurance company may refuse to accept a subsequent claim (see Insurance ).

Duty to cooperate

The person claiming on an insurance policy has a continuing duty to cooperate fully with the insurer, for example, by providing a statement or appearing in court. Failure to cooperate may entitle the insurer to reject the claim. If it has already paid the claim to the person claiming, the insurer may have a right to take action against the person claiming for losses it suffers as a result of their failure to cooperate.
Contributory negligence: an example

A's car and B's car collide at an intersection. A's car sustains $500 worth of damage; B's sustains $5000 worth of damage.

A sues B for $500 and B counterclaims (sues A) for $5000. Both allege the other was responsible for the accident.

B is found 80% responsible and A 20%.

A gets 80% of $500 = $400

B gets 20% of $5000 = $1000

A, therefore, owes B $600.

When uninsured

A person who is uninsured has two options when they are involved in an accident. They can demand payment from the other party and sue them if necessary, or pay for their own repairs and take no further action. In deciding which alternative to pursue, a person should compare the legal costs of and difficulties involved in suing with the costs of repairs to the car. Suing for damages can be a costly exercise. The potential cost of such action should always be weighed against the amount of damages likely to be awarded.

When the other person doesn't have any money

Before beginning legal action, it is wise to try to find out whether the other party is able to pay the cost of repairs. There is nothing to be gained by suing a person who is unable to pay. However, should a person choose to take legal action, and obtains a judgment against the defendant (or debtor) for a sum of money, the judgment debt (the amount the court has ordered the debtor to pay) is payable immediately. Where the debtor doesn't pay this amount straight away, the creditor can use various court processes to enforce the judgment and make the debtor pay (see Debts ).

Who was at fault?

It is often difficult to determine who is at fault (negligent) in an accident. Negligence is defined as a failure to act in accordance with the duty of care legally imposed on a driver as a user of the road. What the duty actually requires and whether or not it has been breached will depend upon the circumstances of each individual accident.

In many cases, it is impossible to blame one party entirely. Where blame is shared between the parties, a court can apportion (share) the damages according to the degree of each party's responsibility. Where parties share the responsibility for an accident, the term contributory negligence is used. A court decides on the degree of a party's responsibility, expressing it as a percentage. Damages are then awarded according to that percentage (see Contributory negligence: an example).

A person who is unsure about whether the other driver was at fault or the extent of each person's fault should consult a solicitor (see Legal aid ).

Steps that can be taken to avoid court action: letters of demand

Before suing, a letter of demand should be sent in an effort to resolve the issue in dispute.

When the other driver is insured

If the other party is insured, the letter of demand should be in the terms of Example 1. A copy of the letter should be kept. All letters of demand should be sent by registered mail, requesting a return receipt. A copy of the letter and the quotation should then be sent to the other party's insurance company, together with a letter in the form of the Example 2. The insurance company is required to send to the claimant written notice accepting or denying liability and giving instructions about the next steps the claimant should take. If no notice is received from the insurance company or if it refuses to accept liability, the claimant should treat the other party as though they were uninsured and send another letter of demand, as in Example 3.

When the other driver is uninsured

Where the other party is not insured, a letter of demand, as in Example 3, plus the quotation, should be sent to that party.

If the other party responds and there is no dispute, arrangements can be made for the money to be paid. If the repair quotation is disputed, the claimant should arrange another quotation, keeping the other party informed. If the other driver denies liability, the claimant should then proceed to issue a summons against them if this is considered appropriate (see Going to court ).

If the other party still does not respond, a second letter of demand, in the terms of Example 4, should be sent to them. If the other party denies liability or if the second letter of demand produces no result, the claimant should commence court proceedings (see Going to court, this section).
Example 1: Letter of demand to send if the other party is insured
[claimant's name]
[claimant's address]
[date]
Dear [other driver],
I am writing about the accident on [date] of [month] 20.. at [place of accident]
I am the owner of motor vehicle number [registration number] which was damaged as a result of a collision with a vehicle owned by you [and 'driven by ......................' if the owner was not the driver] on the above date.
I am holding you responsible for the damage to my vehicle. The damage has been assessed at $............. and a copy of the quotation is enclosed. Please forward this letter to your insurers as soon as possible. I look forward to hearing from you shortly.
Yours faithfully,

.........................................
[signature]
Example 2: Letter of demand to send the other party's insurance company
[claimant's name]
[claimant's address]
[date]
[name of insurance company]
[address of insurance company]
Dear............................,
Re: Accident on [date] of [month] 20.. at [place of accident]
I am the owner of vehicle number [registration number] which was involved in an accident with vehicle number [registration number of other vehicle] owned by your insured [name of insured person]
I enclose a copy of a letter of demand sent to him/her, together with a quotation for the damage. I will be happy to arrange for a second quotation if required. I look forward to hearing from you shortly.
Yours faithfully,

.........................................
[signature]
Example 3: First letter of demand to send if the other party is uninsured
[claimant's name]
[claimant's address]
[date]
Dear [other driver],
I am writing about the accident on [date] of [month] 20.. at [place of accident].
I am the owner of the motor vehicle number [registration number] driven by me on the above date. I am holding you responsible for the damage to my vehicle, which has been assessed at $............. A copy of the repair quotation is enclosed.
Please inform me within ten (10) working days of today's date whether you admit liability for the accident and whether you will pay, and in any case whether you regard the assessment as reasonable.
Yours faithfully,

.........................................
[signature] :
Example 4: Second letter to send if the other party is uninsured
[claimant's name]
[claimant's address]
[date]
Dear [other driver],
I am writing about the accident on [date] of [month] 20.. at [place of accident].
I refer to my letter to you dated ................ wherein I gave you until ....................... [ten working days from the first letter] to contact me regarding compensation for my losses suffered as a result of the accident referred to above.
As I have received no offer or money in satisfaction of my claim, I now inform you that unless I receive payment of my damage of $..................... within seven (7) days of today's date, I will commence court proceedings against you without further notice.
Yours faithfully,

.........................................
[signature]

Making a claim

A person who decides to sue for damages must consider the legal costs involved. It is possible for a person without legal expertise to handle all or part of a claim themselves. However, in many cases expert legal advice is required, particularly when a claim is defended. If a solicitor successfully handles a claim, some legal costs are recoverable from the defendant, with the amount recoverable dependent on the amount of the claim. If the amount claimed is under $10,000, however, the action could be taken as a small claim in the Local Court where no legal costs are payable. This is an advantage to those whose claims are eventually unsuccessful.

It is, however, relatively easy for a person to prepare their own case, only approaching a solicitor when the case is listed to be heard in court. A solicitor will be able to inform the person about the evidence they will need to provide. A person should see a solicitor as soon as the case is listed for hearing; it will be too late consulting a solicitor on the day before the hearing (see Making a claim without a solicitor below).

Against whom is a claim made?

Generally, a claim is made against the driver of the other vehicle. If the other driver was driving in the course of their employment, their employer may have to pay, but the claim will still be made against the driver. The employer will generally indemnify its employee, that is, pay any amount of damages awarded against the employee, without any need to join the employer to the court action. The fact that an employer has to pay may be of interest to a claimant if they then have, in the form of the employer, someone who can afford to pay for the damage.

In the event that a person is required to take legal action against a company, the full name, Australian company number (ACN), address and registered office of the company must be obtained. The Australian Securities and Investment Commission can, for a small fee, provide a person with this information via its website at www.asic.gov.au (see Contact points). Anyone contemplating such an action should consult a solicitor.

How much should a claim be? (assessing damage)

It is a general rule of law that any party who has suffered damage must minimise that loss. This is called the duty to mitigate damages.

Anyone claiming damages following an accident must prove that the damages were caused by the collision. It is necessary, therefore, to obtain a detailed quotation for repairs. If two quotations are obtained, the lower value should be claimed. It is not necessary to have two quotations, but it is advisable in case the other driver disputes the amount of the damages. The person who prepared the quotation may be called as a witness to substantiate the amount.

Sometimes a vehicle is so badly damaged that the repair costs exceed its market value, making it uneconomical to repair. In such a case, the owner can claim the value of the vehicle at the time of the accident. A used car dealer may also be able to determine value, as would a loss assessor. In any case, the evidence about damage should be provided by an expert. The Glass's Guide to the Retail and Wholesale Value of Cars can be and often is used to determine a car's value at the time of an accident. This guide can be accessed via www.valuemail.com.au. A small fee is payable for a valuation. It should be noted that evidence based on the Glass Guide may not be accepted in court, even in a small claim. An affidavit (a sworn document) (see Legal documents, chapter 1) from a loss assessor is a better method of providing evidence.

Expenses other than repair costs

The owner of the vehicle can claim the cost of hiring another vehicle only if the vehicle damaged in the accident was essential for earning income. The claimant must show that the hiring charges were reasonable and were for a vehicle comparable to the one damaged. In some cases, wages or profits lost may be claimed. For example, a taxi driver's net income during the period the taxi was being repaired could be claimed if no replacement vehicle could be obtained. If a loss of this nature is claimed, the defendant would be well advised to engage a solicitor.

Making a claim without a solicitor

The following section outlines how a claim for damages can be made without legal representation. However, at any stage in the proceedings, either party can engage or consult a solicitor as difficulties or questions arise.

Commencing a claim

When commencing a claim for damages arising from a motor vehicle accident, a Statement of Claim form specifically for motor vehicle accident claims needs to be completed in triplicate. These forms are available from the Local Court. To complete a Statement of Claim accurately, the following information is required:
  • the other party's name and address (try to obtain this information at the scene of the accident)
  • a copy of the police report of the accident
  • statements by witnesses and other parties.
Statements by witnesses and other parties are available from police, but only with the written consent of the person making the statement. Once legal action is taken, these statements can be subpoenaed without the other party's consent.

Once the Statement of Claim has been lodged, one copy of it must be served on the other party. A process server can serve a Statement of Claim on a claimant's behalf. A party can also serve their own Statement of Claim. A list of process servers is available at the Local Court. The process server needs to prove the document has been served by completing a Declaration of Service, which the claimant can then file at court. Individuals are served personally; companies can be served by post to their registered office.

If a Statement of Claim is to be served outside the NT, it must also have an endorsement attached to it. The endorsement is a Form 1 under the Service and Execution of Process Act 1992 (Cth).

Once served, the other party (the defendant) has 28 days to file a Notice of Defence (and counterclaim) in court. A copy of the Notice of Defence must be served on the claimant at the address given on the Statement of Claim. The court then sends written advice to both parties of the date the matter is to be heard. A claimant who has been served with a Notice of Defence should seek legal advice.

If the defendant does not file a Notice of Defence within 28 days, the claimant can request the court to make a judgment in their favour. If such a judgment is made, the Local Court can provide the claimant with information about how to recover a judgment debt (see Debts, chapter 89).

Going to court

Court proceedings are quite often complicated and stressful. A person who has to go to court to prove a claim should consider hiring a solicitor to handle their case, particularly if the other party has a solicitor.
Example 5: Sample release form
'Without Prejudice'
I admit the plaintiff's entire claim against me.
I admit the plaintiff's claim to the following extent: ............................................................................................
.........................................................................................................................................................
Between ....................................................................................................... [name and address of plaintiff] and ......................................................................................................... [name and address of defendant].
The plaintiff hereby agrees to and accepts the amount of $.............paid by the defendant in full and final settlement of all claims for property damage to motor vehicle registration number .............. in respect of an accident which occurred on .................................... the ................................. day of ...................... 20... at ........................................................................................................................................................
Signed..................................................Plaintiff
...................................................Defendant

Which court is a claim made in?

An action for damages for under $100,000 must be commenced in the Local Court in Darwin or Alice Springs (see Contact points). If damages are $10,000 or less, the case can proceed as a small claim in the Local Court. No legal costs can be claimed by either side. Small claim proceedings are less formal than they are in other courts and the magistrate will help parties present and conduct their cases.

Presently, if damages are less than $100,000, the case proceeds in the Local Court. If damages are above $100,000, the case is heard in the Supreme Court. The Supreme Court has offices in Darwin and Alice Springs only.

Proceedings should be issued in either the court nearest to where the accident occurred or nearest to where the defendant lives. Aside from in Darwin and Alice Springs, offices of the Local Court are also located in Tennant Creek, Katherine and Nhulunbuy (see Contact points).

Proving negligence

In any court action for damages sustained in a motor vehicle collision, evidence is given orally by any person who was directly involved in the accident or witnessed it. The drivers of each vehicle and their passengers can give evidence about what they saw and heard. Courts tend to give more weight to the evidence of independent witnesses, such as the drivers of other vehicles or pedestrians who saw the accident. The onus of proving negligence rests with the person making the claim.

The police officer (if any) who was at the scene often makes a useful witness. A person can find out who the officer was and other relevant information by applying for a police accident report at the Darwin Police Headquarters at Berrimah Police Centre (see Contact points). There is a fee to obtain the police accident report.

Police may prosecute one of the drivers involved in an accident. Police (criminal) proceedings are separate from civil proceedings for damages, but a conviction in criminal proceedings can be used as evidence in a civil case. In a civil case the court looks at all the circumstances of the accident before deciding which party or parties are at fault and, as indicated earlier, can decide that both parties are at fault in varying degrees and award damages accordingly.

After judgment

Once a judgment has been obtained, the claimant should send a letter to the defendant, demanding payment of the judgment sum. If payment is not made, a claimant should obtain advice from a solicitor on how to enforce the judgment (see Debts, chapter 89).

Settling the claim

Parties to a motor vehicle accident can reach agreement about who is at fault and the level of damages to be paid. This is called settling. Parties can settle before beginning legal proceedings or at any time during them as long as it is before a judgment is entered. If an agreement has been reached, it is normal and advisable for the defendant or their insurance company to obtain a signed release from the claimant. This document releases the defendant from further responsibility. A defendant should not pay any money in accordance with an agreement without first obtaining a signed release. The release should be something like the sample release form shown at Example 5.

A person who has been asked to sign a release should ensure it contains a clause that prevents further action being taken for physical injury. If in any doubt whatsoever, legal advice should be obtained.

Motor vehicle injuries

The Motor Vehicle Accidents (Compensation) Act (MACA) establishes a compensation scheme for people who are injured or dependants of a person who has died as a result of a motor vehicle accident. The scheme covers most accidents occurring in the NT and, in certain circumstances, applies to accidents outside the NT involving Territory motor vehicles. The scheme is known as the Motor Accidents Compensation Scheme and is administered by Territory Insurance Office (TIO). The MACA Division of the TIO receives and processes applications made under the MACA.

Different kinds of benefits are available, depending on the injury. These may include compensation for loss of earning capacity and permanent impairment as well as medical and rehabilitation expenses.

By abolishing certain common law rights for residents of the NT, the MACA prevents a resident from being sued for the injuries or death of another person caused by a motor vehicle accident. The MACA also precludes a resident of the Territory who is injured or dies as a result of an accident that occurred in the Territory from bringing an action for common law damages.

NT residents can't sue in an NT court for damages for injuries or death caused as a result of a motor vehicle accident occurring in the NT. This restriction doesn't apply to NT residents injured in motor vehicle accidents that involve Territory motor vehicles but occur outside the NT. Under such circumstances, the NT resident must choose between taking an action under common law or applying for benefits under the MACA Scheme. Any common law action can only be taken in the State or Territory, apart from the Northern Territory, where the accident occurred. The MACA also maintains the right of a person not eligible under the scheme, such as a non-resident, to sue under the common law in a NT court, although it places a cap on the amount of damages recoverable.

Important - time limits

Strict time limits apply to all claims submitted under the MACA and potential claimants should act quickly to make a claim or lodge any appeal available under the Act.

Who may claim benefits?

The only people generally able to claim benefits under the MACA Scheme are:
  • any person injured in a motor vehicle accident that occurred in the NT
  • an NT resident injured in an accident involving a Territory motor vehicle anywhere in Australia
  • a spouse, dependent child or dependent parent of a NT resident who dies as a result of an accident in either of the above situations.
'Resident', 'accident' and 'Territory motor vehicle' have special meanings under the MACA, and a potential claimant should check carefully to see if their case falls within these definitions. A summary of the definitions is as follows.

Eligibility as a resident

Residents in accidents within the NT

A resident is a person who, at the time of the accident has either:
  • lived continuously in the NT for three months
  • entered the NT to live after receiving a written direction from or making an agreement with an employer who requires their services for at least three months
  • since arriving in the NT, entered a written employment agreement for a period of at least three months, calculated from the date they last entered the NT before starting the job.
A spouse or dependant of a person who enters the NT to live with a resident is automatically considered to be a resident even though they may have been in the NT for only a short time.

Residents in accidents outside the NT

The definition of resident is slightly different for accidents occurring outside the NT. For these types of accidents the term 'resident' has the same definition as a resident for the purposes of accidents within the NT, provided that the person entering or residing in the NT has not since lived outside the NT for a continuous period of six months or more, or where they have lived outside the NT for more than six months, they kept their primary home or job in the NT. In both scenarios, the person can't have left the NT with the intention of no longer living there.

Thus, a person who travels in their NT-registered motor vehicle with the intention of taking up residence interstate may not be covered by the MACA and, in the event of an accident, may have to rely on the common law or the laws of another State or Territory.

Restrictions on eligibility

Restrictions imposed by the MACA may prevent an eligible person from being entitled to benefits.

In Part 3 of MACA, there are various categories of restriction including alcohol or drugs, criminal conduct contributing to accident, unregistered, unlicensed and partial exclusions in section 11.

A person who is the driver of a vehicle involved in an accident can't claim benefits for loss of earning capacity or permanent impairment if:
  • they had a blood alcohol concentration exceeding 0.08% at the time of the accident or were affected by alcohol or a drug
  • they are convicted of manslaughter, a dangerous act or dangerous driving as a result of the accident or, where the accident occurs outside the NT, would have been convicted of those offences had the accident occurred in the NT
  • their driving licence had been suspended or cancelled at the time of the accident or they had never held a licence in Australia (this restriction does not apply if the person drove the motor vehicle in a bona fide emergency)
  • they were involved in a motor vehicle race or in testing a motor vehicle prior to a race at the time of the accident.
However, a person who falls into any of these categories still qualifies for medical expenses and, if they die as a result of the accident, their dependants still qualify for death benefits subject to section 20A. Entitlement to death benefits may vary depending on the conduct of the deceased at the time of accident. Other people eligible under the MACA would still be eligible for compensation if involved in an accident with such a driver. The first two restrictions only apply if the influence of alcohol or other drug or the manner of driving that attracted the conviction substantially contributed to the accident. If it did not, an eligible person may still be entitled to benefits.

An injured person and the dependants of a person who died as a result of a motor vehicle accident are not entitled to benefits when the injured or dead party was:
  • using an unregistered motor vehicle
  • using the motor vehicle in the commission of an indictable (serious) offence or to prevent or resist an arrest
  • using the motor vehicle to inflict injury or attempt to inflict injury on themselves or someone else
  • using the motor vehicle to take part in a motor sport event such as a race, competition, demonstration, trial or high speed vehicle test.
A person can't claim if they are entitled to benefits under the Return to Work Act ("RTW Act"), or the Compensation (Commonwealth Government Employees) Act (Cth) or any of their predecessors. According to the RTW Act, a person who is injured in a motor vehicle accident while travelling to or from work will, in all but very limited circumstances, be covered under the MACA and not the RTW Act.

Benefits may also be reduced for not wearing safety restraints or helmets, or if the person holds a personal policy of insurance that provides compensation to the injured person.

What kinds of accidents are covered?

The MACA Scheme only covers motor vehicle accidents. The definition of 'motor vehicle' includes any car, carriage, motorcycle, lorry, bus, tractor or other vehicle that runs on petrol, steam, gas, oil or electricity or means other than human or animal power. A trailer attached to a vehicle is included in the definition, but a vehicle used on a railway is not, MACA s.4.

Accidents in the NT

If an accident occurred in the Northern Territory, a resident (as defined under the MACA) can claim benefits irrespective of whether the vehicle is registered. Benefits can only be claimed for accidents in places other than public streets, for example on private property, if the vehicle involved is a NT motor vehicle registered in the NT or validly registered. See section 9(7).

Accidents outside the NT

It is important to note that a resident can only claim a benefit from an accident occurring outside the NT when an injury or death was caused by a Territory motor vehicle. 'Territory motor vehicle' simply means a motor vehicle registered under NT law, including motor vehicles registered under the Interstate Road Transport Act 1985 (Cth).

What benefits are available?

The benefits available to people eligible under the scheme are:
  • compensation for loss of earning capacity
  • medical and rehabilitation expenses, including alterations to home/motor vehicle, and special appliances
  • compensation for permanent impairment
  • death benefits and funeral expenses plus attendant care, hospital care and emergency travel.

Loss of capacity

The benefit for loss of earning capacity is granted if an injury from an accident reduces an applicant's ability to earn income from physical or mental exertion.

The amount of benefit is the difference between what the injured applicant is capable of earning and 85% of current average earnings of wage earners in the NT. Thus, where a claimant is not capable of earning anything because of the accident, the amount of compensation will be 85% of average earnings of wage earners in the NT. Where a person can earn $100 per week, the amount of compensation will be 85% of AWE less that $100. Only net figures are used in this calculation.

It is important to realise that benefits are only paid where a person's capacity to earn income is reduced. This doesn't mean that benefits will be paid to a person who can't, as a result of injury, earn income from their normal occupation, but who is fit enough to earn income in another occupation. It is also important to note that compensation is for loss of the capacity to earn, not actual loss of income. Thus a person who is unemployed at the time of the accident may still be entitled to compensation for a reduction in earning capacity on the basis of an actual but unrealised capacity prior to injury.

The benefit cuts out once a person is receiving or eligible for an age pension from Centrelink.
Special provisions for young people

A person who is under the age of 15 years is not entitled to any payment for loss of earning capacity. Between the ages of 15 and 20 years a reduced amount is paid, depending on age and whether the claimant marries, enters a de facto relationship or has a dependent child. A 15 year old is paid 40% of the adult entitlement; a 16 year old 55%; a 17 year old 60%; an 18 year old 70%; a 19 year old 80%; and a 20 year old 90%. When a person marries, enters a de facto relationship or assumes financial responsibility for a child, the full adult benefit becomes payable. See section 14 - fulltime student.
Commutation of benefit

A benefit being paid can be paid in a once-and-for-all lump sum. This is called a commutation. The TIO is not obliged to pay any further benefit for loss of earning capacity arising from that particular injury.

Medical and rehabilitation expenses

All reasonable expenses incurred by or on behalf of an injured person for medical treatment and rehabilitation are compensated under the MACA. There is no limit to the amount that may be paid by the TIO and each case is assessed on its merits.

An eligible person can also claim for what the MACA calls 'attendant care expenses'. This benefit applies to people who have suffered permanent disability and require personal care other than normal household or nursing care. Injuries occuring on or after 1 July 2014 are uncapped and assessed against what is regarded as necessary and reasonable for individual claimants based on their circustance.

An eligible person can also request payment for special treatment or for treatment by a particular medical practitioner, including treatment at a private hospital. An applicant should lodge their claim with the TIO before treatment begins. All claims will be assessed in line with the provisions of the MACA.

An eligible person is entitled to claim compensation for the cost of appliances, such as artificial limbs, and reasonable costs for making necessary alterations to their home, car and other items for personal use. There is no limit to the number and size of payments that can be made, provided that they are necessary for rehabilitation.

Permanent disability

A person who suffers a permanent disability as a result of a motor vehicle accident can be compensated for that loss provided that the impairment is at least 5% of their whole person.

A claimant is paid a percentage of a figure prescribed by the MACA, being 208 times the AWE for the NT.

Where the permanent impairment is 15% of the whole person or greater, the amount of compensation is the relevant percentage multiplied by 208 times the AWE. Thus, for example, a person with an 80% impairment will receive 80% of 208 x AWE. Where the impairment is below 15%, the amount is paid in accordance with a prescribed table. A permanent impairment between 5% and 9% attracts a payment of 2% of 208 x AWE; an impairment of 10% attracts 3% of 208 x AWE, and so on.

Death benefits

A dependent spouse, children or parents can claim compensation and funeral expenses when a qualifying person has died as a result of a motor vehicle accident.

A qualifying person is a person who is killed in an accident occurring in the NT or, where the accident takes place outside the NT, a resident who dies as a result of injuries received in or from a Territory motor vehicle.

The conduct of the deceased at the time of accident may affect the level of compensation that a spouse or dependants may be entitled to.

The term spouse is defined to include both legally married and de facto spouses and a person married to the deceased in accordance with Aboriginal custom.

A dependent child is one who is either under 16 years of age or aged between 16 and 21 years and a full-time student or who is physically or intellectually disabled. A child cannot be married and must have been dependent on the deceased for financial support. The definition includes children who are not the natural offspring, of the deceased but who were supported and cared for as a child of the deceased.

A dependent parent is one who was primarily dependent on the deceased for financial support at the time of the death. A dependent parent is only eligible for benefits if there is no surviving spouse or children.

To meet the expense of the qualifying person's funeral, a funeral benefit equal to the cost of the funeral or 10% of the annual equivalent of AWE, whichever is the lesser amount, is paid.

Lump sum compensation is available in an amount equal to 156 times the AWE. Average weekly earnings are calculated each year. The lump sum entitlement for the 2002 year is $127,545.60. This amount is paid irrespective of a person's station in life; that is how much they earned. This amount is paid out to a surviving spouse (as defined in the MACA) and/or dependent children, divided according to a prescribed table [s.22]. In rare cases, where there is no surviving spouse or dependent children, surviving dependent parents may have an entitlement under section 24. A dependent parent can be an adoptive parent, a stepfather, stepmother, grandfather, grandmother or a parent of the spouse of the person who, at the time of the accident, is primarily dependent on the person for financial support.

Where the deceased leaves only a spouse, the whole lump sum goes to the spouse. Where the deceased leaves only a child or children, the lump sum is paid to that child or children, in equal amounts where there is more than one. Where the deceased leaves a spouse and one child, 10% goes to the child and the balance to the spouse. Where a deceased leaves a spouse and not more than five dependent children, each child receives 5% of the lump sum and the spouse receives the balance. Where there is a spouse and more than five children, 25% of the lump sum is divided between the children and the balance is paid to the spouse. These percentages may be varied by the TIO Board if an application is made. The board would consider the relative needs and degrees of dependency of the spouse and each child.

Where the deceased leaves no spouse or children, but has a dependent parent or parents, the lump sum is paid to the parent or parents in equal shares.

In addition to the lump sum benefit, each dependent child is entitled to a weekly payment of 10% of AWE until they turn 16 years of age or, in the case of a full-time student or handicapped child, until they turn 21 years of age.
Death of Aboriginal spouse

The MACA provides for situations in which an Aboriginal man, according to custom or tribal law, has more than one wife.

Where a deceased male leaves more than one dependent wife, the amount normally paid to a spouse is divided between the surviving wives. When an Aboriginal man with more than one wife claims a benefit for the death of one of them, a proportion of the normal benefit will be payable according to the number of wives he has.

How to apply

An application for benefits should be made in writing to the MACA Division of TIO as soon as practicable after the accident (see Contact points). Forms are available from TIO branches or online at www.tiofi.com.au. TIO's officers often visit hospitals to assist claimants.

The TIO Board can refuse to consider a claim if it is made more than six months after an accident. It has to refuse to consider a claim made more than three years after an accident. Where the injured person is a child, however, the board is not bound to refuse a claim unless it is made more than three years after the date of the injured person's 18th birthday.

A delegate of the board, called the designated person, initially considers the application and either makes a decision or refers the application to the board.

Time limits

The designated person has 30 days to make a decision or to refer an application to the board. An applicant should be informed in writing of either development. The designated person has the power to request information reasonably required to assess the claim. This request can be made to the claimant or to any person who has the information. Where such a request is made, the 30-day time period ceases to run until the information is provided.

If the designated person fails to make a decision or refer the matter to the board within the 30 days allowed, an applicant has 28 days to lodge a written notice requesting the designated person to refer the matter to the board. The board then has 60 days to determine the claim.

If the designated person doesn't refer the application to the board within a reasonable time, the applicant needs to lodge a formal complaint or consider a writ of mandamus (a Supreme Court order that forces a public official to carry out a duty) (see Complaints against government, chapter 15).

Reviews

Review by the board

An applicant who is dissatisfied with a decision made by a designated person can request a review by the TIO Board. The request has to be made within 28 days of receiving written notice of the designated person's decision.

The board has 60 days to consider an application and can either affirm the decision of the designated person or make a new one. The applicant should be notified of any development in writing.
Review by the Motor Accidents (Compensation) Tribunal

If the board has failed to make a decision within the 60 days allowed, or the applicant is not happy with its decision, they can lodge an appeal with the Motor Accidents (Compensation) Tribunal. An appeal must be lodged at the Registry of the NT Supreme Court in Alice Springs or Darwin within 28 days of being notified of the board's decision or, where the board has failed to make a decision within the 60 days allowed, within 28 days of the expiry of the 60-day period. It is extremely important that the 28-day time limit is observed because the tribunal has no power or discretion to extend it.

The tribunal makes its own decision based on the evidence presented in each case. There is no appeal from the tribunal. In some limited cases, an application might be made to the Supreme Court seeking a review of the tribunal's decision. An applicant who remains dissatisfied after the tribunal's decision should seek legal advice.
Important

The time limits prescribed by the MACA should always be followed, otherwise an applicant will lose the right to make a claim it or have a decision reviewed and changed. The board can only extend time limits in cases of special hardship [MACA s.33].

Varying benefits

If their circumstances change, a person can apply to the board to have their benefits varied. An application should be made as quickly as possible. The board may refuse to consider an application made more than six months after a change in circumstances.

If a claimant refuses to comply with a request by the board to undergo medical examinations or rehabilitation programs, their benefits may be discontinued.

Recovering benefits

In some instances, the TIO can recover money it has paid as benefits for injury or death.

People who can be sued by the TIO for this money include:
  • the manufacturer or repairer of a NT motor vehicle involved in an accident anywhere in Australia
  • the owner or driver of a motor vehicle that is not a Territory motor vehicle at the time of the accident
  • the driver of a motor vehicle that is not a Territory motor vehicle and who was at fault for an accident occurring in the NT
  • a person driving under the influence of alcohol or other drugs at the time of an accident and who was, as a result, convicted of an offence such as drink driving
  • a person who intentionally or culpably causes death or injury. An act or omission, such as a failure to stop at a STOP sign, is culpable when it is more serious than normal negligence and would generally result in criminal prosecution. Put in context, a driver would be viewed as culpable and as intentionally causing harm if they saw a person standing on a roadway and accelerated towards them, running them down. To take another example, a driver who is seriously breaching the road rules by driving while intoxicated or at an excessive speed and subsequently runs down a child on a roadway would, in all likelihood, be held culpable even though the action was not intentional. On the other hand, the same injury caused by a driver who merely loses concentration while driving within the rules of the road is unlikely to be held culpable. The categories are difficult to define precisely and depend on the particular circumstances of each case.
The TIO can't recover money from people who may have been at fault or negligent in an accident if they do not fit one of the specific categories listed.

Other options available to non-residents

A claim of this sort may be made even when the driver of the other motor vehicle involved in the accident has died or can't be identified or found.

In addition, the Act allows a non-resident to sue the TIO for damages for injury arising out of a motor vehicle accident in the NT where the motor vehicle can't be identified after due inquiry. This provides non-residents with an avenue for compensation when they have suffered injuries as a result of a 'hit and run' accident in the NT. Notice of intention to make this sort of claim must be given to the TIO within three months of the accident.

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