Injuries arising from motor vehicle accidents and compensation claims

Contributed by ChristianFoyle and current to 27 July 2018

The Motor Vehicle (Third Party Insurance) Act 1947 (WA) creates a scheme of compulsory insurance to compensate persons injured or the dependants of people killed as a result of car accidents. In Western Australia when a vehicle is registered with the motor registration division it is covered by compulsory third party insurance which covers injuries to the driver of the car and any passengers against claims for negligence in the use of the motor vehicle (s.4).

The cost of compulsory third party insurance is part of the registration fee and the cover is renewed each time the registration is renewed.

The law provides for penalties if an uninsured vehicle is driven on a public road (s.4(3)). The Act also allows for a person injured through the negligent use of a motor vehicle to sue the insurer of a vehicle, the Insurance Commission of WA (ICWA) even though the vehicle was, at the time of the accident, being driven by a person not authorised by the owner to drive it.

Where the driver of a vehicle is dead or cannot be found, an injured party may sue the insurer of the vehicle in question (ICWA) where the vehicle has been identified (ss.7(2) and 7(3)). In such cases notice of the claim and a short statement of the grounds should be give to the insurer as soon as possible after the claimant knows that the insured person was dead or could not be found.

Where the vehicle concerned is registered and insured in another State, proceedings should be taken against the interstate insurer or driver.

A Notice of intention to claim for damages for personal injury arising out of a motor vehicle accident should be given to the ICWA as soon as possible following the accident. The driver of any vehicle involved in an accident in which anyone suffers injury must also report the matter to the ICWA. The procedure for making a claim is set out below.

Claims for personal injury

As with any claim for property damage a plaintiff (the injured person) must establish that the defendant has been negligent. The injured person will need to prove to the court:

• the defendant owed the injured person a duty to take care;
• the defendant breached that duty; and that,
• as a result of that breach of duty, the plaintiff suffered loss and damage.

Whether the defendant has been negligent will depend on all the circumstances of the accident. Drivers of motor vehicles owe a duty to take care of all fellow road users, including other drivers, and also their passengers and pedestrians. Some of the more common breaches of the duty to take care are:

• speeding;
• failing to keep a proper lookout for other traffic and road users;
• entering an intersection without regard for other traffic which may also be entering that intersection; and
• driving the vehicle with insufficient control – for example, due to intoxication by alcohol or drugs.

The fact of being injured in an accident does not automatically result in an injured party being compensated. Nor does the fact that the driver has breached a provision of the Road Traffic Act 1974 (WA), or has been convicted of a criminal offence (such as driving without due care) necessarily mean that the driver has been negligent. The fact of a breach or offence having been committed is only one of the factors which is relevant – all the surrounding factors at the time the accident occurred must be considered.

Where the injured party is a passenger, liability is usually accepted by Insurance Commission of WA except:

• where it is alleged that the passenger was aware that the driver was under the influence of alcohol or drugs; or
• that the car concerned was unroadworthy: in other words, the passenger assumed the risk of being harmed. This is known as contributory negligence; it can also serve to reduce the liability where the passenger or the driver failed to wear an available seat belt.

Claims when the accident is work-related

In certain circumstances an injured party will find that as well as having an action at common law for damages for personal injury, he or she is also entitled to workers’ compensation (he or she may, for example, have been driving in the course of his or her employment when the accident occurred). In these situations the injured party, if he or she is sufficiently seriously injured not to be able to work, will normally be paid workers’ compensation for that period by the workers’ compensation insurer.

All weekly payments of compensation, medical, hospital and associated expenses will also be paid by the workers’ compensation insurance company and will then be refunded at the end of the plaintiff’s claim for damages at common law (at which point the expenses incurred through loss of wages and medical and hospital expenses will form part of an overall award of damages in the common law action.)

Pursuant to Section 93 of the Workers Compensation and Injury Management Act 1981 the employer, usually through the workers compensation insurer, is entitled to be indemnified by the person whose negligence caused the injury to the worker (which for current purposes is a negligent Defendant driver) to the full extent of the employer’s liability to pay compensation under that Act.

In the event that the Plaintiff brings an action for damages it is important to specifically plead that the Plaintiff claims the workers compensation expenses including the gross amount paid for weekly payments of compensation to ensure that an appropriate order can be made by a court.

Defences to claims

The principle of contributory negligence which has been discussed above applies equally to claims for personal injury.

In addition, the Road Traffic Act 1974 (WA) places a duty on the driver of a vehicle to ensure that the vehicle is operating in a mechanically sound condition. Specific regulations deal with lights on the vehicle being operative, braking systems being in good order, and the tyres of the vehicle at least having a minimum amount of tread.

If it can be established that a passenger travelled in a vehicle knowing that the vehicle was in some way unsafe, then, if that passenger is injured, he or she may find that a claim for compensation may fail.

The procedure for making a claim

When claiming damages for personal injuries arising out of an accident, it is best to seek the advice and services of a lawyer to check that the claim can be made or check any offer of settlement. The following sets out the process for making a claim.

Once it has been established that the car involved in the accident is registered and insured in Western Australia, then it is important to contact the ICWA as soon as possible following the accident. Claim forms and other information about the claim processcan be obtained from the ICWA’s website

If a claim form cannot be obtained an injured person should write a letter as soon as practicable to ICWA stating when, where and how the accident happened as well as stating who was involved (see s.29).

The necessary material to allow the ICWA to process the claim will include medical reports from hospitals and doctors, details of any loss of earnings and medical and hospital expenses.

The same sort of material will be required for a matter that is to be litigated through the courts.

Time limits

There is a strict time limit of 3 years from the date of the accident for making a claim. The injured person must commence his or her court action within this time, although a claim can be settled within this period without the need to issue court proceedings.

With a claim for damages on behalf of a child, the limitation periods are different:

• Limitation periods applicable to persons under 15 when cause of action accrues - If a person is under 15 years of age when a cause of action accrues to the person, an action on that cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
• Limitation periods applicable to persons between 15 and 18 when cause of action accrues - If a person is 15, 16 or 17 years of age when a cause of action accrues to the person, an action on that cause of action cannot be commenced if the person has reached 21 years of age.

The action is usually commenced in the name of one of the parents of the child as the ‘next friend’ of that child (e.g. Bob Smith by his next friend Jane Smith).

If an action has been commenced on behalf of the child, and during the course of the action the claim for compensation is settled, that settlement is not effective until approved by a judge of the court in which the proceedings have been commenced, this is called a compromise of the action.

Where the driver is not the owner of the other vehicle, it may be possible to sue both the driver and the owner if the driver was acting as the owner’s agent, (for example a driver employed by the owner who was driving in the course of his or her employment).

It is usual to proceed separately in relation to claims for property damage and personal injuries. Claims for personal injury arising from car accidents are dealt with in the District Court which has an unlimited jurisdiction regarding personal injury. It is recommended that legal advice be obtained in relation to any proceedings in the District Court.

What can be claimed?

Restrictions have been placed on the right to claim damages for personal injuries in relation to car accidents. Limits have been placed on the maximum amounts payable for non-pecuniary loss (pain and suffering, loss of amenities and loss of enjoyment of life).

In the case of smaller claims, if the claim is for less than $21,500.00 (as at 22 July 2018) for non-pecuniary loss then no damages are awarded (this is called the non-pecuniary loss threshold) and the injured person can only claim for lost earnings and medical expenses. Other restrictions apply to the amounts claimable for home care services.

In assessing the amount of damages an injured person is entitled to claim as a result of the accident, a number of ‘heads’, or categories of damage, are recognised. These are divided generally into special damages and general damages.

Special damages

Under the heading of special damages are included all hospital, medical, ambulance and other associated expenses directly resulting from the accident, and also calculation of the loss of wages of the injured party up to the date of trial. These are called special damages because the amounts can easily be calculated.

General damages

General damages are those damages which must be assessed by the court based on the evidence of the case in question. The court will have regard to the pain and suffering, inconvenience, residual disabilities, loss of amenities of life and loss of earning capacity or other economic loss suffered by the claimant as a result of accident.

If an injured person has a permanent impairment, his or her life expectancy (age) will be taken into consideration in assessing an appropriate amount of damages for future pain and suffering.

Settlement of claims

If the injuries sustained in the accident are of a minor nature and if there is no continuing impairment as a result of the accident, it is usually advisable to attempt to settle the claim without going to court as the person making the claim risks a finding that their claim does not exceed the non-pecuniary loss threshold and legal fees will exceed any benefit. This is done by giving the ICWA the relevant information, enabling them to assess the value of the claim and to pay an agreed figure. (As discussed above, unless the claim for non-pecuniary loss exceeds $21,500.00, then the only damages that will be paid for motor vehicle injuries are for medical expenses and loss of earnings). Usually, this procedure will bring a much quicker settlement.

If court proceedings are issued, there will be some delay in having the claim heard and determined though many claims settle at an earlier stage at a pre-trial conference.

In many instances, however, the injuries of the injured party will not be capable of being assessed for some time. Accordingly these claims should not be settled hastily. Invariably once a claim has been settled, the ICWA will obtain a signed deed of release, or a consent judgement from the court where proceedings have been issued, which will preclude that injured party bringing any further action whatsoever arising out of the accident. An injured party should therefore obtain legal advicebefore settling a claim and signing a deed of release.

There may also be repayments to be made for medical or hospital expenses, or workers’ compensation payments or sickness benefits from the Department of Social Security, which may have been paid to the injured party when he or she was unable to work as a result of the injuries. All these factors must be considered and investigated before a claim is settled.

It is useful for the injured person to keep a diary detailing the dates and nature of any treatment incurred, as well as a record of any expenses relating to this treatment. Receipts should be kept and the diary should also record stages in the progress of the injured person towards recovery. Often it is difficult to remember all the stages in the recovery process, and all the expenses incurred in treatment, but this can affect the amount of damages ultimately awarded.