Motor vehicle accident claims

Anyone injured in a motor vehicle accident caused by the fault of another driver can claim: drivers, passengers, motorcyclists, cyclists and pedestrians. The claim is made against the compulsory third party insurer attached to the registration of the vehicle at fault, not against the driver personally.

Where the vehicle cannot be identified or was not registered, a nominal insurer stands in its place, so an unidentified driver does not mean there is no claim. Passengers can claim even where the driver of their own vehicle was at fault.

If you were partly at fault, the claim still runs, though the compensation may be reduced to reflect your share.

Every claim starts with notifying the insurer that a claim is being made. Which insurer depends on the type of claim: the compulsory third party insurer of the vehicle at fault, the workers compensation insurer of your employer, or the public liability insurer of the person or business responsible for the place where you were hurt.

The paperwork differs between states, and strict timeframes set by the regulator apply to lodgement, so the first job is to get the right form to the right insurer with the medical certificate that supports it. We lodge the claim for you and deal with the insurer from that point on.

Once the claim is accepted, the focus turns to your recovery. Attending treatment and following medical advice matters for two reasons: it gives you the best chance of recovering, and it builds the record of your injury and its effect on your life that everything later in the claim rests on.

The CTP insurer is not required to replace your income while the claim runs. Insurers sometimes agree to fund rehabilitation early where it will help recovery, and we ask for that where it is available, but the insurer does not have an obligation to fund treatment until liability for the accident is accepted. Some schemes pay statutory benefits for treatment and a period of lost income from early in the claim; where that applies to you, we tell you at the outset. Keep every invoice and receipt for treatment and medication paid out of pocket, because those amounts are included when your damages are calculated.

When your condition has stabilised, a medical examination assesses the permanent effect of the injury, expressed as a percentage of whole person impairment. The examiner is independent of your treating doctors and works to a standard set of guidelines.

The percentage is not a valuation of your claim, but it opens or closes doors: it determines what lump sum entitlements are available, and in some schemes whether a claim for damages can proceed at all. We prepare you for the examination and, where the result does not reflect your condition, arrange a further opinion.

The parties may meet to try to resolve the claim prior to filing the matter in court. However, once the matter is filed in court, the parties must meet to try to resolve the claim before a full hearing. The settlement conference is where the evidence gathered so far, medical, employment and financial, is put against the insurer and a figure is negotiated.

We prepare a detailed account of your losses beforehand, so that the number on the table is built from evidence rather than from the insurer's opening position. Most claims resolve at this stage or shortly after it. Our library covers what to expect at this stage.

If the conference does not produce an acceptable offer, proceedings are filed in court. Filing does not end negotiation; many claims settle after proceedings start and before a hearing.

A full trial is the exception, reserved for claims where the insurer disputes liability or the extent of the injury and will not move. We tell you plainly, before proceedings are started, what a trial would involve, what it would cost and what we think the likely outcome would be, so that the decision to go on is yours and an informed one.