People injured in a motor vehicle accident in NSW may be able to make a CTP claim for statutory benefits, even if they are the driver at fault.
What types of accidents are covered?
Injuries occurring after 1 December 2017 to drivers, passengers, pedestrians and cyclists where the injury resulted from and happened during:
the driving of a motor vehicle, or
a collision, or action taken to avoid a collision, with the motor vehicle, or
the motor vehicle's running out of control, or
a dangerous situation caused by any of the above.
Claims cannot be made for injuries that occur gradually from a series of incidents.
What if the vehicle involved in the accident was not insured?
A claim can be made against the nominal defendant provided the vehicle is registered or meets certain other criteria, for example, the vehicle would have been capable of registration at an earlier time but had run into disrepair.
If the accident occurs on a road related area (such as car park) you cannot claim if you were trespassing.
Work injuries
Injuries in the workplace can be covered too. If the vehicle is uninsured (eg. a forklift in a warehouse) a CTP claim may be made where the accident results from your employer’s negligence.
No statutory benefits are payable in a CTP claim if you are entitled to workers compensation benefits for the injury.
What statutory benefits are payable?
1. Weekly payments
A person is entitled to receive statutory benefits under the Act for a percentage of their loss of earnings or loss of earning capacity. The amount payable varies depending on whether there is a total or partial incapacity for work, and the number of weeks after the accident.
If the accident was wholly or mostly your fault or if you were not at fault but suffered “minor” injuries, then weekly payments are only payable in the 26 week period after the accident.
If you do not make a claim for common law damages, weekly payments will cease after 2 years. Otherwise they can be paid for up to 5 years after the accident while your claim is pending.
2. Medical expenses
Compensation is payable for your reasonable and necessary medical treatment and care expenses related to the accident.
If the accident was wholly or mostly your fault or if you were not at fault but suffered “minor” injuries, then medical expenses are only payable in the 26 week period after the accident.
Common law claims
Claims for modified common law damages can be made where the injuries were caused by the fault of another driver and they are more than "minor" injuries.
Damages are only payable for economic loss (loss of wages, future earning capacity and loss of superannuation) and, if you have more than 10% whole person impairment, non-economic loss (eg. pain and suffering, loss of enjoyment of life).
After you settle a common law claim, you can continue to receive compensation for your ongoing medical expenses.
What is a "minor" injury
"Minor injury" is a legal term and has no bearing on the severity of an injury.
Minor injuries include:
"soft tissue injuries" not including injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage; and
psychological conditions that fall short of a recognised psychiatric illness, acute stress disorder and adjustment disorder
Time limits for reporting, claiming and requesting reviews
As a starting point, you should ensure the matter is reported to the police and notice of injury is given to the insurer within 28 days. If you do not, your payments will not be backdated to the time of the accident and you won't receive benefits for any period before the claim is made.
There are a number of time limits that apply to making claims and reviewing insurer decisions. You should seek legal advice as soon as possible to ensure those time limits are met.
Contact us for more information.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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