Motor Vehicle Accidents

Introduction

Annually in NSW almost thirty thousand people are injured in motor vehicle accidents. Many of these people are seriously injured in a way that alters their lifestyle and their ability to work for extended periods, if not their entire lives. While no amount of money can reverse the consequences of a serious motor vehicle accident, if you have been injured the legal system may allow you to successfully claim for compensation. The process can be confusing and dealing with the legal system can be difficult when also coping with the consequences of a serious accident. As a starting point, this article provides an introduction to the issues involved in making a claim for compensation under the Motor Vehicles Act 1999 .

After the accident

Motor vehicle accidents leave those involved shocked for some time afterwards. When injury results, it may be impossible for some time to take any action regarding the accident or even piece together the events themselves. It is important, however, that the following be carried out after the accident:

• Seek medical treatment. Seeking treatment for your injuries must be your first priority. Do not assume that your injuries are not serious; seek medical assessment. You have a duty to mitigate your own losses so do not defer treatment, assessment or rehabilitation. Courts will not award damages for injuries made worse through not pursuing treatment.

• Report the accident. It is essential that you report the accident to the Police. This written report must be made within 28 days of the incident. However, if your injuries make it impossible for this report to be made within this period then it should be delivered 28 days after you could be reasonably expected to make the report. If the report is not made within this period, a full explanation for non-compliance must be made in court.

Identifying the cause of the accident, and the other parties involved, is also important. However, investigations carried out by Police and your lawyer will assist in working the circumstances of the accident.

Getting Legal Advice

Gaining the services of an accredited personal injury lawyer is vital. It is also important that you gain this advice within 6 months of the accident, as the court will dismiss claims made after this period without a satisfactory explanation. Similarly, unless your injuries are of a certain magnitude, a claim cannot be made after 12 months.

Your lawyer will be instrumental in preparing the claim by determining how your claim can be made and what you may claim for. Damages can be awarded by the court for: injuries (based on an assessor’s report), on-going medical costs (such as home-care arrangements), psychiatric injuries, and economic loss (such as loss of earnings).

Your lawyer will also deal with the difficult issue of who is liable. This may seem obvious but often the other vehicle involved in the accident is uninsured or has otherwise evaded detection. In this case you will still be able to lodge a claim against the ‘nominal defendant’. This is a system by where major insurance companies, on a rotating basis, offer themselves as a defendant where there is none.

If your accident involved the negligence of a public body (such as a local council or a public road authority) then your lawyer can make a claim with this authority as a defendant.

How the Court will decide your claim

The Court needs to be satisfied that the defendant acted in a negligent manner that lead to your injuries. This will be determined by whether the defendant: owed you a duty of care, and if in breaching it injured you.

Generally, motorists owe a duty to others to drive in a competent manner. Disobeying traffic rules, or driving aggressively are a breach of that duty. Often this breach will be obvious and the insurer will admit liability.

However, often claims will involve a contested hearing regarding whether you were also at fault in the accident. If you did contribute to the severity of the accident (such as a failure to wear a seatbelt), this may mean you will lose a certain percentage of your compensation.

Public Bodies

When public authorities are the defendants in a claim the case will become more complex. Public authorities may be the negligent party when your accident occurs due to the poor conditions of a public road. Until recently, courts were loath to find public authorities liable in the case of poorly maintained roads. However, since cases such as Brodie v Singleton Shire Council [2001] and Ghantous v Hawkesbury [2001] the ‘highway rule’ that gave a general immunity for simple ‘non-feasance’ (not keeping roads perfectly maintained) has been largely abolished. Formerly, public authorities could only be found to be liable where they had acted in a way that had made a road a potential hazard area for the public (‘mis-feasance’).

Cases such as Ghantous have shown that the liability imposed on public bodies will now largely be that of a normal occupier of a premises (such as a shopping centre owner). All occupiers have a duty to exercise reasonable care to avoid foreseeable injury to all entrants onto their premises. In determining what is ‘reasonable’, courts will wish to review how the public authority maintains the roads under its care, whether this is adequate and whether their budgetary constraints allow them to do this any better.

Conclusion

Rather than being a self-interested act, claiming for compensation, especially when against a public authority, can help improve safety standards and help to avert serious accidents in the future. Gerard Malouf & Partners have a commitment to both seeking justice for the individual as well as helping to raise the standards of safety in the community. If you believe you have a case for compensation contact a personal injury law specialist today.

Read information about our motor vehicle accident lawyer services.

Take The Next Step

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful.