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When to sue in a car accident

Recovering after you’ve been injured in a car accident can be challenging. The good news, though, is that injured victims are eligible for accident compensation with the use of the Compulsory Third Party (CTP) scheme. This article will uncover:

  • Who qualifies for compensation and how to establish a car accident claim.
  • When to sue in a car accident.
  • How much compensation you can expect based on the level of injury.


Establishing the date of discoverability

After car accidents, there are many things to do, such as checking the other passengers involved and calling the police for help. This includes, but is not limited to:

  • Drivers.
  • Passengers.
  • Pedestrians.
  • Cyclists.
  • Motorcyclists. 
  • Children.

If you fall under this list you may be able to make a personal injury compensation claim under CTP. You can always call your insurer to walk you through the processes to take after an accident. 

Claim eligibility

While CTP is available in most states throughout Australia, granting eligibility does vary. Anyone injured in an accident is eligible for compensation as long as they are not at fault for the accident itself in New South Wales. States like Victoria and Queensland, however, are “no-fault” states where road accident compensation claims will be accepted no matter who caused the accident — these claims will typically run a lot faster because there is no discovery period to determine who is at fault.

The nuance for filing a claim lies in the date of discoverability. The date of discoverability is when you realised you had an injury. You will have up to three years following the date of discoverability to make a claim. 

You cannot make a personal injury claim if you are not injured in some way. This could mean physical injury, pain and suffering, or loss of quality of life. 

Legal actions you must take after an accident

Immediately after an accident, there are several steps you should take if you are able:

  1. Help anyone who is injured. It is legally required that the driver in a car crash stop and assist anyone involved in the crash. 
  2. Report the accident to the police. There are only certain incidences in which you must report the accident, such as: 
    1. A person was killed or injured.
    2. The driver did not give their information to the other drivers.
    3. A vehicle was towed away after the accident.
  3. Exchange insurance and contact details. This is a legal obligation after an accident. If a driver does not give you their information, make a note of the make and model of the car as well as their registration plates so you can make a report with the police. 
  4. Take photos of the scene and the damage. Not only will this help you remember the accident more accurately when you report it to CTP and the police, but pictures will also help support your claim. You’ll also want to note the location of the accident with pictures of the intersection, street signs, etc. 
  5. Get witness testimony. Gathering evidence will be your ticket to winning compensation. If any witnesses were present for the accident ask if they can help back up your story with details of the scene. 
  6. Contact your insurance company. This step may not be necessary for every car accident if you decide not to file a claim, however, some insurers state that you must contact them in the case of an accident no matter how minor. Check your Product Disclosure Statement (PDS) for details. If you don’t contact your insurer, this could negatively affect future claims.

The most important thing to remember at the scene of an accident is to never admit fault. Many events occur during an accident and you may not remember all of the details correctly. Discovering fault is the responsibility of the insurer.

Once you’ve taken the necessary steps to establish your claim and you have realised you are injured as a result of another driver’s negligence on the road, you should file a lawsuit against the at-fault driver. 

When to sue in a car accident

The laws will vary based on each state. Your lawyer will know exactly when you should file a claim. The important thing to remember is to file a claim as soon as possible, even if you think you might feel injuries but they haven’t become apparent yet. 

States like Victoria allow up to one year to file after the accident or up to three years if your injuries had not manifested until later. In Victoria, you will also need to submit an accident claims to the Transport Accident Commission (TAC) before filing with your lawyer. In Western Australia, you have three years after the date of the accident. Across the country, these laws and forms will vary. 

The date of discoverability is when you realised you were injured and will determine when you should file a claim. It includes three necessary stipulations:

  1. An injury or wrongful death occurred. This may seem obvious but after a motor vehicle accident, it may take a while to realise you are injured. Further, while you may be physically okay, mentally, your life may have significantly changed for the worse, which may not be discovered immediately. 
  2. Your injury was caused by the defendant. A driver that rear-ended you may be an obvious, and easy, case to win. However, if you were not immediately injured from the accident it may be hard to determine where your injured state came from. This is a great time to speak with a medical professional and a car accident lawyer to help rule out certain situations and narrow down a time frame where you may have been injured. 
  3. The injury was serious enough to justify suing. Even if your doctors think that you will recover quickly from an accident injury, as soon as you realise you have incurred an injury, you should seek legal advice. A judge could still rule that you did not act soon enough if you waited based on advice from doctors. The sooner you begin the claim process, the more likely you will not have to deal with medical bills on your own or face statutes of limitations. 


CTP is put in place to help individuals who were injured or the families of a loved one who died after an accident. Sometimes, however, they will not award the right amount of compensation or the defendant will try to claim that the plaintiff was actually at fault. In this case, you should reach out to a car accident lawyer right away to initiate legal action for your car insurance claim. 

Average settlement for a minor vs. non-minor injury

Based on the severity of the injury you could be eligible for different levels of compensation. The amount of car accident compensation is classified into two categories: minor or non-minor injury. Minor injuries are things like whiplash, a sore back or muscle injuries. Non-minor injuries include more serious physical pain like fractures or organ damage. The latter could also include pain and suffering compensation if your life has changed significantly for the worse as a result of the injury. 

Compensation also depends on the extent of your suffering after the accident. A minor injury compensation includes income support and medical expenses coverage for up to six months. Non-minor injury covers the same losses for up to 24 months if you make a claim and a lump sum payout for past and future lost income. 

The average settlement for a minor car accident in NSW, for instance, is usually less than $43,100, which is paid out to cover the expenses (not as a lump sum). In Queensland, a minor injury could payout to as much as $62,400 or a maximum of $2,115,100 for critical injuries. However, if your condition worsens over time, you could refile your claim to cover more expenses. 

Pain and suffering claims after an accident are usually filed under non-minor injury categorisation, which will cover you for much longer. If you can prove pain and suffering through lost income and quality of life, these claims are paid in lump sums and can be substantial — sometimes equaling out to hundreds of thousands of dollars. These claims are judged on a partial scale, where your compensation dollar amount will be based on the level of severity of your injury. 

You should file a car accident lawsuit if CTP or the insurers are not covering the costs adequately. Working with Gerard Malouf & Partners can help you reach the level of compensation you deserve. We are specialists in car accident injury lawsuits and can help you manage the details of personal injury and insurance claims. Contact us for no-obligation legal advice about your claim.

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Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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