Claiming Compensation

Fatal Accidents Act – Rights to Claim

Under the Fatal Accidents 1934 (Tas), the following relatives of a person who died as a result of injuries received in a motor vehicle accident may, in Tasmania, be entitled to recover damages against the person responsible:

• wife
• husband
• de facto partner
• parent
• child
• sibling
• half-sibling
• stepparent
• stepchild
• grandparent and
• grandchild (ss3-5).

Legal action must be commenced within three years of the death. Any sum awarded will be for the benefit of all the deceased’s dependants and will be apportioned as the court directs. However, the legal proceedings may only be commenced in cases where the wrongful act, neglect or default which caused the death would (if death had not occurred) have entitled the deceased to sue for damages for negligence.

Uninsured Persons

If a person is uninsured they have only two choices:

• demand payment from the other party and sue them if necessary; or
• pay their own repairs.

Types of Damage: Property and Person

In a motor vehicle accident, two kinds of damage may be suffered. These are:

• property damage, for example, damage to cars, motor cycles, clothing, luggage, walls and fences; or
• personal injury, for example, cuts, bruises, broken bones.

In recovering compensation for these damages, different insurance policies apply and it is advisable to handle each claim separately. While the extent of personal injuries will be unclear for some time, the extent of damage  of a vehicle is usually apparent immediately and the owner will want the vehicle back as soon as possible.

In the case of personal injuries there is a time limit of three years from the date of the accident in which to commence a court action. In the case of property the time limit is six years (Limitation Act 1974 (Tas), ss4–5A). It is possible to sue for property damage only and later to sue for personal injuries (or vice versa).

In both cases, it is necessary to prove that the other person was negligent, and that the damage was caused wholly, or in part, by lack of reasonable care by that other person in the driving, control or maintenance of their vehicle.

The fact that the other driver has been found guilty of a criminal offence (for instance, negligent driving) arising out of the accident, does not mean that the court will come to the same conclusion in a civil case. Indeed, such a criminal conviction may not even be admissible in evidence in a civil claim for compensation. However, the standard of proof in civil cases is a lower standard.

Claims for damage to property up to an amount of $5,000 can be heard and decided by a Magistrate in the Small Claims Court. A court action for damage to property exceeding $5,000 and up to $50,000 should be commenced in the Magistrates Court (Civil Division). In proceedings in the Magistrates Court (Civil Division) it may be advisable to have a lawyer. In the Supreme Court this will be essential for most actions.