What can be claimed?
In assessing the amount of damages to which an injured person is entitled, a number of categories of damage are recognised. All hospital, medical, ambulance and other associated expenses directly resulting from the accident, plus the loss of wages to the date of the hearing can be claimed as ‘special damages’.
When involved in an accident it is advisable to keep a record of all payments made resulting from the accident, and also to keep receipts. If not yet paid, the accounts themselves should be retained, either to give to the insurance company, or to produce in court as proof of the claim.
An injured party is entitled to lump sum compensation for the injuries, disabilities and loss of amenity of life suffered as a result of the accident and future economic loss including future loss of wages, medical, nursing and other treatment. These are called ‘general damages’ and are obviously the most difficult part to assess. Judicial Officers must take account of the type of injuries sustained, the period of hospitalisation and the pain and suffering the person has had to bear. Most importantly, consideration must be given to any continuing disabilities, their expected duration and their effect on the person’s earning capacity, together with future nursing and treatment costs.
As a general rule, if an injured person has some residual disability as a result of the accident, it is advisable to commence proceedings in a court, rather than to attempt to settle the matter quickly. Often the injuries take some time to settle down, and the final disabilities will not immediately be apparent. The injured party must rely on medical advice about the disabilities, and the advisability of settlement at any time during the action.
Once a claim has been settled, the insurance company will obtain a signed ‘deed of release’ from the claimant which will preclude any action in the future. The claimant should be guided by medical and legal advisers before settling a claim or signing a deed of release.
In settling a claim, the lawyer handling it will be able to advise the amount the injured party would receive in compensation. The lawyer’s costs and disbursements will have to be deducted, and there may be repayments for medical or hospital expenses, worker’s compensation payments or income support payments from Centrelink which have been paid to the injured party whilst unable to work. In addition, a recipient of a compensation lump sum may not be able to claim income support payments from Centrelink during a preclusion period. All these factors must be investigated and considered before a claim is settled.
10% of the lump sum settlement must be paid to the Health Insurance Commission (Medicare). Any payments by Medicare for treating the injury are repaid and the balance paid to the claimant within 3 months.
Making a Claim
Any claim for damages for personal injury must be within three years of the accident. Where a claim is made on behalf of a child, the action is usually commenced in the name of one of the parents as the ‘litigation guardian’ of the child. If an action has been commenced on behalf of the child and the claim is settled, that settlement is not operative until approved by a judicial officer of the court in which the proceedings have been commenced.
When claiming compensation for personal injuries arising out of an accident, it is best to seek legal advice. The bulk of legal costs can usually be recovered (as ‘party-party’ costs) and the remaining (‘solicitor-client’) costs taken out of the damages settlement. Depending on the nature of the claim and the seriousness of the injuries, the claim can be dealt with in one of two ways:
- the claim can be settled directly with the MAIB; or
- acommon law action for damages can be taken, and either settled during the proceedings or, if not settled, decided by a judicial officer. (The MAIB pays the claim and legal costs on behalf of the defendant.)
If the injuries are minor and there is no continuing disability, it is usually advisable to attempt to settle the claim without going to court. This is done by the person’s lawyer giving the MAIB information enabling them to assess the value of the claim and to pay an agreed figure. Usually, this procedure will bring a much quicker settlement. If the claim is made in a court, there will be some delay (of at least one to two years) having it heard and determined. The Supreme Court has power to hear and determine claims for an unlimited amount. All actions for personal injury or death arising from motor vehicle accidents are tried before a judicial officer without a jury.