Claiming car accident compensation through CTP and common law

If you or your passenger is injured in a motor vehicle accident in Australia, you may be able to claim compensation for your injuries. There are several avenues through which you can claim for personal injury and property damage. But each has specific criteria, so it’s important to understand how each works. You may be eligible to make a claim for car accident compensation through CTP and common law.

Additionally, each state has different laws, so you’ll need to understand the law that applies in the state where you had your accident.

CTP vs common law

CTP insurance

In Australia, anyone who owns a motor vehicle driven on a public road must have compulsory third party (CTP) insurance. CTP covers registered owners, drivers and passengers for the injury or death of other people in an accident.

When a car owner applies for CTP, they will nominate their preferred insurer. State transport departments won’t register a vehicle without this insurance.

The owner pays CTP premiums through their vehicle registration. Unlike other insurance types, these premium amounts aren’t affected by claims.

However, CTP is a ‘fault-based’ system, which means you need to identify the other driver and prove they were at fault (i.e. negligent in some way) to make a claim for compensation.

CTP doesn’t provide for statutory or no-fault benefits. This is where you may need to consider other avenues for compensation.

Common law

A common law claim for damages is where you sue another party for a negligent or wrongful act or omission which has caused you injury. This allows you to claim financial compensation for losses you’ve suffered because of your injuries.

Uninsured and unidentified drivers

If you’re injured in a car accident and the at-fault driver has no CTP insurance, won’t provide you with their details or can’t be identified, there are other ways you can make a claim.

In Queensland and New South Wales, you can claim against the Nominal Defendant, a statutory body that acts as the CTP insurer for vehicles with uninsured or unidentified drivers. The Nominal Defendant is liable for any personal injury compensation that the other vehicle owner would’ve been liable for.

You must make a claim to the Nominal Defendant within 3 months of the accident and prove that you couldn’t identify the driver after a proper search.

Making a claim through CTP

If you can make a claim against the other driver’s CTP insurance, you could get compensation for treatment, care and income support for a year. You may also be eligible for pre-claim support – such as GP visits, physiotherapy, or medication.

If a relative or dependant has died due to the accident, you may be able to claim for funeral expenses and compensation.

As soon as possible after your accident, make sure you:

  • get medical treatment for your injuries.
  • report the accident to the police within 28 days
  • visit your GP so they can record the extent of your injuries.

To make a claim, you will send a notice of accident claim to the at-fault drivers’ CTP insurer. They will send a response noting whether they accept or reject the claim.

If you need to attend a compulsory conference to negotiate a settlement, you’ll need to gather your documentation and get independent medical examinations done.

If a compulsory conference doesn’t lead to agreement, you can start court proceedings. But most claims get settled without having to go to court.

Making a claim through common law

Damages under common law

CTP insurance doesn’t cover damages for non-economic losses, such as pain and suffering, loss of enjoyment of life, etc. To be compensated for these losses, you can make a common law claim for damages.

The total amount you can receive depends on many factors, including the extent of your injuries and how your life has been affected or changed. Generally, the greater the injury – including permanent impairment – the higher the damages.

Common law compensation considers damages for:

  •   past and future lost income
  •   lost superannuation
  •   medical expenses and ongoing costs
  •   pain and suffering, and loss of amenities
  •   lost enjoyment of life.

For a successful common law claim, you need to prove the other party was negligent or acted wrongfully, which caused your injury. In other words, they breached their duty of care to you – every driver on the road has a duty of care to protect others.

Making a claim through Common Law

It’s important to report your accident to the police if you intend to make a claim.

Then, to start a common law claim, you must provide a notice of claim to the party you believe was at fault and their insurer. The notice outlines:

  •   the injuries you’re claiming for
  •   how they were caused
  •   why you believe the party was negligent and caused the injuries
  •   the loss and damage you’ve suffered as a result.

The insurer will contact you to confirm that they received it and give you a claim number. They will investigate the claim and request further information if they need it. Not providing this information could delay the claim or cause it to be rejected.

The insurer will tell you whether they will accept or reject the claim and the reasons why. If they reject your claim, you may still have other options. We recommend contacting a legal professional at this point to help you with making a claim for car accident compensation through CTP and common law.

Time frames for common law claims

You need to make a common law claim for damages within 3 years of your accident. If you’re making a claim more than 3 years afterwards, you will need to explain why.

Common law claims for compensation after a motor vehicle accident can take anywhere form 6 to 18 months to resolve. Usually you don’t need to go to court, though more complex cases could go to trial. These could take 2 to 3 years to resolve.

Partial fault for the accident

If you’re partly responsible for the motor vehicle accident or you contributed to your injuries (such as by not wearing a seatbelt), you may still be able to claim for a reduced amount of damages.

Don’t assume that you can’t make a claim at all. Get legal advice to ensure you get what you’re entitled to.

No-fault claims for serious injury

The National Injury Insurance Scheme (NIIS) provides lifetime treatment, care and support for people who have been seriously injured in a motor vehicle accident.

This is a no-fault scheme, which means you don’t have to prove someone was at fault to make a claim. But you do need to meet specific criteria for types of serious injury:

  •       permanent spinal cord injuries
  •       traumatic brain injuries
  •       multiple or high level limb amputations
  •       permanent injury to the brachial plexus
  •       severe burns
  •       permanent legal blindness.

If you’re eligible, you might be able to receive funding for:

  •   medical treatment and medication
  •   dental care
  •   rehabilitation
  •   ambulance
  •   care and support
  •   wheelchairs and other mobility aids
  •   prostheses
  •   home modifications
  •   respite care.

There are strict time limits for making a claim against the NIIS, as well as other criteria, so it’s best to get legal advice to ensure you get everything you’re entitled to.

Property damage claims through insurance

CTP insurance doesn’t cover damage to vehicles or property – only injury to other parties. So what are your options if you want to claim compensation for vehicle or property damage?

You can claim against your own comprehensive insurance policy to cover the cost – but this will increase your premiums, which may not be fair for you if the other party was at fault.

You can make a claim for costs against the other driver. To do this you would:

  1.     send them an email or letter outlining your intention to claim
  2.     get a quote for repairs and calculate the total amount of the claim (including towing fees and any other out-of-pocket expenses you’ve incurred)
  3.     send them the quote and negotiate with them for payment.

If you were partly responsible for the accident, you will calculate what percentage of the total amount the other driver is responsible for.

If you can’t negotiate with the other driver and they refuse to pay or admit fault, you have the option to take them to court.

We strongly recommend getting legal assistance with this process, as it can be difficult to get the other party to admit fault or pay the quote. If the other party isn’t insured, this further complicates the process of getting payment for your property damage.

How Main Lawyers can help

Claiming compensation for injuries you’ve received in a motor vehicle accident is not straightforward. The appropriate avenue to take depends on many factors, and the laws around personal injury are always changing.

So it’s vital to get legal advice as early as possible in the process to avoid delay and rejected claims. At Main Lawyers, our car accident lawyers can help you to navigate making a claim for car accident compensation through CTP and common law.

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