United magazine Winter 2016

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HAVE YOU OR A FAMILY MEMBER WHAT WE ALL KNOW AS A CAR ACCIDENT OR CAR CRASH IS AT LAW REFERRED TO AS A “MOTOR ACCIDENT.” Traditionally, the law surrounding motor accidents was and remains a “fault” based system, i.e. “it was his fault!” A highly regulated system of compensation is in place for those people who suffer injuries as a result of a motor accident. It is full of traps for the inexperienced and young players. Many of us would have dealt with our car property insurers for a car park ding or a bumper-to-bumper prang, however most people have not been in a crash that results in a personal, physical injury, and would not know what to expect claiming from a CTP insurer or what they can claim. If you or someone you know find yourself injured in a motor accident it is important to understand the compensation that may be available to you and to seek expert advice. WHAT IS A “MOTOR ACCIDENT” The definition of a “motor accident” here in NSW can be a fairly broad concept, which extends beyond what many consider to be, in layman’s terms, a “car crash”. The definition of a motor accident under the Motor Accident Compensation Act 1999 (NSW) (“the Act”) provides, in part that: “motor accident” means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused….during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the IMPORTANT CONSIDERATIONS vehicle, or (c) the vehicle’s running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control. The broadness of this definition is important, as it ensures many injuries you may not ordinarily think of as arising out of a motor accident are covered by the Motor Accidents Compensation (“MAC”) system. For example: You do not need to be hit by a car for your injuries to be considered the result of a motor accident as such injuries could have been caused by action taken to avoid a collision. Some aspects of the MAC system extend to accidents that involve public transportation. Therefore, injuries you sustain due to the driving or collision of a public transport vehicle of which you are passenger (e.g. a ferry or a train) are classed as motor accident injuries for the purposes of assessing your compensation. Importantly, the fact your injuries may be covered by Workers’ Compensation does not exclude you from coverage under the MAC system. This is an important issue to discuss with your legal representative, as there are different types and amounts of compensation available between the two systems. An informed assessment needs to be made. BLAMELESS ACCIDENTS As noted above, traditionally the MAC system was based on the idea of “fault”: injuries caused by a motor accident were compensable, but only where one or more of the parties involved could be blamed for the incident. This meant that compensation was not available to people injured in accidents that were considered “blameless”, i.e. where nobody in particular or specifically was at fault. Some examples of blameless accidents would include an accident caused by a driver’s sudden unanticipated heart attack, by a tree branch or rock falling onto the road, or by an unexpected bee sting causing anaphylactic shock in a driver. This position (that blameless accidents are non-compensable), however, has been significantly amended. For more than five years now the MAC system has been extended to cover what are referred to as “blameless motor accidents”. A blameless motor accident is defined in the Act at section 7A, which provides: “blameless motor accident” means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. In practical terms, this means that you no longer have to prove a breach of duty of care (more commonly known as “fault”) by the driver of a motor vehicle in order to receive compensation for injuries caused by a motor accident. The Act contains special provisions dealing with accidents involving children, which deems an accident as “blameless” if the driver was not at fault and where the child was involved. Further, the blameless motor accident provision extends compensation to 22 • United Winter 2016
BEEN HURT IN A CAR ACCIDENT? IN CLAIMING COMPENSATION injuries sustained by drivers involved in single vehicle accidents, where it can be shown the driver was not at fault. This was confirmed in December 2015, in the Supreme Court case of Melenewycz v Whitfield. This case concerned a motorbike rider travelling on an outback road, who was hit by a kangaroo at considerable speed. The rider suffered significant injuries as a result and brought a claim for compensation against the owner of the motorbike, claiming the incident was a blameless motor accident. The CTP insurer disputed the incident was blameless, arguing it was impossible for the blameless provisions to apply to an injured driver in a single vehicle accident (with only one driver involved, who else could be to blame?) They also argued the rider had been negligent by not keeping a proper look out whilst riding and for driving too fast along the road (though the rider was below the speed limit). The Supreme Court found for the rider and not the insurer or the kangaroo in question. The Court did not accept the insurer’s argument that the blameless accident provisions could not apply to injuries suffered by drivers (or in this case, unlucky motorbike riders in kangaroo territory) in single vehicle accidents. While Justice Hamill conceded that this case “could only have taken place in Australia”, its significance should not be underestimated. The insurer appealed and the Court of Appeal has heard the argument and its decision is reserved. So watch this space. Michael Barnes, Partner PRACTICAL ADVICE IF YOU ARE INJURED IN WHAT YOU BELIEVE TO BE A MOTOR ACCIDENT, YOU SHOULD: Take down details of time, date, and location of the accident, and e how the accident occurred. Note the make and registration of any cars involved, as well as the name of any drivers or witnesses. It is important to identify the “at fault” driver, but there are provisions in the Act for situations where identifying the driver is impossible (e.g. where the driver does not stop or bounds away from the scene) These details will help you identify the Compulsory Third Party insurer of the vehicle you consider to be at fault. It does not matter whether it is the owner or the driver of the vehicle who is at fault, what is important is identifying the CTP insurer for the vehicle which is at fault. Call and report the accident and your injuries to the Police, who hopefully will attend the scene. If you are unable to contact the Police at the time of the accident (e.g. you don’t have mobile phone reception) you should report the accident at a police station as soon as possible, and certainly within 28 days. Make sure to get an Event Number. Complete and submit a CTP claim form to the CTP insurer for the vehicle you consider to be at fault. This form will require some documentation to be attached (e.g. a medical certificate and a diagram of how the accident occurred) and needs to be lodged within six months of the accident. The appropriate forms can be found on the Motor Accident Authority website. If you fail to lodge a claim form within 6 months you will need to provide what is broadly called a “full and satisfactory explanation” for the delay, which can be a time-consuming and potentially expensive exercise. Seek early legal advice. Motor accident compensation is a technical and complex area of the law, which can be difficult to understand and navigate. The relevant CTP insurer is not acting for you and certainly the driver of the vehicle which you consider at fault is not interested in assisting you to make sure you receive the right compensation. If you or someone you care about has been injured in a motor accident, “hop” on the phone and speak to Michael Barnes, Peter Lleonart, or Scott Dougall of Carroll & O’Dea Lawyers to discuss your potential entitlement to compensation. q D 8 CALL US FOR A NO OBLIGATION CASE EVALUATION ON OUR TOLL-FREE NUMBER 1800 816 559. United Winter 2016 • 23
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