Road Accident Injury Claims: Seek Common Law Damages (Lump Sum) – Bodily Injury

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Under the NSW Compulsory Third Party Scheme, people who are not at fault and who are more seriously injured in a car accident in NSW on or after December 1, 2017 may be entitled to claim legal damages. common and to receive lump sum compensation.
1.

A claim for damages can be made if:

  • Plaintiff has more than a minor injury,

  • They weren’t at fault; and,

  • Their injury was the fault of another driver or owner of the vehicle
    2. In a “no-fault car accident” damages may also be payable (i.e. the car accident was not caused by anyone’s fault or where the claimant was only partially responsible) 3.

You usually have 3 years to make a claim for damages
4 although there may be exceptions in special circumstances, for example if the claim relates to the death of a person or if the claim relates to an injury assessed at more than 10% permanent disability 5

Anyone claiming common law damages must complete the application at https://www.sira.nsw.gov.au/__data/assets/pdf_file/0004/320755/Application-for-Damages-under-Common-Law.pdf
6.

Permanent impairment and economic loss

A permanent impairment refers to an injury that impairs a worker’s physical and/or mental capacity existing after the maximum medical improvement date and is well stabilized and unlikely to change substantially over the following year. .

There are various entitlements and compensation that injured workers may be entitled to for permanently impaired injuries under the Motor Accident Injuries (NSW) Act 2017.

Where there is 10% or less permanent disability, an injured person can only claim for economic loss seven.

In these circumstances:

  • You can claim damages from the 20 months after the date of the traffic accident 8.

  • If your claim is for the death of a person or an injury assessed at more than 10% permanent disability, you may file a claim before the 20 months have expired. 9.

  • If you are receiving income support benefits, unless an application has been made, the benefits will stop after 2 years
    ten.

  • If you are receiving income support benefits and the application has been made, income support benefits can also continue for up to 3 years, giving you time to finalize your injury.
    11.

Economic loss includes loss of past or future income and pension or earning capacity as a result of a person’s injury 12.

Non-economic loss includes pain and suffering, impact on quality of life, impact on life expectancy and disfigurement
13.

Where there is more than 10% permanent disability as a result of injury, a claim for economic loss and non-economic loss can be made 14.

In these circumstances:

  • A claim for damages can be made at any time up to 3 years after the date of the car accident 15.

  • If you are receiving income support benefits, unless an application has been made, the benefits will stop after 2 years
    16.

  • If you are receiving income support benefits and the application has been made, income support benefits may continue for up to 5 years, allowing time for the injury to finalize. 17.

What happens after a complaint is filed?

The insurer will undertake an investigation into your claim, including reviewing the police report and other evidence such as medical reports you have provided. As part of this process, you may be asked to see other medical specialists for further evaluation. Within 3 months of the filing of a claim, the insurer is required to notify you if it recognizes its liability
18. The insurer may also ask you to provide additional information to support the claim 19. If the insurer admits liability for a claim for damages, your lawyer will negotiate the amount of the settlement with the insurer 20.

If you are receiving income support benefits, benefits will cease upon finalization of the claim for damages 21. Reasonable and necessary treatment and care will continue to be covered for your lifetime 22.

If an agreement is not reached on the amount between you and the insurer, the insurer will advise you on the next steps
23. This includes how you can have the decision reviewed and where to go for further help.

Note: All times mentioned above are from the date of the accident, unless otherwise stated. 24.

Footnotes

1https://www.codea.com.au/publication/nuts-bolts-new-nsw-ctp-scheme/.

2 – 3https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/lump-sum-compensation

4 Road Traffic Injury Act 2017(New South Wales) s 6.14(2).

5 Road Traffic Injury Act 2017(New South Wales) s 6.14(3).

6 – 7https://www.sira.nsw.gov.au/__data/assets/pdf_file/0004/320755/Application-for-Damages-under-Common-Law.pdf.

8 – 9 Road Traffic Injury Act 2017 (New South Wales) s 6.14 (1).

10 – 11https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/lump-sum-compensation

12 Road Traffic Injury Act 2017(New South Wales) s 4.5.

13 Road Traffic Injury Act 2017(New South Wales) s 1.4.

14 Road Traffic Injury Act 2017(New South Wales) s 4.11.

15 Road Traffic Injury Act 2017(New South Wales) s 6.14(2).

16 – 17https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/lump-sum-compensation

18 Road Traffic Injury Act 2017(New South Wales) para. 6.20(1).

19 – 24https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/lump-sum-compensation

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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