Practising in Vehicle Accident Injury Law since 1978
As of 1 July 2013 personal injury claims resulting from a vehicle accident in South Australia have undergone the biggest change in over 25 years.
This has resulted from the South Australian Government passing legislation – the effect of which has been a significant reduction in the number of individuals entitled to compensation as a consequence of injury sustained in a motor vehicle accident. This will be summarised below.
However any claim arising from any vehicle accident injury sustained before 1 July 2013 is not affected by the “new law”.
Injury sustained before 1 July 2013 (Old Law Claims):
If a claim has not already been finalised or filed in a Court for any accident occurring before 1 July 2013, certain time limits continue to operate as follows:
Such a claim must be finalised or instituted in a Court by no later than three years from the date on which the accident occurred. This is except for an infant (legally defined as an individual under the age of 18) where the time limit extends until the infant turns 18 and three years after, that is until 21 years of age.
In addition at least 90 days before a claim is instituted in Court, a detailed claim with supporting documentation should have been provided to the compulsory insurer before it is instituted in Court, if it has not settled by negotiations during this 90 days period.
Further, in rare cases where the identity of the driver/and or the identity of the relevant motor vehicle causing an accident is unknown, there is an additional time limit, namely there is a need to give written notice, as soon as is “reasonably practicable” after this becomes apparent. There are also additional steps that need to be taken, in respect of which it is important to seek legal advice urgently after such an accident occurs.
Under the “old law”, restrictions on being able to make a claim have been very minor. In addition this “old law” has been overall much simpler than the “new law”.
Hence, if anyone has sustained injury in a motor vehicle accident before 1 July 2013 and has yet to seek legal advice, it is important that legal advice be sought as soon as possible, particularly if available at a first free appointment from a legal firm such as our firm that provides this service. Such an appointment does not oblige you to appoint us to act. This is entirely your personal choice.
Whilst there is a legal right to request an extension of time beyond the three year time limit, under earlier changes to the law, it has become very difficult to obtain an extension of time. Hence the importance of seeking legal advice as soon as possible if an injury has been sustained and no legal advice has yet been sought.
It is the injured person who bears the “burden of proof”. This applies in all injuries claims, whether under “old law” or “new law”. Hence it is important to seek legal advice early. This also takes into account all personal injury claims are complex, to a varying degree, but “new law” claims are more complex.
Injury sustained since 1 July 2013 (New Law Claims):
Despite substantial changes under the present “new law”, many individuals can still make a claim. Hence it is important to seek legal advice as soon as possible after injury is sustained in an accident. This is due to an additional time limit imposed under the present law.
The time limits under the present law are the same as those under the “old law”, summarised above as follows:
Three years to institute proceedings.
90 days in providing a detailed claim before proceedings are instituted if necessary.
As soon as is “reasonably practicable” provide written notice – in cases where the responsible driver/motor vehicle is unknown.
IMPORTANTLY under the present law, there is the additional requirement to complete in writing a “Notice of Claim” in the form of an injury claim form – with various information inserted therein – and submit it to the compulsory insurer within six months from the date of the accident.
Where a “Notice of Claim” has not been so submitted, the injured person will need to show that there has been no prejudice to the insurer and there was a reasonable cause for the failure to comply with the six month period.
As to this “Notice of Claim” requirement, it is important to seek legal advice quickly after an accident to assist in the appropriate detailed information being supplied and to ensure prompt submission of this “Notice of Claim”.
Whilst six months may seem a substantial time, there are good reasons to obtain legal advice as early as possible, including ensuring all injuries and symptoms are included in the injury claim form and to ensure that the time limit is not missed, as time may pass without anyone taking action.
One reason why it is important to do so involves the need for an injured person to establish/prove multiple injuries, if more than one injury has been sustained.
Multiple injuries need to be established as soon as possible, no matter how minor one or more of them might appear. This is relevant to what is known as the “Injury Scale Vale (ISV) Table”. This is explained below. An attendance at a first free appointment can assist you in completing such requirements. It is best to complete these requirements as it cannot be known early after an accident as to how severe an injury or injuries may be in terms of any long term consequences. Many injuries persist for years, despite initial improvement.
Past Loss of Income Claim:
In the case of a claim for a loss of income, partial or total at any time, suffered since the accident, this is one area under the present law which does not require the establishment of an ISV number rating. This right is automatic, subject to the usual need to prove such income loss, as was the case under the “old law”.
However there is one reduction applicable under the present law – that the compensation payable for loss of income is to be reduced by 20%. Hence past loss of income will be paid at 80% of the appropriate loss suffered. Hence even if the ISV number is ultimately assessed as being less than the rating of 8, there is still the claim for past loss of income. This means that if there is some element of past loss of income for any period since the accident, it is worthwhile proceeding to make a claim, over and above the right to make a claim for reasonably incurred medical expenses.
Injury Scale Vale (ISV):
Firstly an ISV number rating will not be assessed until the injury has “stabilised”.
Under the present law an injured person cannot receive compensation unless an injury is deemed to have an ISV of:
- 11 or higher – for non-economic loss (pain and suffering and loss of amenities, past and future).
- 8 or higher – for future economic loss.
For non-economic loss, the amount of monetary compensation payable is however much lower than what it was under the “old law”. With each point applicable after 11 points, the amount of compensation progressively increases. For very serious injuries, the non-economic loss compensation can be substantial.
It is however possible to obtain compensation for non-economic loss for a rating under 11 points, if there are exceptional circumstances and it would be harsh and unjust for no compensation to be payable.
Monetary compensation is also payable – only if the ISV number is 11 points or more – for gratuitous (voluntary) services, although these must be substantial under the present law, or for loss of consortium as between spouses, which is also a small claim.
For future loss of income, under the present law the right to make such a claim has become more complex than under the “old law”. It can be established by either of the following:
- an ISV value of at least 8 points in respect of only one injury sustained, or
- an ISV value of 8 points in the case of “multiple injuries”.
The concept of “multiple injuries” is a new concept under the present law. It is helpful in that where more than one injury has occurred an ISV rating must take into account firstly the recognition of which injury is the most serious, known as the “dominant injury”. This is the injury with the highest ISV range. In that regard:
- This means that a particular test must be adopted -the “level of adverse impact” test – that is to determine whether the maximum ISV for the dominant injury adequately reflects the level of adverse impact of multiple injuries on the injured person.
- If it is considered that the maximum ISV for the dominant injury is inadequate, and if the matter goes to Court, then the Court can increase the ISV, up to 25% higher than the maximum ISV for the dominant injury. (It is rare that this increase will be more than 25%).
It is however expected – like the system operating under the “old law” that not many matters will need to proceed in Court as negotiations with the compulsory insurer will occur, under the present law, such that most cases will be settled out of Court. Under the “old law” only about 1% of vehicle accident injury claims actually proceeded as a Hearing – many cases were instituted in Court, but settled at some stage thereafter. This in particular is where you can rely upon our skilled negotiations – and yet fighting hard for you in instituting proceedings if necessary.
Mental harm injuries, for permanent impairment purposes are to be assessed under the present law utilising a different Guide – the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC). This is a more complex method than under the “old law”.
The claim for future economic/income loss is often the biggest individual personal injury claim arising out of a motor vehicle accident, even with the present law 20% reduction. Hence the need for appropriate legal work to get the right outcome. We work very hard to obtain such an outcome.
Alongside claims for economic/income loss, there remains the entitlement to claim a loss of superannuation benefits, even though the entitlements for past economic loss or future economic loss have been altered to some extent.
Under the “new law”, as under the “old law” – to successfully make a claim for compensation arising out of a motor vehicle accident, it is necessary to prove that the accident was caused either totally or in part by the fault of another motor vehicle driver. In the case of the other driver being totally at fault, then the full measure of loss can be obtained (subject to other legal requirements under either “old law” or “new law”). In the case of the injured person having partly contributed to the accident, then the injured person will only recover a percentage of any monetary amount to which they might otherwise be entitled. This percentage will depend upon the percentage each driver was at fault in contributing to the accident occurring.
There is also a scheme that has been introduced known as the “Lifetime Support Scheme” by the “new law”. This provides very substantial benefits in various ways to anyone unfortunate enough to suffer very serious injuries known as “Catastrophic Injuries”. This represents the only exception to the need to prove that the accident causing the injuries was at least in part due to another motor vehicle driver’s fault. Fortunately these cases are rare – but legal advice should be quickly sought where very serious injuries are sustained in a motor vehicle accident.
Costs in vehicle accident personal injury claims:
- We only charge legal fees upon successful completion of your case. In these matters we stand by our “No Win, No Fee” policy. There are usually out of pocket expenses such as medical reports, but there are options available which we discuss with you at your first appointment.
- You will benefit by our “fair cost” approach. We are flexible in our legal charges, and offer a unique tailor made solution for each individual matter.
- We will do our best to minimise any inconvenience for you as to those charges. In many cases we are able to have the insurer agree to meet such out of pocket expenses or, depending upon your financial circumstances, we are often prepared to personally assist you.
- We work hard to achieve a truly “user friendly” approach to all charges that you may incur, not only legal fees, but all out of pocket expenses.