Cairns Injury Lawyers | Injury Lawyers
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Motor Vehicle Accident Lawyers Cairns

If you’ve never needed to make a claim for compensation, you won’t be sure how it works or what to expect.  This unfamiliarity can make an already involved process even more daunting. 

We’ve compiled the most frequent questions asked by our clients and done our best to answer them for you.  We recommend starting at the top and reading each section in order.  Our hope is that by the time you reach the bottom, your questions will have been answered. 

If you still have questions or if you would like to talk to us about making a claim, please contact our expert legal team on 4052 0700 and ask for Tim or Meegan. 

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Do I Have A Claim?

Do I have a motor vehicle accident compensation claim?

If you have been injured in a motor vehicle accident as a driver, passenger, cyclist, or pedestrian, odds are you are entitled to compensation.

In Queensland, all vehicles must be registered and carry compulsory third party (CTP) insurance. This insurance covers compensation for people injured in a motor vehicle accident.

The only time you are not entitled to compensation is if it is proven you were solely or predominantly at fault for causing the accident.

Unfortunately, the determination of who is at fault in a motor vehicle accident (in a legal sense at least) is quite complicated. Ultimately, in order to properly demonstrate that someone is at fault for the CTP process, you need to do more than simply describe what occurred, but rather you need to be able to explain in legal sense (known as particularising) precisely why the other driver’s conduct amounted to negligence.

Provided your lawyer can properly do this to the CTP insurer or a Court’s satisfaction, you will be entitled to make a claim for compensation.

How Much Can I Claim?

How much compensation do I receive?

The amount of compensation you are entitled to will vary, depending on:

• the nature and extent of the injuries that you have suffered;
• the impact that the injuries have had upon your financial circumstances;
• your age and occupation; and
• any pre-existing medical conditions you may have.

Your lawyers, the CTP insurers, and ultimately the Court must have regard to the nature and extent of your injury and its impact upon your life and financial circumstances in determining the appropriate amount of compensation you are entitled to for each of the heads of damages detailed below.

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General damages/loss of amenity of life/pain and suffering

Compensation is payable under this head to compensate you for the pain and suffering that your injury has caused you.

Whilst it is largely intangible and difficult to put a figure on, the compensation payable under this head is determined by reference to the medical evidence that is obtained in respect your injury and applying the scale that has been established under the Civil Liability Act 2003.

Past economic loss

Past economic loss is the financial loss (most often in the form of lost wages or lost trading profits if you own your own business) which you have suffered between your accident and the date that compensation becomes payable (i.e. at the compulsory conference/mediation or at trial).

If you are self-employed, it is likely that your past economic loss will not only be measured by the trade that your business has lost as a result of you being unavailable but also by having regard to any additional wages or sub-contracting costs that you have incurred in employing a third party to work in your business whilst you were incapable of doing so.

Future economic loss

Future Economic Loss will in almost every case account for the largest component of compensation that you will receive.

Unfortunately, determining future economic loss is unique to every case and is accordingly extremely complicated as it involves an element of “cystal ball gazing” to try and determine what financial impact your injuries will have on you for the rest of your working life.

Even if you have fully recovered from your injury and returned to your pre-accident employment or business, in most instances you will still be entitled to compensation for future economic loss on a global basis.

This means that even if you cannot demonstrate a specific loss, you will be awarded a sum of compensation to compensate you for what is known as being “at risk on the open labour market”.

Past special damages

Past special damages is compensation which you receive on account of the medical expenses that you have incurred (or that a third party such as Medicare has paid on your behalf) for treatment relating to your injury from the date of the accident until the date that you receive your compensation (i.e. at the compulsory conference/mediation or at a trial).

Future special damages

Future special damages are awarded in circumstances where the medical evidence obtained during the claims process demonstrates that you will likely require or benefit from additional or ongoing medical treatment into the future.

Past and future care and assistance

In certain circumstances, where your loved ones (or alternatively your paid carer) have provided and/or will continue to provide care and assistance to you following your injury, you may be entitled to claim compensation for both past and future care.

The amount of compensation varies depending upon the level of care you have received or will continue to receive along with whether such care is provided by loved ones or paid carers.

Legal costs

In certain cases, you are entitled to claim back a portion of the legal costs you incur in the claim process.

The amount that you recover will depend on the nature and extent of the legal expense, and the appropriateness of such expense.

Who pays me my compensation?

Compensation is payable by either the CTP insurer of the vehicle involved in your accident, or if you cannot identify the vehicle or it is uninsured, the Nominal Defendant.

How do I make a claim?

Where do I start with my motor vehicle accident compensation claim?

We strongly recommend that the first step you take is to speak to your lawyer. This should be done as a matter of urgency as:

  • There are time limits on when you can make a claim (usually only 9 months from the date of the accident). Delaying the process can permanently strip you of rights to compensation.
  • The Process for claiming compensation requires the navigation of a strict and somewhat complicated legal process which can ultimately result in you having to go to court.

The compensation claims process

The process for claiming compensation involves two distinct phases being:

  • the pre-proceedings phase; and
  • the proceedings phase.

Each of the phases have several steps as detailed below:

Phase 1 - the Pre-Proceeding Phase

Step 1 – Lodging a Notice of Accident Claim Form

To commence the process of claiming compensation for injuries that you have you suffered in a motor vehicle accident, you need to lodge a Notice of Accident Claim under the motor vehicle accidents insurance act with both the owner of the vehicle (who is often referred to as the “insured”) and their CTP insurance provider.

If the at-fault vehicle is not insured, the Notice of Accident Claim needs to be lodged with the Nominal Defendant (a Queensland Government Agency).

The Notice of Accident Claim Form is a formal document that sets out:

  • your personal details
  • the details of the accident in which you were injured
  • the nature of your injuries
  • the Legal basis of why you say the driver of the vehicle was at fault and caused the accident.

Once the Notice of Accident Claim Form is served on the CTP insurer, the insurer will determine whether your Notice is compliant. If the Notice is not compliant you will have one month to rectify any non-compliance.

How long do I have to lodge the motor vehicle accident claim form?

Your motor vehicle accident claim needs to be lodged within 9 months of the date of the accident.

If the accident occurred more than 9 months ago, then there are certain conditions under which you can lodge a claim up to 3 years from the date of the accident.

If you cannot identify the vehicle that was at fault (for example, if the accident was a hit and run), then the notice of claim needs to go to the Nominal Defendant (a Queensland Government Agency) within 3 months of the date of your accident.

Step 2 – the CTP Insurer claim investigation and liability response process

Once you have lodged your claim, the CTP insurer has 6 months to investigate before advising you whether they reject the liability or accept it and make an offer of settlement.

During this time, the CTP insurer may ask you certain questions to clarify your version of the accident including asking you to provide photographs and or diagrams of the accident.

No matter what the CTP insurer’s response is regarding liability, it is usually necessary for you to have sufficient evidence regarding the circumstances of your accident to establish your claim

Step 3 – Obtaining Evidence and Undertaking Disclosure

Once you have received the CTP Insurers Liability Response, it is time to compile the evidence which supports your claim and which establishes a proper basis for the amount of compensation you are claiming. In the ordinary course, this will include you:

  • Instructing and being medically examined by one or more independent medical examiners in order to obtain a medico-legal report outlining the nature and extent of the injuries and how they impact your life;
  • Compiling financial information such as tax returns, bank statements, etc;
  • Schedulising records of your medical expenditure;
  • Obtain costings of any medical treatment you will require into the future;
  • Obtaining statements from loved ones whom have provided you with care during your recovery to demonstrate the number of hours of assistance that have been provided to you;
  • Engaging and expert to provide you with reports on liability issues and/or financial issue which remain live in your claim; and
  • Obtaining witnesses statements generally.

Once all of the above steps have been completed, it is necessary to disclose all relevant information that is not the subject of a claim for confidentiality (known as privilege) to the CTP Insurers and their lawyers

Step 4 - Preparation for and Participation in a Compulsory Conference

Once Step 3 has been completed, you will participate in a compulsory conference with the CTP insurer to try to negotiate a settlement. If you can reach agreement, you and the CTP insurer will enter into a Deed of Settlement, compensation will be paid, and the process ends.

The Compulsory Conference provides an excellent opportunity at a relatively early phase in the process to negotiate an agreement regarding the amount of compensation that you are to receive. For this reason, it is essential that all possible preparation is undertaken for the conference to give you the best chance of resolving your claim.

Often the preparation for a conference will include obtaining a barrister’s opinion regarding your prospects of succeeding with your claim if it were to go to Court along with his or her advice as to the likely amount of compensation which might be awarded by a judge. This step is important, particularly in more complex claims, as it provides you with the information necessary to consider the reasonableness of any offers which may be made to you during the conference itself.

Once the preparation has been completed, the conference is convened (ordinarily at our office). At the conference, you will be represented by your personal legal team and, depending upon the circumstances of your claim and the amount involved, a barrister instructed on your behalf. The CTP insurer will usually be represented by a claims officer from the insurer, a solicitor from one of their panel law firms, and, occasionally, a barrister.

What if I don’t agree with the amount of my compensation?

If you can’t reach agreement with the CTP insurer at the compulsory conference, your claim will proceed to the second phase of the process by commencing Court Proceedings.

Phase 2 - the court phase

Step 1 Commencing the proceedings

The amount of compensation you are claiming, determines which Court your proceedings will be filed in. That is, either the Magistrates Court, the District Court, or the Supreme Court of Queensland.

To commence proceedings, your personal legal team draft and file a claim and a Statement of Claim. The CTP insurer will respond in a Notice of Intention to Defend and Defence. You will then file a Reply to the CTP Insurer’s Defence. These documents are known as pleadings.

Pleadings are required to set out the legal and financial circumstances of a claim and provide a sufficient level of detail so as to define the issues that are in dispute clearly and to allow each party to properly understand the other party’s case.

Once the reply has been filed, the pleadings are said to have closed. At this point both you and the CTP insurer must undertake a fresh round of disclosure to update one another on all of the documents you have in your possession or control that are relevant to your case. In many cases, if your claim has not be capable of being settled at the compulsory conference, you will need to obtain further reports or evidence. These documents must be provided to the CTP insurer at this time.

Step 2 the Mediation

At the conclusion of disclosure, you will probably be ordered by the Court to participate in a mediation. A mediation is similar to the compulsory conference but with the involvement of a mediator to help you reach an agreement with the CTP insurer.

The mediator is usually a senior barrister or a Queen’s Counsel (QC). A mediation provides another opportunity for the parties to seek to negotiate settlement of your claim but with the added benefit of assistance and supervision of a senior court barrister who is independent to both yourself and the CTP insurer.

Like the compulsory conference, if you reach agreement during mediation, you and the CTP insurer will enter into a Deed of Settlement, compensation will be paid, and the process ends.

Stage 3 – Preparation for and Appearance at Trial

If your claim is still not settled at the end of a mediation, it will proceed to a trial where the judge will make a determination on your claim by ruling:

  • whether the CTP insurer is liable to compensate you for your injury;
  • the amount of compensation that you are to receive; and
  • whether you or the CTP insurer will have to pay the legal costs of the trial.

After hearing the evidence presented by you and the CTP Insurer during the trial, the judge often reserves their judgment (usually for a number of months) before publishing a written judgment which binds both yourself and the CTP Insurer. Once judgement has been made compensation will be paid and the process ends.

How long does a claim take & cost?

How long does the compensation process take?

The length of the compensation process varies depending upon:

  • the number, nature and severity of the injuries that you have suffered;
  • the time it takes you to fully recover from your injuries (or least make the maximum possible recovery); and
  • whether you can negotiate a settlement with the CTP insurer at an early stage or whether you need to commence formal legal proceedings and or go to Court.

As a general rule, most compensation claims are finalised by negotiation with the CTP insurer within 9 – 18 months of a notice of claim being delivered to the insurer.

How much will it cost me?

Like many lawyers, our team works for injured people on a no win no fee basis. This means there are no upfront fees or monthly bills to worry about. We only charge you if we are successful in getting you compensation.

The amount of fees that are payable from your compensation will vary depending upon:

  • How long it takes to negotiating a settlement (the earlier this occurs the less our fees will be).

We also pay for any medical reports, barrister’s fees, expert witnesses, and/or investigators we require to help prepare and present your case. You only pay these costs if we are successful in getting you compensation. If you don’t win, you don’t pay.

In most cases we will be able to give you an accurate fee estimate on a stage by stage basis once we understand enough about the circumstances of your accident.

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