A GUIDE FOR PEOPLE INJURED IN A MOTOR VEHICLE ACCIDENT

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1 A GUIDE FOR PEOPLE INJURED IN A MOTOR VEHICLE ACCIDENT

2

3 CONTENTS General information 02 Early payment of expenses 03 The Accident Notification Form (ANF) 03 Who can make a claim Other driver or owner at fault Special benefit for children injured in accidents 05 Blameless accidents 06 Lifetime Care and Support 06 Unidentified or unregistered vehicles at fault 07 Making a claim 08 How you make a formal claim 08 Time limit for making a claim 08 What you can claim 09 Management of your claim 11 What happens after you make a claim 11 Liability 11 If liability is accepted 11 If liability is accepted with contributory negligence 13 If liability has not been decided 13 If liability for the claim is denied 13 Treatment, rehabilitation and care 14 How your claim is settled 15 Resolving Disputes 16 If you disagree with the insurer 16 Medical Assessment Service (MAS) 16 Claims Assessment and Resolution Service (CARS) 16 Court proceedings 18 Other issues 19 Pensions and allowances 19 Medicare 19 Fraud 19 The Claims Register 19 If a close relative dies in a motor vehicle accident 20 Legal costs 20 Useful contacts 21 1

4 GENERAL INFORMATION If you have been injured in a motor vehicle accident you may be able to make a claim for personal injury compensation under the Compulsory Third Party (CTP) scheme. There have been a number of recent changes to the CTP legislation which have expanded the circumstances in which you can make a claim under the scheme. There have also been some changes to the obligations or responsibilities for both CTP insurers and for injured people. This guide will help you to decide if you can claim and if so, help you to make that claim. The information included in this guide applies mostly to accidents that happened on or after 1 October 2008, however, some of the changes will also apply to existing claims under the CTP scheme. If you are unsure what obligations or responsibilities apply to your claim, the Motor Accidents Authority s Claims Advisory Service ( or can advise you. The Claims Advisory Service can also provide you with information and assistance throughout the life of your claim. You can also get information and assistance from the: CTP insurer handling your claim (contact details are listed on page 22) NSW Law Society s Community Assistance Service ( ) for names of personal injury accredited solicitors in your area. For interstate vehicles or accidents, contact the relevant interstate organisations (the contact details for which are listed on page 23) 2

5 EARLY PAYMENT OF EXPENSES The Accident Notification Form (ANF) If you have been injured in a motor vehicle accident in NSW, you may be able to immediately claim up to $5,000 for your treatment and loss of earnings without having to lodge a formal claim. These benefits are avaliable regardless of who of who was at fault. To do this, you must: get the registration number of the vehicle that caused the accident report the accident to the police if they did not attend the accident get the event number of the accident from the police get an Accident Notification Form (ANF) from your treating doctor or the MAA, complete it and send it to the CTP insurer of the vehicle that caused the accident within 28 days of the accident. The MAA (Ph: ) can give you the name of a vehicle s CTP insurer if you tell them the registration number of the vehicle at fault. The insurer will let you know within 10 days of receiving the ANF whether they will pay for your early treatment expenses and lost earnings. An agreement by the insurer to pay for these expenses is not an admission of liability or an agreement to pay for other expenses. 3

6 The insurer is only required to pay for treatment expenses that are: reasonable and necessary related to the injury caused by the motor accident in accordance with any relevant MAA guidelines incurred within six months of the date of the motor accident. The maximum amount the insurer has to pay for a particular treatment provided by a doctor is the amount set out in the Australian Medical Association (AMA) List of Medical Services and Fees. Set fees may also apply for other services. The insurer may also pay for past loss of earnings at the end of the six month period if the allocated sum of $5,000 allows. However, the first priority for payment is for medical expenses to assist in your recovery. If the ANF does not cover all your expenses or you require ongoing treatment, time off work, rehabilitation or other assistance you may need to make a formal claim for compensation. 4

7 WHO CAN MAKE A CLAIM If you have been injured in a motor vehicle accident in NSW, there are a number of circumstances in which you may be eligible to make a claim for personal injury compensation. 1. Other driver or owner at fault If you have been injured in a motor vehicle accident and you can show that a driver or owner of a vehicle, other than you, was partially or completely at fault you can make a claim for personal injury compensation. Any kind of road user can make a claim including a driver, passenger, pedestrian, cyclist, motorcyclist or pillion passenger. If you were partly at fault in causing your own injuries, you may still be able to make a claim, but the compensation you receive will be less than if you were not partly at fault. Examples of where you may be partly at fault include: not wearing a seatbelt driving under the influence of drugs or alcohol travelling in a vehicle where you know the driver to be under the influence of drugs or alcohol driving at an unsafe speed not wearing a helmet when riding a motorcycle or bicycle. 2. Special benefit for children injured in accidents If you were under 16 years old and a resident of NSW at the time of the accident, you can make a claim for the children s special benefit regardless of who caused the accident. The children s special benefit provides for hospital, medical, rehabilitation, pharmacy, respite care and attendant care expenses. If the accident was caused, either partially or completely, by the driver or owner of a motor vehicle you may also be able to claim for other types of compensation. 5

8 3. Blameless accidents If you were injured in a blameless accident, you may be able to make a claim for personal injury compensation. Examples of blameless accidents may include: accidents caused by a driver suffering a sudden illness, such as a heart attack or stroke accidents caused by an unexplained mechanical or vehicle failure, such as brake failure accidents caused by an unavoidable collision with an animal on the road. Any road user can make a claim for a blameless accident, however, there are restrictions that apply to drivers (including motorcycle riders) injured in blameless accidents. Drivers may not be able to make a claim if they were injured in a single vehicle accident or if they were driving the vehicle that caused the accident, i.e. they were the driver that suffered the heart attack or they were the driver of the vehicle that failed resulting in the accident. For more information about who can make a claim, contact the MAA s Claims Advisory Service on or visit www. maa.nsw.gov.au 4. Lifetime Care and Support If you have been very seriously injured in a motor vehicle accident you may be eligible for assistance under the Lifetime Care and Support (LTCS) scheme. The LTCS scheme provides treatment, rehabilitation and attendant care services. Assistance is available for very seriously injured people regardless of who caused the accident in which they were injured. Very serious injuries include spinal cord injury, moderate to severe brain injury, multiple amputations, severe burns and blindness. 6

9 The Scheme applies to children under the age of 16 injured in motor accidents on or after 1 October 2006 and adults injured in accidents on or after 1 October For more information about scheme eligibility or benefits, contact the Lifetime Care and Support Authority on or visit If you have been very seriously injured in an accident where you were not at fault, you may also be able to claim for other types of compensation from the CTP insurer of the vehicle at fault. 5. Unidentified or unregistered vehicles at fault If you were injured on a road or road related area in NSW as a result of the fault of an unidentified vehicle (e.g., a hit and run accident) or an unregistered vehicle (which is, therefore, uninsured) you may be eligible to make a claim against the Nominal Defendant (Ph: ). If you do not know the registration number of the vehicle at fault, find out by asking the police, talking to witnesses or putting an ad in the newspapers asking witnesses to contact you. This is called due enquiry and search and is the responsibility of the person making the claim disputes about due enquiry and search can be resolved by the Claims Assessment and Resolution Service (CARS) see page 16. If you have tried everything and have been unable to find out the registration number, the vehicle is deemed unidentified and a claim can be made against the Nominal Defendant. Get a claim form from the MAA, complete it (and have your doctor complete the medical certificate included with the form) and send it to: The Nominal Defendant Level 25, 580 George Street Sydney NSW 2000 The MAA will allocate your claim to an insurer and will advise you which insurer is managing your claim. 7

10 MAKING A CLAIM How you make a formal claim You will need to lodge a Personal Injury Claim form, if you wish to claim for costs that: exceed $5,000 are not payable by the insurer under the early payment process (e.g., because you did not submit an ANF within 28 days), or are for other compensation not covered by the ANF. Your claim will be against the owner or driver of the vehicle that caused the accident and is handled by the CTP insurer of that vehicle. To claim you should: make sure that the accident is reported to the Police within 28 days. If you do not do this, your claim could be affected find out the CTP insurer of the vehicle that caused the accident. The MAA (Ph: ) can give you the name of a vehicle s CTP insurer if you tell them the registration number complete a Personal Injury Claim form and send it to the CTP insurer of the vehicle that caused the accident. Time limit for making a claim You should complete the Personal Injury Claim form and return it to the CTP insurer as soon as possible but no later than six months from the date of the accident. Your claim could be affected if the insurer receives your claim more than six months after the accident. 8

11 What you can claim Your compensation depends on the type of injuries you sustained and your circumstances at the time of the accident. Your claim could be for economic or non-economic loss, or both. Economic loss includes the loss of ability to earn an income, but you cannot claim for income above the annually indexed amount per week. Economic loss also includes: reasonable and necessary hospital, medical and rehabilitation expenses (past and future) reasonable and necessary attendant care and home modification expenses other reasonable and necessary expenses and losses you suffer as a result of your injuries. You will need to show that: the amount claimed is reasonable you can verify it, that is you have a receipt or invoice, and it relates directly to the injuries and losses caused by the accident. A claim for non-economic loss (or general damages) is for the pain and suffering and loss of enjoyment of life that you have experienced. While most people injured in motor vehicle accidents experience some degree of pain and distress, there are limits on who can claim compensation for non-economic loss and how much compensation they get. 9

12 These limits are there to keep the cost of CTP insurance down by ensuring that non-economic loss damages are paid only to those with severe injuries resulting in permanent impairment. You will only receive non-economic loss damages if you have a whole-person permanent impairment of more than 10 per cent as a result of your accident. The MAA s Medical Assessment Service (MAS) provides a service to resolve medical disputes between an injured person and the insurer about whether injuries have resulted in a whole person permanent impairment of more than 10 per cent. If you do have a permanent impairment of more than 10 per cent, the amount of non-economic damages you are entitled to will be determined in accordance with common law principles. 10

13 MANAGEMENT OF YOUR CLAIM What happens after you make a claim You will get a letter from the insurer telling you that your claim has been received. It will include a claim number that you must use when you write to the insurer about the claim and the name and phone number of the officer handling your claim. The insurer will then investigate your claim. You may be required to give the insurer specific information (photos, documents, records, etc) to help them with the investigation. As part of the investigation, the insurer will normally get a copy of the police accident report. You may be required to speak to an investigator about your claim. Liability The insurer investigates the accident and injury to find out whether liability for the claim will be accepted. By accepting liability the insurer agrees that the vehicle they insured was at fault in the accident. The insurer must advise you within three months of receiving the claim whether they have accepted liability. The letter advising you of the insurer s admission or denial of liability is called a Section 81 Notice. If liability is accepted If the insurer has accepted liability, it will pay your reasonable and necessary hospital, medical, rehabilitation and travel expenses. You do not have to wait until your claim is finalised for these expenses to be paid. 11

14 To consider if a treatment is reasonable and necessary the insurer will take into account whether: the treatment is related to the injuries you sustained in the accident the treatment or service is likely to regain or improve your ability to function at work and at home there is evidence based medical research to support using the treatment your treating doctor(s) recommend the treatment. The maximum amount an insurer has to pay for a particular treatment is set out in the Australian Medical Association List of Medical Services and Fees. Set fees may also apply for other services. You may be responsible for any costs over these set fees. To be sure that the insurer will pay your accounts, you should get the insurer s approval before you start your treatment or rehabilitation program. Original accounts and receipts should be sent directly to the insurer. You should keep a record of all your expenses and a copy of any bills or receipts. The insurer cannot be expected to continue to pay accounts unless improvement can be shown. Most services provided by a public hospital are covered by an agreement between the CTP insurers and the hospitals. You are not usually billed for public hospital care in NSW, but do not assume the services are free. 12

15 If liability is accepted with contributory negligence If the insurer has accepted liability but also believes your actions have contributed to the accident and your injuries, they may allege contributory negligence. Your claim will be handled in the same way as if the insurer accepted liability. However, at the conclusion of the claim your settlement may be reduced to reflect your contribution to the accident and your injuries. If liability has not been decided Payment for treatment by a doctor or therapist is not the insurer s responsibility unless the insurer has accepted liability for your claim. You may pay these expenses and be reimbursed by the insurer if liability is accepted later or the health provider may agree to wait for payment until the insurer decides liability. You will be personally liable for paying these accounts if the insurer later denies liability. The insurer may also be prepared to pay for your medical, therapy and rehabilitation expenses without accepting liability. These are without prejudice payments. Approval should be sought from the insurer before the services are provided. If liability for the claim is denied If the insurance company denies liability on your claim you are responsible for your expenses. You may be able to claim part or all of your expenses from Medicare, private health insurance or from a personal accident insurance policy. You should notify these organisations that the expenses are for a third party claim. 13

16 Treatment, rehabilitation and care You may require treatment after a motor vehicle accident. A health provider such as a hospital, doctor or physiotherapist may provide this treatment. Most people recover from their injuries after treatment but some people need rehabilitation to help them recover. Rehabilitation aims to return the injured person to a level of function and quality of life comparable to their pre-injury level. If function cannot be restored, rehabilitation is aimed at helping the injured person learn skills to be as independent as possible. If you are likely to have long-term problems, it is important that you start a rehabilitation program as quickly as possible. A rehabilitation program can form part of your compensation and the following people are involved in helping you decide which is best for you: your treating doctor or therapist the insurer handling your claim. Under the scheme, you must make every reasonable attempt to recover from your injuries by: having medical treatment participating in an appropriate rehabilitation program looking for alternative job opportunities returning to work. If you have been seriously injured you may be entitled to attendant care services. Attendant care services are services that provide assistance to people with everyday tasks and activities of daily living and can include personal assistance, nursing, home maintenance and domestic services. You should contact the insurer if you need this type of assistance. 14

17 How your claim is settled As part of the investigation of your claim, the insurer will need information about your medical condition. The insurer may get this from your treating doctor or by arranging for you to be assessed by another medical specialist. You must give the insurer full details of: your injuries your impairments and disabilities arising from these injuries and any economic or non-economic losses you are claiming. These details are called particulars and must be provided to the CTP insurer as soon as possible after you make your claim - your claim may be affected if you do not provide the CTP insurer with all relevant particulars. This information will help the insurer to make a reasonable offer of settlement to finalise your claim. An offer of settlement is money (compensation) to cover the reasonable and necessary expenses and loss of income you have suffered as a result of your injuries. For people with more severe injuries, the offer of settlement may also include an amount for non-economic loss. You can settle your claim with the insurer at any time. If you accept an offer from the insurer your claim is finalised. If there are parts of the offer you disagree with (e.g., the amount of non-economic loss or how much of the accident was your fault) you or your solicitor may negotiate another offer with the insurer. If your negotiations are unsuccessful, you may need help to resolve the dispute. 15

18 RESOLVING DISPUTES If you disagree with the insurer A dispute can happen at any point during your claim. In the first instance, you should refer the dispute to the insurer. All insurers have their own internal dispute resolution procedures. If you are unable to resolve the dispute with the insurer directly the MAA s assessment services, the Medical Assessment Service (MAS) and the Claims Assessment and Resolution Service (CARS) can help. MAS The Medical Assessment Service (MAS) can assess medical disputes about: Reasonable and Necessary Treatment whether treatment provided or to be provided is reasonable and necessary Related Treatment - whether treatment relates to the injury caused by the motor vehicle accident Permanent Impairment whether your injuries caused a whole person impairment of more than 10 per cent. If MAS has already assessed your medical dispute you may also be able to apply for a further medical assessment or a review of your medical assessment. These applications can only be made in certain circumstances. For more information about further medical assessments and reviews, contact the Claims Advisory Service on CARS In some cases, you may not be able to reach agreement with the insurer about certain procedural or claims management matters or you may not be able to agree on the amount or value of your claim (usually called compensation or the amount of damages). The Claims Assessment & Resolution Service (CARS) can resolve disputes about these matters. 16

19 Special Assessments CARS can decide certain procedural or administrative disputes including: whether a late claim can be made whether an insurer can reject a claim for failing to report the accident to police on time whether an insurer can reject a claim form because it is incomplete whether an interim payment should be made in cases of financial hardship whether an insurer is required to pay a particular amount for approved treatment. General Assessments If you are unable to agree with the insurer about your entitlements, you can make an application for an independent CARS assessor to make a determination about the amount of damages that you should receive. This is called an application for general assessment. There are certain things that you need to do before you can submit an application for general assessment by CARS, depending on when you lodged your claim with the CTP insurer. If you lodged your claim on or after 1 October 2008 you will be required to participate in an informal settlement conference with the insurer before you can make an application for general assessment. You will also need to make sure that you have given the insurer copies of all documents that you would like the assessor to consider as part of the CARS assessment. 17

20 Some matters are not suitable for assessment by CARS and will need to be dealt with at court. CARS determines whether a matter is suitable for assessment, or if it should be exempt from the CARS assessment process so that it can proceed straight to court. For more information about the types of disputes that can be assessed by MAS and CARS or for help lodging an application, contact the Claims Advisory Service on Court Proceedings You cannot take your claim to court unless the claim has been referred to CARS, and a certificate of assessment or exemption has been issued. Time limits apply for commencing proceedings at court. You may not be able to take your claim to court if you do not commence court proceedings within three years of the accident. The time taken for an assessment at CARS is not included in the three years. For more information about time limits, contact the Claims Advisory Service on

21 OTHER ISSUES Pensions and allowances Compensation may affect your entitlement to a pension or allowance from Centrelink and may mean you have to repay money to them. You may also be prevented from claiming a pension or allowance for a limited time in the future. Speak to your solicitor or to Centrelink about this. If you have also made a workers compensation claim for the same accident, you may have to refund money to the workers compensation insurer. Medicare If you have claimed Medicare for treatment expenses relating to your injuries, these may need to be reimbursed to Medicare Australia when you settle your claim with the insurer. Fraud There are severe penalties for making a false or misleading statement in your report to the police, in your claim form or as part of any information you give to the insurer in your claim ($5,500 or 12 months prison, or both.) The Claims Register Some of the information about the claim will be recorded on the MAA Claims Register. Only staff of the MAA, approved insurance companies and other bodies with proper legal authority have access to limited information from the register. You can have access to your personal information on the register by writing to the General Manager of the MAA, Level 25, 580 George Street, Sydney NSW

22 You may also seek correction of any personal information about you held by the MAA under the provisions of the Privacy Act and the Health Records Information Privacy Act. If a close relative dies in a motor vehicle accident If a close relative dies as a result of a motor vehicle accident, you may be able to claim compensation for the financial losses you have suffered as a result of the death of that person. Contact the Claims Advisory Service on for more information. Legal costs The insurer may, at some stage, be required to pay some or all of your legal costs, but do not assume that the insurer will pay your legal costs. The legislation fixes legal costs in some circumstances, but allows lawyers to charge more than this if they have an agreement with you. Note that if the insurer is required to pay your legal costs, they will not have to pay more than the fixed amounts (if these apply). Your solicitor is required by law to advise you in writing before they start working for you, the basis on which they will charge and an estimate of what their costs are likely to be. Your legal costs may include your solicitor s fees and other expenses (sometimes called disbursements) such as the cost of medical reports. Make sure that you also understand when you will have to pay these expenses and how much they are likely to be. A court can order that you also pay the insurer s legal costs. They are likely to do so if you are not successful with your claim or if you refuse an offer of settlement from the insurer which is more than the court determines you are entitled to. You can discuss the likelihood of the court ordering that you pay the insurer s legal costs with your solicitor. 20

23 USEFUL CONTACTS MAA Claims Advisory Service: MAA Nominal Defendant: Level 25, 580 George Street Sydney 2000 DX1517 Sydney Motor Accidents Assessment Service MAS and CARS: Level 19, 1 Oxford Street Darlinghurst 2010 DX10 Sydney Insurer Licensing & Performance For complaints about insurers Government Roads and Traffic Authority (RTA) Police assistance line (for reporting accidents and enquiries) Law Access Legal Service Commission

24 Others Associated Translators and Linguists (interpreters) Law Society Referral Service Workcover Assist Current CTP insurers AAMI Insurers Allianz Australia Insurance CIC-Allianz Insurance GIO Australia NRMA Insurance QBE Insurance (Australia) Zurich Australian Insurance

25 Interstate organisations ACT NRMA Insurance Limited NT Territory Insurance Office QLD Motor Accidents Insurance Commission SA Allianz Australia TAS Motor Accidents Insurance Board VIC Transport Accidents Commission WA Insurance Commission of WA

26 NOTES 24

27 Disclaimer While all due care and diligence has been used in producing this brochure, the Motor Accidents Authority of NSW does not make any representations or warranty as to the accuracy or completeness of the information presented. It is not provided as a substitute for advice from a legal professional.

28 Level 25, 580 George St Sydney, NSW, 2000 Phone Claims Advisory Service Phone Fax Level 25, 580 George Street Sydney, NSW, 2000 DX 1517 Sydney APRIL 2010

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