MOTOR VEHICLE COMPENSATION CLAIM SUCCESS

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1 MOTOR VEHICLE COMPENSATION CLAIM SUCCESS 6 WAYS TO RUIN YOUR MOTOR VEHICLE COMPENSATION CLAIM

2 6 WAYS TO RUIN YOUR MOTOR VEHICLE COMPENSATION CLAIM In this guide, we have outlined the 6 most common ways that you can sabotage you own motor vehicle compensation claims. We have set out these errors to make sure that you do not make the same mistakes. You only have one chance to obtain proper compensation for your injury and you need to get the best result the first time. You cannot come back and try again. After having an injury and losing the ability to earn you normal income is a very stressful and frightening time. You need to make sure that you don t make mistakes in pursuing your claim. You need to secure your family s financial security in case you cannot return to the same work you did before your accident. YOU ONLY GET ONCE CHANCE AND YOU MUST GET IT RIGHT, YOUR FUTURE DEPENDS ON IT. Thank you for requesting and reading this material. The fact that you have taken the time to look at and read this information shows that you are serious about your claim. You are now on the right path to making sure your claim is as successful as it can be. About the Author Matthew Garling is an Accredited Specialist in Personal Injury Law approved by the Law Society of New South Wales. Matthew is also a member of Australian Lawyers Alliance a group of lawyers dedicated to fighting injustice from big businesses and insurers. Matthew specialises in compensation law and has acted for thousands of injured people in work accidents, motor vehicle accidents and negligence cases. Matthew does not act for insurance companies, in fact insurance companies hate Matthew as he knows the inside secrets they use to prevent people from obtaining proper compensation. Most of Matthew s clients are referred by other lawyers or doctors as these professionals know he is one of the best personal injury lawyers in Sydney. Call Matthew on (02) or mgarling@garlingandco.com.au Introduction Congratulations, by reading this guide you have separated yourself from all of those other injured claimants who will make critical and costly errors when making a claim for compensation. Often people think that they can proceed without the assistance of a Lawyer or without knowing how to make sure that they are doing the right thing when it comes to making a claim. You have one chance to obtain proper compensation and you must get it right. Insurance companies and insurance investigators are experience litigators and know how to defend claims. They know what to look for from the beginning and the questions to ask that will help them put holes in your claim. 2

3 You need to understand how the system works and what the insurance company will do to ensure that they have the upper hand when it comes to your claim. We have outlined 6 critical errors that lots of people make when making a claim for compensation under the Motor Accidents Compensation Act. IF YOU AVOID THESE ERRORS IT WILL SAVE YOU THOUSANDS IN LOST COMPENSATION AND LEGAL FEES. 1. FAILING TO SEND A PERSONAL INJURY CLAIM FORM TO THE CTP INSURER WITHIN 6 MONTHS OF THE DATE OF THE ACCIDENT The Motor Accidents Compensation Act 1999 requires that a claim for compensation must be made within six months from the date of accident. A claim is made by giving notice of the claim to the CTP insurer. The method of making a claim is to complete a Motor Accident Personal Injury Claim Form which is the approved method of making a claim by the Motor Accidents Authority of NSW. The Motor Accident Personal Injury Claim Form needs to be completed and sent to the CTP insurer of the motor vehicle which you consider caused the accident. You can contact the Motor Accident Authority claims advisory service on to find out the CTP insurer of the motor vehicle which you consider at fault. You need to provide the registration number to the claims advisory service and they will tell you the name and address of the CTP insurer. Failure to complete a Motor Accident Personal Injury Claim Form within six months may prevent you from ever being able to make a claim for compensation. It is vital therefore that the claim form is completed and forwarded to the CTP insurer within six months. You are able to make a late claim more than six months after the date of the accident but only if you are able to provide a full and satisfactory explanation for the delay in making the claim. This requires that you provide a detailed explanation to the insurance company why you were unable to make a claim within the six month period. The insurer then decides whether to accept your explanation or not. If the insurer does not accept your explanation then you need to have the matter determined by the Motor Accidents Authority. There is also a claim form called an Accident Notification Form. This is a small form and can be sent to a CTP insurer within 28 days of the date of the accident and allows for immediate payment of up to $5, for treatment expenses and loss of earnings regardless of who is at fault. The Accident Notification Form is not sufficient to make a claim for compensation within the six month period. You must complete the Motor Accident Personal Injury Claim Form within the six month period to be eligible to make a claim for compensation beyond the $5, Failing to complete the Motor Accident Personal Injury Claim Form within six months could ruin your chance of obtaining motor vehicle compensation. 3

4 2. DO NOT SPEAK TO AN INSURANCE INVESTIGATOR WITHOUT FIRST CONSULTING A LAWYER. Once the CTP insurer receives the Motor Accident Personal Injury Claim Form they have a period of up to 3 months to determine whether they will accept or decline your claim for compensation. The insurer will consider whether their driver caused the accident or was at fault. The insurer will usually undertake the following investigations:- i. Obtain a copy of the police report of the accident. ii. Appoint an insurance investigator to talk to you about how the accident occurred and to take a statement from you and other witnesses including the driver of the vehicle you say caused the accident. iii. Obtain your medical records in relation to the injuries you have sustained. The insurance investigator will want to take a typed statement from you about your history, your employment, how the accident occurred, what injuries you sustained and any other relevant matters. Most important of those is how the accident occurred. The insurer is investigating what caused the accident and if you provide a statement to an insurance investigator this will be used by the insurer to make their decision. Sometimes the insurance investigators are not always independent and can put words into your mouth as to how an accident may have occurred. This is not always intentional and some people have difficulty explaining exactly how an accident occurred. To avoid these difficulties you should always consult a Lawyer before signing any statement given to you by an insurance investigator. Your Lawyer will be able to immediately advise you what information should be included in a statement to an insurance investigator. You need to be very careful as to the information you provide to the insurance investigator and how that information is worded. This can be crucial as to whether or not your claim is accepted or declined and the statement will be used against you in court at a later date if your claim is declined. It is vitally important therefore to ensure the statement is correct from the outset. 3. RESOLVING THE CLAIM WITH THE INSURER WITHOUT CONSULTING A LAWYER. Surprisingly the majority of claims for compensation under the Motor Accidents Compensation Act are resolved with the insurer by the claimant without the claimant receiving any legal advice. This does not make any sense. Presumably the claimants are concerned about legal costs. The problem is however that a claimant would had no idea how much compensation they are entitled to receive under the Act. The insurance company is experienced in litigation and resolving claims and there is therefore an unfair playing field. I often see settlements where a claimant could have obtained ten to twenty times more 4

5 compensation then they accepted from the insurance company. The insurers like to try and resolve claims very early and cheaply. They may offer for example $10,000 or $20,000 to resolve a claim early and get a signature on the settlement documents from the claimants. The problem with this, the money looks attractive and people will often settle. The problem with this is, however that had the claimant consulted a lawyer they might have received more like $100,000 - $200,000 in compensation. This happens a lot. There should be no concern respective payment of the lawyer s legal fees in relation to a settlement under the Motor Accidents Compensation Act as all experienced lawyers in this area will charge on the basis of a no win no fee agreement. This means they do not receive any fees for legal services unless you obtain proper compensation. A lawyer will generally obtain for you a much, much greater amount of compensation than you would have been able to obtain on your own and therefore the cost involved is certainly worthwhile. Most people assume they are only entitled to reimbursement of medical expenses they have incurred as a result of an accident however they may be entitled to much more including the cost of past loss of wages and future loss of wages, an amount for pain and suffering, an amount for care and assistance. You will need a layer to assist you to assess how much compensation you are entitled to receive. 4. FAILING TO REPORT THE ACCIDENT TO THE POLICE IN 28 DAYS OF THE MOTOR VEHICLE ACCIDENT S 70 of the Motor Vehicle Accidents Compensation Act 1999 requires that all motor vehicle accident that give rise to a claim for compensation must be reported to a police officer within 28 days of the motor vehicle accident. Usually the accident is severe enough that the police attend the scene and this will satisfy the requirement to report the accident to the police. In accidents however, where the police do not attend the scene you are required to notify the police of the accident within 28 days. You should do so by attending your local police station and make a written report. If the police refuse to take a written report then you should obtain the police officers name, the station details and the date that you reported it as this will often satisfy the requirement under s 70 of the Acts. If you do not report the accident within 28 days you may be prevented from making a claim for compensation. If you have not reported the accident within 28 days you must provide a full and satisfactory for non-compliance with this requirement to the insurer. The insurer can reject your explanation. If your explanation is rejected you will need an independent person to assess whether your claim can proceed. 5

6 5. CHOOSE THE WRONG LAWYER TO REPRESENT YOU Probably the most important decision you can make in any claim for compensation is the lawyer you chose to represent you. You have one chance to obtain proper compensation and secure your financial security. If you choose the wrong lawyer you could lose everything you have worked hard to achieve. The lawyer you choose to represent you in a motor accident compensation claim should be: 1. A specialist in compensation law they should be an accredited specialist in compensation law approved by The Law Society of NSW. 2. You should make sure that the person that is actually handling your case on a day to day basis is an accredited specialist in personal injury law. Often in the larger firms you may see a partner who is an accredited specialist but he or she may not actually be the lawyer handling your claim. Your claim will be given to a more junior lawyer who is not as experienced, and essentially learning on your claims. The lawyer should be able to tell you what chance there is of success in your case, how much your case is worth and how long your case will take. Your lawyer should be able to tell you this, your lawyer should be able to provide you with an estimate of these matters at the first consultation. Your lawyer should offer you a no win no fee cost agreement. This means that you do not pay legal costs unless you are successful. Most lawyers however charge an hourly rate for their legal fees. In our view charging an hourly rate causes a conflict of interests for you and your lawyer. If a lawyer is charging by the hour then he wants your case to be as complex as possible and go for as long as possible, so he can charge you more for the hours of work. On the other hand you want your case to be simple and finalised as quickly as possible. This is a conflict of interests you should find a lawyer who charges a lump sum amount on the stages of preparation or an agreed upfront amount based on resolution of the claims. For further information on how to choose your lawyer please see R Howard s Choose a Compensation Lawyer NSW (E-book). 6. FAILING TO TELL YOUR GENERAL PRACTITIONER ABOUT THE INJURIES AND PROBLEMS YOU HAVE FROM THE ACCIDENT It is critical that after any motor vehicle accident you tell your general practitioner about all of the injuries, problems and symptoms you have on a regular basis. Your general practitioner should note your complaints in his records. This is very important. The first place the insurance company or a court will look to see what injuries you have sustained from an accident is your general practitioner s records. If your general practitioner does not have a record of you complaining for example of neck pain following the car accident, then it will be very difficult to prove later that you had a neck injury as a result of the car accident. 6

7 You need to complain to your general practitioner of where you have pain and ensure that it is noted in your records. This can often be the difference between a very successful and an unsuccessful claim. A lot of people are very stoic and do not like complaining, however in the case of a compensation claim if the injury is not recorded in your general practitioner s notes, or maybe the physiotherapist then it is difficult to prove later if you had the injuries, as a result of the car accident. BONUS As a bonus for downloading this guide we will also outline for you, how to choose the best compensation lawyer to represent you in your claim. You must make sure that you chose the best lawyer to represent you as they will be able obtain for you the compensation, in the least possible time with a minimal amount of problems. You should only choose a lawyer if: 1. They specialise in personal injury law 2. The lawyer is an accredited specialist in personal injury law by the Law Society of NSW 3. That they can tell you at the first consultation the chance of success for your claim and roughly how much your case is worth. 4. They outline in detail how legal fees will be charged. When you choose your lawyer you should make sure you are getting straight answers and that you like your lawyer. You will be spending a lot of time talking to your lawyer so make sure it is someone you will be able to get along with and trust. This is very important. Don t choose a lawyer simply because his or her office is close to your home and is convenient. The truth is majority of the best lawyers in NSW will have their office in the Sydney CBD. Don t choose a lawyer based on price. An experienced lawyer will charge more than a less experience lawyer. You only have one chance at obtaining proper compensation and it must be done well the first time. The more experienced lawyer, whilst charging more will get you a result that more than makes up for the added expense and in less time. An inexperienced lawyer will be charging you to learn on the job. The most important decision you can make in your compensation claim is choosing a lawyer who represents you. Don t just go for the first lawyer you find. All lawyers are not the same; there are good lawyers and bad lawyers. If necessary you need to interview a number of lawyers before deciding on the one you want to represent you. 7

8 Make sure the lawyer who is actually handling your case on a day to day basis is an accredited specialist in personal injury law. If you have found any of this information helpful and would like to discuss your claim further please don t hesitate to contact Matthew on (02) or mgarling@garlingandco.com.au or contact us through our website 8