Monday, February 9, 2009

Compensation Claims When Injured As a Result of a Car Collision

There are numerous obligations on a person that has been injured in a motor vehicle/car accident which is also known as a third party claim so as to protect their legal rights.

Firstly, it must be established that the accident occurred as a result of the fault of another person.

Negligence of the Driver

Generally, people who operate machinery such as cars, motor cycles, buses and/or any other unregistered form of transport that is similar to a motor vehicle and defined as a motor vehicle under the law need to operate the machinery taking reasonable care. The injured party known as the Plaintiff is required to prove that the defendant, that is, the person at fault was negligent. In many cases only a small degree of negligence is necessary to be established. Police attending the scene of an accident are not always correct in assessing who was at fault and look at it from a different point of view namely, a criminal burden of proof.

Accidents not caused by the Driver

In some circumstances motor vehicle accidents, can occur where there was no driver fault. For example if there is an issue as to the unsuitable state of the roadway caused by for instance the Road Traffic Authority leaving gravel or sand on a road or alternatively, the vehicle itself may have been faulty, action can be brought against other parties other than through third party compensation. This action may involve a product liability suit against a car repairer and/or manufacturer or alternative an action against someone that caused damage or unsafe surface on a roadway. We will look at all of these aspects in assessing liability.


Often in motor vehicle accidents people are seriously injured and could sustain brain injury, orthopaedic injuries, internal injuries to stomach, liver spline and/or other areas of the body and these injuries and disabilities cover psychological and psychiatric problems. We will take into account and have you assessed by various medico-legal specialist covering psychiatric, orthopaedic, neurological, homecare service needs, wage loss including loss of superannuation, projections into the future as to wage loss, superannuation loss and homecare needs and medication and surgery needs both past present and future.

Nominal Defendant Claims

Often an accident can occur where the identity of the driver at fault is not known for example where a person causing an accident leaves the scene of the accident or does not collide with the injured person and/or the vehicle in which they are travelling but rather indirectly causes the accident and their identity is not known. Under those circumstances, there is a special insurance cover known as Nominal Defendant right of action in Australia covered under Australian law. It is very important however to report immediately to police attending the scene of the accident or shortly thereafter of these circumstances so that adequate investigations can be made in a timely fashion.

Non Economic Loss

Claims for pain and suffering arising from car accident claims are known as non economic loss. There are however thresholds to overcome and in NSW an injured person must have injuries 10% or greater based upon Whole body permanent impairment. In various states of Australia the figure differs but basically there are specialist doctors that our firm will engage generally at our own cost who are well versed in assessing this aspect. Even if a claimant does not exceed the 10% threshold the injured person still has very valuable legal rights for numerous other heads of damages including Homecare and/or gratuitous services provided by family members and/or friends, past and future medical expenses, past and future wage loss, claims for additional household equipment needed to assist the injured person including renovations to the home if necessary.

Legal Costs

Legal costs in Motor Vehicle/Accident Claims are generally covered by the third party insurance scheme for the particular state in Australia where the accident occurred. Please be aware that these costs are limited and most if not all lawyers acting charge above the scale allowed. It is important to note that any lawyers that wish to charge above the scale need to set out in writing in a separate document the clear terms upon which they intending to charge.

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