Articles

Motor accidents are a fairly common thing, but they can have dramatic consequences. If people are injured their quality of life or ability to earn income can be affected in the short or long term.

If you have sustained a personal injury (including mental or nervous shock) whether as driver, passenger, pedestrian, cyclist or other road user, you may be able to claim compensation.

In the case of death resulting from a motor vehicle accident, the deceased’s spouse, parent, child or sibling may be able to claim.

Unless you were entirely at fault in an accident or no other motorist was at fault, the compulsory third party insurance scheme in South Australia provides compensation for accidents involving a South Australian vehicle. If the identity of the vehicle is unknown or the vehicle is unregistered you may still be able to make a claim. There is also comparable legislation in other States for vehicles registered elsewhere. Andersons Lawyers can also act for claimants where the accident occurred interstate but they remain a resident of South Australia ( i.e when on holidays etc)..

If you were injured in a motor accident and want to find out if you can claim compensation, you should speak to Andersons. We can settle claims with the insurer or a common law action for damages can be taken and either decided in court or settled during the proceedings. In either case, we can advise you and help you take the best course. If the insurer has made an offer of compensation direct to the injured party we firmly believe we can better that offer. We can assess that with you in a free no obligation initial interview of 30 minutes.

Negligence

In order to claim compensation, you need to prove that the other person was negligent. You cannot claim if the accident was entirely your fault.

Proving negligence is not easy. You need to show that the injury or damage was wholly or partly caused by lack of reasonable care on the part of the other driver in the driving, control or maintenance of their vehicle.

There are a number of factors to be considered in determining whether a driver has been negligent. Drivers owe a duty of care toward other users of the road; they are negligent if they breach this duty. A breach of duty could arise from driving at an excessive speed, failing to keep a proper lookout, not having sufficient control of the vehicle or intoxication by alcohol or drugs. Whether or not there has been a breach of duty will depend on all the factors surrounding the accident.

Contributory negligence

There may be circumstances where in addition to the fault of the driver, the injured party was also partly at fault. A court can apportion damages according to your degree of responsibility for the accident. For example if you were 25% responsible for the accident, any damages you are awarded will be reduced by 25%. There is legislation which provides that damages will be reduced in specified circumstances, for example not wearing a seatbelt or helmet or where there is alcohol or drug use involved (see Wrongs Act 1936 ss 24J – 24N).

Time limits

There is a time limit for commencing legal action. In the case of personal injuries for motor accidents it is three years from the date of the accident. You should consult a solicitor as soon as possible after the accident. Even if the injuries have not stabilised and the full extent of damage can’t be properly assessed, it is still important for the effective gathering of evidence to seek advice as soon as possible. Signs of the accident can disappear and people’s memories fade.

Damages

If you are successful in establishing that the other driver was negligent, you can obtain damages in the following categories.

Non-economic loss includes pain and suffering , loss of expectation of life, loss of amenities of life and disfigurement.

Economic loss covers medical expenses, cost of care and loss of earnings.

There are limits on the type and amount of damages which may be awarded (see Pt 2A Wrongs Act 1936). For example to claim non-economic loss, the injured person must show that they were significantly impaired for at least seven days and that they incurred medical expenses above a certain threshold. If the threshold is reached, the amount of damages is assessed on a scale of 0 – 60, according to the severity of the injury.

A compensation payment may also affect social security or health benefits or workers compensation and you need to consider whether any of these benefits will need to be repaid.

Deciding whether to bring a claim, conducting that claim in a way that maximises your chances of success and assessing potential damages are complex matters and good legal advice can help you to make wise decisions and maximise any compensation you are entitled to.