In July 2013, changes to the system of compensation for motor vehicle accidents were introduced in South Australia. These changes have had a profound impact on what compensation you can receive if you have been injured in a motor vehicle accident. Now we're coming up to 12 months into the scheme, we thought it worthwhile sharing our views with you again.
If you are injured in a road accident your injuries must now meet a defined, and very high, threshold before any compensation is awarded. A person's injury must exceed 10 points in the new Injury Scale Value system, which would seem to be a very high threshold, in order to receive any compensation for pain and suffering. This threshold, while ostensibly designed to do away with compensation for minor injuries, has had the impact of generally limiting compensation for all victims of road accidents.
This new system also applies to cyclists who are injured in accidents on the road.
A common injury cyclists experience on the road might be a wrist injury as a result of being knocked from their bike by a car. Before any compensation is awarded a cyclist must prove that their wrist injury has caused some permanent disability which has lead to an Injury Scale Value of 10 or more.
Importantly, a wrist injury which causes some permanent disability, for example persistent pain and stiffness, will not reach the threshold to entitle an injured person to compensation for their injuries. Under the new legislation it may be that many injuries cyclists endure on the road will not be compensated because they fail to meet the threshold.
Any assessment of a person's Injury Scale Value and the level of permanent disability a person suffers can only be made once a condition has stabilised. It can take a considerable period of time before a person's injuries have stabilised. During this time, it is usual for a person's reasonable medical expenses to be paid by the insurer.
The new system for claiming economic loss separates the assessment of past economic loss from future economic loss. Proving past economic loss is not particularly complex and can be as simple as providing medical certificates to prove a particular period of time 'off' work. Even then a person will only recover 80% of their loss under the current scheme.
Future economic loss is more complex and the new legislation places an added burden on the plaintiff (the injured person) to prove a diminished capacity to work into the future.
In both past and future economic loss, the final payment is automatically reduced by 20%. The legislation provides no justification for this reduction.
Claiming compensation for injuries, medical expenses and economic loss under the new legislation is a complex process. As such we strongly suggest that you seek legal advice in order to ensure that you receive all your entitlements.