If you have been injured in a motor accident in New South Wales, you may be able to access benefits available under the compulsory third party scheme (CTP scheme).
Compulsory third-party insurance (also known as ‘greenslip insurance’) is mandatory for all registered motor vehicles and provides cover for legal liability for injury and death as a result of an accident for which an insured (driver) is responsible.
The CTP scheme at a glance
The Motor Accidents Injuries Act 2017 (NSW) applies to motor accidents occurring after 1 December 2017 and establishes a no-fault compensation scheme. Injured road users may receive statutory benefits, irrespective of fault (and where fault cannot be attributed), however these benefits vary depending on the circumstances of the accident.
Injured persons who were at fault or partly at fault for the accident may claim statutory benefits however payments are limited and additional entitlements to damages (further compensation) reduced in accordance with the degree of contributory negligence. A person will generally not be entitled to damages if they were completely at fault.
The CTP scheme is regulated and administered by the State Insurance Regulatory Authority (SIRA).
A ‘motor accident’ means an incident or accident causing death or injury due to the driving of a vehicle; a collision or action taken to avoid a collision; an out-of-control vehicle; or a dangerous situation caused as a result of these events.
The scheme covers drivers, passengers, pedestrians, cyclists, motorcyclists and pillion passengers and extends also to those witnessing an accident, family members who observe injuries or death, and dependants of injured persons who suffer loss of support.
What should you do if you are injured in a motor vehicle accident?
If you are injured in a motor accident, regardless of fault and the extent of injuries sustained, you should:
- obtain details of the other driver, if applicable;
- report the injury to the police as soon as possible but no later than within 28 days of the accident to obtain a COPS event number;
- visit your general practitioner / hospital and obtain a medical certificate (certificate of fitness) from the treating doctor;
- submit a Personal Injury Benefits claim with the certificate of fitness and, if applicable, proof of income with SIRA.
SIRA will contact the insurer and the insurer will contact the injured person within three working days to discuss the claim and how to go about claiming treatment expenses.
The claim is assessed by the insurer. Within four weeks of making a claim for statutory benefits, the insurer must notify the injured person advising whether or not it accepts liability and, if so, will make payments for up to 26 weeks from the date of the accident.
The insurer has three months to notify the claimant as to whether it will accept liability for payment of the statutory benefits beyond 26 weeks.
What benefits are available?
The statutory no-fault benefits payable by a CTP insurer apply for physical and psychological injuries and may include:
- weekly income payments for loss of earnings;
- reasonable medical treatment costs including rehabilitation, physiotherapy, dental and pharmaceutical expenses;
- the costs of travelling to and from medical appointments;
- payment for domestic services, in some circumstances;
- reasonable funeral expenses, if applicable.
Weekly income payments
A Personal Injury Benefits claim must be made within three months of the date of the accident, however for weekly income payments to be backdated to the date of accident, the claim must be lodged within 28 days of the accident.
Income support payments may be payable for the first six months no matter who was at fault and are paid at a percentage of the injured person’s pre-accident earnings. Generally, for the first 13 weeks, the maximum payment is 95% of the earnings which reduces to 85% after 14 weeks.
After six months, income support payments cease if you were at fault or mostly at fault or you have only minor injuries. A minor injury generally includes a soft tissue injury or minor psychological or psychiatric injury.
Major injuries – common law damages
For serious injuries, where the accident was not the fault of the injured person or the injured person was only partly at fault, a common law damages (compensation) claim may be pursued.
Damages payments may include economic loss and / or non-economic loss. A person must have sustained a permanent impairment of greater than 10% to claim non-economic damages.
Economic loss includes past or future loss of earnings or impaired earning capacity, accommodation and travel expenses, financial management expenses and reimbursement of income taxes paid or payable where relevant, and attendance and respite care services.
Non-economic loss includes damages for pain and suffering, emotional anguish, loss of enjoyment of life and activities, etc.
Common law damages claims must be made within three years of the accident however an insurer is required to properly consider a claim made beyond this timeframe.
How a lawyer can help
Obtaining legal assistance to make a motor vehicle accident claim will help to ensure that strict time limits are met, and the information provided is accurate and comprehensive, so your claim may be properly assessed.
Particularly for more serious claims, it is important that your legal rights are protected, and you can make informed decisions to ensure that appropriate compensation is obtained to assist, as far as possible, in your emotional and financial recovery.
Most claims are settled through negotiation with the insurer without the need to go to Court however if Court representation is necessary, your case must be carefully prepared with all relevant evidence and within applicable timeframes.