With many of us spending more time on the road over recent weeks due to the Easter period and school holidays, now is a good time to remind people of their rights and obligations should the unthinkable happen, and they find they need to claim for personal injuries arising from a motor vehicle accident.
This article contains a summary of the claim process which applies to a claim for personal injuries resulting from a motor vehicle accident.
The Motor Accident Insurance Act 1994 (“Act”), commonly referred to by personal injuries lawyers, insurers and insurance lawyers as the MAIA, is the legislation which governs claims for personal injuries resulting from motor vehicle accidents.
All registered vehicles will have a current compulsory third party (“CTP”) policy by virtue of the fact the vehicle is registered. In Queensland, you need to identify the CTP insurer by undertaking a search with the Department of Transport and Main Roads. For a vehicle registered interstate, enquiries need to be made with the relevant State Government Department. If you have instructed a personal injuries lawyer to assist you with your claim then your lawyer will undertake these searches for you.
Who can claim?
Only those who are injured because of the wrongful act or omission of another driver can claim.
This usually means the driver of a motor vehicle which was involved in a single-vehicle accident will not be entitled to claim. A driver who suffers serious injuries in such circumstances should seek legal advice from a personal injuries lawyer as to whether they are entitled to claim pursuant to a total and permanent disablement policy (“TPD”), a partial and permanent disablement policy (“PPD”) or an income protection policy.
The claims process
A CTP claim essentially has two parts: a pre-litigation process and litigation.
1. The pre-litigation process
The pre-litigation process commences when a notice of accident claim form, a form prescribed for use under the Act, is completed and submitted to the CTP insurer. The CTP insurer then has 14 days to advise whether it is satisfied the notice of accident claim form as served upon it complies with the notice requirements as detailed in the MAIA.
A claimant has a duty to report the accident giving rise to their claim to a police officer. In addition, the claimant has an obligation to cooperate with the insurer by providing copies of reports and other documents in their possession as well as to provide information about:
- the accident,
- their injuries and their prospects of rehabilitation,
- their disabilities resulting from their injuries,
- their financial loss,
- their medical history insofar as is relevant to their claim, and
- any prior personal injury claims they have pursued.
The CTP insurer also has a duty to cooperate with the claimant and must provide copies of reports and other documents in the CTP insurer’s possession and to provide information about:
- the accident and the reasons for the accident, and
- the claimant’s medical condition or prospects of rehabilitation.
Both parties will also obtain independent medical reports about the claimant’s injuries or they may agree to obtain joint independent medical reports.
The final stage of the pre-litigation process is a compulsory conference. This is when the claimant, their legal representatives and the CTP insurer (and its legal representatives if the CTP insurer has chosen to instruct its own lawyers) meet. The purpose of the compulsory conference is to discuss the claim on a “without prejudice” basis with the intention of attempting to resolve it.
This is a court proceeding, where the claimant’s lawyer prepares a Claim and Statement of Claim. The claimant’s lawyer will then file the proceeding in a court and then serve it upon the CTP insurer.
The CTP insurer will, if it has not already, instruct an insurance lawyer to act on its behalf. The insurance lawyer will serve a Defence on behalf of the CTP insurer. There are other court documents which are then exchanged between the parties as part of the litigation process.
The fact a claim proceeds to litigation does not mean the claim is going to a trial. It is simply a continuation of the claims process.
Quite often, the claim will be resolved at some stage after litigation is commenced.
If the claim does not settle, then it will proceed to trial.
The limitation period
A claimant normally has three years from the date an accident occurs to commence a proceeding in a court. This period is provided by the Limitation of Actions Act 1974.
If a court proceeding is not commenced within this period then the claim is known as being “statute barred” and cannot proceed.
What if the limitation period is about to end?
If the pre-litigation process has not been completed and the limitation period is due to end, an Application can be filed in the court seeking leave to commence a court proceeding. This will protect the right to pursue the claim further once the pre-litigation process has been completed.
It is not unusual for an agreement to be reached with a CTP insurer that the CTP insurer will agree not to rely on the end of a limitation period as a defence for an additional period of time. It is generally expected that every effort would be made during this extension to complete the remaining part of the pre-litigation process.
What if the claimant is a child or a person who cannot make decisions for themselves?
In these circumstances, a parent or guardian is required to make decisions for the claimant. This parent or guardian is often referred to as the litigation guardian.
Where the claimant is a person under a disability, then the limitation period does not commence until the disability ceases.
A person under a disability is a person under 18 years of age or a person of unsound mind.
Therefore, in the case of a child the limitation period commences when he or she turns 18 years of age and in the case of a person of unsound mind, when he or she is no longer considered of unsound mind.
Should it be necessary to commence a court proceeding involving a child, a person who cannot make decisions for themselves or is of unsound mind then the proceeding is commenced noting the parent or guardian as litigation guardian for the claimant.
When should a CTP claim be commenced?
A notice of accident claim form should be submitted to the CTP insurer within nine months of the date on which the accident occurred or within one month of consulting a lawyer about the possibility of making a claim, whichever is the earlier.
If a notice of accident claim form is not submitted to the CTP insurer within the relevant period, then the claimant has an obligation to provide a reasonable excuse for the delay in doing so.
What if the vehicle which caused the accident cannot be identified?
In these circumstances (which is a reasonably frequent occurrence) a claim can be commenced against the Nominal Defendant.
Picture this: you are driving along a country road with a large truck approaching head on. As you are about to pass the truck, the truck moves partially across the centre of the road causing you to take evasive action. Your car goes off the road as a result and either rolls, hits a tree or ends up in a ditch resulting in you and your passengers suffering injuries.
The truck continues on its way without stopping, either because the driver was not aware the accident had occurred because there was no impact between the two vehicles, or because the driver realises they are at fault and does not want to be the centre of any ensuing police action.
Because you were concentrating on evading the truck and your passengers were not particularly paying attention, none of you can recall any of the truck’s identifying features, much less the make and registration number.
If a claim must be commenced against the Nominal Defendant because the other vehicle cannot be identified, then that claim must be commenced within three months of the date the accident occurred. If this does not occur, then the claim will be out of time and will not be able to proceed.
What if the vehicle at fault is not registered and so does not have a CTP policy?
A claim can also be commenced against the Nominal Defendant in these circumstances.
So, what is the Nominal Defendant?
The Nominal Defendant is a Government entity which acts like a CTP insurer in response to claims involving unidentified motor vehicles or unregistered (and so uninsured for CTP purposes) motor vehicles.
A premium for the Nominal Defendant forms part of each registration fee paid in Queensland.
The Nominal Defendant has the right to pursue the driver or owner of an unregistered motor vehicle to recover the costs it pays in response to a claim for personal injuries, where that claim resulted from a motor vehicle accident involving the unregistered motor vehicle.
This article is intended to be a summary of the process involved in pursuing a CTP claim and to explain the role of the Nominal Defendant.
A person intending or contemplating pursuing a CTP claim should consult a personal injuries lawyer as soon as possible to ensure their interests are protected.
Still need more answers?
Call 1800 WIN WIN or submit an enquiry below.
To access more information, visit our Compensation Claims page and complete the form.