Changes to NSW motor accident laws – your definitive guide
On 30 March 2017, the NSW Motor Accidents Injuries Bill 2017 was passed by parliament. This bill is significant as it replaced the previous compulsory third party motor accidents scheme under the Motor Accidents Compensation Act 1999, therefore changing the ways in which injured parties are compensated for motor accidents.
Reviewing the processes and legislation that cover you in the event of an accident is usually only a priority once you’ve actually been involved in an accident. However, understanding what to do when an accident happens, and how you’re covered financially and medically, can ease your mind during a stressful and difficult time.
In this comprehensive guide we’ll cover exactly what has changed in the new laws, how the changes may affect you and what you need to do in the event of an accident.
When do the new laws take effect?
The legislation commenced on 1 December 2017.
What’s changed in the new laws?
There are two significant changes to the motor accident laws in NSW. The first is that statutory benefits are available to any injured party involved in the accident, regardless of who’s at fault. This includes wage loss, medical treatment and funeral expenses.
The second change is a reduction in the things you can claim damages for if another person was at fault, or if it was a blameless accident.
Ask an expert
What is the biggest change to the law?
Who will be most affected?
When should I contact a lawyer?
Should the police always be called?
What is the difference between statutory benefits and damages?
The new laws have changed the way you’re compensated for a motor accident by the introduction of statutory benefits.
Previously entitlements were mostly dependent on which party was at fault and were primarily intended to cover the injured parties who weren’t at fault. Under the new statutory benefits scheme, any person injured in the accident, regardless of fault, is entitled to receive statutory benefits that include:
- Wage losses
- Medical treatment
- Funeral expenses
Before we delve into details of these payments, it’s important first to address some exclusions that apply.
- The at-fault driver’s vehicle is uninsured
- The injured person commits a serious driving offence
- Workers’ compensation is payable instead
- If you’re residing outside of Australia (in some circumstances)
Ask an expert
How much will it cost to make a claim?
How long will it take to run the case?
What is a serious driving offence?
Like many legal terms, “serious driving offence” details a specific set of offences. These are:
- Murder or manslaughter (as a result of the motor accident)
- Reckless grievous bodily harm or wounding with intent
- Predatory driving – this means driving too close to other vehicles, speeding, swerving or other activity that is deliberately aggressive
- Driving recklessly and/or endangering the public while being pursued by police
- Failing to stop after an accident where grievous bodily harm has occurred (“hit and run”).
- Furious driving resulting in injury
- Causing grievous bodily harm by a negligent or unlawful act or omission
- Driving under the influence of alcohol
- Driving under the influence of prescribed illicit drugs
- Use or attempted use of vehicle under influence of alcohol or any other drug
- Driving negligently causing death or grievous bodily harm
- Driving furiously, recklessly, or at a speed or in a manner dangerous to the public
- Driving in a manner than menaces another person with intention of menacing that person
- Failing to stop and assist after impact causing injury
- Refusing or failing to submit to breath analysis
- Refusing or failing to provide blood samples or preventing samples being taken
- Wilful introduction or alteration of concentration or amount of alcohol or drugs between time of accident and time required to submit to police test
If you are convicted or have been charged with any of the above offences, you are not eligible for statutory benefits. However, if you are acquitted of these offences, then you will be eligible, and may be entitled to be back paid from the date you were charged.
Weekly payments for loss of earnings
Injured parties are entitled to weekly payments in order to cover a loss of earnings due to the injuries sustained in the motor accident. These lost earnings could be salary, wages, commissions and other income you would normally receive on a regular basis.
In order to receive these payments, you need to be qualified as an “earner”. In legal terms, an earner is somebody who is 15 years or older and:
- Was due to commence employment at a business, or self-employment; OR
- Was receiving a payment for loss of earnings under the workers’ compensation scheme or the motor accidents scheme; OR
- Met one of three alternative employment criteria.
The person meets the employment criteria to qualify as an “earner” if he or she is 15 years or older and was employed:
- At any time during the eight weeks prior to the accident; OR
- For a period equal to 13 weeks in the year preceding the accident; OR
- For a period equal to 26 weeks in the two years preceding the accident.
How the payments work
These payments are sectioned into “entitlement periods” and calculated from the date of accident (DOA). The amounts payable are calculated as a percentage of the difference between your weekly earnings prior to the accident, and your weekly earnings after the accident. This is referred to as pre-accident and post-accident income.
For example, let’s say your work relies on physical labour and you make $1,000 a week. You then injure your back in a motor accident and, because of your injuries, you can only earn $800 a week.
Pre-accident income = $1,000
Post-accident income = $800
Difference = $200
Your weekly payments would then be worked out as a percentage of that $200 difference depending on which entitlement period you are in.
First entitlement period (first 13 weeks following DOA)
During the first 13 weeks following your accident, regardless of fault, you’re entitled to 95% of the difference in your pre-accident and post-accident income. In the above example, that would be equal to $190 per week (95% of $200).
If, at the time of the accident, you were a full-time university student, then you will be classified as an earner from the time you would have completed your studies. Your pre-accident income from that time is calculated based on what you would have earned on the completion of your studies.
If, at the time of the accident, you were a full-time student, then you will be classified as an earner from the time you would have completed your studies and reached the age of fifteen. Your pre-accident income from that time is calculated based on what you would have earned on the completion of your studies.
Apprentices, trainees and young people
If, at the time of the accident, you were under the age of 21 years or were a trainee or apprentice and you would have expected your earnings to increase because of your age or the terms of your contract, then your payment may be increased accordingly.
Second entitlement period (14 – 78 weeks following DOA)
Your payment in the second entitlement period depends on whether your are totally or partially incapacitated:
- Total incapacity
means that you are totally unfit for work because of your injuries
- Partial incapacity
means that you are fit for some, but not all of your usual work because of your injuries
In the event of total incapacity, you will receive 80% of the difference between your pre-accident income and post-accident income. In the example above you would have to assume that there is no ability to earn $800 after the accident and therefore your loss is $1,000 per week. That would then entitle you to $800 per week (80% of $1000).
In the event of partial incapacity, you will receive 85% of the difference between your pre-accident income and post-accident income. Using the above example, that would equate to $170 per week ($1000 pre-accident income, reduced to $800 because of partial incapacity, meaning a loss of $200. 85% of $200 = $170).
Once you reach 26 weeks (six months) after the date of accident, your payments may be stopped or reduced depending on how serious your injuries are and whether you were at fault in causing the accident or were contributorily negligent.
If your injuries are minor injuries, then your payments will cease completely after 26 weeks.
Minor injuries are soft tissue injuries. This means injuries to the tissue that connects, supports, or surrounds other structures or organs of the body, like:
- Fibrous tissue
- Blood vessels
- Synovial membrane
However, the definition of “minor injuries” excludes injury to nerves or a rupture of a tendon, ligament, menisci, or cartilage (complete or partial).
Your doctor should document your injuries and provide you with a medical certificate indicating the extent of them.
Exceptions to the definition of minor and non-minor injuries will be published shortly and you should seek legal advice if you believe that your injury has been incorrectly classified by your insurer.
If you were wholly or mostly at fault for the accident, then your payments will cease completely after 26 weeks.
“Mostly at fault” is defined in the new law to mean that the contributory negligence of a person was 61% or more. This refers to a blame percentage that is attributed to the people involved in a motor accident.
An example may be where one driver exits a driveway onto a street and is hit by another car. While the car on the street failed to stop in time, and thus caused damage, it could be argued that the car leaving the driveway failed to properly scan the road for hazards and ultimately was more to blame.
However, this is a simplified example. In the real world, the attribution of blame depends on all the circumstances of the incident and no two cases are the same.
The insurance company will tell you if they consider that you were mostly at fault. You may dispute this if you do not agree.
Living outside Australia
An injured person who resides outside of Australia (whether you have moved after the accident, or have returned to your country of origin) is not entitled to weekly statutory benefits, except in the following cases:
- The Dispute Resolution Service has determined that your loss of earnings is likely to be permanent (due to the severity of the injury, for example); AND
- You comply with any additional requirements that may be set out in the motor accident guidelines to be issued in the coming months. (This guide will be updated when that information is available).
Reduction in payments
Your payments will be reduced after 26 weeks (six months) from the date of accident if the accident was partly your fault (“contributory negligence”).
This could be due to:
- Alcohol or drug impairment
- Being a voluntary passenger of a driver who is impaired by alcohol or drugs
- Not wearing a seatbelt
- Not wearing a helmet (if applicable)
- Willingly placing yourself in danger (known as volenti non fit injuria, translated as “to a willing person, injury is not done”) – for example, if you were car surfing.
Third entitlement period (after 78 weeks)
Payments for loss of earnings will only continue after 78 weeks (1.5 years) if you meet the
- You are over the age of 18 (regardless of earner status); or
- You are under the age of 18 but classified as an earner
These age conditions are calculated at the date of the entitlement, not the date of the accident.
When do payments stop after 78 weeks?
If you are still receiving payments after 78 weeks, then your payments will stop:
- After 104 weeks
(two years) if you do not have a claim for damages pending
- After 156 weeks
(two and a half years) if you have a damages claim pending but your “whole person impairment” (WPI) is less than 10%.“Whole person impairment” is calculated according to specific guidelines by a specialist doctor. You cannot calculate your WPI yourself.
- After 260 weeks
(five years) if you have a damages claim pending and your WPI is greater than 10%.
- Upon reaching retirement age + 12 months.
In Australia there is no set retirement age, However, Centrelink determines your eligibility for the ‘Age Pension’ as being between 65 and 67 years of age, depending on your date of birth:
|Birth date range||Required age for the age pension|
|1st July 1952 – 31st December 1953||65 years and six months|
|1st January 1954 – 30 June 1955||66 years and six months|
|1st July 1955 to 31 December 1956||66 years and six months|
|From 1st January 1957||67 years|
Failure to comply
Your payments will be reduced after 26 weeks (six months) from the date of accident if the accident was partly your fault (“contributory negligence”).
Tip: If you’re not taken to hospital following the accident, you should still visit your doctor as soon as possible, both for treatment and to record your injuries shortly after the accident. This will greatly aid your claims and insurance processes.
Payments for treatment and care
Now that we have covered the benefits received based on your loss of earnings, we can turn our attention to the benefits payable for the treatment and care of injuries sustained in a motor accident.
If you’re injured in a motor accident, then you’re entitled to medical and treatment expenses provided that they are “reasonable and necessary”. Your doctor may need to provide a letter or certificate to the insurer confirming that the treatment is reasonable and necessary.
If you need to pay for someone to help you around the home as a result of your injuries, known as domestic services, then this may be covered as long as you require it for a minimum of six hours per week continuously for six months or more. These types of tasks could be general cleaning, mowing the lawn, or other domestic assistance tasks that you are unable to complete by yourself because of your injuries.
There are no statutory benefits for “gratuitous attendant care”, which refers to help from a non-professional carer like a friend or family member, ie someone you wouldn’t pay to help care for you.
If you have to travel to attend treatment, then you are entitled to claim the travel and accommodation expenses that you incur in attending treatment.
If you are under the age of 18, have a disability, or the extent of your injuries means that you need a special assistant when travelling, then expenses incurred by a parent or carer can also be claimed.
When do payments for treatment and care stop?
At fault or mostly at fault
Payments for treatment and care stop after 26 weeks (six months) if you were at fault or mostly at fault for the accident and you were over 16 years of age.
Payments for treatment and care stop after 26 weeks (six months) if your injuries are classified as minor.
Exclusion from treatment and care benefits
Lifetime Care and Support Scheme
You are not entitled to payments for treatment and care if you are participating in the Lifetime Care and Support Scheme.
Living outside Australia
You are not entitled to payments for treatment and care if you are living outside Australia. If you move overseas or return to your home country outside Australia then your payments would stop. If you were injured while on holidays in Australia then you may be entitled to statutory benefits until you return home.
If the motor accident results in death, funeral expenses are covered by statutory benefits.
We’ve now covered the changes to statutory benefits, who is covered and for how long.
In this next section, we’re going to move on to damages, which is another common matter involved in motor accidents.
What are damages?
“Damages” is a sum of money claimed as compensation for losses arising from injuries sustained in an accident.
When are they payable?
Damages may be payable if:
- You have been injured in an accident and a driver or owner of a vehicle, other than you, was partially or completely at fault. This includes if you were a driver, a passenger, a pedestrian, a cyclist, a motorcyclist or pillion passenger; or
- You have been injured in a “blameless accident”, for example, an accident when a driver suffers a heart attack or stroke, or an unavoidable collision with an animal on the road, or an unexplained mechanical failure; and
- Your injuries are more than minor injuries.
You can claim damages for:
- Economic loss; and
- Non-economic loss
Economic loss, as you may have guessed, is the financial loss you suffer because of the injuries you sustained in the motor accident. Damages are claimed based on your net (after tax) losses and you do not have to pay tax on them.
The economic loss damages you can claim for are:
- Past loss of earnings (including superannuation)
- Future loss of earnings or impairment of earning capacity (including superannuation)
- The cost of financial management of any damages that are awarded to you, for example, if you require professional assistance in managing your money because you are under the age of 18 or are mentally impaired
- Reimbursement of tax paid or payable on workers’ compensation benefits
Non-economic loss damages is an amount of money to represent the pain, disability, loss of enjoyment of life, disfigurement or associated circumstances that you suffer because of your injuries.
Non-economic loss is only payable to you if your whole person impairment is greater than 10%.
How to claim statutory benefits and damages
In order to claim statutory benefits, you will need to follow some reasonably simple procedural steps and adhere to some important time frames. Failing to do so could make your claim significantly more difficult, or void your entitlement entirely.
If you are claiming both statutory benefits and damages, you must lodge them separately.
If you are claiming statutory benefits or damages, you must comply with the verification requirements. At the time of writing, the requirement is to notify the police of the accident within 28 days.
In order to claim statutory benefits, a “notice of claim” needs to be lodged with the relevant insurer. The relevant insurer is:
- The insurer of the motor vehicle if there is only one vehicle involved;
- The insurer of the at-fault motor vehicle if more than one vehicle is involved (if more than one vehicle is at fault, then the one which was most at fault);
- The nominal defendant if the motor vehicle was uninsured or unidentified.
You need to lodge a claim with the insurer to claim your statutory benefits. There are time frames for doing so. There will be guidelines released in the coming months that outline specific claim forms and further details. We will update this guide when those are available.
It is in your best interests to submit your claim to the relevant insurer within the first 28 days after the accident. This will ensure that you can receive weekly payments from the date of the accident.
If you do not submit your claim within the first 28 days, your weekly payments will only be payable from when you make that claim, not from the date of the accident, so you could lose some benefits.
Within three months
While the 28 day timeframe is optimal, you must make your claim within three months of the date of the accident. Just remember that if you submit your claim after 28 days, then you’re only entitled to payments from the date you submitted your claim, not from the date of the accident.
After three months
You can still lodge a claim with the insurer outside three months but you may not be entitled to payments unless:
- You can provide a full and satisfactory explanation for the delay in lodging your claim; AND
- Your claim is made within three years; or
- Your permanent impairment is greater than 10% or the claim relates to death.
Your insurer must give you notice as to whether they will accept liability for the first 26 weeks of statutory benefits payments within four weeks from your claim submission.
Furthermore, your insurer must give you notice if they accept liability for payments after the first 26 weeks within three months from the date you submitted your claim.
If you disagree with a decision of the insurer then you can dispute that decision.
The types of things you might disagree with the insurer about include:
- The amount of your pre-accident income or earning capacity
- Whether you were an “earner” before the accident
- Whether your injuries are “minor injuries”
- Whether the motor accident was caused partly or wholly by your fault
- Whether, and how much, you were contributorily negligent
- Whether your injuries result in greater than 10% whole person impairment
- Whether your treatment is reasonable and necessary
- Whether you require paid domestic services
How do I dispute the insurer’s decision?
Step 1: Request an internal review
The first step is to request an internal review of the decision. This simply means asking the insurer to review their decision.
The insurer has 14 days to complete the review and notify you of the results of their review.
Step 2: Refer to Dispute Resolution Service
If the insurer does not change their mind or you are still unhappy with their decision, you can refer a dispute to the Dispute Resolution Service.
It’s worth noting here that should you need to dispute an insurer’s decision, you will have almost certainly sought legal advice. If you haven’t yet done so, and are considering disputing an insurer’s decision, then speak to a lawyer first.
To claim damages you first need to give notice of the claim to the insurer. This is separate to your claim for statutory benefits.
Within three years
Your damages claim must be made within three years of the date of your motor accident. This is important because if you attempt to claim outside the three year period, then you’ll need to provide a full and satisfactory explanation for your delay and may lose your right to claim altogether.
After 20 months
You have to wait for 20 months from the date of your accident before you can claim for damages unless:
- The claim is for the death of a person; or
- Your whole person impairment is greater than 10%.
On this topic, it’s also worth noting that the claim cannot be settled within two years of the date of the accident unless you meet one of the above two exceptions.
After the claim has been made, you must submit what’s known as “relevant particulars”. The relevant particulars of your claim are the full details of the accident, the nature of your injuries and disabilities, and the details of all your losses.
For example these may be:
- Accident report (referred to as an Event Report by the police)
- Injury report, including disabilities, impairments and your WPI if applicable (provided by a doctor)
- Record of economic losses
- Record of non-economic losses (NEL)
If you fail to do so by 30 months (two and a half years) then the insurer can formally request that you supply the necessary information. It is in your best interests to provide these details at the earliest opportunity because otherwise you can lose your right to claim.
Once you have provided all the particulars of your claim, the insurer is required to make an offer as soon as practicable, unless they wholly deny liability for your claim.
The insurance company cannot delay making an offer based on insufficient particulars unless they request further particulars from you within two weeks of you supplying all the relevant particulars to them.
Claims assessment by the Dispute Resolution Service
Once you and the insurer have used your best endeavors to try to settle your claim, if you haven’t been able to reach agreement then you can refer your claim for assessment to the Dispute Resolution Service. This must be done within three years of the date of the accident.
In some circumstances you can be exempt from this step. Instead you will need to get a Certificate of Exemption from the Dispute Resolution Service and then commence court proceedings. You might be exempt from the claims assessment process if, for example, the insurance company wholly disputes liability for your claim.
Most matters will be resolved through the claims assessment process, but if your claim is an exempt claim then you may commence court proceedings.
If you are unhappy with the assessment of your damages made by the Dispute Resolution Service then you can commence court proceedings.
You must commence court proceedings within three years of the date of accident. The three years is paused while your claim is referred to the Dispute Resolution Service for assessment or for the issue of a Certificate of Exemption.
If you do not commence court proceedings within three years of the date of accident, then you may lose your right to claim altogether except in limited circumstances.
When do the new laws take effect?
The new laws took effect on 1 December 2017.
What to do when you’re involved in a motor accident
Now that we’ve covered the changes to motor accident law, it’s time to go through the practical processes you should follow if you are involved in a motor accident.
Ask an expert
Will I have to go to court?
What are the time limits?
What is the value of my claim?
While there are many safety tips that we would advise for your personal wellbeing, from a legal perspective there are several important steps that you will need to take to ensure that the matter can be resolved as quickly and beneficially as possible.
The first thing to remember when you’ve been in a motor accident is to try to remain calm. Acting angrily or aggressively towards the other driver(s) will not only increase the effects of stress, shock and panic for you and the other parties, but it could lead to serious criminal charges, additional injuries and unnecessary difficulties.
Furthermore, you could find yourself in shock and/or full of adrenaline, which can make it difficult to remain focused on protecting yourself both physically and legally.
Check on the occupants of your vehicle to see if anyone has sustained injuries and, if so, whether they require urgent medical attention. If you, your passengers, or occupants of the other vehicles involved do require medical assistance, it is critical that you dial 000 for an ambulance immediately.
If you are able to vacate your vehicle, then you will need to assess the severity of the damage to your vehicle and to any of the other vehicles involved in the accident. If the damage is significant, you will need to contact the police who will come to document the accident and talk to the involved parties and witnesses.
It may be a good idea to take photographs of the damage to your vehicle and the other vehicle for insurance purposes and even to take photographs of the general area and where the vehicles are positioned if possible.
Fault is determined not by the driver(s), but by the authorities like the police and the courts after careful review of all the circumstances surrounding the accident and by following proper legal procedures.
Ask an expert
What do I have to do?
Is there anything I should do now?
What happens when a claim doesn’t go to plan?
Immediately after an accident
Immediately following the crash and the assessment of injury and damage, you will need to collect information on the other driver(s) and document the accident through photos. Luckily, smartphones have made this process very simple. Here is what you should try to collect:
Contact details of the other driver(s) including:
- Full name
- Full address
- Contact number, including mobile, home and work if appropriate
- Details of their insurer
Vehicle details including:
- Make and model of the vehicle
- Licence plate
- Vehicle colour
Details of the accident including:
- Time the accident occurred
- Date the accident occurred
- Exact location of the crash (You can use Google Maps on your smartphone to pinpoint this if necessary).
- Photos of the accident: Focus particularly on the areas of damage on all vehicles involved, with plenty of close-up images and angles, as well as shots that are further away showing where the vehicles have ended up.
Details of any witnesses including:
- Full name
- Contact details
Please note that if police are involved, they will record these details as well, and some people may prefer just to share their details with police. If this is the case, it’s important to ensure you check that everything is recorded with the police.
When to report the accident to police
The NSW police have “Major Traffic Crash” criteria that are used to determine whether or not they need to attend a motor accident.
1) Someone has been killed or injured
If anyone involved in the accident has been injured, or worse, killed, the police must attend the scene.
2) One or more of the parties left the scene without exchanging details
Referred to as “particulars” by the police – failure to stop and exchange the details (listed above) is another reason for a police presence to be requested. In this event, they will need to speak to you and any witnesses to record as many details of the incident as possible, which hopefully will lead them to track down the other parties.
If there is an altercation between drivers stemming from an unwillingness to swap details, then the police should be contacted to resolve the matter.
3) A driver is allegedly under the influence of drugs or alcohol
If you believe that the driver of the other vehicle is intoxicated by either alcohol, drugs or both, it’s important that the police be contacted. Remember to remain calm in this situation, as any aggression or anger shown towards someone who is intoxicated could pose a risk to your own safety and the safety of those around you. The police are trained and capable of handling the situation.
Other instances that involve police contact
Aside from the major traffic crash criteria, there are other situations that require discussion with NSW police. In many of these cases, the police will be able to advise you of whether they will need to attend the site of the accident, or if any further action is to be taken.
Accidents involving reckless, dangerous or menacing behaviour
If you believe that the accident, even a minor one, was caused by the other driver(s) driving in a manner that was reckless, dangerous or menacing (with or without alleged intoxication), then reporting to police should be a priority.
Suspected criminal behaviour
If there is suspected criminal behaviour at the scene of your car accident, then police should be called. This could include:
- Aggressive behaviour towards you or witnesses
- A suspected underage driver
- A suspected unregistered vehicle
- Suspected intoxication
- Other suspicious activities witnessed
Unattended vehicles and property damage
If you are involved in an accident and unable to trade details with the owner of a vehicle or property, contact the police. They will be able to assist you in recording the incident and finding the owner of the damaged vehicle or property to resolve the matter.
Traffic hazards and large vehicle towing
The police are also required to attend if your motor accident impedes traffic to the extent that traffic management or direction are required to return traffic flow to a normal state. This may include any substances or fluids that have been spilled onto the road as a result of the incident.
If the accident involves a truck, bus or other heavy vehicle, then the police are to be notified so that specialist towing or support equipment can be arranged.
If the police are involved in your motor accident claim, then they will record the details of the accident and provide you with an “event number”. This number can be used to request the police report on your accident.
You, your legal counsel, or your insurer can request your incident report via the Insurance Services Unit or by downloading the ‘P862 Application for Incident Report’ form.
A motor accident is deemed blameless when its cause cannot be directly attributed to the operational failure of the motor vehicle(s) by their driver(s). In other words, if the accident is caused by an external factor not influenced by either driver, then neither driver can be blamed.
An example of a blameless accident could be when one driver suffers a heart attack that causes them to crash into another vehicle.
Hit and run
A “hit and run” is when the driver(s) of one or more of the vehicles involved in the accident depart the scene without swapping any details. In this event, you must contact the police, report the accident and explain the situation. They will advise on the next steps involved, but they will usually attend the scene, speak to any witnesses and record the details of the accident with you.
Aside from the relevant emergency services, there are other parties that you will want to contact, depending on the severity of the damage and extent of injury.
If the accident is minor, no vehicles require towing, nobody is injured and both parties have swapped details, then there is no need to contact the police.
If the damage to a vehicle requires it to be towed from the scene, then you will need to report the accident to the Police Assistance Line. You’ll receive an incident report number to use for the duration of your insurance claim and legal proceedings, if applicable.
If you or a passenger are injured in the accident, but do not need to be taken to hospital, you should go to a medical centre or your GP as soon as possible in order to record your injuries formally.
Your doctor will provide you with a medical certificate and a report that details all injuries caused by the accident, along with any treatment that is required to heal those injuries.
Should your car be damaged, but drivable, you will want to take it to your local (or insurer approved) mechanic so they can provide you with a formal damage report that you can use for your insurance claim and legal proceedings, if applicable.
Manufacturers of objects in your vehicle
In order to assess damages accurately, you may be required by your insurer to have any goods that were inside your car and damaged during the accident to be valued by the manufacturer or a relevant store.
This process will be largely dictated by your insurer. It is important that you comply with their requests to ensure you receive the maximum benefits.
What happens when you’re a pedestrian involved in an accident
If you’re in the unenviable position of being struck by a motor vehicle, then it’s important to understand the process following the incident.
When the accident occurs
If you’re not severely injured, then you’ll need to follow similar steps to that of a motor vs. motor accident. That means:
You must trade the following information with the driver of the vehicle:
- Contact details including: full name, address and phone numbers
- Insurance information
- Vehicle details: licence plate, make, model and colour of vehicle
- Details of the accident: time and date of the accident, location of the accident
- Photos of the accident and any injuries: pictures of the car, including the number plate, any injuries you’ve received
- If possible, get the details of any witnesses
If you’ve endured a minor injury, meaning that you do not require immediate medical assistance like an ambulance or hospital visit, then it’s important for you to follow the above instructions to record the details of the driver(s) and the incident.
You should still visit your GP so that your injuries can be recorded officially for the purpose of any possible insurance claim and any legal proceedings, if applicable.
If you are severely injured due to the accident, you’ll likely be taken to the nearest hospital for treatment. In your absence, police will have been called to attend and record the accident. At this stage, there is of course very little you can do.
Your injuries will be recorded at the hospital for your insurance and any legal proceedings, and the police will be able to provide you with the incident report.
The meaning of a motor vehicle (for claims purposes) is a vehicle that is built to be propelled by a motor that forms part of the vehicle. It can include motorbikes, buses, trucks, trailers, and construction vehicles.
There is no difference in the claims process provided the vehicle is a “motor vehicle”. Also, you can claim if you were a pedestrian or cyclist, as long as a motor vehicle was involved.
Trucks, buses, and other large vehicles almost always require the assistance of police, as they are normally an impediment to traffic and require a level of signalling and traffic control to clear the scene.
If no traffic management is required and damage is minimal, follow the same steps as detailed above, ensuring to swap all driver details and take photographs.
Motor accident laws for tourists in Australia
If you are a tourist or a non-permanent resident and are involved in a motor accident in Australia, you are still covered by Australian law while you remain in the country.
It’s important to note, however, that once you leave Australia, you do not continue to receive statutory benefits.
Should you require continuing healthcare, then you need to follow the laws in place in your country of origin. Your paperwork, including incident reports and medical certificates, can be used as evidence for your local governing bodies.
States in Australia have different laws relating to motor accidents. This guide covers the changes to the laws in NSW only. If you are in a motor accident in another state, your claims and benefits are governed by that state’s laws.
For example, if you are a NSW resident and have a motor accident in Queensland, the incident is covered under Queensland law, not NSW law.
Ask an expert
Which state’s law applies if I am involved in an accident in a state other than my home state?
Are other states changing their laws?
What information should I carry in my car in the event of an accident?
Law personnel involved in motor accidents
The police will attend the motor accident scene if it meets their criteria. They will talk to those involved, including witnesses, and will officially document the incident. You can use this report for your claim.
You may need to seek advice from a lawyer (solicitor) in regard to your claim. They can assist you in dealing with disputes that arise concerning your statutory benefits and/or in claiming damages.
Sometimes your lawyer will engage a barrister on your behalf when presenting your case to the Dispute Resolution Service. If your matter proceeds to court, then your lawyer would engage a barrister to present your case in court.
The insurance claims manager is the person who will handle your motor accident insurance claim. It’s their job to help you process your claim.
At various points during your claim you may be required to attend a medico-legal doctor to assess your injuries, your treatment and care needs and/or your whole person impairment. You may be required to attend a medico-legal doctor for the insurer, for your lawyer and for the Dispute Resolution Service.
Motor accident assessors in the Dispute Resolution Service
If you dispute an insurer’s decision with the Dispute Resolution Service, or you refer your damages claim for assessment by the Dispute Resolution Service, then an assessor will be allocated to your matter to make a decision or assessment about those matters in dispute.
While most claims don’t end up in court, if you do commence court proceedings then your case will eventually be heard by a judge who will determine your case.
Stacks Law Firm motor accident claims and advice
Stacks Law Firm has many lawyers who are personal injury and motor accident law specialists, including Accredited Specialists in Personal Injury law. With a network of lawyers around NSW, we’re focused on ensuring that you have access to high quality and cost effective legal advice to help you resolve your case.
If you need further advice on motor accident laws and how they affect you, or if you believe that you are entitled to damages or other benefits, then be sure to get in touch with us and we’ll direct you to your nearest specialist.