I’ve been injured in a car accident. Do I need a Lawyer?
By Martin Faull
Imagine. You had a car accident. It wasn’t your fault. You were injured and have made a claim for a compulsory third party (CTP) insurance payout. The insurance company has offered you an attractive settlement and you want to accept. It all seems straightforward, so why get legal advice when there’s already a settlement offer on the table? This is a question that many people ask themselves and it’s certainly worthwhile to ponder. Legal advice can help you work out how much your claim is worth and may stop you from settling for an amount that is significantly less than what you might have otherwise received. Here’s what you need to know.
What is CTP Insurance?
South Australian law requires that all vehicles have CTP insurance as part of their registration. It provides compensation to other road users for injury or death arising from an accident involving another vehicle. It’s important to understand that CTP insurance doesn’t cover property damage. This means that it doesn’t provide compensation for damage to vehicles or other property because of an accident.
CTP compensation is only payable if the accident wasn’t your fault (except for catastrophic injury accidents). For example, if you were stationary at a red light and another car drove into the back of your car, causing injuries to your neck, back and chest, you may have an entitlement to CTP compensation from that car’s insurer. This is because it’s likely to be found that the other car’s driver was at fault.
But if, for example, you were checking your mobile phone whilst driving, you may have caused the accident. Let’s say that it was your car that ploughed into the back of a stationary vehicle. The insurer would probably find that your injuries resulted from your own negligence. It would reject the claim because you were the “at fault” driver.
For accidents causing catastrophic injuries, there are special provisions, including a no-fault qualification (with some exceptions).
CTP insurers are entitled to reduce the compensation sum to people who have in some way contributed to their injuries, for example by not wearing a seatbelt.
Compensation may be for a range of things including:
- Loss of income (for your time away from work because of your injuries).
- Loss of earning capacity.
- Future medical treatment requirements including surgeries and other physical rehabilitation.
- Voluntary and paid care and services such as home care and house cleaning.
- Pain and suffering.
Car Or Motor Vehicle Accident Law – How does it work?
If you are injured in an accident that wasn’t your fault, you will need the details of the other driver’s registration and CTP insurer. You can get these details either directly from the driver or contact the CTP Insurance Regulator for further information (your lawyer can also do this for you).
In most cases, and as required by South Australian law, claims should be lodged within six months of the accident but there may be exceptions to this, for example if the injured person is a child, or if the full extent of injuries isn’t yet known.
To assess the claim, CTP insurers will require evidence of injuries, for example medical certificates and letters from doctors. It’s also necessary to demonstrate that the other car was at fault. This may be as simple as providing a police report. In other cases, there may be a requirement for further investigations such as obtaining witness statements or engaging an accident reconstruction expert.
There are three very good reasons why you may need a lawyer even before you make a claim:
- If there is some reason why you can’t make a claim within 6 months after the accident, you may need a lawyer to arrange an extension of time to make a claim.
- If there is dispute over who was at fault, you may need a lawyer to gather evidence and provide you with advice including your legal options. You may also need your lawyer to represent you in any legal proceedings.
- The insurer’s claim form is lengthy and will require you to provide detailed information about your injuries, how the accident happened, any impact on your work capacity, and various other matters. Completing the claim form with the assistance of a solicitor is a good idea because it helps to ensure that the insurer receives the right information.
By far, the most complex aspect of CTP claims is injury assessment.
Under South Australian law, if you wish to make a CTP claim, your doctor must assess your personal injury according to a scale prescribed by legislation, known as an Injury Scale Value (ISV) assessment.
The doctor will allocate an item number for your injury and then using that assessment, they will calculate your ISV. This calculation is required so that the severity of the injury can be determined. It is a complex process and that’s why many people with CTP claims find that getting legal advice is of great assistance.
There must be stabilisation and medical assessment of the injury before anyone will know what compensation is payable. For example, if a hairdresser suffers a hand injury, it may appear a minor injury at the outset. However, once the injury settles, it becomes clear that mobility is greatly reduced and the joints are arthritic. This would severely restrict that person’s ability to work as a hairdresser in the future, and so the CTP claim needs to take into account loss of future earnings.
Due to its complexity, the ISV assessment is best handled by lawyers with experience in CTP claims. This is because an understanding of how to calculate the ISV will serve to maximise your claim for compensation. Insurers won’t do this. They will try to minimise their compensation payment.
An inaccurate assessment may mean that a person misses out on thousands of dollars in compensation.
Offers of settlement for Car Accidents & Personal Injury
It is common for some insurers to make offers of settlement soon after a claim is made. Whilst this has the advantage of quickly settling a claim and avoiding legal action, it can also have some significant disadvantages.
When considering a settlement offer from an insurer, it’s worth remembering that possibly the insurer’s motivation is to minimise its own costs and the risk of the claim becoming prolonged. For example, this may happen if there’s a dispute about the way in which the accident occurred.
Again, this means that if you accept a settlement offer, you may be agreeing to accept a greatly reduced sum. This can be a significant issue for people with ongoing medical expenses or whose injuries continue to affect their work capacity.
If a motor vehicle accident has caused your injuries and it wasn’t your fault, you need to carefully consider how to approach your CTP claim. Getting legal advice before making the claim is a great idea, especially if there’s a dispute about how the accident occurred or who was at fault. You may also need advice if your injuries have not yet settled and there is uncertainty about their ongoing impact. The assessment process is complex and requires significant skill to ensure you are getting all the compensation to which you’re entitled.