Car accident injury compensation claims - background.

Originally established in 1926, the West Australian State Government Insurance Office provided workers' compensation to miners in the goldfields of Kalgoorlie. In 1987, the State Government Insurance Commission was established following an amalgamation of the State Government Insurance Office and the Motor Vehicle Insurance Trust. In 1997, the State Government Insurance Commission changed its name to  the Insurance Commission of Western Australia ("ICWA"). Today, ICWA provides motor vehicle insurance for more than 1.8 million West Australian motorists. ICWA operates pursuant to the Insurance Commission of Western Australia Act 1986 and the Motor Vehicle (Third Party Insurance) Act 1943. Part of ICWA's operations is to manage an investment portfolio valued at over $4.5 billion. Annual profits from this fund are used to provide injured road users with personal injury compensation. 

When assessing a motor vehicle injury compensation claim, ICWA may, on behalf on an insured person or the owner and driver of an uninsured vehicle:  

• conduct negotiations in respect of a claim against any such person, owner or driver;
• accept or instruct any solicitor to accept service of legal process issued in respect of the claim;
• assume the conduct and control of legal proceedings in respect of the claim;
  
• admit negligence on his behalf, where there is no claim against the person, owner or driver as the case may be; or
• settle the claim.

Car crash injury compensation claims - can I lodge a claim?

If you are injured in a road accident due to the negligent actions of an individual operating a vehicle, registered in Western Australia, you are entitled to make a claim for personal injury compensation. This includes injured drivers, passengers, cyclist's or pedestrian's and also includes people who were financially dependent on someone who was killed in a motor vehicle accident.  

Car accident injury compensation claims - how do I make a claim?

If you are the owner or a driver of a vehicle that is involved in an accident, in Western Australia, you must report the accident as soon as possible after the crash. By using the on-line crash reporting facility both WA Police and ICWA are informed about the crash. 

Car crash injury compensation - claim accepted. What does this mean?

On completion of their investigations ICWA writes to the injured claimant or their lawyer and provides advice regarding whether they will accept liability in the claim. If ICWA accepts liability for your accident and your injuries it will eventually compensate you for pain and suffering, loss of enjoyment of life, permanent disability, financial loss, medical treatment and miscellaneous expenses.

Car accident compensation is paid in the following manner:

Medical Treatment Expenses

• while the claim is running ICWA will attend to payment of treatment expenses.

Advance Payments

• ICWA at their absolute discretion may make interim advance payments for lost wages while the claim is running.

Final Lump Sum Payment

• following settlement negotiations between lawyers acting for the claimant and ICWA, compensation for your injuries and losses will be paid by way of a final lump sum payment in addition to making a reasonable contribution towards payment of your legal costs. 

Car accident injury compensation - claim denied. What can I do now? 

In some cases, ICWA denies liability or argues that there should be an apportionment of liability, in which case they will offer to pay your compensation on the basis that you will eventually receive a percentage discount from the total compensation you would otherwise be entitled to receive, which reflects the extent to which you were at fault e.g. a 30% apportionment.     

Very importantly, if your claim in denied by ICWA or they offer an apportionment of liability, Separovic Injury Lawyers strongly recommend that you obtain expert personal injury legal advice as to how you could proceed with a claim. In these situations the plaintiff injury lawyer can gather additional evidence relating to the accident, identify witnesses, take witness statements, examine CCTV, roadside or dashboard camera footage and /or obtain specialist opinion in an effort to establish ICWA's liability for the injuries caused in the road accident.      

If ICWA denies liability in a particular claim, it does not mean that the injured person will automatically not receive any compensation. It simply means that they will argue they are not legally liable to pay compensation on the basis that the person making the claim was 100% at fault.

Whether compensation is eventually payable will be a matter for negotiation between the parties at a pre-trial conference and in the absence of agreement the Court will determine the issue of fault. Separovic Injury Lawyers may very well be in a position to argue, depending on the specific facts of the case, that liability should be accepted either wholly or in part for the injured party.

Furthermore in cases where ICWA make an offer to agree an apportionment of liability at a certain level e.g. 60% / 40% Separovic Injury Lawyers have in many claims successfully argued and negotiated a better apportionment of liability outcome for the client, than originally offered or proposed by ICWA.     

ICWA will proceed with my claim but only on a without prejudice basis. What does this mean?

In some cases ICWA is not in a position to formally admit liability and instead notify the claimant they can proceed on a ‘without prejudice and without an admission of liability’ basis. Usually this does not in any way affect the outcome of the claim.       

Catastrophic car accident injury compensation - how is the claim process different?

In situations where you were completely at fault or where it is not possible to establish the negligence of another party and you were catastrophically injured, you are still able to claim for compensation. The enactment of the Motor Vehicle (Catastrophic Injuries) Act 2016 established the Catastrophic Injuries Support scheme to provide lifetime treatment, care and support to everyone catastrophically injured in a motor vehicle accident in WA. 

Part 5 of this act provides a formal dispute resolution process for disagreements regarding eligibility or treatment that may arise between a claimant with catastrophic injuries and ICWA. 

Contributory negligence - how could it impact my car crash compensation claim?

The Civil Liability Act 2002 (WA) refers to the standard of contributory negligence which is defined as:

...the principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.   

The Motor Vehicle (Third Party Insurance) Act 1943 allows ICWA to use the defense of contributory negligence when damages are negotiated between ICWA and the injured party. In cases where contributory negligence can be proved by ICWA the percentage of liability being claimed against it can be reduced. Contributory negligence can only be used as a partial defence and if the injured party and ICWA cannot agree regarding the sharing of liability, an apportionment of liability will be decided by the court.

How can we assist with the assessment of your compensation claim?

We will provide you with simple to understand information about how much your car crash compensation may be worth, how to make a claim and how to deal with ICWA regarding any issues surrounding the admission of liability or apportionment of liability. Ideally, motor vehicle injury compensation claims should be lodged as soon as possible after an accident, so please call us now for assistance.