Car accident injury compensation - who can claim?
It is possible to make a road accident compensation claim with the Insurance Commission of Western Australia if:
- you were not at fault or only partly at fault for causing a road accident and associated injury; and
- you were a driver, passenger, pedestrian or cyclist and were injured in the accident; or
- if you were financially dependent on a close relative or de-facto fatally injured in a road accident.
Unless you make a dependency claim in relation to a road fatality it is not otherwise possible to make a road accident compensation claim unless you suffered a physical or mental injury.
Fatal car accident dependency claims - background.
At common law, a person cannot receive damages in tort for the death of another person. In 1846, to remedy this issue the English parliament enacted legislation widely known as ‘Lord Campbell’s Act’. In 1846, Western Australia introduced Lord Campbell’s Act and this formed the basis of the Fatal Accidents Act 1959 (WA) ("the Act").
Fatal car accident dependency compensation - can I make a claim?
If you are a relative of a fatally injured road user and you were financially dependent on the deceased, you may be able to make a dependency claim.
The Act defines the term 'relative' as:
(a) a person who immediately before the deceased’s death was —
(i) the spouse of the deceased; or
(ii) a de facto partner of the deceased who was living in a de facto relationship with the deceased and had been living on that basis with the deceased for at least 2 years immediately before the deceased died;
(b) any person who was the parent, grandparent or step parent of the deceased;
(c) any person who was a son, daughter, grandson, granddaughter, stepson or stepdaughter of the deceased;
(d) any person to whom the deceased person stood in loco parentis immediately before the death of the deceased;
(e) any person who stood in loco parentis to the deceased person immediately before his death;
(f) any person who was a brother, sister, half-brother or half-sister of the deceased person; and
(g) any person who was a former spouse or former de facto partner of the deceased person whom the deceased was legally obliged, immediately before his or her death, to make provision for with respect to financial matters.
Fatal car accident dependency compensation - what can I claim?
By making a dependency claim you can be awarded compensation for:
- medical expenses incurred in relation to the fatal injury and the funeral expenses of the deceased person; and
- loss of financial support and services provided by the deceased to the relative.
Car accident compensation - can I make a claim for property damage?
In many cases, where an innocent victim is injured in a car accident, the vehicle in which the injured person was traveling is damaged. As explained above, the injured road user may be able to make a claim for personal injury compensation as long as a totally or partially negligent road user was involved in the accident.
If your vehicle was damaged by a partially or completely negligent road user you may also be able to make a claim for the damage caused to your vehicle via their property damage insurer. This claim process can, however, be confusing to those who have not had to negotiate the system previously.
Car accident compensation - what should I do straight after a crash?
If your vehicle has been damaged by a negligent driver don’t panic and simply follow these steps:
- Ensure the scene of the accident is safe and that no one is in danger. If serious or life threatening injuries have been sustained call 000 as soon as possible.
- If possible take steps to stop any further damage from occurring i.e. marking the site of the accident with warning signs, removing debris from the road.
- Exchange contact details with the negligent driver, record detailed information about the accident scene, the injuries and the damage to property. Try to take clear and detailed photos or video of the crash site, your injuries and the damage to your car.
- Try to identify any witnesses to the accident, ascertain what they saw of the accident, ask for their contact details and confirm whether they would be happy to support your claim.
- Unless it is a medical emergency do not leave the scene until you have all of the information outlined herein.
- Do not admit liability or discuss your role in the accident at any point. Adhere to this position regardless of whether you were at fault or not.
- Listen to and record anything the other driver says regarding their liability for, or, role in the accident.
- Do not negotiate for the payment of damages or repair costs unless you have obtained the written consent of the insurer.
- If serious injury or damage has occurred or if the accident was in someway caused by malicious or criminal acts then you must notify the police as soon as practicable.
Car accident compensation - how do I claim for damage to my car?
Ideally, if your vehicle is damaged in a road accident by a negligent driver you can lodge a claim with the negligent driver's vehicle insurance provider. The insurer will first make an assessment as to which party was fully or partially liable for the accident. If the insurer finds that the other driver was partially or fully responsible for the accident they will make you an offer to compensate you for the assessed value of the damage to your vehicle.
Agreeing to a final amount of damages to be paid by the insurer is done through a process of informal negotiation between you and an insurance assessor or claims manager. If you do not agree with the assessment or the offer of damages you could request that your claim is reassessed by the insurer. Failing this, you may need to contact a commercial lawyer specialising in property damage to ascertain whether it would be commercial to take legal action to recover the damages against the insurer.
Car accident compensation - I was not at fault and the negligent driver has no insurance. How is the damage to my car paid for?
In Western Australia, motorists are not required to hold compulsory property damage insurance over their vehicles. This leaves the vehicle owner with the choice to take out full comprehensive car insurance, third party property insurance or no property damage insurance at all.
If a negligent driver damages your vehicle but does not have any property damage insurance you have a legal right to claim damages against the driver. If a legal action is brought and won against the at fault driver they will be ordered by the court to pay damages to you.
Car accident compensation - can I make a personal injury claim and a claim for property damage?
If you are injured in a road accident and are eligible to make a motor vehicle personal injury claim and a claim for property damage we strongly advise that you obtain legal advice from a specialist personal injury lawyer. In these circumstances, an issue estoppel can arise when one set of facts exist, a decision is made by a court regarding those facts and then a plaintiff attempts to make another claim based on the same set of facts. Here for example, a property damage claim could be settled in regards to a particular accident and this could estop the plaintiff from bringing a personal injury claim in regards to the same accident.
What can we do to help?
If a loved one has died in a motor vehicle accident and you relied on that person for financial support you may be able to make a claim for compensation. We will provide you with support, information and assistance to help you deal with this very traumatic event.
Although we do not provide legal advice on property damage issues, we have a trusted network of legal practitioners to whom we may be able to refer you to for such assistance.
Dependency compensation claims should be made as soon as possible after the death of your loved one and delay can negatively impact on the success of the claim, so please call us now for assistance.