While possibly sounding counter-intuitive pedestrians are the largest group of road users. Most of our daily activities - commuting to work, dropping children at school, food shopping, catching up with friends or taking the dog for a walk all involve us using roads as a pedestrian.
It is safe to say that certain societal stigmas exist towards pedestrians that are injured by other road users. Here, it is often assumed that the pedestrian is at fault because they must have been j-walking and that they have no right to be on the road.
This is a problem because pedestrians obviously have legal rights to use roads and are entitled to compensation if they are injured by other road users.
Despite recent reductions in road accidents, in 2017, the West Australian Road Safety Commission reported 15 pedestrian fatalities which is unfortunately in line with the proceeding 5 year average of 14 fatalities per year.
Can I claim personal injury compensation if I have been injured as a pedestrian?
If you were a pedestrian, in Western Australia and were injured in an accident involving a car, motorcycle, truck, bus or any other motor vehicle, you may be able to make a claim for personal injury compensation. To be eligible to lodge a claim your injury needs to have been caused, at least in part, by a negligent motor vehicle driver, rider or operator. (There is an exception to this general rule in the case of catastrophic injury).
What if I was partly at fault for causing the accident?
You are able to claim for personal injury compensation even if you were partly at fault in causing an accident. As long as the accident involved a negligent motor vehicle driver, rider or operator you will be able to make a claim. If you were partly to blame for the accident the amount of compensation you receive may, however, be apportioned or reduced if you:
- contributed to the accident;
- did not follow road rules; or
- were under the influence of drugs or alcohol.
If your injuries are catastrophic and your accident occurred after the introduction of the Catastrophic Injuries Support Scheme on 1 July 2016 you do not need to establish that a negligent party was involved in your accident in order to claim compensation. Catastrophic injuries include traumatic brain injuries, spinal cord injuries, multiple amputations, severe burns and permanent blindness.
How do I make a claim for pedestrian injuries compensation?
Pedestrian injury compensation claims, like motor vehicle accident claims, are administered by the Insurance Commission of Western Australia ("ICWA"). If you have been injured in a road accident you must lodge a Crash Report as soon as practical after the accident. The online crash report is sent to ICWA and WA Police and there is no need to visit or call either of these organisations in regards to your accident. ICWA will later provide you with a claim number, a Notice of Intention to Make Claim Form and a Medical Authority. This documentation needs to be completed and returned to ICWA so your claim can be processed. The next steps in processing a pedestrian injury compensation claim involve investigating the circumstances surrounding the accident, gathering evidence and witness statements and obtaining medico legal opinion as required.
What personal injury compensation can I claim?
If you are injured as a pedestrian in a motor vehicle accident you can claim compensation for 'general damages', financial loss, medical treatment and miscellaneous expenses.
General damages include compensation for your injuries and:
- pain and suffering;
- loss of enjoyment of life; and
- permanent disability caused by the injury.
Financial loss can include:
- any established/proven loss of income suffered from the date of the accident until the date of settlement;
- future loss of income if the injured person's future earning capacity is negatively affected;
- reduced scope of employment which in the future may theoretically result in a loss of income; and
- any past or future loss of superannuation.
Treatment expenses can be claimed for accident related:
- Ambulance expenses;
- Past and future hospital treatment;
- Past and future nursing services;
- Past and future medical services;
- Past and future X-rays, CT and CAT scans, MRI's and Ultrasounds;
- Past and future medication;
- Medical aids and equipment;
- Past and future dental services;
- Past and future rehabilitation services; and
- Past and future therapy services.
Miscellaneous expenses can be claimed for crash related:
- Domestic support services;
- Care services provided by friends or family (gratuitous); and
- Travel costs.
Pedestrian hit and run compensation claims.
If you have been injured in a hit and run accident you may be able to make a personal injury compensation claim. In many of these cases the at fault driver, rider or operator cannot be identified or is unlicensed. Here, ICWA can step in and function as the nominal defendant which then enables the injured pedestrian to make a claim for compensation.
Pedestrians killed in road accidents.
If you are a spouse or de-facto of a pedestrian who was killed in a motor vehicle accident and you were financially dependent on that person you may be able to make a claim for personal injury compensation. In these cases compensation may also be claimed for reasonable funeral expenses.
Negotiating pedestrian injury compensation - do I need a lawyer?
It is possible for injured pedestrians to represent themselves and negotiate directly with ICWA when claiming personal injury compensation. This is, however, a complex area of the law and much anecdotal evidence exists which confirms that by appointing a specialist personal injury compensation lawyer your compensation payment is likely to be much greater than what you might obtain by negotiating yourself. Personal injury compensation lawyers also have expertise in appointing appropriate specialist medico legal practitioners who are qualified to provide specific expert evidence and reports.
Settlement of pedestrian injury compensation claims is usually completed through a process of negotiation between ICWA and a personal injury compensation lawyer.
Where informal negotiations fail to secure a settlement legal proceedings may need to be commenced by a personal injury compensation lawyer in the District Court of Western Australia. The vast majority of such actions are then settled at a pre-trial conference which avoids the risk and cost involved in a court case.
If you have been injured as a pedestrian, Separovic Injury Lawyers can provide you with the information, advice and support you need. We specialise in motor vehicle injury compensation claims and never give up when we negotiate for your compensation payment.
A pedestrian injury compensation claim should be lodged no later than three years after the date of accident. Finalising personal injury compensation claims can be time consuming so we suggest calling us and getting a claim underway as soon as possible.