Catastrophic car accident injury claims in Western Australia.

In August 2011, the Commonwealth Government's Productivity Commission recommended that no-fault compulsory third party vehicle insurance cover be introduced to all States and Territories. Research at the time argued that people catastrophically injured in car accidents secured materially better health outcomes when they were provided with medical treatment and rehabilitation as soon after their car crash as possible. It was thought that by removing the requirement for catastrophically injured claimants to establish that another vehicle driver was at fault would help to reduce legal disputes and allow catastrophically injured road users earlier access to treatment.

In early 2014, the Government of Western Australia released a Green Paper which asked motorists whether the motor injury insurance scheme should be expanded to cover catastrophically injured claimants on a no-fault basis. The West Australian community strongly supported the proposal to provide all catastrophically injured road users with lifetime treatment and care.       

In 2016, the Motor Vehicle (Catastrophic Injuries) Act 2016 and the Motor Vehicle (Catastrophic Injuries) Regulations 2016 ("the Regulations") were enacted and the West Australian Catastrophic Injuries Support scheme was established.

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.  

Car accident injury compensation claims - background.

On 12 November 1943, the West Australian State Parliament enacted the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). This act required the owners of West Australian registered vehicles to insure for liability arising from road accident related personal injuries. Today, pursuant to the Act, the Insurance Commission of Western Australia ("ICWA") provides motor vehicle injury insurance to more than 1.8 million West Australian drivers. ICWA also administers a program that provides injured road users with personal injury compensation.       

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.  

Whiplash injuries and car accident compensation - background

The Road Safety Commission ("the Commission") compiles and provides statistics on road accidents in Western Australia. In their last annual report the Commission noted that there were 32,392 road accidents in Western Australia over the course of 2015. These accidents involved 82,438 people, however, the Insurance Commission of Western Australia ("ICWA") reported that only 5,910 of these road accidents were attended by an ambulance. ICWA also report that only 3,205 people made a claim for road injury compensation. This suggests that many of these road  accidents did not result in major injury or trauma. However, looking at these statistics from another perspective they could suggest that there are a large number of people who have been injured in a road accident but have not made a claim for compensation. A reason for this may be that many injured road users might think that their injuries are not severe enough to report. Alternatively these injured people may simply be unaware that personal injury compensation is available to anyone who has been injured on the road due to the negligent driving of another person.        

Worrying trends in workers' compensation claims. 

Employers are required to meet many financial and legislative obligations in order to run a successful business. Prosecution results published by WorkCover WA suggest that employers are increasingly attempting a range of tactics to avoid the responsibilities imposed on them by the Workers' Compensation and Injury Management Act 1981 ("the Act").      

Many employees who have been injured or become sick at work are not aware that employers are simply not able to avoid their workers' compensation liabilities and risk significant fines, legal proceedings and conviction if they do.

Workers' compensation - what is it?

If you sustain an injury at work or suffer a work related illness you may be entitled to make a claim for workers' compensation. To make a claim you must be defined as a worker, however, the Act relies on a wide definition of the term 'worker' and includes full-time, part-time, casual and seasonal workers on a wage or salary. Workers' compensation includes payments for financial loss, treatment expenses, medical and rehabilitation expenses and travel and lodging expenses.

Background into the personal injury compensation industry.

In 1994, concerns regarding the cost of liability insurance coupled with growing perceptions that the law of joint and several liability was not being administered consistently, led the Commonwealth and NSW Attorneys General to commission an inquiry. The inquiry was conducted by Professor Jim Davis and one of its key recommendations was that the joint and several liability of defendants where negligence caused property damage or economic loss be replaced by liability which is proportionate to each defendants degree of fault.

Pedestrians and road injury compensation claims. 

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).

Once an employee has lodged a Workers' Compensation Claim form and a First Certificate of Capacity with their employer, the employer has 5 working days to lodge these documents with their insurer. The insurer is then required to make a determination regarding the claim and notify the employee within 14 days of receiving the claim form.

Unfortunately many employees making workers' compensation claims are unaware of the legal protections that should be provided to them by their employers and workers' compensation insurers.

What if my employer does not lodge my workers' compensation claim with the insurer?

The Workers Compensation and Injury Management Act 1981 (WA) ("the Act") requires the employer to forward your Workers' Compensation Claim form and First Certificate of Capacity to its insurer within 5 working days of having first received these documents. If the employer does not comply it risks being fined by WorkCover's compliance division.  

Personal injury compensation and social security. 

Unfortunately some of us who suffer a personal injury at work, on the road or in a public place are injured so badly they are not able to return to work. Often these people rely on financial support from social security in order to sustain themselves into the future. Others may have been receiving some form of social security benefit prior to their personal injury occurring.

Many of these people are unaware that making a successful compensation claim and receiving compensation payments can have an impact on their eligibility to claim future social security benefits and can even result in a debt being owed to Centerlink.  

What is compensation?

The Social Security Act 1991 ("the Act") defines compensation as a payment that is provided in regards to lost earnings or lost capacity to earn resulting from a personal injury being suffered.  

The Department of Human Services notes that compensation can include:

• a payment of damages;
• a payment made under a scheme of insurance or compensation under a Commonwealth, state or territory law;
• a payment (with or without admission of liability) in settlement of a claim for damages or a claim under an insurance scheme;
• any other compensation or damages payment; or
• a payment under a sickness or accident policy.