The brief answer to the question of whether you can claim for compensation if you were partly at fault in a motor vehicle accident is: yes.
The caveat is that the amount of compensation you can claim will likely be reduced if your actions (or omissions) were partly responsible for the accident happening, when compared with an accident where you bear no fault at all. At common law this concept is described as ‘contributory negligence’.
The sort of behaviour that may be considered as contributing to a vehicle accident includes driving at an unsafe speed, not wearing a seatbelt (whether as driver or passenger), driving under the influence of alcohol or drugs, taking a trip in a car with a driver you were aware was under the influence of alcohol or drugs, or not taking proper care as a pedestrian, among many other examples.
In order to later make a claim for compensation either under the NSW compulsory third party (CTP) insurance scheme or in a common law claim, it’s important that the accident in which you were involved is reported to NSW Police within 28 days of it occurring.
If you’ve been involved in a road accident and need guidance on whether you’ll be able to claim compensation, contact expert Northern NSW law firm Bourke Love Lawyers today. In the meantime, let’s look generally at how these claims are decided.
When are you able to make a claim after a motor vehicle accident?
As a result of changes made to the compulsory third party (CTP) insurance scheme in NSW, accidents occurring on or after 1 December 2017 allow two types of claim for compensation to be made, whether or not you were at fault, partly at fault or blameless in regards to the accident.
One claim is for statutory personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) as part of an accident notification claim, and the other is a common law claim for damages, usually paid as lump sum compensation if the claim is successful.
In the first type of claim, weekly income support benefits as well as payments to cover treatment and care of your accident-related injuries are available while you are unable to work, or work in your previous capacity, and are recovering.
This claim can be made whether you contributed to the accident occurring or not. If your injuries are only minor, or the accident was wholly or mostly your fault, you can access benefits under this claim for up to 26 weeks after the accident. For more serious injuries and where you were not mostly at fault in causing the accident, treatment and care benefits can be accessed for life and weekly income support payments for up to five years.
These benefits apply to injured drivers and passengers; riders and pillion passengers; pedestrians and cyclists. Injuries can be either physical or psychological.
If your accident occurred before 1 December 2017, you can still make a claim but different amounts of benefits over different time periods may be payable. Check the SIRA website here.
Common law damages claims
If your injury from the accident is more serious, a personal injury claim for common law damages beyond the statutory benefits of the CTP scheme needs to be lodged within three years of the date of the motor accident with the CTP insurer of the at-fault driver.
An exception is where your injuries are medically assessed as 10 per cent or less permanent impairment, in which case the claim can only be filed from 20 months after the accident (but still within three years of it occurring). Injuries assessed at more than 10 per cent permanent impairment means the claim can be filed any time within three years of the accident.
This type of claim can seek lump sum compensation for economic loss (such as loss of earnings, now and into the future) and non-economic loss (reduced life expectancy, for example, or pain and suffering as a result of the accident). Compensation for non-economic loss is only available if permanent impairment is greater than 10%. Claims by relatives when a person is killed in a motor vehicle accident can also be made any time within three years of the accident.
Where it’s found you contributed to the accident occurring, a damages payment may be reduced by the percentage amount you are deemed responsible for the accident. A common example is where you are a passenger in a car that becomes involved in an accident and you weren’t wearing a seatbelt. Your injuries, therefore, are at least partly attributable to your failure to buckle up.
In making a common law claim for damages, expert legal advice is essential, particularly in cases where you may have contributed to the occurrence of the accident. The validity of your claim will turn on the evidence collected in support of your claim and the expertise of your lawyer’s advocacy in prosecuting your claim with the insurer.
If your claim is successful, a lump sum will be paid to you and any statutory weekly benefits will cease. Payment of reasonable and necessary medical expenses may continue for life either through the CTP insurer, within the first five years, or later through the Lifetime Care & Support Scheme.
Why you should use expert compensation lawyers
Motor vehicle accident claims can be quite complex. Whether you wish to claim statutory benefits or make a personal injury common law damages claim, there is a lot of work required to prepare the claim. A police accident report, medical certificates and assessments proving you are unable to work as well as the severity of your injuries, payslips to demonstrate your lost income… it can seem like an endless list of paperwork to collect to support your claim.
Add in the fact you may have been partly responsible for causing the accident, by not wearing a seatbelt, for example, and a time-consuming and complicated negotiation with the insurance company can ensue in order to receive any kind of compensation. They may also challenge the severity of your injury and insist you undergo medical assessments with their own medical experts.
All of these challenges mean you need the representation of experienced, specialist compensation lawyers. At Bourke Love Lawyers, preparing claims for clients involved in car accidents is one of our specialist areas. Whether you were at fault, partially at fault or played no role in causing the accident in which you were injured, we will work hard to make sure you put forward a claim with the best possible chance of success..
Bourke Love Lawyers has offices in Kingscliff, Lismore, and Ballina on the NSW north coast. Call us today on 1300 15 15 45 or visit us at bourkelove.com.au for a free initial consultation.