Under the Motor Accident Injuries Act 2017, injured motorists are not automatically entitled to lodge a claim for damages with the relevant insurer.
Although persons injured in motor accidents are entitled to claim statutory benefits for a limited time following an accident, regardless of whether they are at fault, it must be agreed or determined that they have suffered more than a minor injury in order to be eligible to make a claim for additional damages.
Statutory benefits include weekly benefits for wage loss at a prescribed rate, as well as medical and care expenses provided, they are causally related to the accident and reasonable and necessary.
If a Claimant has more than a minor injury, and it is agreed or determined that they are not wholly or mostly at fault for the accident, those statutory benefits will continue beyond 26 weeks. In addition to ongoing statutory benefits, those persons are also entitled to make a claim for damages with the insurer.
Under the current scheme, a claim for damages potentially includes lump sum compensation for non-economic loss (pain and suffering), past economic loss, future economic loss as well as past and future loss of superannuation. Such claims can be potentially valuable in recovering just compensation for injuries sustained due to the negligence of other motorists.
The legislation states however, that a claim for damages cannot be made until 20 months after the date of the motor accident. As the current scheme commenced on 1 December 2017, many persons are not yet entitled to make a claim for damages unless the accident occurred within the first few months of the scheme commencing.
There is an exception to the above. That is, where it has been determined that a person’s Whole Person Impairment is 11% or more, there is no need to wait for the 20 months to elapse before making the claim for damages.
In order to determine the extent of impairment, it is necessary to undergo an examination by an appropriately qualified medico legal specialist who can provide a report assessing the impairment. That report is then submitted to the insurer who will be required to either concede that the impairment is over 10% or seek their own assessment. In the event of a dispute, the matter can be referred to the Dispute Resolution Service for a binding assessment. Where the impairment is agreed or assessed at more than 10%, damages can be claimed for non-economic loss (pain and suffering) in accordance with the legislation.
When it comes to wage loss, a damages claim can include a component for past and future loss of earnings, or the deprivation or impairment of earning capacity. In addition, a damages claim can be made for reimbursement of income tax paid on statutory benefits.
For the purpose of claiming future wage loss in a claim for damages, the claimant must satisfy the court or claims assessor that the assumptions about future earning capacity or other events on which the award is to be based, accord with the claimant’s most likely future circumstances but for the injury.
In addition to the above, in a claim for damages, the claimant may make a claim for loss of past and future superannuation which is not paid on statutory benefits.
Strict time limits apply for the making of a claim for damages. The claim must be made within 3 years of the accident and the claimant is required to complete a separate claim form notifying the insurer of the claim.
It is necessary to particularise the claim to the insurer and it is recommended that claimants seek legal advice at an early stage so that investigations may be commenced without delay.