Compulsory third party (personal injury) insurance covers drivers of your vehicle from claims for compensation for injuries or deaths arising out of the use of the motor vehicle. It is paid each time you register your vehicle [Motor Vehicles Act 1959 (SA)].
The aim of the insurance scheme set up by the Motor Vehicles Act 1959 (SA) is to ensure that every vehicle being used on the road is insured. Allianz administers the compulsory third party insurance scheme for the Motor Accident Commission. A vehicle registered in another state, while not covered under this Act, is covered by a similar Act in the owner’s home state while being used for a visit to South Australia.
Where a vehicle involved in an accident causing personal injury is unidentified or uninsured, the action is taken directly against the Nominal Defendant. This means that a person injured by, for example, a hit-run vehicle can take action and be compensated for those injuries even if the vehicle has not been identified. A person injured in a collision with a vehicle known to be uninsured or struck by an unidentified vehicle should immediately seek legal advice. To successfully claim damages for personal injury, a person injured by an unidentified vehicle must satisfy the court that reasonable steps have been taken to identify the vehicle. The plaintiff must also establish that the injury was a result of the other driver's negligence.
As of 1 July 2013 significant changes have been made to the Compulsory Third Party Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA). These changes have been in response to limitations with the previous scheme which required evidence of fault for compensation to be payable. Where drivers suffered catastrophic injury but no other car was involved (e.g. collision with a stobie pole) they were unable to claim compensation as no other driver was at fault.
The bulk of the provisions relating to the new Lifetime Support Scheme will come into effect on 1 July 2014. However, as of 1 July 2013 the following changes have been made to the Compulsory Third Party Scheme:
- Children under the age of 16 will qualify for compensation for ongoing medical costs without having to establish another driver was at fault. This applies only to motor accidents that occur in South Australia.
- New rules for assessing injuries (the Injuries Scale Values or ISV) will be used to determine a claimant’s injuries.
- The amount a successful claimant can recover in legal costs has been reduced:
- In cases where the total amount awarded is less than or equal to $25 000, no legal costs will be awarded.
- Where the total amount awarded is between $25 000 and $100 000, legal costs will be capped at the Magistrates Court scale.
- Medical assessments will be conducted under a new Accreditation and Referral Scheme. Either the insurer or the claimant can request an examination and they will be referred to an independent appropriately qualified medical professional. Their report will then be used to calculate the amount of compensation that is appropriate.
Because these changes are not retrospective this means that any claim that occurred on or before 30 June 2013 will be assessed under the previous scheme and rules.
Depending on the nature of the claim and the seriousness of the injuries, a personal injury claim can be dealt with in one of three ways:
- a claim can be lodged with the Lifetime Support Authority (see Catastrophic Injuries and the Lifetime Support Scheme above)
- a claim for other non-catastrophic injuries can be settled directly with Allianz, or
- a court action for damages can be taken and either settled during the proceedings or, if not settled, decided by the court.
Any court application for damages arising from personal injury must be made within three years of the accident [ Limitations of Actions Act 1936 (SA) s 36].
Children have until they turn 18 to commence an action (see Claims on behalf of children).
Time limits also apply to compensation claims made directly through Allianz. Where the identity of the other vehicle is unknown or it is uninsured then the claim must be lodged as soon as reasonably practicable after this has been discovered. In all other cases it must be lodged within six months of the date of the accident [Motor Vehicles (Third Party Insurance) Regulations 2013 (SA) reg 126A]. There are several exemptions to this requirement including where the claimant is under a legal disability. A legal disability includes where the claimant is a child [reg 126A(2)]. Being a child is considered to be a disability as children are unable to make a claim or an application to a court in their own right.
When claiming compensation for personal injuries arising out of an accident, it is best to seek legal advice. Generally it will not be possible to settle a claim until the extent of the injuries are clear. This may not occur until a person recovers or until the injury stabilises.
If the injuries are minor and there is no continuing disability, it is usually advisable to attempt to settle the claim without going to court. This is done by giving Allianz the relevant information enabling them to assess the value of the claim and to pay an agreed figure. Usually this procedure will bring a quicker settlement.
Where proceedings for personal injuries are taken in court, the Magistrates Court will hear claims up to $100 000, the District Court and the Supreme Court both have power to hear and determine claims for unlimited amounts. All actions for personal injury or death arising from motor vehicle accidents are now tried before a judge or a magistrate without a jury.
The first step in making a claim is to contact Allianz who will provide a claim form to be completed.
The three year limitation period on an action for damages on behalf of a child does not commence until the child turns 18 years of age. However, most actions on behalf of children are commenced and disposed of before then. The action is usually commenced in the name of one of the parents as the 'next friend of the child'. If an action has been commenced on behalf of the child and the claim is settled, that settlement is not operative until approved by a judge of the court in which the proceedings have been commenced.
In cases of injury arising from a motor vehicle accident a defendant can ask for copies of medical and other records and reports relevant to injury suffered by the child or require the child to undergo a medical examination (at the expense of the defendant) to determine the nature and extent of the injury suffered [Limitation of Actions Act 1936 (SA) s 45A].
In order for there to be some certainty for the defendant in such cases a defendant can require the child to initiate legal action so that the claim can be determined by a court [s 45A(5)]. If the defendant provides written notice to the child’s parent or guardian requesting court action be initiated, they have six months from the date of the written notice to do so. A court may then make a determination of liability but adjourn the final assessment of damages until a later date.
If a plaintiff does not comply with these requests they are not prevented from bringing an action for damages at a later date, however, unless the court is satisfied that there was good reason for failing to comply, no damages will be awarded for medical or gratuitous services provided before the date the action was commenced. In addition no legal or other costs will be allowed [s 45A(7)].
In assessing the amount of damages to which an injured person is entitled, a number of different categories are recognised.
Claims can be made for non-economic losses, which may include:
- pain and suffering;
- loss of amenities of life;
- loss of expectation of life;
No claim exists for non-economic loss unless the person can show that her or his life has been significantly impaired for at least seven days, or that her or his medical expenses exceed the prescribed minimum [Civil Liability Act 1936 (SA) s 3].
The compensation payable for non-economic loss is assessed on a numerical scale (the Injury Scale Value or ISV) of 0 - 100 points. A relatively minor injury gains a low rating while the most severe injury will gain a rating of one hundred points. After determining the number of points a multiplier is used to calculate the awardable compensation [Civil Liability Act 1936 (SA) s 52(3)]. Damages for non-economic loss will only be awarded if the Injury Scale Value for the injury exceeds ten.
Expert legal advice should be obtained in relation to the assessment of an injured person’s compensation for non-economic loss.
Any medical special damages incurred may be claimed. This includes items such as ambulance costs, x-rays and pathology tests. A person suffering ongoing medical problems may also be able to claim damages for future medical expenses.
There is a prescribed limit for medical services and charges. The limits are in accordance with the prescribed limits and services referred to in the Return to Work Regulations 2015 (SA). The insurer may recover from service providers (such as doctors) amounts paid for unnecessary services or charges in excess of the prescribed limit.
Where a person loses income because of injuries there may be a claim for the economic loss. It is not possible, however, to claim for the first week off work [Civil Liability Act 1936 (SA) s 54] and any claim for past or future loss of income must be discounted by 20%. There are new legislative guidelines for a court assessing a claim for future loss of earning capacity [Civil Liability Act 1936 (SA) s 56A (4)].
A parent, spouse, domestic partner or child of an injured person who gives voluntary (gratuitous) service to that person may be able to claim for this service [Civil Liability Act 1936 (SA) s 58]. An injury scale value of in excess of ten is required and the services being claimed must be provided for at least six hours a week over a period of at least six months.
A person who has had to wait for a claim to be paid may be able to claim interest. Interest is not paid for non-economic loss or for future losses [s 56].
Provisions relating to death caused by a motor vehicle injury
Dependants of a person who has died as a result of injuries received in a motor vehicle accident may be entitled to recover damages against the person responsible [Civil Liability Act 1936 (SA) ss 23, 24]. Legal action for damages must be commenced within three years of the death and issued by the executor of the estate of the deceased. However, the legal proceedings may only be begun in cases where someone else negligently caused the death. The following dependants are able to claim:
- spouse or domestic partner
- brother or sister
Anyone involved in an accident should keep a record and receipts of all payments made resulting from the accident. If not yet paid, the accounts themselves should be retained, either to give to Allianz or to produce in court as proof of the claim.
If an injured person was not a wearing seat belt at the time of the accident, their damages will normally be reduced by 25%. The same reduction applies for cyclists and motorcyclists not wearing a safety helmet where there is a causal connection between the failure to wear a safety helmet and the extent of their injuries [Civil Liability Act 1936 (SA) s 49].
If an injured driver was contributorily negligent and he or she had a blood alcohol reading of 0.08 or more or their ability to drive was impaired due to drugs or alcohol then their damages must be reduced by the prescribed percentage or greater having regard to the extent to which the accident was attributable to their negligence. The prescribed amount is 50% for a blood alcohol reading 0.15 grams or more, or 25% in any other case [Civil Liability Act 1936 (SA) s 46].
A passenger who is injured and who knew or ought to have known that the driver's ability to drive was impaired by alcohol or drugs will also have any compensation reduced by the prescribed amount [Civil Liability Act 1936 (SA) s 47]. A passenger injured when not in a passenger compartment will have their damages reduced by 25%. Similarly, if the driver was inexperienced or unlicensed then the passenger's compensation will be reduced if the passenger was negligent in failing to care for her or his own safety.
The above provisions do not affect a claim by a child under 16 years of age.
As a general rule, an injured person will not be able to finalise an injury claim until her or his injuries have stabilised. Often injuries take some time to stabilise and the extent of any disabilities will not be apparent immediately. The injured person must rely on medical advice about the disabilities and the advisability of settlement at any time during the action. Once a claim has been settled, the insurance company will obtain a signed Deed of Release from the injured person which will preclude any further action. The injured person must be guided by medical and legal advisers before settling a claim or signing a Deed of Release.
In settling a claim, the solicitor handling it will be able to advise the exact amount the injured party would receive in compensation. The solicitor's costs and disbursements will have to be deducted and there may be repayments for medical or hospital expenses, or sickness benefits from Centrelink which have been paid to the injured party whilst unable to work. All these factors must be investigated and considered before a claim is settled.
Before agreeing to accept a payment of compensation a person should always consider whether any benefits received will have to be repaid. Examples of benefits that may be recovered from compensation include:
- Centrelink pensions and allowances;
- payments for workers compensation [Return to Work Act 2014 (SA) s 66(7)];
- benefits received under a Commonwealth rehabilitation program [Disability Services Act 1986 (Cth) s 23];
- payments made by Medicare [Health and Other Services (Compensation) Act 1995 (Cth) s 14];
Government agencies frequently seek refunds of these payments from people who receive payments from the Motor Accident Commission. This is a significant trap for people claiming compensation and expert advice should always be sought before settling any claim. In addition to the examples above, payments such as health insurance claims may be recovered depending on the fund involved.
Where someone makes a claim and a driver is more than 25% at fault for the accident, the driver must pay an excess of up to $510 (as at 2013, increasing by CPI on 1 January each year) to the Motor Accident Commission [Motor Vehicles Act 1959 (SA) s 124AB(3)].
In certain circumstances, the Motor Accident Commission may also recover from the driver any money paid and any costs incurred [Motor Vehicles Act 1959 (SA) s 124A]. This is called a Reservation of Rights, and applies against the driver at fault when their actions are no longer covered under the Compulsory Third Party Insurance Scheme. The right to recover in this way will also apply to payments made as part of the Lifetime Support Scheme.
The Commission may recover money from the driver if the driver was:
- driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results [s 124A(1)(aa)]; or
- so much under the influence of alcohol or drugs as to be incapable of exercising effective control of the vehicle [s 124A(1)(a)]; or
- driving with a blood alcohol level equal to or above 0.1 grams of alcohol per 100 millilitres of blood [s 124A(1)(b)]; or
- was using the vehicle without the consent of the owner [s 123].
The Motor Accident Commission is also able to recover from a driver, to the extent considered just and equitable given all the circumstances, any money paid by it [Motor Vehicles Act 1959 (SA) s 124A(2)] where the driver:
- has committed an offence against section 43 of the Road Traffic Act 1961 (SA) (Duty to stop, give assistance and present to police where person killed or Injured). This is contrary to the Compulsory Third Party Insurance policy;
- has not complied with any other term of the policy of insurance [s 124A(2)(a)];
- failed to notify the Motor Accident Commission of details of the accident as soon as reasonably practicable or gave false information [Motor Vehicles Act 1959 (SA) s 124(1), (2), (6)];
- drove the vehicle overloaded, or in an unsafe, unroadworthy, or damaged condition [Motor Vehicles Act 1959 sch 4];
- was driving without a licence [Motor Vehicles Act 1959 sch 4];
- failed on the request Allianz to produce her or his licence or certificate of registration [s 124(5)];
- without the written consent of the Motor Accident Commission entered upon any legal action or incurred any cost in any legal action, made an offer or promise of payment, made any payment, or made an admission of liability in relation to the matter [s 126];
- authorised the repair or dismantling of the vehicle without the written consent of the Motor Accident Commission, or wilfully caused the damage to the vehicle [s 126].
Owners and drivers have a positive duty on to cooperate with the Motor Accident Commission (the insurer) [Motor Vehicles Act 1959 (SA) s 124]. The insurer also has the power to compulsorily acquire a motor vehicle for the purposes of the conduct of negotiations or proceedings [s 125B].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.