Depending on the nature of the claim and the seriousness of the injuries, a personal injury claim can be dealt with in one of two ways:
- the claim can be settled directly with Allianz, or
- a common law action for damages can be taken and either settled during the proceedings or, if not settled, decided by a 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 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 $80 000, 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 [Limitations 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 [s45A(7)].
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.