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 $2 500.
The compensation payable for non-economic loss is assessed on a scale of 0 - 60 points. A relatively minor injury gains a low rating while the most severe injury will gain a rating of sixty points.
For accidents occurring in 2003 the multiplier increases as the number of points increases. From 1-10 on the scale the multiplier is $1 150 and increases to $6 900 from 50 -60. Before 2003 the multiplier was the same throughout the point range.
Any medical expenses special damages incurred may be claimed. A person suffering on going medical problems may also be able to claim damages for future medical expenses.
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 loss of future earnings will be discounted by 5%.
A parent, spouse or child of an injured person who gives voluntary service to that person may be able to claim for this service.
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.
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) s24(1)]. 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, whether legal or de facto
- 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.
There is a prescribed limit for medical services and charges. The limits are in accordance with the prescribed limits and services referred to in s 32 of the Workers Rehabilitation and Compensation Act. The insurer may recover from service providers (such as doctors) amounts paid for unnecessary services or charges in excess of the prescribed limit.
As a general rule, an injured person will not be able to finalise an injury claim until her or his injuries have settled down. Often injuries take some time to settle down and the final disabilities will not immediately be apparent. 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 which will prevent any action in the future.
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 ma 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.
For a non-economic loss claim a person injured in 2002 must show that medical expenses are at least $2 750 or that the person has been significantly impaired for at least 7 days.
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:
- pensions and allowances [Part 3.14 Social Security Act 1991 (Cth)]
- payments for workers compensation [s 54(7) Workers Rehabilitation and Compensation Act 1986 (SA)]
- benefits received under a Commonwealth rehabilitation program [s23 Disability Services Act 1986 (Cth)]
- payments made by Medicare [s 14 Health and Other Services Compensation Act 1995 (Cth)]
- provisions under other Acts such as the [Division 8.5, s 47 South Australian Health Commission Act 1976 (SA)]
These Government agencies frequently seek refunds of all 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.
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.