Claiming for motor vehicle accidents in Queensland

Understanding the scheme in Queensland

Queensland introduced a ‘fault’ based Compulsory Third Party (CTP) insurance scheme in 1936.

Today, this scheme is governed by the Motor Accident Insurance Act 1994, which came into effect on 1 September 1994 and underwent major changes that took effect on 1 October 2000.

All registered drivers in Queensland pay compulsory insurance to their CTP insurer each year. This means that if a driver becomes legally liable for a personal injury caused to another road user in a motor vehicle accident, he or she will be indemnified by their CTP insurer. To allow this scheme to run smoothly, it is an offence to drive an uninsured vehicle in Queensland (s 20 of the Act).

From the perspective of an injured person, the Act allows a third party (the injured person) to approach a court in order to seek monetary compensation from the person ‘at fault’ for the personal injury. The injured person also has additional protection in that if he or she is involved in a motor vehicle accident where the negligent driver is in an uninsured or unidentified vehicle, the injured person can still claim damages. The Act has created a statutory body that can step in and compensate the injured person in these circumstances. This body is known as the Nominal Defendant.

Am I eligible to claim damages?

To be eligible to claim damages, a few basic criteria must first be addressed:

1) Has a personal injury as defined by the Act been sustained?
2) If yes, does the Act apply to the circumstances of the accident?

The definition of personal injury in s 4 of the Act is fairly broad. It includes fatal injury, whereby a relative or dependant of the person killed in a motor vehicle accident may be able to make a claim. It also includes prenatal injury and damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices.

Once a personal injury has been established, the injured person must show that this was caused “by, through or in connection with a motor vehicle”. More specifically, s 5 of the Act outlines that the injury must result from one of the following circumstances: the driving of the vehicle; a collision or action taken to avoid a collision with the vehicle; the vehicle running out of control; or loss of control of the vehicle while it is being driven due to a defect in the vehicle.

In any of these circumstances, the injury must be caused, at least partly, by a wrongful or negligent act or omission by a person other than the injured person.

Each of these elements need to be proven if an injured person wishes to bring a claim again the CTP insurer.

How do I claim damages?

Where the injured person proposes to claim damages, he or she has a duty to notify the accident to the police (s 34 of the Act). There are strict timeframes and rules about what particulars need to be reported to the police.

The injured person must also complete a ‘Notice of Accident Claim Form’ and send this to the CTP insurer of the ‘at-fault’ vehicle. There are a number of rules that pertain to the submission of this form as various documents are required and strict timeframes apply. In particular, a medical certificate must accompany the form; the traffic incident number, police officer’s name and the station where the accident was reported must be stated; the form must be signed by a witness who is over 18 and knows the claimant; and if a legal firm has been consulted, its details and the initial consultation date must be included.

It is important to understand that a claim could be rejected if it is not lodged within the correct timeframe.

What kind of damages can I expect?

The Civil Liability Act 2003 (CLA) was introduced in 2003 and applies to all accidents that occurred on or after 2 December 2002. This Act works in conjunction with the Motor Accident Insurance Act 1994, however it restricts access to certain damages that could be claimed before its introduction.

General damages can still be claimed in the case of a motor vehicle accident. This includes damages for pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.

To determine the amount of general damages that should be awarded, the Civil Liability Regulation 2003 includes a list of Injury Scale Values. This takes the form of a very detailed list of injuries. For every injury, a range of points is awarded. The scale begins at 0, indicating that the injury is not serious enough to warrant any damages, and ends at 100, indicating the gravest injury conceivable. For example, a minor toe injury can be allocated between 0 and 3 points whereas the loss of both lower limbs above or through the knee ranges in points from 60 to 75. For courts to determine how much money these injuries equate to, they turn to a list of formulas in the CLA that multiply the number of points by a monetary value.

On the whole, exemplary, punitive and aggravated damages can no longer be awarded. However, it is still possible in some circumstances to claim damages for loss of earnings, loss of superannuation entitlements, future loss, loss of consortium or servitium and damages for gratuitous services. It is advisable to seek legal advice for more details about the damages to which you may be entitled.

Take The Next Step

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful.