Car Accident Injury Compensation NSW Guide 2019 | Law Partners
 

Motor Vehicle, Injury and Rehabilitation | 15 November 2019

What you need to know about car accident compensation.

 

What do I do after a car accident?

If you’ve been in a car accident, your first priority should be safety – your own safety and the safety of the other driver and passengers. Find out if anyone’s injured and call an ambulance as soon as possible if it’s needed.

  • Gather as much information as you can about the other car and driver and take photos of any cars involved.
  • Make a note of the date and location and the other driver’s name, phone number, car registration, insurance policy details and driver’s licence number.
  • In return, you should give them your details.
  • You should also get contact details from witnesses if you can.

You also need to call the police and report the accident if anyone’s injured or if any cars need towing.

 

 

Do I have to give my insurance details after an accident?

Yes, under NSW road rules, drivers involved in an accident must stop at the scene of the accident and give their details to the following people:

  • Any other driver involved in the accident
  • Any other person involved in the accident who’s injured
  • The owner of any vehicle or property damaged in the accident

 

What happens after a car accident that’s not your fault?

If you’ve had an accident that’s not your fault, there are two things you need to consider:

  • Will you incur costs for damage to your vehicle?
  • Have you been injured?

This article is focused on what to do if you’re injured. If you’re primarily concerned with damage to your vehicle it’s best to contact your insurance provider for advice on what to do.

In NSW, personal injury benefits are available to drivers whether or not they’re at fault, and also to passengers, motorcyclists, cyclists and pedestrians. Click here to jump straight to the section of this article on claiming compensation.

 

Is it illegal to settle a car accident privately?

No, you can settle on payments for vehicle or property damage directly with other drivers rather than through your insurer, or if you don’t have comprehensive insurance. However, if you do settle and you want your insurer to pay, they may decline to do so. Most comprehensive car policies have a clause that states you won’t accept or deny liability or attempt to settle the claim.

 
Compensation claims for motor accident injuries are not generally settled privately. The NSW Compulsory Third Party (CTP) insurance scheme provides benefits to you if you’re injured.

 

However, you can sue a person directly if the NSW CTP scheme declines to indemnify the driver or the vehicle. Take for example a person injured by a tractor on a private property, where the tractor isn’t required to be registered and isn’t being used in the course of employment. In this case you would have to sue the driver or owner of the vehicle directly.

 

Do you legally have to report a car accident?

You must call the police after an accident if:

  • Any of the drivers were drunk or under the influence of drugs
  • Anyone was injured
  • Any cars had to be towed
  • The other driver didn’t stop or exchange details with you

If someone is killed or injured as a result of the accident, or if you were driving under the influence of alcohol or other drugs, it’s strongly recommended that you get legal advice before making a statement to the police.

 

Do you have to call the police after a minor car accident?

No, if an accident is minor, no one is injured and no cars require towing, then as long as the other driver has exchanged details with you there’s no need to call the police.

However, keep in mind that injuries can worsen over time, and if you need to claim personal injury benefits in the future you’ll need a police event number. So if you’re injured in any way it’s strongly recommended that you report the accident to the police, even if your injuries seem very minor.

 

What happens if there is no police report for a car accident?

If you’re claiming compensation or personal injury benefits following a car accident, you’ll need a police event number. If you don’t have one you can get an event number by calling 131 444 or by visiting a police station. If the accident wasn’t reported to police, you should get advice on your options by speaking to a specialist CTP lawyer.

 

Do insurance companies report accidents to police?

No, insurance companies don’t report accidents. It’s up to the people involved in accidents to report them to the police.

 

Should I talk to my insurance company after an accident?

It depends on whether you’re planning to claim for vehicle damage or personal injury. Vehicle damage is covered by the comprehensive insurer and personal injury is covered by the CTP insurer.

If your vehicle is damaged, you can agree to have the damage fixed directly with the other driver. In this circumstance, you would not need to contact your insurer. However, if the other driver doesn’t have insurance or is otherwise uncooperative, you should speak directly with your comprehensive insurer and provide them with the relevant details of the accident.

If you’ve been injured and wish to lodge a CTP claim, you’ll need to complete an application for personal injury benefits. This application needs to be lodged on the insurer for the vehicle at fault in the accident. If you were at fault, it needs to be lodged on your CTP insurer. If you’re unsure who the insurer is, you can find out by calling 1300 656 919 and quoting the registration number of the at-fault vehicle and the date of accident.

 

What happens if someone is injured and the person at fault in an accident has no insurance?

All vehicles in NSW are required to have CTP insurance in order to be registered. If you’re planning to claim personal injury benefits, you’ll be claiming under the at-fault driver’s CTP policy, so it doesn’t matter if they don’t have comprehensive car insurance.

If the at-fault driver has no CTP insurance, or you’re unable to identify the vehicle at-fault, then you should note this in your application for personal injury benefits, and your claim will be brought against the Nominal Defendant.

If you’re not sure what to do, you can get free legal advice from a specialist car accident lawyer.

 

What happens if I’m at fault in a car accident?

If you’re at fault or mostly at fault, you can still claim personal injury benefits, however the benefits will be restricted to lost income, treatment and care expenses for a maximum of six months after the accident.

If you’re at fault and the other driver is injured, then the other driver may claim personal injury benefits under your vehicle’s CTP insurance policy. You should provide the other driver with your CTP policy details if requested.

 

Is an uninsured driver automatically at fault?

No, being uninsured doesn’t have anything to do with fault in an accident.

 

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Your guide to car accident injuries

 

What do I do if I’ve been injured in a car accident?

If you’ve been injured in a car accident you should see your GP and get a certificate of fitness/ certificate of capacity. This is your doctor’s assessment of your injuries and your ability to return to work. If you need any time off work or you’ve incurred any expenses as a result of your injuries, you should submit an Application for Personal Injury Benefits to receive compensation for your losses.

 
Click here for a series of comprehensive articles on claiming personal injury benefits and lump sums for car accident injuries.

 

What is the most common injury in a car accident?

According to the State Insurance Regulatory Authority (SIRA) whiplash is the most common soft tissue injury suffered in car accidents in NSW. Other common injuries include:

  • Cuts and bruises
  • Brain and head injuries
  • Spinal injuries
  • Fractures and broken bones
  • Knee and shoulder trauma
  • Psychological injuries

 

What is considered a serious injury in a car accident?

In NSW, car accident injuries are classified as “minor” and “non-minor”.

Non-minor physical injuries include:

  • Fractures
  • Complete or partial rupture of a tendon, cartilage, meniscus or ligament
  • Damage to the spinal nerve root that meets the criteria for radiculopathy
  • Injuries that require surgery
  • Brain injuries
  • Scarring

Injuries such as bruising, muscle strains or soft tissue injuries are considered ‘minor injuries’. The most common soft tissue injury after a crash is whiplash, which often results in neck pain for a short period of time, but doesn’t require surgical intervention.

For a psychological or psychiatric injury to be a non-minor injury, it needs to be a condition related to the accident which is diagnosable under the “DSM-5”- the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition. An example of a non-minor injury psychiatric illness is Post Traumatic Stress Disorder (PTSD). This is subject to the exclusions noted below.

Minor psychological or psychiatric injuries are any injuries that are not diagnosable under the DSM-5 or alternatively are classified as acute stress disorder or adjustment disorder.

 

What injuries can you get from being rear ended?

Whiplash is the most common injury from a rear-end collision. Whiplash is caused by a violent, sudden movement of the neck and head from the impact of the accident.

Other common injuries from rear-end accidents include:

  • Back injuries
  • Breaks and fractures
  • Airbag injuries
  • Head and brain injuries
  • Spinal cord injuries
  • Seat belt injuries

 

How long does neck pain last after a car accident?

If you have whiplash, most of the pain should reduce significantly a couple of days after the accident as the soft tissue begins to heal and inflammation reduces. However, in some cases the pain from whiplash lasts up to six weeks and in the most extreme cases it can continue for months or even years, requiring ongoing treatment.

 
Although painful, whiplash generally doesn’t affect the vital nerves, bones or other structures located within the neck and in the short term pain can be reduced with ice, pain-relief medication and rest.

 

How do doctors check for whiplash?

Whiplash is generally diagnosed through a physical exam by your GP. Because whiplash injuries are soft tissue injuries, they can’t be seen on X-rays. Imaging tests such as  magnetic resonance imaging (MRI) can be used to more accurately diagnose whiplash, but are not required for the diagnosis.

During the physical exam your doctor will ask you to move and perform simple tasks to determine your range of motion in your neck and shoulders, the degree of motion that causes pain, any tenderness and to test your reflexes, strength and sensation in your limbs.

Imaging tests may not show anything abnormal but may be used to rule out other conditions that could be making your neck pain worse.

 

Why does my lower back hurt after a car accident?

There are a number of injuries that can cause lower back pain after a car accident. Here are some common examples:

The discs of the spine may have sustained damage. This sort of pain can affect any part of the spine, but the lower back (lumbar spine) is particularly susceptible. If the discs are damaged, it’s likely you’ll experience intense pain along with difficulty moving.

Lumbar sprains (when the ligaments of the back are stretched or torn) can also be caused by car accidents because of the sudden trauma of the impact.

Disc herniation occurs when the inner filling of the discs of the spine protrudes through the outer layer. The rupture itself is generally not painful, but when the protruding material contacts spinal nerves it can be very painful.

 

How long does back pain last after a car accident?

If your back pain is caused by injury to the soft tissue in the lower back, and not the spine or joints, then depending on the severity it’s likely to settle in the days, weeks or months following the accident. However, symptoms of more serious spine injuries can take longer to develop and recovery times will depend on the diagnosis and treatment required.

Many injuries can be detected early through tests and imaging, and even if there isn’t an injury a scan can give you the peace of mind to know that your pain is very likely to decrease as the joints and muscles recover and inflammation reduces.

 

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Claiming compensation for injuries from car accidents

 

Can you get compensation for a car accident?

Yes, if you’re injured you may be able to claim compensation through the CTP insurance scheme. The scheme provides personal injury benefits to cover certain losses you incur because of your injuries. If you’re injuries are considered “not minor” you may also be entitled to pursue a claim for damages if you weren’t at fault in the accident.

 
For a more detailed set of articles and free resources to help you on claim compensation from a car accident, visit ctpaclaimadvice.com.au.

 

How do I claim CTP insurance / compensation from an accident?

To claim compensation for your injuries through the CTP insurance scheme, you’ll need to lodge an “Application for Personal Injury Benefits”. Where the application is lodged depends on your accident circumstances. If you weren’t at fault for the accident, then the application is lodged with the CTP insurer of the vehicle at fault. If you were at fault, or if you were involved in a blameless accident, the application needs to be lodged on your own CTP insurer. If the at-fault vehicle is unidentifiable or was unregistered, the application needs to be lodged with the Nominal Defendant Scheme managed by the State Insurance Regulatory Authority (SIRA). In all circumstances you’ll also need a certificate of capacity from your doctor that details your injuries.

 
You can find a simple, step by step guide on how to lodge your application by clicking here.

 

Can you get compensation if the accident was your fault?

Yes, even if you were at fault (or mostly at fault) you can still claim personal injury benefits under the CTP insurance scheme, however your benefits will be restricted to a maximum of six months from the date of the accident.

 

Can you file a compensation claim without a police report?

When you lodge your application for personal injury benefits you’ll need to include a police event number. You can get an event number by calling 131 444 or by visiting a police station.

 

What is covered by CTP insurance?

When you make a CTP insurance claim your entitlements are initially based on whether your injuries are classified as minor or non-minor. If your injury is classified as minor you won’t be entitled to claim a lump sum for future loss of wages or pain and suffering, and your benefits will be cut off after a maximum of six months.

Here’s a summary of enitlements:

Application Type Entitlements Covered
Application for personal injury benefits
  • Lost income through time off work
  • Treatment expenses
  • Care expenses
Application for damages under common law (lump sum claim)
  • Lump sum for past economic loss
  • Lump sum for future economic loss
  • Lump sum for pain and suffering

 

Can you sue for injury in a car accident?

If you take action against a negligent driver in a car accident, this is known as an Application for Damages Under Common Law (a lump sum claim). You’re entitled to pursue a lump sum claim if you weren’t at fault for the accident and sustained injuries which were “not minor”. The NSW motor accident legislation mandates that only eligible people who pursue a lump sum claim are entitled to receive weekly payments beyond 2 years after a motor accident.

 
So if you’re not at fault and have injuries that are not minor injuries it’s crucial that you consider pursuing a lump sum claim in order to receive ongoing weekly payments. For detailed articles on claiming lump sum compensation visit ctpclaimadvice.com.au.

 

Can I claim for psychological or psychiatric injuries after a car accident?

Yes, under the CTP scheme you may be able to claim compensation for psychological or psychiatric injuries from an accident. The entitlements available will depend on whether your condition is classified as “minor” or “non-minor” under the NSW CTP scheme.

Psychological or psychiatric injuries are classified as “minor” if they’re not a recognised psychiatric illness pursuant to the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM -5) or if the injury is diagnosed as acute stress disorder or adjustment disorder

Here are some examples of the symptoms which may lead to a non-minor diagnosis:

  • Reduced ability to look after yourself (self-care and personal hygiene)
  • Reduced participation in social or recreational activities
  • Reduced ability to travel
  • Reduced ability to maintain relationships with friends and family
  • Reduced ability to concentrate
  • Reduced ability to work

 

Can you claim compensation if the at-fault driver didn’t have comprehensive car insurance?

All vehicles are required to have CTP insurance in order to be registered. If you’re planning to claim compensation you’ll be claiming under a CTP policy, so it doesn’t matter if you (or the other driver) don’t have comprehensive car insurance – you can still claim compensation.

 

Do insurance companies pay out for whiplash?

Yes, if you have a whiplash injury form a car accident in NSW then you can claim personal injury benefits for up to six months. Benefits are limited to six months because whiplash is recognised as a “minor” injury under the NSW CTP scheme.

 

How do you make a claim for whiplash?

To make a claim for whiplash you’ll need to submit an “application for personal injury benefits” through SIRA (the State Insurance Regulatory Authority). Your claim will be assessed by the CTP insurer of the vehicle that was mostly at fault in the accident. Click here for a step-by-step description of how to submit a claim.

 

How long can you claim compensation for an injury after a car accident?

If you’re applying for personal injury benefits you need to lodge your application within 28 days to be eligible for back-pay of lost wages from the date of the accident. The final deadline for claiming personal injury benefits is three months from the date of the accident. After that time, if you wish to pursue a claim for personal injury benefits you’ll need to provide an explanation for the delay in lodging your claim to the insurance company.

If you’re claiming a lump sum benefit for non-minor injuries (a common law damages claim), and your WPI (whole person assessment) is less than 11% you’ll need to wait until 20 months after the date of the accident.

If your injuries are above 10% WPI then you can claim your lump sum at any time.

 

How much money do you get for a whiplash claim?

The CTP scheme classifies whiplash as a minor injury, which means most people will only receive personal injury benefits for a maximum of six months, and won’t be entitled to pursue a common law damages claim for lump sum compensation. Personal injury benefits for minor injuries include:

  • Treatment and care expenses
  • Lost income through time off work*

*Calculated initially at 95% of average pre-injury earnings, then reducing over time.

Here’s an example of how whiplash injury entitlements could be calculated. Let’s say the injured driver had:

  • $5,000 in treatment and care expenses
  • 3 weeks off work
  • Average weekly earnings prior to the accident of $1,500

In this case the entitlement to personal injury benefits would be approximately $9,275 based on: $5,000 + ($1500 x 3 x 0.95). In reality the calculation is a little more complicated, but this is essentially the basis for the insurer to determine your entitlements.

 
However, it’s important to note that even though whiplash is classified as a minor injury, it can lead to other health issues which may be classified as non-minor injuries that develop over time. This may lead to compensation entitlements and lump sums that are significantly higher – potentially in the hundreds of thousands of dollars. If you’re suffering from whiplash it’s a good idea to speak to a specialist car accident injury lawyer and find out what you might be entitled to claim.

 

How much can I get for pain and suffering from a car accident?

A pain and suffering lump sum payment from a car accident injury can be substantial – with many running into hundreds of thousands of dollars. As at 1 October 2019, the maximum amount of compensation that can be awarded for pain and suffering is $565,000. The maximum amount of compensation is reserved for the most severe injuries arising from an accident as the impact to the injured person’s quality of life is likely to be for the rest of their lifetime. An example would be a person who is rendered quadriplegic at age 25 following an accident.

 
You do not however need to be a quadriplegic to be entitled to pain and suffering. Spinal injuries requiring surgery, significant burns, loss of vision and significant psychological or psychiatric injuries are all examples of other injuries that have an entitlement to pain and suffering, although they won’t usually attract the maximum compensation amount.

 

Should I get a lawyer for a car accident?

You can lodge your own claim after an accident, however it’s very likely you’ll get more compensation with the help of a specialist car accident lawyer.

It’s worth noting that the insurer that assesses your claim does have lawyers on its side – as well as in-house medical advisors, medico-legal specialists, accountants and other experts. The insurer’s team of experts will be assessing your claim and making decisions that impact how much compensation you receive. So if you don’t have legal support, the CTP scheme clearly puts you as the claimant in a position of weakness, and at the mercy of the insurer that’s assessing and paying your claim.

 
If you’d like to read more information about the CTP scheme and how to make sure you get your full entailments, refer to our series of articles on ctpclaimadvice.com.au.

 

How long do you have to get a lawyer after a car accident?

If you’re claiming personal injury benefits for a car accident injury you need to lodge your application within 28 days to be eligible for back-pay of lost income to the date of the accident. However, the information you include in your application will be used to determine your entitlements and becomes the foundation of a future Application for Damages Under Common Law, so it’s very important not to miss any details – one error could literally cost you tens or even hundreds of thousands of dollars in missed entitlements.

 
It’s a good idea to talk to a specialist car accident injury lawyer within 28 days of the accident and get advice before you lodge your application. Even if you decide not to engage a lawyer, you’ll have peace of mind that you’ve had professional advice on your options.

 

Does CTP insurance cover legal fees?

If you’re successful with your claim, under the NSW CTP scheme your legal fees will be covered by the insurer of the vehicle that was mostly at fault in the accident. This includes legal fees for “paid disputes” and for applications for lump sum compensation amounts up to $75,000. If your claim resolves for more than $75,000 the insurer will pay a contribution towards your legal fees, with a component being paid for out of the end compensation payment.

Please click here for a detailed article on legal fees for CTP claims and when you can get your legal fees covered by the insurer.

 

How much does a car accident lawyer charge?

In NSW, legal fees charged by car accident lawyers for CTP claims are regulated. Here’s a summary:

A solicitor can’t charge to assist you with completing your application.

Application for Personal Injury Benefits

If you’re disputing the insurer’s decision over your benefits, it’s important to understand there are two types of disputes – paid disputes and unpaid disputes.

  • paid dispute is a dispute that a solicitor can charge for, and the fees are fixed.
  • Your lawyer will earn generally $1,660 for each paid dispute to a maximum of $6,000 for each dispute category.
  • You won’t have to pay anything to have a solicitor assist you with a paid dispute – these fees are paid by the insurer.
  • If a solicitor helps you with an unpaid dispute, they must do it free of charge.

 

Application for Damages Under Common Law

If you’re applying for a lump sum, there’s a schedule of fixed fees a solicitor can be paid to assist you for claims up to $75,000.

  • These fees are paid by the insurer.
  • If your settlement amount is greater than $75,000, then the solicitor can charge an amount set by them, with your agreement.
  • This agreement is known as a “costs agreement”, and only applies to the amount they charge for your claim over the $75,000 threshold.
  • The fixed fees still apply to the work they do for the first $75,000 of your claim, and are still paid by the insurer.

 

 
Under a costs agreement, solicitors will generally either charge by the hour, or for set fees according to each service they provide. They can’t charge a percentage of your claim amount, however they can “cap” their fees at a percentage of the amount they successfully claim over and above $75,000 to provide you with fee certainty.

 

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