Injuries occur on the road as a result of motor vehicle accidents, car accidents, truck accidents, motorcycle accidents and bus accidents. Even collisions with trains, trams and tractors can result in personal injury claims. Drivers, passengers, pedestrians, cyclists and scooter riders can bring a claim if the accident was caused or contributed to by the negligence of someone else.
Even in circumstances where the vehicle that caused the accident was unregistered or unidentified, a claim is still able to be brought against the Nominal Defendant, a Queensland government insurer. These claims, however, have to be commenced within a very short period of time, so you should seek legal advice immediately.
Many car accidents and other road accidents lead to very serious injuries including catastrophic spinal injuries, traumatic brain injuries, neck and whiplash injuries, fractured limbs, soft tissue injuries, psychological injuries and sometimes even fatalities. For family members whose relative has been significantly affected by a motor vehicle accident, the relative may also be able to bring claims for loss of dependency, loss of services and nervous shock (psychiatric injury).
How Do Motor Vehicle Accident Injury Claims Work?
Anyone involved in a car accident is covered by compulsory third party (CTP) Insurance, provided the vehicle at fault for the accident is registered. If the vehicle is not registered, then the Nominal Defendant becomes the insurer of the vehicle. The only person whose injuries will not be covered is the driver of the vehicle that caused the accident (if the accident was entirely their fault). Passengers in that vehicle, however, will be covered.
If you were injured in an accident caused by someone else, then you will be able to lodge a CTP claim with the CTP Insurer of the at fault vehicle.
A typical CTP claim goes like this:
- The motor vehicle accident occurs;
- You contact a lawyer;
- A Notice of Accident Claim form is served on the CTP insurer of the at fault vehicle within 1 month of initial consultation;
- The insurer then accepts the claim within 14 days and starts paying for all reasonable and necessary treatment and rehabilitation, provided they accept that the insured driver is likely to be at least partially at fault for the accident;
- The insurer notifies us of their position on liability (ie whether they admit or deny liability for the accident) within 6 months of the acceptance of the claim;
- Most (but not all) injuries will be considered to be stable and stationary within 12 months after the accident;
- Medicolegal appointments then take place (for both sides), to assess any ongoing impairment and disability. These reports are normally all received by around 16 months after the accident;
- An offer of settlement is then compiled;
- The parties then attend a compulsory settlement conference approximately 18 months post-accident (NB around 7 out of 10 matters resolve at this stage);
- Mandatory Written Offers are exchanged in writing at the end of the conference (if there is no prior resolution) and remain open for 14 days;
If the claim fails to resolve at the compulsory conference (and neither party accepts the other party’s Mandatory Final Offer), then:
- Court proceedings are commenced within 60 days from the date of the conference;
- Court documents are exchanged between the parties over the next few months;
- A mediation is then held between the parties (NB around 9 out 10 matters resolve at this stage);
If the claim fails to resolve at the mediation:
- Both parties start preparing for trial (whilst continuing negotiations); and
- If all other negotiations fail, the matter is listed for trial and ultimately heard by the court. (NB less than 2% of personal injury claims proceed to trial)
What can you claim?
The following heads of damage can be claimed against a CTP Insurer:
- Pain and suffering and loss of enjoyment of life;
- Past economic loss (lost income);
- Past special damages, also known as out of pocket expenses (eg treatment, rehabilitation and medication);
- Past paid services (eg mowing, gardening, housekeeping, cleaning, cooking, etc), provided these services were not already being provided prior to the accident;
- Past unpaid (voluntary) services provided by friends and family, if those services were provided for at least six (6) hours per week for a minimum of six (6) months and provided these services were not already being provided prior to the accident;
- Interest on any past economic loss (lost income), expenses and/or paid services;
- Future economic loss – likely loss of income or earning capacity;
- Future likely special damages / out-of-pocket expenses;
- Future likely paid services; and
- Future likely (unpaid) voluntary services to be provided by family and friends.
So, what is required of you during the CTP claim process?
We will handle the majority of your claim so you can live your life normally (or at least as normally as possible with the injuries you have sustained). What might be required of you could include the following:
- We will need to speak with you in person or via Zoom about the incident;
- We will need your help with finalising any claim form, to ensure that we get your story right so you can then sign that claim form;
- We will need you to attend some medicolegal appointments for us and the insurer will require the same;
- We will need you to provide us with copies of any relevant documents including receipts for medication and treatment, financial documents and an impact statement (detailing how your injuries have affected you and are continuing to affect you);
- We will need you to approve any offer of settlement that we formulate on your behalf; and
- We will need you to attend a compulsory settlement conference so as to provide us with your instructions regarding any offers of settlement and to answer any additional questions we, or the CTP Insurer, might have. We will not allow the insurer’s lawyers to ask you any questions directly. (NB Around 70% of claims resolve at this stage)
If the claim fails to resolve at the compulsory conference:
- We will need you to attend a mediation to provide us with your instructions regarding any further offers of settlement. (NB Around 90% of claims resolve by this stage)
- We will not permit the CTP insurer’s lawyers to ask you any questions directly during the mediation.
If the claim fails to resolve at the mediation:
- We will need to discuss what further offers of settlement should be made, if any, prior to trial;
- We will need you to attend court to give evidence, if the matter actually proceeds to trial. (NB less than 2% of personal injury claims proceed to trial)
How can we help?
Your claim will be assessed by one of our expert personal injury lawyers. If we are of the view that your claim is likely to succeed and that it is economically viable, then we will agree to act on your behalf on a “no win no fee” basis. Click here for more information on how we charge.
When to engage a personal injury lawyer?
You should engage a personal injury lawyer as soon as possible. This is so:
- We can make sure that what you are telling the doctors and the CTP Insurer is consistent – ie your story about what happened needs to remain the same, or conflicting versions need to be clarified as soon as possible, as credibility is critical in these claims.
- We can make sure that you are telling the doctors and the CTP Insurer the full story (eg disclosing previous injuries or claims), so that your credibility remains intact.
- We can make sure that your claim form and medical certificate lists all injuries you have sustained, no matter how insignificant – sometimes the doctors need some guidance in that regard.
- We can make sure that all of your injuries are being fully investigated and treated and that the CTP insurer is covering the treatment costs.
- We can start putting your offer of settlement together.
How to start a CTP claim after being injured in a motor vehicle accident?
The steps that you should take after being injured in a motor vehicle accident are as follows:
- See your doctor and report all injuries, no matter how insignificant they seem at the time.
- Report the accident to the police and ask them to provide you with a traffic incident number.
- Contact us to make a time to meet with one of our expert injury lawyers. We will come to you if you would prefer, at no additional cost.
- We will complete a Notice of Accident Claim form (“NOAC”) with you.
- We will provide you with the medical certificate that forms pages 11 and 12 of the NOAC and ask that you have your doctor complete it.
- You will also need to obtain referrals from your doctor for any further investigations or treatment that you might require, like x-rays or other scans, specialist reviews, physiotherapy or psychological counselling.
- We serve the NOAC with the completed medical certificate and a copy of any referrals on the CTP Insurer.
- The CTP Insurer then starts paying for any reasonable and necessary treatment and rehabilitation.
How much time do I have to lodge a CTP claim?
Different time limits apply where the vehicle that caused the accident is identified compared to when the vehicle is unidentified.
Where the vehicle that caused the accident has been identified:
A Notice of Accident Claim form has to be served on the CTP Insurer within one (1) month of consulting with a lawyer or within nine (9) months of the date of accident, whichever is the earliest. Where the vehicle is unregistered, the claim form is served on the Nominal Defendant.
A claim can still be lodged outside the nine (9) month timeframe, up to three (3) years post-accident, provided a reasonable excuse for delay is given.
Ultimately, you have to resolve your claim or commence court proceedings within three (3) years from the date of accident, failing which you lose all rights to receive compensation.
There are some very limited exceptions to the three (3) year rule. If you are outside that timeframe, we would recommend you seek legal advice urgently.
Where the vehicle that caused the accident cannot be identified:
A Notice of Accident Claim form should be served on the Nominal Defendant within one (1) month of consulting with a lawyer or within three (3) months of the date of accident, whichever is the earliest.
A claim can still be lodged outside the three (3) month timeframe, up to only nine (9) months post-accident, provided a reasonable excuse for delay is given.
Ultimately, provided you served a claim form within nine (9) months of the accident, you then have to resolve your claim or commence court proceedings within three (3) years from the date of accident, failing which you lose all rights to receive compensation.
Who would my CTP claim be against?
Your claim will be against the CTP insurer of the vehicle that caused the accident. You will be alleging that the driver of that vehicle was at fault but the CTP insurer is the one that conducts the defense of the claim on behalf of that driver.
In circumstances where the vehicle is unregistered or cannot be identified, then the claim is against the Nominal Defendant (a government insurer).
What if the driver at fault for the accident was a family member or friend?
It does not matter if the accident was caused by a family member or friend. They will not even have to pay an excess. The CTP insurer of their vehicle simply takes the matter over on their behalf.
This means that if you are a passenger in the vehicle driven by your family member or friend and they cause an accident, then you can still bring a claim without fear of any adverse consequences to your family member or friend.
The CTP insurer will, of course, want your family member or friend to provide a statement about what happened and, in the unlikely event that the matter was to proceed to trial, they might be called upon to give evidence about what happened but that would be it.
There are, however, some exceptions to this rule. If your family member or friend was driving under the influence of drugs or alcohol (and this caused or contributed to the accident), or the vehicle was unregistered, or there was an obvious defect with the vehicle that they knew about (which then caused the accident), then the insurer might have a right of recovery against your family member of friend to recover everything they paid to you, as well as any legal costs they incurred.
What injuries can I claim for?
- Fatal injuries / Death claims
- Catastrophic injuries
- Head injuries and brain injuries, including closed head injuries, ttraumatic brain injuries (TBI) and acquired brain injuries (ABI)
- Post-concussion syndrome
- Spinal cord injuries, including tetraplegia (also known as quadriplegia) and paraplegia
- Brachial plexus injuries
- Amputation injuries
- Neurological injuries
- Thoracic outlet syndrome injuries
- Complex regional pain syndrome injuries
- Cauda equina injuries
- Spinal injuries
- Facial injuries including injuries to the jaw
- Whiplash injuries
- Neck injuries
- Back injuries, often lower back injuries
- Bone fractures
- Pelvic injuries and hip injuries
- Joint dislocations, including ankles, knees, hips, shoulders, elbows, wrists and fingers
- Shoulder injuries
- Elbow injuries
- Hand injuries, wrist injuries and finger injuries
- Degloving injuries of fingers, arms, legs, etc.
- Internal organ injuries
- Abdominal injuries
- Hernias, including inguinal hernias (groin) and umbilical hernias (belly button)
- Groin injuries
- Leg injuries and thigh injuries, including fractures
- Knee injuries, including ACL tears, PCL tears, MCL tears, LCL tears, torn meniscus, fractures and dislocations
- Foot injuries and ankle injuries
- Toe injuries
- Soft tissue injuries
- Cuts, lacerations and bruises
- Chemical injuries
- Chronic pain disorder
- Psychiatric and psychological injuries including depression, post-traumatic stress disorder, adjustment disorder, anxiety, traffic phobia and pain disorder
- Nervous shock injuries
- Aggravation of pre-existing injuries
- Aggravation of pre-existing degeneration
What is my claim worth?
How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:
- What ongoing problems you have as a result of your injuries – obviously, we won’t know this until your injuries are stable and stationary and have been assessed by the medical experts
- Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your injuries
- What the doctors say about your injuries, particularly the degree of impairment and the level of disability you have as a result of your work related injuries
- Whether you have pre-existing degeneration, previous injuries or other conditions that were impacting on you, or are going to impact on you in the future
- What restrictions and difficulties you have, particularly with respect to your work capacity
- What your income and earning capacity was like pre-accident, compared to what your income and earning capacity is now like
- What treatment, care and support needs you have
- Whether you have needed voluntary (unpaid) care and assistance as a result of your injuries and, if so, the nature and extent of that support
- Whether you have needed paid care and support as a result of your injuries and, if so, the nature and extent of that support
- Whether you have a need for home or vehicle alterations and other aids or equipment
- How much ongoing treatment, medication and care and support you need in the future
CTP claims often settle for hundreds of thousands of dollars or more.
How much does it cost in legal fees to pursue a CTP claim?
Do I have to pay the insurer’s costs if I lose?
This is extremely unlikely. You only have to pay some of the insurer’s costs if you proceed to trial and lose completely or if you receive a judgment for less than what the insurer has previously offered to pay you.
The number of personal injury claims that actually proceed to trial is less than 2 in 100, so the chances of having to pay the insurer’s costs are very slim. During the course of your claim, we will provide you with detailed advice on the quantum of your claim, so that you know what amount would comprise a reasonable settlement of your claim.
If I was injured on the way to or from work, can I claim workers’ compensation benefits as well?
If you were on your usual journey to or from work when the accident occurred, without any significant deviation, then yes you will be able to make a claim for workers’ compensation as well. You should lodge both a workers’ compensation claim and a CTP claim.
WorkCover Queensland (or the workers’ compensation self-insurer) will pay for all reasonable and necessary treatment and rehabilitation, as well as weekly benefits for any time off work, upfront. The CTP claim will simply run alongside the WorkCover claim until the WorkCover claim ceases. The CTP claim will then proceed on its own.
If I was driving for work at the time of the accident, can I claim workers’ compensation benefits as well?
Yes. Those workers whose work involves driving, like taxi drivers, uber drivers, truck drivers, courier drivers, salesman and other employees that drive for a living are entitled to claim workers’ compensation benefits if they are injured whilst driving for work.
If the accident was not your fault, then you can also make a CTP claim. If the accident was your fault, however, then you can make a workers’ compensation claim but not a CTP claim.
Will I have to refund what WorkCover pays to me?
The CTP Insurer will have to refund, out of your settlement monies, whatever WorkCover has paid to you.
The amount that WorkCover has already paid, however, is added to the other amounts that we claim from the CTP Insurer on your behalf, so you do not lose anything.
How does NIIS and the CTP claims process work?
When you suffer a “serious personal injury” in a motor vehicle accident in Queensland, you are eligible to receive benefits from the National Injury Insurance Scheme (Queensland) (NIISQ).
You, your guardian or the hospital can lodge an “Application Form – Interim Participation” with NIISQ, who then make a determination in relation to your eligibility. Once you are deemed eligible to receive NIIS benefits, NIISQ takes over the management of your reasonable treatment, care and support needs.
The Application for NIIS benefits can be lodged before or after your CTP claim is lodged. Often, it is lodged beforehand, but the CTP claim should then be lodged as soon as possible thereafter.
A CTP claim entitles you to recover additional heads of damage, over and above what NIISQ provides, including an amount for pain and suffering, loss of amenities and loss of enjoyment of life, past lost income, future lost income, past loss superannuation and future lost superannuation, which can be very significant. This is in addition to any amount required to compensate you for your treatment, care and support needs.
The CTP claim proceeds as normal whilst all treatment is being provided by NIISQ, although there is an option to opt out of NIISQ, which normally occurs around 2 years after the accident. We will assess your situation and provide you with advice on whether you should or should not opt out of NIISQ.
For more information on claims involving NIISQ click here.
Do I have to pay tax on any compensation I receive from the CTP insurer?
No. In personal injury claims in Queensland we only claim net losses (after tax), so the ATO does not impose tax on any settlement monies. If, however, you invest those funds and earn income then you may well have to pay tax on that income. You should seek advice from your accountant or financial advisor in that regard.
During your free consultation, we will take steps to:
- Determine exactly what injuries you have suffered;
- Work out precisely how the accident occurred;
- Decide whether someone else caused or significantly contributed to your accident;
- Decide whether your claim is likely to be economically viable;
- Provide you with our advice on whether we believe you will win and whether your claim will be viable;
- Discuss the CTP claims process and what will be required of you;
- Discuss what costs will be involved and how we charge; and
- Respond to any questions that you might have in relation to your claim.