Injured in a Road Accident
If you have been injured in Western Australia as a result of the negligent or careless driving of a motor vehicle or motorcycle, you have a right to claim compensation for your injuries suffered, even if it was partly your own fault. Compensation is paid by the Insurance Commission of Western Australia if the negligent party was driving a Western Australian registered car (or an unknown car).
Download the table for general damages as a 'percentage' of a most extreme case.
Do I Have a Claim?
Your right to compensation is qualified by the Motor Vehicle (Third Party Insurance) Act (the Act). You may have been injured whilst driving, as a passenger, or when a pedestrian. As long as your injury was caused, in whole or part, by the neglect of another person in the control of a motor vehicle, you have a valid claim, even if your injury was partly your own fault.
If the negligent party was driving a vehicle which is registered in Western Australia, your claim will be against the Insurance Commission of Western Australian (ICWA) as the negligent party's insurer. Upon notification the ICWA will investigate the accident to ascertain whether it was caused in whole or in part as the result of the negligence of its insured.
The ICWA will also issue you a claim number. If the accident was caused in whole or in part by the negligence of a driver of a vehicle registered in another State, your claim will be against the insurer in the State in which the vehicle is registered.
For example:
- In Victoria it is the Transport Accident Commission.
- In South Australia it is the State Government Insurance Commission.
- In Queensland and New South Wales it may be one of a number of insurers.
However, if the accident happened in Western Australia, the relevant law applicable to your claim is that of Western Australia and accordingly you shall have the same right to compensation as if the accident was caused by a driver of a vehicle registered in Western Australia.
What am I entitled to?
Once it is established that you have a claim you may be entitled to:
- Special Damages
These are losses and expenses which you have sustained as a result of your injuries. These may include:- Past and future Loss of Earnings.
- Past and future Medical Expenses.
- Past and future Pharmaceutical Expenses.
- Past and Future services you require as a result of your injuries e.g. cost of a carer, housekeeper etc.
- General Damages
General Damages is the amount of money to which you are entitled, to compensate you for such things as:- Pain and suffering.
- Loss of enjoyment of life.
- Loss of amenities.
- Trauma, shock.
- Inconvenience.
- Stress.
The amount of general damages to which you will be entitled will depend on numerous factors including:
- The severity of your injuries.
- How they affect you.
- Your age.
- Your pre-accident condition.
In Western Australia, there exist a number of restrictions on your right to general damages. These limitations increase regularly and currently are as follows:
- If your assessment of general damages is less than $17,500 you will not be entitled to any general damages. If your assessment of general damages is between $17,500 and $52,500 then the sum of $17,500 will be deducted from your award of general damages.
- If your assessment of general damages is between $52,500 and $71,750 then the amount deducted from your award of general damages reduces from $17,500 where general damages are assessed at $52,500, to zero where general damages are assessed at $71,750
- General damages awards of $71,750 or more are not subject to any deductions. Further, a cap of $350,000 is placed on any award of General Damages. This cap of $350,000 is reserved for a most extreme injury. However, all injuries are assessed as a percentage of a most extreme injury. Set out below is a table of the amounts payable for general damages depending on the percentage of the injury when compared to a most extreme case, taking into account the restrictions outlined above.
More details: Table of General Damages (Correct as of the 1st of July 2010)
Fatal Accidents
If you are a dependant of somebody killed as the result of the negligent use of a motor vehicle, you may also have a claim for injury as a result of the injury or death of another.
Damages as a result of somebody else being injured
If you suffer psychological damage, stress or anxiety as the result of witnessing or being made aware of an accident you may also have a claim for such losses.
Claim on behalf of your injured children
If you are the parent or guardian of a child injured in a motor vehicle accident your child can bring a claim through you, for such injuries.
Upon settlement of such a claim, which will be subject to the District Courts' approval, the proceeds are placed in trust until the child reaches 18. There is usually a power given to the Trustee to use such funds for the educational needs of the child until he/she reaches 18.
About legal costs
The very reason that you seek the assistance of a personal injury lawyer is to maximise your compensation payment, not to incur legal costs. So it is important that you understand a little about legal costs.
There are 2 types of legal costs:
- Party/Party Costs
These are the costs which the party liable to pay your compensation must pay you.
Upon the ICWA admitting liability, either in whole or in part, they are also admitting to pay you, upon finalisation of your claim, the party/party costs, should you engage a lawyer to act for you. You will not be entitled to be paid any party/party legal costs if you do not engage a lawyer. The amount of party/party costs to which you will be entitled depends on a number of factors, the most important of which is the amount of work your lawyer was required to undertake. Obviously the amount of party/party costs will depend on whether your claim is settled at an early stage or late stage.
Who determines how much Party/Party costs I am entitled to?
These costs are governed by a scale called "The Supreme Court Scale". In the event that your claim is settled at a Settlement Conference, or at a Pre-trial Conference, the settlement will include a component for party/party costs. This is negotiated between your lawyer and the ICWA. Sometimes, the offer the ICWA makes to settle your claim may be acceptable, but their offer in respect of the amount of party/party costs they are prepared to pay is not. - Solicitor/Client Costs
"Solicitor/Client Costs" are the costs payable by you to your lawyer.
In Western Australia, a lawyer cannot charge you on a different basis than the Supreme Court Scale. As with party/party costs the amount will depend upon a number of factors including - the amount of work undertaken, the experience and expertise of the lawyer carrying out the work, the complexity of the issues etc. Whilst both party/party costs (the costs you receive if you are entitled to compensation) and solicitor/client costs (the costs you must pay your solicitor) are both based on the Supreme Court Scale, it is usual that solicitor/client costs will exceed party/party costs. This is usually because your lawyer will undertake some work, which is reasonable or necessary to carry out, but which would not be allowable if claimed against the ICWA. During the course of your claim we may have to incur some out of pocket expenses (disbursements) on your behalf. The most significant of these disbursements is usually obtaining a medico-legal report from a specialist. In the vast majority of cases, these disbursements are paid by the ICWA at the settlement of the claim. In the event that disbursements are incurred and the ICWA do not reimburse them, or any part of them, then they are payable by you out of the proceeds of the settlement. We do not however, require to be reimbursed these disbursements in the event that there are insufficient funds following the settlement. Similarly, any legal costs payable by you are payable only at the finalisation of your claim, and then, only from the proceeds of any settlement. In the event that there are insufficient funds from settlement to pay our legal fees, we shall waive our fees to the extent that they exceed the available funds.As a result of the above, you will only be required to pay our legal fees and disbursements out of the proceeds of your claim.
Should your claim not result in the negotiating of a settlement of your claim, you may wish to instruct us to institute legal proceedings and have your claim proceed toward a trial. Prior to this, we will advise you of the terms and conditions upon which we shall act for you. We shall also advise you of the implications of such an action. One of these implications is that once legal proceedings are commenced, you are exposed to possible orders from the court regarding the payment of other parties legal costs in certain circumstances. For instance, a person who proceeds to trial and is not successful is usually ordered to pay the other parties legal costs. Further a person who proceeds to trial and fails to obtain an order for damages in excess of a previous offer made to settle the action, is also usually ordered to pay the other parties legal costs from the date of such an offer. Prior to being retained to commence proceedings, therefore, we would fully advise you of the full implications of these issues.