Being involved in a car accident, particularly one which was not your fault, can be a stressful and upsetting experience. On top of dealing with your insurance company for property damage, the at fault party, police and crash repairers - what do you do if you, or a passenger you were driving, were injured?
While every claim is handled slightly differently, depending on the nature of the accident and injuries sustained, there are seven key steps injured parties need to follow.
Changes made to the CTP legislation in South Australia have been in effect since 1 July 2013. This new system has dramatically impacted not only the entitlements available to injured claimants but also how claims are handled by insurers and legal representatives.
Previously, there was just one state insurer that handled all injury claims resulting from a motor vehicle accident. Now there are four insurers; AAMI, QBE, Allianz and SGIC.
The insurer who will handle your personal injury claim will depend on who the insurer is for the person at fault for the accident.
These details can be obtained from the registration documents of the vehicle if the at-fault driver has that information handy. Alternatively, you can search for the registration and insurance details online here or contact the CTP Regulator on 1300 303 558 to obtain these details.
Once you have obtained the at-fault driver’s details, you can lodge a CTP Injury Claim Form or, in the event of a claim relating to the death of a person in a motor vehicle accident, a Fatality Claim Form.
These forms have to be lodged with the appropriate CTP insurer as soon as possible following the collision and at the latest within six months. Penalties may apply if the forms have not been lodged within this time frame.
The information you will be required to provide in the form is as follows:
Under the changes made in 2013, injured parties are also required to provide authorisation to the insurer to obtain any documents or information which might be relevant to your claim. This can include your medical history for the past three, five or even 10 years, as well as tax returns and your Medicare history.
This authority can only be revoked six months after your claim.
Once you have lodged your CTP claim, the insurer will likely contact you directly to discuss your injuries and any treatment you are undergoing.
It is important to disclose to the insurer details of your medical providers and treatment regime and be honest as to the benefit, or in some cases lack thereof, so that proper treatment can be established and funded for by the insurer.
You also need to be upfront about any pre-existing injuries or conditions that you may have as this has to be taken into consideration by your treating medical providers and the insurer.
The insurer will often discuss and work with your medical providers directly to establish a proper treatment plan, with funding approval, and may ask for you for your approval to do so.
Some of the insurers now directly employ their own in-house medical teams, incorporating trained physiotherapists and nurses. These staff deal directly with you and your medical providers in order to discuss your injuries and treatment from a medical perspective.
A question we often get asked is whether you need to attend an independent medical assessment organised by the insurer. The short answer is yes.
Under the CTP scheme, claimants are obligated to cooperate with the insurer and submit to any medical assessments that they may arrange.
The CTP insurer will also obtain reports from your treating providers. This will usually be done prior to arranging any independent medical assessments.
Independent medical assessments are important in order to progress your claim as they provide you and the insurer with guidance as to how your injuries are impacting your daily life, as well as how any treatment is progressing. It is important to be aware that the insurer can send you for multiple assessments with either the same or different medical practitioners.
If at any point you feel that a report has not conveyed your injuries properly, you should discuss this with your case manager.
The changes have restricted many entitlements and damages that claimants were previously automatically able to claim for. For example, claimants are no longer automatically entitled to what is often called ‘pain and suffering’ damages, economic loss, voluntary assistance or even legal costs. There are now many threshold tests that need to be met before these types of damages and costs can be claimed.
The Injury Scale Value (ISV) Scale was established under the 2013 changes to the CTP system. The ISV Scale essentially outlines every injury that a person can sustain from a collision, and then allocates those injuries to a specific number.
This number assists the insurer in determining where your claim lies on the scale, and what types of damages you would potentially be entitled to claim for.
Under the new ISV scale, many whiplash and soft tissue injuries are categorised as ‘minor’ injuries and do not meet the threshold for ‘pain and suffering’ damages, despite these types of injuries often being debilitating and long-lasting.
Given the limited scope for recouping legal fees under the new system, it is often advisable to try and work with your insurer to save on costs, particularly in the early stages of your claim and treatment.
However, if at any point during the process you feel that your claim is not being handled appropriately, or if your claim is at the stage where you have undergone various medical assessments and obtained reports, independent legal advice should be sought.
Alternatively, you can also contact the CTP Regulator to discuss your concerns and make a complaint, if necessary.
An ISV Assessment is a whole person impairment assessment undertaken by a qualified and accredited medical practitioner. It determines the nature and level of impairment sustained through the accident in question. Following this assessment, the insurance company handling your claim will receive the ISV report which will categorise your injury according to the ISV Scale (outlined above in step 4 in more detail).
If an insurer makes arrangements for an ISV Assessment, this generally indicates that they are looking at finalising your claim and making an offer of settlement.
Legal advice should be obtained prior to accepting any offer of settlement. This ensures that you are aware of what your entitlements are under the new system.
Under the legislation, you have three years from the date of the accident to either settle your claim with the insurer or issue proceedings in the relevant Court to protect your claim from going out of time.
If you miss this three-year deadline, your ability to bring a claim for damages will be significantly restricted.
It is therefore important to seek legal advice well before the expiry of the three-year time limit in order to ensure that your claim is progressing appropriately and to assist you in filing court proceedings.
If you are not satisfied with the offers put forward by the insurer, you have the option of issuing Court proceedings. To do this, you need to either file a Statement of Claim in the District Court or a Form 2 Claim in the Magistrates Court.
Issuing proceedings in Court does not necessarily mean your claim will proceed through to Trial. There will be many opportunities prior to any Trial date where you will have the opportunity to try and resolve your matter with the insurer.
Furthermore, depending on which jurisdiction you file in, you have the opportunity to hold off on serving notice of the court action to the other side. You have six months in the District Court to serve the other driver or 12 months in the Magistrates Court. This gives you more time to collect any evidence you need and where appropriate, even enter into settlement negotiations with the insurer.
If you are unable to resolve your matter with the insurer within this time frame, you should arrange service of the Court documents on the insured driver by way of a process server within the applicable time limit. It is also important to obtain legal advice at this point to ensure you understand the potential cost implications, the Court process and engage representation, if appropriate.
This article was written by Senior Associate, Natasha Budimski.
Practice Area: Road Accident & Other Injury Claims