PART 3. Motor Vehicle Accident Claims:
If you have been involved in a motor vehicle accident which was not your fault – you may be able to claim for the assistance you receive because of your injuries
Sometimes after a motor vehicle accident a family member or friend will provide assistance to an injured person who can no longer attend to various tasks due to the injuries suffered. This might include assistance such as cleaning, washing, gardening, shopping or transportation to doctors and physiotherapists etc. That is, this assistance is given because the injured person can no longer perform these tasks, due to the injuries sustained.
In law, this assistance is known as “voluntary services” and if certain criteria are met, damages (compensation) can be claimed up to the date of settlement. This is known as “past voluntary services” which is payable to the injured person.
Damages are not awarded unless the voluntary services are provided by a parent, spouse, domestic partner or child of the injured person. The amount that is payable cannot exceed the equivalent to four times State Average Weekly Earnings. However, a Court may make an award in excess of this sum, if the services are reasonably required by the injured person and, if not so provided, the injured person would have had to engage another person and pay for those services.
In my previous article, I referred to claims for pain and suffering and in particular the significant changes that were made to the law in 2013. In particular, I referred to the necessity of having to reach a threshold of Injury Scale Value of 11 or more before damages are payable by the insurer for pain and suffering.
That same legislation added further criteria for claims for past voluntary services.
An injured person will not be able to make a claim for past voluntary services unless:
- the Injury Scale Value is 11 or more; and
- the services are provided:
- for at least 6 hours per week; and
- for a period of at least 6 consecutive months.
This law also limited the hourly rate that can be used in calculating past services. The hourly rate must not exceed the rate prescribed by the Regulations. At the time that the law was enacted, the rate was $25.00 per hour.
If the injuries appear to be serious enough to require this assistance, we often recommend that a diary be kept to record the services provided, by whom and the time spent in relation to those services so that there is contemporaneous evidence that is required to make such a claim.
Future Domestic Assistance
In some cases, an injured person will be left with a permanent disability which may impact on various parts of their life including their ability to perform activities of daily living. This might include difficulties with cleaning, washing, gardening and maintenance tasks in and around the home. In some cases, an Activities of Daily Living assessment report can be obtained from an occupational therapist. This will identify the services that are likely to be needed in the future as well as equipment needed.
There is no threshold and the hourly rate for those services is not limited but instead is at normal commercial rates.
When considering making these claims, it is vital to gather supportive evidence as early as possible.
Accordingly, getting advice early is very important. If you have been injured in a motor vehicle accident, it is important you seek prompt advice so that proper steps can be taken to gather the required evidence. At Scammell & Co, we have extensive experience in making these claims on behalf of our clients.
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