Your entitlement to claim for assistance as a result of injuries sustained in a motor vehicle accident explained
PART 3. Motor Vehicle Accident Claims:
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.
Click here for further information about our Motor Vehicle Accident claim services.
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*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Your entitlement to claim for economic loss as a result of a motor vehicle accident explained
PART 2. Motor Vehicle Accident Claims:
If you have been involved in a motor vehicle accident which was not your fault, you may be able to make a claim for economic loss.
Under certain circumstances, economic loss can be claimed for the injuries sustained in a motor vehicle accident. The loss is claimed for both the past and into the future. That is, a loss of income which can include a loss of chance of income.
A loss of income into the future after settlement can also be factored into your claim, as well as a loss of chance of future income.
Past Economic Loss
In my previous article, I referred to claims for pain and suffering and in particular to 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.
There is no such threshold that needs to be achieved when claiming past economic loss.
Normally, a loss is claimable, as long as there is medical evidence to substantiate the loss that has been caused by the injuries sustained in the collision. Reporting the matter to doctors and obtaining correctly filled out medical certificates are crucial in making such a claim.
Unfortunately, after the loss is calculated, the 2013 law allows the insurer to reduce that amount by 20%. This 20% reduction occurs after the application of any discount and after any reduction for contributory negligence. It is, in effect, a 20% reduction from any actual loss that has been calculated.
A claim can also be made for interest in relation to the past economic loss, as well as a claim for a loss of past superannuation entitlements.
Future Economic Loss
An injured person may not be able to return to the work they were capable of performing prior to the injury. Alternatively, an injured person may return to that work but not be able to work to the same level as before, thereby reducing their future earning capacity and possibly also suffering a loss of chance of employment. In addition, with those injuries, an injured person’s presentation to future employers may be adversely affected with the medical history placing them at a disadvantage in the labour market.
Medical evidence is normally used to support those claims.
The new law (2013) introduces a threshold to make such a claim. An injured person must have a threshold number of 8 or greater in order to be entitled to an award of damages for future economic loss or an impairment of future earning capacity.
The legislation also requires that when one considers the potential for this loss, it also must be proven that there is a greater than 20% chance that the potential will eventuate.
As is the case with past economic loss, the legislation allows the insurer to reduce any such payment by 20%. Again, this is after application of any discount and after any reduction for contributory negligence.
A claim for loss of future superannuation entitlements can also be made.
When considering making these claims, it is vital to gather supportive evidence at an early stage which may include medical certificates, tax documentation, payslips, employment details and history.
Accordingly, getting advice early on this topic is crucial. If you have sustained injuries in a motor vehicle accident, it is important you seek prompt legal advice so that proper steps can be taken to gather the evidence. At Scammell & Co, we have extensive experience in making these claims on behalf of our clients.
Click here for further information about our motor vehicle injury claim service.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Your entitlement to claim for pain and suffering as a result of a motor vehicle accident explained
PART 1. 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 pain and suffering
A claim for pain and suffering (non-economic loss) for the past and future can be made but only if certain criteria in the relevant legislation have been satisfied. The award for this pain and suffering is called “damages”.
Damages may only be awarded for non-economic loss if:
- the injured person’s ability to lead a normal life has been significantly impaired by the injury for a period of at least 7 days; or
- medical expenses of at least the prescribed minimum has been reasonably incurred in connection with the injury.
In addition to this, significant changes were made to the law for injuries suffered in a motor vehicle accident post 1 July 2013. These changes have made it much more difficult for an injured person to claim damages – even if the accident was not their fault.
Significant changes brought about to the Civil Liability Act, 1936 and the Civil Liability Regulations, 2013 has resulted in denying many claims or substantially reducing the amount of damages payable by the insurer to the injured person.
For motor vehicle accidents occurring post 1 July 2013, an injured person is assigned a numerical value (an Injury Scale Value) on a scale running from 0 to 100 for the non‑economic loss suffered. An injured person may only be awarded damages for pain and suffering if the Injury Scale Value that applies exceeds 10. That is, if an injured person is not assigned a ISV of 11 or more, then subject to the exceptions set out below, the injured person is not entitled to anything for pain and suffering.
There is an exception to this rule in that a Court may award pain and suffering if it is satisfied:
- that the consequences of the injury with respect to pain and suffering are exceptional when judged by comparison with other cases involving the same injury; and
- that the thresholds above would, in the circumstances of the particular case, be harsh and unjust.
Unfortunately, there have not been any decided cases on this topic and so it is not possible with any certainty to advise as to how the Court will interpret these exceptions to the rule.
Given these difficulties, it is extremely important to compile evidence at an early stage that might assist in reaching the required threshold. Getting advice early on this topic is crucial. If you have sustained injuries in a motor vehicle accident, it is important that you seek prompt legal advice so that proper steps can be taken to gather appropriate evidence. At Scammell & Co, we have significant experience in making these claims on behalf of our clients.
Click here for further information about our motor vehicle injury claim service.
Click here to read PART 2: You entitlement to claim for economic loss as a result of a motor vehicle accident.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.