When are you entitled to motor accident compensation

If you are injured as a result of a motor accident caused wholly or partly by another driver, you may be entitled to compensation.

The Motor Accident Insurance Act 1994 (Qld) establishes a compulsory third party (CTP) insurance scheme which covers liability for personal injuries arising out of certain motor accidents to compensate injured parties who were not at fault or only partly to blame for their injuries.

When we refer to a motor accident most of us think about collisions involving two or more motor vehicles. However, there are a range of other incidents that may lead to injury, entitling an innocent person to claim compensation.

This article explains how CTP insurance works and the types of accidents for which compensation may be payable to those injured due to the negligence of others.

The attribution of liability for a motor vehicle accident can be complex and technical and strict time limits apply for claiming compensation. If you or somebody you know has been injured in a motor accident it is important to obtain prompt legal advice.

What is CTP insurance?

CTP insurance is mandatory for all registered motor vehicles used or intended to be used on a public road. An owner cannot register a motor vehicle without first obtaining CTP insurance, which covers the owner for legal liability for the injury or death of a person arising from the negligent use of the vehicle.

Essentially, CTP insurance applies to the relevant motor vehicle so that any act that causes injury through its negligent use (whether by the registered owner or other person with control of the vehicle) is covered.

Legal liability is placed on the registered owner and / or driver (who is indemnified through insurance) even in situations where the owner is not the ‘real’ wrongdoer. In practice, this ensures that an innocent person injured within the scope of the Act may be compensated no matter what the circumstances – for example, where injuries are sustained by a person during a collision with a stolen vehicle being negligently driven by a thief.

What is a ‘motor accident’?

The CTP scheme is fault-based, which means that compensation is not payable unless an injured road user can show that the injury was due (or partly due) to the negligence of another person.

The Act has broad application in terms of the circumstances that may lead to a compensable injury. Section 5 states that the Act applies to ‘personal injury caused by, through or in connection with a motor vehicle if…the injury –

is a result of:

• the driving of the motor vehicle; or
• a collision, or action taken to avoid a collision, with the motor vehicle; or
• the motor vehicle running out of control; or
• a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
• is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.’

This means that a collision between two vehicles need not have occurred. Injuries sustained by a person taking evasive action due to the negligence of somebody else, or in circumstances involving an out of control or defective motor vehicle, may entitle that person to compensation.

Effectively, a claim may be made by:

• a driver of a motor vehicle (whether or not the driver is the owner);
• a passenger (whether or not an injured passenger is related to an at-fault driver);
• motor cyclists and pillion passengers;
• cyclists, pedestrians and other road users.

A motor accident claim may also be made by persons witnessing an accident, family members who observe injuries or death, and dependants of injured persons.

For example, in Caffrey v AAI Limited [2019] QSC 7, a senior constable who sustained psychiatric injuries after responding to and witnessing the aftermath of an accident was awarded damages by the Court.

The plaintiff provided first aid and comfort to the driver of a motor vehicle moments before he died from catastrophic injuries after colliding with a tree. The constable also comforted and assisted the deceased’s parents who subsequently arrived at the scene.

The matter proceeded to court after failing to settle in accordance with the provisions of the Act. However, in its deliberations, the Court acknowledged that the circumstances gave the plaintiff a ‘prima facie entitlement to recourse under the statutory scheme’ having met the criteria in s 5(1)(a) and (b) of the Act.

What is a motor vehicle?

A ‘motor vehicle’ is a ‘mechanically propelled vehicle’ and a vehicle for which registration is required and includes a trailer.

Unless the motor vehicle accident from which the injury arises occurs on a road, it does not include a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery, an agricultural machine, a motor vehicle adapted to run on rail or tram tracks or an amphibious vehicle.

Uninsured or unidentified motor vehicles

A person may sustain injury on a road or in a public place due to the negligence of a driver in circumstances where the driver and / or motor vehicle is unidentified (as in the case of a ‘hit and run’ accident), or where the motor vehicle is uninsured. In these circumstances a claim may be made on the ‘nominal defendant’.

The nominal defendant is a body established under the Act and funded through registration contributions. An injured person relying on making a claim against the nominal defendant must make proper searches and enquiries to establish that the vehicle / driver could not be identified.

The National Injury Insurance Scheme

The National Injury Insurance Scheme Queensland (NIISQ) introduced in 2016 provides necessary and reasonable care and support to people who have sustained catastrophic injuries in a motor vehicle accident, irrespective of fault. The NIIS no-fault scheme has specific eligibility requirements.

Conclusion

A person may be entitled to compensation for injuries sustained through various incidents involving a motor vehicle. Time limits apply for claiming compensation and sometimes liability for an accident is unclear, so it is important to seek professional assistance to clarify your legal position and entitlement to compensation.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.