Motor Vehicle Claims in Unusual Circumstances: Keeping up-to-date with The Law

Compensation Claims involving Motor Vehicle Accidents

Compensation claims involving motor vehicles and CTP insurers take many different forms and occur in a very wide range of circumstances.

Where there is an Accident Involving 2 Motor Vehicles

In the majority of accidents, there are two motor vehicles involved and one driver has driven in a manner that has caused the accident.

If you are the driver or occupant of the other vehicle and you suffer an injury then you are entitled to pursue a claim for compensation against the other driver (of the vehicle responsible for the accident) who is insured by that car’s CTP insurer.

If you are the passenger in the vehicle responsible for the accident and you suffer an injury then you too are able to pursue a claim for compensation against the driver of your car.

Where there is a Single Vehicle Accident

If you are a passenger in a single vehicle accident (there is no other motor vehicle involved), you are also entitled to pursue a claim against the driver of your vehicle in circumstances where you are injured. Once again, while your claim is in name against the driver, the driver is insured due to the compulsory third-party insurance attached to the vehicle.

Pedestrians and Cyclists

Other examples where you may have a claim include: If you are a pedestrian and are struck by a car or if you are riding a push bike and you are either struck by a car or are forced to take evasive action and this results in you suffering an injury. Once again, you are entitled to pursue a claim against the driver of the car.

Even in circumstances where you are unable to identify the vehicle that has caused you to suffer injuries you are still entitled to pursue a claim against the statutory body referred to as the nominal defendant.

Unusual Cases

In a recent unusual case, O’Shea Dyer Solicitors acted on behalf of a seriously injured person who was riding in the back of a ute on a beach. The driver of the ute was intoxicated at the time. The driver initially drove the ute slowly and sensibly along the beach while the man jumped in and out collecting firewood on the beach. After a period of time and without any warning (with our client in the back of the ute), the driver accelerated heavily down the beach. While driving at high speed, the driver hit a series of rocks on the beach resulting in our client falling from the tray of the ute and suffering a very serious injury, which almost resulted in our client losing their leg.

We pursued a claim against the driver and the relevant CTP insurer. The CTP insurer argued that our client, while seriously injured, was not entitled to any compensation on the basis that our client was, at the time, engaged in a dangerous recreational activity. Under the provisions of the Civil Liability Act 2003, had the CTP insurers lawyers been successful with their argument, our client would have failed with their claim.

Keeping up-to-date with the law is very important for clients. We became aware of a case involving similar laws in NSW. In this case, the injured person who had suffered serious spinal injuries had lost her claim both in the NSW Supreme Court and in the NSW Court of Appeal. That case was successfully appealed to the High Court of Australia. The decision of the High Court was handed down a matter of days before we were due to attend a Mediation Conference with our client and the lawyers acting on behalf of the defendant's CTP insurer.

As a result of that case and the successful appeal before the High Court of Australia, we were able to convince the lawyers acting for the CTP insurer that our client’s claim was not one that would fail, and as a result, we were able to mediate a successful outcome of the case.

Our client’s claim was discounted due to the fact that he had ridden in the rear tray of the ute in circumstances where he knew that the driver had been drinking. Fortunately, though, he was still able to pursue the claim and receive compensation for his serious injuries which will continue to affect him for the rest of his life.

Critical Issue

The important point here is if you are injured in circumstances involving a motor vehicle you should obtain urgent legal advice:

• Firstly, to determine whether or not you have reasonable prospects of pursuing a claim.
• If you do then you will need to engage solicitors to take immediate action to give notice of your claim to either the CTP insurer or the nominal defendant.
• There are strict time limits that apply so early legal advice should be obtained.