ROAD ACCIDENTS

Driving a Vehicle on Our Roads

If you own (or partly own) a motor vehicle and intend to drive it on any Western Australian road, you must have the vehicle licensed. A Motor Vehicle means any vehicle propelled by gas, oil, electricity, or any other motive power, not being animal power required to be licensed and complying with the requirements necessary for licensing under the Road Traffic Act 1974 and includes a caravan, trailer, or semi trailer drawn or hauled by the motor vehicle

If you intend to drive another person’s vehicle on a road, you should first make sure the vehicle is licensed. You can make an easy on line enquiry here.  Failure to do so can have serious financial consequences if your negligence causes an injury to another person. You are also committing an offence.

You should also make very sure that if you don’t own the vehicle you intend to drive, you have the clear permission of the owner before you drive the vehicle because if you don’t, there could again, be serious financial consequences if you negligently cause an injury to another person. .

When the vehicle license is issued, you pay a fee to the Government, part of which is a premium for a policy of insurance which will cover you (and any person driving the vehicle with or without your permission) against any liability in respect of death of or bodily injury to any person directly caused by or by the driving of, the motor vehicle. The protection will only apply when the vehicle is being driven or is running out of control. The cover does not extend to property damage.

A copy of a standard policy of insurance is at  A copy is also printed on the reverse of your motor vehicle licence.

The insurer is called the INSURANCE COMMISSION OF WESTERN AUSTRALIA. To contact the Commission go here.

The insurance covers you whilst you are driving the vehicle anywhere in the Commonwealth of Australia.

However, you and any driver will only be covered, subject to the terms of the policy. Importantly, the drivers protection could be at risk if, when the accident happened,

  • the vehicle was in an unsafe or damaged condition eg it had bald tyres, faulty brakes, or defective lights;
  • the driver did not have a current driver’s license;
  • the driver was under the influence of intoxicating liquor;

 

Were you Negligent? What do You do?

Negligence simply means driving a vehicle in breach of the duty of care which you owe to other road users.

You are required by law to report an accident to the police if property has been damaged or anyone has been injured.

If you cause or contribute to the cause of an injury, including someone’s death, whilst driving a licensed vehicle on our roads, both you and the owner of the vehicle must FORTHWITH, give full details of the following matters to ICWA;

  • the time, place and circumstances of the accident;
  • the name of the person injured or deceased;
  • the contact details of any witnesses.

and generally, whatever information ICWA needs to investigate what happened and why.

ICWA has an on line crash 24 hour reporting facility here. Completing this form will also mean that you have complied with your legal obligation to report the accident to the Police.

If you receive court documents from the injured person, the documents should be immediately given to ICWA who will then act on your behalf in the management of the claim if you are covered. Your insurance cover may be at risk if you make a payment to the injured person or agree a settlement figure or if you otherwise admit that the accident was your fault. You have an obligation to assist ICWA in the management of the claim by for example, making a more detailed statement or talking to ICWAs solicitors about the accident or even giving evidence at Court if the claim cannot be settled.

Injured by a Negligent Driver? What should You do?

If you have suffered an injury caused by a negligent driver on a road and you want to pursue a claim for compensation, the first step is to complete a statutory form AS SOON AS PRACTICABLE AFTER the accident. You can no longer complete the claim form on line. You must now contact the Commission on 92643333 and ask for a Notice of Intention to Make Claim Form and a Medical Authority. Some care needs to be taken when completing the forms.

Usually, nothing more is required until ICWA contacts you. Sometimes there is a delay whilst the accident is investigated or any police prosecution is completed. ICWA will advise you whether or not the negligence of the responsible driver is admitted. ICWA may arrange for you to be medically reviewed. You cannot refuse to attend the review unless you have a reasonable excuse. The penalty for failing to attend a review is that you may not be able to commence or continue your claim.

In most cases where the driver’s negligence is admitted, you will be encouraged by ICWA to have your injuries properly treated. You will be given a claim or reference number which should be given to the person(s) who is treating your injuries so that person can direct any invoice to ICWA for payment.

Fatality

If a close relative is fatally injured by a person driving a registered vehicle, you may be able to make a claim for compensation if you have suffered a financial loss as a result of the person death. For more information go here.  

When you don’t know the Registration Number of the Vehicle or the name of the Negligent Driver

Not knowing the registration number of the vehicle involved in your accident will not prevent you from claiming damages. This situation might occur if the vehicle does not stop after the accident or you are given misleading information by the person who caused your injuries.

For similar reasons, you may not know the name of the driver.

As soon as practicable after the accident you must make all possible enquiries to properly identify the vehicle and/or the driver but if you are unsuccessful, you must explain the circumstances to ICWA.

Time Limits

There is a three year limitation period in Western Australia.

This means that if you have not settled you claim within that period, you must commence court proceedings before the three year period expired. The three years will usually commence from the date of the accident.

What will ICWA do After I Make a Claim

ICWA will investigate your accident and advise you whether or not your claim has been accepted. You should continue your medical treatment regardless of whether the claim has been accepted. It is important that you obtain medical advice as soon as possible after the accident so that there is a record of your symptoms and you receive proper care.

You will be given a claim number by ICWA. The claim number should be given to your doctor, specialist and anyone else who is treating you.

In many cases, there is a delay of some weeks before ICWA contacts you. ICWA needs some time to investigate the accident and take statements. Sometimes, no decisions are made until the Police complete and investigation of your accident.

ICWA may accept your claim or reject it or offer to accept part of your claim because the accident might be partly your fault. If you dispute ICWA’S decision then you need to consult a lawyer.

What Damages will I be Entitled To

Following your accident, you will receive medical treatment and hopefully make a full recovery or at least recover to the point where your treating doctor says that you have stabilized ie your condition is unlikely to get worse and further improvement in the foreseeable future is unlikely.

At that point, ICWA may offer you a lump sum is settlement of your claim.

For general background information on the categories of compensation/damages applying to personal injury claims go here.

If you are injured in a motor vehicle accident, special rules apply to the assessment of your claim. The process can be hard to follow.

In some cases there is a limit to the amount of compensation you are entitled to and if you are partly to blame for the accident, your damages may be further reduced.

Firstly, you may be entitled to compensation for “non-pecuniary loss”, commonly called general damages. This means compensation for;

  • pain and suffering
  • loss of the enjoyment and amenities of life
  • bodily or mental harm and
  • curtailment of expectation of life

To be entitled to general damages the amount you are entitled to, must be in excess of a certain threshold. This is a statutory threshold is currently, $21,000 (2017/2018). The threshold applies in the same way as an insurance excess which you sometimes pay when making a claim under other insurance policies. The “excess” gradually reduces for the more serious injuries and does not apply to assessments over a certain amount, currently, $84,460 (2017/2018). The amount of the threshold is adjusted annually. The statutory formula is a little complicated but basically, there are four rules which apply after the Judge has assessed the persons general damages for pain and suffering;

  • where damages are assessed at below $21,000 no damages are payable;
  • where damages are assessed at between $21,000 and $62,500, the threshold $21,000 is deducted from the amount assessed by the Court to determine the amount payable;
  • where damages are assessed at between $62,500 and $83,500, a threshold amount continues to be deducted but the amount tappers to zero as the assessed damages approached $83,500;
  • where damages are assessed at an amount above $83,500, there is no deduction and damages are payable in the full amount.

If your claim for general damages is determined to be more than the threshold, the amount you receive is determined by comparing your injuries to the worst possible category of injuries which means, catastrophic spinal or brain injuries. A doctor or specialist may determine that your injuries are a certain percentage of the worst case or the percentage can be a matter for agreement between you and ICWA. The amount of compensation for a worst case scenario, is currently $412,000 and again, that amount is adjusted annually.

The current table of assessments is here.

There are other special rules applying to injuries suffered in motor vehicle accident.

Your injuries may prevent you from carrying out tasks around the home. Members of your family for example, may provide these and other services to you which they would not usually provide including nursing care, driving you to medical appointments etc. The value of these “gratuitous services” can form part of your claim but again there is a threshold. The value of these claims must exceed the threshold which currently is $6,500 (2017/18).

Finally, you may have suffered loss of income as a result of your injuries. You might be unable to return to your pre accident occupation or you might be unable to work full time. Such loss (called past and future economic loss or loss of earning capacity) can be included in your claim but there is a cap on the amount of weekly income you can claim both for the past as well as the future. The cap currently is calculated by reference to the average weekly earnings of a full time adult in Western Australia ($1,714 as at May 2017) based on figures published by the Australian Bureau of Statistics.

Income above an amount that is three times that average cannot be claimed.