Case Studies: Motor Accident Compensation in SA

TGB’s Tim White analyses real motor accident compensation claims, and shows how significantly entitlements have changed under the new scheme which started on 1 July 2013.

New motor accident insurance laws (CTP) started on 1 July, 2013, in South Australia, significantly reducing entitlements for motorists, cyclists and pedestrians injured on our roads.

To show the significance of the law changes, below are some case study examples of compensation a person received under the pre-1 July 2013 system compared with what we estimate they would receive if the accident was after 1 July.

Case Study 1

Trudy was employed fulltime in a management position. She sustained a severe neck injury as a consequence of the negligence of another driver.  She suffered various injuries but the dominant problem was a C5/6 disc prolapse. Fusion surgery of her cervical spine had been discussed by her treating neurosurgeon. There was no claim for past loss of income (there was no substantial time lost from work due to the accident).  Total compensation payable was about $150,000.  Of that, future loss of income equated to $80,000, and pain and suffering was assessed at 13 points, equating to $21,180.

Under the new scheme to be entitled to payment for pain and suffering you must have a dominant injury assessed at more than 10 points.  For a neck injury this requires as a minimum the following:

1.    A herniated disc, for which there is radiological evidence (i.e. an MRI scan or CT scan), neurological impairment, plus

2.    Pain and suffering and objective signs of sensory loss, loss of muscle strength, loss of reflexes, plus

3.    The impairment has not improved after non-operative treatment.

Trudy would not have met the above criteria and therefore would not be assessed with exceeding 11 points or more on the scale.  Accordingly she would have no entitlement to a payment for pain and suffering.

Further it is highly unlikely her neck injury would exceed seven points on the scale, which means no entitlement for the payment of future loss of income.

As there was no claim for past economic loss, her claim for compensation would have been for medical expenses only.

Case Study 2

Elisa worked as a machine operator in a factory environment. She sustained multiple injuries to her right ankle, neck, shoulders, middle back and lower back. There was considerable time loss from work, due to her injuries, following the accident.  The dominant and more significant  injury was to her right ankle, which was diagnosed as a displaced fracture of her talar joint.  She also went on to develop significant secondary psychological injury as a consequence of her physical injuries and the restrictions they imposed.  She underwent surgery on her right ankle. The claim settled for damages of about $420,000.  Of that for pain and suffering she was assessed at 16 points, $29,120, past loss of income $51,200 and future loss of income $255,000.

Under the new scale she would be unlikely to exceed 10 points.  For an ankle injury it requires ongoing problems, such as permanent significant ankle instability or severe limitations with walking.  On the basis of her being unlikely to exceed 10 points she would have no entitlement to payment of pain and suffering.  Further a claim for future economic loss is unlikely, as her ankle injury would not exceed seven points on the scale.  That requires effectively a fracture or ligament injury evidenced by radiological imaging and causing difficulties such as walking on uneven ground, awkwardness with stairs, irritation from metal plates and/or residual scarring.  In these circumstances Elisa’s damages would be limited to 80 percent of past loss of income, which would mean a payment in the order of $40,960, plus medical expenses incurred.

Case Study 3

Jenny was an experienced school teacher when she was hit by a motor vehicle while walking along a footpath. Following the accident she was admitted to hospital.  She lost a considerable period of time from work following the accident.  Her injuries were predominantly a fractured pelvis, fractured clavicle, scarring and soft tissue injuries to her back and neck.  Her claim settled for compensation of about $155,000.  The amount payable for pain and suffering was (17 points) $33,860, past loss of income $19,250 and future loss of income $55,500.

Under the current scale she would not have exceeded 10 points, and therefore received no payment for pain and suffering.  Her dominant injury was fractured pelvis.  To exceed 10 points with such an injury you now need:

1.    Hip fracture requiring a hip replacement;

2.    A fracture of the sacrum extending into the sacroiliac joint causing ongoing significant symptoms, with a Whole Person Impairment of at least 10%.

In terms of future loss of income she is also unlikely to have exceed the seven point threshold.  To exceed this threshold Jenny needed to have sustained undisplaced coccygeal fractures or undisplaced pubic rami fractures or a coccyx injury requiring surgery.

As a consequence at best she would have been entitled to claim for 80 percent of past lost income, totalling $15,400, plus medical expenses incurred.

Conclusion

As you can see from these case studies the compensation payable under the new scheme is considerably less. Each person’s circumstances differ, so to be certain of how these changes impact on your claim you should seek legal advice specific to your situation. This reduction in compensation primarily arises as a consequence of the injured person not meeting the relevant thresholds for pain and suffering (i.e. in excess of 10 points under ISV) and for future economic loss (i.e. in excessive seven points on the ISV).  Some of the other areas of compensation that do not have thresholds are claims for past and future medical expenses and past loss of income.  Given the complexities now involved seeking legal advice to determine what compensation you may be entitled to has become necessary and important.

**Names in the above case studies have been changed**

TGB is South Australia’s largest injury law firm. For a free initial interview about your motor accident compensation claim, contact Tim on (08) 8212 1077.

Click here for more information about motor accident compensation claims at TGB.