WA: Should I accept a settlement offer for my motor vehicle claim?

Should I accept an offer of settlement for my motor vehicle claim in Western Australia? TGB partner Tim White explains your options

If you’ve been injured in a motor vehicle accident in Western Australia and have made a claim, the temptation to accept the first offer of compensation can be huge – but don’t act so fast.

Before you accept an offer you need to know how your claim was assessed. Settling on compensation for injuries sustained in a car accident is a complex process. Further as compensation is only payable once for a claim it is important you seek advice to determine if what is being offered is fair and reasonable.

When an offer is made, if it is made as a lump sum figure, it is important you know what is being paid for seven different aspects of compensation.  You are entitled to a breakdown from the insurer of what is being paid for each of the relevant aspects.  It is usually not advisable to accept an offer that is simply a single lump-sum figure, without any details of how that figure has been determined.

Injuries arising from motor accidents in Western Australia  are covered by the Motor Vehicle (Third Party Insurance ) Act 1943.

This legislation sets out the principles that are used to determine what compensation is payable if you have been injured in a car accident. To even make a claim it must be initially determined that the accident is a result of negligent driving by another individual. The accident must have been, in the main, the fault of another driver.

What factors are taken into account when calculating compensation?

Compensation is determined by a number of very clear principles that are set out, in part, in the Act.  The courts also play a role interpreting and applying the relevant compensation law that applies to the person’s claim. The main aspects considered when determining compensation are:

Pain and suffering

The more severe the injury or injuries are that a person has suffered the higher the amount of compensation  payable for pain and suffering.  This amount of compensation is determined by comparing your injuries with those of the most severe injuries possible . That is, your circumstances are compared with a worst-case scenario.  The maximum amount payable under the scale currently is $406,000. The minimum amount payable is $20,500. Your entitlement depends on where your injuries fall on this scale, which involves some skilled legal assessment, including obtaining relevant information from treating doctors and other health professionals.

Past loss of income

If you have not been able to work as a result of your injuries you are entitled to lost income compensation.  On some occasions the time you have lost from work is obvious and clearly related to your injuries. It is important to have that time off work supported by medical certificates or medical reports.  It could also be that you have not been able to start a new job or be promoted to a higher-paying role, as a consequence of your injuries and that has resulted in a loss of income.   Again, if that can be established  and supported by medical evidence you are entitled to claim for the loss of income. You are also entitled to be compensated for lost superannuation.

Future loss of earning capacity

This is often difficult to assess.  It involves looking at what income you are likely now not to earn in the future , as a consequence of your injuries.  This involves some complex considerations, particularly for young  people or those that have a limited pre-accident work history.  What you are compensated for is your loss of earning capacity.  That is, because of your injury or injuries you are now limited in the type of work that you can do in the future or the hours of work that you can undertake in the future and that gives rise to a loss of income.  If that loss of income is going to continue for many years to come, or for many decades , it can give rise to a considerable amount of compensation being payable.  It is important to get very detailed information in relation to this area of claim, including comprehensive medical evidence.

You are also entitled to claim for loss of superannuation on the future loss of income.

Future medical expenses

It is important to include in your compensation claim, an allowance for future medical costs that you are now going to have to incur as a result of your injuries.  The future medical costs could include things such as surgery, physiotherapy, chiropractic treatment, consultations with your GP or specialist and medication.  Again if your need for medical treatment is likely to be long term this could give rise to a considerable claim for future medical expenses.

Past Voluntary services

This is a slightly difficult aspect of the claim to describe, but, in short, if you have serious injuries and due to your injuries you are limited now with doing work around the home, and as a consequence of that a family member now has to perform additional domestic work for you, there is a potential claim for that help that your family member has given since the accident.  This involves obtaining detailed information from you about the type of help you have needed around the home by a family member, over what period of time that help has occurred, and how many hours per week or per day that amount of help has been provided .  It is then a matter of calculating an hourly rate for the help that has been provided and multiplying that by how many hours of help have been needed.  Again, if you have serious injuries this area of compensation can be quite considerable.

Future voluntary services or future paid care

This is similar to what is set out immediately above, but  instead looks at the help around the home you are likely to need in the future as a consequence of your injuries.  It is considering things like help with cleaning the house, maintaining the garden,  grocery shopping, and numerous other types of manual work around the home .  If, as a consequence of your injuries, you are now going to need a family member to help with these numerous domestic tasks in the future or get paid help, again it is important to quantify the amount that that help is going to cost into the long-term.  If that help is going to be needed over many years or decades it can amount to a considerable figure.

Interest

You can claim interest on some areas of compensation where no money is paid until your claim is finalised. Sometimes that interest amount can be considerable, particularly if the claim takes a long time to finalise or the compensation that is payable is large .

This is certainly not an exhaustive list of all the factors considered for compensation, but it gives you an indication of the sort of things that can be looked at when determining what compensation is payable to you. It takes time to gather the relevant information dealing with all of these different aspects, and it is important that the information that is obtained is relevant and recent, when it comes to finalising your claim.

Conclusion

If you have had an offer of compensation it is important to seek advice about whether or not it is a fair and reasonable offer.  It is also important to seek advice about how that lump sum amount has been calculated.  Once you have settled your claim or signed settlement documents it is too late to obtain legal advice. It is vital that advice is obtained before you sign any settlement documentation.

If you have been injured in a motor accident in Western Australia, made a claim, and would like to organise a free initial interview, register your details or call our Perth office on (08) 9211 5800.

If you have not made a claim, disregard this publication.

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