If you have been injured in a motor vehicle accident, you may be eligible to bring a claim for compensation under South Australia's Compulsory Third Party Scheme.
The method for calculating damages (ie compensation) is by no means straightforward and you should obtain legal advice early to ensure that you receive the compensation you are entitled to.
It is not uncommon for the CTP insurers to make offers of settlement to claimants whilst they are not represented by solicitors. Those offers are generally well below what the claimant may be entitled to and once a settlement has been accepted, you are unable to claim more compensation in the future, so it is important to ensure that the compensation you receive is adequate to cover your losses for the rest of your life.
Before accepting an offer from a CTP insurer to resolve your claim, you should obtain legal advice.
This article focuses on the heads of damage which form part of a compensation claim. The individual heads of damage collectively make up the total award of compensation an injured person receives.
The heads of damage in South Australia include:
- Pain and suffering
- Economic loss
- Care and assistance
- Loss of consortium
Whether or not you are entitled to receive compensation for each of the above heads of damage depends on what Injury Scale Value ("ISV") your injuries are assessed as having, once your injuries have stabilised.
Pain and suffering
This head of damage seeks to put a monetary value on the pain and suffering experienced as a result of your injuries. To be entitled to claim for pain and suffering, you must be assessed as having an ISV of 11 or more.
Damages for non-economic loss are generally quite modest.
Economic loss is broken into two parts - past and future economic loss.
A claim for past economic loss is simply a calculation of the lost income from the date of the injury to the date of the finalisation of the claim.
Whilst there is no ISV applicable to a claim for past economic loss, the first week away from work is not compensable.
A claim for future economic loss or loss of earning capacity is concerned with the period between the finalisation of the claim and usual retirement age. This is generally a complicated calculation and in some instances, requires the expertise of forensic accountants.
To be entitled to claim future economic loss or loss of earning capacity, you must be assessed as having an ISV of 8 or more.
Claims for economic loss (both past and future) must be reduced by 20% in accordance to the legislation.
Care and assistance
Claims for care and assistance are also broken into two parts - past care and assistance and future care and assistance.
This can include paid assistance as well as voluntary assistance provided by family members. Only care and assistance provided by a parent, spouse or child is compensable.
To be entitled to claim for past voluntary services, you must be assessed as having an ISV of 11 points and your parent, spouse or child must have provided those services for at least six hours per week for six consecutive months.
There is no ISV applicable to paid services, but they must be reasonably required as a result of your injuries.
Like the previous heads of damage, claims for treatment expenses are broken into claims for past and future.
The cost of treatment expenses are recoverable in full, provided they were reasonably required as a result of your injuries.
Generally, the CTP insurer will cover the cost of treatment in the period immediately following the accident.
The cost of future treatment is also compensable and covers the treatment that will be required following the finalization of your claim.
Claims for loss of consortium are intended to compensate for the impact on your relationship with your spouse.
To be entitled to claim for loss of consortium, you must be assessed as having an ISV of 11.
ISV Medical Assessments
Once your injuries have stabilised, you will be in a position to undergo an ISV Medical Assessment. Only accredited practitioners can perform an ISV Medical Assessment.
It is important to remember that the CTP insurers want to resolve your claim for as little as possible and as soon as possible. This is generally not in your best interests as offers of settlement are usually insufficient.
There are strict deadlines in place for making a CTP claim. All claims for compensation under the CTP system must either be finalised before the three year anniversary of the accident, or proceedings must be issued in court. There are different deadlines in relation to children.
It is therefore important to see a lawyer who specialises in personal injuries as soon as possible following the accident to ascertain whether you are eligible for a CTP claim.