Motor vehicle accidents are one of the most common events that lead members of the public to seek the services of a lawyer.
This article is written to give clients of Butcher Paull & Calder background information about how the law works; what lawyers will do for you; and what you need to do to assist your lawyer.
ABOUT OUR FIRM
Butcher Paull & Calder is a law firm consisting of two partners and a number of employed solicitors and paralegals.
We have developed a wide range of expertise, because legal problems often involve quite different area of law. With a number of lawyers offering various skills, we almost always have someone who can answer a particular question.
The firm is committed to keeping good lines of communication with our clients. We call this “the open line”. If you want to discuss a matter with a lawyer, by all means call. We won’t charge until the case is up and running.
A lawyer is a person who is trained to advise on legal problems. In Western Australia lawyers qualify as barristers and solicitors. The words “barrister” and “solicitor” describe two different types of lawyers.
A barrister is a lawyer who represents clients in Court. Solicitors take instructions from the general public and spend most of their time in an office advising clients and preparing cases.
Although all lawyers qualify as both barristers and solicitors, many specialize as one or the other.
At Butcher Paull & Calder we practice as both barristers and solicitors. In some cases, we brief independent barristers to conduct trials or provide advice: a little like your general practitioner sending you to see a specialist.
WHAT TO DO AFTER AN ACCIDENT
Here is a checklist of things to remember if involved in an accident. For those who have already had an accident, use it as a guide to retrace your steps to make sure everything has been done that should be done.
- Give assistance to any injured persons.
- Take the name, address and insurance details of the other driver
- Try to obtain the details of any witnesses.
- Make notes of any conversations you have with the other driver and witnesses, particularly if the other driver makes an admissions of guilt for the accident.
- Do not make any admissions of blame yourself because this could cause problems with your property damage insurer.
- Make a sketch of the accident scene and note nearby streets, lane markings and so on.
- Photograph the damage done to your vehicle.
- If your vehicle is insured, report the accident promptly to your insurer.
- Report the accident to the Police. This is compulsory if someone has been injured.
- If someone has been injured, report the accident to the Insurance Commission of Western Australia. This is the insurer that covers persons who have suffered physical injuries in motor vehicle accidents. If you have been injured, it is wise to see a lawyer.
WHAT TO DO BEFORE YOU SEE A LAWYER
When you are going to see a lawyer about an accident, bring all your information and papers with you.
It is impossible to say exactly what information is required because this varies form case to case, but usually we need:
- The time and date of an accident.
- Particulars of drivers and vehicles including names, addresses and registration numbers.
- Street names.
- Details of witnesses.
- Names and addresses of doctors that you have seen.
- Details of your injuries.
Some accidents are unusual and hard to explain in words. In those cases, it is a good idea to bring in a sketch or photographs, to show how the accident happened.
WHO IS TO BLAME FOR MY ACCIDENT?
Except in the case of worker’s compensation claims, compensation can only be recovered if an accident was entirely or partly caused by some other person’s negligence (fault). A typical example of negligence might be another driver hitting your car after going through a red light. The accident would likely be entirely the fault of the other driver.
In the case of a car accident, you will be entitled to receive compensation from the Insurance Commission of Western Australia. The Insurance Commission is an organization set up by an Act of Parliament.
In some circumstances, the fault for causing an accident might be shared. In that case, you can still recover compensation but your claim will be reduced by the extent the accident was your fault. For example, suppose you have an accident and are entitled to $10,000.00 compensation. If the accident was 50% your fault you would receive $5,000.00, or 50% of the total value of the claim.
Please don’t jump to your own conclusions about fault for an accident. Seek advice as soon as possible after any accident. If you leave it too long it will be much more difficult for a lawyer to investigate your claim and advise you.
WHAT DOES THE LAWYER DO?
After your initial instructions have been given, a number of steps need to be taken by the lawyer:
- All details of the accident will be immediately reported to the Insurance Commission.
- Where liability (fault) is in dispute, the lawyer will investigate the accident, obtain statements from witnesses, and gather photographs and diagrams of the scene of the accident.
- Medical reports will be obtained from the doctors you have seen.
- If there is any loss of earnings the lawyer will obtain these details.
- After your medical treatment is finalized or your condition is stabilized, the lawyer will attempt to negotiate a lump sum settlement with the Insurance Commission.
- The lawyer will make sure that he or she has all the evidence or material necessary to settle your case or take it to Court.
- The lawyer will negotiate with the Insurance Commission to settle your claim.
- Finally, the lawyer will advise you when to settle your case and when to take it to Court. If you elect to go to Court, the lawyer will prepare the case and represent you at the hearing.
While the above summary may give the impression that the lawyer does everything and the client nothing, it is important to note that your lawyer will need your co-operation and comment every step of the way in an effort to put the case together.
WHAT AM I REQUIRED TO DO?
There are no hard and fast rules but keep the following in mind:
Let us know form time to time what medical treatment you are receiving, particularly if you see a new doctor.
TIME OFF WORK
We need to know when you have taken time off work. If you take time off, make sure you obtain medical certificates stating that you are unfit to work. We occasionally have a problem with clients giving up work or taking time off without consulting a doctor. When this occurs, we may experience difficulty convincing the Insurance Commission that our client was indeed unfit to work. The Insurance Commission will be reluctant to accept your word about something. It requires proof.
RECEIPTS AND EXPENSES
Keep records of all your accident related expenses. The Insurance Commission will require these in order to pay you back. It is amazing how many people just throw out their receipts and bills. Using your own vehicle is also an expense, so record all trips that are accident related.
RECORD WHAT HAPPENS TO YOU
Keep a record of significant problems and events that happen as a result of our injuries. We find that most clients forget detail. If you don’t record information it may become lost or forgotten. Keep the record separate from any diary that you maintain. By doing that, your record will be for our eyes only and will not need to be produced in Court if your case goes that far.
KEEP A RECORD OF LOST PAY AND BENEFITS
This applies particularly if you run your own business. If you are an employee, make sure your employer has adequate records. Keep your tax returns, group certificates and tax assessment notices, as we usually need these. If you leave your job or place of study as a result of your injuries, make sure this is recorded and that you confirm everything with your doctor, employer or school.
WHAT AM I REQUIRED TO DO?
TELL US YOUR NEW ADDRESS
We do have the occasional problem of clients changing their address and not informing us. Please let us know when you move. It is best to do this in writing.
TELL US EVERYTHING RELEVANT ABOUT YOUR CLAIM
If you have a piece of information and don’t know if it is relevant, play safe and tell us anyway. We cannot represent you properly unless we know all the facts.
COMMUNICATE IMPORTANT INFORMATION
It is a good idea to write to us so we both have a permanent record of any important information. However, by all means telephone if you have a question or wish to tell your lawyer something.
Do not provide information or statements to insurance investigators without checking with us first.
CONTACTING THE OTHER PARTY OR INSURANCE COMMISSION
Please do not do this. It can be embarrassing and harm your case. Let us deal with the other party unless we tell you otherwise.
Bear in mind that claims now have to be either finalized or Court process issued within 3 years of the date of an accident.
WHAT IS MY CLAIM WORTH?
Assessing the value of a claim can only be done once a claim is ready for settlement and all necessary information is available to the lawyer. Very often, assessment of a claim is not an easy exercise and that is where the skill and experience of the lawyer becomes important. Set out below is a list of the main types of damages that can be claimed.
These include reasonable expenses such as travel, chemist and medical. “Reasonable” is a relative term and ideas about whether an expense is reasonable can vary. The Insurance Commission may refuse to pay for treatment that is thought to be unnecessary or excessive.
This type of damage includes pain, suffering, disability and inconvenience. In Western Australia, general damages are subject to some special rules, which are as follows:
- There is a maximum amount that can be claimed. This amount is indexed annually.
- A deductible applies which means that if general damages amount to less than the deductible, nothing at all is payable for that part of the claim.
- The deductible itself is reduced for higher value claims and ceases to apply when the claim reaches a certain value.
- As the deductible and the other amounts referred to above change every year please ask us about the relevant figures.
There is no legal calculator for working out general damages. The courts classify cases on a scale. For example, if your injuries are believed to be 50% of a worse case then you would be entitled to half the maximum divided by 2. That might sound scientific, but there really is no way of accurately calculating whether a particular person’s injuries are 50% or 60% of a worse case scenario. The assessment usually has to be based on an intelligent guess.
PAST LOSS OF EARNING CAPACITY
You are entitled to your lost earnings from the date of the accident to the date at which your loss is assessed. In many cases, this type of loss is simple to work out. However in some cases, the task can be complex – particularly for business proprietors, students, people temporarily out of the work force when the accident happened, and persons who have variable incomes.
FUTURE LOSS OF EARNING CAPACITY
Any event to take place in the future can be difficult to assess for obvious reasons. However, we assist clients with calculating the loss by gathering all the necessary information to prove that a loss may or will occur in the future. It is important to realize that any compensation you receive is for loss of your working capacity. Even if you have continued to work after an accident, there may be a compensable loss of capacity because your ability to carry out other work has been reduced.
Compensation can be recoverable for nursing and household services rendered to an injured person as a result of an accident. This applies even if the care was provided by a friend or relative for no charge.
However, a minimum entitlement must be established before the damages can be awarded.
Interest can be recovered on moneys paid out or lost following an accident.
FUTURE MEDICAL AND OTHER EXPENSES
In many cases, a claimant may have reached his or her maximum level of recovery but treatment and/or medication is still required. Compensation can be obtained to cover this loss. Often, the calculation of the loss is not straightforward but we will attempt to calculate the loss as accurately as possible.
PAST AND FUTURE LOSS OF SUPERANNUATION
This is recoverable in a similar way to past and future loss of earning capacity. If there has been a loss of earnings, there will very often be a loss of superannuation for an employed person.
In the case of severely injured persons, there will often be many other areas where damages can be recovered. Examples include the cost of special education, architectural changes to the claimant’s home, the cost of specialized appliances and fittings, and so on.
FATAL ACCIDENT CLAIMS
If a person is killed in a motor vehicle accident or later dies form injuries suffered in an accident, a claim for damages can be made by the deceased’s dependents.
For the dependents to maintain a claim, it is still necessary to prove that the accident was partly or wholly caused by the negligence of another driver.
The damages claimable in a fatal accident claim are calculated in a different way to an ordinary claim for damages. No compensation is awarded for pain, suffering or grief. The value of the claim is assessed by reference to the financial loss suffered by the dependants. However, it is not necessary to prove that the deceased was actually contributing to the support of a person at the time of death provided that there was a reasonable expectation that the dependant would have received some benefit from the deceased.
Claims have to be commenced within one three years from the date of death.
If it is the main breadwinner who has died, damages are calculated mainly by reference to his or her future earnings. If it is the homemaker who is killed, the computation of damages largely relates to the value of the services that have been lost as a result of the homemaker’s death.
CAN I ACT FOR MYSELF?
The short answer is “yes”. You can do without a lawyer for virtually any legal problem. But the real question is – should I?
Even with claims that are apparently small, the wisest course of action is to see a lawyer.
Most people who act for themselves don’t do a good job. No matter how clever they are, they rarely have any idea what their claim is worth, which doctors to see, or how to conduct their case. Unfortunately, we occasionally advise persons who have acted for themselves who have overlooked a limitation period or made some other mistake.
Persons who are injured in motor vehicle accidents are entitled to legal advice. The reasonable cost of that advice is payable by the Insurance Commission so there is no good reason for anyone to go it alone.
LIABILTY FOR ACCOUNTS
Contrary to public perception, the Insurance Commission is under no compulsion to pay medical accounts until a claim is finalised. It is therefore important for you to understand that medical bills are your legal responsibility.
Fortunately, for the most part, the Insurance Commission does pay medical bills as they arise.
We suggest that you send accounts to our office for forwarding to the Insurance Commission. That way we will always have a record of what accounts have been issued. When the claim is settled, we can make sure all the medical bills are paid.
If the Insurance Commission disputes liability (fault) for your claim it won’t pay for your medical accounts. If it has been agreed that you were partly to blame (let’s say 50% for example) the Insurance Commission will pay 50% of the accounts.
If you pay accounts yourself, obtain receipts as the Insurance Commission will not repay you unless you have proof.
During the course of your case, part of our job is to obtain reports from your doctors or chiropractor.
Doctors usually issue accounts for their reports. At times the charges for these reports can be significant. Sometimes the doctors will insist on pre-payment of their fee before releasing the report. We will ask the Insurance Commission to pay the report fees, or pay back the sum paid, but the Insurance Commission is under no compulsion to pay. As with treatment accounts, the Insurance Commission will often pay for medical report fees, but this in entirely at the Commission’s discretion.
It is possible to claim medical accounts from Medicare or private insurers (such as HBF) while a claim is in progress.
Before you do so, the Insurance Commission should first be asked whether it will pay. If you do make a claim on your health insurer, keep a record of what claims you make as the insurer will seek reimbursement when your claim is settled.
In respect to Medicare, the law is that the Insurance Commission, when paying out a claim, must send 10% of the claim to Medicare (the Health Insurance Commission) unless Medicare has already issued a certificate stating the exact amount owing to it. Medicare will then deduct any sum that it has expended for accident related items and send the balance of the 10% direct to you.
If for some reason Medicare happens to be owed more than the 10% it receives it will ask you to pay the balance
Medicare cannot itself distinguish between accident-related expenses and other expenses (for instance seeing your doctor about the flu). Therefore, it sends direct to you a list of all claims made since your accident. You must tick any items on the list related to your accident. When you receive a list from Medicare you must complete it and send it back promptly.
Injured persons, who lose their employment as a result of an accident, sometimes seek the services of the rehabilitation providers in order to regain employment skills.
The rehabilitation providers charge for their services so it is important that we know what charge is that before you settle your claim.
It is frequently the case that a claimant will receive social security benefits following an accident.
If that occurs, on finalization of your claim:
- you may have to refund part or all of the benefits which you received:
- depending on the amount recovered on your claim, you may be ineligible to receive benefits in the future for a certain period of time. This is more likely to be the case if your claim is a large one.
The Insurance Commission will notify Centrelink when your settlement takes place. Centrelink will then calculate what sum has to be repaid; or, if applicable, to what extent you will be prevented from obtaining benefits in the future.
If a sum has to be repaid to Centrelink, that sum will be automatically deducted form your settlement. However, you do have the right to appeal any assessment that is made by Centrelink.
It is important to keep all of this in mind. If you have received social security benefits, you cannot assume that the amount you settle your case for is the amount you will receive in hand.
Also, you cannot necessarily assume that on settlement of your claim, you will still be entitled to social security payments.
Occasionally a person involved in a motor vehicle accident is entitled to workers compensation.
Those covered by workers compensation are in a fortunate position because they have an immediate legal right to claim from their employer for loss of earnings and medical expenses. By contrast, a person making a claim against the Insurance Commission, who is not covered by workers compensation, is not in a position to insist on payment of lost earnings and medical expenses until the claim is settled.
It is not the case that those covered by workers compensation receive a double payment. If an employer pays weekly payments of compensation and medical expenses, they have the right to be reimbursed on settlement of the employee’s Insurance Commission claim.
Another important point to remember is that your workers compensation claim comes to an end when the Insurance Commission claim is finalized.
HOW ARE LEGAL COSTS WORKED OUT
At Butcher Paull & Calder, our lawyers record the time spent on a case (e.g. attendances, telephone calls, and letters) and then charge for that time. The hourly rate depends on the seniority of the lawyer.
Lawyers are not permitted to charge a client a percentage of the compensation recovered.
The amount charged by the lawyer always has to be reasonable. If a client believes that he or she has been unfairly charged, then the legal bill can be assessed by an independent umpire.
Lawyers’ costs are limited by a scale known as a Costs Determination so you cannot be charged more than allowed in that scale.
LEGAL COSTS WHERE THE CASE SETTLES OUT OF COURT
If a case settles out of Court, the Insurance Commission will offer an amount to pay for your legal fess and expenses. Like every other part of the claim this amount is negotiable. Often, the sum offered by the Commission is enough to cover our fees. If a large amount of work has been done on a particular case, or if we have briefed a barrister, the sum which the Commission offers may not fully cover costs. If there is a shortfall, it comes out of your compensation at the time of settlement, but if this is likely to happen we let you know before you settle.
LEGAL COSTS IF THE CASE PROCEEDS TO COURT
Provided that you settle or win your case, legal costs are payable by the Insurance Commission. In many cases the sum paid by the Commission will fully cover your legal costs, but not in every case. The larger and more complex the case, the less likely it is that you will recover 100% of you legal costs from the Insurance Commission.
COSTS OF THE INSURANCE COMMISSION
If a case proceeds to a Court hearing and the Insurance Commission is successful, a claimant could become liable to pay the Insurance Commission’s legal costs. The Commission is occasionally successful in two types of situation:
- Where a Court finds that the accident was not the fault of the other driver. In this case, a claimant would have to pay the Commission’s costs of the whole legal action.
- Where the Commission has made an offer during the course of legal proceedings; the offer has not been accepted; and the Court has awarded the claimant a sum no greater than the amount offered by the Commission. If this happens, the claimant would have to pay the Commission’s costs from the date of the offer.
Obviously, no one should go to Court without carefully considering the risks beforehand. Our job will be to advise you whether or not to take the risk.
WHEN DO I HAVE TO PAY THE LEGAL COSTS
At Butcher Paull & Calder legal costs are payable when the case is finalized. We will provide you with estimates of cost as the claim proceeds, so you will always know what legal costs you have to pay before you settle your case.
COMMONLY ASKED QUESTIONS
Is there a time limit to report an accident to the Insurance Commission?
No, but the law is that you must report your injuries as soon as practicable. However, if you do not comply with this requirement, your failure to do so can be excused if it was caused by mistake, inadvertence or other reasonable cause.
Is there a time limit for settling my claim?
Yes. If the claim is not settled earlier, legal proceedings must be commenced within 3 years of the date of the accident.
Does the accident have to be on a public road?
How long before my claim is settled?
Claims can only be properly settled once your condition has stabilized and the lawyer has all evidence to settle your claim. The time for this to occur varies from case to case. It can be a year or two before your claim is ready to finalise.
When should I seek medical treatment?
Firstly, you should seek treatment immediately after your accident. Secondly, you should see your doctors on a regular basis until the claim is ready to settle. Long gaps in treatment tend to make the Insurance Commission wonder whether your treatment is related to your accident.
What if it was a hit and run accident?
As long as the hit and run driver was at fault, you can still claim.
Can I still claim if the other driver was drunk or unlicensed?
GOING TO COURT
When your claim is ready for finalisation, we will attempt to negotiate settlement directly with the Insurance Commission. This is usually done by letter or by an informal meeting.
If we cannot reach agreement with the Insurance Commission, we will recommend that legal proceedings be issued, which means that we will start dealing with the Insurance Commission’s lawyers in Court.
If legal proceedings are commenced, it does not mean that your case will result in a trial (a full hearing). Of the cases that are commenced in Court, 95% settle by agreement.
Going to trial is a complex issue. At this stage you can be comforted by the fact that, statistically, it is most unlikely that your case will ever proceed to trial.
SOME FACTS ABOUT DEALING WITH BUTCHER PAULL & CALDER
LAWYERS CONDUCTING YOUR CLAIM
The lawyer that you initially consult is the person likely to take your case through to the finish. The lawyer will always be responsible to a partner in the firm.
BREIFING INDEPENDENT BARRISTERS
As noted elsewhere in this guide, we do at times brief independent barristers for a second opinion or to appear at trial. This will only be done with the client’s approval.
If you have any doubts or questions about how your case is being handled by one of our lawyers, you may contact our litigation partner, Robert Butcher, to discuss the matter, at no charge to you. As lawyers, we know that our clients often endure stress and doubts. We would prefer you to speak up rather than suffer in silence because most problems can be solved by communication.
COMMUNICATION DURING YOUR CASE
Butcher Paull & Calder has a policy of sending copies of all medical reports to the client and keeping the client informed of offers and significant developments.
GENERAL HANDLING OF YOUR MATTER
In the initial stages of your claim, our main job will be to collect information that we can use to settle your claim. Once all relevant information is collected, and the claim is ready to be settled, we will write to the Insurance Commission detailing the facts of your case and requesting an offer. We will be in contact with you throughout the negotiation phase of your claim because the client alone must authorize settlement.
COMMENCEMENT OF LEGAL PROCEEDINGS
If negotiations with the Insurance Commission fail, we may recommend that a client commence legal proceedings. No proceedings will be commenced without the client’s express authority.
CLOSURE OF YOUR FILE
When a case is finalised, we advise clients to collect any documents that are valuable or sensitive. We will store your file for seven years from the date of the file being closed. After that period of time, we may destroy the file.