What separates your potential post-accident entitlement from what’s in your hands at the end of the day is typically just knowing how the claims game is played before you get too involved in it.
Two Separate Claims, Two Separate Systems
Most people assume there is one claim resulting from a car accident. But, in fact, there are two very separate processes, and mixing them up is one of the biggest errors injured drivers make. The first is your property damage claim, which relates to your vehicle repair and is done through private insurers, either yours, the other driver’s, or both, depending on fault and what insurance each party has taken out. The second is a personal injury claim and it’s way more complicated.
Injuries compensation from a road crash in Western Australia is exclusively covered by the Compulsory Third Party (CTP) insurance scheme, which, in turn, is underwritten by one player, not a multitude of private insurers, and that’s the Insurance Commission of Western Australia (ICWA). The ICWA pays and manages all the CTP claims in the state, and if you are seeking compensation for any physical or psychological injury you will be their customer. This makes a difference because the rules, timeframes, and processes for each claim are very, very different. A private insurer paying your vehicle repair account has different regulations to abide by compared to requesting the ICWA to stump up long-term compensation for your personal injuries.
The ICWA Claims Process, Step by Step
Once you have sought medical attention and notified the ICWA of the accident, the claims process can be officially kicked off by lodging a Notice of Intention to Claim Form (Form 1). Do not hold off on this step, you should do it as soon as you are able, even if all of your injuries are not yet fully diagnosed at that time.
The Form 1 is sent to the ICWA to let them know that you intend to lodge a claim for compensation. Once received by the insurer, they are then given 21 days to respond to you. During this period, the insurer will make some basic investigations into your claim, and will likely contact you to discuss whether they believe you have grounds for a claim or not.
Before the ICWA will accept or deny your claim, they will want to gather more information. The ICWA will usually request access to your medical records, your employment history, and records of prior injuries. They may also want to interview witnesses, and to that end, they will commission a report from the Western Australia Police to help them identify and locate witnesses. Finally, the ICWA may also instruct several medical experts to examine you in order to provide their opinions on the nature and extent of your injuries. These experts are known as Independent Medical Examiners, or IMEs, as they are supposed to be independent of the ICWA (even though they are paid by them).
This is the stage where the complexity of calculating long-term economic loss and proving fault makes independent legal guidance valuable. A car accidents lawyer perth experienced in WA’s CTP framework can negotiate directly with the ICWA, challenge unfavorable IME findings, and make sure that every head of damage is properly quantified before any settlement is discussed.
What to do Immediately After a Collision
The first 24 hours after an accident will impact your claim later. These are the non-negotiable actions to take.
Exchange your name, address, and vehicle registration information with each other driver. If there’s a witness, and they should witness, obtain their information as well, a statement from an unbiased source can be vital if liability is disputed at a later time.
Take pictures of the scene. Capture the positions of the vehicles before they’re moved, any and all vehicle damage, skid marks, road signs, and conditions, and any visible injuries. The more pictures the better. Timestamps on photos can help establish the order of events.
Complete an Online Crash Report via the Crash Report Portal, which is overseen by both the WA Police Force and the ICWA. This must be completed within 24 hours if the crash resulted in injury or damages above the threshold. You can’t assume the other driver has done it. You must do it yourself.
Get medical care that same day, no exceptions. Some injuries, whiplash, soft tissue injuries, for example, don’t manifest with the presence of full pain immediately. If there’s a gap between the accident and your first medical visit, insurers will try to argue that your injuries were sustained later and not in the accident.
The Fault Requirement in WA’s CTP System
Western Australia follows a fault-based CTP system. It means that in order to obtain personal injury compensation, you have to prove that another driver was somehow responsible for the crash.
This isn’t the case everywhere. In some places, there are “no-fault” schemes where you get compensation if you’re injured, no matter who caused the accident. Western Australia is not one of those places. If you can’t prove that someone was negligent, which means they didn’t take reasonable care on the road, your personal injury claim isn’t going to go anywhere.
The ICWA does a liability assessment once they receive your claim. They’ll look at police reports, the Crash Report, witness statements, medical records and any photos or surveillance information. From that, they determine who was at fault.
This is where a lot of claims fall over. Insurers don’t necessarily admit liability straight away, and liability disputes can see claims drag on for months before you see a payout. If the onus of liability isn’t clear-cut, for example in cases of multi-vehicle crashes, clashing witness reports, or the other driver being uninsured, the process is even more protracted.
What Compensation Covers
There are a number of different categories of loss in a personal injury claim under the CTP scheme. It is important to understand what they are, because each category requires different evidence and documentation.
First, there are ‘special damages’. These are the measurable, out-of-pocket expenses: ambulance, hospital, surgery, physio, rehab, drugs, and the expenses of traveling to treatment. You need to keep all receipts and keep notes of every treatment.
Then there are ‘general damages’. These are the non-financial losses, pain and suffering, loss of enjoyment of life, and loss of amenity. While general damages are automatically part of a settlement if your claim is accepted, they are capped. Not every injury meets the minimum level of severity to trigger entitlement to general damages under the law of WA. Any injury not meeting the threshold relating to general damages will receive medical expenses but no further compensation.
Finally, there is ‘economic loss’. This is typically the biggest component of any significant settlement. It includes income lost because of the accident, the loss of future income or opportunities, and, in some cases, the loss of superannuation contributions over a working life. If your injuries are permanent, or you receive self-employment or other non-salary income, the calculations become more complex.
For a serious personal injury, the Commission will manage the claim for over six years on average, and the final cost to the insurer will exceed $100,000 (Insurance Commission of Western Australia). The figure is illustrative of why relatively modest cases with small-to-medium losses can still be aggressively contested.
Contributory Negligence and How it Affects Your Payout
When you are the one who has been harmed in an accident, your behavior during the event may be such that you receive less money. In a legal sense, this contributory negligence indicates that your behavior either caused the accident or worsened your injuries more than they should have.
Obvious instances of contributory negligence are not wearing a seatbelt, driving above the speed limit, drunk driving, use of a cellphone while driving, or not exercising adequate care as a pedestrian or cyclist. If the ICWA decides you were 20% contributory negligent, then the award is reduced by 20%.
Insurers dig deep to find instances of contributory negligence as it eases their financial burden. Assets like your driving record, the police report, your blood alcohol levels, or camera footage can all be used against you in this regard.
The Limitation Period
You must start your personal injury case in court within three years from the date of the crash, with very few exceptions.
The court can extend this time limit in some cases. For example, if your injury wasn’t discoverable within three years or you had other compelling reasons for not suing in time.
But these extensions are hard to get and aren’t guaranteed. Assume the three-year deadline applies to you and act quickly. If you’re not sure, talk to a lawyer right away. The three years could be up even if you’re still getting treatment, still negotiating with the ICWA, or still waiting to see if your injury will stabilize.
Dispute Resolution and Settlement
Most cases are finalized before they make it to the District Court. This is because the WA system makes both parties participate in an informal settlement conference before a trial is held. This pre-trial stage is mandatory.
It’s a positive if your case is settled here. It’s a bad thing if the amount you settle for is less than the total value of your claim.
The mistake many injured plaintiffs make is accepting ICWA’s first offer before your injury has stabilized. Roughly 18-24 months post-injury your doctor can state your final medical status and give an opinion on ongoing, permanent impairment.
If you settle while your injury is still acute the initial settlement figure will probably seem fair. Half a year later when you are still going to physio, cannot work, and have now been diagnosed with secondary psychological issues that initial offer will look absurdly low.
Once you settle, your case closes.
The Gap Between Entitlement and Outcome
Knowing how to lodge your claim is one thing. But when the insurer receives it, they won’t leap from their chair and say, “Oh! We must compensate this person to the full extent of all their physical, psychological and financial losses.” That’s not how insurance companies handle CTP claims, regardless of the limits of their indemnity obligation, or how nice the claims officer seems.
Adequately lodged or not, they won’t automatically grant you access to the full limits of their potential compensation even if they confirm their policyholder’s liability. You have to prove it. And if you present haphazardly or not at all, then no question, you’re not compensated. They can’t give you adequate compensation if their evidence shows you weren’t injured or inconvenienced at all by their insured’s negligence. If you provide insufficient proof, or not all of your heads of damage are detailed and ascertained, you’re giving the insurer every reason to lowball you.
