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Interstate claims

Feature Articles

Cite as: (2003) 77(10) LIJ, p.40

Each state has its own scheme for handling personal injury claims arising out of motor vehicle accidents. As a result, it’s not uncommon to be asked to give advice to a Victorian resident injured interstate.

By Don O'Halloran

The decision of John Pfeiffer Pty Ltd v Rogerson[1] has clarified the law for torts committed in Australia which have an interstate component. All questions of substance will be determined by the law governing the place of the commission of the tort. Questions of procedure will be governed by the forum.[2]

The decision in Pfeiffer brings to an end a long run of cases that dealt with this apparently difficult question. The High Court has simplified the question of which law will apply. While it is still possible to forum shop, a prospective plaintiff is now stuck with the law of the state where the accident occurred. The issue of which forum is appropriate is now more a matter of convenience for the plaintiff and witnesses rather than an issue of tactical advantage.

No longer can practitioners seek to maximise the interests of their clients by picking the jurisdiction with the most generous compensation scheme and/or the longest limitation period. It is now a matter that a practitioner must be aware of what constitutes the substantive law of the jurisdiction in which the accident took place. The substantive requirements of the jurisdiction vary from state to state. Non-compliance with those requirements may create an insurmountable hurdle for a prospective plaintiff.

It is not possible within the limited space available to provide a comprehensive summary of motor vehicle accident law for each state and territory. What follows is a brief statement of the major components. Practitioners should seek prompt clarification from a suitably qualified practitioner in the relevant state.

Victoria

Motor vehicle accidents that occur in Victoria are governed by the Transport Accident Act 1986 (Vic) (the Act). This Act provides for a no fault, third party compensation scheme that covers motor vehicle accidents in Victoria and, where the vehicle is registered in Victoria, accidents that occur interstate.[3] It is also worth noting that finalisation of an interstate damages claim brings to an end no fault entitlements under the Act.[4]

The no fault scheme provides for the payment of medical and related treatment expenses, loss of earnings and earning capacity benefits and lump sums for permanent impairment.

In order to take advantage of the scheme, a report of the accident must be made to the police. In addition, an injured person must lodge a claim with the Transport Accident Commission (TAC) within one year of the date of an accident or manifestation of injury. In certain circumstances this can be extended to three years.[5] There is no extension beyond three years.

A common law claim for damages is also available under the scheme but limited in its application by virtue of the Act.[6] In order to proceed with a common law claim it is necessary to demonstrate that the injured person has a whole person impairment of 30 per cent or greater or that they have suffered a serious injury. The limitation period for common law claims for transport accidents in Victoria is six years. This period can, in certain circumstances, be extended.

If the prospective plaintiff has not lodged a claim with the TAC within the time frame allowed, they will be prevented from obtaining an impairment assessment. They will, therefore, be prevented from proceeding with a common law claim.

New South Wales

Unlike its Victorian counterpart, there is limited provision for no fault benefits within the NSW scheme. This is a modified common law, fault-based scheme where some heads of damages are limited. Treatment expenses are payable where there has been early notification of injury and the claim has been accepted.

The governing legislation is the Motor Accidents Act 1988 (NSW), as amended by the Motor Accidents Compensation Act 1999 (NSW). The Motor Accidents Act contains a number of specific steps which must be undertaken before proceedings for the recovery of damages can be commenced.

Most notable is the requirement that the relevant compulsory insurer must be notified, in the prescribed form, within six months of the date of the accident. An extension of this time requirement is available but only where full and satisfactory explanation for the delay can be provided. In addition, the limitation period for the issue of common law proceedings is three years from the date of the accident. There is provision to make an application for an extension of that time period.[7]

For a potential plaintiff to recover damages for non-economic loss they must establish a greater than 10 per cent whole person impairment, using the fourth edition of the AMA guidelines. In making the assessment of whole person impairment it is not possible to combine physical and psychological impairment. There are caps and thresholds for both economic and non-economic damages.

Within the NSW scheme and unless a claim is settled or exempted, the Claims Assessment and Resolution Service deals with liability and compensation disputes.[8] Only relatively complex claims are likely to be exempted.

Queensland

Like its immediate southern sister, Queensland has a common law based system and in this case no provision for the payment of no fault benefits. What distinguishes the Queensland system is the regulation of the manner in which claims must be brought. The relevant legislation is the Motor Accident Insurance Act 1994 (Qld) as amended by the Civil Liability Act 2003 (Qld).

Potential plaintiffs must report the incident to the police and complete a notice of accident claim form. This form must be lodged with the compulsory third party insurer (or the nominal defendant in the case of an unidentified or unregistered vehicle). The form must be lodged within the sooner of:

(a) nine months from the date of the accident;

(b) the first appearance of symptoms; or

(c) one month of the date of the first consultation with a solicitor about making a claim. Any late notice must contain a “reasonable excuse” for the delay.

In the case of an unidentified vehicle the form must be provided to the nominal defendant within three months of the date of the accident. This time limit may be extended to nine months. However, after this time any claim is statute barred. Again, any late notice must contain a “reasonable excuse” for the delay.[9]

What follows is a detailed pre-issue process including compulsory conferences and mandatory final offers. Only after these steps have been completed can common law proceedings be issued.

The common law proceedings must be issued within 60 days of the compulsory conference, but there is provision for the extension of time in certain circumstances. The overall limitation period for common law claims is three years.

Australian Capital Territory

Like the state that surrounds it, injuries in motor vehicle accidents in the Australian Capital Territory are regulated by a common law fault-based scheme. The relevant legislation is the Road Transport Act 1999 (ACT) and the new Civil Law Wrongs Act (2002) ACT. There is a six-year limitation period for the issue of proceedings.

There is no scheme for the payment of no fault benefits.

Consultation between the sole third party insurer and practitioners has led to a set of guidelines that are to be followed in matters which are not litigated. This presumably applies generally to straightforward and relatively minor matters, although the guidelines are not limited to the relatively minor matters.

The guidelines have had the effect of containing the costs of the system. They make provision for early notification of claims by way of a notification form and there are obligations on both the insurer and plaintiffs to exchange details in a timely and efficient fashion. For matters that are to be issued and litigated there is a pre-issuing process but a hearing follows quickly once the pre-issue process has been completed.[10]

There are no caps or thresholds on damages although for injuries after 1 January 2003, costs are limited for smaller claims. It sounds like heaven for plaintiff’s practitioners but there is talk of further changes.

Western Australia

There is a six-year limitation period for common law claims arising from motor vehicle accidents in Western Australia. However, notification of a claim must be lodged with the relevant compulsory third party insurer within one year of the accident. That one-year timeframe can be extended with a satisfactory explanation.

The relevant legislation in Western Australia is the Motor Vehicle (Third Party Insurance) Act 1943 (WA) as amended by the Motor Vehicle (Third Party Insurance) Act Amendment Act 1994 (WA).

There are no thresholds or caps on economic loss claims, but again, change may be in the air. There is both a sliding threshold and a cap on general damage claims.

There is no scheme for the payment of no fault benefits.

Tasmania

Like it’s immediate northern cousin, Tasmania does have a scheme for the provision of no fault benefits in motor vehicle accident cases. The no fault benefits include payment of medical and related treatment expenses together with loss of earnings for a limited period. There is no provision for a no fault lump sum in the case of injuries. There is a lump sum payable in the case of death. The relevant legislation is the Motor Accidents (Liabilities and Compensation) Act 1973.

There is no timeframe for the lodgment of a no fault claim and a no fault claim is not a prerequisite to making a common law claim. However, if a common law claim is to be made against an unidentified vehicle then notice must be provided within three months of the accident. This can be extended with leave.

The limitation period on common law claims is three years with the possibility of this being extended for a further three years with leave.

There are no threshold or caps on common law claims but like most other states, change is in the air. Damages are assessed by reference to similar examples of injury. The level of damages has been described as less than generous. The maximum award of general damages made in the state was $175,000 and this was for a severely brain damaged infant. There is no allowance for interest or Griffiths v Kerkemeyer[11] damages.

South Australia

No fault benefits are not available under the South Australian scheme. The scheme is regulated by the provisions of the Wrongs Act 1936 (SA).

There is a three-year limitation period with the right to seek an extension of this period in certain prescribed circumstances.

At least 90 days before the issue of proceedings a plaintiff must submit a formulated claim. The formulated claim must include the amount the plaintiff is prepared to accept in resolution of the claim. It is an extremely sophisticated pre-trial process.

There are thresholds placed on the claiming of both economic and non-economic loss and non-economic loss is calculated as a portion of the worst case. There is also a cap on both economic and non-economic loss.

Northern Territory

If you are not a local up north then you are treated differently. A local is someone who has been a resident of the Northern Territory for more than three months or who has a contract for employment in the Northern Territory.

If you are a local then on the one hand you have no common law rights but on the other you have access to a no fault scheme.

That no fault scheme provides for the payment of medical and related treatment expenses, loss of earnings and a lump sum for permanent impairment. The claim must be lodged as soon as practicable but in any event within six months of the date of the accident. This can be extended to three years at the discretion of the Board of the Territory Insurance Office but there is an absolute cut-off at three years.

The relevant legislation is the Motor Accidents (Compensation) Act 1979 (NT).

The Board has the power to deem someone a resident for the purposes of the Act. Where the person is not so deemed the injured person must lodge their notice of intention to claim, in the prescribed form, within three months of the date of accident. This period can be extended if adequate reasoning is demonstrated.

The limitation period for common law claims is three years with a right to seek an extension of this period. There are no thresholds on a common law claim but there are caps.


DON O’HALLORAN is a partner at Maurice Blackburn Cashman. He is accredited LIV specialist in personal injury law and is a member of the LIV Personal Injury Law Accreditation Committee. He practises exclusively in the area of motor vehicle accident claims.


[1] (2000) 203 CLR 503; (2000) 172 ALR 625.

[2] Mullins, G, “Choice of law in intranational torts – moving the goalposts”, Plaintiff, June 2001 at 6.

[3] Transport Accident Act 1986 (Vic), s35.

[4] Note 3 above, s42(2).

[5] Note 3 above, s68.

[6] Note 3 above, s93.

[7] Motor Accidents Act 1988 (NSW), s52.

[8] Goudkamp, T et al, “Motor vehicle accidents, trends and developments driving the law”, Plaintiff, June 2001 at 25.

[9] Brown, I, note 8 above, at 28.

[10] Worthy P, note 8 above, at 22.

[11] (1977) 139 CLR 161.

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