Persons injured in motor vehicle accidents as a result of the following circumstances may claim damages for personal injuries from the third party insurer of the vehicle/s at fault:
- The driving of a motor vehicle
- Action taken to avoid a collision
- A vehicle running out of control
- A defect in a vehicle causing loss of control of the vehicle while it is being driven.
Third party insurance is insurance covering personal injury and all registered vehicles in Queensland must have this insurance cover. In all other States and Territories in Australia, registered vehicles are covered by compulsory third party (CTP) insurance and if an accident occurs in another State or Territory, then the laws and procedures of that State or Territory will apply.
Of course accidents may occur involving vehicles not covered by CTP insurance unless the accident occurs on a road.
In Queensland, such vehicles may include tractors bulldozers, backhoes, front end-loaders, cranes, forklifts, agricultural implements, amphibious vehicles and vehicles adapted to run on rail or tram tracks.
There are special provisions in the legislation for injuries caused by trailers.
In certain cases where an injury has occurred and the vehicle which was involved in causing the accident can not be identified, the Nominal Defendant (ND) is taken to be the insurer.
When personal injury is sustained in a motor vehicle accident, then the accident must be reported to the police and the claim cannot be commenced until such notification is given.
Contributory negligence may be attributed to a person injured in the accident where the person injured has been to some degree at fault.
Time Frames for Notices
It is important to ensure that time frames within the legislation are met. The initial time frames which are to be met are as follows:
Notice of accident – A notice of accident claim (NOAC) must be sent to the insurer of the party at fault, within one month of the date of first consultation with your lawyer. In this regard your first telephone discussion with your lawyers may constitute first consultation.
Where an unidentified vehicle is at fault then the NOAC must be given to the Nominal Defendant within 3 months of the date of the accident. Where in other cases where vehicles can be identified then the NOAC must be given within 9 months of the date of the accident. There is provision for limited extension of the abovementioned time frames but in the case of notification to the Nominal Defendant, no extension will be granted beyond 9 months from the date of the accident. For vehicles which are identified, the 9 months time frame may be extended to no later then 3 years provided there is a reasonable excuse for the delay in submitting the NOAC.
Different time limits apply for persons who are injured who are under the age of 18 years and persons under a legal incapacity.
Pre Court Procedures - Court proceedings can not be filed until all pre court procedures have been finalized.
In certain circumstances where the limitation period is due to expire, the legislation provides for court proceedings to be filed but then stayed until all pre court procedures have been finalized.
If the claim cannot be settled and court action is necessary, then the court proceedings may take anywhere between 6 months and 2 years and sometimes even more then 2 years to conclude. Various factors may be involved in the delay which may occur relating to such proceedings including delays in obtaining medical reports.
Most claims are settled via the alternative dispute resolution (ADR) process, and the legislation provides for this process to be used either by consent of the parties or by order of the court.
The ADR process may involve a mediation where a mediator is appointed to facilitate resolution of the claim. Straight negotiation may also be used at a settlement conference where both parties and their lawyers attend and which may be in the absence of any mediator. Such settlement conference is also an ADR process.
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