Accident negligence solicitors rely on the the law of negligence which has a long history going back almost a thousand years however modern concepts relating to personal injury compensation and the right to claim against a third party on a basis other than contract is a relatively modern concept originating in the 20th century whereby it became possible for anyone injured in an accident to claim against a third party as opposed to just those who had a contractual relationship with that third party. Since the original ground breaking case, the law currently applied by accident negligence solicitors has been substantially reformed and parts of it now rely on statute however the basic principles still apply to all accident compensation claims involving negligence by a third party.
There are many definitions of this concept used by accident negligence solicitors and the law has never been formally reduced to statutory definitions. Such definitions as there are have usually been stated by judges in the course of high profile personal injury cases usually in a court of appeal. The proposition in regards to accident compensation claims may best be defined as 'failing to do what a reasonable person would do or doing what a reasonable person would not do'. The most important part of any definition of this concept always revolves around the word 'reasonable'.
The law applied by accident negligence solicitors in personal injury compensation claims relies on three basic propositions. In order to succeed in personal injury cases claimants must show the following elements :-
Duty of Care
This means that the victim must be owed a duty of care by the third party. Again this is a difficult concept however it is best explained by example :-
Breach of the duty of care
Means that the third party has failed to take reasonable care to avoid acts or omissions that will cause harm to the victim.
Causation
It is necessary to prove that the act or omission by the third party actually caused the harm complained of by the victim.
Damage
Proof is needed that the victim has actually suffered harm by way of loss, damage or injury as a result of the behaviour of the third party.
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable by an accident negligence solicitor in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility of the damage.
As an example of the doctrine of contributory negligence if there is a failure to wear a seatbelt when travelling in a motor vehicle that is involved in a collision then it could lead to an assessment by a judge that there is contributory negligence on the part of the claimant with regards any injury sustained in the accident. If however failure to wear a seat belt did not worsen the injuries that would have happened in any event even if the claimant had worn a seat belt then damages will still be awarded in full with no percentage reduction. The claimants failure must have materially contributed to the injuries in order to attract a reduction in the damages award based on the doctrine of contributory negligence.
Once the law of negligence has been used to establish liability in a car accident compensation claim most personal injury cases move on to an assessment of the award of damages. For the sake of convenience accident negligence solicitors divide compensation that may be payable to the victim into several classes :-
General Damages
Represents compensation for the value of items that are difficult to calculate on a strict mathematical basis and require a degree of assessment.
Special Damages
Represents compensation for items that can be calculated with a reasonable degree of mathematical certainty and do not require assessment.
Future Losses
This item is often not included in either of the two previous categories as it often has characteristics of both.
Interest
Is awarded on all categories of compensation but at different rates and for different periods dependent on the specific item.
Most motor accident compensation schemes in Australia are based on a fault system, and generally cover accidents involving cars, trucks, motorcycles, taxis, trains, trams and buses. Injured passengers, drivers and pedestrians are able to lodge a claim for compensation.
Compensation for personal injury is generally paid for by the Compulsory Third Party insurer. In cases involving serious injuries, a common law action for damages may be possible.
Depending on which State the accident occurred, the injured party (claimant) may be entitled to compensation for:
To succeed in a car accident compensation claim and to ensure a maximum damages all relevant evidence should be preserved. There are a number of matters that should be attended to without delay :-
Our Australian accident negligence solicitors provide legal advice at no cost and no win no fee representation in relation to injuries caused by accidents. If you have been injured in an accident you may be entitled to claim compensation. It is important that you seek legal advice from an accident negligence solicitor who specialises in personal injury law. There are time limits and thresholds which apply to car accident claims, and our team of lawyers can advise you on these matters. Speak with a car accident solicitor today to find out how we can help you obtain the injury compensation that you deserve. Our lawyers offer the no win no fee scheme and will give free advice without any further obligation. If you would like to speak to a qualified solicitor just use the helpline or email our lawyers offices.
Our personal injury solicitors specialise in handling motor accident compensation claims in the following States and Territories:
In Victoria, motor accident compensation claims are generally referred to as "TAC claims". The Transport Accident Commission (TAC) is the Victorian government authority which pays benefits for people injured in motor vehicle accidents. Compensation under the TAC scheme will be paid to an injured person regardless of fault. Common law compensation is available if negligence is proven and if a person has suffered a "serious injury".
In South Australia, Allianz is currently the sole insurance company acting on behalf of the Motor Accident Commission for all motor accident claims. This scheme is a fault-based system which means that the injured person must prove that their injuries were caused by somebody else's negligence, in order to be able to claim compensation. In South Australia, motor accident claims are generally referred to as "Motor Accident Commission Claims".
All personal injury claims resulting from motor vehicle accidents that involve a Western Australian registered vehicle are managed by the Insurance Commission of Western Australia (ICWA). The relevant legislation is the Motor Vehicle (Third Party Insurance) Act 1943. To make a claim, you must be able to establish that the driver or owner of a motor vehicle (other than you) was at fault, whether completely or in part.
Motor vehicle accidents that involve an ACT registered vehicle are handled by a third party insurer, the NRMA. Any claim brought against a driver of an ACT registered vehicle is a claim brought against the NRMA. The Australian Capital Territory operates on a fault based scheme.
Road accidents can involve minor accidents, such as fender benders. They can also be as severe as head-on collisions with two cars or a car and a truck. The injuries vary in significance but they all follow the basic principles. Most injuries from car accidents result in deceleration injuries - the sudden stoppage of a vehicle that was once in motion. Other injuries happen from contact with glass or from contact with parts of the car crushed by another vehicle.
Glass-related injuries can be mild or severe. Because glass in vehicles is specially-treated, only small pieces of glass come from the wind screen and side windows. Even so, they can fly about the interior of the car causing lacerations of the face and other body areas.
If an occupant in a motor vehicle collision is not seat-belted, there is a high risk of ejection from the vehicle. The most common injury in such cases is a head injury. Head injuries can be simple concussions to fractures of the skull and internal bleeding.
A simple concussion can happen whether or not the individual is ejected from the motor vehicle. In a concussion, there is usually a traumatic brain injury that temporarily disrupts brain function. The individual often remains conscious but suffers from concentration problems, headaches and difficulty with balance, coordination and memory. A period of unconsciousness means the concussion is worse.
One doesn't need a blunt trauma to the head; violent shaking of the head can result in a concussion. While concussions do result in brain injury, most individuals recover completely over the course of days to weeks. Some are left with things like a chronic headache.
The other types of brain injury include a haematoma on the brain and a contusion to the brain. When a haematoma occurs on the brain, there is blood usually derived from bleeding of the blood vessels on the surface of the brain. The blood builds up and increases the pressure inside the brain. Unless the haematoma is drained, the pressure can cause herniation of the brain through the opening at the base of the skull. This usually results in death.
A contusion of the brain involves having enough force on the brain to bruise it. It can cause swelling of the brain enough to cause fatal herniation. If the bruising doesn’t cause herniation, the individual will have permanent brain damage to varying degrees. In some cases, the person can resolve their symptoms of brain damage but most patients will have some residual brain dysfunction.
Cervical spine injuries are also common in road accidents. The occupant does not have to be ejected in order to suffer a cervical spine injury. It usually results from hyperflexion or hyperextension with fracture of the parts of the vertebral column or dislocation of the spine. The end result is a severed or crushed spinal cord.
When the spinal cord is severed or crushed in the cervical area, there can be lack of ability to breathe on one’s own along with quadriplegia and loss of bowel and bladder function. Quadriplegia means that you have a loss of ability to feel or move the arms, trunk, and legs. This is almost always a permanent dysfunction.
There can be injury or death from airbags, especially if the individual is too close to the airbag when it deploys or if the victim is a child. There can be facial contusions or chest contusions. There can also be rib fractures and cervical spine injury. In general, airbags are much safer than not having an airbag but no airbag system is perfect.
Chest wall injuries are common because the ribs have very little strength and fracture easily. Rib fractures are often multiple and can result in lacerations to the lungs. This causes one or both lungs to collapse. The end result is a pneumothorax (collapsed lung) that can be life threatening if both lungs are affected or if the air cannot escape through the lungs and every inhalation causes air to push against the opposite lung, effectively shrinking its capacity. This is called a tension pneumothorax.
Abdominal trauma is another common type of injury in motor vehicle accidents. Blunt trauma can injure vital organs, such as the liver, spleen or kidneys. There can be heavy internal bleeding necessitating emergency surgery to repair the liver or kidneys. Because it isn’t necessary for survival, the fractured spleen is often removed. In the end, there will be normal functioning of the liver and usually acceptable functioning of the kidneys unless both are severely injured.
There can be disruption of the bowel in cases of blunt trauma to the abdomen. This causes bacteria to flood the abdominal cavity, resulting in an infection called peritonitis. Peritonitis can spread to the blood and the resultant sepsis can be life-threatening.
Multiple fractures are possible in car accidents. There can be wrist, forearm, or humerus fractures from gripping the steering wheel at the time of impact or from blunt trauma to the upper extremity. There can also be rib fractures from the air bag or from blunt trauma to the chest. Pelvic fractures can come from blunt trauma to the pelvic bones.
Fractures to the lower extremity can happen to the driver who is in the act of braking. The forces go upward to cause hip fractures or femur fractures. Other forces can take place, causing tibia and/or fibula fractures. Lower extremity fractures often require surgical intervention and can cause permanent difficulty in walking or running.
LAWYER HELPLINE: ☎ 1800 339 958The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here