Your legal rights after a motor vehicle accident.

Tan and Tan have for many years represented clients involved in accident matters. We have represented clients in the criminal courts as a result of the client being prosecuted for traffic offences. We have also represented clients in personal injury claims.

The saddest cases are where young drivers or passengers are injured as a result of some silly mistake. Mistakes that could affect a young live forever. We once acted for a 17 year old foreign student who became a tetraplegic after a very serious accident. The case was settled out of court and our client received well over $1.5 million dollars. However no amount of money could compensate him for the inability to walk again.  With that in mind, here are some matters to be aware of after an accident.

This information is important if you were the driver of a motor vehicle and the collision caused injury to any one or damage to property.

If you have been involved in a traffic accident, you should seek legal advice as soon as possible.

WHAT IS YOUR RESPONSIBILITY AS A DRIVER

You are under a duty to stop immediately if you are the driver of a vehicle involved in an accident and anyone is injured; or property is damaged.

("Property" includes your own and other motor vehicles, houses, fences, gardens, personal belongings etc.)

You must give your name and address to anyone who has been injured or whose property has been damaged.

WHAT TO DO AT THE SCENE OF THE COLLISION

If possible take the following steps:

• Note the names, addresses and insurance details of any other drivers involved in the collision;

• Note  the details of the other vehicle involved;

• Note the names and addresses of any witnesses at the scene;

• Draw a sketch of the scene and note the street names and suburb;

• Do not under any circumstance admit that the accident was your fault.

REPORTING THE ACCIDENT TO THE POLICE

If the police do not attend at the scene of the accident the driver MUST report the accident to the nearest Police Station immediately if anyone was injured  or the estimated value of damage to property was $1000 or more.

When police officers attend the scene of an accident or when you report the accident to a Police Station you should provide:

Your name, address and drivers licence details; and

The name and address of the owner of the vehicle.

If your vehicle is involved in an accident (whether or not you were the driver) you must give to the Police Officer any information you may have which may help to identify the driver.

IMPORTANT NOTE:

You DO NOT have to supply any other information, make a statement, fill in any forms or provide a sketch plan of the scene if you do not wish to.

Your legal duty is to report the accident. You are not under any obligation to provide any information regarding how the accident happened.

The mistake made by many drivers is in providing full details to the police about how badly or wrongly they had been driving their car. You are only giving the police information to prosecute you with.

IN THE EVENT THAT  YOU RECEIVE A SUMMONS

You may receive a summons from:

1. The Police alleging that you have broken the traffic laws OR

2. a summons or a writ claiming the cost of repairs from the owner of the other vehicle.

If you receive a summons you should obtain legal advice immediately.

REPAIRS  TO YOUR VEHICLE

The cost of repairs to your vehicle may either be claimed from the owner of the other vehicle, claimed on your insurance policy or paid for out of your pocket.

Claim against the other party:

If you believe that the accident was caused by the driver  of the other vehicle you should obtain at least 2 written quotes for the cost of repairs and send them to the other party or to their insurance company with a letter requesting that the cost of the repairs be paid for.

If this request is refused you may have to sue the other driver. You should obtain legal advice before you do so.

Claim against your Insurance Company:

You should inform your Insurance Company about the accident as soon as possible. Whether you will be able to make a claim will depend on the type of  insurance policy you have.

Payment from your own pocket:

If you accept that the accident was your fault and your vehicle is not insured you will have to pay for the repairs yourself. The other driver may also claim against you for the cost of repairs to his/her vehicle.  You should consult a lawyer before considering making a payment. The law takes into consideration contributory negligence. That means the other driver may partly be in the wrong. Therefore you may not have to pay the full cost of the damage.

WHAT TO DO IF YOU ARE INJURED

If you have been injured as a pedestrian, passenger or the driver of a vehicle you may claim  compensation for your injuries from the Insurance Commission of Western Australia (ICWA).

You should give the ICWA notice of your claim as soon as practicable after the accident. You do this by completing the ICWA claim form. If you see a solicitor, they will inform the ICWA for you and provide ICWA with all necessary information in your favour.  ICWA will then investigate the accident and statements will be taken from drivers and witnesses.

WHAT CAN I CLAIM?

The money paid to a person who has been injured or has suffered loss is called DAMAGES.

There are two categories of damages:

Special damages, which includes items such as loss of wages, medical and surgical fees, hospital fees and various out of pocket expenses. It may also include loss arising from damage to clothing or other property.

General damages, which is monetary compensation for such things as pain, suffering, loss of earning capacity and loss of enjoyment of life generally.

Very often a loss of earning claim can be very substantial. For eg. You may be a  30 year old gardener earning $500 per week and you receive injuries that prevent you from working as a gardener. If you subsequently work as a shop assistant earning a reduced income of say $300.00 per week. Your potential loss of income is $200.00 per week until retirement age.  The court may compensate you your total loss of income after taking into consideration matters like the early payment of your damages claim and the value of such funds being given to you immediately.

WHAT MUST I PROVE?

Not everyone who is injured in an accident is entitled to damages. The right to damages depends upon some other person being at fault in either causing or contributing to the accident.

All the circumstances of the accident will be looked at to decide whether a driver was at fault.

An accident may have been caused by some fault on the part of the person who was injured as well as  the driver. In that case the responsibility for the accident will be divided between them.

The amount of damages will be reduced in this case.

In most cases, a passenger is usually faultless as far as negligence is concerned and they can make a claim for damages. However, if you are a passenger in a car driven by a drunk and you are aware the driver was drunk, the court may refuse a claim as they may consider that you accepted the risk of sitting as a passenger in a car driven by a drunk.

You should always obtain legal advice about your claim for damages.

Tan and Tan will be pleased to advise you if you have an accident claim. We have a policy of giving a free first consultation to discuss your rights if you have been involved in an accident. So if you have a query, call us or email us.

To cut a long story short

Insurance companies work on the basis that most victims do not know their legal rights and therefore fail to make any claims for compensation after an injury.

For those who are astute enough to make a claim, the insurance companies will try and pay as little as possible to finalise the claim.

I once acted in an accident matter where the client had moderate injuries but there was also a   moderate loss of income claim.

When my client first wrote to the insurers, they offered her $500 to settle the claim. When we started acting for the client, the insurers offered to settle the claim for $3,000.00.

By the time a summons was issued against the insurers, the offer jumped to $30,000.00.

When the matter went to a pre trial conference, the matter was finally settled out of court for $90,000.00. The client would have obtained much more if the matter went to trial, but the client was happy to take the $90,000.00 as it was far higher than any amount she thought she was entitled to claim.

Moral of the story: Know your legal rights.

ON THE LIGHT SIDE...

Money is No Object

A doctor tells a rich old man that he’s going to die if he doesn’t get a new heart soon. The old man tells the doctor to search the world for the best heart available, money is no object. A few days later the doctor calls the old man and says he has found three hearts but they are all expensive. The old man reminds the doctor that he is filthy rich and implores him to tell him about the donors they came from.

‘Well, the first one belonged to 22 year old marathon runner, never smoked, ate only the most healthy foods, was in peak condition when he was hit by a bus. No damage to the heart, of course. But it costs $100,000!’

The old man waving off the last part about the cost asks the doctor to tell him about the second donor. ‘This one belonged to a 16 year old long- distance swimmer, high school kid. Lean and mean. Drowned when he hit his head on the side of the pool. That heart’ll set you back $150,000!’

‘Okay,’ said the old man, ‘what about the third heart?’ ‘Well this one belonged to a 58 year-old man, smoked three packs of cigarettes a day, weighed over 300 pounds, never exercised, drank like a fish... this heart is going for $500,000!!!’ ‘Five-hundred grand?!?!’, the old man exclaimed, ‘why so expensive?’ ‘Well’, said the doctor, ‘this heart belonged to a lawyer... so it was never used!’