Motor vehicle accident compensation claims in Queensland

Fault based system

In Queensland, to be eligible for compensation, it is necessary to show that the motor vehicle accident was somebody else’s fault – at least in part. In other words, you have to prove the at-fault driver’s negligence. You can then make a claim against their compulsory third party (CTP) insurer.

Damages

If you suffered injury in a motor vehicle accident, you can receive a lump sum damages amount at the end of the claim process. The damages amount is made up of several different components (also known as heads of damage). The main heads of damage are as follows:

• Pain and suffering (general damages): this is an amount of money which you receive with respect to the pain and suffering that you have experienced as a result of your injuries. It also takes into account the effect on and changes to your quality of life. The general damages amount is determined by reference to the Civil Liability Regulation 2025. 
• Past economic loss: you receive compensation with respect for any income loss which you incur between the date of accident and when your claim is settled. This is calculated by reference to a range of factors, including your previous earnings, employment contract, what you could reasonably have expected to earn had the incident not occurred, and so on. 
• Loss of future earning capacity: this is an amount which you receive with respect to any earnings loss which you may incur all the way through to your intended retirement age. Often this is the largest component of the compensation claim. There are a range of situations in which an injured person can qualify for this payment. For example, due to your injuries you may not be able to return to work at all. Alternatively, you can return to work, but the range of occupations which you can work in is reduced because you can no longer work in heavy physical work. As a further alternative, you may be able to return to work but only on a part-time basis. It may be that your productivity has been affected. The assessment of lost future earning capacity is a complex process which takes into account your individual circumstances and we often obtain expert reports from medical specialists, occupational therapists and forensic accountants to be able to accurately calculate your loss.
• Loss of superannuation contributions: on top of compensation for past economic loss and loss of earning capacity, you also receive an amount to cover lost superannuation contributions. At present, this is 12% on top of your income loss. 
• Medical treatment and medications: as part of the claim process, we estimate the cost of your ongoing medical treatment needs, including GP consultations, specialist consultations, surgeries, various allied health professional costs (such as physiotherapy) as well as your medication requirements, and include these costs in the overall settlement. 
• Personal and domestic assistance: if you require assistance by family members or friends with personal care or domestic tasks (such as cleaning your house, looking after your yard, etc.) you are entitled to receive the value of these services – even if family members and friends help you free of charge. This can add up to a significant amount and therefore it is very important to preserve evidence to substantiate this aspect of the claim. We advise you during the claim process what is the best way to preserve the relevant evidence. 

Catastrophic injuries

Upfront payment of reasonable treatment expenses

In most claims, the CTP insurer must pay the cost of your medical treatment even before your claim settles. In fact, the insurer should start paying for these expenses soon after you lodge your CTP claim. 

The CTP insurer’s obligation to pay for these expenses upfront is legislated in section 51 of the Motor Accident Insurance Act 1994. 

The type of expenses which the CTP insurer should cover upfront include specialist consultations, physiotherapy and other similar allied health expenses (such as hand therapy) but also more significant expenses such as surgeries. The District Court of Queensland recently affirmed the CTP insurer’s obligation to pay for these expenses in its decision of Simmons v QBE Insurance. 

If the CTP insurer pays upfront for medical expenses, then these amounts can be taken into account when your matter is settled.

What happens to my wages while I can’t work after a motor vehicle accident?

After a motor vehicle accident, if you can’t return to work for a period, in some cases it is possible to continue to receive your weekly wages. This commonly occurs if the accident happened while you were on your way to work or on your way home from work. This situation is called a journey claim. 

In this situation, in addition to making a CTP claim, you can also make a parallel worker’s compensation claim. As a consequence, even while your CTP claim is ongoing, WorkCover Queensland will pay your wages until you are able to return to work. 

If your accident did not happen on the way to work or on your way home from work, then your lost wages will be compensated only at the end of the CTP claim as part of the lump sum damages amount (as discussed above). In the meantime, the only other options you have to replace your lost income are the following:

• Income protection insurance: you may have income protection insurance through your super (or even outside super) under which you can receive monthly benefits to replace a large proportion of your monthly income.
• Centrelink: if all else fails, you may be able to apply for Centrelink benefits but unfortunately this is a relatively modest amount.

Daily diary

After a motor vehicle accident, it is a good idea to start writing a daily diary. You should report the following:

• The pain which you are experiencing. (For example: back pain after 10 minutes of sitting. Severity 6 out of 10.)
• Medications that you are taking.
• Any difficulties which you are experiencing at home or at work in your normal functioning. For example, increased fatigue, difficulty with concentration or inability to carry out household tasks such as cleaning or grocery shopping.
• Assistance received from family and friends: if you receive assistance from any family or friends, such as help with grocery shopping, looking after your house and so on, you should write down who provided the help, what help they provided and how much time they spent on it.
• If you write a diary and maintain it throughout the course of your claim, it is considered to be important evidence which helps you maximise the value of your compensation claim. 

Contributory negligence: what if I was at fault?

As we said above, to claim compensation after a car accident, the accident must have been caused by somebody else. 

However, you can also make a claim if you were partially at fault – so long as somebody else was also at fault. If you were partially at fault, this is called contributory negligence. 

There are many examples of contributory negligence. In Queensland, section 47 of the Civil Liability Act 2003 gives a specific example: if the injured person is the driver of the vehicle and they were under the influence of alcohol or a drug such that they were incapable of exercising effective control of the vehicle, then there will be a reduction of the damages amount for contributory negligence, even if the accident was caused by somebody else.

Negotiating with the CTP insurer without a lawyer

If you lodge a CTP claim without a lawyer, the CTP insurer may want to start settlement negotiations very quickly. You may be wondering if it is a good idea to negotiate. You may find commentary online that states that you should never negotiate without a solicitor, because you will be shortchanged. We think it is more nuanced than that: 

• If you have very minimal injuries without any ongoing effect, and if you are able to immediately return to work without any lost income then it may not be worth it for you to engage solicitors. In such a case, you may be better off negotiating with the insurance company directly. 
• If your claim is more serious than the above, that is, you have ongoing symptoms and limitations, you miss out on work and so on, then you should engage solicitors. If you don’t, there is a real risk that the settlement which you will negotiate will be inadequate. 

Should you speak to an investigator or loss adjuster?

After a motor vehicle accident, the CTP insurer may appoint an investigator or loss adjuster to look into the circumstances of the accident and to interview witnesses. As part of this they may try to contact you to take a statement. 

It’s important to understand that you have no obligation to participate in an interview, and we strongly recommend that you do not engage in any communication with a loss adjuster or an investigator.