Category Archives: Motor Accidents

New CTP Claim Form

The new Personal Injury Claim Form may be downloaded from the State Insurance Regulatory Authority (SIRA) (formerly the Motor Accidents Authority).

A claim may be lodged by sending a completed form and medical certificate to the CTP insurer of the vehicle at fault. Claims must be lodged within 6 months of the date of accident.

http://www.maa.nsw.gov.au/__data/assets/pdf_file/0005/19652/personal_injury_claim_form_MAA21.PDF

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King v Philcox [2015] HCA 19

ON 10 JUNE 2015, the High Court of Australia delivered King v Philcox [2015] HCA 19 (10 June 2015).

“Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger’s brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.

Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.

Words and phrases – “accident”, “duty of care”, “incident”, “present at the scene of the accident when the accident occurred”, “proximity”, “reasonably foreseeable”.

Civil Liability Act 1936 (SA), ss 33, 53(1)(a).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/19.html

The High Court upheld an appeal from a decision of the Full Court of the Supreme Court of South Australia, holding that the respondent could not recover damages for mental harm because of the operation of s53 of the Civil Liability Act 1936 (SA).

Section 53 provides that a plaintiff who is not a close relative to a person injured, killed or endangered in an accident may not recover damages for mental harm unless the plaintiff was physically injured or “present at the scene of the accident when the accident occurred”.

The respondent’s brother was killed in a motor accident caused by the appellant. The respondent had driven past the accident scene on five occasions after the accident but before the scene was cleared, not knowing that the accident involved his brother. He later learned that his brother had died in a car accident and released that he had witnessed the aftermath. He subsequently developed a major depressive disorder.

The High Court found that the respondent was not present at the scene of the accident when the accident occurred and therefore, because of s53, was not entitled to damages for the mental harm that he suffered.

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Todorovic v Waller [1981] HCA 72 | 16 December 1981

ON 16 DECEMBER 1981, the High Court of Australia delivered Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (16 December 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/72.html

The High Court ruled that a discount rate be applied to the assessment of lump sum damages for personal injuries so that the present value of future economic loss be discounted by 3% to allow for inflation, tax and changes in wages.

Subsequent legislation has increased the rate to 5% in most Australian jurisdictions.

 

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Annual increase to motor accident damages caps

FROM 1 OCTOBER 2014, the Motor Accidents Compensation (Determination of Loss) Amendment Order 2014 adjusts the Motor Accidents Compensation Act 1999 by:

  • increasing, from $477,000 to $492,000, the maximum damages that may be awarded for non-economic loss under s134.
  • increasing, from $4,376 to $4,512, the amount beyond which the court must disregard pre-accident weekly earnings when assessing damages for past or future loss of earnings, deprivation or impairment of earning capacity or loss of expectation of financial support under s125.

The order relates to awards of damages for injury or death as a consequence of a motor accident.

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Seat belts became compulsory in NSW | 1 OCTOBER 1971

ON 1 OCTOBER 1971, the wearing of seatbelts became compulsory in New South Wales.

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Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222.

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Tame v New South Wales [2002] HCA 35 | 5 September 2002

ON 5 SEPTEMBER 2002, the High Court of Australia delivered Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002).

In a claim for damages for psychiatric injury caused by negligence, direct perception of the event or its aftermath is not a necessary aspect in all cases.

The question is whether it was reasonable to require the defendant to contemplate the risk of psychiatric injury to the plaintiff, and to take reasonable care to guard against the risk.

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Imbree v McNeilly [2008] HCA 40 | 28 August 2008

ON 28 AUGUST 2008, the High Court of Australia delivered Imbree v McNeilly [2008] HCA 40 (28 August 2008).

The High Court held that an unlicensed 16 year old driver owed the same duty of care as any other driver to take reasonable care to avoid injury to others, overturning its decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 (2 December 1986) in which it had held that the standard of care was that which would be expected of an unqualified and inexperience driver.

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Hollis v Vabu Pty Ltd [2001] HCA 44 | 9 August 2001

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath.  The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

Chapman v Hearse [1961] HCA 46 | 8 August 1961

ON 8 AUGUST 1961, the High Court of Australia delivered Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 (8 August 1961).

http://www.austlii.edu.au/au/cases/cth/HCA/1961/46.html

Chapman negligently drove his vehicle causing it to collide with another vehicle and overturn. Chapman was ejected from his vehicle and came to rest unconscious on the roadway. Dr Cherry came to Chapman’s assistance but was struck and fatally injured by a vehicle driven by Hearse who had negligently failed to see him.

The executor or the estate of Dr Cherry sued Hearse in the Supreme Court of South Australia for damages arising from the doctor’s death.

The Chief Justice of the South Australian Supreme Court found Hearse to be liable, ordering him to pay damages but also ordered that Chapman should contribute one quarter of that sum.

Chapman appealed to the South Australian Court of Appeal, who dismissed the appeal.

Chapman appealed against the decision in the High Court, arguing that (1) Chapman owed Dr Cherry no duty of care as it was not reasonably foreseeable (2) Dr Cherry’s death was caused solely by the negligence of Hearse and (3) the damage was to remote in any case.

The High Court dismissed the appeal. On the questions of duty and remoteness, the High Court held that Chapman did owe Dr Cherry a duty of care as it was “sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway”. In essence, the court held that one is liable for all damage which is of the same general nature as that which could be reasonably foreseen.

On the question of causation, the court held that a wrongful intervening act does not of itself break the chain of causation as long as the intervening act was reasonably foreseeable.

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