Motor Vehicle Accident Injury Claims Making a claim in Western Australia

It is very hard, and possibly misleading, to provide an average settlement figure for injury claims as every claim is unique and is valued on its particular facts. However, the pain and suffering element of such claims is worked out according to a statutory scale which values each injury claim by comparing it to an injury of the utmost severity. This means that we have to work out on the scale how serious the injury is when measured against that benchmark. So, if the most serious injury would justify compensation of 100% of the maximum (currently $432,000), we just work out how the particular injury compares to that. A typical soft tissue “whiplash” injury without any particular complications may justify anywhere between 5% – 13% on the scale. If there are additional features such as bony or tendon damage, or Post-Traumatic Stress Disorder (PTSD), the award may well be higher. The claims are usually assessed by reference to decided court cases which will specify what percentage is being awarded for the pain and suffering in the particular case.

Personal injury claims are so varied that it is extremely hard to provide useful guidance without knowing the particular facts of the case. For example, a claim may involve one or more of the following aspects: pain and suffering, loss of amenity, loss of earnings (past and future), treatment costs (past, present and future), assistance with activities of daily living, rehabilitation and retraining costs, etc. A case may involve a combination of these factors which will influence the overall value of the claim. The best advice is to seek the best advice from someone who is experienced in dealing with personal injury claims .work.

This will depend upon the seriousness of the injuries suffered. There is in Western Australia a threshold for compensation payments of this type. If the injury is minor, and a full recovery is made within a few weeks or months, you may not be eligible for compensation, although other aspects of the claim will be covered, such as treatment costs and any loss of earnings due to the injuries caused by the accident. In more serious cases, where treatment is prolonged and the recovery takes longer, you will probably be entitled to compensation for pain and suffering but the actual amount will depend upon the nature, extent and seriousness of the injury and the extent of the treatment needed to recover from it. A full recovery is not always possible and if that is the case, you will almost certainly be entitled to some level of compensation. There is a statutory scale for compensation payments in Western Australia, and where your injury falls on that scale will determine the amount you are likely to recover.   

It depends almost entirely on what the medical evidence says. Once an injured person’s condition has stabilised, The Insurance Commission of Western Australia (ICWA) will look to settle the claim but this will only happen where all viable treatment options have already been considered. Once the medical specialists are satisfied that the injured person has either recovered or that their condition has stabilised, ICWA will invite your lawyer to submit their assessment of the value of the claim. That assessment will include the lawyer’s opinion on what the pain and suffering is worth. The lawyer will usually establish that figure by reference to decided court cases of a similar nature and according to a set statutory scale.

A good settlement is one which both sides can agree is fair. There is no magic figure in personal injury cases. An experienced practitioner will know roughly where a claim will sit on the scale of compensation. That figure will be refined by reference to similar decided court cases and that practitioner’s own experience in dealing with similar claims. There are different criteria for different types of claims, so a motor vehicle injury claim will be approached differently to a worker’s compensation claim. A good settlement is one in which all relevant heads of damage are dealt with fairly and usually this involves a compromise between the highest and lowest realistic figures.

This will depend upon when the injured person’s condition has stabilised. Normally, we need to reach that point before we can settle a claim and the time it takes to reach that point varies in every case. If a typical soft tissue whiplash injury takes 12 months or more to settle down, this means that settlement itself will not normally happen until at least a year after the accident and often it takes longer, depending upon the success of the treatment and the seriousness of the injury.  On average, it probably takes 18-24 months to reach the point of settlement in a straightforward soft tissue injury (whiplash) case.

This is a difficult question to answer. It is more a question of maximising the settlement rather than increasing it as such. In any given injury, there will be certain heads of damage that can be claimed and the amount awarded will be based upon the facts of the case, primarily the medical evidence. There may be situations where the medical specialists do not agree on the seriousness of the injury, or you disagree with a particular specialist’s opinion. That is when it would be wise to seek a second opinion and if that opinion is ultimately preferred, it will result in a higher award than if the first opinion were accepted. It is therefore mainly about getting the right evidence, whether that is from a doctor, specialist or an expert in a particular field. For example, if there is a dispute about how an accident occurred (rather than the injuries suffered), an expert opinion may help to establish which version of events should be preferred, e.g. an accident reconstruction specialist. Knowing which experts to instruct is therefore a key aspect of maximising a personal injury claim.

This is done almost exclusively by reference to the medical evidence. Your doctor and specialists will be asked to provide reports on your injuries and your progress, and the Insurance Commission will often instruct one of their own independent specialists to comment on your condition as the claim progresses towards a conclusion. The medical specialists will be asked to comment on all relevant aspects of your injuries, including pain and discomfort, limitation of movement, effect on your daily activities and your capacity to work, future treatment needs and so on. It is rare that there is a fundamental difference of opinion between the medical experts, so if that is the case, your claim is based upon the agreed medical evidence. If there is a fundamental difference of opinion between experts, that may need to be resolved by the court.

You need to firstly notify your claim to The Insurance Commission of Western Australia, who will investigate the circumstances and decide whether the claim is accepted. If so, they will then cover you for any reasonable treatment costs. If your injury lasts for more than a few months, you may then be entitled to compensation for pain and suffering but this will depend on the seriousness of your injury and how long it is likely to last. Your lawyer will be able to guide you on the likely value of your claim but this may not be known until we have all of the medical evidence. The claim itself will often comprise various different components, for example treatment and medication costs, possibly loss of earnings, pain and suffering and other losses that can be reasonably attributed to the accident.

It is your lawyer’s job to get the maximum reasonable figure when the claim is ready for settlement. It is important to make sure that the medical evidence is complete, fair and detailed. The medical evidence will usually dictate the value of the claim, both in terms of establishing the extent of the pain and suffering but also identifying in what other ways the injuries have affected you, for example how it affects your capacity to work both now and in the future. If there is a fundamental dispute on the medical evidence, it is wise to seek a second opinion. However, it is worth remembering that all medical experts are required to provide an honest and impartial opinion, so fundamental differences rarely happen when this approach is taken.