The latest industry insights into compensation law.

Maximising an award of damages in a CTP Claim

If someone is injured as a result of a motor vehicle accident and they are not the party at fault, there are entitlements to lodge a CTP claim.

After lodging a claim, many claimants may ask the question of whether they can resolve their claim early or informally or whether it is best to press onto a compulsory conference.

It is vital that all claimants understand that once a CTP claim is resolved, it is in full and final settlement of the claim, and they cannot claim again in relation to the same incident. For example, if symptoms or injuries worsen after settling the matter, there is no avenue to reopen the claim and claim further damages.

In this regard, it is generally recommended that claimants do not elect to resolve their CTP claim early or informally, i.e., without obtaining medico-legal medical evidence and proceeding to a compulsory settlement conference.

Claims that are resolved informally and without medico-legal evidence typically settle for modest damages which may not be reflective of the actual loss suffered by the claimant. Some of these losses may include compensation for pain and suffering, medical expenses, care and economic loss. Without medico-legal evidence to address the various heads of damage, informal and premature negotiations generally result in a very modest award of damages.

In terms of timeframes, a CTP claim must be lodged with the insurer of the at-fault driver within 9 months of the date of accident or 1 month of consulting a solicitor; whichever occurs first. Failure to do so will require a reasonable excuse for delay to be provided. If a claim involves an unidentified or uninsured vehicle, the claim must be lodged within 9 months of the accident or it is statute barred.

Once a claim is on foot, there is a 3 year limitation period in which a claimant must either resolve their claim or commence proceedings.

In order to maximise the award of damages in a CTP claim, obtaining expert medico-legal evidence is crucial. This independent medical evidence will set out the nature and extent of all injuries suffered by the claimant and the impact that those injuries have had and will likely have on the claimant into the future.

The largest component of a CTP claim is generally economic loss. Expert medico-legal reports will outline any occupational restrictions and the extent of the claimant’s incapacity to work in the future due to any accident-related injuries. This expert opinion is relied upon when quantifying the economic loss component of the claim, together with any corroborating evidence from the claimant or their employer.

Medico-legal reports are also beneficial in that they provide an opinion with respect to past and future rehabilitation, aids and equipment, pharmaceuticals, care and assistance and also comment on the effect of any incapacity on sports, interests, hobbies and ability to attend to the activities of daily living. Again, this expert opinion is relied upon when claiming under the relevant heads of damage.

After obtaining medico-legal evidence, the matter should be prepared for a compulsory conference. Having a lawyer engaged who prepares a detailed Statement of Loss and Damage is also crucial to ensure the damages claim is maximised.

Much like those claims which are resolved informally, self-represented claimants also tend to receive more modest damages when compared to legally represented claimants who progress their matters to a compulsory conference.

Data published by the Motor Accident Insurance Commission notes legally represented claimants were, on average, awarded the total settlement amount of $93,305.46. This can be compared to those self-represented claimants who were compensated an average sum of around $13,481.94.  Motor Accident Insurance Commission, Claimant Research 2017 (28 November 2017)

It is important that claimants have appropriate legal advice regarding any settlement of their claim to ensure they are fully informed regarding the process and quantum of their claim.

Olivia is a solicitor in our Gold Coast office with a Bachelor of Laws degree from Griffith University.
Sean is proud to be a lawyer for everyday people no matter what their issue. He has practised in compensation law for all his legal career and he has a superb track record of achieving outstanding results for his clients.

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