MOTOR VEHICLE
ACCIDENTS

1. An accident occurs.

2. Seek Medical attention as soon as possible.

3. Seek advice from us as soon as possible. This is important.
   We will then do the following steps:

4. Notify Insurer within 1 month of accident and/or one month of seeing a solicitor. The Notice must be pursuant to S34 of the Motor Vehicle Insurance Act.

5. Certain documents must be served upon the CTP Insurer pursuant to S37 of the Motor Vehicle Insurance Act. There are strict time limits and protocol in respect of those documents.

6. A 'Nominal Defendant' may be party to the claim. Who the correct defendants are is assessed legally. (See 'Nominal Defendant' below for further information.) Notice is usually given. Strict time limits apply.

7. Medical Examinations are important in all personal injuries claims. Medical Specialists are selected by both sides for the claimant to be assessed by and Medico Legal reports are produced from these visits.

8. Admission of Liability within 6 months of lodgment of the S37 Notice. Admission may be 'whole' or 'part' liability. i.e.: a defendant may be deemed responsible for 100% of your claim, or less depending upon the evidence and circumstances of the case.

9. Rehabilitation may be arranged once liability is admitted.

10. The parties then attempt to settle out of court. Most personal injuries claims are settled out of court.

11. If your matter cannot be settled out of court then court proceedings are commenced. (Depending upon the time which has elapsed since your accident, court proceedings may need to be issued earlier to ensure that this option remains open to you.) Litigation steps are then taken before any trial may be set down and completed. Often these steps will run concurrently with all efforts to settle out of court which will continue even when a trial date has been set. 'Formal Offers To Settle' may be issued by both sides and either accepted or rejected at any time. The client is involved in any decisions.

The action must be brought against the wrongdoer and their 3rd party insurer as joint defendants. The 3rd party is the alleged wrongdoer.

The nominal defendant is the 3rd party insurer when:

• the motor vehicle is not insured;

• the motor vehicle cannot be identified;

• the accident involves an uninsured trailer within Queensland.

The Insurer has an obligation to attempt to settle proceedings. Section 41 of the Motor Accidents Insurance Act 1994 (Qld) imposes an obligation on the insurer to endeavour to settle the claim before proceeding to court. Certain procedures need to be complied with before a matter can proceed to court. Section 41 requires the insurer to:

1. Take steps to inform itself of the circumstances of the accident within 6 months of receiving the section 37 notice of claim;
2. Tell the claimant in writing whether liability is denied or admitted in full or in part, and if admitted in part the extent of liability expressed as a percentage.
3. Make a fair and reasonable assessment of the claimant's entitlement to damages as 'soon as practicable' after receiving the section 37 notice.

Hospital, medical and pharmaceutical expenses reasonably incurred because of the injury must be paid by the insurer once liability has been admitted in whole or part. However, these are often paid at the conclusion of the case.

The insurer has the power to act for the insured in relation to the claim.

The insurer can conduct and control negotiations and legal proceedings related to the claim and the power to compromise or settle the claim or legal proceedings.

The insurer is empowered to sign for the insured person where that person cannot be found, is absent or is dead.

Has A Duty To Undergo A Medical Examination.

Section 49 imposes an obligation to undergo a medical examination and/or assessment at the request of the defendant or their insurer. Proceedings cannot be commenced if the claimant refuses 'without reasonable excuse' to undergo such a medical examination.

Obligation of Claimant / Plaintiff to co-operate with Insurer

You should seek legal advice regarding what obligations you have to co-operate with the Insurer.

The following outlines the legal guidelines.

The Claimant has a statutory duty to co-operate with the insurer S45(1) and in particular give information concerning:

1. circumstances relevant to the accident;

2. the nature of injuries resulting from the accident;

3. any consequent disabilities from the accident;

4. medical treatment and rehabilitation services sought and obtained by the claimant;

5. the claimant's past medical history (insofar as it relates to the injury the subject of the claim);

6. any previous claims for compensation.

Claimant's Duty to Furnish Copies of Medical and Other Reports

Within one month of the insurer's request the claimant must provide copies of all medical reports or other documentary material relevant to the matters in S45(1). Section 47(1) imposes an obligation on the insurer to co-operate and, in particular:

1. provide the claimant with reports and other documentary material in the insurer's possession about the circumstances of the accident, of the claimants medical condition and prospects of rehabilitation;

2. at the claimants request provide information that is in the insurer's possession or can be found out about the insured person about the circumstances or reason for the accident.

Section 47(2) provides that there is an ongoing obligation of disclosure.

Obligation to Undergo Medical and Other Assessments

The claimant may be required, at the insurer's expense, to undergo medical examination by a doctor, or an assessment of cognitive, functional o vocational capacity by an expert, in each case from a panel of two to three. The claimant is not required to undergo examination if it is unreasonable or repetitious.

Privilege

Legal professional privilege is recognised by section 48 but investigative, medical reports and reports relevant to rehabilitation must be disclosed.

Generally Section 11 of the Limitations Actions Act 1974 (Qld) places a period of limitation of actions of three years from the time the cause of action (die. injury). Please note that in Queensland the law imposes the following strict time limits:

1. you only have three years from the date of an accident within which to issue proceedings. Should you not notify, settle, or issue within this time then you could lose your rights forever and be prevented from claiming;

2. written initial notification must be given to the insurer liable for the accident within one (1) month of the accident (but extensions of time can be granted within one (1) month of the accident under certain circumstances);

3. a Notice of Claim (called a Section 37 Notice) must be completed and lodged with the insurer liable for the accident within nine (9) months from the accident date, failing which our claim can be dismissed by the insurer;

4. should the defendant's vehicle be uninsured, or unidentified, then notice must be given to Nominal Defendant within three (3) months.

Time Limit For Making A Claim Against The Nominal Defendant
Notice of Claim must be given within 3 months of the motor vehicle accident in the case of an unidentified vehicle.

An insurer may make rehabilitation services available to attempt to return a claimant to the workforce. This can either be at the insurer's initiative or at the claimant's request. Once liability has been admitted the insurer must make rehabilitation services available to the claimant.

An insurer can now call upon a claimant to mitigate damages, by written notice specifying the action the claimant should take. Suggestions may specify:

• medical treatment the claimant should undergo;
• a return to work or the taking of specified steps to attain employment;
• undergo rehabilitation therapy of a specific kind;
• undertake specified programs of rehabilitation and training.