Section - 4 Definitions
claim means motor vehicle accident claim.
claimant means a person by whom, or on whose behalf, a claim is made.
commission means the Motor Accident Insurance Commission.
CTP is an abbreviation of 'compulsory third-party'.
CTP insurance policy means-
- a policy of insurance under this Act for a motor vehicle insuring against liability for personal injury caused by, through or in connection with the motor vehicle; or
- a policy of insurance, or a statutory indemnification, for a motor vehicle registered under the law of another State or a Territory, providing insurance, or indemnifying against liability, for personal injury caused by, through or in connection with the vehicle anywhere in Australia.
injured person means a person who suffers personal injury because of a motor vehicle accident.
insured person also means-
- a person who is insured under a CTP insurance policy or, if the person is dead, the person's personal representative; or
- a person whose wrongful act or omission causes personal injury for which an action lies against the Nominal Defendant under this Act or, if the person is dead, the person's personal representative.
motor vehicle accident means an incident from which a liability for personal injury arises that is covered by insurance under the statutory insurance scheme.
motor vehicle accident claim means a claim for damages based on a liability for personal injury arising out of a motor vehicle accident and, for a fatal injury, includes a claim on behalf of the deceased's dependants or estate.
personal injury includes-
- fatal injury; and
- prenatal injury; and
- damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices.
rehabilitation means the use of medical, psychological, physical, social, educational and vocational measures (individually or in combination)-
- to restore, as far as reasonably possible, physical or mental functions lost or impaired through personal injury; and
- to optimise, as far as reasonably possible, the quality of life of a person who suffers the loss or impairment of physical or mental functions through personal injury.
uninsured motor vehicle means a motor vehicle for which there is no CTP insurance policy in force, other than a motor vehicle owned by a self-insurer or a trailer.
Section 5 - Application of this Act
- This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury-
- is a result of-
- the driving of the motor vehicle; or
- a collision, or action taken to avoid a collision, with the motor vehicle; or
- the motor vehicle running out of control; or
- a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
- is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.
- is a result of-
- For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.
Section 34 - Duty to notify accidents to police
- A person who proposes to make a motor vehicle accident claim (including a person acting in a representative capacity) must ensure that appropriate notice of the accident has been given to a police officer.
Section 37 - Notice of accident claim
- Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the motor vehicle accident claim to the insurer or 1 of the insurers, against which the action is to be brought...
- The notice must be given-
- if it is to be given to the Nominal Defendant because the motor vehicle cannot be identified--within 3 months after the motor vehicle accident; or
- in any other case--within the period ending on the earlier of the following dates--
- 9 months after the motor vehicle accident or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury;
- 1 month after the claimant first consults a lawyer about the possibility of making a claim.
- If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle can not be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.
Section 41 - Insurer must attempt to resolve claim
- Within 6 months after an insurer receives notice of a motor vehicle accident claim under this division, the insurer must-
- take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises; and
- give the claimant written notice stating-
- whether liability is admitted or denied; and
- if contributory negligence is claimed--the degree of the contributory negligence expressed as a percentage; and
- if the claimant is not a participant in the injury insurance scheme but the insurer considers the claimant may be an eligible person—that the claimant may be an eligible person; and
- if the claimant made an offer of settlement in the notice of claim, inform the claimant whether the insurer accepts or rejects the offer or, if the claimant did not make an offer of settlement in the notice, invite the claimant to make a written offer of settlement.
Section 42 - Payment of medical expenses etc.
- Once liability has been admitted, it is the duty of the insurer to make payments to or for the claimant for private hospital, medical and pharmaceutical expenses reasonably and appropriately incurred because of the injury or a proportionate part of the expenses reflecting the extent of the insurer's responsibility (assuming the claimant to be guilty of contributory negligence as asserted by the insurer).
- A payment must be made under this section on presentation of an account made up, and verified, as required by regulation.
- However, the insurer is not required to make a payment in relation to the claimant’s treatment, care and support needs as a result of the injury if-
- the claimant is, when the needs arise, a participant in the injury insurance scheme in relation to a serious personal injury resulting from the motor vehicle accident the subject of the claim; or
- the needs arise after an amount is paid to the claimant, or a person acting for the claimant, under the National Injury Act, section 44(3)(a) in relation to a personal injury resulting from the motor vehicle accident the subject of the claim.
- whether or not the injury the subject of the claim is a serious personal injury; and
- whether or not the treatment, care and support needs are an approved service for the claimant under the National Injury Act; and
- whether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and
- whether or not the treatment, care and support is provided without charge. (5) An insurer may recover payments made under this section if it later appears that the admission of liability was induced by fraud.
Section 51A - Compulsory conference
- Before the claimant brings an action in a court for damages for personal injury arising out of a motor vehicle accident, there must be a conference of the parties (the compulsory conference).
- Either party may call the compulsory conference--
- at a time and place agreed between both parties; or
- if the relevant date has passed--at a reasonable time and place nominated by the party calling the conference.
- For subsection (2)(b), the relevant date is--
- the date falling 6 months after the claimant gave notice to the insurer of the claim; or
- if the insurer required additional information, the later of the following--
- the date falling 6 months after the claimant gave notice to the insurer of the claim;
- the date falling 1 month after the claimant gave the insurer the completed additional information form.
- The parties may for good reason dispense with the compulsory conference by agreement.
- The court may, on application by a party--
- fix the time and place for the compulsory conference; or
- dispense with the compulsory conference for good reason; and make any other orders the court considers appropriate in the circumstances
Section 51C - Parties to exchange mandatory final offers if claim not settled at compulsory conference
- If a motor vehicle accident claim is not settled at the compulsory conference, each party must (unless the court has dispensed with this obligation) exchange written final offers—
- at the conference; or
- if the conference has been dispensed with—within 14 days after the date of the agreement or order dispensing with the conference.
- A written final offer required under subsection (1) is called a mandatory final offer.
- A mandatory final offer for the upper offer limit or less is to be exclusive of costs.
- If a mandatory final offer is for more than the lower offer limit but not more than the upper offer limit, and is accepted, costs are to be calculated and paid on a basis (but subject to limits) stated under a regulation.
- Even though an insurer denies liability altogether, the insurer must nevertheless make a mandatory final offer but, in that event, the offer is to be expressed as an offer of $nil.
- A mandatory final offer must remain open for 14 days and proceedings must not be started while the offer remains open.
- If the claimant brings a proceeding in a court based on a motor vehicle accident claim, the claimant must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant’s mandatory final offer.
- The insurer must, before or at the time of filing a defence, file at the court a sealed envelope containing a copy of the insurer’s mandatory final offer.
- The court must not read the mandatory final offers until it has decided the claim.
- However, the court must (where relevant) have regard to the mandatory final offers in making a decision about costs.
- The court may, on application by a party, dispense with the obligation to make mandatory final offers
SCHEDULE - POLICY OF INSURANCE
1 Extent of insurance cover
- This policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia.
- This policy extends to liability for personal injury caused by, through or in connection with a trailer attached to the insured motor vehicle or that results from the trailer running out of control after becoming accidentally detached from the insured motor vehicle.
- The liability mentioned in subsection (1) or (2)-
- is a liability for personal injury to which the Motor Accident Insurance Act 1994 applies; and
- includes the liability of a tortfeasor to make a contribution to another tortfeasor who is also liable for the personal injury.
- This policy does not insure a person (the injured person) against injury, damage or loss-
- that arises independently of any wrongful act or omission; or
- to the extent that the injury loss or damage is attributable to the injured person's own wrongful act or omission.
2 Insured person
The person insured by this policy is the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission.
- This policy does not insure an employer against a liability to pay worker's compensation.
- This policy does not insure an employer against a liability to pay damages for injury to an employee if-
- the injury arises from the employer's failure to provide a safe system of work for the employee or the employer's breach of some other duty of care to the employee; and
- neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose.
- This policy does not insure against a liability to pay exemplary, punitive or aggravated damages.
- This policy does not insure against a liability to pay damages for an injury that arises gradually from a series of incidents.
The above is only a small excerpt from the Motor Accident Insurance Act 1994 (Qld). Motor vehicle accident claims in Queensland are complex. If you have been injured in a motor vehicle accident, you should call us The Personal Injury Lawyers who may be able to assist with any claims or queries.