The Insurance Commission of WA (‘ICWA’) is WA’s only Compulsory Third Party Insurer which manages all personal injury (and fatal) claims resulting from motor vehicle crashes that involve a WA licensed vehicle. As soon as you are involved in a motor vehicle accident (‘MVA’) and you have sustained injuries, you must report the accident to ICWA by completing the ‘Online Crash Report Form’ on ICWA’s website. You should report the accident without delay and seek medical advice immediately. ICWA will then investigate the circumstances of the accident and will either (formally or informally) admit liability 100%, admit partial liability on the basis of contributory negligence or deny liability.
I quite often receive phone calls from people who have been injured in a MVA and believe they automatically have a claim with ICWA. This is not the case. ICWA will only formally accept 100% liability for an accident when the accident was caused through the negligent driving of a party whose vehicle is registered in WA. If the vehicle of the other driver was registered in another State/Territory you will need to contact the relevant Compulsory Third Party insurer in that State/Territory and report the accident. You can of course have a WA personal injury lawyer acting on your behalf for your claim, it just means ICWA will not be the relevant insurer. If you are a passenger in a vehicle which crashes and you are injured, ICWA will almost always accept liability for your claim. If you are a pedestrian or a bicycle/motorbike rider who is injured due to another driver’s actions, you have the same rights to make a claim as somebody who is an injured driver in a motor vehicle.
Sometimes ICWA will informally admit liability. Liability is admitted informally on a ‘without prejudice and without admission of liability’ basis usually when the other driver has been charged with a criminal offence in connection with the accident (for example, driving a stolen motor vehicle, driving under the influence or running a red light) and ICWA has a right of recovery against them for their criminal actions. Liability may also be informally admitted when the other driver does not return their ‘Authority to Admit Negligence’ to ICWA but ICWA believes their insured caused the accident. If the accident occurs as a result of a person driving a motor vehicle for the purpose of committing a crime, for example, a person intentionally runs over you in a motor vehicle, not only may you have a claim with ICWA, you may also have a claim for criminal injuries compensation. In order to be eligible for criminal injuries compensation, the driver must be charged/convicted of the offence of dangerous driving causing grievous bodily harm.
If ICWA concludes you contributed to your injuries, ICWA may only accept partial liability. For example, ICWA may argue contributory negligence if at the time of the accident:
- you are not wearing a seatbelt – as, if you had been wearing a seatbelt, your injuries may not have been so severe;
- you were speeding – even if you in no way caused the collision as, your injuries may not have been so severe if you had not been speeding; and
- you were a pedestrian crossing a road and you didn’t look properly before crossing – quite often ICWA only accepts 50% liability or less on the basis that the person was negligent for not taking reasonable care for their own safety.
ICWA may completely deny liability if their investigations reveal the MVA was caused due to the persons own negligent actions. Putting it simply, if you caused the accident, you have no claim. WA does not operate on a ‘no-fault’ scheme like some other jurisdictions, so the accident must be due to another driver’s fault. The only exception I have ever seen to this is when a MVA is caused as a result of a Kangaroo jumping onto the road into the path of an oncoming vehicle. If you crash due to hitting a Kangaroo, you may have a claim with ICWA.
I also often receive telephone calls from people who have had a MVA where no other vehicle was involved and the person believes the accident occurred due to the particular conditions of the road, for example, excessive rubble on a rural road, road works which have no warning signs displayed or cracks/dents/pot holes in a road causing motorbike riders to lose control and crash. If you are injured in an MVA due to poor conditions of a road, you will not have a claim against ICWA as no other driver was at fault. Instead you should consult a lawyer and seek advice in relation to proceeding with a public liability claim against the Council responsible for maintaining/controlling the road.
If ICWA admits liability or partial liability your compensation will be made up of the following ‘heads of damages’:
- general damages for pain, suffering, loss of enjoyment of life and inconvenience (it is important to note currently there is an $18,000.00 deductible threshold which means your injures must be severe enough to exceed this threshold to entitle you to receive compensation for your general damages);
- medical expenses;
- future medical expenses;
- loss of earnings;
- future loss of earnings;
- past and future superannuation;
- gratuitous assistance from family/friends; and
- travelling expenses.
It is important that you act quickly after a MVA as delay could seriously prejudice your claim.