I’ve completed the Insurance Commission online crash report, is that all I have to do for my Car Accident Claim?
The short answer is: NO. Section 29 of the Motor Vehicle (Third Party Insurance) Act 1943 says that if you want to claim compensation for injuries suffered in a car accident, you must then:
- give notice in writing of your intention to make a claim; and
- use the prescribed form to do that.
Your online crash report is not a ‘notice of intention to claim’. The law says that after you have completed the online crash report, you must give separate notice if you then want to claim compensation for your injuries. You need to use the prescribed form and send it to the Insurance Commission as soon as practically possible after the accident. This requirement is known as the notice of intention to claim.
What if I haven’t completed the notice of intention to claim?
If you haven’t completed a Notice of Intention to Claim and nonetheless proceed to claim compensation, then you will probably get a letter from the Insurance Commission asking you for an explanation as to why you didn’t complete the Notice. If you don’t reply to that letter and you don’t give an acceptable explanation, then potentially your claim may be rejected. You may then need to apply to the Court for leave to make your claim. When you explain your delay to the Commission you will need to rely on one of the grounds set out in section 29A. of the Act. The acceptable grounds include:
- mistake; or
- inadvertence; or
- reasonable cause; or
- that the Commission is not materially prejudiced by your late notice.
What does not materially prejudiced’ mean?
In the case of Howell v Smith [2018] WADC 125 a claimant had been injured in an earlier car accident in Perth and had made a claim. In fact, he was busy negotiating a settlement of that compensation claim with the Insurance Commission when he had a second accident. He was using lawyers to help him with the first claim at the time that he had the second accident. He completed an Online Crash Report for the second accident but didn’t give a Notice of Intention to Claim.
Even though the Insurance Commission knew about his second accident they nonetheless objected to him claiming compensation for the second claim. That meant that if he wanted to claim compensation for the second accident he needed to apply to the Court for permission to start that claim. He would have looked at the grounds. Clearly, there was no chance that he could argue that forgetting to give a Notice of Intention to claim was because of a mistake or inadvertence or reasonable cause: he would have been familiar with what was needed because of his first claim, and in any event, he was getting legal assistance.
Therefore he applied to the Court for permission to claim based on an argument that the Commission was not prejudiced by not having received a Notice. The Court refused to give him leave. The evidence was that the Commission receives thousands of Online Crash Reports each year and that they only investigate claims where a Notice of Intention to Claim is received. Because no Notice had been received they had not investigated. By the time the application for leave was brought, the Defendant’s driver had disappeared, and the opportunity to investigate the claimant’s injuries had been seriously compromised. Because of the prejudice, the Court refused to give leave for the claimant to claim compensation for the second accident.
What to do if you haven’t given notice of intention to claim
If you have not given Notice to the Commission of your intention to claim compensation arising out of your car accident and you get a letter from the Commission asking for an explanation, this is a serious issue. You need to act. You should:
- seriously consider chatting to a compensation lawyer in Perth. They will give you advice on your best strategy for overcoming this problem;
- tell your lawyer why you didn’t give Notice to the Commission. If for example, you were still in hospital getting treatment, or overseas, or dealing with some personal issue, then perhaps you can apply for leave under ‘reasonable cause’;
- if you completed a notice, but the email didn’t go to the correct address – then perhaps you can use the excuse of ‘mistake’. You will of course need to prove this mistake from your email account;
- if you are only a couple of weeks late in giving Notice, then perhaps this is a case where ‘no prejudice’ will be good enough.
If you have received a letter from the Insurance Commission asking you for an explanation as to why you didn’t give notice, chat to Lian Hall Injury Law for a no obligations discussion.
