How is my claim as a passenger different to claim by a driver?
If you are a passenger in a car in Perth that was involved in a car accident, and if you have been injured, then you can make a claim and be paid compensation just like anyone else who has been injured in a car accident. As a passenger, you can claim:
- Your lost wages if you can’t work because of your injuries; and
- Your treatment expenses; and
- Out-of-pocket expenses; and
- An amount to compensate you for your pain & suffering.
Who pays the passenger compensation claims?
In Western Australia, all cars with a valid WA rego are insured for Third-Party claims. In simple terms: if the driver of a car with a valid WA rego causes an accident, then the Insurance Commission of WA (‘ICWA’) will manage any claim made against that driver on the driver’s behalf and deal with the compensation payments. Put another way: if you make a claim against the driver, the driver will hand your claim on to ICWA, and ICWA will then handle your claim and make any payments of compensation.
Do I have to show that the accident was caused by the driver’s fault?
In short, yes. In the case of passengers, the passenger must either show that the accident was caused by the fault of the driver of the car that they were in, or, that the accident was caused by the driver of another car. It does not particularly matter which driver was at fault, so long as a driver was at fault. You would need to show for example that:
- The driver drifted off the road or onto the wrong side of the road; or
- The driver was speeding; or
- The driver didn’t stop at a traffic light or stop street; or
- The driver tried to overtake when it was unsafe to do so;
There are many different ways in which a passenger can argue that the accident was the driver’s fault. But as long as you can show that the accident was the driver’s fault, you can make a claim and ICWA will handle the claim on the driver’s behalf.
But what if the accident was nobody’s fault, it was just an accident?
There are definitely accidents where nobody was to blame. For example, in a very well-known WA case, some horses had escaped onto a road at night. A passenger in a car was seriously injured when the driver suddenly came across the horses and swerved to avoid hitting them and crashed. The Passenger made a claim against the driver saying that the driver was driving too fast. The Court said that the driver had not been negligent: it is not negligent to take emergency evasive action to avoid a crash. In another WA case, a passenger in a taxi was injured when the taxi driver suddenly braked very hard to avoid a crash. The passenger tried to argue that the taxi driver had braked too hard. Again the Court said that the driver was not negligent.
Bottom line: if you cannot show that the accident was caused by the driver of the car that you were in, or show that another driver caused the accident, then you are unlikely to be successful in your claim.
For that reason, it is very common that after you notify ICWA of an accident, that ICWA arranges for an investigator to come and take a statement from you to record what happened. For that reason, Lian Hall Injury Law always recommends that if you have been injured in a car accident in Perth, whether you are a driver or a passenger or a pedestrian or a cyclist, that you give us a ring and have a chat and get advise on succeeding in your claim.
