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Guide for people who have lost a relative in a motor vehicle accident

Introduction

If a person dies as a result of a motor vehicle accident, you and other close relatives may be able to claim financial compensation (under the Compensation to Relatives Act 1897).

Close relatives include a wife, husband, de facto partner, brother, sister, half-brother, half-sister, parent or child of the person who died.

Even though you might not want to think about filling in forms right now, you and your family may not get compensation if you do not send your claim form to the Compulsory Third Party (CTP) insurer of the vehicle who caused the accident within 6 months of the death of your relative.

Who can make a claim

If you are a close relative or are the executor or administrator of the estate of a person who died as a result of a motor vehicle accident in NSW, there are a number of circumstances in which you can claim financial compensation.

Other driver or owner at fault

Whether the person who died was a driver, passenger, pedestrian, cyclist, motorbike rider or pillion passenger you can make a claim for compensation if you can demonstrate a driver or owner of a motor vehicle, other than the person who died, was partially or completely at fault.

If the person who died was partly at fault in the accident you may still be able to make a claim. The amount of compensation will be less than it would have been if they were not partly at fault. Examples of circumstances where the person who died may have been partly at fault include where they were:

  • not wearing a seat belt
  • driving under the influence of drugs and alcohol
  • travelling in a vehicle where they knew the driver to be under the influence of alcohol or drugs
  • driving at an unsafe speed
  • not wearing a helmet if riding a motorcycle or pedal cycle

Special benefit for children

You may be able to make a claim for reasonable funeral or cremation expenses associated with the death of a child even if they caused the accident provided that the child was under 16 years old and lived in NSW at the time.

Where the accident was caused, wholly or in part, by the driver or owner of a motor vehicle, other compensation entitlements may apply.

Blameless accidents

You may be able to make a claim for compensation even if the accident in which the person died was a blameless motor accident. Examples of blameless accidents may include:

  • accidents caused by a driver suffering a sudden illness, such as a heart attack or stroke
  • accidents caused by an unexplained mechanical or vehicle failure, such as brake failure
  • accidents caused by an unavoidable collision with an animal on the road

A claim can be made for any road user, however, there are restrictions that apply if the person who died was a driver (including a motorcycle rider) in a blameless accident.

You may not be able to make a claim if the person who died was a driver in a single vehicle accident or if they were driving the vehicle that caused the accident, ie they were the driver that suffered the heart attack or they were the driver of the vehicle that failed resulting in the accident.

For more information about who can make a claim, contact our Claims Advisory Service on 1300 656 919.

Help with your claim

If you are claiming more than funeral expenses, it may be advisable to talk to a solicitor. A solicitor who understands this area of the law can help you work out who should be named in the claim form, who should receive compensation and what that compensation should be. The NSW Law Society’s Community Assistance Service on 02 9926 0300 can give you the names of personal injury accredited solicitors in your area.

You may also contact our Claims Advisory Service on 1300 656 919 for assistance.

Compensation to relatives covers:

  • funeral expenses which you or another close relative paid for
  • the loss of financial support which the person who died would have provided to you or other close relatives if they had not died
  • loss of services (such as those provided by a parent to a child)
  • hospital or other medical expenses
  • loss of earnings the person suffered before their death

How to make a claim

Your claim will be against the owner or driver of the vehicle which caused the accident and is handled by the CTP insurer of that vehicle.

To claim you must:

  • make sure that the accident is reported to the Police in writing
  • obtain the registration number of the vehicle that caused the accident
  • find out the CTP insurer of the vehicle that caused the accident and get a motor accident compensation to relatives claim form from that insurer

Our Claims Advisory Service (1300 656 919) can give you the name of a vehicle’s CTP insurer if you tell them the registration number of the vehicle that caused the accident.

If you do not know the registration number of the vehicle that caused the accident find this out by asking the Police, talking to witnesses or placing an advertisement in newspapers asking witnesses to contact you.

If you have tried everything and still cannot find out the registration number of the vehicle that caused the accident, the vehicle is 'unidentified' and a claim should be made against the Nominal Defendant. If the vehicle that caused the accident was unregistered then you can also make a claim against the Nominal Defendant. You can get a Motor Accident Compensation to Relatives Claim Form from the Claims Advisory Service on 1300 656 919.

Completing the motor accidents compensation to relatives claim form

Fill in the claim form using a black or blue pen. You must answer questions fully and truthfully.

You must name the person you think caused the accident. If you think more than one person caused the accident, name the person you think was most at fault (other than your deceased relative). The person at fault is usually the driver, however, it could be the vehicle owner. An owner can be at fault where an accident is caused by some problem with the vehicle such as faulty brakes, which the owner did not have repaired.

The Statutory Declaration must be signed in front of a justice of the peace or a solicitor. Read it before you sign it.

Send the completed form to the CTP insurer as soon as possible but no later than six months after the death of your relative. Your claim could be affected if the insurer gets your claim more than six months after the death of your relative.

If you have tried everything and can’t identify the vehicle at fault, or if the vehicle at fault is uninsured, send the completed form to:

The Nominal Defendant
Level 6, McKell Building, 2-24 Rawson Place, Sydney NSW 2000.

We will allocate your claim to an insurer.

Deciding liability for your claim

You will get a letter from the insurer telling you they received your form. The letter will include a claim number that you must use if you want to talk to the insurer about your claim. It will also include a contact person and telephone number. The insurer will investigate your claim. You may be required to give the insurer specific information (photos, documents, records,etc) to help them with the investigation. As part of the investigation, the insurer will normally get a copy of the police accident report. You may be required to speak to an investigator about your claim.

After the investigation, the insurer will tell you its decision about your claim, that is, whether it has accepted or declined your claim. If it accepts liability, it agrees that the person it insures was at fault in the accident. It will make an offer of settlement, that is, an offer to pay an amount of compensation that it thinks is appropriate. You are free to make a counter offer if you wish. If the insurer does not accept liability, your negotiations are unsuccessful or you reject the offer of settlement completely, you may need the help of a solicitor.

If you are having difficulty reaching an agreement with the insurer, you may be able to resolve the dispute by:

  • Direct negotiation: you or your solicitor should make every effort to resolve any dispute by negotiating with the insurer.Mediation: this involves an independent person (the mediator) helping you (usually represented by a solicitor) and the insurer to negotiate with each other.
  • Mediation: Mediation is completely voluntary but once you and the insurer reach agreement, you both sign a contract that is final and binding.
  • Assessment by the Claims Assessment and Resolution Service (CARS): CARS provides a simple way of resolving disputes about the value of claims. For information about CARS, call the Claims Advisory Service on 1300 656 919.
  • Assessment by court: going to court can be a long and costly exercise and is often best considered as a last resort. Time limits apply for taking a matter to court.

Legal costs

The insurer is not legally bound to pay for your legal costs unless a CARS assessor or a court makes such an order. In some cases, insurers may agree to pay part or all of your legal costs, but do not assume that this will be the case. For accidents from 5 October 1999, the legislation fixes legal costs in some circumstances, but allows lawyers to charge more than this if they have an agreement with you. Note that if the insurer is required to pay your legal costs they will not have to pay more than the fixed amounts if these apply. Your solicitor is required by law to advise you in writing, before they start working with you, about the basis on which they will charge and to provide an estimate of what their costs are likely to be.

A CARS assessor or a court can order that you pay the insurer’s legal costs. They are likely to do so if you are not successful with your claim or if you refuse an offer of settlement from the insurer which is less than CARS or a court determines you are entitled to. You can discuss the likelihood of a CARS assessor or a court ordering that you pay the insurer’s legal costs with your solicitor.

Fraud

There are severe penalties for making a false or misleading statement in your report to the police, in your claim form or as part of any information you give to the insurer in your claim.

The claims register (personal injury register)

Some of the information about the claim will be recorded on our claims register.

Only our staff, approved insurance companies and other bodies with proper legal authority are allowed to use limited information from the Claims Register.

You can have access to your personal information on the Claims Register by writing to the General Manager of Motor Accidents Insurance Regulation, Level 6, McKell Building, 2-24 Rawson Place, Sydney NSW 2000.