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If you have been involved in a transport accident which was caused by the fault of someone else, you may be entitled to bring a common law claim and receive lump sum compensation/ damages if you can show that you have sustained a “serious injury”.
There are 2 ways that the “serious injury” test can be satisfied:
1. Deemed test: 30% or greater whole person impairment (WPI)
Once your injury has stabilised (i.e. reached a stage where further recovery is unlikely), you will undergo a medical assessment where an independent medico-legal doctor will assess your WPI. If the TAC determine that your WPI is 30% or more, you are “deemed” to have a “serious injury”. However, this is an exceptional circumstance and the majority of injured claimants will be assessed at below 30%, which means you will have to rely on the narrative test (below).
2. Narrative test
If you are assessed at below 30% WPI, there is an alternate test that can be used to satisfy the “serious injury” test.
“Serious injury” is defined in the Transport Accident Act 1986 as:
– Serious long-term impairment or loss of body function; or
– Long-term serious disfigurement; or
– Severe long-term mental or severe long-term behavioural disturbance or disorder; or
– Loss of foetus.
This test looks at the effects and consequences of the accident on your life; for example, your ability to return to work, to be without constant pain, to attend to domestic duties and personal needs and participate in sporting and recreational activities. The consequences of your injury need to be serious.
Two individuals involved in different transport accidents, both sustaining the same injury
The great thing about this system is that it recognises that an injury, no matter how serious and regardless of the diagnosis, affects everyone differently. The test treats each person as an individual and the consequences of an injury are considered in light of each individual’s circumstances.
The prime example is where two individuals involved in transport accidents both require their left index finger to be amputated. One person is right-handed and works as a teacher. Their ability to work and earn a living is unaffected and they are still able to enjoy fishing and surfing.
The other person is a successful concert pianist who plays at well-known shows and musicals. Playing the piano is not only a way for them to make a living, but it is also a way for them to express themselves. The accident has disrupted their employment as they are unable to play to the same standard, which in turn causes emotional distress.
In this situation, the concert pianist would have a serious injury and be entitled to make a claim for common law damages whereas the teacher would not.
As you can see, the “serious injury” test can be quite complexed and the definitions are unclear. Various legal documents including an affidavit and sworn statement need to be lodged in order to make this application.
If you think you have sustained a “serious injury” or you are unsure, get in touch with us today for a FREE claims assessment. Our TAC expert, Julia Nguyen, can provide you with a free initial consultation and help guide you through the entire process so that you are adequately compensated.
We can assist you with your claim on a “No Win, No Fee” basis and will also cover any disbursements incurred throughout your claim so that you have no upfront payments.