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In any court action for damages for personal injury, a plaintiff (that is, the injured person), must prove that the defendant has been negligent. Drivers of motor vehicles owe a duty to take care to all fellow road users, their passengers and pedestrians. The fact that a driver has committed a breach of the Traffic Act or Regulations, does not necessarily mean they have been negligent. It is only one of the factors which must be considered. All the surrounding factors at the time of the accident must be considered. It is important to realise that an injured party must be able to establish negligence. Simply being injured in an accident, does not automatically result in an injured party being compensated.

 

Some of the more common breaches of the duty to take care are:

  • driving at a speed excessive in the circumstances;
  • failing to keep a proper lookout for other traffic and road users;
  • entering an intersection without regard for other traffic which may also be entering that intersection; and
  • driving the vehicle with insufficient control, for example, because of intoxication by alcohol or drugs or using a mobile phone.

The Motor Accidents (Liabilities and Compensations) Act 1973 (Tas) sets up a scheme of compulsory insurance to compensate persons injured or killed in motor vehicle accidents. The aim of the Act is to ensure that every vehicle being used on the roadway is insured. Registration (or renewal of registration) of a vehicle in Tasmania automatically includes compulsory third party insurance coverage. The Act provides penalties if an uninsured vehicle is driven on a public road, and an injured plaintiff can sue the owner of a vehicle in such a case even if they are not the driver, though it will usually be the driver who is sued.

A vehicle registered in another state is not uninsured for this purpose if it is being used for a visit to Tasmania. The equivalent Act in the owner's home state provides cover, and there are reciprocal arrangements between the states about this.

The accident must be reported to a police officer because failure to do so may relieve the Motor Accidents Insurance Board (MAIB) from liability unless the MAIB decides that such failure should be excused.

The Act enables a person injured by, say, a hit-run vehicle, to take action and be compensated for their injury even if the vehicle has not been identified, and the driver has not been located. An action can be taken directly against the MAIB. A person injured in a collision when struck by an unidentified vehicle, should immediately seek legal advice. A person injured by an unidentified vehicle must, to be successful in a claim for damages for personal injury, satisfy the court that reasonable steps have been taken to identify the vehicle.

A Notice of Intention to make a claim, together with a short statement of the grounds, must be given to the MAIB within three months of the date of the accident.

Any person who is injured in a motor vehicle accident in Tasmania can seek compensation by applying to the MAIB. If the other driver is at fault, the person and their passengers can also sue the other driver for extra compensation. This is known as ‘common law damages’. A lawyer will know if there is enough evidence for this type of case. In most cases, benefits will still be paid, even if the accident was the injured person’s fault. However, they will not receive benefits if:

  • The MAIB Premium had not been paid;
  • they were driving the motor vehicle under the influence of alcohol or drugs, and are convicted in court for this offence;
  • they are convicted of manslaughter, dangerous driving etc;
  • they were driving without a current licence (except in certain limited cases);
  • they were driving while their licence was suspended;
  • they are entitled to Compensation by any Commonwealth or interstate law;
  • they were taking part in a motor vehicle race;
  • they were using the motor vehicle to commit an offence of dishonesty or violence or terrorism;
  • their death or injury was intentional; or
  • The injury was caused by ionizing radiation.

After an accident, a person may be asked by the police to make a statement. The person should remember that anything they say or sign may be used in evidence against them. They are obliged by law to tell the police their name, address and age and the registered number of the vehicle. If they are not the owner of the vehicle, then they are obliged also to give the name and address of its registered owner. They are not obliged to provide any further information.

The plaintiff must still establish that the injury was a result of the other driver's negligence. Sometimes an injured party will find that, as well as having an action at common law for damages; they are also covered by Workers Compensation Insurance. 

When a person is injured in a motor vehicle accident in circumstances where workers compensation would be paid, the workers compensation insurer will pay workers compensation. The injured party cannot recover ‘no fault’ benefits from the MAIB, but can claim similar benefits under workers compensation and pursue a claim for common law damages against the negligent party.

Any payments made by the workers compensation insurance company will be refunded by the MAIB to the insurer, if a third party is found negligent at the end of the plaintiff's claim for damages. This is because these expenses will form part of an overall award of damages.

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