The 5 Things You Must Do When Injured
To understand my tips (below) you need to first understand the back story.
I once had a client come to me (before I set-up Maelstrom Lawyers) two (2) years and eleven (11) months after their single vehicle motor vehicle accident. They did not report the accident to the police because their best friend was driving the vehicle. They told the hospital they had been assaulted whilst out in town to explain the badly broken bones. Because they didn’t want their friend to get into trouble. The at-fault car was borrowed off the friends’s ex-partner’s sibling but it was registered to one of the parents. Identifying (a) who the ex-partner was and then (b) what their contact details were was very difficult because the client hadn’t spoken to their friend in a while and their friend hadn’t spoken to their ex-partner for even longer. When we did eventually identify the family they provided limited responses.
We had just four (4) weeks to identify the vehicle, notify the insurer and bring an application to protect the claim because at three (3) years the client would lose all their rights to compensation.
We did all of the above. Within the timeframe and we somehow managed to protect the claim.
One (1) week after we protected the limitation date (and after the limitation date had expired) we received a letter from a second insurance company saying we had identified the wrong vehicle. That the three (3) years had expired and our client had no right to compensation.
The actual car involved in the accident was the same year, same make, same model, similar colour but completely different rego. And we chose the wrong one (we didn’t even contemplate there could be two identical cars!). We asked the second insurer to allow us to proceed with the claim despite the three (3) years expiring on the basis that it was impossible to know there would have been two identical cars.
The insurer said “no”. So we brought an application to bring the claim back to life arguing that a “material fact of a decisive character was not within our client’s means of knowledge” within the three (3) time limit. “Material fact” being the “identity of the car”.
The insurer opposed our application and we proceeded to court.
Long story short.
I was called to give evidence in the District Court, cross-examined by the insurer’s barrister and peppered with all manner of questions. Our argument technically failed because the identity of the car was within our client’s means of knowledge if the client had accurately recorded the registration details at the time of the accident. In this case there was one (1) letter wrong in the registration details which threw all our searches out.
We turned the argument on its head though. We said that our client had identified the owner of the vehicle, the correct registration was within their means of knowledge (not our client’s), we had identified their contact details, we had contacted them, they had not provided us with the full details, we were able to identify a vehicle that matched the description despite these obstacles and we argued that had they given us the correct details we would have protected the claim within the time limit because we had done so with the other vehicle.
We ultimately won the unwinnable. We then proceeded with the claim and it settled about six (6) to nine (9) months later.
I aged about ten (10) years in those four (4) weeks though.
So the following tips are for my personal benefit (or any other lawyer you seek advice from) – if you are ever injured, even if you don’t immediately want to bring a claim (because twelve (12) months down the track you may change your mind), make a proper record of the injury and the event that led to your injury:
1. Seek medical treatment from a doctor either your general practitioner or hospital as soon after the accident as you can – ideally straight away. Do not go to a chiropractor, naturopath, kinesiologist, osteopath or any other complementary health advisor. You may be referred to a physiotherapist, psychologist or other allied health or complementary health professional by your doctor at a later point but your first port of call is your doctor. And accurately record how you were injured.
2. Report your accident to the police (if you are involved in a motor vehicle accident), your employer (if you are injured at work or due to work), or complete an incident report or send an email detailing the time, date and location of your injury and a short description of what happened, how it happened and what your injuries were addressed to whom you consider to be responsible for your injuries – if you are not sure who to report the accident to seek legal advice.
3. Take photographs of the accident location using your smart phone because it will geo-locate where the photo was taken and it will help with the reconstruction of the accident scene. Take photos of any other relevant items that may have caused or contributed to your injuries. After you have taken the photos look at them and sequentially number them so first to appear is “A”, then “B” and so on. Then write a short description about each photo to help jog your memory at a later point in time. Brief dot points are fine.
4. Take photographs of your injuries and a keep a short description of what it is you have photographed. Again, brief dot points are fine.
5. If anybody witnessed your accident do your best to get their name, address and contact details (name and email is fine) – if they have a business card this is the quickest and easiest way to get their contact details.
Follow these super simple steps to ensure the details about your accident are accurately recorded. It took exceptional skill to keep the case (above) alive but it is best to follow these simple steps as a fail-safe because the difference between success and failure is often a very very fine line.
ILP Legal Practitioner Director
Level 13, 50 Cavill Avenue, Surfers Paradise 4217
T: 07 5635 4487 | F: 07 5635 4201 | M: 0405 25 23 24