So you have been in a motor vehicle accident. Now what?

motor vehicle accident

My first concern when I have been in a car accident is to ensure that everone is ok.  I am not sure if it is as a result of flash backs from my years of working in personal injuries or an integraned personality trait.  But when the blood is pumping through my veins and my fit bit hits that elusive cardio burn heart rate all I can think of is others.  My second concern is then to get my shaking, adrenalin riddled hands to use a phone to call the police…because that’s what you do, right?

When I was a personal injury lawyer, one of the many first things I would discuss with a client was, did the police attend? and if not, had they reported the accident? That all changed from 1 January 2015 when the Queensland Police implemented a new system to reduce danger to road users and minimise traffic congestion, located here.  Police are no longer required to attend crash accidents unless the accident meets the criteria.

So what do you do if you are involved in a car accident?   

Is anyone trapped or injured? Yes, call 000

If no one is trapped or injured;

  • Are police needed to direct traffic or deal with hazards? or
  • Do any drivers appear affected by alcohol or drugs? or
  • Has anyone involved failed to exchange details?

Yes, call Policelink on 131 444.  No, Police do not need to attend the crash site.

If your vehicle does not need to be towed, exchange details and leave the crash site.  You are not required to report the crash to police, but you can report the crash if you would prefer.

If your vehicle does need to be towed, arrange the towing.  Exchange details and leave the crash site.  After leaving the crash site , report the crash to the police within 24 hours.

Reporting your crash to Policelink can be made either online, via smart phone app or calling 131444.  You will be provided with a “QP” number to provide to your insurer.

To report the accident you will need to provide the following information;

  • Date and time of crash
  • Precise location of crash
  • Description of how the traffic crash occurred
  • Your personal details (required particulars) including your licence details
  • Your vehicle details (if applicable)
  • Details of other involved persons and vehicles – including witnesses (if known and it is a reportable crash)
  • Details on damage to vehicle and damaged property (if applicable)
  • Details on injury (if applicable)
  • Further crash features including site attributes (e.g. speed limit, number of lanes), site conditions (e.g. Traffic control, lighting) and contributing circumstances if applicable.

There are many more what if’s to a situation and you should be aware that even if you are not required to report the crash, you still can, however, your traffic crash may not be investigated.  Insurers may also require even further information than what is listed above (however, remember their request should be reasonable).

While it doesn’t mention anything regarding evidence gathering, I always (when safe to do so) take photographs of the area and obtain as much information/evidence as possible regarding the circumstances of the accident and any witnesses (out of habit!).

If you are having difficulties with your insurer, you may need to seek legal advice as to the terms and conditions of your policy, and/or speak with the Financial Services Ombudsman.

Did you exchange details but the at fault party will not pay and/or does not have insurance?

If you have comprehensive car insurance you can make a claim on your policy and your Insurer will liaise directly with the at fault party to recover the costs of the damage.

If the at fault party is not agreeable to paying the damage caused to your vehicle by their negligence (and you don’t have Insurance) then you should seek legal advice.  You must make a claim for property damage within six years from the accident date.  However, any action should be considered ASAP while the evidence in fresh.

Legal Aid Queensland have a fairly comprehensive booklet with further information, which is located here.

Did you suffer from a personal injury?

If you are injured in a motor vehicle accident due to the negligence of another person, you should seek legal advice as soon as possible.  Strict time limits apply for commencing a CTP claim.  The pre-court procedure requires you to provide a Notice of Accidnet Claim Form and CTP Medical Certificate to the CTP Insurer within 1 month of obtaining legal advice or within 9 months of the date of the accident (whichever comes first).  In addition court proceedings must be commenced within 3 years from the date of the accident or you claim can be statute barred.

Where the vehicle which caused the accident (and your subsequent injury) was unregistered or unidentificable, the Nominal Defendant is the “Insurer” due to there being no CTP insurance.  The Notice of Accident Claim Form must be served on the ‘Nominal Defendant’ within 9 months of accident, irrespective of the 3 year limitation period or your claim will be barred.  You should seek legal advice as a matter of urgency.

If you were injured and the accident was your fault, you may be able to claim Drivers Insurance if it is attached to your Insurance.

From 1 July 2016, Queensland has  implemented the National Injury Insurance Scheme, which provides insurance for catastrophic motor vehicle injuries (no fault).  The application for this scheme must be made within 1 year of the date of the accident.

#Travel Safe!!!

With great technology comes great scammers… and some not so great aggressive scammers.

img_0782In these past few weeks I have been called a number of times on my business line by the solar rebate scammers and also threatened by the rather aggressive tax scammers (multiple times).  Returning from my lunch break the other day I received my second aggressive voice mail from a gentleman allegedly calling from the ATO threatening me with jail as they had “a petition….” from “the Queen….” for “tax evasion” and I was being “charges (sic) with offences.”  The voice mail was delivered in very poor english and he was very angry so it was difficult to understand the message.

My hotmail junk folder is littered with scams, potential malware and phishing emails.  I joked with my mum  years ago that I thought she was lying to me about our heritage.  According to my  junk email  I have a ridiculous number of family members overseas who are apparently passing away at a very rapid rate and leaving me with “much wealth.”  It appears that so far this year my alleged many relatives who live overseas are all in good health as I haven’t seen any inheritance emails come through…yet.

I feel very fortunate to have not sustained any financial loss as a result of scams. The number of scams and the financial impact that they have had in Australia alone is alarming. The 2016 Australian Competition and Consumer Commission (“ACCC”) published statistics (as of today’s date) is that there has been 108,348 scams reported and so far a loss of $54,847,503.00 just in Australia…for this year!

The top three scams for financial loss in 2016 are; dating and romance, investment schemes and upfront payment and advance fee frauds.  The top three reported scams are; phishing, upfront payment and advance fee frauds and identity theft.  The top three delivery methods of these scams are respectively; phone, internet and email.

The latest scam alerts from the ACCC include scammers posing as the Reserve Bank of Australia, travel scratchie scams and binary option scams.

In addition to the solar rebate and tax scam calls listed above, below are just a couple of examples of the scams I have received this year;

Alleged bank calling

I have found these callers to be well researched.  They call me on my mobile under a private number.  As a precaution I  don’t give out personal information over the phone as a general rule.  I ask for their name and contact details to call them back.  Generally at this point they hang up.  Some are a bit more hardcore and have tried to talk me around (without success).

If they have provided me with a name and number I then call my bank’s official number, not the one they gave me.  I may be somewhat paranoid, however I also call back on a different phone in case they have that tricky telephone system where they stay on the line and pretend to dial out.

Email scams

My ever popular hotmail junk mail has received emails from people purporting to be paypal, itunes, woolworths and bunnings.  Effectively, most of these types of emails are attempting to get the recipient to open links or attachments in order to provide them with either your personal details, bank account, user name and/or password information.

A bit of thought has generally gone into these scams with attention to detail in the fonts and logo’s, some even have the correct name and address.  A general give away of what I call the “the lazy email scammers”  is that their email is;

  • often written with poor english language in the content;  “We face a problem in the ratification of the real owner of the account . And for that you must follow the following steps :”
  • by hovering over the link in the email (without clicking!) you can often reveal a diversion to another website;
  • they have generic greetings, not user specific; and of course
  • amazing offers that are too good to be true.

Do not engage in contact! Delete, delete, delete!

There are so many different scams currently in circulation.  It’s disappointing, but unfortunately it has become a reality for those that use technology.  If in doubt about a situation, obtain advice from a professional regarding the potential scam.  The ACCC’s Scamwatch website provides guidance on protecting yourself from scams and where to get help.  They also provide updates on new scams (that they are aware of).  If you are the recipient of a scam, report it to Scamwatch so others can be made aware of the scam. Visit the ACCC’s Scamwatch website here.

This article provides brief general information and should not be construed as legal advice.  Should you have a legal question or situation, you should engage the services of a lawyer to provide you with advice specific to your circumstances.

The law is just so old and outdated! – Or is it?

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I have seen a number of posts on social media about how old and archaic some laws are, citing the title of the legislation with the year it was enacted as the example of how old it is.  Now this article is not a debate about if the law is right or wrong or even if it’s relevant to our current times.   Let’s be honest, everyone’s opinion is naturally different.  You would need a year off work, cartons of wine, lots of patience and buckets of coffee to really delve deep to consider the legal, moral and ethical considerations of our laws.  This article briefly addresses the myth regarding legislation and its title. Not everyone has had exposure to the law so it can be confusing if you don’t understand how law is enacted and later amended.

I follow a few bloggers online through social media.  Family Law is a discussion that comes up a lot on social media blogging and group pages. I often see comments about separation and discussion generally turns to the Family Law Act 1975 (Cth) (“FLA”) stating, “how can a law made in 1975 be applicable to our current times,” and “the law needs to change it was made in 1975,” just to name a few.

Myth v Fact. At the time of writing this article, the FLA has, since 1975, been amended no less than 79 times.  Now, not all of these are major amendments however, this law has been amended 79 times in 41 years.  Following these 79 amendments the title of the FLA has stayed the same with the year that the law was enacted, 1975.

As another example the Criminal Code 1899 (Qld) (“Code”).  The Code again delivers this same assumption “it’s super old.”  Hello!, The title says 1899!  However, again this law has been amended a number of time since its enactment.  One of the most recent at the time of writing this article is the insertion of a new section of the Code, s 315A regarding updated domestic violence laws made by the Criminal Law (Domestic Violence) Amendment Act 2016.

How is the legislation changed? By a range of people who have been voted into Parliament.  In brief, (as there really is a lot to changing Legislation);

  • The Queensland Parliament is made up of members of political parties (voted in).
  • A Bill is made (by a Minister) with a proposal for a new law or amendment and the Minister then seeks approval from cabinet.
  • If the cabinet approve, the Parliamentary Counsel prepares the Bill and its presented to the cabinet and members.
  • If approved, it is read into Parliament by the Minister (all members are provided with a copy).
  • The Bill is then read a second time (the minister talks about what the Bill intends to achieve). Discussion and debate takes place, sometimes changes are made.
  • The third reading then takes place, Parliament then votes.
  • If the Bill is voted in, it is sent to the Governor for royal assent. When assent is given the Bill becomes the law and it is then titled an Act of Parliament rather than a Bill.

So, using the Code above as an example the Criminal Law (Domestic Violence) Amendment Act 2016 was first a Bill before assent was given.  Following assent (at which time it becomes an “Act” and the law) the Code was then amended to include the new section 315A.  The date of the Code does not change; it remains at its original enactment date in 1899.

Hopefully this provides some insight into the title of our legislation and the myth that the law never changes.

For more information on this, the Queensland Government have released a handbook “The Queensland Legislation handbook” which provides some insight into this complex area of how Legislation is made in Queensland, located here.

Keep left unless overtaking at all times. Apparently not!

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I grew up in Victoria and from a very young age I was taught as a pedestrian to keep left when going up and down stairs/escalators and generally when walking on the footpath (unless overtaking).   For many years as a child I just assumed this was a law, in any event it was just how things were done where I grew up in Victoria.   It seemed logical, pedestrian traffic flowed, it just worked!

Naturally when I got my driver’s license in the 1990’s this was one of the main things that stuck with me.  Keep left unless overtaking.  Simple, I could easily transfer my pedestrian life rules to my driving career.   It is now so highly ingrained into me, that until now when I have actively thought about it, I have realised how wrong it feels to just drive along in the right lane and how I always keep to the left.  I have also realised that still to this day I naturally keep to the left in stairs, escalators, supermarket aisles and footpath’s and that a lot of people around me don’t.

I have lived as far north as Palm Cove and as far south as Gordonvale.  One thing I have noticed when driving in and out of town is the failure of people to keep left unless overtaking.  However, the highway north of Cairns involves a lot of roundabouts and turn off’s which understandably can pose difficulty for keeping left.  South side in my experience flows a lot smoother and there is more room to move.  However, as much as south side flows, this is highly dependent upon your time of travel, if you are travelling in peak hour that flow can quickly become a mess. It’s at this point, when the traffic is a mess where I start talking to myself about the lack of motor skills my fellow drivers have.  While I know it is not always possible to keep left, despite your best intentions,  I nevertheless take this time to have an internal dialogue with myself trying to work out why someone is travelling 60km an hour in the right hand lane of an 80km an hour roadway.  My mind boggles,  Are they doing this on purpose?, why would they do that? and how did they even get their licence in the first place?

I wanted to write this article about the road rules and how the law states that you need to keep left unless overtaking in order to get the word out and help the north and south bound traffic flow better (I know, #biggoals).  My vision was this article would go viral, all motorist would start keeping to the left unless overtaking, traffic as a result would just flow and all would be well in the world.  However, as a result of reviewing the Queensland Legislation, I am now deeply embarrassed about my internal judgy conversations with myself as it appears that my driving style (which I thought was a road rule for the last 18 years) of “keep left unless overtaking” is only applicable in certain circumstances.

In brief, the Transport Operations (Road Use Management—Road Rules) Regulation 2009  (Qld) states that when you drive on a multi-lane road where the speed limit is more than 80km/h (90km+), you must not travel in the far right lane (fines apply) unless you are:

  • overtaking
  • turning right
  • making a U-turn
  • avoiding an obstacle
  • entitled to drive in that lane because of an official traffic sign
  • driving in congested traffic.

In any event, if there is a sign saying “keep left unless overtaking” you must comply with the sign.

This means that, for years I have been incorrectly judging drivers in the 80km and below range for their driving skills as they were within their legal rights to be in that right lane or that far right lane despite the fact they were not overtaking (sorry!).  However, I take comfort in the fact that the few people I have told about this article were also of the same opinion as me, that the road rules are to keep left unless overtaking at all times.

Lesson to be learned.  Road rules should be reviewed periodically to keep up to date.  The current QLD road rules can be located here.

On a side note, I would be interested to hear if anyone could shed any light on their understanding of footpath and supermarket isle etiquette in FNQ? lefty/righty? Or centre?

 

What if Taylor Swift and Kanye West lived in Queensland. Could they legally record their conversation?

Telephone conversations and recording devices

These days I often hear and see on social media discussions regarding the recording of conversations.  More recently the alleged telephone conversation between Kanye West and Taylor Swift went viral. The first thing I thought of when I heard about this was, really? that’s the news? this was quickly followed by, “you can’t do that in Queensland.”

The federal legislation provides that it is illegal to record a telephone call with a device physically attached to the phone (mobile or landline) except where authorised  in specific circumstances (generally these are related to warrants etc).  (Telecommunications (interception) Act 1979 (Cth)).

Queensland law is not as strict as some of the other states and territories when it comes to the recording of other conversations.  In brief, Queensland law states;

  • You can legally record a telephone conversation with an external device provided you are a person who is a party to the conversation;
  • You can legally record a face to face conversation if you are a party to the conversation;
  • It is illegal to record a conversation (whether by telephone or face to face) if you are not a party to that conversation.  (Invasion of Privacy Act 1971 (Qld))

However, if you are recording conversations, with a view to use them as evidence, then you should obtain legal advice as the law differs on the admissibility of recordings in the different types of legal actions.  If you do lawfully record a conversation then you should also be aware that the publication or communication of that private conversation is prohibited in all jurisdictions.

So, if this alleged incident involving Kanye and Taylor occurred in Queensland;

  • The device recording the alleged conversation could not be attached to a phone being used by Kanye or Taylor;
  • The device recording the alleged conversation must have been recorded by either Kanye or Taylor not a third person (this si because only Kanye and Taylor are a “party” to the conversation) ; and
  • Both Kanye and Taylor would be prohibited from publication or communication of the recording (i.e they cannot release the recording  to the media (or anyone else)).

However, before you run off and start recording conversations you are a part of, you should consider the purpose of a recording and if you legally can record the conversation.  If it is for evidence, then you should seek legal advice about your circumstances for seeking the recording, the manner of the recording, the admissibility of the recording and the impact (good or bad) the recording could have on your case, as despite contrary belief, not all recordings are looked upon favourably by a Court.

For further general information relating to current laws about recording telephone conversations, see the Australian Information Commission https://www.oaic.gov.au/about-us/ and the Queensland Information Commissioner  https://www.oic.qld.gov.au/

Please also remember that these articles are providing brief general information and should not be construed as legal advice.  Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the current law specific to your circumstances.