Injury and Compensation Law

Each claim type has a specific type of insurer. For example:

In motor vehicle accident claims, the insurer is the nominated CTP insurer of the “at fault” vehicle (Suncorp, RACQ, ALLIANZ, AAMI, NRMA, QBE). If a vehicle is unregistered or unknown (for example in a hit and run case), the Nominal Defendant is the insurer. In workplace accidents, the insurer is usually WorkCover Queensland. However, there are many cases where employers are large enough that they choose to self insurer, in which case the employer is also the insurer, such as Queensland Rail, Brisbane City Council and
Coles Group Limited etc.

Yes.

Any passenger who sustains an injury in a motor vehicle accident is eligible to submit a claim upon the “at fault” vehicles CTP insurer.

Usually claims take between 12 and 18 months from start to finish.

The basis for this time gap is due to an injured person becoming “stable and stationary”.
That means that a person’s injuries are not going to get any better or any worse, with or without treatment, in the near future. Many doctors consider that they are unable to assess whether a person is “stable or stationary” until at least 6 months post accident and usually 9 months.

Once a person is stable and stationary, the Quantum (the amount of money a person is entitled to) of a claim is able to be assessed.

Once a person is stable, your lawyer will be in a position to assess your claim and provide you an advice on Quantum. This is usually the time when negotiations are able to be entered into and a plan for the resolution of a claim can be mapped out.

Generally between $25,000 and $45,000 in legal fees for most common law claims.
As well as those sums there are usually further costs outlaid towards a claim for doctors reports or barristers fees. Between $7,000 and $10,000 in legal fees for Superannuation, TPD, income protection and sexual assault claims. Medical Negligence claims are usually the most expensive given the requirements in Queensland to obtain a significant amount of medical expert evidence to prove that a treatment provider was in fact negligent and as such they often exceed $65,000 in legal fees.

However, there is a wide range of factors that can cause a claim to become cheaper or more expensive. Such factors include the number of injuries that a person sustains and whether each injury requires a specialist assessment, whether the person has a sophisticated work structure (e.g. self employed directors with companies and trusts), whether the person is retired or is a child, whether liability (who is “at fault”) is in dispute and whether the claim requires litigating or early resolution.

Common law claims have a number of “Heads of Damages” that are capable of being recovered depending on the type of claim being pursued.
Generally, each claim will aim to recover the following:

General Damages or Pain and Suffering – this sum of money is calculated by
having a medical specialist assess each of the injuries suffered and who provides a
“whole person impairment” percentage to each of the injuries.

In Queensland the law provides an assessing tool called the AMA5 guidelines or GEPI,
that doctors use to determine the extent of any impairment or pain suffered by a
claimant.
Each claim type then has a scale to determine the amount of money that a person is
eligible to receive based on the degree of their total impairment. See CLR, Schedule 2.

Past and Future Economic Loss – the past loss is calculated based on the time off work or income lost since the date of an accident until a claim resolves. A claimant will be able to recover any interest or superannuation outstanding on this sum of money. The future loss is calculated based on the claimant’s likely loss of capacity to work between the end of a claim and the estimated time that the claimant may retire (usually age 65). This sum is calculated using a discounting table on the basis that a person is recovering a sum of money that they may lose in 20 years time, but they receive at the end of the claim. Loss of future superannuation is also capable of being recovered. Importantly, claims in Queensland do not attract any tax upon settlement, and as such, Only net income or income after tax is used to calculate a person’s economic loss.

Special damages (past and future) – also known as out of pocket expenses and includes any medical treatment costs, physiotherapy, travel costs or paid assistance during the claims process as well as an estimated sum that the claimant may incur in the future and for the remainder of his or her life. Any costs incurred that were reasonable and necessary are usually claimable.

Statutory Refunds – many claimants who have entitlements to compensation often receive benefits from government departments (Medicare, Centrelink, WorkCover) during the pre litigation process. These funds are claimed as part of a persons compensation claim and are paid back to the government department in full at the end of a claim.

Gratuitous Care (past and future) – this sum is only capable of being recovered in a few instance in motor vehicle accident claims, public liability / slip and fall cases and medical negligence cases. This head off damage has been abolished for workers compensation claims in Queensland. For the few cases, where an injured person receives care from a friend or family member due to being unable to perform a specific task (cleaning, cooking, driving etc) themselves, and where the care is provided for at least 6 hours a week for a minimum of 6 months, a sum of money is able to be claimed for receiving the said care. Once the threshold is met, a claimant is eligible to claim care in the past and in the future
on a needs basis.

Dependency Claims – completely separate to the above heads of damages, where a person dies as a result of an accident leaving dependant children or family members, those dependants may claim the lost services that they were provided by the loved one as well as the loss of income that the loved one would have spent on each dependent.

For Workplace Accidents

If you were a worker and sustained an injury during work hours, you will be eligible to lodge a statutory compensation claim against WorkCover Queensland within 6 months from the date of the accident or injury. You will not be required to prove fault for this accident.
However, at the end of your claim period (and when your injuries have settled), WorkCover will cease your entitlements and will offer you a lump sum payment called a “Notice of Assessment”.

You will need to make a decision whether to accept the offer or pursue a common law claim for damages (see “How is Compensation Calculated?” above for details about what can be claimed). Generally, you are not able to do both (although there are a few exceptions).

In Queensland, there is a “fault” based system for most common law injury claims. As such, a person intending to pursue a workplace common law claim must be able to prove that the employer did something or failed to do something which caused their injury. Usually the worker must show that their employer failed to implement a safe system of work or failed to provide appropriate supervision or direction in the performance of their duties which led to the accident. If a claimant can describe the circumstances surrounding how the accident occurred and what caused it, an advice may be given regarding the prospects of whether a claimant may be successful in any claim.

For Motor Vehicle Accidents

If you suffer an injury in a motor vehicle accident and you did not cause or contribute to the accident, then you likely have very good prospects of having a successful claim. However, it is still essential that the claimant prove that the accident was caused by another person’s fault, such as the other driver was speeding or ran a red light or failed to give way.

For Medical Negligence Cases

Possibly the most difficult area of law to prove a case on liability. In Queensland, injury claims against health care providers (doctors, hospitals, medical clinics, nurses etc) are governed by the Personal Injuries Proceedings Act 2002 (“PIPA”). Section 9A of the PIPA requires that an initial notice is provided to the treatment provider within 9 months from the date of an accident or injury outlining the allegations of medical negligence.

From that point, the treatment provider is obligated to provide a copy of all the medical records relating to the treatment complained of. Within 12 months from receipt of those records, a claimant bears the onus of seeking a specialist report that expressly provides that “the treatment provider acted below the standard of care required of them and as a result, the claimant sustained an injury”.

For many years, this has been a difficult task for many legal practitioners sourcing the requisite (threshold) report from an appropriately qualified expert. No claim in Queensland may be pursued without the above mentioned report. As such, it is critical that legal advice is obtained as early as possible post accident in order that appropriate records may be obtained, witness statements may be furnished and a detailed advice on liability and prospects may be given to a claimant. The longer a legal practitioner has to make enquiries with medical specialists regarding the details of a claim, the better the chances the claim will be prepared by the right supporting specialist and thereby optimising the chances of a successful claim.

For Superannuation TPD/IP claims

These claims are entirely based on the contract that exists between the superfund and the insurer who agrees to pay you a TPD or income protection payment (usually paid to your superfund) when you become unable to work because of an injury, illness or condition.
Importantly, the decision is usually based on a medical opinion that supports the likelihood that you will be unable to work in the short term (IP) or long term (TPD) as a result of your injury, illness or condition. A thorough investigation however will assist in supporting a claim for IP and TPD where many contracts are written in a way that supports the insurer and not the claimant.

Usually, in both workplace accidents and motor vehicle accidents, the pre litigation processes provide for the upfront payment towards an injured persons reasonable rehabilitation and treatment, including physiotherapy attendances.
In other claim areas, these costs are recoverable as special damages but usually at the end of a claim as part of a lump sum settlement.

There are always risks in any court process.

However, due to our no win no fee policy, unless a claimant is successful at the end of a claim, they will not be liable to pay any legal fees.
Moreover, our client agreements comply with the Legal Profession Act and as such, we detail how our legal fees will be reduced at the end of a claim in circumstances where any sum awarded to you is unable to pay your legal fees as well as provide you with a majority of the settlement.

We guarantee that you walk away with the majority of the settlement funds.

One other risk

If you proceed to Court and receive less money than an insurer offers you during the pre litigation process, there is a risk that you may be liable to pay a portion of the insurer’s legal fees. As such, it it’s imperative that legal advice is obtained prior to any negotiations or formal offers are made under the relevant pre-litigation regimes.