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The Personal Injury Claim System
Who can claim?
If you are injured as a result of the fault or negligence of another person and that person owed you a duty of care, you are generally entitled to compensation for any resulting injury . This is known as the common law of negligence. Similar rights arise if your injury is caused by breach of contract or statutory duty on the part of the person causing the injury.
If a person is killed through negligence, breach of contract or breach of statutory duty then a dependent husband, wife or child (including de facto spouses and step children) of the deceased, may also have a claim to the extent of the loss of financial support which the deceased would have provided during his or her lifetime.
See also: Death claims
An unborn child is entitled to make a claim after its birth if the child suffers an injury in an accident caused by negligence, breach of contract or breach of statutory duty which occurs before birth.
A bystander (and in some cases, others) can sometimes claim for any psychological injury they suffer as a result of witnessing a calamity caused by negligence, breach of contract or breach of statutory duty or the aftermath of the calamity
The spouse of an injured person can claim if he or she suffers a loss of "society and companionship" (including any lessening of sexual relationship) as a result of an injury to his or her wife or husband.
See also: Loss of consortium
In each of the above circumstances, the injured person is entitled to fair compensation to the extent of his or her injury in accordance with common law principles.
If prior to the accident you were earning income via a company, then any losses the company suffers as a consequence of your inability to work may be recoverable. These losses may not be recoverable by you but rather by the company.
What is the Common Law?
The common law is the articulation in law of the expectations of the community concerning the interaction of individuals among one another. It develops as community expectations develop. It is distinct from other types of law, eg statute law (created by legislation). Unlike government, it is independent of influence from well-resourced lobby groups and powerful business interests.
That branch of common law, which pertains to injuries, is the law of torts. A tort is a civil wrong arising out of a breach of duty, whether intentional or not.
Negligence is a species of tort which was articulated in the "neighbour principle" as follows:
You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
This statement has been adopted throughout most of the English-speaking world including Canada, Australia and other commonwealth nations.
This legal duty to one's neighbour is nothing more than what ordinary Australians would expect or consider reasonable.
The tort system not only obtains fair compensation for the injured, but also acts as a deterrent to prevent injuries. The healthy fear of being sued for unacceptable conduct is a realistic and valuable tool in injury prevention.
In recent years governments have been persuaded by business to restrict or eliminate many of the fundamental rights of Queenslanders. This has been done, for example, to keep insurance premiums low for employers. It means, in all cases, that consumers' right to fair compensation is severely restricted and that those who cause injury have been protected from the cost of the damaged they cause.
Statutory Provisions
In recent years, a variety of laws have come into force to change the common law:
WorkCover Qld Act - this law regulates the liability of employers towards on-the-job injuries to employees. It imposes strict time limits and mandatory pre-court procedures.
Motor Accident Insurance Act. |
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Impose strict time limits for lodging a Notice of Claim. |
Personal Injuries Proceedings Act 2002. |
Require the completion of pre-Court procedures, including mandatory mediation, before a lawsuit can be started. |
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Civil Liability Act 2003. |
Protect the at-fault party from paying the victim's legal costs of making a claim. |
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These laws apply to all consumer injury compensation claims other than WorkCover and a few other injury situations. |
Protect the at-fault party from full accountability for the damage caused to the victim. |
Both the Personal Injuries Proceedings Act and the Civil Liability Act were introduced as a result of the Queensland goverment's capitulation to a ruthless campaign by Insurance Companies and big business following the HIH Insurance collapse.
This hasty and ill-considered legislation means:
- Insurance company profits have soared;
- Most (up to 80%) of consumer injury compensation claims have been eliminated;
- Reckless policy holders are given wide exemptions from accountability;
- Consumers' rights have been done away with permanently;
- Huge premium hikes remain unchecked;
- Victims injured through no fault of their own must in most cases meet own expenses and loss of income;
- Taxpayers to subsidise reckless behaviour through Medicare, Centrelink payments and Public Hospital treatment of innocent victims.
In August 2007, QBE posted an annualised profit of $1.84 billion on a wave of premium increases. Suncorp stunned with a jump in annual profit to a record $1.064 billion after-tax for the year to the end of June 2007 including $835 million pre-tax solely from insurance. IAG is also swimming in cash with an after-tax profit of over $552 million compared to $759 million for the 2006 year.
The aggregate of Australian insurance profits since the introduction of Civil Liability laws in 2002 has exceeded $15 billion.
Do you have a claim?
To succeed in a claim you must prove:
- You were owed a duty by the person who injured you;
- A breach of that duty, and;
- That the breach is the cause of the complained injury.
If you are injured you can only recover damages to the extent that another person or entity is at fault or has been negligent, or if there has been a breach of contract by another person or entity or if another person or entity has breached a statutory duty owed to you, causing you to be injured.
Since 2002, your claim must also be one that is permitted by the Civil Liability Act.
Another person may also have breached a statutory duty owed to you and this most commonly arises in breaches of the Trade Practices Act or Workplace Health and Safety Act.
If you cannot show any negligence, breach of contract or breach of statutory duty, you will not have a claim. Even if the injury was someone else's fault. You will not be able to successfully claim if the claim is one that is adversely affected by the Civil Liability Act.
An "accident" for which no one was at fault and any injury caused by yourself or an act of God generally cannot result in damages.
Whether or not any particular duty has been breached depends on the particular facts of any given situation. Courts examine the facts and apply tests of reasonableness. They will also apply precedent from previously decided cases.
Remember that compensation is awarded because of an injury, not just because someone was negligent. It is always essential to prove that the alleged negligence is the cause of the particular complained injury.
Is your claim worthwhile?
Generally the following claims are not worthwhile for a lawsuit:
- Trivial injuries;
- Where there is no insurer or the party at fault does not demonstrate significant assets against which a judgment can be enforced.
Defences
A person may have a defence to your claim which will preclude you being awarded any damages or that party may allege contributory negligence against you, ie assert that your own actions led in part to your injuries.
Defences include, provocation, self defence and consent. If a defence to a claim for damages succeeds, then you may fail entirely or in the case of contributory negligence, your damages award may be reduced to the extent of your contributory negligence.
Time limits - claim notification
Strict time limits operate in personal injuries actions and you should ensure that you act quickly to ensure that your rights to claim damages for your personal injuries are not lost. If you fail to comply with time limitations prescribed by legislation, your right to claim damages will be lost.
For most types of injuries, injury notification and pre-court procedures must be complied with at much earlier time intervals. For most claims, other than WorkCover and Motor Accidents, you must supply to insurer of the at-fault party, a Notice of Accident within 1 month after the day the claimant first instructs a law practice to act to seek damages for the personal injury and the person against whom the proceeding is proposed to be started is identified or 9 months from the date of injury (or first appearance of symptoms) whichever date occurs first. If you do not supply the Notice of Accident within 9 months you must give a reason for that delay to the insurer.
Special rules (and shorter time limits) apply for motor accidents.
Different rules apply for time limits pertaining to children and persons under a legal incapacity (e.g. unsound mind).
See also: Motor accidents | Public liability | Medical malpractice
In a claim against your employer, the limitation period is also 3 years, but the WorkCover Queensland Act prescribes onerous steps which much be undertaken prior to proceeding with your claim and those steps can take up to two years.
See also: Workplace injuries
Time limits - commencing lawsuit
In addition to the time limits that apply to claim notification, an injured person must generally commence his or her lawsuit within 3 years of the date of the accident.
You can only commence a claim in court outside the 3 year period if you can prove to the satisfaction of the court that "a material fact of a decisive nature" only became known to you outside the 3 year period. You must obtain the court's leave to institute proceedings and institute those proceedings within 1 year of the material fact of a decisive nature coming into your knowledge. The court will also consider matters such as the reasons for the delay, prejudice to the proposed defendant and whether or not the claim you have is sufficiently strong. Extensions of time are difficult to obtain and require much of the legal investigation which would otherwise be deferred until a later stage of the proceedings to be undertaken at the outset.
For actions relating to defective products under the Trade Practices Act, the 3 year limit runs from the date you became aware of (or ought reasonably have become aware of) the injury, the defect or the identity of the manufacturer. A further time limit of 10 years from the date of supply of the defective goods applies.
Some types of aircraft accident claims have a 2 year time limit for bringing a claim.
The final exception to the usual 3 year rule is a claim by an infant or a person under a legal incapacity (eg unsound mind). An infant is someone under the age of 18 years. If a person is injured when they are under 18, then the 3 year period will run from their 18th birthday. For persons under a legal incapacity, time periods do not apply for the duration of incapacity.
If you do not file proceedings in court before the expiration of the limitation period, your claim is statute barred meaning you are prevented from bringing a claim entirely.
The law of "limitations" is itself complex and usually something about which you will often need to seek specific advice.
What evidence do you need to keep and collect?
From the date of your accident, it is important to:
- Make notes of your recollection of all events relevant to the accident.
- Record names and addresses of witnesses.
- Take photos of the place where you were injured. A picture tells a thousand words and can make explanations of how an event occurred much easier for us to follow. Sketches are also helpful.
- Take photos of any product, equipment or object that injured you or of the damaged vehicle if you were in a car accident.
- Take photos of your injuries.
- Keep any defective product which caused an injury. These are sometimes needed for scientific examination to determine defects.
- Collect contractual records. For sporting injuries, this includes club membership application forms and sign-on forms. For injuries in a car park or theatre this includes the entry ticket.
- Make a list of visits to doctors, physiotherapists, chiropractors etc and distances travelled to and from treatment.
- Keep all invoices and receipts for medical, chemist etc expenses and a list of all of these detailing date of expense, particulars and amount.
- Record details of assistance provided by friends and family members. Start a schedule of the assistance provided, who provides it and the time spent.
- Keep details of your absences from work caused by the injury.
- Collect documents showing your loss of earnings and earning capacity including wage slips, group certificates, income tax returns (for 6 years prior to the accident and each year after), references and resumes.
- If you will lose income in the future as a result of the injury, make a list of your past employment history, including particulars of average nett weekly earnings, periods employed and capacity employed.
What is included in your claim?
You are entitled to claim damages for the following items that are proved to flow from the negligence of the party at fault:
General Damages - damages for pain and suffering and loss of enjoyment of life.
General damages compensate you for the pain and suffering you have endured and will endure in the future as a result of your injuries, any permanent disability you are likely to suffer and the consequences it will have upon your capacity to enjoy life in the future and undertake the activities you were able to perform prior to the accident. In assessing a likely award for general damages, reference is made to comparable verdicts for similar injuries in Queensland courts.
Persons with the most serious injuries eg quadriplegia, are awarded around $150,000.00 for their general damages.
Special Damages
- Expenses paid or incurred by you
Special damages are the out of pocket expenses incurred by you as a consequence of the injuries. These include expenses which you have paid for or incurred but not yet paid for. Special damages include the cost of visits to medical practitioners, physiotherapists etc, the purchase of pain killers (whether prescribed or purchased over the counter eg Panadol, Panadeine etc), bandages, supports, liniment etc.
- Expenses paid by others
The amounts required to be paid back to Medicare, Comcare, WorkCover, DVA, public hospitals and private health funds (See: Refunds and preclusions ↓) are also part of your expenses.
Past economic loss
If you are unable to work for a period of time as a consequence of the injuries or you are required to take periods of time off work for various medical and rehabilitative treatment and you lose income as a result, you are entitled to claim this lost income.
If at the time of the accident you were not working but the injuries prevented you from looking for work or from accepting some types of work or meant that you had to turn down job opportunities you are entitled to be compensated for potential loss of income. These are often difficult claims to assess.
For self employed people, the calculation of your loss will probably require the assistance of a forensic accountant.
Impairment of earning capacity (future economic loss)
You are entitled to be compensated for any future economic loss you may incur as a consequence of your injuries. The process of calculating future economic loss is a complex one involving an assessment of the medical evidence, the extent to which your future capacity to work is likely to be affected by your injuries, reference to your past work history and the use of actuarial tables.
If your injuries have resulted in your suffering a permanent disability this may result in your suffering loss of wages in the future. Any claim for loss of any superannuation benefits as a result of your inability to work in the future can also be claimed.
For self employed people, the calculation of your loss will probably require the professional assistance of a forensic accountant.
Domestic Assistance (paid and unpaid)
Domestic assistance you receive from friends, family members etc following an accident is compensible even though you do not pay for it. Any such claim will be limited to those types of activities which, as a consequence of the injuries, you are unable to perform. You will therefore need to keep detailed records of the assistance from friends and family members in:
- Driving you to and from medical appointments;
- Assisting you in day to day activities around the house and garden;
- Assistance in activities such as going shopping etc;
- Assistance in matters of personal hygiene which you were unable to attend to yourself.
Insurers and some judges have considerable skepticism towards this type of claim and the periods for which it is alleged the assistance was needed and actually provided.
Future domestic assistance and future expenses
If you are left with a permanent disability as a result of your injuries, and as a consequence you are restricted in the domestic activities you are able to undertake, you are entitled to claim for future domestic assistance on the basis outlined above.
You are also entitled to claim for future expenses such as ongoing medication, further surgery, further physiotherapy, purchase of domestic or occupational aids, modifications to home design or construction etc.
Medical Investigation
We will investigate you medical condition and resulting disability. The extent of the injury determines the amount of damages.
- This involves obtaining all medical records including those of prior conditions and usually reports from your treating doctors.
- We will need to obtain specialist opinion to establish extent of injury and loss of earning capacity. This will usually require a medical examination in each case.
The types of reports that may be required include:
Orthopaedic - bones, soft tissue and trauma
Neurologist - soft tissue/neurological
Psychiatrist - post traumatic stress disorder
Psychologist - psychological injury and also for vocational assessment
Occupational Therapist - to measure functional incapacity and recommend workplace and domestic modification
Prosthodontist - dental injuries
Maxillo-Facial Surgeon - facial trauma
Neuropsychologist - head injury
Physician - internal injuries
Plastic Surgeon - scaring
- We will need quotations for future medical etc expenses and any necessary equipment or home/work modifications.
The at-fault party may also require you to be examined by a specialist for the preparation of a report. Usually they will need to nominate three specialists in each field so you may choose by which one you are prepared to be examined. This examination is at their expense. They must also pay your reasonable cost of attending the consultation and provide you a copy of the resulting report.
What may initially appear to be a straightforward injury may take months (and in some cases years) to stabilise. Sometimes simple injuries turn out to be a lot more complicated and serious than first thought. For example, when a person suffers a soft tissue injury it may take six months before a doctor can give an accurate opinion about what the long term future for the injured person will be.
Disclosure of documents
After the Notice of Claim has been lodged both you and the at-fault party must disclose all documents that are directly relevant to any of the allegations which are in issue. This duty to disclose:
- Relates to all documents that are either in your possession or under your control (this includes files etc held on your behalf by a lawyer, accountant etc);
- Is an ongoing obligation that continues until either the settlement or trial of the action. This means that if documents come to light as the proceedings progress they must then be immediately disclosed.
It is important for many reasons that your disclosure of documents be absolutely comprehensive. Your claim may be prejudiced and penalties imposed in the event of non-disclosure.
Investigation of fault
You must be able to prove that your injuries were negligently caused by the person against whom the claim is made. You will have to identify all relevant witnesses and provide their contact details. If an expert safety consultant is needed for expert evidence, we will discus this with you.
Certificate of Readiness
As a pre-requisite to the mandatory conference, in most cases, we must deliver a Certificate of Readiness certifying to the at-fault party that your case is completely ready for not only a compulsory conference but also for a trial in Court.
Can the claim be settled out of court?
Yes. After medical and income loss investigations are completed the various losses can be totalled as the basis of the formulation of your claim and an offer to the defendant's insurer.
Any settlement must make an allowance for all components of your loss. There must be some reasonably accurate forecast of all future losses and specialist medical reports to substantiate the extent of your injury and loss of earning capacity. We must be able to scope into the future to get a clear picture of how the injury will be affecting you up to twenty or more years after the accident. The settlement is final and "once and for all time".
Insurance companies do not pay any more than they absolutely have to and usually do not make serious offers until they know you are ready for a trial and are prepared to go through with it.
If the claim cannot be settled out of court, what happens next?
In Queensland there are 3 types of courts which determine claims for personal injuries.
The Magistrates Court hears claims ranging from $1 - $50,000 and such courts are overseen by Magistrates. The District Court hears claims between $50,000 - $250,000 and are overseen by District Court Judges. The Supreme Court of Queensland hears cases which have a monetary value of upwards from $250,000.
It may be difficult to ascertain precisely which court your claim should proceed in. Generally only the most seriously injured of people have their claims proceed in the Supreme Court and most of the claims in that Court are claims where people are unable to work for the rest of their life or have suffered serious injury.
By far the court with the greatest amount of personal injuries cases is the District Court and most claims for personal injuries are instituted in that court.
Proceedings in Queensland courts are commenced by the filing of a claim and statement of claim.
If prior to the accident you were earning income via a company, then any losses the company suffers as a consequence of your inability to work may be recoverable. These losses may not be recoverable by you but rather by the company.
If an infant commences a claim, then a litigation guardian (usually a parent) must be appointed to "act for" that infant.
The Claim and Statement of Claim must include a number of specific matters such as why the Defendant is liable and full particulars of the damages you claim.
Once the claim and statement of claim are filed, they are served on each of the defendants who pass them on to their insurer whose solicitors will file and serve a notice of intention to defend and defence. This should be done within 28 days.
Mediation
The next step in your claim is to arrange a mandatory between all parties to try to settle the claim. Offers to settle the claim are usually exchanged. We will explain to you the effect of each of the offers.
Often an insurer uses delay tactics eg asking for various information that we have already supplied to them be confirmed by way of Statutory Declaration or you attend a further medical examination.
If the case doesn't settle at mediation - and it won't unless the insurer is prepare to make a reasonable offer - your case will need to be filed in Court.
The path to trial
Once all pre-court procedures have been completed and if your claim has not been settled the case is filed in court. The documents that initiate the court process are the Claim and Statement of Claim.
The next step is the reply i.e. the response to the defendants defence challenging any allegations made by them.
A statement of loss and damage must then be served. This must list your expenses claim, particulars of employment history, loss of past and future income, your claim for assistance and also list all medical reports, records and income documents.
Either party is entitled to request further and better particulars of the other parity's allegations in their statement of claim or defence. This ensures that each allegation is fully particularised.
Each of the parties must disclose all documents which are relevant to the court proceedings. Certain documents are privileged, such as communications between solicitor and client. Disclosure is very important and all documents which may appear to be relevant in any way whatsoever must be made available to your solicitors at the earliest possible date. These include medical reports, wage records, invoices for expenses, tax returns, business papers etc.
The next step is interrogatories. These are a series of questions in writing to be answered on oath by the other party. Leave of the court must be obtained prior to the delivery of interrogatories. You may be required therefore to answer interrogatories both as to how the accident occurred and the extent of your loss.
Trial
The case can be entered for trial by the lawyer acting for either party. Prior to a trial, both parties must sign a request for trial date and the plaintiff must file this in the court registry a party may refuse to sign the request if all steps have not yet been finalised. In the Supreme and District Courts your claim will then appear on the trial list and work its way up the list to be allocated a trial date at a "callover". This occurs usually monthly and is a court session which lawyers attend and which is devoted solely to the allocation of hearing dates.
The trial dates will usually be several months away. It depends on how long the trial is expected to take and the court workload. It may also depend on the availability of the expert witnesses such as medical specialists.
Your claim will come before a single judge without a jury (or in the case of the Magistrates Court, a Magistrate).
It is often the case that during the pre-trial period the defendant will make an offer to settle.
The effect of the offer is that if a judge at trial awards you the same amount or less than that which the defendant has offered you, you must pay some of the defendants costs incurred beyond the time the offer is made ie including the trial costs which will usually be substantial.
At the trial, you will be required to give evidence and your claim for each head of damage must be substantiated. Liability witnesses and medical witnesses must attend, give evidence and be available for cross examination.
Once all of the evidence has been received and legal argument concluded, the judge will usually reserve his decision and then after several days or weeks, hand down his decision awarding a sum of damages. Alternatively, if the claim fails, it will be dismissed. Both parties have a right to appeal the decision to the court of appeal. This must be done within 28 days of judgment.
Before releasing any monies to you, the defendant will require you to sign a discharge, which has the effect of preventing any further lawsuit on the same subject matter. They will also need clearances from Medicare (HIC), WorkCover, Centrelink etc.
Refunds and preclusions
- Medicare/10% Advance Payment
Medicare is entitled to be refunded the amounts paid by it for your accident related medical treatment.
When settling your claim that the party at fault or its insurer cannot pay you damages unless there is a current Medicare Notice of Charge. Each notice remains current for a period of only three months from the date it is issued.
Often the insurer gives notice of its intention to pay 10% of the total settlement amount (ie if the action settles for $10,000.00 then the amount is $1,000.00) to the HIC. The HIC then have three months to determine what amount if any they are owed and the balance (ie the 10% advance payment less the cost to Medicare of accident related treatment) is then refunded back to you. The advantage of the 10% Advance Payment system is that 90% of the settlement monies can be released to you (subject to the payment of any other statutory charges eg Centrelink, WorkCover etc) relatively early after the trial or settlement.
Medicare is also entitled to preclude you from benefits for a particular period following the settlement.
- Centrelink refund
Whenever there is a claim for loss of income, either in the past or in the future Centrelink may require a refund of all or part of any benefits paid to you since the date of the accident. Benefits which are repayable include Newstart, Jobstart, Disability Support Pension, Sickness Benefit, Supporting Parent Benefit and, in certain circumstances, the aged Pension. The refund to Centrelink is calculated by use of a complex formula.
The insurer is required to pay any Centrelink refund before paying you any of the damages. It is also important to remember that, depending upon the amount for which you settle your claim, you may be precluded into the future from receiving social security benefits. This is referred to as the "preclusion period". Centrelink will advise you of the anticipated preclusion period when providing you with the estimate of the refund which is owing.
A similar repayment scheme applies to any benefits paid by the Department of Veteransÿ Affairs.
Centrelink and DVA are entitled to and do preclude you from receiving future benefits for a specified period following the settlement of your claim, depending on the amount recovered.
- WorkCover Queensland
If you were injured either on your way to or from work or in the course of a journey connected with your work and you have received benefits from WorkCover Queensland, then you will be required to repay all monies paid by them including loss of wages and medical and rehabilitation expenses as a consequence of the injuries.
A similar repayment scheme operates in respect of Commonwealth employees who have received benefits under the Comcare scheme.
- Private Health Funds
If a fund has paid any accident related medical expenses they are entitled to a refund of the amount paid on your behalf.
- Public Hospitals
Public hospitals are entitled to be paid for hospital treatment as a result of most accidents (but not motor accidents where a CTP insurer is involved) where damages are received. If you do not repay them from the damages they can recover the amount from you as a debt.
Legal Costs
Subject to evaluation of your claim we will often agree to act on a risk sharing, capped fees or guaranteed fees basis. In each case we guarantee that your contribution to legal fees will not exceed an amount specified for any given outcome.
We will tell you before we start working on your case what your maximum contribution to your total legal costs and fees will be. This way, you know from day one exactly where you stand. You will be able to make a judgment about whether your claim is worthwhile.
Lawyers are required to give to clients a notice specifying a number of things relating to the rights of a client, before they commence acting for a client called Important Notice to Client.
See 
Important Notice to Client.
Our standard client agreement on a no win no charge basis specifies the rate and other matters relevant to your claim.
See a sample Client Agreement.
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