Injuries can be physical (eg a back injury or a shoulder injury) or psychological (eg depression or post traumatic stress) or both (eg you have an injury and you become depressed in dealing with the pain of the injury). If you have suffered an injury that was the fault of someone else, you may be eligible for compensation. You also may be eligible for compensation if a loved one suffered an injury that caused their death.
Personal injuries fall into four categories:
- Injuries from motor vehicle accidents;
- Injuries from a work accident or over a period of time brought on by your duties or the behaviour of co-workers;
- Injuries caused by a person committing a criminal offence (eg an assault); and
- Injuries which occur in public places, shops or other peoples premises, injuries resulting from medical treatment (public liability);
If another person or organisation can be found to have been “at fault” in causing your injury, you may be entitled to damages (money) for pain, suffering and loss of enjoyment of life, loss of wages and superannuation (both past losses and any expected losses in the future), out of pocket expenses (including medication and treatment), any future expenses you might incur. You also may be entitled to claim for assistance given to you by friends and family to do the things that you cannot do for yourself because of your injuries. This is called a “common law” damages claim. Whilst no amount of money can adequately compensate for some injuries, the damages can go towards easing the burden after someone has suffered an injury.
In all personal injury claims except criminal compensation, there is a “pre-court” procedure which must be completed before getting to the stage of “going to court”. The majority of compensation claims resolve during this “pre-court” procedure without having to go to court. The procedure was introduced by the Queensland Government mainly to avoid costly court proceedings and to settle claims in a timely manner.
In any claim for personal injury it is important to seek medical advice as soon as possible and have your injuries noted in your medical records at the earliest opportunity.
Motor Vehicle Accident Injuries
If you are injured in a motor vehicle accident and it was the fault of another driver, there are time limits that apply to making a claim. All vehicles registered in Queensland hold CTP (Compulsory Third Party) insurance. If the identity of the “at fault” driver is known and their vehicle was registered at the time of the accident, you must make your claim with their CTP insurer within nine months of the date of accident (or, if symptoms were not immediately apparent, within nine months from the onset of symptoms), or within one month of seeing a solicitor, whichever is the earliest date.
If the identity of the “at fault” driver is not known (if, for example it was a hit and run, or you were run off the road by another vehicle) or if the “at fault” vehicle is unregistered, you must make your claim with the Nominal Defendant within three months of the accident.
Prior to making a claim you must report the accident to the police and get a medical certificate (contained in the Notice of Accident Claim Form) from your doctor.
Most employers in Queensland are insured for injury to workers (workers’ compensation) by WorkCover Queensland. Some larger companies are self-insured for workers’ compensation. Prior to lodging a claim for damages, an injured worker must have an accepted “statutory claim” with WorkCover or the self-insurer. This is the process where an injured worker lodges an Application for Compensation and, once accepted, WorkCover (or the self-insurer) pays weekly benefits and/or medical expenses following an injury at work. If an injured worker makes an Application for Compensation which is rejected, they can apply to have this decision reviewed. If this happens, an injured worker should seek legal advice and/or visit the QComp website at www.qcomp.com.au for assistance in how to apply for a review.
At the conclusion of a “statutory” workers’ compensation claim, an injured worker may be made an offer of lump sum compensation for their injury. This is a relatively small sum of money that does not take into account all the things that can be claimed in a common law damages claim. It is extremely important to seek legal advice if such an offer is made, as acceptance of the offer might mean that the injured worker cannot make a common law damages claim.
A common law claim for damages must be made within three years of the date of injury or, if the injury occurred over a period of time, from the date the worker first commenced the duties that caused the injury or, if the injury was caused by the behaviour or conduct of a colleague, from the date that behaviour started.
Injuries caused by criminal conduct
Whether a person suffers a physical or psychological injury, victims of crime may be entitled to claim for criminal compensation. At the present time, victims of crime can claim where the offender is convicted of the offence (that caused the injury) or if the offender is not identified. At the present time there is a limit to an award of criminal compensation of $75,000.00 however, this and other issues relating to criminal compensation are currently being reviewed by the Queensland Government.
The time limits for lodging a claim for criminal compensation are three years from the date the offender was convicted, or, if the offender was not identified or has died since the offence, the time limit is three years from the date of the offence.
Public Liability Accidents
Public liability claims cover a wide range of circumstances. Public liability claims cover most personal injuries that are not due to a motor vehicle accident, an injury suffered at work or an injury for which an injured person is entitled to criminal compensation. This includes claims for medical negligence.
Public liability claims must be lodged within nine months of the accident or, if symptoms were not immediately apparent, within nine months of the onset of symptoms, or, within one month of seeing a solicitor, whichever is the earliest date.
If the injured person is a child, the time limit for lodging a claim is three years from their eighteenth birthday.
Although the time limits imposed in relation to making a claim are strict, there are circumstances where claims can be made outside those time limits. However, overcoming these strict time limits can be a costly process so it is important to seek legal advice at the earliest opportunity.
What should do if you are injured?
1. Seek medical attention.
2. Take photographs of the injury (if appropriate) or motor vehicle/accident scene, or machinery (if a work injury) etc. These will assist your lawyer or the insurer in understanding the circumstances and/or nature of your accident/injury.
3. Start keeping a diary recording:
a. Pain, suffering and the affect the injury is having on your life;
b. Medical treatment;
c. Any travelling you are required to do for treatment;
d. Assistance being given to you by family and friends to do the things you can’t due to your injury.
4. Start keeping your payslips as this will help your lawyer determine your loss of wages.
5. Seek legal advice as soon as possible (even if you are in hospital or house-bound, many lawyers will be happy to visit you to discuss your options).