Personal injury cases in Queensland (Gold Coast & Brisbane included) are subject to rules depending on their type. People can be injured at work, in a motor accident or away from home (eg in a shopping centre). We will look at each type of claim to answer the question, do I have a personal injury case in Queensland.
Work accident – Statutory claim
A worker injured at work (or on a journey to/from work) has a case for statutory compensation. This compensation covers a portion of their wages (around 80%), reasonable treatment costs and assistance to return to work.
The key criteria are “worker”, “injury” and connection to work.
A worker will include a volunteer, but excludes people associated with ownership of the employer, such as a director.
Injury must meet a medical diagnosis. For psychiatric injuries, additional criteria is that it cannot be caused by reasonable actions of the employer. This can be a significant hurdle to overcome.
Work – if you are injured on an unbroken journey to or from work you are also likely covered.
Exclusions – you cannot deliberately self-inflict the injury and you cannot be injured as a result of disobeying an employer directive.
The goal of a statutory compensation claim is to maximise your recovery by quick and effective treatment and have you back working asap. The sooner you return to work the better your overall recovery. However, your return to work may need to be managed with a suitable duties plan to ensure you do not re-injure yourself.
There is no fault assessment for a statutory claim.
At the end of the claim you may be entitled to a further payout for any permanent injury. You should not accept this payout without carefully considering a common law claim entitlement, as in most cases (under a 20% WRI – work related impairment) accepting the payout cancels your common law claim entitlement.
Common law claim
If you believe your employer is partly or wholly to blame for the cause of your event and injury, and you feel the statutory claim does not fully cover your losses, you should obtain legal advice about making a common law claim.
The basic entitlement rules are:
- You must lodge your claim within 3 years of the event and injury;
- You must have had a WorkCover statutory claim accepted, or be entitled to have one accepted;
- You must have your injuries assessed by WorkCover for a permanent impairment and then receive a Notice of Assessment; and
- You believe you will be successful in showing fault lies with your employer for causing your injuries.
As such claims are complex and can cost a significant amount in legal expenses, a common law claim should only be considered where you have good chances of success and have a viable claim on compensation to cover your risk and cost.
EG if you get a lump sum payout offer of $50,000, and legal advice is that you have a weak case worth say $100,000, this means you should carefully weigh up your options before rejecting this size offer. A common law claim can cost $20,000 – $40,000 just to get to the offer stage, and if WorkCover make a small offer, then you have to take Court action to progress your claim. Going all the way to trial will be a $100,000 legal costs burden, and your right to recover costs even if you win is not easy.
On the other hand, if you have a strong case worth the same money, then even a large lump sum offer would not compete with the likely outcome of a common law claim.
We strongly recommend you get legal advice from a specialist lawyer in this area.
CTP claims refer to Compulsory Third Party Insurance, paid for as part of your vehicle registration. This insurance is for personal injuries from motor accidents, and not for repair costs.
Who can claim?
A person who has been injured as a result of a motor accident can claim if they were not at fault and can show another driver was at fault.
Some insurance policies cover the at fault driver for catastrophic injuries, and these are no fault claims. These are not typical CTP claims and for more information contact us.
Claim benefits include:
- Reasonable treatment during the claim process
- This can include house and car modifications, surgery etc.
- At claim settlement cover for wages, pain and suffering and future needs.
Should I claim?
You should make a claim if you are genuinely injured and impacted with a need for ongoing treatment, and especially if affected at work.
A typical claim lasts 9 – 18 months and can cost $15,000 to $25,000, with some costs being covered by the insurer. Again, please obtain legal advice before accepting any offer from a CTP insurer (if you run the claim yourself) or wanting to know more about making a claim.
Do not make a claim if you have not been genuinely injured. People have been prosecuted for false claims.
Other types of claims include medical negligence and public liability claims. Public liability claims include dog bite incidents, slips in shops, assaults by police or security, product failure cases, food poisoning at restaurants or by-products, accidents at schools or kindys due to lack of supervision and many other events which occur away from your home.
Medical negligence claims are outside the scope of this brief article and you should consult a specialist in this area if you believe you want to make this type of claim.
Public liability claims run similarly to motor accident claims but the insurer does not pay for any treatment along the way. The claim is settled by a lump sum payment that includes past and future treatment needs, as well as other losses.
Should you make a public liability claim?
Things to weigh up:
- Can you show it was another person’s fault?
- Are they likely to be insured?
- Were you seriously injured and/or has your ability to work been impacted?
- Are you prepared for a claim process lasting 12 – 18 months?
Public liability claims can be very worthwhile where you have a strong claim on liability, an insurer behind the wrong doer and your injuries are severe and long lasting.
A claim which would be unlikely to succeed or where the injuries are quickly recovered from would not be recommended.
The key criteria are:
- Fault – you must be able to show the event was caused by a third party
- Insurance – does this third party have insurance cover
- Value – is your likely claim going to be of sufficient size to make it worth your time and effort to bring?
As with the other types of claim, if you believe you have a reasonable claim, seek legal advice.
If your case can be settled without going to court, this is usually best for everyone. To find out if alternative dispute resolution is appropriate for your case, book a consultation with an expert at Salerno Law. Contact one of our offices today to discuss any legal issues you may have.
By Peter Matus