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Injury Compensation Guide - [Part 1] Getting Started

Compensation Payout Guide

The Injury Compensation Guide is designed as a ready reference for those who are pursuing injury compensation arising out of an accident of various types and those who are considering or investigating the possibility of doing so. Your prospects of a successful injury compensation recovery depend on:-

  • the type of accident eg road accident, workplace injury, medical negligence, tourism and travel, aircraft accident, recreational accident or public liability event;
  • how, when and where; where the accident occurred;
  • the statutory and other defences available to a potentially at-fault party.

The damages payable to you as a result of your injury depend on

  • the extent of your injuries and in particular how they affect your income earning capacity;
  • your pre-accident health condition;
  • your age and occupation

Every compensation claim is unique. This guide takes you step-by-step through all injury types, the hurdles that must be cleared, procedural issues that pose a hazard and the elements of a resulting damages assessment. There are however limitations on the utility of the general advice that the Guide contains and there is no substitute to the considered assessment of liability, causation and damages that only an expert injury compensation lawyer can provide after carefully examining all the features of your particular injury circumstances.

The starting point: Negligence

Most injury compensation recoveries rely on the proof of negligence against an "at fault" party who is alleged to be responsible for or have contributed to, the victim's injuries and their financial losses that result.

The foundation of the modern law of negligence was articulated in 1932 in the House of Lords in the U.K  in the "snail in the bottle" case. In simple terms, it is the community expectation that one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure one's "neighbour".

In delivering the lead judgement, Lord Aitken - who was born in Brisbane - defined the person to whom such duty extended i.e. one's "neighbour" as being "someone so closely and directly affected by the act that one ought to have them in contemplation as being so affected when directing one's mind to the acts or omissions in question".

Injury compensation is also recoverable in some cases in the absence of negligence for example, where the injury is associated with the supply of goods and services, by resort to consumer protection legislation.

Fair compensation: Barriers to recovery

The law of negligence carries valuable rights that are available to be exercised by every citizen in the common law world including Australia. Since the 1990s, those rights have been significantly eroded with hoops and hurdles that disqualify many injury victims from exercising their rights by and dilute the extent of those rights for victims whose compensation recovery is still allowed. This has had the effect of insulating people who act recklessly and negligently - and their insurers - from the full financial consequences of their conduct and passes the cost of cost on to victims.

This has occurred in every Australian state most notably by the enactment of Civil Liability Acts and by particular legislation applying to road accidents and workplace injuries.

These laws protect insurers from having to pay the full amount the law would otherwise compel them to pay for the wrongful or negligent acts of an at-fault person who still must pay for insurance cover.

Injury Compensation Guide - [Part 2] Expert advice oh so important

An expert compensation lawyer has many skills that can be leveraged to achieve the best outcome for you. These include a thorough knowledge of the statutory provisions and new case theories that apply; a deep understanding of recent court decisions that can be used to benefit your claim; a skilled appreciation of the evidence required to achieve the best outcome; a tested stable of advocates and experts from whom to choose to put your case in its best light; and battle-hardened strategies to bring your case to its successful conclusion for the right amount of compensation.

If you have already begun an injury compensation claim, no doubt you are receiving expert and attentive advice as to how it should be conducted and what needs to be done to ensure that you receive full compensation.

For those who are investigating the possibility of making a claim, please remember it is essential to seek out expert advice from an experienced practitioner that takes into account all your particular circumstances as well as the defences and obstacles the insurer is likely to want to put in your way.

Expert advice from a highly experienced injury compensation lawyer is usually no more expensive than mediocre advice from a junior or middle rung lawyer.

Injury Compensation Guide - [Part 3] Useful initial information

Click on the link or links below that relate to the circumstances of your particular injury. You will find useful initial information about the particular features of each different accident type; what steps are needed to start; what evidence must be assembled; the type of experts that may be needed; what compensation applies; and some of the obstacles that must be overcome.

Injury Compensation Guide: Road Injuries

Injury Compensation Guide: Work Injuries

Injury Compensation Guide: Tourism & Travel Injuries

Injury Compensation Guide: Medical Injuries

Injury Compensation Guide: Public Liability Injuries

Injury Compensation Guide: Recreational Injuries

Injury Compensation Guide: Police Misconduct

Injury Compensation Guide: Sexual Abuse / Sexual Assault

Injury Compensation Guide: Defective Products

Injury Compensation Guide - [Part 4] Quantum guide

Every injury claim is unique. An expert injury lawyer will "formulate" the "quantum" of your damages demand only after having assessed your medical history and having received specialist reports from appropriate experts as to the extent of your injuries and prognosis. The "formulation" will take into account how your injuries affect your income earning capacity in your occupation or other work which you are capable of performing. The same injury to two people could have a completely different damages outcome from one case to the other, eg a concert pianist will likely have a bigger loss of income claim from a finger injury than a teacher would.

That said, an experienced injury compensation lawyer will be able to tell you at the outset whether your injury is likely to result in an occupational deficit that the "formulation" will focus on.

Compensation in the main is made up of the following "heads of damages":-

  • General damages. These are sometimes called damages for "pain and suffering". General damages are artificially deflated by Civil Liability Acts.
  • Care damages. If you receive paid or unpaid domestic or nursing care as a result of accident-related injuries even from family members, its cost at market rates can be claimed, subject to some thresholds having been met in the case of voluntary care.
  • Expenses. All medical pharmaceuticals and other expenses related to the injury are recoverable from the at-fault party. These include items paid by Medicare who is required to be refunded out of the damages received.
  • Loss of past income. All salary, business income and superannuation benefits that are forgone because of the accident-related injuries are recoverable.
  • Loss of future earning capacity. The at-fault party must pay compensation to the extent to which you are unable to earn income in the future. For someone only able to return to work three days a week instead of five, the loss of income is 2/5 of their weekly salary until the expected retirement age, less a discount for early payment.

General information - car accidents

The below sums represent the average amount of damages awarded in these motor accident claims. The following figures are based on data collected from 1 July 2007 to 31 December 2016 for the Motor Accident Insurance Commission’s Statistical Information Report.

  • The average payout for car accidents involving minor injuries: $68,905
  • The average payout for car accidents involving moderate injuries: $138,244
  • The average payout for car accidents involving serious injuries: $333,096
  • The average payout for car accidents involving severe injuries: $814,403
  • The average payout for car accidents involving critical injuries: $1,414,990
  • The average payout for car accidents involving fatal injuries – $310,980

The relationship between injury severity and compensation amounts awarded in car accident compensation claims can be complex. It is vital to keep in mind that the unique circumstances of the accident you were involved in will influence the outcome of your case.

General information - workplace injuries

As the primary provider of accident insurance for employers in Queensland, WorkCover Queensland records payout data by reference to injury type.

  • Burns - $2,700,000 * (0.6%)
  • Fractures - $47,000,000 * (10.9%)
  • Brain, nerve & spinal cord injuries - $5,200,000 * (1.2%)
  • Mental disorders - $55,000,000 * (12.7%)
  • Musculoskeletal injuries & diseases - $241,500,000 * (55.8%)
  • Nervous system, eyes & ears - $4,000,000 (0.9%)
  • Other injuries and diseases - $28,600,000 * (6.6%)
  • Respiratory system diseases - $4,100,000 * (1.0%)
  • Skin and tissue diseases - $300,000 * (0.1%)
  • Wounds, amputations & organ damage - $44,100,00 * (10.2%)
  • Total $432,500,000 * (100.0%)

This is just a small sample of how WorkCover Queensland evaluates particular injuries (a comprehensive table of injuries and their corresponding values can be viewed on the WorkCover Queensland website. In order to qualify for any compensation for a WorkCover claim (let alone the maximum amount payable), you will need to provide evidence in support of your claim.

Compensation Payout Guide: Permanent Impairment and TPD Compensation Payouts

Total and Permanent Disability (TPD) can refer to almost any type of injury that prevents you from returning to work in your former capacity. Common TPD injuries include:

  • Spinal injuries
  • Loss of sight
  • Loss of hearing
  • Brain injuries

The majority of TPD claims are assessed on the following conditions:

  • Your level of disability
  • The conditions of your super fund
  • Your time in the workforce

TPD claims often have such unique conditions that it can be difficult to estimate damages without reviewing your case. If you think you may be entitled to a TPD payout, Carter Capner can assist you with identifying an appropriate amount of compensation.

Compensation Payout Guide: Public Place Injuries in Queensland

From trips and falls to injuries sustained during recreational activities, a wide range of accidents fall under public liability law. As compensation amounts for public liability claims vary considerably depending on the unique conditions of each case, estimating damages isn’t always a straightforward process.

The compensation you are entitled to will depend on how badly you have been hurt. To determine an appropriate amount of damages, a monetary value will be placed on how your life has changed as a result of your accident.

Compensation Payout Guide: Medical Negligence Payouts

If you have been injured as a result of the harmful actions or oversights of a healthcare provider, you may qualify for a medical negligence claim. Common examples of medical negligence include:

  • Substandard postoperative care
  • Misdiagnosed injuries or illnesses
  • Negative side effects of wrongly prescribed medication
  • Childbirth complications

Depending on the type of injury you have sustained, medical negligence claims can involve significant damages. Having a lawyer review your case is the best way to learn how much compensation you are entitled to.

Compensation Payout Guide: Are there time limits for making compensation claims?

Yes, strict time limits apply to all types of compensation claims. If you fail to take legal action within the required time limit, you may lose your entitlement to damages.

Compensation Payout Guide: Is injury compensation taxable?

Most lump-sum injury compensation payouts are non-taxable. However, this rule does not apply to all forms of compensation. Be sure to ask your lawyer if you are required to pay tax on any damages you receive.

Compensation Payout Guide: How long is the personal injury claim process?

Some personal injury claims take several months to settle. The complexity of your case and the willingness of the other side to reach a settlement can impact the duration of the legal process.

Compensation Payout Guide: How is compensation for past and future economic loss calculated?

Assessing past and future economic loss usually involves examining how your earning potential has changed as a result of your injury. Any out-of-pocket expenses you have had to cover may also be taken into consideration.

Compensation Payout Guide: How can a no win no fee lawyer help me?

If you are worried about the financial risk involved with taking legal action, No Win No Fee lawyers can cover any outlays associated with your case. Under a No Win No Fee agreement, you will only need to cover the cost of your legal fees if your claim is successful. Find out more about what no win no fee means here.

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