Litigation Specialists

Who Do I Claim Against?

Your claim will be against the person or entity whose conduct caused you to suffer injury. In many cases that person will be insured and we will be dealing with the insurance company rather than that individual person or entity.

If you are involved in a motor vehicle accident we can obtain the name of the insurance company from the registration details of the vehicle at fault. If the vehicle is unidentified or unregistered then your claim will be against the Nominal Defendant in Queensland.

If your claim is against your employer the Insurer is usually WorkCover Queensland.

In other cases we will need to find out from the person or entity at fault, whether they have insurance and if so, the name of the insurer.

Time Limits

Time limits are applicable to every type of personal injuries claim. There is a general time limit for personal injuries claims of three (3) years from the date of the accident. That means within those 3 years you must institute proceedings in the relevant court. There are two exceptions to this:

• If you are under 18 years of age then the three-year time limit runs from the date of your 18th birthday
  
  
• If you are under a legal disability then the three-year time limit runs from the date the disability ceases.

If the claimant is under 18 years of age or is under a legal disability then a claim can be made by their “next friend”

There may be additional time limits depending on the type of your claim.

If any of the time limits are not complied with you may forever lose your right to make a claim. You should make note of the relevant time limits and make sure they are complied with. It is your responsibilityas well as your Lawyers to make sure time limits are complied with.

Extensions of time are only available in very limited circumstances.

Motor Vehicle

If you are involved in a motor vehicle accident the following time limits apply:

• within one (1) month of receiving legal advice you must give notice in the prescribed form to the relevant insurance company (the insurance company or companies of the vehicle (s) at fault).
• If your action has not settled then within three (3) years of the date of the accident you must institute proceedings in the relevant court.

Work Accidents

Statute

Regardless of whose fault the accident was, if you are an employee as defined under the relevant legislation then you can make a claim on WorkCover Queensland who controls the Workers Compensation Fund.

You must make that claim within six (6) months of the accident however in order to recover maximum benefits you should make your claim as soon as possible.

If your claim is not accepted or is terminated further time limits apply in which to have the decision reconsidered and /or appealed.

Common Law

If you have a right to sue your employer at common law then you have three (3) years from the date of your accident in which to institute proceedings. There are detailed requirements, which must be complied with before you are able to commence proceedings.

How Long Will My Claim Take?

We are unable to tell you precisely how long your claim will take. It will depend on a number of factors.

First, we will not recommend to you that you settle your claim until your injuries have stabilised and Doctors are able to advise us of your prognosis for the future. For example generally speaking with ‘whiplash” or back injuries, an Orthopaedic Surgeon will not be able to give a prognosis for 12 -18 months following your accident. You only have one chance to claim. If you settle your claim before you have stabilised and you then get worse or you require further treatment you will not be able to make another claim.

The length of your claim will also depend on the following factors:

• How long the Insurance company/Defendant takes to conduct their own investigations into the circumstances regarding your accident, your claim and your medical condition;
  
  
• Whether liability (fault) is admitted or we reach some sort of agreement about liability;
  
  
• Whether you have any pre-existing conditions or have had any other accidents which the Insurance company will want to investigate;
  
  
• How long it takes us to obtain all of the necessary evidence;
  
  
• Whether your claim is able to be settled or must proceed to trial. If the Insurance Company does not offer you what we consider to be a reasonable settlement we will recommend that you proceed to trial.
  
  There is a great deal of matters awaiting trial dates and in many courts this has created significant delays. Accordingly it can take some time to obtain a trial date. Your matter will not go on the list awaiting a trial date until all parties certify the matter as being ready for trial. It is highly unlikely your matter will be able to be certified as ready for trial until your injuries stabilise and certain other steps (as are required by the court rules) have been completed;
  
  
• The availability of all witnesses, including your Doctors, to attend a trial.

Quantum - What Can I Claim For?

The “damages” or “compensation” you can claim is the quantum of your claim. You can claim compensation/damages under the following heads of damage.

General Damages

General Damages are damages for the pain and suffering you have endured and will continue to endure in the future. General Damages also include what is called your “loss of the amenities and enjoyment of life”. Your “loss of the amenities and enjoyment of life” are the things you used to enjoy before your accident, but which, because of your injuries you are no longer able to enjoy, or alternatively, enjoy to the same extent. An example of this would be if before your accident you played a sport or enjoyed a hobby, but you are no longer able to play that sport or participate in that hobby.

To enable both us and the Insurance Company to understand the extent of your pain and suffering and loss of the amenities of life it would be of assistance if you wrote into an exercise book or diary, details of your pain and suffering and the things you are no longer able to enjoy. It is not necessary to keep a daily record, however if you are able to keep a reasonably frequent record, it is likely to assist us in achieving the compensation you deserve. As you will appreciate both ourselves and the Insurance Company will be unable to appreciate the extent to which your injuries affect your life, if you do not tell us.

You should also make a list of all things which you used to enjoy but which you are no longer able to enjoy as a result of your injuries and provide that list to us. This includes not only sports and hobbies but also family outings etc.

Special Damages/Out of Pocket Expenses

This aspect of your claim includes any amounts you have paid out for medical and associated treatment. It also includes pharmaceutical expenses (e.g. Panadol bought from a supermarket). If you need to purchase any aids to assist with your injuries or help alleviate pain (e.g. a heat pack, crutches, wheelchair etc) the cost of these items are also recoverable.

You should ask for and keep receipts for any of these items. It is not crucial that you obtain a receipt but it is the easiest way to prove your claim. The receipts should be provided to us when you receive them.

It will be necessary for us to prepare a schedule detailing all of your expenses to be provided to the Insurance Company. You will be provided with an Out of Pocket Expenses Schedule, which we ask that you complete and return to us. If you require any additional sheets on which to record your expenditure please advise us and we will post them to you.

Your travelling expenses to visit Doctors or people to obtain treatment are also recoverable. Likewise if it has been recommended to you that a certain activity would assist your rehabilitation (for example swimming) your trips to the pool (as well as pool entry) are claimable.

You will recover your travelling expenses according to the number of kilometres you travel. Although each trip may not seem like a great deal of money, it does add up and is a relatively simple claim. It is also difficult for the Insurance Company to argue about compensating you for these expenses.

You will be provided with a Travelling Expenses Schedule, which we ask that you complete and return to us. Again, if you require any additional sheets on which to record your expenditure please advise us and we will post them to you.

If you are uncertain as to whether you should claim for a specific item, include it anyway and we will then determine whether it is recoverable. If you don’t claim the item you have no chance of recovering it.

Gratuitous Care and Assistance

If your friends or family provide you with gratuitous (free) care and assistance which you would not have required had you not been injured, then you are entitled to claim the value of that assistance at the commercial rate you would have had to pay to receive that assistance.

For example, if you needed help with domestic chores, personal hygiene, driving you to the Doctor etc, that assistance is recoverable.

You will be provided with a Care and Assistance Schedule, which we ask you complete and return to us. Again, if you require any additional sheets on which to record your expenditure please advise us and we will post them to you.

You need to itemise each item of assistance provided to you and estimate the time (on average) taken to provide that assistance. Again, if you are uncertain as to whether you should claim for a specific item, include it anyway and we will then determine whether it is recoverable.

We emphasise that a court is not likely to allow the total amount claimed. The claim is likely to be heavily discounted however the more you are able to particularise the claim the more you are likely to recover.

If you will require ongoing care into the future you are able to claim the anticipated cost of this ongoing care. Your care will be discounted for the “vicissitudes of life”. The vicissitudes of life is the likelihood that you may have required this care in the future for some unforeseen reason (i.e. illness or another accident).

There are some restrictions on claiming under this aspect which we would need to discuss with you.

Future Expenses

If you will incur expenses in the future, for example, future surgery, further medical treatment or you will continue to incur pharmaceutical expenses (i.e. painkillers) you can claim the anticipated amount of those future expenses. Again the claim will be discounted for the “vicissitudes of life”.

Economic Loss

If at the time of your accident you carried on a partnership or company, special rules apply. We will advise you about this.

Past

If you have been unable to work as a result of your injuries you are able to claim for the wages you have lost. It will be necessary to provide the Insurance Company with details of the wages you were earning at the time of your accident. If you have a payslip you should provide it to us. Pursuant to the Court Rules, if you make a claim for economic loss we need to provide the Insurance Company with the following:

• The name, address, capacity in which you were employed (job title) and your net earnings for each of your employers for the 3 years prior to your accident.
  
  
• Copies of your Group Certificates, Notices of Assessment and Income Tax returns for the 3 years prior to your accident.

We will provide you with a schedule for an Economic Loss Claim. You should obtain this information and documentation and provide it to us. If you do not have copies of all of the relevant documentation, tell us, as we may be able to obtain it from the Australian Taxation Department.

Future 

If you are unable to work in the future or if you experience difficulty carrying out your employment as a result of your injuries, you may be able to claim future economic loss. We will discuss this further with you.

Superannuation 

If you have lost wages as a result of your injuries and your employer normally contributed to a Superannuation fund on your behalf, you are also entitled to claim lost superannuation benefits. Again, there are some restrictions on claiming under this aspect which we would need to discuss with you.

Refunds

You may be required to make a refund to the Health Insurance Commission, a Private Health Fund, the Commonwealth Rehabilitation Service, WorkCover Queensland or the Department of Social Security for monies paid out on your behalf. We will ascertain whether you are required to make any refunds and advise you in due course. In relation to all refunds except the Department of Social Security we are able to add the amount of the refund to your claim so you are not out of pocket.

Can I Claim Interest On My Damages?

You are able to claim interest on your damages. The rates of Interest allowed differ and do not reflect commercial interest rates.

Who Will Pay My Legal Costs and Outlays?

In some types of claims for personal injury you are able to recover part of your legal costs. Check with your Lawyer whether, in your case, you are able to recover part of your legal costs. This will mainly depend on the size of your claim.

Where you are able to claim costs, unfortunately, Queensland law only enables you to claim part of your legal Costs. Your legal costs include our professional fees as well as any outlays we pay on your behalf (eg. Telephone calls, postage photocopying etc) and any amounts you may pay to other people such as Doctors for reports. Unfortunately in Queensland you are not able to recover all of your legal costs from the Insurance Company. The costs you are able to recover are termed your “party and party” costs.

Your “party and party” costs are the bare minimum of costs deemed necessary to pursue an action such as yours. Those costs do not represent the actual costs incurred in pursuing your action.

What Will I Get In My Hand From My Damages?

As detailed above the difference between the total of your costs and your “party and party costs” will have to be paid from your settlement.

If any of the Health Insurance Commission, a Private Heath Fund, Commonwealth Rehabilitation Service, WorkCover Queensland or the Department of Social Security, require a refund to be made to them, the amount of the refund will be deducted from your settlement and paid.

Will I Pay Tax On My Settlement?

Personal Injury claims are exempt from capital gains tax. Although the proceeds of personal injury claims is “income” you should not pay income tax on your settlement except for the interest component of your claim.

You should speak to your accountant, financial advisor or tax agent about this when it is time to prepare your income tax return.

Settlement -v- Trial

Whether your claim settles or proceeds to trial will depend on the attitude the Insurance Company takes. We will advise you about this once we know what the Insurance Company’s attitude is.

Can I Claim My Treatment On Medicare Or A Private Health Fund?

Medicare

Medicare is carried on by a Commonwealth Government body “The Health Insurance Commission”. You may claim your treatment on Medicare in the normal manner. If a Medicare claim form requires you to do so, you should tick the appropriate box on the Medicare claim form to indicate you are claiming compensation for your injuries.

Medicare require you to include in your claim, the amount they pay for any treatment you require for your injuries. During your claim either ourselves or the Insurance company will request that the Health Insurance Commission forward a list to you detailing all benefits you have received since your accident. You will be required to mark all items, which relate to your accident, sign a statutory declaration and return it to the Health Insurance Commission within 28 days of the date you receive it.

With your written consent the Health Insurance Commission will forward the list to us directly. We ask that you contact us when you receive any correspondence from the Health Insurance Commission.

The amount of the Health Insurance Commission’s refund will be added to your claim and repaid to the Health Insurance Commission at the conclusion of your claim. Accordingly, since the amount is added to your claim you will not be out of pocket.

You should provide us with your Medicare number so we can write to the Health Insurance Commission.

Private Health Funds

Similar rules apply for private health funds as detailed above for Medicare. You should provide us with details of your private health fund so we can write to them.

What Happens If I’ve Received Social Security Benefits?

If you receive social security benefits you may continue to receive them notwithstanding the fact that you are making a claim for compensation. When you are compensated the Department of Social Security may require you to repay to them, a certain amount representing a refund of benefits paid to you.

The Department of Social Security may also preclude you from receiving benefits for a certain period of time following your compensation payment.

Before your action is settled we are able to obtain an estimate from the Department of Social Security as to the anticipated refund and any period of time during which you will be unable to claim social security benefits. You may then take this into account when considering the proposed settlement.

We are able to help you so remember,

When Your Future Is at Stake…

No one will fight harder for your rights than the team at Baldwin Cartwright Lawyers.