Australia: Information to help with a personal injury claim

Last Updated: 1 April 2019
Article by Sam Akon

When you have been injured in an accident, there are a number of questions that you may have about your rights to compensation or damages.

For some, these questions are overwhelming and discourage them from proceeding with a claim.

As a starting point for those considering bringing a claim, we have outlined below some of the frequently asked questions that often arise at the start of a personal injury matter.

What sort of claim might I have?

  1. Workers Compensation claim
    If you are injured at work or while working, you may have a claim against your employer and their workers compensation insurer.
  1. Motor Vehicle Accident claim
    If you are injured in a motor vehicle accident, you may have a claim against the at fault driver’s Compulsory Third Party insurer.
  1. Public Liability claim
    If you were injured in a public place or on someone else’s premises, for example a shopping centre or even a private residence, you may have a claim against the owner/operator of the site or property where you were injured or a third party responsible for your injury.
  1. Medical Negligence claim
    If you were injured as a result of negligent medical treatment, you may have a claim against the doctor, hospital or treatment provider who caused the injury.
  1. Common Law Assault claim
    If you were injured as a result of being physically assaulted, you may have a claim against the person who assaulted you or any company or organisation who had a role in the assault. For example, a pub for the conduct of a security guard.
  1. Sexual Assault claim
    If you were injured, either physically or psychologically as a result of being sexually assaulted, you may have a claim against the person who sexually assaulted you or any company or organisation who had a role in the sexual assault.
  1. Total and Permanent Disability (‘TPD’) or Partial Permanent Disability (‘PPD’) claim
    If you have sustained an injury or suffer an illness and can no longer perform the work you did before, you may be entitled to a TPD or PPD insurance benefit in the form of a lump sum payment from your Superannuation Fund’s insurer.
  1. Income Protection (‘IP’) claim
    If you have sustained an injury or suffer an illness and are unable to work, you may be entitled to receive IP benefits in the form of weekly payments from your Superannuation Fund’s insurer or other insurance policy you may have paid premiums for.

What Courts or Tribunals will my claim be commenced in?

  1. Workers Compensation claims
    Workers Compensation disputes are referred to the Workers Compensation Commission, which is a specialist tribunal dealing exclusively with workers injured in the workplace.
    If you are a Commonwealth Agency worker, your workers compensation disputes are referred to the Administrative Appeals Tribunal.
  1. Motor Vehicle Accident claims
    Any Motor Vehicle Accidents that occurred before 1 December 2017 are referred to the Claims Assessment Resolution Service, also known as CARS.
    Any accidents that occurred on or after 1 December 2017 are referred to the Dispute Resolution Service (‘DRS).
    Both CARS and DRS have similar functions. Some cases where liability is disputed are exempted from proceeding to CARS or the DRS and are commenced in the District Court.
    Any Motor Vehicle Accident claim involving children is commenced in the District Court.
  1. Public liability, Medical Negligence, Common Law Negligence, Common Law Assault or Sexual Assault claims
    The above mentioned claims are commenced in the District or Supreme Court.
    There will likely be opportunities to settle your claim before it reaches the hearing date. This will most likely be at a mediation or settlement conference with the Insurer/Defendant.

How long will my claim take?

This is depended on a wide variety of factors including if your injuries are stable, the process of obtaining evidence, the difficulty of obtaining that evidence and whether liability is accepted or disputed.

As a general guide:

  1. Workers Compensation claims
    Workers Compensation claims can take between 6 to 12 months once your injuries are stable and we are in a position to lodge and Application to Resolve a Dispute in the Workers Compensation Commission if there is a dispute.This timeframe is dependent on the acceptance or denial of liability by the insurer and also the number of issues in dispute. If the injury is accepted and the degree of permanent impairment is the only issue, then your matter can be referred to an Approved Medical Specialist for assessment with a relatively short turnaround from lodgement of your Application. However, your claim will take longer if liability for the injury is disputed by the insurer and there are numerous issues to determine.
  2. Motor Vehicle Accident claims
    Motor Accident disputes can take between 6 to 24 months once your injuries are stable however, in some cases they can take longer. This is dependent on the issues in dispute.If degree of permanent impairment and entitlement to claim non-economic loss is in issue, then your matter will be referred to the Medical Assessment Service for accidents that occurred before 1 December 2017. Once your claim is lodged with CARS, it can take about 3 to 6 months. Of course, this does not prevent your matter being resolved informally before having to lodge formal proceedings. For accidents that occurred on or after 1 December 2017, there is a 20 months waiting period from the date of your accident on bringing a claim for damages if you are assessed under a 10% threshold of whole person impairment. A claim for damages must be made within three years of the date of injury.
  3. District Court matters
    District Court matters follow a strict timetable and are generally allocated a hearing date within one year of filing a Statement of Claim.
  1. Supreme Court matters
    Supreme Court matters take about two years or more before they are heard and finalised. This is dependent on the complexity of the matter.

How will my case be resolved?

There are two main ways that a case can be resolved; by settlement or by judgment/award of a Court/Tribunal.

Settlement is an agreement reached between the parties and usually involves compromise on the part of both parties. There is no right to appeal a settlement, even if your injury deteriorates as settlements are generally a once and for all resolution of a claim for damages. There are exceptions to this for example in Workers Compensation matters. In this circumstance, you should contact one of our specialists for advice.

If your matter proceeds to hearing, a decision will be made by the Judge, Arbitrator, Assessor or Tribunal Member and an award/judgment will be entered. There is generally a scope for appealing these decisions if you do not agree, however this is dependent on the Court or Tribunal your matter is heard in.

Who will pay my legal costs?

At Carroll & O’Dea Lawyers, in most cases, we act on a no win-no fee basis. This means that if your matter is not successfully resolved, you will not be liable to pay our legal costs incurred in preparing your matter. You may still have to pay other ancillary fees and disbursements such as the cost of obtaining evidence.

Workers Compensation matters

For Workers Compensation disputes, we can apply for your legal costs and disbursements to be covered by the WorkCover Independent Review Office (‘WIRO’) and Independent Legal Assistance Review Service (‘ILARS’). Generally if they make a grant, you will not have to pay any legal costs, disbursements or decision makers’ fees for your matter.

Motor Vehicle Accident, Public Liability Medical Negligence, Common Law Negligence, Common Law Assault or Sexual Assault claims

In the majority of the above mentioned claims, your legal costs are predominantly payable by the Insurer/Defendant when you successfully resolve your matter. The total costs payable will depend on if your matter settled or goes to assessment/hearing.

If your matter settles, it will likely do so on an all-inclusive basis. This means that you will have to pay our legal costs and disbursements out of your settlement amount. However, your costs and disbursements are always calculated and claimed against the Insurer/Defendant so you are no worse off by settling a matter on these terms compared to a judgment by a decision maker.

If your matter proceeds to hearing and a Judge or decision maker makes an award in your favour, it will be on a plus costs basis. The Defendant will pay the party/party costs and you will be liable for the solicitor/client costs. Details of this will be contained in the Cost Agreement that is issued to you before commencing your claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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