I am injured. Should I make a claim?

Monday, July 2, 2018

Injuries are unfortunately a regular occurrence in our busy lifestyle.

Motor vehicle incidents and workplace injuries are commonplace.  Not infrequently the resulting outcome arising from an injury is pain and suffering, inconvenience, limitation and permanent life long bodily damage. 

There are also a significant number of people whom are unhappy with a past provision of medical advice, or action or inaction, taken either surgically or otherwise by a qualified medical practitioner.

Injured persons with total and permanent disability (“TPD”) have option of lodging a TPD claim against their superannuation fund.

The initial assessment of a personal injury enquiry (as relevant to assessment of a potential damages claim)

All incoming enquiries are considered in the context of the actual factual circumstances giving rise to the event that resulted in the injury.  Claims for damages for personal injuries are assessed according to the applicable law as relevant to the unique set of facts or circumstances giving rise to the injury.  Although such an “assessment” seems straightforward at first glance, you need to be mindful that there are infinite ways for one to sustain injuries!  And further, the layered legislative backdrop over precedent determined by the Court, or common law, results in at times a very complex area of law.

A cause of action in negligence

In assessing whether an injured person has a potential viable claim we need to determine legal fault, or liability of the alleged at fault party.  A cause of action is the action or claim in negligence that arises from the factual basis and circumstances of the person’s injuries for which another party is legally liable.  The cause of action may be quickly determined, such in the case of injuries arising from the collision of two motor vehicles at an intersection on a public road, and the viable cause of action being pursuant to the Motor Accident Insurance Act 1994 (Qld).  In contrast, an incident involving a person commanding a single motor vehicle that has lost control, due to circumstances outside of the person’s control, in a collision with a fixed structure on private property will be subject to the Personal Injuries Proceedings Act 2002 (Qld).

Establishing negligence or a legally at fault party is essential in order to have a successful damages claim.  Whether a party is negligent is determined with reference to established legal principles and again the factual circumstances given rise to the injury cannot be overstated.  It is important to bear in mind that the “factual circumstances” relied upon by the person making the claim, or the claimant, must be tested in Court.  The claimant bears the onus of proof, that is the onus of proving in Court that on the balance of probabilities that the Defendant or alleged “at fault party” was more probable than not negligent in their position with respect to the injuries suffered by the claimant.

A personal injuries claim can, and is frequently, subject to multiple legislative governance both procedurally and substantively.  What that means is the claim is subject to mandatory procedural steps, such as the lodging of a Notice of Claim document and the requirement of genuine participation at a Compulsory Conference where the injured person, the insurer and their respective legal representation attempt to resolve the claim without the necessity of commencing court proceedings. 

Almost all claims for damages arising from personal injuries are subject to time limits.  If a claim is lodged outside the relevant timeframe a ‘reasonable excuse for delay’ will likely be required.  A claim may be statue barred if it is brought outside the three year time limit in Queensland pursuant to the Limitations of Actions Act (1974) Qld.  An extension of time may be granted by the Court on application and the relevant determination is on a case-by-case basis according to the particular merit of the application.  Such applications are time consuming, costly and uncertain.  Recently the Queensland government legislated to remove the three year time limit applicable to claims of historical institutional child sexual abuse.  This very important amendment has come about due to the present conducting of the ‘Royal Commission into Intuitional Responses to Child Sexual Abuse’ and recognizes the permanent, lifelong psychological/psychiatric damage sustained by sexual assault survivors and the inequity of applying time limits to make a claim for damages arising from sexual abuse sustained as a child.

Quantum or damage

In order for a claim for damages for personal injury to be viable, the claimant must have suffered ‘damage’ as a consequence of the ‘at fault party’s’ negligence.  I often use the example of a defective balcony to illustrate the necessity of damage to enquiring persons and clients.  Consider the scenario of attending premises and subsequently falling from a height due to a sub-standard constructed balcony handrail.  If you were lucky and did not sustain injuries, this matter would not be a viable due to the very limited or no damage sustained, irrespective of the likely determination by the Court that the relevant at fault party was negligent in construction of the balcony handrail.

In the case of sustaining personal injuries as arising from a viable cause of action, the claimant’s suffering and bodily damage is assessed by a suitably qualified medical practitioner’s opinion as applicable with reference to the American Medical Association Guides (“the AMA Guides”).  The AMA guides are the accepted standard for assessment of a person’s impairment and disability.  Rarely in my considerable experience do medical practitioners completely agree on the level of damage sustained or even the prognosis of the injured person.  Ultimately it is a matter for the Court to determine which medical practitioner, or expert report, is accepted over a contrasting opinion.

Overall initial assessment

Upon being provided the version of events according to the person making the enquiry concerning a potential damages claim arising from personal injury, your lawyer will make an initial determination in regards to both being able to establish legal fault or negligence, and quantum, or damage.  A further consideration in the initial assessment of a claim is the veracity enquirer’s version of events.  If the injured person cannot confidently recount what happened with reference to the sustaining of their injuries, they may not be able to discharge the onus of proof and therefore will be unsuccessful in their claim.  It is not uncommon to read in an injured person’s report that they cannot recall exactly what happened in the relevant context.  Bringing a successful claim in this instance is likely to be problematic. 

Other considerations relevant to commencing a claim for damages arising from personal injuries

In addition to the above pre-requisites for bringing a claim for damages arising from personal injury there are other matters to consider before proceeding with a claim.

The stress of litigation

Our civil justice system is adversarial and undoubtedly stressful.  The claimant bears the onus of proof to demonstrate the alleged at-fault party’s legal liability in negligence.
 Many clients report the necessity of ongoing reporting of the circumstances giving rise to the injuries, as well full reporting on the nature and consequences of the resulting injuries, as repetitive and stressful, especially in circumstances where there is psychological or psychiatric injuries involved.  Client’s report frustration towards medical assessments undertaken in accordance with the AMA Guides in that they believe such assessment reporting does not fully cover the totality of the injuries sustained.  The impact and resultant outcome of the personal injuries suffered are often accompanied with emotional and mental stress, pain, disability, inconvenience, loss of employability, relationship and financial stress.  I have not encountered a client that would not simply exchange the resultant lump sum compensation for the injuries not occurring in the first place, if such a thing were even possible.

Litigation time-frames and complexity

As aforementioned, claims for damages for personal injury are subject to various procedural steps which contain in some cases strict time limits.  If you are considering a personal injury claim, make the enquiry as soon as possible.  If you claim is viable it is important to obtain the necessary evidence required to prove your claim as soon as possible.  Witnesses’ memories will fade with time, and obtaining the best evidence is essential.

Invasion of privacy

It is also important to note that the laws governing personal injuries claim require full disclosure by the claimant in regards to not only the consequent injury according to the subject claim, but often also pre-existing injuries, illness and conditions.  Many clients report there objection in relation to this perceived invasion of privacy.

So why litigate / make a claim for damages?

With all the above considerations, why would you consider making a claim for damages for personal injury?  At the outset it is important to note that adversarial civil process is the only system presently available to claimant’s seeking damages for personal injury in Queensland.  If you can establish a solid claim your matter will more than likely be able to be settled out of court.

I note that there is a general perception in our society that people that make personal injury claims are malingerers, and or are looking to make quick money.  I note that personal injury lawyers acting on behalf of claimant’s are generally considered to be unscrupulous ambulance chasers.  I object to both perceptions wholeheartedly.  If a person was injured in an insured event as a consequence of another negligent act, why would you refrain from making a claim for damages to your own detriment?  I think it is relevant to note that insurance is big business and reporting of insurer’s record profits and significant profitability in the insurance market is notable.  In relation to the general poor moral perception of personal injury lawyers, I say that lawyers in this instance provide a valuable public service and mostly likely on an obligation free basis.

Still need more answers?

Call 1800 WIN WIN or submit an enquiry below.

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