frequently asked questions.
We understand legal matters can be confusing, so we're here to make things simpler.
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How much will a claim cost? Who will pay my compensation? Will I be out-of-pocket? And all other questions related to personal finances.
How to determine if you were at fault or not, how to know if the location of your accident is covered by insurance, and all other accident detail questions.
What are some of the common medical conditions for compensation? What is a medico-legal assessment and how do I prepare for this? And all other medical related questions.
Will I be out of pocket?
There is a common perception that lawyers will bleed you dry. And we don't disagree, there are some firms that will do just that.
We want to help you better understand your fees.
We also want to help you stay in complete control of your legal spend and save money by doing so by offering you a number of ways we charge.
For starters, we pay for your disbursements.
Disbursements are the outlays (monies) that a law firm has spent in pursuing the compensation. They typically include payments for court fillings, medical experts and barrister’s fees. We will:
- Pay for these for you until you have received compensation
- Cover these costs from our own bank account, meaning lower charges for the service
We are happy to lend you our services. In addition to maximising your future money, we also want to save your current money.
How do I know what my claim is worth?
We provide all our clients with a clear breakdown of what their claim is worth and why.
Usually, this looks like a range of damages (e.g. "your claim is worth between $X and $Y") and a comprehensive explanation of why that is the case (e.g. "the evidence tells us XYZ...", "this piece of evidence is reliable, but this piece of evidence is not", etc.).
How do I know when to accept an offer from an insurer?
It’s incredibly important that you resolve your claim for the right amount (as you can’t reopen your claim once it’s resolved).
As mentioned above, we provide all our clients with a clear breakdown of what their claim is worth. This usually looks like a range (i.e. "your claim is worth between $X and $Y").
If you receive an offer that is within (or above) the range, you know that you can accept the offer and feel good about it.
We provide our clients with advice every step of the way. So, we’ll let you know if an offer is worth accepting (or not).
How can I keep my legal costs down?
There are several ways you can keep legal costs down.
Firstly, cooperate with your lawyer. Responding to emails and calls, and keeping your lawyers updated with your circumstances, really assists them in getting their job done quickly and efficiently, and reduces the need for follow-ups, which can quickly increase costs.
Secondly, disclose everything, let the lawyer decide if it is relevant, as they been engaged by you to present the case. It becomes very costly, if you fail to disclose information about a witness or document just before a conference, or court hearing.
Will receiving Centrelink (or other benefits) affect my claim?
No, Centrelink benefits do not affect your claim. But they do affect your compensation.
Once you’ve received your compensation money, you will be required to pay back statutory bodies from whom you’ve received benefits from – this includes Centrelink. Essentially, a percentage of the amount you have received in the past will be automatically paid back to the government from your compensation.
You may also be exempt from receiving further Centrelink payments for a period of time – after all, your payout amount could replace your need for Centrelink, depending what scheme you are on.
If you want to know more about the schemes affected, how much you will have to pay, and what you should do, you should read our article on Centrelink here.
Do I have to pay for legal fees up-front?
Your legal fees are absorbed by the firm acting for you until the time of your settlement meaning you will not pay a single cent on legal fees before that point.
If you want to read more about legal fees and how they work, you can check out our article here.
Can undisclosed income or incomplete tax returns affect my claim?
Just because you have undeclared finances or incomplete tax returns does not mean you are excluded from recovering compensation if you have been injured.
After all, you were injured at no fault of your own, and one missed tax return does not mean you have to pay for that for the rest of your life.
It does mean, however, that you’ll need to tread very carefully when proceeding with your claim to ensure your credibility isn’t brought into question.
If you fall into this category, where your financials are questionable or not up to date but you wish to proceed with a claim, then you essentially have two options:
- 1Try to provide some other evidence of your financial loss;
- 2Fix up your returns/ financials.
If you want to read more about how you can do that, you can check out our article here.
How can I prove my income if I haven't lodged my tax returns?
The number one thing you can do to prove your income is to collect any and every piece of evidence relating to your work.
That could be texts, Facebook groups, photographs, discussion notes from financial planners, etc.
How much evidence do I need to provide to prove my income?
There is no definitive, one-size-fits-all amount of evidence you need to collect. However, there is a definitive time-frame for which you need to prove your income - this is generally 3 years prior to the accident.
Any less is generally unreliable for a future prediction and will be discredited by the insurer.
Will owning a new business affect my payout?
Owning or running a new business can have a negative effect on your payout if you don't approach it properly.
That's because your economic loss is based on a comparison between your earnings before and after the accident, as well as what your projected losses will be into the future.
Your projected losses are based on what you were earning and where it was likely you were going to head. Without sufficient evidence of your earnings as new business, it becomes challenging to make a compelling case of how much you would earn in 10 years' time.
If you're concerned this could effect you, and you want to know how to navigate it, you can read our full article available here, produced in partnership with an expert accountant.
How can I prove economic loss if I run a new business?
To prove you've experienced economic loss, notwithstanding any external factors or being a business in its infancy, you need to collect any evidence relevant to your business earnings, calculate what this might've looked like projected into the future, and then off-set that against any abnormalities such as being in receipt of a crisis payment.
For a full explanation, you can check out our article here.
What evidence should I collect to prove my loss as a new business?
To support your claim for economic loss, you should collect any types of evidence that relate to your business earning capacity.
That could be things such as business activity statements, previous business successes of the owner, discussions with business partners, initial business projections, business strategy discussions, things like why the business started in the first place, and why it was believed the business would be successful.
This isn't an exhaustive list, and all forms of evidence should be considered. If you want to read more about proving your losses as a new business, you can read our article here.
How do I know if my lawyer's cost agreement is within my best interests?
The answer is simple - their cost agreement should align with the relevant court's scale of costs.
The court's scale of costs outlines the price that they deem to be fair and reasonable for a lawyer. If your lawyer is charging outside the recommended ranges, or with predominantly time-based rates, you're likely to be getting ripped off. And nobody wants that.
What is the maximum amount a lawyer can charge?
For any no-win no-fee agreement, the general rule of thumb is a lawyer cannot charge a claimant more than 50% of their payout.
The final percentage isn’t quite 50% (it is generally lower), however those factors are explained in further detail in the 50/50 Rule.
There are certain circumstances where a lawyer will charge more than 50%, however this is in extreme circumstances where a claimant has been fraudulent and caused great losses to the firm as a result.
If a lawyer experiences this, they can apply to the courts to have the 50% waived in order to recover a fair amount of their costs.
What is the 50/50 rule?
The 50/50 rule is a statutory formula that regulates the maximum amount a claimant can be charged. It was implemented to ‘ensure claimants aren’t worse off financially after pursuing a legitimate personal injury claim’.
Essentially, it outlines that the maximum percentage a lawyer can charge is 50% of their client’s settlement fee minus disbursements and statutory refunds.
For that reason, the real maximum is generally around 42%, however it is just dependant on what disbursements and refunds a claimant might have.
The 50% maximum can be waived in extreme circumstances, however this is in the rare instance that a claimant has been fraudulent and caused great losses to the firm as a result.
If a lawyer is a victim of a fraudulent claimant, then they can apply to the courts to have the 50% waived in order to recover a fair amount of their costs.
For the most part, however, this won’t be a concern for genuine claimants.
What are statutory refunds?
Statutory refunds refers to any monies that you owe back to Centrelink, WorkCover, or other government bodies that might have awarded you a source of income since the accident.
The reason for needing to pay them back is because they are there to protect lost income... so is compensation.
By receiving a lump sum compensation payment, you negate the need for statutory involvement.
I have been in an accident, what should I do?
Short answer: Contact us.
The steps you should take after an accident depend on many variables such as the circumstances of the accident, the people involved, the injuries sustained and the loss suffered.
Depending on your specific circumstances, you might have take urgent action to comply with certain time limits. Those time limits aren't the same for everyone.
So, contact us for a free consultation and we can give you some pointers on where to start.
I suffered an injury at work, can I make a claim?
Yes. And you need to understand who is the person at fault. Is it the location where the accident occurred, or the goods you were using, and not the fault of the employer.
How do I know who was at fault in a rear-ender?
Typically, these collisions can be difficult to understand if there are more than two vehicles involved.
The rules are, take pictures of the vehicles, ensure you take many of the front/rear/side of the vehicles, and skid marks left on the road.
Next, get the details of the other drivers, passengers, and those that stop to offer assistance. Did the see what happened, and what is their observations.
Next record what you say occurred.
Then let the police interview the drivers/passengers.
Typically the Police will identify the vehicle most at fault as vehicle 1, in the police report. But sometimes that may be in error.
Let you lawyer listen, read and observe the above and give you advice on the likely outcome from their experience, and how a Judge may decide the matter.
I had a slip and fall, am I entitled to compensation?
If you had slipped and fallen over in a public place, such as a shopping centre, you may be entitled to compensation if you sustained injuries.
In order to be successful in a claim for damages, you must prove that you slipped over due to the fault of the other party. To establish fault (i.e. negligence), the following must be proven:
- The at-fault party owed you a duty of care
If someone owes you a duty of care, this means that they have an obligation to keep you safe from any foreseeable harm.
In a slip and fall case, this could be a shopping centre making sure that their patrons are safe on their premises.
- The at-fault party breached their duty of care
The at-fault party must have failed to take reasonable steps to ensure that you are kept safe from the foreseeable harm (i.e.) they have breached their duty of care owed to you.
For example, a cleaner may have breached their duty by passing by a spillage and failing to clean it up, or by failing to place a “wet floor” sign near the spillage to warn people.
However, their actions must deviate from reasonable practices. For example, it would be difficult to prove a cleaner breached their duty of care if a person slipped over within 10 minutes of something being spilt, and the cleaner did not have enough time to be aware of the spillage.
- There must be an injury / loss sustained as a result of the breach
This may be physical or psychological injuries that require treatment and/or prevent you from working.
It is important for you to collect evidence if you were involved in a slip and fall incident. Some evidence may include:
Photographs of the incident location / what you slipped on or tripped over;
Any incident reports made;
Any witness statements;
Your medical records / evidence of your injuries;
Receipts for any out-of-pocket expenses;
Records of any loss of wages / time off work due to your injuries.
What does public liability cover?
It is where an injury occurs in a public place, or private location e.g. home, and can extend to matters where you are being treated by a medical specialist, or treatment provider.
Typically it is where the injury does not involve a motor vehicle or employment relationship.
But in some matters, public liability cover does mix into claims that have other insurers of CTP insurers and or employers.
That is where it not just one insurer responsible, but results in claims being made under different schemes of insurance due to the facts of the incident. E.g. injury occurs on X property where a employee is visiting to do an inspection, and suffers an injury.
What if I was partially at-fault in my incident?
You may still have an entitlement to compensation, even if you were partially at fault.
Contact us and we'll help you figure it out.
I don't have the details of the other driver, or it was a hit-and-run. What can I do?
We'll find them. Or, if we can't identify the other driver, we'll help you bring a claim against a kind of 'backup' insurer known as the Nominal Defendant.
tHE CLAIMS PROCESS
Will I need to go to court?
Most Queenslanders think making a compensation claim is hard.
So hard that almost 200,000 people think about making a compensation claim every year but don’t.
So, what’s causing this compensation claim reluctance?
It seems that people’s reluctance to compensation claims is due to a multitude of factors, including having to go to Court.
The words ‘Court Proceedings” can send shudders down the spines of most Australians.
It’s a hassle most of us can agree we would just rather not have to go through.
Thankfully, the truth is...
Most compensation claims don't make it to court, ever.
If you want to read more about why, you can read our article here.
Who will pay for my compensation?
Usually, the at-fault party or their insurer.
In the case of an accident caused by the negligent driving/use of a motor vehicle, the compulsory third party (CTP) insurer of the at-fault vehicle will be responsible for paying your compensation.
In the case of an accident caused by the negligence of another person (such as a local council), that negligent person will be responsible for paying your compensation.
Thankfully, most at-fault persons have some form of insurance (such as CTP insurance or public liability insurance). That means your claim is very likely to be against an insurer (and not an individual person).
Can I change lawyers during my claim?
If you have a claim in progress, you may be able to switch lawyers if you are unhappy or concerned.
We can request a transfer of your file from your current law firm and review all of the material your situation. We can build your case from this point.
Can I run my own claim?
Yes, you can.
If you'd like some guidance on how to run a claim on your own, we'd be happy to give you some pointers - just give us a call.
However, claimants with legal representation are likely to receive greater compensation than those without.
If you're on the fence about whether to engage a lawyer, get in touch with us and we can explain your options. We're happy to help, whichever way you go.
Can I bring a claim on behalf of my child?
Yes, you can.
If your child has been injured in an accident, they may have an entitlement to bring a claim.
A person under the age of 18 years is considered (in the eyes of the law) to not have capacity to make decisions regarding legal matters. Therefore, they cannot bring a claim themselves (until they are 18 years or older).
However, an adult with full capacity can bring a claim on a child's behalf. This is often referred to acting as a child's 'litigation guardian'.
As with all claims, it is best to act quickly and not wait. Therefore, rather than waiting until your child turns 18, it is best to take action now.
For further information about bringing a claim for a child, contact us.
Will making a claim directly affect the at-fault driver?
Making a claim is unlikely to have any significant impact on an at-fault driver.
For some, this is frustrating. They want the at-fault driver to be punished. This is where criminal proceedings can come in.
Bringing a civil claim is separate to any criminal proceedings. A civil claim is really about compensating you for what you have lost and what you will lose in the future.
What is the nominal defendant and how do I start a claim against it?
The nominal defendant is the insurer for two classes of motor vehicle accidents.
The first category is those that cannot be identified. But in this category, your limitation period is 9 months, not three years to bring a claim. And can not be extended.
What is unidentified is where a vehicle can not be found by due search and inquiry, e.g. left the scene, or left debris on the road e.g. oil that caused your accident.
The second category is those vehicles that are uninsured with a CTP insurer, and the owner has not paid the insurance to have insurance cover for the accident. Here the vehicle is identified, but it does not have insurance with the insurers that offer insurance in your state.
You need to take steps in the first category urgently, by giving notice to the Police, identify anything that can assist locating the vehicle, e.g. witnesses who saw the vehicle leave the scene, who heard the collision, photos of the debris on the road, CCTV, toll road information of vehicle movements at that time etc.
Contact a lawyer, because the 9 month time limit is fatal to far too many persons victim to these unidentified car accidents, and prevented person bringing a claim.
Do I need to notify police?
Depending on the type of incident, you may have to tell the police.
If you have been involved in a motor vehicle accident, you must notify police of the crash if:
- Anyone is injured or killed in the crash; or
- A vehicle involved in the crash is towed away; or
- A driver involved in the crash does not provide required particulars (e.g. name, address) to other people involved.
If you’re involved in a different type of incident, and you’re not sure whether to notify police, contact us and we will help you figure it out.
How long do I have to bring a claim?
3 years. You have 3 years from the date of the accident to make a claim for compensation. After this, the Limitation of Actions Act 1974 (QLD) will prevent you from making a claim.
Extensions are available in some cases, but are extremely difficult to obtain.
If you are under 18 years at the time of the crash, different timeframes apply. The limitation date is 3 years after your 18th birthday if you have not already commenced a claim. And the only way to commence a claim before your 18th birthday is if a parent of guardian commences the claim on your behalf.
How long does a compensation claim take?
There is a common misconception that compensation claims take years and years of work before you ever see a result.
As a result, people are reluctant to claim for compensation because they believe the time and effort will not be worth the compensation they receive at the end of a compensation claim.
They couldn’t be more wrong.
While it is true that some compensation claims can take years to settle, the reality is most compensation claims take just over a year.
That’s because the biggest indicator of how long your compensation claim takes is the severity of your situation.
In Queensland, over 70% of compensation claims are for minor impact. These compensation claims typically don’t take long to settle.
While this might be the average time it takes to see results, each person’s situation is unique…
..and each person’s compensation claim time is therefore also unique.
How do I start a claim for compensation?
A claimant is usually required to start a claim for compensation by delivering a notice (in a particular form) to the at-fault person (or their insurer).
The right notice (i.e. the form) depends on the circumstances.
What is CTP insurance?
CTP is a form of personal injury insurance that is compulsory for every registered vehicle in Australia – that means motorbikes, commercial vehicles, cars, and any other registered vehicle.
It provides compensation for people injured or killed in a car accident that is deemed to be not their fault.
That means the CTP insurance you select when you register your car would pay for another party’s personal injuries if you caused an accident. And, vice versa, their CTP insurance would cover you if they were the party that caused the accident.
You can read more about CTP insurance and how it works in our article here.
How do I know if I qualify for compensation?
Injuries come in many shapes, types, and sizes.
Some are visible to the naked eye whilst others linger under the skin.
Some will hang around for a day, some for a year, and some will never heal.
When considering an event for compensation, two key elements are analysed:
- IS YOUR SITUATION DUE TO THE FAULT OF THE DEFENDANT?
- HAS THE IMPACT OF THE SITUATION CAUSED MAJOR OR POTENTIAL ONGOING FINANCIAL LOSS?
If you fall under the both of the above criteria, it's highly likely you qualify for a successful compensation claim.
Remember, it may be a headache, or it may be a bruise, but it could be something much more than that.
Symptoms are not always instant and are valid to compensation claim for up to three years after the event.
Always get checked out by your GP no matter what your concern is.
Do I have to hand over my medical records?
Yes. You must disclose all relevant material to the respondent and us, including your medical records. Such information serves as evidence to support your claim, aiding the respondent and us in assessing your claim for damages. Without medical records, it will be difficult to establish any meaningful claim.
More so, by proceeding with a claim for personal injuries, you will be providing consent for the respondent to obtain documents from current and past doctors, the hospital you attended for treatment, and other treatment providers.
While having your medical records looked at by others may feel invasive and uncomfortable, you can rest assured that your records will be treated with confidentiality, used only for the purposes of furthering your personal injuries claim, and in accordance with legal obligations.
What does it mean to 'not have capacity'?
In a legal sense, capacity refers to a person's ability to understand and process information to make a decision. A person lacks this capacity if their ability to make that decision is impaired.
In personal injury law, this is most commonly seen in brain injured clients. The lack of capacity affects their ability to make decisions around not just their compensation, but also in future life choices, wills and estate planning, etc.
If you want to know more about how a lack of capacity could affect a payout, you can read our article here, made in partnership with an expert accountant.
Do I HAVE to go to the doctor?
Yes, you should go to a doctor after sustaining a personal injury.
Firstly, and importantly, if you are injured, a doctor can appropriately advise you of injury and treatment needs. Receiving prompt treatment can often result in a quicker recovery from injuries.
Secondly, if you are contemplating a personal injuries claim, you must establish that you have sustained an injury and loss. As noted above, a doctor is properly-suited to do this. They can identify the extent of your injuries, possible future complications, treatment needs, and determine your suitability to work and/or study. Accordingly, going to a doctor creates a paper trail of evidence that will assist us in establishing your claim for damages due to personal injuries. More so, in particular claims (such as motor vehicle accident claims), must have a doctor examine you and complete a medical certificate certifying your injuries, treatment needs and suitability to work before you can formerly begin your claim.
Accordingly, going to the doctor is vital for both your own well-being, and your personal injuries claim.
Will my rehabilitation (physiotherapy, occupational therapy, etc.) be paid for?
If you were involved in a motor vehicle accident, the CTP insurer of the vehicle that caused the accident has a legal obligation to fund and/or reimburse you for any reasonable and appropriate treatment that you need for your accident-related injuries.
What is reasonable and appropriate is determined by the MAIC Guidelines, which can be found here: https://maic.qld.gov.au/wp-content/uploads/2021/07/Reasonable-and-appropriate-guideline-updated-2-August-2021.pdf
If it is found that you were at-fault for the accident, or contributed to the accident in some way, the CTP insurer may not be obligated to fund your treatment.
What is a medico-legal assessment and how do I prepare for it?
This is were an independent doctor, whether engaged by you or the insurer meets you to provide an expert report in their field of expertise. E.g. an Orthopaedic Surgeon will generally discuss injuries to body in terms of soft tissue injuries or fractures to the bones or Psychiatrist will discuss the psychology consequences of the incident on your wellbeing.
The expert will be briefed with your medical records prior to the incident and subsequent and will interview/examine you and write a report that details your past history, the description of the event that caused the injury, what treatment you had from the event, what is the current circumstances, what was their observations of you in the examination room to the questions asked and responses, and their opinion of the consequences of the event going forward and impairment assessment.
How you prepare for this, is that you need to have understood what was supplied to the doctor, and at least read the material, so you can identify if the records have errors in the history of your medical history.
There is no point saying you had no past back pain, if the records clearly record you seeking treatment for back pain. But it is legitimate to describe how the back pain you now have is of a different type/intensity. E.g. previous it was dull pain, but now you have a burning pain, and referred pain, and it does not go away with use of analgesics, or rest.
Give the expert recent history of the difficulties you had on the weekend from the injuries, that were not there prior to the event. E.g. you prior to event were able to clean/scrub the shower, but now when you do it, you actually have to rest and do nothing for an hour or so, to relieve the symptoms of back ache/discomfort.
Be honest with your responses, and give real life examples of the problems you are having with your employment and activities of daily living.
What are common conditions covered by compensation?
Personal injury compensation claims cover a wide variety of conditions – both physical and psychological. This can include spinal injuries, fractures, lacerations, burns, diseases (such as asbestos exposure), post-traumatic stress disorder, anxiety, depression, and more. Aggravation of existing or past injuries are also covered.
For perspective, according to the most recent data gathered by the Motor Accident Insurance Commission - the regulatory authority responsible for the ongoing management of the Compulsory Third Party (CTP) scheme in Queensland – over the past three years, 79 per cent of claimants in motor vehicle accidents experienced spinal injuries (including whiplash). Out of these claimants, more than 1.2 per cent experienced severe spine injuries. Amongst the 9 most injured body regions, the thorax was the most likely to be seriously injured (that could include things like rib fractures or other chest injuries), followed by head injuries. Additionally, more than 27 per cent of the claimants experienced psychological injuries.
PEOPLE AND the FUTURE
What's involved in obtaining statements from employers and colleagues?
Obtaining statements from employers and colleagues are a great way to obtain evidence about how your accident-related injuries have affected your ability to work.
If you are obtaining a statement from your employer or colleague, it would be important to ask them the following:
Your work performance before the accident;
How your work performance has changed since the accident;
Have they observed you having difficulties because of your accident-related injuries;
Are there some tasks you are unable to do now because of your accident-related injuries;
Have you needed to take time off and/or leave work early because of your accident-related injuries.
Essentially, you want your employer and/or colleague to paint a picture of how you were like before the accident, and how that has changed after the accident.
The statement should be written and signed by the relevant person.
How does someone manage their compensation if they don't have the capacity to do so?
In the situation where someone doesn't have the capacity to manage their compensation, such as a brain injured client, the compensation will generally be paid into a disability trust to assist in management and disbursement of the funds.
These disability trusts can come in two forms - private, or public.
The public trustee is a statutory body run by the government to act as a trustee in situations where a private trustee is not suitable or has been removed by the courts.
A private trustee is generally a trusted family member or friend that has been appointed as administrator.
The two types of trusts attract different fees and requirements. To find out more about trusts and managing compensation without capacity, you can read our article here.
What're the risks or obstacles involved in setting up a disability trust?
The main obstacles or 'hurdles' to take into consideration are the costs involved in the public and private trustee, and which one is more appropriate under the circumstances.
From a legal perspective, the biggest obstacle is the argument from the insurer that the private trustee is too expensive. That's because, more often than not, the insurer is responsible for the cost of the trustee.
To counter this, submissions need to be put before the court that the private trustee is the best solution for the client.
To find out more about disability trusts, you can check out our article here.
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