How to make a personal injury claim in Queensland

Here’s our comprehensive list of the general information that you need to make a personal injury claim in Queensland.

 

What is a Personal Injury Claim

 

Personal Injury Law is an area of insurance law under which injured people can exercise their legal right to compensation if they have suffered an injury because of another person’s negligence.

The three most common types of personal injury law claims in Queensland relate to motor vehicle accidents, workplace injuries, and public liability claims (e.g. for the negligent work of a contractor, or injuries suffered in shopping centres). These claims are governed by three pieces of legislation:

 

Motor vehicle accidents, or “CTP” (Compulsory Third Party) claims – Motor Accidents Insurance Act 1994 (QLD)

Workplace injuries, or “common law” WorkCover claims – Workers’ Compensation and Rehabilitation Act 2003 (QLD)

Public liability claims, medical negligence claims, and some other claims –Personal Injuries Proceedings Act 2002 (QLD.

 

When can you make a claim in Queensland

 

If you have suffered an injury because of the negligence of another person or corporation, then you are usually entitled to make a personal injury claim under one of the pieces of legislation mentioned above.

Whether or not a person or party has been “negligent” is something that should be discussed with an experienced personal injury lawyer. However, the basic legal formula for negligence is that:

 

1. You are owed a duty of care by someone. For example:
A motorist has a duty of care to other road users to not cause them injury;An employer has a duty of care to its employees to provide a safe workplaceA shopping centre has a duty of care to its patrons to provide a safe environment.

 

2. There has been a breach of the duty of care (or found here for WorkCover claims). This breach must occur in circumstances where there is a “significant and foreseeable risk of harm” to you, or people like you (e.g. mine workers in general, or roofers in general, etc.).

 

3. The breach of the duty of care has caused your injury (this is called “causation”, and it is discussed in excellent detail here).

 

4. The party responsible has failed to take reasonable precautions to prevent your injury. Factors influencing what precautions are “reasonable” (or found here for WorkCover claims) include the probability of the harm occuring, the likely seriousness of the harm, the burden of taking precautions against the harm, and the social utility of the activity that creates the risk of harm.

 

 

What time limits apply to making a personal injury claim in Queensland

 

All personal injury claims have a strict time limit of 3 years in which proceedings must be commenced in court. This is called a “limitation period”.

Importantly, “commencing proceedings” in court is not the same as notifying the relevant insurer of your claim. Commencing proceedings requires lodging complex legal documents in court.

If you are anywhere near your 3-year limitation date and still want to make a personal injury claim in relation to an injury you have suffered, you need to seek legal advice as soon as possible to protect your rights.

In addition to the 3-year limitation date, each type of personal injury claim in Queensland has extra time limits:

 

Motor Vehicle Accidents

 

If you can identify the vehicle that injured you, you have 9 months from the date of the injury to lodge a compliant Notice of Claim. If you lodge after 9 months, but before 3 years, you will need a “reasonable excuse for delay”.

 

If you cannot identify the vehicle or its registration is expired, you have 3 months from the date of the injury to lodge a compliant Notice of Claim. If you lodge after 3 months, but before 9 months, you will need a reasonable excuse for delay as well.

WorkCover Claims

 

You have 6 months from the date of your injury to lodge your statutory claim. WorkCover Queensland may make exceptions to this time limit in situations where your failure to lodge your statutory claim was due to mistake, absence from Queensland, or another reasonable cause.

 

If you did not make a statutory claim for Workers’ Compensation, then you can still make a common law claim within 3 years of the date of your injury, however, WorkCover will need to investigate your claim.

 

Public Liability Claims

 

You have 9 months from the date of the injury to lodge a compliant Notice of Claim. If you lodge after 9 months, but before 3 years, you will need a “reasonable excuse for delay”.

 

 

Who do you claim against

 

Queensland personal injury claims are generally made against the insurers of negligent parties:

 

Motor Vehicle Accident Claims – claims are made against the relevant insurer of at-fault vehicle. In Queensland, this is either Suncorp, Allianz, RACQ, QBE, or the Nominal Defendant.

WorkCover Claims – claims are usually made against WorkCover Queensland, however, some large companies such as Coles and Woolworths have their own private insurers.

Public Liability Claims – claims are made against the insurers of public places, medical practitioners, or the insurers of private contractors. You may have to pay for an organisational search with ASIC to find their registered office.

 

What compensation can you claim

 

When making a personal injury claim in Queensland, you are generally allowed to claim the following compensation (“damages”):

 

• General Damages for your pain, suffering and permanent impairment.
• Past Economic Loss for money that you allege that you have lost as a result of being injured.
• Future Economic Loss for money that you allege that you will lose until your expected retirement as a result of being injured.
• Past Accident-Related Expenses (“Past Special Damages”) for any incident-related expenses. This can include medicine and rehabilitation.
• Future Accident-Expenses (“Future Special Damages”) for any incident-related expeneses that you will incur. This can include re-training expenses and future treatment.
• Gratuitous Care and Assistance (but only if you reach the legal threshold) that you have received as a result of your injury.
• Interest on some of the above damages.

Do you need a lawyer to make a claim

 

No. You do not need to use a lawyer to make a personal injury claim in Queensland. We always recommend using lawyers because the Queensland personal injury process is complex, and representing yourself usually leads to significantly less compensation.

Lawyers are very expensive though, so if you want to keep your legal fees down make sure you use the right ones.

 

How do you make a personal injury claim in Queensland

 

Below is an overview of how to make a personal injury claim in Queensland.

 

*Note: This overview only informs claimants generally about the personal injury claims process in Queensland. Every claim is different, and our advice is to always seek legal advice from experienced personal injury solicitors*

 

1. Fill out a Notice of Claim.

These forms are available online:

• Motor Vehicle Accidents – Notice of Accident Claim Form
• WorkCover Claim – Notice of Claim for Damages Form (form 275)
• Public Liability Claim – Part 1 and Part 2 Notice of Claim (there is a different form for medical claims)

 

2. Serve the Notice of Claim

You must serve your notice on the correct party within the relevant time limits. The correct party will be a CTP insurer, WorkCover Queensland, or a private insurer.

For motor vehicle accident claims, you will also need to submit other documents to the insurer, including a Queensland Police Traffic Incident Report of the incident, a valid and certified copy of your ID, and any other documents required by the insurer.

 

3. Obtain medical treatment and rehabilitation

Injured people in Queensland have a duty to “mitigate their loss”. This means obtaining the necessary medical treatment so that your injuries get to “maximum medical improvement” and are not likely to improve or deteriorate significantly in the next 12 months – i.e. they are “stable and stationary”.

Importantly, during both Motor Vehicle Claims and WorkCover personal injury claims in Queensland, your rehabilitation may be provided by the insurer. WorkCover usually provides treatment during your statutory claim. The CTP insurer is obligated to provide “reasonable rehabilitation” once they have admitted liability for the circumstances of your injury, however, they often offer rehabilitation after you have lodged a compliant Notice of Accident Claim form.

What treatment is “reasonable” and “necessary” is addressed by the Motor Accident Insurance Commission (MAIC), and by medical professionals.

 

4. Gather Evidence 

If you want to make a successful personal injury claim in Queensland, you need evidence.

Under all the pieces of legislation there is a duty of disclosure. This means that if you have evidence that is relevant to your claim, you must disclose it to the insurer, and the insurer must disclose their evidence to you.

You and the insurer are also allowed to make formal requests for information and documents from each other.

Insurers will not make you large offers of compensation if you have not provided them with evidence addressing two major areas –

• Liability – evidence that proves the other party’s negligence; and
• Quantum – evidence as to the nature and extent of your injury.

 

“Liability Evidence”  includes things like:

• Police reports
• An Incident Report, SWMS, SDS or other safe working guideline that you allege that your employer has breached
• Witness statements that support your allegations of negligence.

 

“Quantum Evidence” includes:

• Medical reports and records.
• Treatment notes from rehabilitation specialists – physios, etc.
• “Independent Medico-Legal Report”. This is a medical appointment with an independent specialist (e.g. Orthopaedic Surgeon, Psychiatrist), specifically for the purpose of commenting on your injury and the various kinds of damages listed above.

*Note – In every personal injury claim in Queensland, there are usually two medico-legal reports obtained. One report is obtained by the injured person’s solicitors, and the other is obtained by the insurer’s. If you decline to attend a medico-legal assessment then any offers you receive from the insurer will be smaller because there is less evidence on which to value your claim.

As these reports are incredibly important and generally cost around $5,000.00, it’s best to organise them with the help of experienced personal injury lawyers.*

• Financial evidence such as Tax Returns or payslips that shows how your injury is affecting your ability to earn income. Importantly, as with obtaining reasonable medical treatment, you have a duty to mitigate your financial loss caused by your injury. You cannot simply sit on your hands and say “I can’t work” if the medical evidence says that you retain capacity for gainful employment.
• A witness statement from your supervisor, co-workers, family or friends detailing how your injury is affecting you.

 

5. Attempt to Negotiate a Settlement

Once you have all the necessary evidence, you can attempt to negotiate a settlement with the relevant insurer, either informally, or by calling for a Compulsory Settlement Conference (“Compulsory Conference”) under the relevant legislation.

We recommend engaging lawyers for this entire process, however, they are particularly important for Compulsory Conferences. This is because, if your claim doesn’t resolve at conference, you are legally required to “commence proceedings” in court within 60 days of the conference concluding. If you fail to do this, you will lose your right to continue with your claim.

 

6. Litigate in the Court System

The court system is complex – there are important time limits, complex documents, a compulsory mediation, and, eventually, a trial. If you’re determined to litigate without a solicitor, you’ll need comprehensive knowledge of the Uniform Civil Procedures Rules 1999 (Qld).

 

What is the average payout for a personal injury claim in Queensland

 

Compensation is entirely dependant on the severity of your injury, and your personal circumstances. It is difficult to accurately estimate your likely compensation until all the medical and financial evidence has been examined.

That said, for a minor whiplash injury in Queensland, your expected compensation could be worth anywhere from $5,000 – $20,000. A moderate orthopaedic, neurological or psychiatric injury could be worth anywhere from $20,000 – $70,000. A serious orthopaedic, neurological or psychiatric injury could be worth anywhere from $60,000 +.

Importantly, data from the Motor Accident Insurance Commission’s Annual reports show that injured people who represent themselves generally achieve 8x less than people who retain solicitors. 

 

Getting the most out of your personal injury claim

 

To get the most out of your personal injury claim in Queensland, you must:

• Obtain as much evidence as possible that relates to your injury
• Obtain as much evidence as possible that relates to the circumstances of your injury
• Use experienced personal injury lawyers
• Keep your legal fees as low as possible

 

Queensland Personal Injury Claims

 

At Claimwise, we’re the only personal injury law firm in Queensland whose mission it is to help you save money on your personal injury legal fees.

That’s why we’ve written the above guide and that’s also why we cap our professional fees at $2,000 for work that other lawyers typically charge up to $10,000 or more for.

Because when we say we’re on your side, we mean it.

If you’ve been injured on the road or at work in Queensland and want to keep your legal costs down, feel free to get in touch with us.

Be smart, claim wise.