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hit and run
By | Road Accident Claim

Following serious hit and run accidents in Queensland, authorities often make public appeals for help. In most cases they will ask anyone with knowledge of the crash to contact them including, of course, the driver who fled the scene. Sadly, Queensland police have had to turn to the public all too often lately. The most recent appeal (on January 24) came hours after an unknown vehicle struck and killed an 18-year-old Geham man who was walking on the New England Highway near the intersection with Reushle Road.

Of course, not all hit and run accidents result in serious injuries or death. Some just cause property damage. In any case, here’s what you should do if you have been involved in this type of accident.

Applicable laws

In Queensland, you must report a motor vehicle accident to the police if:

  • someone was hurt;
  • someone died;
  • property damage is greater than, or is likely to be greater than, $2,500.

Section 92 of the Transport Operations (Road Use Management) Act 1995 also mandates that any motorist involved an incident that results in a death or injury must:

  • stop immediately;
  • stay at the scene;
  • provide reasonable help to injured persons;
  • make reasonable efforts to get medical help and other applicable assistance for injured persons;
  • demonstrate proper decorum for the body of a deceased person;
  • take appropriate steps to have the body transferred to a suitable place.

The only exceptions to this are if the driver leaves to:

  • get medical help or other assistance for an injured person;
  • get help having a deceased person’s body relocated to a suitable place.

Consequences for failure to comply

Under Section 92 of the Transport Operations (Road Use Management) Act 1995 the punishment upon conviction for leaving the scene of the accident as detailed above is 20 penalty units or one year imprisonment if no one was hurt or killed. The maximum penalty, imposed for leaving the scene of a motor vehicle accident where someone was hurt or killed, is 120 penalty units or three years imprisonment.

Furthermore, anyone convicted of leaving the scene of a motor vehicle accident where there are fatalities or injuries will not be able to hold or obtain a Queensland driver’s licence for at least six months. You should be aware that the court has no discretion regarding driver disqualification in these circumstances.

As long as there is sufficient proof, a court will also impose some period of imprisonment as part of the sentence for anyone who has “showed a callous disregard for the needs of a person injured in the incident”.

Tips for hit and run accident victims

Now let’s talk about what you should do and, just as importantly, what you should not do, if another motorist hit your vehicle and fled the scene.

To begin with, do not try to take matters into your own hands. Do not pursue or try to confront the other driver. Instead, remain calm and try to gather as much information as possible. Specifically, you should try to get the vehicle’s registration number and a description of the driver and their vehicle.

Do not forget to report the accident to police and make sure you can get a copy of the accident report. While on the scene, try to gather all relevant information from any witnesses. This includes their names, phone numbers and any other contact information they are willing to provide. Be sure to take note of any details they can provide about the other vehicle and driver, too.

If at all possible, use your smartphone to document the accident scene. This should include the damage to your vehicle along with any other property damage, such as fallen trees, bent light poles, broken fences and so forth. While you are at it, see if any nearby shops, businesses or residences have surveillance cameras that may have captured the accident.

Finally, do not forget to contact your insurance company to get the claims process started.

If you were hurt…

If you were hurt in a motor vehicle accident where the other driver fled the scene, it is crucial that you get medical attention as soon as possible. This is important not only for your wellbeing but also for your insurance claim and any other legal action you may take.

If you are unable to document the scene as detailed above, ask someone with you to document the scene for you. If that’s not possible, try to visit the scene as soon as you are able to after the accident, or ask a friend or family member to do so for you.

Something else to keep in mind is that the process for initiating a claim for compensation through the other driver’s insurance provider is also different in a hit and run accident. If you get their registration number, in Queensland simply provide it to the Motor Accident Insurance Commission. It can use the information to verify the driver’s identity and their CTP insurer. This allows you to seek compensation for your injuries and damages directly through that insurer.

Even if the at-fault driver cannot be identified, all is not lost. This is because there’s another way to initiate a compensation claim for your injuries against the ‘Nominal Defendant’. Specifically, you can do so through a government insurance program. This particular program provides financial protection to injured victims in these cases.

It’s also important to note that a strict time limit applies to bringing this kind of claim. In Queensland, a claim form must be lodged within three months of the date of the accident and no later than nine months from when it happened. There is no possibility of making a claim against the nominal defendant in Queensland if you do not meet the nine-month time limit.

Keep in mind this program differs throughout Australia. Therefore it is important to get proper legal advice before pursuing this option.

Do not be afraid to pursue all legal options

Even if pursuing a claim against a Nominal Defendant seems like a hassle, it may be worthwhile. If you are eligible to file this sort of claim and you are successful, you may receive compensation for:

  • medical costs;
  • rehabilitation costs (such as physiotherapy and similar treatment);
  • loss of income or reduction of your income due to the inability to work;
  • the cost of home modifications associated with your injury (such as wheelchair ramps, grab rails, and so forth);
  • home care costs;
  • pain, suffering and loss of enjoyment of life (in some cases).

Of course, every situation is different. If you were involved in a hit and run accident and you want to learn more about your rights, contact our Gold Coast personal injury lawyers through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321.

Public Liability Claim
By | Public Liability Claim

Here is the thing about personal injury law: It appears simple, but it can actually be quite complicated. Among other things, lawyers working in this area must determine whether a prospective client has a viable case and what type of claim to pursue. We must also weigh which legal strategy is most likely to result in a substantial judgment or settlement in favour of the claimant. All of this is largely determined by the circumstances that led to the person’s injury. Relevant factors include what happened, how it happened, and where it happened.

For the purposes of this article, we will explore the situations in which we may pursue a public liability claim on your behalf.

Defining public liability

In Queensland, public liability is legally defined as any situation in which:

  • an individual, business or entity;
  • has a legal obligation or duty;
  • to keep people safe whilst on the premises; and
  • violates that duty; and
  • you are injured as a result.

We may be able to help you pursue a public liability claim as long as you were not hurt at work or in a motor vehicle accident. It should be noted there is an exception for workers who are engaged as contractors or through a labour hire firm and are injured at work. They may be able to make a public liability claim unless there are indemnity clauses or conditions in the contract which protect the employer from injury claims by a contractor or labour hire firm.

Another thing to keep in mind is that contrary to popular belief, these claims are not limited to incidents that happen on public property. You may also be able to seek compensation from someone who:

  • owns or occupies;
  • a private home or similar space; and
  • fails to keep you safe;
  • while you are on the premises; and
  • you are injured as a result.

What must be proven

To make a successful public liability claim, there must be enough evidence to prove that:

  • someone had a legal duty of care (the legal obligation to keep you safe);
  • they did not fulfill this obligation;
  • there are reasonable expectations that their failure to do so could result in injury or damage.

In this context, it is important to note that you can pursue liability claims under state and federal laws. However, you should also be aware that changes in public liability laws have made it harder to show negligence if you were hurt by an “obvious hazard”.

Common public liability claims

The following are examples of incidents or accidents that often result in public liability claims:

  • shopping centre injuries;
  • playground and schoolyard injuries;
  • injuries incurred while playing sports;
  • injuries stemming from a slip or fall at a supermarket or similar location;
  • dog bites and other injuries caused by animals;
  • falls resulting in injuries while in parks, gardens or on footpaths;
  • illness caused by food poisoning.

Building your case

If you were hurt in any of the circumstances detailed above, be sure to seek medical treatment as soon as possible. Doing so is critical for three reasons. The first is for your wellbeing. The second is that it will boost your credibility. And the third is that any medical records will serve as valuable proof of your injuries.

In addition to your medical records, any pictures of your actual injuries will help bolster your claim. So will photographs of the place where you were hurt. We will also need any records serving as proof of lost wages and relevant expenses. Documents showing the dates of medical appointments will also be helpful as we build your case.

Expected amount of compensation

One question that most clients have is how much compensation they can expect to receive in a successful claim. Unfortunately there is no simple answer. This is because every case is different. Factors usually taken into consideration are:

  • Expenses associated with the initial treatment of the physical or psychological injury.
  • Ongoing medical costs, such as rehabilitation, home care and so forth.
  • Non-economic losses, such as pain and suffering.
  • Loss of earnings or superannuation due to the inability to work.

If the circumstances leading to your injury or injuries were especially egregious, the court may also award “aggravated and exemplary” damages. A court will usually do so when it wants to punish the defendant.

You should be aware that you may also be able to obtain compensation through this sort of claim if you weren’t actually hurt. Specifically, you may be able to do so as a family who incurred certain costs while caring for the injured person. Depending on the circumstances you may also be able to seek compensation for undue stress or other difficulties incurred as a result of their injury.

To learn more about making this sort of claim, we are here to help. Contact our Gold Coast personal injury lawyers through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321 to schedule a meeting with a member of our public liability law team today.

Nervous Shock Claim
By | Compensation Claim

Accidents happen in life. With luck, you hope you’re never involved in a bad accident, whether it be at work, while driving, or during recreational activities.

But witnessing a bad accident can also be highly distressing. For some people, seeing an accident happen – particularly if it’s fatal and particularly if it involves a close family member – can cause long-term damage to their emotional and mental wellbeing. The result can be an inability to sleep, social withdrawal, an inability to work and many other debilitating consequences.

In these situations, it’s possible to make what’s called a ‘nervous shock’ claim for compensation. This is much like any other personal injury claim in that the victim seeks compensation from the person or persons who caused the accident for the harm they have suffered. Nervous shock can be caused by actually witnessing the incident or, potentially, from the trauma experienced by arriving at the scene of the accident or even hearing about it afterwards.

The key difference is that nervous shock claims are much more difficult to prove than cases involving physical injury. This is because nervous shock is a legal term and refers to someone developing a psychiatric illness that results from witnessing something distressing or traumatic. Proof of psychiatric illness is naturally harder to demonstrate than physical injury, and so an experienced compensation lawyer should be consulted before considering such a claim.

What is required to prove a nervous shock claim?

In Queensland, claims for nervous shock are still primarily governed by common law principles, although the Civil Liability Act 2003 does include negligence claims for ‘psychological injury’. In most other states, such claims are now codified in legislation which limits who may make such a claim.

NSW’s Civil Liability Act 2002, for example, requires that for a nervous shock claim to succeed, the claimant must obtain medical evidence that diagnoses a recognisable psychiatric condition which is more than a normal reaction of grief to the accident. Section 30 of that Act limits compensation for “pure mental harm arising from shock” to situations where: the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or the plaintiff is a close member of the family of the victim.

In Queensland, the famous 2002 High Court decision in Annetts v Australian Stations Pty Ltd, is still guidance for how nervous shock claims are decided. In that case, Mrs Annetts, the mother of a 16-year-old boy who was employed on an outback cattle station and died when working in a remote location without supervision, suffered a psychiatric injury not through sudden shock but by a slow process exacerbated by the four-month search for her son’s body.

In this case, it was the proof of the psychiatric disorder Mrs Annetts had suffered as a result of her son’s disappearance and death that was relevant to the decision, rather than the manner by which it had come about.

In essence, under common law, in a claim for nervous shock (or alternative terms such as ‘pure’ psychiatric or mental harm) a person can only be liable in negligence for causing another person to suffer a recognised psychiatric illness.

In more recent case law developments, it’s become clear that the psychiatric harm suffered need not be the result of a sudden shock, nor in Queensland is there a limit on a person recovering damages for such harm because they did not directly perceive the traumatic event or its immediate aftermath. But direct perception may make it easier to prove that the psychiatric harm was reasonably foreseeable, a key factor in working out whether the defendant owed the victim a duty of care. The relationship of the claimant to the primary victim (the person killed or injured by the negligent person’s actions), also remains highly relevant.

While this generally refers to family members, rescuers (such as police, ambulance or fire officers) and employers have also been found to be included in recognisable relationships where foreseeable harm is possible.

What damages are possible from such a claim?

If you’re able to prove the basics of negligence in your nervous shock claim – that a duty of care was owed, that the duty was breached, and that the breach caused your injury – you will also need to show that you have suffered damage as a result of the injury. This might include past and future expenses, lost wages, and even future economic losses. Your medical treatment helps establish both the existence of your injury and the cost of the injury.

The amount of damages you may be entitled to will depend on the severity of your injury and its duration. Has the psychiatric illness resulting from the shock caused permanent incapacitation where you can no longer work or properly look after yourself?

In a 2014 NSW case, Lee v Carlton Crest Hotel, the plaintiff Ms Lee, who witnessed her husband reverse their car out of a multi-storey car park and fall to his death, was awarded more than $250,000 for non-economic loss plus substantial amounts for past and future expenses (medical and psychiatric treatment, and medicine), and domestic assistance, after a near “complete psychological collapse” following the accident.

In conclusion

Nervous shock claims can be tricky to prove, particularly in Queensland where common law principles still apply to determining whether the negligence of a third party caused a recognisable psychiatric injury and resulted in damage. In claims arising from road accidents, this can be complicated by the existence of the statutory CTP scheme in the Motor Accident Insurance Act 1994, which will generally see the insurer challenge such claims.

The best course of action if you believe you have a nervous shock claim is to consult as soon as possible with expert compensation legal professionals. Contact our Gold Coast personal injury lawyers through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321 today for an initial consultation.

workers compensation claim
By | Work Accident Claim

In cases where a person is injured at work, they are generally covered by WorkCover Queensland. This means they’re able to make a claim for compensation through the government scheme to pay for lost wages and required medical treatment until they’re able to return to work.

But what happens if you aggravate a pre-existing injury while you’re at work? Say you had an old back injury sustained a few years ago while playing football that suddenly flares up when you’re performing a task during your employment and renders you unable to work – can you still make a compensation claim through WorkCover?

Well, it depends…

When you can – and can’t – claim compensation despite a pre-existing injury

There are situations where you’re unable to claim for compensation for a work injury because you aggravated a pre-existing injury. Most commonly this occurs where, in the pre-employment phase, an employer asks you to disclose any pre-existing injuries or medical conditions which could reasonably be expected to be aggravated by performing the duties expected of you in the job. This is particularly the case in jobs that require manual labour, such as building or labouring.

If at this stage you knowingly supply false or misleading information about a pre-existing injury, under the Workers Compensation and Rehabilitation Act 2003 you may not be able to lodge a claim for compensation as result of any subsequent work injury that aggravates a pre-existing injury or condition.

In situations where an employer hires you to start work before requiring you to disclose any pre-existing injuries or conditions, then you will still be entitled to claim for compensation.

In every other situation, therefore, as long as you have disclosed a pre-existing injury to your employer, you will be entitled to make a workers’ compensation claim for any injury where work was a significant contributing factor.

This includes injuries that were caused by the negligence of an employer, co-workers or any third parties that you come in contact with through your employment.

After first making a workers’ compensation claim through WorkCover by proving that your job was a significant contributing factor to your injury, or aggravation of a pre-existing injury, you may also then be eligible to make a common law claim. It’s best to consult an experienced personal injury lawyer if you wish to take this course.

Are there any other options if you’re ineligible to make a claim?

If you’re unable to make a claim either through workers’ compensation or at common law because you failed to disclose your pre-existing injury to your employer, you may still be able to rely on income protection payments and/or total and permanent disability cover through your superannuation provider, provided they are part of your account with the fund.

Unlike compensation claims, these types of claims do not require another party to be ‘at fault’ for your injury but may still help you financially through a difficult period where you’re unable to work while you recover.

If you’re unsure about where you stand after aggravating a pre-existing injury at work, get in touch with our expert personal injury lawyers Gold Coast at Lifestyle Injury Lawyers. We can advise you on the best next steps if any of the situations raised above apply to you. Contact us for an initial consultation today through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321.

workers' compensation claim
By | Work Accident Claim

In most cases, Australians hurt on the job can seek compensation through WorkCover. But there is another option. Depending on the circumstances, you may also be able to pursue a common law workers’ compensation claim. Here’s what you need to know about this type of claim, and how to make one.

The basics

For starters, it’s important to understand the key differences between what’s known as a statutory WorkCover claim and a common law workers’ compensation claim.

Basically, blame is not a factor in a WorkCover statutory claim. So it doesn’t matter who caused the accident in which you were hurt. To a certain extent, it doesn’t even matter how it happened. As long as you can prove you were injured on the job and you are actually hurt (you aren’t faking or exaggerating the injury), you are entitled to compensation.

By comparison, blame is the key factor in a common law workers’ compensation claim. This is because you have to prove that someone else was at fault and that they were careless to secure applicable benefits. Specifically, you must prove that:

  1. an individual or entity had a duty to ensure your safety at work; and
  2. that he/she/it violated that duty;
  3. by taking or failing to take certain actions;
  4. and that this directly caused or contributed to your injury;
  5. and that you are actually hurt.

Legally, this is known as negligence.

Lodging a common law workers’ compensation claim

If you think someone else’s negligence caused your work injury, the first thing to do is contact a qualified lawyer. At Lifestyle Injury Lawyers, our team can quickly assess your situation. We can then determine if you have a viable claim. If you do, we’ll begin by sending an official document called a Notice of Claim for Damages to your employer and WorkCover. In this document, we basically explain your side of the story. We also state our case against the negligent party/parties.

Once it gets this Notice, WorkCover will notify its lawyers. However, it is important to note that these lawyers also act in the employer’s interests. That means they will keep the employer apprised of developments, and allow it to participate in the ensuing investigation.

In accordance with Queensland’s Workers’ Compensation and Rehabilitation Act 2003 (“the Act”), WorkCover has a limited time in which to act. Specifically, it has six months to conduct its investigation, with the employer’s help. Based on its findings, it must then admit or deny that the employer is legally responsible for your injury.

In addition to leading the investigation, WorkCover’s lawyers may also coordinate monitoring of your activities and independent medical evaluations needed to determine the validity and extent of your injury. They will also try to estimate how much a court could potentially award if the case got to that point.

What happens next?

Once the investigation is over, all parties are legally obligated to attempt to reach an acceptable settlement. This must be done before the case can go to court. In most cases, all relevant parties (WorkCover, the injured worker and their respective lawyers) simply schedule a settlement conference, also known as a compulsory conference, to settle the matter. You should be aware that WorkCover will probably invite your employer, too. This is because the payments it ultimately makes may impact the employer’s premium calculations going forward.

If the matter is clear cut, negotiations may be conducted over the phone or by email. This makes the process cheaper and simpler. But no matter how a settlement is reached, you (the worker) must agree to abide by certain conditions. First, you must provide written agreement that you will not pursue further legal action against your employer and WorkCover. You must also agree to keep the settlement confidential.

Unfortunately, negotiations can drag on for quite some time, sometimes as long as a year or more. If a settlement isn’t reached after 12 months (or more), the matter will go to court. However, it may take another year before the actual trial starts.

What’s required at trial?

The length of the trial will depend on your situation. If there are few disputed issues, the trial could take a couple of days. If there are several issues in dispute or complex legal matters are in play, it will probably take longer.

Your lawyer will let you know what’s required of you at this stage. Depending on the circumstances of the case, your employer may have to testify at trial.

You should be aware that it will take a while before judgment is given. It usually takes a few weeks, or sometimes even months, to get a judgment and any orders regarding costs.

Speaking of costs, the court usually mandates that one party pays the opposing party’s costs if the result at trial is less than what was offered during pre-trial negotiations. In other words, if your judgment is less than what your employer offered during pre-trial negotiations, you must cover their legal costs. Courts do this to promote careful consideration of fair pre-trial settlement offers.

Why pursue this type of claim?

Only a qualified lawyer can help you decide whether to pursue WorkCover benefits or lodge a common law workers’ compensation claim. While making this determination, he or she will likely discuss the difference in the benefits you’ll get if you’re successful. WorkCover benefits typically include:

  • Compensation for all medical and rehabilitation expenses associated with your injury.
  • Partial compensation for lost income due to the inability to work because of your injury.
  • A lump sum payment for any permanent disability resulting from the accident (if applicable).

On the other hand, a successful common law settlement or judgment typically includes compensation for economic and non-economic losses. Examples of the latter include pain, suffering, loss of intimacy and loss of life enjoyment. It may also include an award for past or future care, depending on whether you satisfy the appropriate thresholds.

To learn more about the type of claim that’s right for you, contact our Gold Coast personal injury lawyers through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321.

Wrongful Death Claim
By | Compensation Claim

The loss of a loved one in an accident is never an easy time for any family. But if the death was caused by the negligence of another person – what the law terms a “wrongful death” – the dependants of the deceased are able to make claims for compensation which recognise both their financial and emotional loss.

The accident may have occurred at work, in a public place, or while driving. For a dependency claim by the deceased’s family to be successful, it must be proved that the death was caused by the negligent act of another person and that, had the deceased lived, he or she would have been entitled to raise a civil action against the person at fault.

A dependency claim can seek compensation both for the loss of the financial contribution the deceased made to the family (including future earnings) and also the loss of the care and assistance they provided to a household, such as domestic tasks and personal care of dependants. Funeral expenses and any medical and other out-of-pocket expenses incurred as a result of the accident are also claimable.

If the death occurred in the presence of family members (or near to them), they may also be able to make a ‘nervous shock’ personal injury claim for the loss and damage they have sustained because of that injury. It should be noted that damages are not recoverable for grief, sorrow and other distress resulting from the loss of a close family member.

Further claims can also be made for loss of consortium and servitium. Loss of consortium is a claim for compensation by a partner or spouse for loss of the company of a loved one. Loss of servitium claims are made when the person killed in an accident was a key member of a business or enterprise, and that business or enterprise loses, or is likely to lose income in the future, as a result of the death.

Who can make a dependency claim?

Queensland’s Civil Proceedings Act (“the Act”) defines the family members who can make a dependency claim, including:

  • A ‘spouse’, including a de facto partner of the deceased if they lived with the deceased as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death; or
  • a de facto partner who lived with the deceased for a shorter period, if the circumstances of the relationship evidenced a clear intention that the relationship would be a long-term committed relationship;
  • a parent, including stepparents and grandparents;
  • a child, including any child of the deceased (within or outside of marriage), as well as an adopted child, stepchild, grandchild and any other child for whom the deceased had assumed responsibility. This includes a child of the deceased born after their death.

The Act provides for only one action being brought on behalf of all dependants, by either a personal representative of the deceased or by one or more members of the deceased’s family claiming damage as a result of the loss. In the case of multiple dependants, any compensatory amount must be divided between each of the dependants. If one of the dependants is a minor, the settlement must be sanctioned by either the Supreme Court or the Public Trustee of Queensland.

Where and how the deceased’s wrongful death occurred is relevant to the dependency claim. If it happened at work, then dependant can make a claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) with WorkCover Queensland, for example. A road accident occasioning death and caused by the negligence of another allows for a dependency claim through the Motor Accident Insurance Act 1994 (Qld), while the Personal Injuries Proceedings Act 2002 sets out the requirements for such a claim in the case where a loved one died as a result of an accident in a public place. An action for loss of services provided by the deceased is governed by s 59A of the Civil Liability Act 2003 (Qld).

It’s important to note the time limits for starting a dependency claim, which in Queensland is within three years of the date that the cause of action arose, i.e. your loved one’s death.

Nervous shock claims

Seeing a loved one suddenly killed or seriously injured in an accident caused by the fault of another person, or even just hearing about it, can in some circumstances result in psychiatric injury as a result of the shock and trauma involved. In the worst instances, this injury can prevent a person continuing to work or even looking after their personal care.

Where this is the case, the injured person may be able to make a personal injury claim. Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock to someone who either “witnessed, at the scene, the victim being killed, injured or put in peril, or … is a close member of the family of the victim.” “Close member of the family” is defined as a parent, spouse or partner of the victim, a child, step child, brother, sister, half-brother, half-sister, step brother or step sister of the victim.

To make a successful claim for nervous shock, the family member claiming injury will need to obtain medical evidence which diagnoses a recognisable psychiatric condition that is more than a normal reaction of grief.

Again, a time limit of three years from the time of the accident applies in which to make a claim.

The importance of legal advice

To make a successful claim in any of the situations described in this article, the advice and guidance of experienced Gold Coast compensation lawyers is essential. The unique circumstances of wrongful death, combined with the variety of pieces of legislation covering compensation claims and the principles established at common law, mean that a great deal of expertise on the part of your legal representative is required in order to secure the compensation amount you’re entitled to.

Compensation matters are often long, complex and emotionally challenging. At Lifestyle Injury Lawyers, we’re compensation specialists who can help with any questions or concerns about wrongful death claims. Contact us today on (07) 5627 0321 or info@lifestyleinjurylaw.com.au

motorbike accident lawyer
By | Road Accident Claim

Introduction

Motorcycle use in Australia has been steadily increasing since the early 2000s but the percentage of motorcycle registrations only account for around 4.5% of all passenger vehicle registrations. However, motorcycles account for a shockingly disproportionate number (around 15%) of all road crash deaths. Of those road deaths, alcohol and drugs were a causal factor in the accident 46% of the time. It’s a fact which reinforces something we all already know: drinking and driving do not mix.

Below we examine the facts in a case of a motorcycle death where alcohol was a factor and the question of fault was the Court’s chief concern.

Summary

After a night of heavy drinking, a couple of friends decided to take a 5am ride on their off-road motorcycles. The trail bikes were both unregistered and neither had headlights, despite the friends taking them onto a public road. Though the plaintiff was an experienced trail bike rider, he was unlicensed. The two friends were involved in a head-on collision while travelling from opposite directions on the road.

The crash occurred around 1.5 metres from the centre of the road on the plaintiff’s side, and both bikes collided on their left sides. This means that the defendant’s bike strayed across the path of the plaintiff’s bike prior to collision. Both plaintiff and defendant were intoxicated, but only the defendant was determined to be moving in excess of the speed limit.

Though the plaintiff was the only one wearing a helmet, he still suffered extreme injury. The plaintiff had his left leg amputated and lost the use of his left arm. Because the defendant was unregistered and uninsured, the plaintiff had to sue ‘the Nominal Defendant’, which is the stand-in entity for unregistered or uninsured vehicles.

Defendant

The defendant argued that the plaintiff was not owed a duty of care because the plaintiff had knowledge of the defendant’s intoxication. The defendant argued that even if the plaintiff was owed a duty of care, he contributed so extensively to the accident that his right to compensation should be reduced by 100%.

Furthermore, both the defendant and the plaintiff were willingly engaged in illegal activity (riding unregistered trail bikes while heavily intoxicated, and the plaintiff was unlicensed) and thus were both guilty of “joint illegal enterprise”. Because of their joint breach of criminal law, the defendant argued that the plaintiff was not entitled to claim compensation.

Plaintiff

The plaintiff accepted that he and the defendant were both at fault for the accident, but that the defendant was far more at fault and thus still owed the plaintiff a duty of care. The plaintiff reasoned that the defendant was more liable for the accident because, but for the defendant’s negligence in drifting to the plaintiff’s side of the road, the accident would not have happened. Unlike the plaintiff, the defendant failed to use a helmet, failed to maintain an appropriate speed, and failed to stay on his side of the road. The plaintiff argued that while his own actions contributed to the accident, it should only reduce his compensation claim by 25% because the defendant was 75% at fault.

Conclusion

The District Court and the Court of Appeal both ruled in favor of the plaintiff. They found that it was clear that the defendant’s failure to stay on the opposite side of the road was the primary cause of the accident, and it could have been avoided had he exercised reasonable care. While the defendant owed a duty of care to the plaintiff, the plaintiff was not completely absolved of fault. Thus the Court reasoned that the plaintiff’s right to compensation should be reduced by one-third (33%) for contributory negligence.

unregistered car accident
By | Road Accident Claim

Most people are aware that if they are involved in a motor vehicle accident and sustain serious injuries, a compensation claim may be available to them. Generally, if fault can be established, then the injured person is entitled to make a compensation claim against the at fault vehicle’s CTP insurer. However, what happens when the at fault vehicle is uninsured and not registered or if the vehicle has fled the scene of the accident and cannot be identified? This article will aim to answer those questions and give a brief overview of what happens in such a compensation claim.

The Nominal Defendant was created by the Queensland Government in 1961 so those injured in motor vehicle accidents involving unregistered, uninsured or unidentified vehicles were not disadvantaged in any way. There is, however, different limitations and restrictions placed on such claims.

A notice of claim generally must be given to the CTP insurer within 9 months of the date of accident or be accompanied by a reasonable excuse for delay. If, however, the accident involved an unidentified motor vehicle, the notice of claim must be given to the Nominal Defendant strictly within 9 months or the claim against the Nominal Defendant will be statute barred. This means you will be barred from ever bringing a claim and you will lose your entitlement to compensation.

In a personal injury claim involving an unidentified vehicle a claimant is under an obligation to perform proper search and inquiry according to section 31(2) of the Motor Accident Insurance Act 1994 (Qld). This requires the claimant to perform searches/inquiries in an attempt to identify the vehicle. This may include letter box drops, publishing a public notice in the local newspaper and/or speaking with any potential witnesses. If a proper search and inquiry has failed to identify a vehicle then a claim against the Nominal Defendant will be accepted.

It is interesting to note that there are serious implications if you have been driving an unregistered and uninsured vehicle and are at fault for an accident. After a personal injury claim has resolved the Nominal Defendant could then pursue you for the damages they were required to pay to the injured claimant. This could amount to hundreds of thousands of dollars if a person is seriously injured. As such, it is extremely important to make sure you pay your registration on time to ensure your vehicle is insured.

Strict time limits apply to claims involving the Nominal Defendant. So, if you have been involved in an accident where you believe an uninsured, unregistered or unidentifiable vehicle is at fault it is in your best interests to contact a personal injury lawyer in Gold Coast immediately to avoid losing your right to compensation.

car accident lawyers gold coast
By | Road Accident Claim

Most people have never been involved in a car accident and for some people that will stay that way. Unfortunately, through no fault of your own, there is a high chance that during your lifetime you will be involved in at least one car accident. Being involved in a car accident can be an extremely traumatic experience. If you have never been involved in an accident you will likely have no idea what to do and this may cause you to panic.

To avoid that, we have devised a number of simple tips for you to follow if you are ever involved in an accident.

  1. Stay calm, keep your cool and don’t panic;
  2. Maintain the safety of yourself and others;
  3. Call 000 if you or anyone involved has suffered any injuries or there is significant damage;
  4. If possible, move your car to the side of the road where it is safe. However, if you are unable to do this put your hazard lights on and remain inside the vehicle;
  5. If you are able, once the vehicle has been relocated to where it is safe, exchange details, take photos of the accident scene, the vehicles involved, the other person’s licence and any injuries if visible;
  6. See a doctor as soon as possible and report all injuries, no matter how insignificant they may seem; and
  7. Seek legal advice as strict time limits apply.

We hope these simple tips are helpful and give you a better understanding of what you should do if you are ever involved in a car accident. If you have been injured in a car accident and believe you may be entitled to compensation please seek urgent legal advice as strict time limits apply.

injured at shopping centre
By | Public Liability Claim

What is public liability compensation?

In the unfortunate situation that you are involved in an accident in a public place, you may be entitled to claim compensation for your injuries. You are potentially able to claim compensation not only for the injuries that you sustain, but for loss of earnings, pain and suffering, medical expenses such as rehabilitation costs, and domestic assistance. There is, however, a time limit of three years following the accident to make a claim.

To be able to make a public liability compensation claim, you must establish:

  1. That you were owed a duty of care;
  2. that the duty of care was breached;
  3. that the person who breached the duty of care should have known that it would cause your injury.

What is not covered by public liability compensation?

Every situation is different, and claims are dependent upon the specifics of the case. The most common personal injury compensation claims result from motor vehicle accidents, workplace accidents, dust diseases and sexual misconduct.

What can you claim for loss of earnings?

Damages in public liability claims can be made for loss of past and future earnings, as stated in the Civil Liability Act. Financial support may also be offered to family members of the person injured.

The maximum amount that may be claimed is capped at $3,617.40 gross per week as set out in section 12 of the Civil Liability Act, even though the weekly payment amounts are based on a claimant’s pre-accident income.

Compensation for pain and suffering

Once again, every situation is different and the amount that one may claim is dependent on the circumstances of the situation.  In NSW, damages for non-economic loss or pain and suffering, are only awarded for injuries that are at least 15 per cent of the most extreme case. The formula for assessing these damages in the Civil Liability Act is as follows:

  • determine the severity of the claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed  as a percentage;
  • confirm the maximum amount that may be awarded… for non-economic loss in a most extreme case. This amount is indexed each year under section 17;
  • use the Table (in s 16) to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.

The current maximum amount of damages that may be awarded for non-economic loss as of October 1, 2018, is $635,000.

Medical costs and rehabilitation treatment

Claims may also be made for past and future medical expenses which can include pharmaceutical expenses, rehabilitation treatment and the cost of travelling to and from medical appointments.

Domestic assistance

A public liability claim may also help to cover the costs of domestic care such as nursing care and home assistance. These costs will not be awarded, however, unless the court is satisfied that the domestic care is necessary and that the need for the care is as a result of the injury sustained.

Seeking legal advice

If you are involved in an accident, it is advisable that you seek legal advice to ensure you can access the compensation you may be entitled to as you recover.