Compensation Claim

Making a claim for compensation if you’ve been injured in an accident can be a stressful and complicated process at the best of times. In order for your injury to be properly assessed, the reports of medical practitioners can be very important in helping determine the eventual success of your claim and the amount you will receive.

But do you need to wait until you’ve seen a doctor before lodging a claim for compensation? The answer varies depending on the type of claim. In this article, we’ll deal with a couple of the most common claims for compensation – for injuries sustained in the course of your employment, and for injuries resulting from motor vehicle accidents. For other injuries where you believe you have a claim for compensation, seek the advice of an expert personal injury lawyer as to the importance of a medical assessment.

Workers’ compensation claims

Most Australian employees are protected by state-based statutory insurance schemes in the unfortunate event that they are injured at work.

To make a WorkCover claim in Queensland, you need to report an injury sustained at work to your employer within 30 days of becoming aware of the injury. One of the ways to do this is to lodge a WorkCoverclaim for compensation.

If you do not need to take any time off work, but you want WorkCover to cover any medical expenses you incur because of the injury, your claim form needs to include any accounts/invoices relating to your medical treatment, meaning you need to see a doctor for treatment and give them details about how you were injured before making the claim.

If you need to take time off work because of the work injury, the WorkCover claim form must be accompanied by a Work Capacity Certificate completed by a doctor.

This certificate helps insurers assess and determine the employer’s liability for the claim, and determine the type of treatment and rehabilitation required to help the injured worker return to work. It also helps employers identify the duties an injured worker is capable of undertaking.

So whether you take time off work or not due to the injury, you will need to see a doctor before making a claim.

Motor accident insurance claims after injury

In order to make a claim under Queensland’s compulsory third-party (CTP) insurance scheme, an injured person must complete a Notice of Accident Claim Form (Non-Fatal Injury). A key part of completing this form is a medical certificate filed with the claim. The certificate provides the insurer with a diagnosis of your injury and indicates the extent of your injuries and any proposed treatment.

The physical examination of your injuries must be performed by the medical practitioner before, or when, the medical certificate is completed by the doctor. Your claim is likely to be significantly delayed if this physical examination does not take place before you make a claim. As insurers are only liable for injuries arising from the accident, an incomplete certificate or unclear diagnosis will require further investigation of your claim and delay the process. This can be particularly worrying if you are relying on the insurer to fund ongoing treatment and rehabilitation.

As the medical certificate is part of the claim form, it’s generally you who will present the certificate to the doctor for completion.

A CTP insurer or your legal representative may also request medical reports from either your doctor or another medical practitioner. These could include different types of reports, including treatment plans and medico-legal reports.

In making a decision on liability, the CTP insurer will also generally require you to attend a medical examination with a doctor of its choice.

Other types of claims

Personal injury claims that are not workers’ compensation or motor vehicle accident claims, such as medical negligence claims, are governed under Queensland’s Personal Injuries Proceedings Act 2002.

A claim for medical negligence, for example, requires an attached written report from a medical specialist qualified to assess the conduct of the person against whom it is alleged they failed to provide an appropriate standard of medical care.

Other personal injury claims such as slips and trips in a public place differ in the requirements for a medical report before making a claim, though in general you are advised to see a doctor and document any medical treatment as soon as possible after the accident.

As discussed, this can be a complicated legal area and the claims process can cause a lot of stress and uncertainty for the injured person. If you have been injured in any of the scenarios outlined above and have questions and concerns about how to proceed, contact specialist personal injury firm Lifestyle Injury Lawyers today. We can provide a free initial consultation to assess your case, either through our website, by email at info@lifestyleinjurylaw.com.au, or by phone at (07) 5627 0321.

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.

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