Personal Injury Claims: Your Comprehensive Guide To Getting The Compensation You Deserve
As the saying goes, “Accidents will happen!”
However, being injured in a road accident, at work, or whilst you are just “out and about” is a terrifying experience and causes serious injuries. No-one can be prepared for the unexpected and unanticipated physical pain, the mental anguish and the financial stress which result from being injured in an accident.
Where the injuries were caused by the negligence (fault) of someone else, the injured person may be entitled to receive monetary compensation to ease the financial stress and get back to a normal way of life.
The payment of Compensation can also provide the injured person with some sense of justice for the insult of being negligently injured.
Most road accidents are caused by the fault of a driver of a motor vehicle, including cars, buses, trucks and motorcycles.
Many work injuries are caused by the negligence of the worker’s employer or due to the nature of employment. In fact, between 2021 and 2022, approximately 497,300 people sustained a work-related injury or illness.
There are situations where compensation is available for those who are injured, for example, if someone is injured, even if only psychologically, by being attacked by an unrestrained dog, by tripping/slipping and falling on dangerous surfaces in supermarkets, shopping centres and other public places, by suffering injuries by negligent medical treatment or therapy, or whilst in hospital, by suffering severe psychiatric injury following sexual abuse, and being injured by faulty products.
In most instances, compensation is paid by way of a tax-free, once and for all, lump sum of money.
Any person who has been injured by the negligence of another person or corporation must be aware that there are time limits for lodging claims and commencing court proceedings.
As no one ever expects to be injured and is unprepared for the terrible consequences that can follow, it is good to know that expert compensation lawyers, such as the exceptional lawyers at Stacks Goudkamp, can help initiate and navigate the personal injury process efficiently, empathetically and successfully.
Therefore, if you, or someone you know, has had the misfortune of being injured in compensable circumstances, ie. by the fault of someone else or a corporation this
comprehensive guide will help explain the personal injury compensation claims process, providing you with everything you need to know to maximise your chances of receiving the compensation you both deserve and need.
What Is A Personal Injury Claim?
A claim for personal injury compensation, often referred to as Damages, is a claim against the person or organisation that has caused your injuries.
Personal injury claims include claims for pain and suffering and loss of enjoyment of life (both emotionally and physically), loss of income and income earning potential, the cost of medical and other therapeutic treatment, the cost of care etc.
Common examples of situations where personal injuries may be compensable are:
- Being injured at work, including psychological injuries from workplace bullying or exposure to traumatic incidents.
- Being injured on the road, as a driver of a car, bus, truck, as a pedestrian, as a motorcycle rider or pillion passenger on a motorcycle, as a first responder at an horrific accident scene.
- Even those who are injured on the road through a hit-and-run road , where the driver at fault can’t be identified, are entitled be compensated through a special scheme called the Nominal Defendant scheme, or if the motor vehicle which has caused the accident was unregistered and therefore uninsured at the time of the accident. (Again, claims are made against the Nominal Defendant.)
- Being injured whilst using a defective product.
- Being injured by the negligence of doctors, therapists, hospitals etc.
- Being injured by a dog which was unrestrained, as required by law.
- Being injured is a slip and fall accident in public places, schools, supermarkets, and other public places, and also on private property, because of the dangerous condition of the premises, or hidden and dangerous hazards etc.
- Being injured in a boating accident.
- Being injured whilst getting on or off an aeroplane or during the flight
- Suffering severe mental distress due to institutional sexual abuse, even if the abuse happened many years or decades ago.
You, as the person seeking payment of damages, bear the onus of proving what happened to cause your injuries, and, in particular, that your injuries were caused by someone else’s negligence. The standard of proof is the civil standard, namely on the balance of probabilities and not by the criminal standard, namely beyond a reasonable doubt. On the balance of probabilities generally means 50%.
If you were partially responsible for your injuries the insurance company on risk will allege that you are guilty of contributory negligence. The way this works is that the insurer has to prove that you contributed to the injuries through your own negligence, again on the balance of probabilities. The compensation you receive will be reduced by the percentage of any contributory negligence found against you.
Most personal injury claims are finalised through a negotiated settlement with the insurance company or its lawyers. Some cases end up being decided by a judge following a court hearing, or in some instances, by an Administrative Assessor.
Where a claim is successfully settled, or the injured person receives a favourable court or Assessor award the insurance has to pay a substantial part of the injured person’s legal costs.
What Is Personal Injury Law?
Personal injury law is basically the law of negligence and compensation, also known as Liability and Damages. The technical phrase for this area is the Law of Torts, ie civil wrongs.
Personal injury law provides remedies for injuries suffered due to the negligence/fault of others. Though the payment of money which, in principle is supposed to return the injured person to his or her pre-injury stat, as far as that can be achieved through the payment of money.
Personal injury law covers a wide range of compensation claims, including:
- Medical negligence: Medical negligence occurs when a medical provider, such as a doctor, fails to meet the reasonable standards of medical competence and as a result conflicts injuries on his or her patient.
- Motor vehicle accidents: Road accidents are often severe because road accidents generally happen at high velocity. Motor vehicle accidents include pedestrians being hit by motor vehicles, including cars, buses, trucks, tractors, motorcycles, passengers hit injured in bus accidents, bicycle riders being hit by motor vehicles etc. You can read more about this in our motor vehicle accident guide.
- Workers’ compensation and work injury damages: workers compensation cover workers who have been injured during the course of their employment. If a worker is injured due to the negligence of the employer the injured worker may be entitled to receive damages, by way of a lump sum payment.
- Public Liability: Public Liability comprises accidents in public places, on private property, at schools and universities and all other places to which entry is permitted if the injuries are caused by the negligence of the manager, occupier or owner of the location where the injuries occurred.
- Attacks by unrestrained dogs: Dog owners can be sued for damages if their dog or dogs cause injuries on public property where the dog or dogs are unrestrained. In such cases the injured person does not have to prove that the dog owner was negligent as the relevant legislation imposes a strict liability obligation on owners to keep their dogs restrained in public.
- Superannuation claims and TPD: If injuries and severe illness put people out of work for a lengthy period of time or permanently the superannuation policies may well provide lump sum payments which can be substantial.
- Travel Accidents:Many people are injured whilst travelling within New South Wales, interstate or abroad on aeroplanes, trains, cruise ships. If you or someone you know has been injured whilst travelling as a result of the negligence of someone else, they may well have the ability to receive lump sum compensation, even if the injuries were incurred in another State or country.
- Institutional sexual abuse: Institutional abuse is a sad reality. There is an enormous amount of institutional sexual abuse in Australia. It has been going on for decades. It can happen at boarding schools, private schools, orphanages, in the military, and, in particular, in places of religion.
All of these areas of personal injury law can be complex and difficult to understand and navigate. Many personal injury compensation cases are strongly opposed by insurance companies and their lawyers. That’s why it’s important for you to engage a personal injury solicitor who has experience in representing injured persons ie plaintiffs’ lawyers. Stacks Goudkamp only represents injured persons and on a no win, no pay basis. Its lawyers are highly experienced, empathetic and knowledgeable.
What Is TPD Insurance?
Total and permanent disability (TPD) insurance is a type of policy that provides you with coverage in the event of total or permanent injury or illness which prevents you from returning to work.
After total or permanent disability, your superannuation provider may well be obliged to pay you a lump sum which would help you cover your ongoing living expenses, medical expenses and daily costs. Most adults who have been employed have some TPD coverage through their superannuation policies, or income protection insurance.
Stacks Goudkamp can help you navigate superannuation and TPD claims to make sure that you get the lump sum you deserve if you have been permanently disabled and prevented from working. Superannuation/TPD claims can be in addition to claims for damages.
How Personal Injury Claims Work
Personal injury settlement process can be extremely confusing and there are strict time limitations. Therefore, the sooner you lodge a personal injury claim in NSW is the better.
Here is a brief breakdown of the process.
- Engage an expert personal injury lawyer who will be able to advise you whether or not your injuries are compensable.
- If you have a compensable claim, engage a personal injury solicitor to work for you and be on your side against the opposing insurance company on risk. Trying to manage a personal injury claim yourself is a false economy because under our compensation scheme the insurer on risks pays most of the injured person’s legal costs if the claim is successfully settled or litigated.
- It is always of great assistance if you provide your lawyer with all necessary documentation to prove your losses since the accident and into the future. Your personal injury lawyer will obtain the medical and other evidence to support your claim including obtaining reports from treating doctors and therapists, arranging medico-legal examinations for expert opinions. Obtaining financial records, employment details to support claims for loss of income and earning capacity.
- Your personal injury lawyer will initiate your claim within the time limits and be proactive in preparing your claim for settlement or, if settlement discussions unsuccessful, for a judge or a claims assessor (depending on what type of accident caused your injuries) to decide what compensation you are to receive.
What Is The Time Limit For A Personal Injury Claim?
The time limits which apply to your case depends on what sort of accident has caused your injuries.
The sooner personal injury claims in NSW are lodged against the person or organisation which has caused your accident (in reality, the insurance company of that person or organisation) the better, as failing to lodge claims in the specified time can be fatal to claims.
The general time limit for commencing court proceedings is 3 years from the time of the accident, although there are exceptions which allow the time period to be extended. You need specialist personal injury law advice in this regard.
How Long Does A Personal Injury Claim Take To Settle?
There is no set time for claims to be finalised. It depends on the type of injuries sustained; the age of the person who has been injured etc.
Because compensation is generally paid in a single “once and for all” monetary lump sum it is vital that the long-term consequences of the injuries are reasonably well known because much of the compensation will be for future, and not past losses.
In some cases, it is safe to predict the future circumstances and needs of an injured person within a relatively short time after the accident. Sadly, those who have suffered spinal cord injuries resulting in quadriplegia or paraplegia, or severe traumatic brain injury are ever likely to get back to work, to have normal life, or to live independently. They will probably alsways be totally or partially dependant on others for all the daily activities of daily life.
Where the injured person is an infant, the personal injury claim process can and probably should take many years to be finalised. That’s because the long-term outlook for a severely injured child is not capable of being reasonably predicted for many years, probably not until the child reaches adulthood. In any event lump sum compensation is not paid to an injured child until the child reaches adulthood. Furthermore, all settlements of children’s personal injury claims must be approved by a judge.
Most other personal injury claims are generally finalised within 1-3 years of the accident, by which time most the injuries have sufficiently stabilised to enable a reasonably educated prediction to be made as to the injured person’s future circumstances.
How Is Personal Injury Compensation Calculated?
The calculation of compensation (Damages) for personal injury claims can be a very complex exercise requiring significant experience, knowledge and expertise by your lawyer.
Because compensation is paid on a once and for all basis, tt is critical that your personal injury lawyer gets it right if you are to receive the proper amount of compensation. There is no coming back for more if the amount of compensation is not enough, because your lawyer has failed to take into account probable future losses and changed circumstances caused by your injuries .Some examples of changes down the track that need to be factored into your case include deterioration in your damaged joints due to the onset of osteoarthritis, epilepsy after a serious head injury, vascular necrosis of fractured bones, (meaning that the bones are dying),knee and hip replacement operations, limb amputations.
Of course, the calculation of compensation is far easier in cases involving minor or modest injuries, where the injured person is likely to recover from the injuries and resume normal life and work activities reasonably quickly.
Personal injury claims involving catastrophic injuries however are not easy. Quite the opposite. The calculation must take into account possible reduced life-expectancy, particularly in spinal cord injury cases; loss of earning capacity many years down the track; future injury-induced deterioration requiring further surgery, treatment and rehabilitation;, the need for future care and domestic assistance; the need for car and home modification;the increase in the cost of holidays.
The usual heads of damages available in most personal injury cases, particularly those involving serious injuries, are:
- Past and future medical and other medical-based expenses
- Past loss of wages, income, profit
- Past loss of superannuation
- Future loss of wages, income, profits, promotion and earning capacity
- Future loss of superannuation
- Pain and suffering, loss of enjoyment of loss and loss of life’s amenities.
- Past care and domestic assistance provided on a gratuitous/voluntary basis
- Future care and domestic assistance provided voluntarily and/or commercially
- Interest on past loss
- The cost of a funds manager if the injured person is a minor or lacks the mental capacity to manage funds because of a brain injury. The cost of funds management can be very significant.
In all cases, a separate claim is made for the insurer to pay a large part of the injured person’s legal costs.
In order to make a relatively accurate calculation of compensation, your personal injury lawyer will need expert medical opinions about the causation and effects of your injuries and suffering, and provide a prognosis as to your future situation and needs, created by your injuries. In major claims in particular, your lawyer will also need expert opinions from an occupation therapist, a forensic accountant and a vocational expert.
You may assume that the lawyers for the insurer’s company will do likewise.
Is Lump Sum Compensation Taxable?
The answer is “no”. However, you should be aware that if you earn interest on the investment of your lump sum compensation, you will need to pay tax.
How To Calculate Pain And Suffering Personal Injury
Where an injured person is entitled to be compensated for pain and suffering etc, it is necessary for a calculation to be made of the appropriate amount. This is extremely difficult and requires significant expertise ,knowledge and experience. That’s because in New South Wales there are no guides or precedents as to what particular injuries are awarded for pain and suffering. The calculation is an art, rather than a science. Each case is different.
Almost every personal injury lawyer will have a different opinion as to what a particular case is worth for pain and suffering. Lawyers who act for injured accident victims generally make higher estimates than the insurance company lawyers.
Also, no two judges are likely to come to the same amount for pain and suffering. Judges and Assessors are only human. Some are generous; others are conservative or perhaps even miserly.
How To Win A Personal Injury Claim
A win means the receipt of an appropriate settlement, or a favourable verdict from a judge or administrative assessor.
The primary aim in all personal injury law cases is for the injured person to receive the highest possible amount of compensation. The insurance company lawyers are paid to try and keep the compensation to a minimum.
Most personal injury law cases are settled through negotiation with the insurer or its lawyers. Some settlements are achieved on a compromised basis to avoid the uncertainty of a judge’s decision if the matter proceeds to a court hearing. Furthermore, most injured people would prefer not to have to go to court for a judge to decide the outcome of their claims because giving evidence in court is stressful and the outcome can be unpredictable. The fact is that it is often the luck of the draw in relation to which judge or administrative assessor decides the outcome of cases. Some are more generous whist others are not. Quite the opposite
To maximise your prospects of receiving the most out of your personal injury claim in NSW you need a reputable, knowledgeable, and experienced personal injury lawyer on your side, who not only talks but, even more importantly, listens.
You can assume that the insurer will engage experienced and capable lawyers to fight your case. You must not allow the contest between you and the insurer to be an uneven one.
Stacks Goudkamp Is Here To Help You Navigate The Personal Injury Claims Process
No matter how severe your injuries or the extent of your financial losses, Stacks Goudkamp has the reputation, expertise, and professionalism to get the best for you. Our team of exceptionally talented personal injury lawyers has many decades of experience of successfully acting for clients like you.
As stated earlier in this narrative, you need to have the very best lawyers on your side. Not only are the lawyers at Stacks Goudkamp experts, but they are also very compassionate and empathetic and always treat their clients with dignity and respect. They also keep their clients well informed along the way and are fearless in their dealings with the insurers and their lawyers.
So, if you have been injured, or if someone you know or a member of your family have been injured, or worse, call us on (02) 4058 2715, or contact us online for a free, comprehensive initial consultation.
Stacks Goudkamp act in personal injury law cases on a no win, no fee basis, and will also pay the cost of medical and other experts’ reports, court filing fees etc, up front. You don’t have to worry about paying us any money as your claim progresses.