Motor vehicles registered in Queensland are insured for personal injury caused by, through or in connection with that vehicle, which insurance is known as Compulsory Third Party Insurance or CTP Insurance.  Fault by the person in control of the vehicle at the time of the accident must be proven.

The insurance covers the personal injury but does not cover damage to motor vehicle.  The property damage to your vehicle can separately be claimed upon your insurer or against the person who caused the accident.

A claim cannot be commenced until you report the accident to the police. The police will provide you with a traffic incident number.

If the vehicle which caused the accident cannot be identified or is unregistered, then the claim is made against a government department called The Nominal Defendant.  The Nominal Defendant acts as the CTP insurer.

A Notice of Accident Claim Form must be completed and sent to the CTP insurer or The Nominal Defendant within:

• For an unidentified vehicle - within three months of the date of the accident
• For any other vehicles - within nine (9) months of the date of the accident
• One month after first consulting a lawyer.

Our firm can assist you in personal injury litigation, offering clients advice and representation to achieve a fast and effective result.

Whether you are injured in a motor vehicle accident, the workplace or otherwise where the accident is another person's fault, obtaining the right advice is crucial to getting your life back in shape.

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A worker who suffers an injury in the course of employment has two separate rights which may be pursued. These are:

• The right to claim benefits from WorkCover pursuant to the insurance scheme provided in the Workers compensation legislation; and
• A claim for damages for negligence.

In some circumstances you may pursue both options, however in other circumstances you can only pursue one option. The interplay of these rights and effect of pursuing one avenue as opposed to another is discussed below.

Claim for Benefits from Workcover

The right to claim Workers Compensation is available without any need to prove fault by any other person. All employers are, or at least should be, insured for workers compensation.

WorkCover is a statutory authority which covers most employees and responds to claims for injured workers.

A worker is an employee who works under a contract or service.  It can include contractors who supply no more than labour and hand tools.  It will not include:

1. Company directors
2. Self –employed contractors
3. Business Owners
4. Commonwealth employees

To be covered under the WorkCover scheme, an injury must be a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

An injury includes:

• A disease contracted in the course of employment, whether at or away from the place of employment
• Aggravation of a previous injury if employment is a significant factor contributing to the aggravation
• Loss of hearing
• Psychiatric or psychological injury (though this does not include injury caused by reasonable management decisions in relation to the employment.)

Benefits

A worker who suffers injuries entitled to statutory benefits, which include:

1. Weekly payments for time off work;
2. Payment of medical expenses;
3. If there is a permanent impairment, a lump sum payment of compensation.

Lump Sum Compensation

If your injury has stabilised so that you suffer an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment, you will be entitled to lump sum compensation from WorkCover.

WorkCover will arrange for you to be examined by a doctor for the purposes of assessing the degree of your work related injury.  Based upon that medical assessment, WorkCover may offer you a lump sum payment.  As a result you will receive from Workcover a Notice of Assessment and an Offer of Lump Sum Compensation.

You need to respond to the Notice of Assessment and the Offer of Lump Sum Compensation by indicating on the form whether you agree with the assessment of the percentage of your impairment and whether or not you accept the offer.

Which choice you make can substantially affect your rights. In making your decision you need to consider the interplay between the Workers Compensation Claim and a Damages Claim (discussed below).

Upon responding to the Notice of Assessment and Offer of Lump Sum Compensation, your rights to further benefits from WorkCover will cease. You therefore need to be careful that you do not precipitate such an offer unless you are sure that your injury is stabilised and will not need further treatment.

Review of WorkCover Decisions in Relation to Statutory Claims

You can apply for internal review of a WorkCover decision to reject your application to terminate, suspend or decrease a weekly payment.  To do so you apply within twenty-eight (28) days of receiving written notice of the decision. 

Q-Comp will then review the decision and give written notice of its review and reasons for the decision.

Also if you disagree with the assessment of your impairment provided in a Notice of Assessment, you can seek a review of the assessment. Q-Comp will then arrange for a Medical Assessment Tribunal to hold a hearing at which 3 doctors will examine you and reconsider the percentage of your impairment.

You have a right to legal representation at a Medical Assessment Tribunal hearing.

Damages Claims

To maintain a claim for damages you must be satisfied that you will be able to establish negligence or fault on the part of your employer.

To succeed in a claim for damages:

• You will need to be able to show that the event which caused your injury should have been foreseen by your employer
• That the employer failed to take reasonable steps to put in place a reasonable system of work to guard workers against the type of injury that occurred; and
• That your injury has been caused by that failure by your employer.

A court may make a finding of contributory negligence if:

• Failed to comply with instructions given by your employer for the health and safety of workers
• You failed to use protective clothing and equipment provided by your employer
• You failed to use anything that was provided that was designed to reduce your exposure to risk of injury
• You inappropriately interfered with or misused something that was designed to reduce your exposure to risk of injury;
• You were under the influence of alcohol or drugs
• You failed to attend a relevant safety-training course organised by your employer that was conducted during normal hours

The value or quantum of your claim will be based upon the your degree of injury and losses, which would be assessed under a number of heads of damage.  Such assessments can be complicated and will vary from case to case depending upon numerous factors. Due to the nature of such assessments, the result may well be far larger than the amount of lump sum compensation you might receive from Workcover.

Interplay of rights between Workers Compensation Benefits and Litigation for Damages

If you receive a Notice of Assessment and Lump Sum offer which assesses the degree of your work related injury as more than 20%, you can accept the lump sum and sue for damages.

If however the degree of your work related injury is less than 20%, you cannot both accept the lump sum and sue for damages.  You must elect to choose one or the other.

In making your choice which elects to proceed only with a claim for damages, you need to be sure that you will succeed in such claim. If you fail in such litigation, you will lose your rights to any further compensation.

From the time of the response to the Notice of Assessment and lump sum offer from WorkCover, your right to further statutory benefits will cease.

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If you suffer injury in a public place which is cause by the fault of another person, you may make a claim against that person for damages for your injury.

Assuming such injury is not caused by a motor vehicle or by negligence of your employer, your claim will be made against the person who caused the injury – most likely the owner or operator of the premises in which you are injured. Most companies hold public liability insurance which indemnifies in respect of such claims.

Such claims are governed by the Civil Liability Act and the Personal Injuries Proceedings Act.

A notice of claim must be sent pursuant to the Personal Injuries Proceedings Act within one month of consultation with your lawyer or nine months from the date of the injury (whichever date is first). 

From that date, the insurer has six months within which to respond to the claim.  They will either accept or deny liability.

To succeed in such a claim you must establish that the person against whom you make the claim is at fault in causing your injury. You will not recover any compensation without being able to prove fault.

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If you suffer injury as a result of inadequate treatment by a medical practitioner or hospital, you may have a claim for damages for your injury.

There are special rules governing the right to make such claim pursuant to the Civil Liability Act. These provide that:

• A doctor does not breach a duty arising from treatment if the doctor acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected doctors as competent professional practice.
• A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give to the patient the following information about the risk:
• information that a reasonable person in the patient's position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice;
• information that the doctor ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.

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Victims of crime have rights to compensation. The nature of the compensation varies depending upon the nature of the case.

Where the criminal is convicted of an offence in the District Court or the Supreme Court which involves an offence which was committed to the body of a victim, then the victim will have a right to criminal compensation pursuant to the Criminal Offence Victims Act. 

This will require an application be brought to the Judge who sentenced the criminal and will be assessed upon a scale provided for in the Criminal Offence Victims Act. 
 
The criminal compensation order will be enforceable against the criminal. If you cannot recover money, it is possible to apply to the Attorney General’s Department to seek payment from the government.

Victims of offences which are not dealt with on indictment (ie they are dealt with in the Magistrates Court may seek an order for compensation from the Magistrates Court. This application must be made at the time of the sentencing, which usually occurs immediately following conviction. This type of application is commonly made on behalf of the victim by the police officer who prosecutes the matter.

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Members of the public who buy a product that turns out to be defective, and the defect causes injury may have a claim against the manufacturer and/or retailer of the product.

When you buy a product there is an obligation on the seller and/or the manufacturer and/or the importer to ensure that the product is of merchantable quality and is fit for its purpose.

Commonly a warranty is provided with a product.

This type of claim will usually be governed by the terms of the contract pursuant to which the product was purchased. Therefore the details of the small print, which form a part of the contract, will be essential for consideration of your rights. Commonly the detail of the small print will contain clauses, which do or at least seek to exclude or limit liability to compensate you. The Trade Practices Act governs the nature of such clauses and makes void certain types of clauses.

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Schools, kindergardens and day-care facilities owe a duty to take reasonable care to protect children in their care and control from foreseeable harm.

There is no absolute duty to supervise – rather the school must take the steps that a reasonable school would in the circumstances to prevent injury. What would be reasonable depends upon many factors.

For example, it would be reasonable to expect that younger children would be supervised to a higher degree than older children.

A higher degree of supervision would be expected in relation to excursions to external venues, or in relation to activities, which have a higher risk of injury.

Where the school is aware that children will be on the premises, such as before or after  school hours then a duty will exist requiring reasonable steps be taken.

Also where the school is aware that a particular student has a history of or propensity for misbehaviour then reasonable steps should be taken to protect other pupils from injury which might be caused.

The Civil Liability Act governs the assessment of the amount of damages recoverable in relation to injury.

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It is possible for a tenant who is injured at rental premised  to make a claim against the landlord where there is a breach by the landlord of obligations provided under the law or the Residential Tenancies Act.

S103 of the Residential Tenancies Act provides:

1. At the start of the tenancy, the lessor must ensure:
   1. the premises and inclusions are clean; and
   2. the premises are fit for the tenant to live in; and
   3. the premises and inclusions are in good repair; and
   4. the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises.
2. While the tenancy continues, the lessor:
   1. must maintain the premises in a way that the premises remain fit for the tenant to live in; and
   2. must maintain the premises and inclusions in good repair; and
   3. must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and
   4. if the premises include a common area--must keep the area clean.

If a breach of these obligations causes injury, then there may be a claim which may be pursued.

Many, if not most, landlords would be insured in relation to such liability.

The Civil Liability Act would govern the amount of damages.

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The owner of an animal that causes injury may be liable to compensate for injuries caused by that animal.

The law divides animals into those naturally ferocious and those naturally domesticated.

In relation to ferocious animals, the law imposes an obligation upon the owner to take reasonable steps to ensure the safety of the public. The onus of proving compliance with this obligation is upon the owner.

Animals that are normally tame, such as dogs, may have a known propensity for causing injury. This is common where a dog is known as having previously bitten a person. For those animals the law also imposes an obligation upon the owner to prove that they have taken reasonable steps to prevent injury – such as restraining or fencing.

Tame animals with no previous history do not raise a presumption upon the owner to disprove negligence and therefore the injured person would need to establish a failing by the owner to take reasonable care to prevent a foreseeable risk of injury.

There were many old cases which established that there is no obligation upon a farmer to fence in livestock from the road. This type of case has been subsumed into the normal rules of negligence claims. Therefore you would need to establish that the farmer failed to take reasonable steps to prevent accidents occurring. This would vary depending upon the circumstances and may required fencing in some circumstances, or signs  or cattle grids in other circumstances.

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