Suffering an injury due to someone else’s negligence can be a life-altering experience. If you’ve been injured and believe someone else is at fault, you might be entitled to make a personal injury claim. Speaking with experienced compensation lawyers in Newcastle can help clarify your legal options and potential entitlements. This guide explains the essentials of personal injury claims in Australia for injured persons, their carers, and family members.
Key Takeaways
- Personal injury claims arise when someone suffers harm due to another party’s negligence or breach of duty
- Compensation can cover economic losses (medical expenses, lost income) and non-economic losses (pain and suffering)
- Strict time limits apply to personal injury claims, varying by state and injury type
- Different compensation schemes exist for workplace injuries, motor accidents, medical negligence, and public liability
- Evidence is critical to establishing liability and the extent of damages
What is a personal injury claim?
Legal definition under Australian law
A personal injury claim is a legal action seeking compensation for physical or psychological injuries caused by someone else’s negligence or breach of duty. Under Australian tort law, if a person or organisation fails to meet their duty of care and this results in harm, the injured party may be entitled to compensation.
Who can make a claim
Claims can be made by the injured person themselves, their legal guardian (for minors or those lacking capacity), or the executor of an estate in fatal injury cases. Parents or guardians can claim on behalf of children, and appointed representatives can act for adults who lack the capacity to manage their own affairs.
Common types of incidents that lead to claims
Several scenarios commonly result in personal injury claims:
- Motor vehicle accidents (covered by Compulsory Third Party insurance)
- Workplace injuries (initially processed through workers’ compensation)
- Public liability incidents (slips, trips and falls in public spaces)
- Medical negligence (substandard healthcare causing harm)
- Product liability (injuries from defective products)
What does a personal injury claim cover?
Economic losses (special damages)
Economic losses include quantifiable financial impacts such as past and future loss of income or earning capacity. These damages also cover out-of-pocket expenses like medical bills, rehabilitation costs, travel expenses for medical appointments, and necessary aids or equipment.
Non-economic losses (general damages)
Non-economic losses compensate for intangible impacts such as pain, suffering, and loss of enjoyment of life. In Australia, these damages are typically assessed using injury scales or thresholds that vary by state, with more severe and permanent injuries receiving higher compensation.
“The impact of an injury extends far beyond physical pain – it affects your ability to work, enjoy life, and maintain independence. Proper compensation acknowledges these wide-ranging effects.” – Conrad Curry
Care, domestic assistance and rehabilitation
Claims often include compensation for both paid professional care and unpaid care provided by family members. This category can cover respite care, home modifications to accommodate disabilities, and ongoing allied health services like physiotherapy or occupational therapy.
Interest, legal costs and other recoverable items
In successful claims, you may recover interest on damages for past losses and, in many cases, a portion of your legal costs. The rules around cost recovery vary between jurisdictions and claim types, so it’s advisable to discuss this aspect with your lawyer early in the process.
Limits and exclusions
Not all losses are compensable. Pure emotional distress without physical injury is rarely compensated except in specific circumstances. Many schemes also have statutory caps or thresholds that limit the maximum amount recoverable, particularly for non-economic losses.
How liability is established
Duty of care and breach
To establish liability, you must first prove the defendant owed you a duty of care and that they breached this duty. The standard applied is what a reasonable person would have done in the same circumstances. For example, all drivers owe a duty of care to other road users.
Causation – linking the act/omission to the injury
You must demonstrate that the breach directly caused your injury. This often requires expert medical evidence establishing that your injuries resulted from the incident in question rather than pre-existing conditions or subsequent events.
Vicarious liability and employer responsibility
Employers can be held liable for injuries caused by their employees while acting in the course of employment. This principle of vicarious liability means you may claim against an organisation rather than an individual employee who caused the harm.
Multiple defendants and apportionment of fault
In cases with multiple responsible parties, liability may be apportioned between them based on their degree of fault. Additionally, if you contributed to your own injury, your compensation may be reduced by a percentage reflecting your contributory negligence.
The personal injury claims process in Australia
Immediate steps after an injury
After an injury, seek medical treatment promptly and document everything. Keep records of the incident, take photographs if possible, preserve evidence, and report the incident to relevant authorities such as your workplace, the police, or property owners.
Notifying insurers and relevant agencies
Notify the appropriate parties within required timeframes. This might include a CTP insurer for motor accidents, your employer and their insurer for workplace injuries, or the occupier’s insurer for public liability claims. Many schemes have strict notification periods that can be as short as 28 days.
Gathering evidence and medical records
Collect comprehensive evidence including medical reports, witness statements, photographs, CCTV footage if available, and receipts for all expenses. Your medical records will form a critical part of your claim, demonstrating the nature and extent of your injuries.
Making a formal claim and demand
Your lawyer will prepare a formal claim or letter of demand outlining the circumstances of your injury, the alleged negligence, and your losses. Statutory schemes like workers’ compensation and CTP have specific claim forms that must be completed.
Conclusion
Personal injury claims in Australia provide a pathway to compensation for those harmed by others’ negligence. The claims process varies depending on the nature of your injury and which state or territory you’re in, but all seek to compensate both economic and non-economic losses. Remember that strict time limits apply, so seeking early advice is crucial. If you’re considering a claim, consulting with experienced professionals like Conrad Curry can help you understand your rights and the potential value of your claim.
