Glossary of Personal Injury Terms
Accredited Personal Injury Specialist
An accredited personal injury specialist is a lawyer who specialises in personal injury claims and has achieved accreditation for his expertise in this area from the Queensland Law Society, the body that regulates lawyers and legal practice in Queensland. In providing accreditation, the Queensland Law Society is confirming, from assessments undertaken of the lawyer’s knowledge and expertise, that the personal injury lawyer is an expert in the field of personal injury law in Queensland.
Appraisal of Your Claim
We will provide you with a free appraisal of your claim. What this means is that we will discuss your claim with you and provide you with our advice as to whether we consider you do have a personal injury claim and that it is one worthwhile pursuing.
Common Law Claim
When you pursue a personal injury claim, you are seeking damages against a party for negligence or civil assault. This is called a Common Law Claim & this term is used to distinguish a claim that is grounded in Common Law from a claim that is grounded in Statutory law. A Common Law Claim is based on decisions made by the Judiciary (judges in courts of law). A Statutory Claim is only available where legislation has specifically provided the right to such a claim. An example of this is a workers’ compensation claim where the Workers’ Compensation & Rehabilitation Act 2003 permits injured workers in Queensland to claim Statutory benefits (medical costs and wages) when they are injured at work, whether the injury was caused by the employer’s negligence or wrongful act or omission or not. It is a “no fault scheme”. But a worker who is injured at work, will not always have a Common Law Claim, that is, a claim that he can pursue in the court for Common Law Damages. To have a Common Law Claim, there must be some fault on the part of the employer resulting in the worker’s injury occurring in the course of employment.
When we refer to compensation we are referring to the amount of money (or damages as it is called in personal injury law terms), that you should receive to compensate you for your injuries and the expenses you have reasonably incurred and are likely to reasonably incur in the future, because of your injuries. It also has another meaning however when you have a work injury claim in Queensland. In a work injury claim it is referring to compensation you receive during your worker’s compensation claim, which is distinct from damages you receive during your Common Law Claim (or law suit) against your employer for negligently or wrongfully causing you injury.
Compulsory Third Party Insurer – (Motor Accidents Case)
The Compulsory Third Party Insurer or CTP Insurer as it is otherwise known, is the insurer of the party that has by its wrongful act or omission, wholly or partly caused a motor vehicle accident. In Queensland all motor vehicle’s should be registered and consequently insured for compulsory third party insurance (insurance fees are included in registration fees). If a vehicle is not registered and therefore does not have a CTP insurer, or the vehicle causing an accident cannot be identified so that the CTP insurer cannot be identified, then the motor accident claim is made against the Nominal Defendant in Queensland as the CTP insurer.
“Costs” or “legal costs” are a reference to the professional fees and outlays (also called disbursements) that are involved in pursuing (or defending) a personal injury claim. Pursuant to legislation which governs personal injury claims in Queensland, there are circumstances in which there is a right for an injured party to recover some of their costs in pursuing their personal injury claim from the party that has caused their injury. In some exceptional cases, this legislation allows a party to recover all of their costs in pursuing their personal injury claim, however, this only occurs in very limited circumstances. Costs are governed by various statutory legislations but we are the only law firm in Australia to offer to reduce our fees if you have a reasonable basis to be dissatisfied.
Damages/Common Law DamagesM
Damages or Common Law Damages means the money you receive to compensate you for your injuries in a personal injury claim. The amount of damages you receive depends on the extent of your injuries and the loss and expense you have incurred because of your injuries. In calculating your damages the following elements are taken into account:
- Pain & suffering and loss of amenities;
- Past and future loss of income;
- Home Care costs – cleaning, gardening, personal care;
- Past and future medical & rehabilitation expenses;
- Out of pocket expenses (ie. Treatment expenses and pharmaceutical expenses etc. you have reasonably incurred because of your injuries);
- Past and future loss of superannuation.
Disbursements or outlays as they are also known, are the expenses incurred in a personal injury claim such as medical report fees, barrister fees, mediation fees, forensic accountant fees, search fees (registration searches, company searches, police report searches), safety expert fees, courier fees, court filing fees. We cover all such fees on a No Win No Fee basis.
Free Initial Consultation
This means that we will discuss your claim with you and provide you with expert advice as to whether you do have a personal injury claim and whether such claim is worthwhile pursuing. You will not be charged for this initial consult or for the legal advice provided to you during such consultation. Your free initial consultation can be carried out via telephone, by appointment or, we can come to you at your home if you are unable to come to us and all consultations with our firm are free until the case is won.
Lump Sum Compensation
Lump Sum Compensation is a lump sum offered at the end of his workers’ compensation claim because the worker has sustained a permanent impairment as a consequence of his workplace accident or injury. Be very careful when responding to any offer of lump sum compensation made by the workers’ compensation insurer because, you may forfeit your rights to pursue a common law claim for damages for injuries. To seek legal advice on this issue, can be very significant. It is therefore EXTREMELY IMPORTANT that an injured worker obtains legal advice when responding to any lump sum offer made by the workers’ compensation insurer at the end of their workers’ compensation claim. We Gerard Malouf & Partners specialise in all areas of personal injury law, including work injury claims and can assist you in providing the advice you need when dealing with the workers’ compensation insurer during your workers’ compensation claim and at the cessation of same when a lump sum offer may be received.
Motor Accident Claim
In Queensland, if you are injured in a motor vehicle accident and the accident was caused or contributed to by the wrongful act or omission of another party, then you may be entitled to make a motor accident claim for compensation for your injuries and the loss and expense you have sustained as a result of those accident injuries.
Negligence or negligent act, is referring to an act or a failure to act in circumstances where it is reasonably foreseeable that the action or omission to act is likely to result in injury to another person but this definition varies according to the area of law such as medical negligence, motor accidents due to statutory definitions.
No Win No Fee
‘NO WIN NO FEE’ basis means that we will handle your claim on your behalf and we will pay for all disbursements involved with pursuing your claim (ie. medical report fees, barrister fees, court filing fees, mediator fees, etc.) and we will not render an account for professional fees or outlays until you have received compensation for your injuries. Please refer to our simply Costs Agreement to clarify terms and conditions.
- If you do not achieve any compensation payment for your claim then you will not be liable to pay our professional fees or any disbursements we have incurred in pursuing your claim on your behalf.
The Nominal Defendant is relevant in motor accidents cases where a negligent car driver and registration of a vehicle cannot be identified such as in a hit and run case.
Disbursements as they are also known, are the expenses incurred in pursuing a personal injury claim such as medical report fees, barrister fees, mediation fees, forensic accountant fees, search fees (registration searches, company searches, police report searches), safety expert fees, courier fees, court filing fees etc. Gerard Malouf & Partners covers all expenses on a no win no fee basis.
Permanent Impairment is the term given to permanent loss of bodily function sustained because of an injury. For example, when a person suffers an arm or shoulder injury, the injury will progress through a recovery period until it becomes “stable and stationary”, generally 12-18 months, at which point medical specialists assess what level of permanent impairment has been sustained because of the shoulder injury. An assessment is made by the specialist as to what percentage of functioning the injured person has lost because of their injury (eg. 20% loss of functioning = 20% permanent impairment). Medical specialists use special guidelines to calculate the percentage of lost functioning or impairment a person has permanently lost because of their injury, which have been specifically devised for this purpose, called the AMA Guidelines table 4 and 5.
Personal Injury Claim
A personal injury claim is a claim for compensation or damages relating to injuries sustained in an accident. Personal injuries do not only mean physical injuries, but also include psychological or psychiatric injuries.
Professional fees are the fees charged for pursuing a personal injury claim and will cover the solicitors, Barrister and disbursements incurred such as medical reports, court filing fees etc.
Public Liability Claim
This is the term given to claims where a person is injured in a public place or private business or other property, and the injury is caused by the wrongful or negligent act or omission of another. Circumstances which may give rise to such claims are as follows:-
- Slip and fall accidents, ie. in supermarkets, shopping centres, retail centres and on footpaths;
- Accidents at private residences;
- Accidents at schools or in parks or playgrounds;
Injuries due to defective or faulty products.
QComp is the State Government body that has been set up pursuant to the Workers’ Compensation & Rehabilitation Act 2003 governing the workers’ compensation scheme and workers’ compensation insurers in Queensland. Go to the website www.qcomp.qld.gov.au.
Stable & Stationary
The term “stable and stationary” is normally used in personal injury claims when referring to an injury. When a person sustains an injury, whether it is because of a motor vehicle accident or a work accident or an injury in a public place, the injury will initially go through a period of recovery until it reaches a plateau, generally after 12-18 months but possibly longer in more serious cases up to 3 years. What this means is that no matter what treatment is provided, the injury is not going to get any better or worse. This injury is termed “stable and stationary”. It is at this stage when an injury can then be assessed by medical specialists for permanent impairment, that is, they assess what level of impairment the injury is going to permanently cause the injured person in the future.
If you are injured at your work, under Queensland legislation, you are entitled to make a claim for workers’ compensation to be paid called Statutory Benefits. These benefits include payment of all medical and rehabilitation expenses relating to your injury and your wages whilst you are recovering from your injury and unable to work. The legislation in Queensland which provides this right or entitlement to workers is the Workers’ Compensation & Rehabilitation Act 2003. The workers’ compensation scheme in Queensland is a “no fault” scheme, that is, the worker has the right to claim whether the injury was caused by the employer’s negligence or wrongful act or omission or not. But a worker who is injured at work, will not always have a Common Law Claim, that is, a claim that he can pursue in the court for Common Law Damages. To have a Common Law Claim, there must be some fault on the part of the employer resulting in the worker’s injury occurring in the course of employment.
Strict Time Limits
Queensland has time limits that apply to making a claim for personal injuries. The time limits are set by Statute. In Queensland, if you are claiming for injuries sustained in a motor vehicle accident or you are making a public liability claim, you must place the party you consider to be at fault on notice of your claim within 9 months of the injury occurring, or within 1 month of your consultation with a solicitor in relation to your claim, whichever occurs first. If you miss these time limits you have to provide good reasons why you should be permitted to proceed with your claim.
Where making a claim for workers compensation for a work accident, you have 6 months from the date of the incident or becoming aware of your injury to make your worker’s compensation claim.
Overall in Queensland, you have a time limit of 3 years from your injury occurring to bring your claim for personal injury and if you miss this time limit, unless there are very exceptional circumstances, you will lose all rights to claim whatsoever. However, to ensure that your personal injury claim is protected when your 3 year time limit expires, there are a number of legal processes that must be complied with and these steps do take some time to complete. It is therefore very important that you take steps to pursue your claim as soon as possible.
Workcover Queensland known as QComp, is the workers’ compensation insurer established by the Queensland Government to provide workers’ compensation benefits (Statutory Benefits) for workers who are injured in the course of their employment in Queensland, and insurance coverage for the employers of such workers. Workcover Queensland was originally established under the Workcover Queensland Act 1996, but since the repeal of that legislation in 2003 it now has its foundations in the Workers’ Compensation & Rehabilitation Act 2003. You can find more information about Workcover Queensland if you go to its website at www.workcoverqld.com.au. Workcover Queensland is not the only workers’ compensation insurer in Queensland. There are “Self-Insurer” workers’ compensation schemes in Queensland. These are very large organisations with the capacity to meet the expense of running their own workers’ compensation schemes under the relevant workers’ compensation legislation in Queensland. For a list of workers’ compensation self-insurers in Queensland go to the website of the workers’ compensation scheme Regulator in Queensland, Qcomp at www.qcomp.qld.gov.au.
Workers’ Compensation Benefits or Workcover Benefits
If you are injured at your work, under Queensland legislation, you are entitled to make a claim for workers’ compensation to be paid Statutory Benefits. Benefits include payment of all medical and rehabilitation expenses relating to your injury and your wages whilst you are recovering from your injury and unable to work under the Workers’ Compensation & Rehabilitation Act 2003. The scheme is a “no fault” scheme, that is, the worker has the right to claim whether the injury was caused by the employer’s negligence or wrongful act or omission or not. But a worker who is injured at work, will not always have a Common Law Claim, that is, a claim that he can pursue in the court for Common Law Damages. To have a Common Law Claim, there must be some fault on the part of the employer resulting in the worker’s injury occurring in the course of employment.
Wrongful Act or Omission
A wrongful act is the term given to an act that is either negligent or it is purposefully undertaken, causing injury to another. A wrongful omission is where a party negligently fails to take action or purposefully fails to take action, resulting in injury to another. The wrongful act or omission to be actionable in a claim for personal injury must cause ongoing physical or psychological loss.