Queensland Personal Injury Law Explained

A person who suffers an injury outside their residence—at work, on the road, or in public—can make a personal injury claim for compensation. Personal injury lawyers make claims and aid in settling disputes that result from wrongdoing and negligence of another person, business, government body, or other entity.

Even if your injury wasn’t caused by a third party, and it is serious enough to prevent you from continuing to work, you could still claim if you hold Total and Permanent Disablement (‘TPD’) insurance through your superannuation fund. 

In Brisbane, personal injury lawyers can help you understand what to expect, how to deal with insurance companies, and progress through the legal process required to access your maximum compensation entitlement (often known as ‘damages’). Our firm has four areas of practice — workers’ compensation, motor vehicle accidents, public liability, and TPD claims for serious injuries. We work on a no win no fee basis, so you don’t pay us anything unless you win.

Workers’ Compensation Claims

Persons who suffer injuries from accidents at work might be eligible to make a compensation claim. 

In Queensland, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) requires all employers to hold insurance for each worker/employee to cover the event that someone suffers an injury and makes a claim for damages. This means that claims are usually against the largest workers’ compensation insurer, Workcover Queensland rather than your employer directly.

ROCHE Legal provides legal advice on employee or worker rights in circumstances where your injury is significant enough to require you to take time off. 

We help injured workers increase their chances of getting the maximum compensation in their specific circumstance. This is most often achieved by assisting injured client’s make a ‘common law claim’ once Workcover reduces or ceases your payments of weekly benefits. It is important that you do not accept any offer of lump sum compensation or you will be prevented from pursuing a valid common law claim which almost always results in a larger compensation pay out.

If your injury is serious enough, you may also be able to make additional compensation claims through your TPD insurance or life insurance policies, if you have any.

Motor Vehicle Accident Claims

Persons injured while riding a car, truck, motorbike, quad bike, or other motor vehicles are entitled to make compensation claims under the Motor Accident Insurance Act 1994 (Qld). This Act requires all vehicles to hold compulsory third-party motor vehicle insurance (CTP insurance). You can make a claim if you were injured due to no fault of your own. For example, as a pedestrian or passenger (under any circumstance), or as a driver where another vehicle caused the collision or accident.

ROCHE’s team of personal injury experts know the first step in making successful motor vehicle injury claims, and the process involved to maximise your claim.

If you cannot identify the vehicle that injured you despite making a reasonable effort (for example, due to a hit-and-run scenario), you may still be able to make a claim under the Act. The Act allows you to sue Queensland’s Nominal Defendant in such circumstances.

If your injury is serious enough, you may also be able to make additional compensation claims through your TPD insurance or life insurance policies, if you have any.

Public Liability Claims

In Queensland, people who slip, trip, or fall in public places (and even private places) and injure themselves might have a public liability compensation claim to assert under the Personal Injuries Proceedings Act 2002 (Qld). The most common type of claim arises from slipping over on spilled liquid on a shopping centre or supermarket floor, however claims can also be made if the injury occurred at a private facility or residence (other than your own residence). Most public venues and private places have public liability insurance in place to cover claims for compensation. Our practitioners know how to calculate and maximise your damages for your public liability claim.

If your injury is serious enough, you may also be able to make additional compensation claims through your TPD insurance or life insurance policies, if you have any.

TPD Claims for Serious Injuries

People who suffer spinal injuries, neck or brain injuries, third-degree burns, or other types of serious injuries from severe accidents can often make a compensation claim pursuant to one the various schemes discussed on this page. 

In addition, serious injuries are often covered by TPD insurance within your superannuation fund. Some people have multiple funds and therefore hold multiple insurance policies without realising it (and more often than not, each policy may be claimed on). Total and Permanent Disablement insurance is a form of life insurance governed by the Life Insurance Act 1995 (C’wlth) however there is no specific legislation which governs the claim process. A TPD or life insurance policy is simply a contract between yourself and the insurer and claims can be made pursuant to the terms and conditions of the insurance policy.

ROCHE Legal are able to review your TPD entitlements for free to advise whether you are covered. We also offer fixed fee services to process your TPD claim.

ROCHE Legal’s Personal Injury Services Guarantee

In most No Win No Fee legal agreements, you must still pay the other party’s legal fees if you lose your claim. In some disputes, this could be a substantial sum, making it challenging to shoulder. 

At ROCHE Legal, we provide an additional guarantee to our clients through our ‘No Win No Risk‘ protection. Our clients will never be faced with the need to pay fees from anyone, including the other side, if their case is lost. Our only condition is that you remain truthful throughout your claim.

How We Calculate Personal Injury Compensation

Depending on the type of claim and your individual circumstances, the computation for personal injury compensation varies. Typically, the legal practitioner places a monetary value on the gap between your actual life path post-injury and the predicted one before the injury. The goal is to restore you to your original financial position pre-injury.

The calculations can include, but are not limited to:

  • damages for your pain and suffering
  • medical expenses coping with the injury such as ongoing physiotherapy, the need for future surgery or psychological counselling to adjust to your post-injury life
  • financial loss or loss of earnings due to being unable to work as often (or at all) due to the injury, or the need to retire prematurely in future
  • the cost of engaging professional assistance to care for you or your property
  • damage to property or property loss. 

ROCHE Legal’s personal injury lawyers can sit with you and discuss which financial aspects are relevant to your case.

Where Our Time Goes At ROCHE Legal

You do not have to worry about paying legal fees until we win your case. Each situation is unique, but your legal costs will always reflect the work our practitioners put in to reach a favourable resolution. It is in both our best interest to get you back on track, so we work hard to get you the best results and compensation.

On average, claims take 12 to 18 months to resolve. More complex cases, however, take longer. You can be sure that ROCHE Legal’s personal injury lawyers will be upfront about the time and fees you can expect and the compensation you might get from the outset and as your case develops. Our fees cover our time and the costs of resolving claims like yours, including specialist medical reports, court fees, and other related expenses.

Frequently Asked Questions

Is it worth getting a personal injury lawyer?
Yes. Engaging a personal injury lawyer will result in higher compensation. Data published by the Motor Accident Insurance Commission suggest that somewhere between 75-80% of victims suffering personal injuries get a lawyer whereas the other 20-25% of victims elect to represent themselves. The statistics show that injured victims receive average payouts of $90,000 if they use a lawyer but only $8,000 if they don’t.

Using a lawyer therefore increases your compensation amount by more than 11x on average.

Even after accounting for legal fees, you are going to be much better off for having engaged a lawyer to represent you to claim for your maximum entitlements.

The main problem with not using a lawyer is that often times an injured person does not understand their entitlements or how to calculate what their claim is actually worth so they run the risk of settling for an amount that is too low. Once the matter is settled, you can’t make another claim for the same injury down the track when your injuries may start to get worse so it is important to do it right the first time.

The claims process in Queensland for most injuries uses a non-formal framework designed to keep matters out of court. This framework has critical dates and deadlines to be aware of and certain documents must be formatted in the correct way. Insurers are not there to help you with this, they will use their knowledge of the framework to defeat your claim. Using a lawyer will help ensure that your rights are protected the entire time. If the matter isn’t able to be resolved informally, your lawyer will also have the knowledge and skill to take the matter through the formal court process.

What is the usual fee for personal injury lawyer?
Most personal injury lawyers in Brisbane charge around $400-500/hr, sometimes higher. On top of this, most firms charge a 25% uplift on the hourly rates if you engage them on a ‘no win no fee’ basis. Despite the high hourly rates and ordinary uplift charge, Queensland law firms are required to limit their fees to charge no more than 50% of the net personal injury claim payout amount (only when they act on a no win no fee basis). This cost protection is known as the ‘50/50 rule’.

Source

Queensland personal injury lawyers are also not allowed to charge a fixed percentage of the payout they achieve for you so most firms charge by the hour. If the total hours charged exceeds 50% of the payout amount, the law firm is required to discount their fees.

Some law firms, such as Roche Legal offer even better protection than the 50/50 rule by applying their own fee cap of 40% rather than 50% to ensure that the client always walks away with more than the lawyer.

When should I contact a personal injury lawyer?
It is important to contact a personal injury lawyer as soon as possible. This is because various important time limits apply to claims for personal injuries in Queensland (depending on the type of injury). If you miss a deadline by even 1 day, you may be prevented from ever bringing a valid claim.

A key task for a personal injury lawyer is to identify the time limits that apply to your potential claim during the first consultation.

What is the average payout for a personal injury claim?
Payouts for personal injury claims are generally kept confidential and are usually only public knowledge if a judge determines the appropriate amount. In Queensland, the largest personal injury claim is considered to be around $20 million dollars for heartbreaking and serious brain injury where the claimant requires constant care and assistance for the remainder of his life.

So personal injury claim payouts (or judgement awards, if the matter goes to trial) in Queensland can range anywhere from $0 – $20 million. Where you fall on the scale depends primarily on the nature and severity of the injury, and the difference between your earning potential prior to the injury and your future reduced earning capacity post-injury.

Average Queensland Motor Vehicle Accident Injury Claims for 2019-20:

Historically, in Queensland, for motor vehicle accidents, there are around 7,000 personal injury claims every year (more than half are in Brisbane). A total of somewhere around $650,000,000 is paid out to claimants each year which suggests the average payout for a personal injury claim may be around $92,857 – $112,369. However, the calculation isn’t that simple. Considering the majority (>70%) of personal injury claims are for minor injuries, and around 15% and 8% are claims for injuries that are moderate and severe respectively, the average injury claim payouts would obviously be much higher the more severe the injury is.

 

Severity Minor Moderate Serious Severe Average
Average Payout $62,400 $157,200 $368,000 $1,053,500 $106,600

Source

 

Average Queensland Workplace Accident Injury Claim Payouts for 2019-20:

In Queensland, there are around 3,000 common law claims for workplace injuries each year. For workplace accidents, data published by Workcover Queensland for the 2019-20 financial year suggests that the average payout for a work injury is approximately $168,836.
Source

Average Queensland Public Liability Injury Claim Payouts for 2019-20:

There are no regular or readily published statistics for public liability claim payouts in Queensland. However the principles that underpin claims for personal injuries made under public liability insurance (such as slips, trips, and falls) are generally the same as damages claims for personal injuries made under other legislation. One could infer from published statistics about workplace injuries and motor vehicle injuries that most payouts for public liability injuries range from around $50,000 to $350,000, and higher for more severe injuries.

What happens if you refuse a settlement offer?
The impact of refusing a settlement offer for your personal injury claim depends on the type of offer made to you.

For example:

Informal settlement offer

You may receive a settlement offer soon after submitting your claim notice, although an offer could be made at any time. If you refuse an offer, not much happens. You can continue pursuing your claim for the appropriate amount. Most of the time, first offers fall substantially below what a claim is really worth.

Offer contained in a Workcover Notice of Assessment

In a workplace injury matter, refusing the lump sum compensation offer made to you enables you either have your lump sum offer reassessed, or sue for a larger amount (provided your employer’s negligence contributed to or caused your injury in some way). Accepting Workcover’s offer contained in the Notice of Assessment is very dangerous as it prevents you from being able to sue for the much larger amount. The difference is often enormous. We strongly recommend that you obtain legal advice before accepting or rejecting an offer of settlement from Workcover.

Calderbank offer of settlement

At any point in an informal claim (or a formal court claim) an offer could be made to you under the principles of Calderbank v Calderbank. If this happens, the offer made to you needs to be genuine and realistic with a rationale supplied to you as to why such an offer is being made. If you refuse the offer and progress your matter through court and to trial, it is possible that a judge may determine that your compensation amount is actually less than the Calderbank offer made to you at an earlier stage. If this happens, the court will consider your refusal of the Calderbank offer at the time unreasonable, which caused the matter to waste the court’s and the other party’s time. As a penalty, you would usually be required to pay for the other party’s legal costs incurred from the date of the Calderbank offer. If you are issued with a Calderbank offer, we strongly recommend that you obtain urgent legal advice before accepting or rejecting it.

Mandatory final offer

When you have followed all the pre-court steps in pursuing your claim, you will be presented with a ‘mandatory final offer’ of settlement (or ‘MFO’). This is the respondent/insurer’s final and best offer to you having regard to all the facts and circumstances presented to them for consideration. The MFO works the same way as a Calderbank offer (see above). That means, if the MFO presented to you is reasonable, but you reject it and proceed to the next stage (i.e. court) and your matter gets determined by a judge after trial, the judge will look at the MFO you rejected and compare it with his determination. If you rejected an offer that was higher than his determination, you will usually be required to pay for the other side’s legal costs from the date the MFO was issued to you. It is important to have a solicitor guide you as to the reasonableness of any offer made to you before you consider accepting or rejecting it.

What qualifies as a personal injury case?
If you have suffered an injury to your body (or mind) because of the actions (or inaction) of another person or organisation, you have a personal injury case and rights to assert.

Examples are:

High value personal injury cases are claims where your injury has required you to have multiple surgeries and significant time away from work. Lower value personal injury cases are ones where you make a full recovery from your injuries.

If you have an injury that prevents you from being able to work, you also may have a personal injury claim to make through your superannuation fund if your policy includes insurance cover for ‘Total Permanent Disablement’ (TPD). This insurance does not require your injuries to be caused by anyone else, and so the process to claim is usually much less demanding.

Can you sue for personal injury?
Yes – if you have been injured, you can (and should) sue the person or organisation responsible. Most of the time, they are insured anyway.

To sue the person or organisation responsible (or their insurer) in Queensland, you must serve a claim notice outlining your complaint on the appropriate party. This will commence an informal claims process which is a requirement in Queensland to be able to sue for your injuries. This informal process is designed to keep matters out of court and it works well, as most claims are able to be resolved without the need for a trial.

If the matter isn’t able to be resolved through the informal process, you can then file a formal court claim.