There is no simple formula for calculating how much money you should be awarded. Each case will be different. This is because the courts have to look at your specific and individual circumstances when deciding how much you should receive. The courts can be guided by previous decisions of other judges, but they still must take your own circumstances into account.
The factors that need to be taken into account include:
Typically, a payout for a negligence action in Queensland will include amounts of compensation under the following categories:
Depending on the type of claim, you can also ask the other side to pay a portion of your legal costs.
Generally, in Queensland, you have three years from the date of injury to bring proceedings in a court. However, there are some exceptions to this rule.
In some cases, the deadline is less than three years. For example, if you were injured as a passenger on a commercial flight, then you only have 2 years to start your claim in a court. If you were injured in a car accident and the car who caused the accident cannot be identified, then you have to lodge a claim form within 9 months of the accident.
In other cases, you can get the deadline extended if you take steps before the 3 year deadline.
Therefore, we recommend you act quickly and get advice. You don’t want to lose any rights because you missed a deadline. Therefore, getting specific advice on your own circumstances is the best way to protect your rights to ensure you don’t let your claim slip through your fingers.
A “no win, no fee” cost arrangement is a way to enable injured people to access justice. Without these arrangements, most people would not be able to afford a lawyer to assist them with the claim. This type of cost arrangement typically means that you don’t have to pay your lawyer up front and they can only charge you their professional fees if they get a successful outcome or a payout for you. However, if you lose your case, then you could be ordered to contribute to the other side’s legal fees. Therefore, there are some risks with this arrangement. However, very few matters actually go to court (sometimes less than 1%). Therefore, this risk can be managed and often avoided. We give you advice if we think you are at risk of an adverse cost order to help you decide how to avoid those risks.
No. This is because the ATO does not consider the payment to be an income payment (even though part of it compensates you for loss of earnings). Instead, the payment you receive is a damages payout, and there is no income tax payable on damages payments.
In Queensland, lawyers are not allowed to enter an arrangement where they get paid a fixed percentage of your payout. This is prohibited by the law. There are also protections in place for injured people in Queensland which can cap the amount of fees a lawyer can charge. This is referred to as the 50/50 rule. This rule means that a personal injury lawyer cannot put more in their pocket (for professional fees) than you get in your pocket after a successful compensation payout. So you have the protection of knowing that the lawyer won’t walk away with more than you get (or that you will end up with a bill that is more than your payout).
“No win no fee” is an arrangement where a law firm agrees that it will only charge you fees if you get a successful outcome of your claim (for example, you get a payout from the insurer or you win your case in court). If you don’t get a payout, you don’t have to pay the professional fees. It also means that you don’t need to pay fees upfront or along the way, as the bill is only sent to you once the matter is settled and payment made by the insurer.
No. Most matters do not get to court. We have a great system in Queensland (we say it is the best in Australia) that encourages the parties to reach a settlement without having to go to court. This helps reduce costs for everyone involved and avoid the stress, delay, cost and uncertainty of having to go to a trial before a judge.
It is impossible to say definitively what the average claim is. There are many variables. The amount someone gets paid depends on their personal circumstances and on the type of claim. For example, work injuries may produce different results to car accident claims. Also, most insurers do not publish the data on their settlements and keep this information confidential. However, the data that is available suggests that injured people who engage lawyers, get much larger settlements than people who try to run their claim themselves.
The amount of damages you are likely to receive depends on your injury, your personal circumstances, your work history and the ongoing impact of your injury. You may be able to recover amounts for pain and suffering, loss of income, medical and rehabilitation expenses and costs.
However, what is most important to getting the best outcome is having a good team to gather information that tells your story in a way that encourages the insurer to pay a higher amount. At Evolve Legal, we are story tellers. We focus on combining our legal skills with our creative skills. We think outside the box and are innovative in the way we formulate your claim strategy. This combination helps us to create compelling arguments. We don’t let the insurer think of you as “just another claimant” or “just another piece of paper”. We do not take a clinical approach to communicating your claim. We tell your story, so the insurer sees you as a real person, with a real problem.
There are different time lines that apply to different types of claims. Some matters will settle less than 12 months from the date of accident and some will take longer. The length of time will depend on the time it takes for you to recover, the amount of evidence that needs to be obtained and how the insurer responds to your claim. At Evolve Legal, we are motivated to get your claim settled as quickly as possible, so you can focus on rebuilding your life.
Yes. Even if you are under 18 years old, you have the right to claim damages or compensation. However, you will need an adult (such as a parent) to assist you until you turn 18 years old. If your claim settles before you turn 18 years old, the court will review the settlement to ensure that it is fair and reasonable. Once you turn 18 years old, you will no longer need an adult to assist with or approve your settlement.
There is no income tax payable on your damages payout. However, if you invest the payout and earn interest or profits from the investment, then tax may be payable on the interest or profits. You should seek advice from an accountant regarding your taxation obligations on your investment.
A duty of care is a legal obligation to be careful for the safety of someone else. This can include:
It depends. The costs to bring a claim will vary depending on how much work is required to be done to reach a settlement. However, there are protections in place for injured people in Queensland which can cap the amount of fees a lawyer can charge. This is referred to as the 50/50 rule. This rule means that a personal injury lawyer cannot put more in their pocket (for professional fees) than you get in your pocket following settlement. So you have the protection of knowing that the lawyer won’t walk away with more than you get (or that you will end up with a bill that is more than your payout).
Under the workers compensation regime in Queensland, some larger employers have been given a licence by the Regulator to manage the workers compensation claims made by their own employees. These organisations are referred to as “self-insurers”. A list of the Queensland workers compensation self-insurers can be found here
Yes. If a decision has been made by WorkCover and you are unhappy with the decision, there are ways you can challenge it. The way you challenge it will depend on the type of decision made. Some decisions can be challenged by applying for a review of the decision through the Workers Compensation Regulator. Other decisions are challenged through the Industrial Court. There are strict and very short time limits that apply to challenging a decision. Therefore, it is important to get legal advice as soon as possible.
You might still be able to apply for workers compensation. This is because the scheme does not want you to be disadvantaged because your employer did not take out a policy. Therefore, you should still apply for your entitlements even though your employer has told you there is no insurance.
It depends. Some injured workers will continue to get normal pay, others will get reduced pay depending on your circumstances. WorkCover will consider if your employment is covered by an industrial instrument (such as an award or a workplace agreement registered with Fair Work). If so, you will get the amount provided by that award or agreement.
If you are not covered by an industrial instrument, then for the first 26 weeks of your claim, WorkCover is obliged to pay you the higher of either 85% of “Normal Weekly Earnings” or 80% of the ordinary earnings of Queensland full-time adults. For the next 18 months in them drops to the higher of 75% of Normal Weekly Earnings or 70% of the ordinary earnings of Queensland full-time adults.
You have 6 months from the date of your injury to lodge a WorkCover Claim. However, this time restraint can be extended under specific circumstances.
It is not compulsory to have a lawyer if you are injured. You are entitled to represent yourself. However, the law in this area is complex. The legislation (ie the Act of Parliament) that governs workers compensation rights is difficult to many people to understand. If you don’t have a lawyer who understands the intricacies of the law then you might lose out on some entitlements or you may take steps that impact your ability to receive a fair payout. The best way to protect your rights is to get legal advice from someone who understands the law well. After all, the insurer is going to have access to legal advice. If you don’t, then you won’t be on an even playing field with the insurer.
Yes. If you are a worker, and you are working from home, you may still be entitled to workers compensation if you are injured whilst working. The Queensland workers compensation scheme covers workers whether they are at the usual workplace, are working away from the usual workplace, or are travelling between work and home. It even covers you on your lunch break.
In order to lodge a workers compensation claim in Queensland, you need to visit your doctor and get a medical certificate (called an Work Capacity Certificate). This can be issued by your doctor or the hospital that treated you. If it is a dental or oral injury, it can be completed by a dentist. If it is minor injury, a nurse practitioner can complete one.
You then need to lodge your claim with WorkCover Queensland. This can be done online, over the phone or in writing. For more information visit our work injury page here.
Yes. But before WorkCover will agree to re-open a claim, WorkCover will need to consider the medical evidence and the circumstances around why the claim was previously closed. They will also take into account why you (or your doctor) thinks that your claim should be re-opened.
If you are a worker in Queensland (and your employer is not insured by ComCare which is the Federal or Commonwealth Scheme), then in most cases WorkCover Queensland will be responsible for paying your workers compensation entitlements. Some larger organisations have a special licence to manage the workers compensation claim for their own employees. They are called “self-insurers”. To find out if your employer is a self-insurer visit this link.
In Queensland, you don’t receive weekly benefits forever. WorkCover is only obliged to pay your weekly benefits until either you are no longer incapacitated because of the injury, you have received weekly payments for 5 years or you have received payments of $200,000.
WorkCover’s obligation to pay for treatment stops when a doctor considers that your injury is not likely to improve with further treatment. This does not mean you have fully recovered or are back to normal or are symptom-free. It essentially means that you have improved as much as possible and are not like to get any better. This is often referred to being “stable and stationary” or “reached maximum medical improvement” or that your recovery has “plateaued”.
If WorkCover has told you that are going to close your claim, you should ask to be assessed for permanent impairment. You will then be given a lump sum offer. You should get legal advice before accepting any lump sum offer. This is because accepting a lump sum offer may take away your right to be awarded a larger damages payout for negligence.
You should ask to be assessed for permanent impairment. WorkCover may not tell you that you have this right. However, they must assess you and deliver a lump sum offer if you make this request. After an independent doctor (or the Medical Assessment Tribunal for psychological injuries) has assessed you, you will be given a document called a Notice of Assessment. This comes with a lump sum offer (which is calculated based on the percentage of the impairment). You should get legal advice before accepting any lump sum offer. This is because accepting a lump sum offer may take away your right to be awarded a larger damages payout for negligence.
If the assessment is for a physical injury, you have the right to ask for a reassessment by another doctor. You can also nominate who the doctor is (as long as they are trained in the assessment method). You only have 20 business days to notify WorkCover of your disagreement and ask for a reassessment. If you are still not happy with the second assessment, then you can request that the injury be assessed by the Medical Assessment Tribunal.
Yes. If you are injured whilst travelling between work and home (or two different workplaces), then you may be entitled to workers compensation benefits. Also, if you are receiving workers compensation benefits, and your injury prevents you driving yourself to work, you might be entitled to receive travel payments to help you get to and from work (eg taxi travel or uber/rideshare reimbursements).
Yes. The law now allows a prospective employer to ask you if you have any pre-existing injury or medical information. If they send you the request in writing (along with a description of the duties of the proposed role), and you provide false and misleading information, then there can be serious consequences. If you get the job and had made a false or misleading disclosure, then you may not be entitled to workers compensation for any subsequent event that aggravates that injury or condition.
It depends. Every WorkCover claim is different. Most common law claims settle outside of court at a Compulsory Conference during the first 12 to 18 months after your injury becomes stable. However, your matter can resolve at various milestones throughout your claim, both informally and formally.
If you have an accepted statutory workers compensation claim in Queensland, then you may be entitled to weekly benefits (ie to replace your income), medical treatment, hospitalisation costs and other medical or rehabilitation expenses. This can include doctors fees, medication, allied health rehabilitation (eg physiotherapy or counselling), private hospital expenses, medical supplies (eg crutches, wound dressings or assistive devices), travel expenses and even a payment for a carer to assist you. You are also entitled to lump sum compensation when your injury stabilizes. But you should get advice before accepting any lump sum compensation (as accepting the lump sum could result in larger damages payouts being lost).
Yes. In Queensland, you are covered at your usual workplace, or if you are working away from the usual workplace. It also covers you if you are injured travelling between work and home. It even covers you if you are injured on your break (eg a lunch or smoko break).
Yes. But you MUST let WorkCover know. You must let the claims advisor know within 10 business days of returning to work or “engagement of a calling”. This can be any paid or unpaid or volunteer work or work-style activities. It is an offence not to let WorkCover know if you have returned to work. It can lead to a fraud charge which can result in you losing your rights to claim, needing to repay WorkCover any benefits and criminal penalties (such as prison sentences). When you are returning to work, you need to be guided by your doctor (so you don’t further injure yourself) and you need to let WorkCover know about it promptly!
You are entitled to choose the doctor that is going to treat you. You don’t have to use your employer’s doctor or WorkCover’s doctor. However, if WorkCover want to have you “assessed” for an independent medical opinion (which is different to treatment), then WorkCover can ask you to see a doctor that they chose.
Essentially, this means that you are as good as you are going to get.
This does not mean you have fully recovered or are back to normal or no longer have any symptoms. It essentially means that you have improved as much as possible and are not like to get any better. This is often referred to being “stable and stationary” or “reached maximum medical improvement” or that your recovery has “plateaued”. Some people still need treatment to manage their symptoms (such as pain killers or physiotherapy or counselling or anti-depressant medication), even though they have reached maximum medical improvement.
A common law claim entitles you to “damages” if you can prove “negligence”. This is different to a “statutory” workers compensation claim which is a “no fault” scheme. To be successful in a common law claim for damages, you need to establish that your employer breached their duty of care to you and it was this breach (or negligence) that caused your loss. If you are successful, you are entitled to “damages”. These are often larger amounts because you can recover money for losses including past and future loss of earnings, past and future treatment and an amount for pain and suffering.
Yes. You have the right to decide whether to accept any offer made by WorkCover. But it is best to make your decision after receiving legal advice. This will ensure that you make the decision that is best for you, after considering all of your rights, entitlements and the risks associated with accepting or rejecting any offers.
In Queensland, you will be entitled to workers compensations for injuries that arose in the course of your employment if your employment was a significant contributing factor. This can include diseases contracted through work, an aggravation of an injury, disease or medical condition, hearing loss and death. It can also include psychological injuries (as long as the injury was not arising out of reasonable management action taken in a reasonable way by your employer, your expectation of reasonable management action or action taken by WorkCover or the Regulator when dealing with your claim).
Yes. If you had a heart attack at work, on your break or when travelling to or from work, then you may entitled to workers compensation benefits. If your loved one died due to the heart attack, you might be entitled to workers compensation dependency benefits. Heart attack claims often involve complex and technical legal and medical arguments. It is therefore best to get legal advice to protect your rights. At Evolve Legal, our Practice Leader has had success in having heart attack claims accepted by WorkCover.
Yes. If you are receiving weekly benefits, then WorkCover will need to deduct tax and pass it onto the Australian Taxation Office. WorkCover will ask you to complete a Tax File Number declaration form. You will also receive an Income Statement for your tax return.
However, if you are claiming damages for negligence under a common law claim, then you will not need to pay any income tax on your settlement. This is because the ATO treats a common law claim settlement or payout as “damages” and not “income”.
Once your injuries are classified as stable and stationary, WorkCover will organise for you to be examined by an independent doctor. The doctor will provide WorkCover with a report about the extent of your injuries and your permanent impairments. The doctor will not be treating you; they will instead be assessing your injuries and restrictions. The doctor will detail the injuries you are suffering and provide a percentage of whole person impairment caused by your injuries.
Yes. If you were injured in your own car, and you did not cause the accident, then you can still make a claim for personal injuries against the CTP insurer of the car at fault. There are exceptions, such as if you were engaging in criminal conduct at the time of the accident.
If you were in a car accident, where injured, and you did not fully cause the accident, then you may be entitled to bring a claim for your injuries. If you did cause the accident and were severely injured, you may be able to bring a claim depending if the CTP policy that covered the car as an “at fault driver” component of the policy. If you are injured, and are in doubt whether you caused the accident, we recommend you getting legal advice to assist you to make the decision whether to bring a claim.
You may also have other insurance benefits such as workers compensation or income protection or Total Permanent Disablement (TPD) claims.
You should speak to your doctor about any injuries you have sustained to ensure you get treatment to start your recovery.
Yes. It does not matter what type of injury you have. You still have the entitlement to bring a claim if you did not cause the accident. You may also have other insurance benefits such as workers compensation or income protection or Total Permanent Disablement (TPD) claims.
You should also speak to your doctor about any injuries you have sustained to ensure you get treatment to start your recovery.
Anyone who was injured in a car accident, as long as they did not fully cause the accident. If you did cause the accident and were severely injured, you may be able to bring a claim depending if the CTP policy that covered the car as an “at fault driver” component of the policy. If you are injured, and are in doubt whether you caused the accident, we recommend you getting legal advice to assist you to make the decision whether to bring a claim.
You may also have other insurance benefits such as workers compensation or income protection or Total Permanent Disablement (TPD) claims.
You should speak to your doctor about any injuries you have sustained to ensure you get treatment to start your recovery.
Every CTP claim is different. Most CTP claims settle outside of court at a Compulsory Conference during the first 12 to 18 months after commencing your claim. However, your matter can resolve at various milestones during your claim, both informally and formally.
No. A CTP claim only covers personal injury claims. Claims for damage to vehicle or property needs to be run through the motor vehicle property insurer (eg. a third party property damage insurance or comprehensive insurance). If your car was damaged, and you have comprehensive insurance, then you should lodge the claim with your own insurer. If the other driver was at fault, your insurer will chase them for payment.
If you don’t have comprehensive car insurance, you will need to serve a demand on the driver at fault.
If they have insurance, they should pass it onto their insurer.
If they don’t have insurance, then you will need to pursue them for a payout directly. Our litigators may be able to assist you with this type of claim.
The CTP insurer pays for the compensation and damages. As part of our vehicle registration requirements, every car in Queensland has a CTP insurance policy. Part of our registration fees pay for this insurance. This means that the person who caused the accident does not need to pay for the claim. Their insurer pays it for them.
If the car is unregistered or unidentified, then an organisation called the Nominal Defendant pays the claim. This is one of the great benefits of the Queensland CTP scheme. However, you need to be quick in bringing a claim. If you do not serve a claim on the Nominal Defendant within 9 months from the accident, and the vehicle cannot be identified, then you will lose your rights.
If you were injured in Queensland, then you can lodge the claim in the same way as any other car accident claim. You need the registration number of the vehicle at fault and then will lodge the claim against the CTP insurer of the car at fault. The Motor Accident Insurance Commission have a service to advise which CTP insurer provided cover to the vehicle at fault. If you cannot identify the registration number of the vehicle at fault you can still lodge the claim with the Nominal Defendant.
Yes. If the accident occurred in Queensland, then you can still lodge a Queensland CTP claim even if the car was not registered in Queensland. Each State in Australia has a CTP insurance scheme. Therefore, you will still be covered.
If there was no registration or if the vehicle cannot be identified, then you can still lodge a claim against Queensland’s Nominal Defendant. However, you need to be quick in bringing a claim. If you do not serve a claim on the Nominal Defendant within 9 months from the accident, and the vehicle cannot be identified, then you will lose your rights
Yes. If you are a pedestrian and a car hit you (and the driver was at fault or partly at fault), then you can bring a CTP claim against the insurer of the vehicle.
If you cannot identify the registration number of the vehicle at fault you can still lodge the claim with the Nominal Defendant. However, you need to be quick in bringing a claim. If you do not serve a claim on the Nominal Defendant within 9 months from the accident, and the vehicle cannot be identified, then you will lose your rights.
If you were a passenger in a vehicle and injured in a car accident, you are still entitled to compensation. You will make a claim against the CTP insurer of the vehicle who caused the accident, whether that is the driver of the vehicle that you were in or a separate vehicle.
You should try to get into a safe location, if you can, to avoid further injury from other traffic. You should then exchange details with the other drivers (e.g. registration numbers, driver’s license details, contact details, witness details). Keep a record of the date, time and location of the accident and take photos if possible. If you have dash cam footage, make sure you save it. You also need to report the accident to police. If you are injured, you should seek treatment and get a medical certificate from your doctor. You can then lodge a claim and have the insurer fund your treatment needs. If you were not able to record all the details because of your injuries, you still have the right to make a claim.
We can assist you to identify the relevant information to lodge a claim.
If you were not able to record all the details of the accident because of your injuries, you still have the right to make a claim. We can assist you to identify the relevant information to lodge a claim. This information might be available in locations such as police records, Ambulance records, dash cam footage, traffic cameras, nearby CCTV cameras or media reports.
Even if the vehicle who caused your accident cannot be identified, you can still lodge a claim against Queensland’s Nominal Defendant. However, you need to be quick in bringing a claim. If you do not serve a claim on the Nominal Defendant within 9 months from the accident, and the vehicle cannot be identified, then you will lose your rights.
Yes. There are a range of claims you might be able to bring depending on how the accident happened. It could be a claim under the CTP motor vehicle regime (eg someone crashed into the bus you were travelling in). If you are a Queensland worker and were travelling between workplaces or travelling home or travel to work or on your break, you could have rights under the workers compensation regime. If you tripped on a bus, you might have a public liability claim. If you were travelling on a commercial passenger plane, you could have a claim under civil aviation regime.
If you are confused about what type of claim you should make, we suggest getting legal advice as there are different deadlines for different types of claim.
For the purpose of a public liability claim, your injury does not need to be in a “public place”. It can just be in a place that you do not own. You may be eligible to bring a claim if your injury occurred in places such as a work place, someone else’s workplace, a private residence, a shop or shopping centre, a park, a footpath, a government building or commercial building.
You can bring a public liability claim if another person or organisation breached their duty of care to you and caused you loss. This would be a claim in negligence. You might also have rights against sellers, distributors or manufacturers of goods or services if they were not fit for purpose or delivered with reasonable skill and care. If there was a breach of duty of breach of consumer rights, then you may be entitled to a payout for your lost earnings, your treatment needs and an amount for your pain and suffering.
In order to be successful in a common law claim against another person or company, you must be able to prove that they breached the duty of care they owed to you, and this breach caused your injury. This is referred to as “negligence”. If you are also claiming under the consumer guarantees under the Australian Consumer Law, you will need to that the company did not render their goods or services with “due care and skill” or that they were not “fit” for the purpose of which they were sold or delivered.
There are a number of options for pursuing compensation for assault. You can claim Victims of Crime compensation. If you were sexually assaulted as a child by an institution (eg such as church, school, government facility or community organisation), you may be able to seek a redress payment from a redress scheme. Neither Victims of Crime nor Redress payments are very large. However, you may be able to claim much higher amounts if you bring a common law claim for battery, trespass to the person or negligence. For example, if you were the victim of sexual abuse as a child, you may have common law claim against the organisation who had a duty to protect you from the abuse. It is strongly recommended that you get legal advice before deciding to accept any redress payment. If you accept a Redress payment, then you probably won’t be able to bring a larger common law claim which might better compensate you for your losses.
You should get prompt advice about starting a public liability claim. In Queensland, you need to serve your Notice of Claim form within 9 months of the date of accident or 1 month from engaging a lawyer (whichever is earlier). You can lodge a claim after those deadlines, but you need to provide a reason for the delay. Proceedings must be started within 3 years of the accident (unless you have secured an extension). Therefore, you need to act promptly and get legal advice to protect your deadlines!
Yes. There can be a claim in negligence or a claim under the Australian Consumer Law. However, it will depend on the circumstances of the accident. Not every injury results in a viable claim. The courts will look at how the injury occurred. The court will also consider what a reasonable response was to the risk of injury. For example, if someone spilt a drink a minute before your accident, then a court may not find the supermarket to be at fault. But if the spillage was left for a long period of time, then it may be a stronger argument that the supermarket breached their duty of care to you. It is best to get advice to help you decided whether you have a claim worth pursuing.
Yes. If you are injured because of an unsafe or defective product, then you might have a product liability claim. This could be a claim in negligence (for breaching their duty to keep you safe whilst using their product). You could also have rights under the guarantees provided under the Australian Consumer Law.
Yes. If you were injured at your gym, and it was caused by either negligence of the gym or a breach of their consumer guarantees, then you might be entitled to bring a personal injuries claim against them. We recommend you get legal advice regarding the strength of the claim.
Yes. If you sustained a food poisoning injury and can establish it was from the restaurant, then you might be able to bring a claim for personal injuries in either negligence or a breach of their consumer guarantees. We recommend you get advice to assist you to assess whether the claim is worth pursuing.
Depending on the circumstances, you may have a claim under the CTP motor vehicle accident regime or a public liability claim. If you were travelling between work and home, or between workplaces, or on your lunch break, then you might also have rights to workers compensation benefits. If you are injured, it is important to record as much detail as possible about the accident (including the public transport provider, the registration of the vehicle, date, time and route travelled), seek medical treatment and then lodge a claim. If you are confused about what type of claim you should make, we suggest getting legal advice as well.
Yes. Civil aviation injury claims are available for passengers injured on commercial passenger flights (or getting on the flight or getting on the plane). You don’t need to show negligence. But you need to show that the injury was external to you, unexpected or untoward. You only have 2 years to start a claim in court, and this deadline cannot be extended. Therefore, you need to get prompt advice to protect your rights.