Cyclists and Motor Vehicles

The ongoing debate between cyclists and motor vehicle drivers…

With the ever growing cyclist community in Mackay, it is important that cyclists and drivers are aware of the relationship between the two when sharing the road.

Rights and Responsibilities

Bicycles are a type of vehicle and as such, cyclists have the same rights and responsibilities as a driver when using the road.

As a driver, did you know that you must stay wider of cyclists by giving a minimum of 1 metre when passing a cyclist in a 60km/h or less zone, and 1.5 metres where the speed is more than 60km/h.

As a cyclist, when riding two abreast, you cannot be more than 1.5 metres apart.  You can only ride with more than two cyclists side by side when overtaking.

What if I am involved in an accident?

If you are involved in an accident you should safely get yourself and your bike off the road (if you are able to do so).  Similar to car accidents, it is important that you exchange details with the driver of the car.

What if I am injured?

If you are injured while cycling as a result of negligence by a motor vehicle driver, you may be entitled to make a claim for compensation against the driver’s CTP insurer.

The onus is on the cyclist to prove negligence on the part of the driver.  In addition to failing to comply with the usual road rules, the court also considers things like how defensively the driver drove, the speed at which they were driving and also the capacity of the driver to take evasive action.

Common traffic accidents involving cyclists are often because the driver failed to see a cyclist.  Slow down, check your blind spots and give way where you are required to.

You can read the Queensland Government’s ‘Sharing the road with bicycle riders‘ for more information and frequently asked questions.

Please do not hesitate to contact our office on 07 4963 2000 or via our online contact form should you have any queries regarding your rights.

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Who Pays for Workers’ Compensation?

Under WorkCover, whether you or someone else is at fault for the cause of your injury doesn’t matter.  You will still be paid workers’ compensation.  Liability (or fault) is only a concern if you are wanting to proceed with a common law claim.

Receiving WorkCover benefits is a no fault scheme, and you should keep this in mind if you are concerned about how making a claim, or reporting your injury, will impact the relationship with your employer.

Are employers required to hold WorkCover insurance?

Employers are required to hold insurance for all of their employees, and if you are injured in the course of your employment and you are not sure whether or not your employer has insurance, you should contact WorkCover.

Your employer may need to pay a small premium to their insurer to begin with, but all payments that you receive including weekly benefits, medical expenses and rehabilitation expenses will be paid by WorkCover.

If you can prove that your employer is liable for your injury and that you were not at fault for the injury occurring, you may be able to proceed with a common law claim.  This is a complex process but again, you should keep in mind that a common law claim (some people call this ‘suing your employer’) still proceeds against the insurer, not your employer.

What should I do if I get hurt whilst at work?

Comprehensive reporting of the incident that occurred and the injury you sustained is extremely important, and you should report the incident and injury to your employer and WorkCover as soon as practically possible.

Remember, there are critical dates and time frames that apply to personal injury claims and you should seek advice immediately if you have any questions.

If you believe you have suffered a work related injury?

(07) 4963 2000

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Work Functions & Injuries

Before you celebrate EOFY….

At common law, a non-delegable duty of care is owed by an employer to their employee.

An employee (“worker”) can seek damages for an injury sustained by them in the course of their employment, where that worker can establish that the employer was negligent or in breach of a term of the worker’s contract, and such negligence or breach caused the worker’s injury.

Initially, damages (or compensation) is paid to the worker by WorkCover Queensland or a self-insurer if applicable.

Can I claim damages if I have been injured at a work function?

This duty of care does not cease outside of the worker’s typical ‘workplace’ however.   It may also extend to an event that is organised and paid for by the employer, like staff parties or functions, even although the attendance of a worker is voluntary.  If the function is organised and paid for by the employer, the duty of care to workers remains the same as it would if they were at work.

Depending on the circumstances, and remembering that each case is different, in addition to injuries to workers, the employer could also be liable for inappropriate behaviour including discrimination, workplace harrassment/bullying or sexual harassment.

Of important note though, the ‘injury’ must occur during the course of your employment.  If you have left the work function to continue to celebrate elsewhere, or if the function is deemed to be over, you are generally not able to make a claim for benefits.

What damages can I claim?

If you have been injured outside of the workplace but in the course of your employment, you may be able to claim for statutory benefits (like medical expenses or loss of income).

Likewise, if you are an employer and would like to know more about your obligations and duties and how they extend to outside of the workplace we can give you some tips on putting measures and processes in place to minimise harm to your workers and your business.

Contact our office on 07 4963 2000 or via our online contact form to find out more.

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Workplace Bullying

Are you having issues at work involving your employer or other colleagues?

What is workplace bullying?

Workplace bullying is repeated and unreasonable behaviour that is directed towards you, creating a risk to your health and safety.

Relevantly, some examples of behaviour can include humiliation, constant ridicule and sabotaging a person’s work.  This behaviour can come from another colleague or even your employer/manager.

Reasonable Management Action

If an employer’s behaviour is that of a reasonable management action in connection with your employment, this is not considered workplace bullying.  An example of this could be your employer asking you whether or not you are fit to perform your role and if you have suffered an injury, either mental or physical, that limits your ability in your role or makes it unsafe for you to complete your job.  It is also important to note, that workplace conflict such as differences of opinion, disagreements and general personality clashes are generally not considered workplace bullying.  However, of course the circumstances of each incident need to be taken into account.

Lodging a Claim with WorkCover

If you feel as though you are being bullied in the workplace you should seek legal advice about your options.  If workplace bullying or harassment can be established, you can apply to WorkCover for compensation.  The compensation can include loss of wages if you need to take time off, plus medical expenses so that you can talk to a counsellor about your situation.

When applying for workers’ compensation through WorkCover it is important that you list all examples of workplace bullying and provide relevant dates and facts.  The information you provide to WorkCover will assist in them determining whether or not to accept your claim.

Contact our office on 07 4963 2000 or via our online contact form to find out where you stand.  Our experienced team will guide you through the required process.

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Personal Injury Claim Time Limits

In Queensland, the Limitation Act imposes strict time limits within which a personal injury claim can be commenced by court proceedings.  If the legal proceedings are not commenced within these time limits or time frames, the claim is deemed to be statute barred.  This forms what we call a complete defence to the claim.

How long do I have to make a personal injury claim?

The time frame for claims for damages for personal injuries (whether it be a workplace accident or otherwise) must be commenced within three years of the injury occurring.  For example, if your injury occurred on 1 July 2011, court proceedings must be commenced before 1 July 2014.

Can I get an extension of time to lodge a claim for personal injuries?

In very limited circumstances, a court has the discretion to allow an extension of time within which the proceedings can be commenced.  This can include when a person suffers an injury but is unaware of the injury, or the extent of the injury, until the limitation period has expired i.e. lung disease.

This allowance may be made if it can be shown that the injured person did not have knowledge (or reasonable means of knowledge) of a critical aspect of their case until after the expiry of the limitation period.  A critical aspect of one’s case must relate to either the accident or the damage suffered being beyond the injured person’s means of knowledge.

It does not include the failure to obtain legal advice to understand the impact of the damage suffered.

The court also considers whether or not the injured person acted reasonably in the circumstances, including the attendance upon a GP or other medical professionals to seek treatment and rehabilitation.

Should I get legal advice?

Each case is very different and other time limits and critical dates can apply depending on the circumstances of the event that caused your injury and what legislation applies.

Contact our office on 07 4963 2000 or via our online contact form to find out where you stand.  Our experienced team will guide you through the required process.

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Injured at Work?

If you have been injured through the course of your employment, you have a responsibility to act reasonably and seek medical attention for the injury and to notify your employer when the injury occurs.

WorkCover Claim

Your employer should report the incident and initiate a WorkCover claim.  You are able to lodge your own WorkCover application either over the phone or online also.

Rehabilitation & Recovery

If your WorkCover application is accepted, as part of your rehabilitation and in order to ensure a speedy and healthy recovery, your employer together with WorkCover, have a responsibility to provide you with rehabilitation and to assist you with your return to work as part of your recovery.  This includes meeting the reasonable costs for treatment such as physiotherapy and other medical consultations by a registered person.

If you are required to pay a practitioner upfront for these services, you should keep all original receipts and provide the receipts to WorkCover for reimbursement.

Your Responsibilities

You have a duty to mitigate your loss which means you must, where reasonably practicable, satisfactorily participate in rehabilitation that is recommended by your employer or WorkCover, in conjunction with a medical practitioner.  Failing to participate, or refusing to participate without a reasonable excuse may result in your entitlement to compensation being suspended.

Get Support

Being injured at work can create a stressful and trying time for both you and your family.  Seeking the right support and assistance as soon as possible is only going to be advantageous to not only your recovery and return to work, but your mental wellbeing as well.  We can support you with your recovery.

If you have any queries about a workplace injury or WorkCover application, get in contact with our team today on 07 4963 2000 or via our online contact form.

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Banana Peels and All!

Unfortunately, injuries occurring from slips, trips and falls is very common.  What isn’t usually considered though, is how a simple slip, trip or fall can cause a serious injury.

Did you know that there is a difference between a ‘slip’ and a ‘trip’?

A slip is typically due to a liquid or spillage on the floor surface.

A trip is typically due to your foot unexpectedly coming into contact with an object or hazard.

The fall is self explanatory – and renders the slip or the trip more serious if you in fact then fall over.

Common incidents include:

  • slipping and falling on liquid left on the ground;
  • slipping and falling on slippery flooring of a shop;
  • tripping over an object;
  • tripping over uneven ground;
  • tripping and falling due to poor lighting;
  • tripping and falling due to broken steps; and
  • tripping and falling due to a lack of handrails.

Common injuries can include:

  • sprains or strains;
  • broken bones;
  • bruising; and
  • back injury.

The individual circumstances of an incident will affect whether a damages claim can be successfully brought against a Defendant, whether it be an incident at a workplace or within the public.

Please do not hesitate to contact our office on 07 4963 2000 or via our online contact form should you have any queries.

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Personal Injury Claim
Time Limitations

Is it too late to claim for my injury?

In Queensland, strict time limitations apply to personal injury claims.

How much time do I have to make a claim?

Generally, a 3 year time limitation applies to all personal injury claims.

What other time limits apply to my claim?

Additional time limits also apply depending on whether the claim is due to a motor vehicle accident, a workers compensation injury, or some other circumstance, such as a slip and fall on private premises.  For instance, under the Workers’ Compensation legislation, you can apply for a review of a decision by WorkCover within 3 months if you do not agree with their decision.  This time limit can be extended if ‘special circumstances’ are found to exist.

In the case Workers’ Compensation Regulator v Pryszladk the Queensland Court of Appeal considered the issue of ‘special circumstances’ that can apply to an out of time review application.  In doing so, the Court found the fundamental reason for extension of time provisions is to ensure time limits do not cause injustice in a particular case.  This means that injured workers must be provided natural justice and procedural fairness at every step of the claim process.

What happens if I am out of time?

If you miss a limitation date, and certain steps are not taken beforehand, you may be ‘statute barred’ from making a claim.  This means that your claim would not be accepted by the other party, and provides a complete defence to your claim.  In some special circumstances, the 3 year time limit can also be extended, so seek legal advice urgently.

Of course, as was the case with Mr Pryszlak above, every injury and surrounding circumstances are different.  The types of compensation available to an injured person will also depend on how serious the injury is, and the effect of the injury on their work and personal life.  Some types of compensation can also have restrictions or ‘caps’ applied.  Other injuries may satisfy criteria to make an income protection or TPD claim through a person’s superannuation fund.

If you are injured, it is therefore important that you contact our compensation team to speak with an expert so you are aware of the strict time limitations, compensation, and legal rights that apply to your circumstances.

Please do not hesitate to contact our office on 07 4963 2000 or via our online contact form should you have any queries.

Compensation Law Team

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Time Limitations in
Personal Injury Claims

The Limitation of Actions Act 1974 (Qld) specifies that an action for personal injury cannot be brought after 3 years from the date on which the cause of action arose.  This generally means 3 years from the date the injury occurred.

There are a number of mandatory steps an injured person must take before the expiry of the 3 year limitation date.  Once the 3 years have passed, an injured person is “statute barred” from making a claim.

However, there are some exceptions that apply to this rule.

How can the 3 year time limit be extended?

Section 31 of the Limitation of Actions Act 1974 (Qld) grants the Court the power to extend the limitation period in certain circumstances.  This involves making an application to the Court and paying the appropriate filing fee.

To allow this extension, the Court must be satisfied that a very important “material fact of a decisive nature” was not known by the applicant until a year before the limitation period or afterwards, AND there is enough evidence to establish a cause of action.

Some examples of a “material fact” are:

  • the fact that the other party’s negligence caused personal injury; or
  • the nature or extent of the personal injury caused by the negligence.

Just because an injured person did not realise they could bring an action is NOT a material fact.  In a recent case of Ballingall v WorkCover Queensland & Ors the Court allowed a mine worker an extension of time after he injured his back when thrown around in a driftrunner, whilst driving underground.  The extension was granted because the Court was satisfied that even though the injured worker had received medical treatment, he only knew his back injury was ongoing and sufficiently serious to permanently interfere with his employment after the 3 year time limitation had passed, AND he had a cause of action in negligence due to the employer’s driftrunner having limited suspension, worn seats and the mine roads being in “terrible condition”.

In most cases, the court will grant an extension where it was not possible for the injured party to know that the negligent act resulted in harm and the extension will not cause prejudice to the other party.  If granted, the Court can only order an extension of 1 year from the date the applicant obtained knowledge of the “material fact”.

Are there other circumstances where the time limit can be extended?

If the injured person is a child, an action to recover damages in respect of the injury can only be brought by that person when they reach the age of 18 years.  The 3 year time limitation will then expire once they turn 21 years of age.

Some types of injuries are also considered differently by the law, such as dust related conditions caused by exposure to coal dust, asbestos or silica.  Different criteria applies to these types of claims, particularly if the injury has occurred over a period of time.

It is therefore vital that an injured party seeks legal advice without delay to ensure important time limitations are not missed.  If you delay, you could lose your rights completely.

Contact our Compensation team on 07 4963 2000 or via our online contact form to discuss your situation, and to ensure your legal rights are protected in regards to any injury.

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Had a car accident
that’s not your fault

In Queensland we have a ‘fault’ based Compulsory Third Party (CTP) scheme.  What this means is that any motor vehicle owner, driver, passenger, or other road user in Queensland is covered by unlimited liability for personal injuries caused by a vehicle, where the accident is not their fault.  Unlike other insurance policies, the amount of the CTP premium is built into the vehicle registration fee and is not affected by the lodging of a CTP claim.

To have a CTP claim accepted, an injured party must prove the owner or driver of the motor vehicle was ‘at fault’.  For example, if a car is stolen and the thief injured a pedestrian in the process, the registered owner of the vehicle and their CTP insurer are liable for the pedestrian’s injuries.  Another example is if a group of friends are travelling to a BBQ, and the driver runs a red light and crashes into another vehicle.  The passengers of the vehicle and the driver of the other vehicle can make a CTP claim for their injuries.

According to the Queensland Motor Accident Insurance Commission, there were a total of 4.16 million vehicles registered for CTP insurance in Queensland last financial year.  In the past 3 years, the frequency of CTP claims in Queensland has been on the rise.  The majority of injured persons lodging claims have legal representation.  Males and females in the 26-35 age group are most likely to make a CTP claim.  The majority of CTP claims are for minor injuries.

When a CTP claim is accepted, the insurer will pay for reasonable costs associated with medical treatment and rehabilitation.  Damages can also be claimed for things like loss of income or costs of care, however special limits and criteria apply.  No two injured persons have the same circumstances and situation.  It is therefore important that you contact our compensation team to speak with an expert about your rights in relation to a CTP claim and what limits or criteria apply to your situation.

Please do not hesitate to contact our office on 07 4963 2000 or via our online contact form should you have any queries.

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