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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Have you been injured
travelling to or from work

If you are injured while travelling between home and your “place of employment”, you may be covered by workers compensation. This is often referred to as a “journey claim”.

What is a Journey Claim?

A “journey claim” applies when a worker has finished work or is not performing any work at the time. It applies to journeys such as travelling to the workplace before work starts, or home after work has finished for the day, just as much as it does to a journey during working hours. A journey claim can be made regardless of how you are travelling, including walking, public transport, work vehicle, private vehicle, or cab.

So what if you stop off on your journey to visit a friend, collect kids from daycare, or to buy some bread and milk? Does workers compensation still apply? Well, it depends…

In certain situations, an injury may not be considered a “journey claim” if the injury happens during or after a substantial interruption or deviation from the journey. In deciding whether there is a “substantial interruption or deviation”, the court will consider the reason, the actual time of the interruption, and the distance travelled for this deviation.

In the matter of Faelmann v Workers’ Compensation Regulator, the Queensland Industrial Relations Commission found that a 3.2 kilometre deviation and an additional 50 minutes to collect a spray gun from a friend on the way home from work was not a “substantial interruption or deviation”. As a result, the worker’s compensation claim was allowed.

An example of a deviation that would be considered a “substantial interruption or deviation” is if you stopped to watch a movie for 2 hours on your journey home from work. A worker’s compensation claim would not usually be accepted in those circumstances.

What do I do if I get injured on the way to or from work?

If you are injured on your way to or from work, it is important to do 3 things:

  1. Report your injury to your employer immediately.
  2. Visit a qualified medical practitioner as soon as possible.
  3. Seek advice from a compensation lawyer.

Our compensation team can assist you with every step of the compensation process after a work accident.  Please don’t hesitate to contact us on (07) 4963 2000 or via our online contact form should you require assistance.

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Workers Compensation
lump sum offers

When a person is injured at work, an important stage of the injury compensation process is to be assessed by a relevant medical specialist for permanent impairment.

What is permanent impairment?

A permanent impairment is impairment from an injury resulting in loss of efficient use of a part of the body, or loss of part of the body.

The assessment by the medical specialist is conducted according to legislated medical guidelines, and will consider:

  • whether the condition has reached maximum medical improvement;
  • whether the injury has resulted in an impairment;
  • whether that impairment is permanent;
  • whether that degree of permanent impairment results from the injury; and
  • whether any proportion of that permanent impairment is due to any pre-existing injury, condition or abnormality.

The assessing doctor will lodge a report of their assessment to Workers Compensation.  Based on this report, Workers Compensation will issue what is known as a ‘Notice of Assessment’.  For instance, a worker who has injured their back lifting heavy boxes at work may be assessed with a 4% permanent impairment.  This percentage is then used by Workers Compensation to calculate an offer of lump sum compensation to the worker.

Lump Sum Compensation

An injured worker should seek legal advice before accepting any lump sum compensation offer to discuss the range of options available to them.

For the vast majority of workers, accepting a lump sum eliminates their entitlement to a common law claim.  The lump sum offered may not be adequate compensation for the injured worker’s needs.

Important time limits will also apply to an offer.  There is also a threshold to be met if the injury occurred between a specific date range.

If you or someone you know has been injured at work, we strongly recommend speaking with a compensation lawyer prior to accepting any lump sum offer.  Our compensation team can assist you with every step of the process involved after being injured at work.

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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Road Fatalities and
Dependency Claims

Earlier this year, fatalities and crash statistics from the past three decades in Australia were released by the Australian Road Death Database. The figures showed that 48,592 people have died on Australian roads since 1989.

What is most surprising about this figure is that:

  • 43% of those deceased were not driving at the time of the accident, but were either pedestrians, passengers, or cyclists;
  • Nearly 1 in 10 motor vehicle accidents kill more than one person;
  • Risk factors include fatigue, speed, inexperience, and drug and/or alcohol intoxication;
  • The most common age to be killed on the road is 18;
  • Motorbike riders are most at risk of a fatality on weekend afternoons; and
  • Most road deaths involve just one vehicle.

Civil Liability Act 2003 (Qld)

Queensland laws provide rights and protections for survivors of a person who has been killed in a motor vehicle accident. A claim is possible where the deceased person was not to blame for the circumstances of the accident. For instance, a spouse and children are entitled to bring a claim where they can show they have been deprived of an economic benefit provided by the deceased person. These family relationships can become quite complex if there are step children or ex partners who were also financially dependent on the deceased person, eg. by way of spousal maintenance or child support.

The Civil Liability Act 2003 (Qld) also provides for an award of damages for the loss of services provided by the deceased to their dependents, such as personal care and assistance, domestic duties, yard and home maintenance. Only one action can be brought on behalf of all dependents. If there are multiple dependents, any compensation monies must be apportioned between all parties.

Strict time limitations apply to dependency claims. Dependents will also need to comply with important pre-court procedures contained in the relevant legislation.

If you or someone you know has been impacted by an accident that is not their fault, we strongly recommend seeking advice from a compensation lawyer. Our compensation team can assist you with every step of the compensation process after a motor vehicle accident. 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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Workplace Safety
– is your workplace risky?

A recent analysis of SafeWork Australia data has found that workers in agriculture, forestry, and fishing are most at risk of being injured at work.  Those in transport, stores and warehousing, construction, and mining were close behind when it came to being injured at work due to a lack of workplace safety.

This study is a timely reminder for workers and employers alike to consider their risks and requirements when it comes to workplace safety.

Employers bear significant responsibilities when it comes to workplace health and safety, and generally these responsibilities cannot be delegated (that is, passed on).

Common Expectations of Employers:

The Work Health and Safety Act 2011 (Qld) contains a number of common expectations of employers to:

  • Provide a safe workplace;
  • Implement and maintain a safe system of work;
  • Provide safe and proper plant (ie factory, mill, workshop, yard) and equipment;
  • Provide adequate and proper instruction, training and supervision;
  • Perform adequate and proper risk assessments of the workplace and work systems.

Incident Reporting

Each workplace must have a system of reporting incidents and injuries, and every worker should be aware of this process. Having all workers undergo induction at the beginning of employment, and refresher training throughout their employment, maintains a consistent standard of knowledge and understanding about workplace safety. Whether this training was provided will be a vital part of any investigation into a workplace incident. Workers who are unsure of the incident reporting process in their workplace should seek clarification from their employer.

There are many ways for employers to manage common hazards and risks in the workplace. With advances in technology and upgrades to equipment, it may be that the hazards and risks change over time. Therefore it is important to recognize that each workplace is different so a ‘one size fits all’ approach is not recommended.

If you would like more information about the workplace health and safety obligations that apply to your workplace please contact our office on 4963 2000 or via our online contact form.

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Risks of Work
Related Violence

According to recent work health and safety data, violent incidents in the workplace are increasing.  “Work related violence” is any incident in which a person is abused, threatened or assaulted in circumstances relating to their work.  These behaviours create a risk of health and safety to workers.  Workers can be exposed to work related violence from clients, patients and members of the public.

The most common industries to have work related violence incidents are health, aged care, disability services, youth services, law enforcement, hospitality and finance.  Yet it can happen to anyone.

Work Health and Safety

Work health and safety laws in Queensland are designed to ensure the health and safety of workers and others in the workplace.  ‘Health’ includes physical and psychological health.  A person who conducts a business or undertaking (“PCBU”) has a primary duty of care to ensure the health and safety of their workers and others in the workplace.  They must provide and maintain, so far as is reasonably practicable, a safe and healthy working environment and they must consult with their workers about health and safety issues.

Work related violence, particularly in these industries, is a consideration for employers when identifying and assessing hazards and risks.  Employers need to provide information, instructions, training and supervision to their workers to enable them to perform their work in a way that is safe and without risks to their health.

What is considered a reasonable response to a violent incident will vary depending on the nature and severity of the incident.  Employers should consider implementing a policy that lets workers know what to do at the time of, and immediately after an incident.

If you have any questions in relation to workplace injuries and workplace safety please contact our office on (07) 4963 2000 or via our online contact form.

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Social Media Posts:
Users Beware

More than ever before, individuals are using a range of social media platforms such as Twitter, Facebook, Instagram, Snapchat and LinkedIn. The amount of content posted to social media by the public is unprecedented.  Likewise, lawyers have seen an increase in the number of cases involving social media. As technology develops and evolves, so too does the law when it comes to the use of social media.

Did you know, the Courts can serve documents through social media?

In recent times, social media platforms have also been recognised by the Courts as a means of serving a party with court documents.

Social media terms and conditions

Most people do not realise that by creating a social media account, they are entering into a contractual relationship with the platform provider.  By agreeing to “Terms of Use” the user grants the platform licence to use content that they share. This means the user loses exclusive control of their photographs, comments, and opinions.

Users of social media must also accept that their digital footprint is forever, and can be used to trace their location, retrieve information, and provide evidence of alleged facts in legal matters. These platforms can open up a legal can of worms including defamation, bullying, harassment, and so on.

What you post can be used in Court

In addition, what an individual posts can often seriously damage their credibility and damage their case. For instance, it will be difficult to convince a party that your ankle injury has not resolved if you are posting Instagram pictures of bungy-jumping on holiday in Bali. Similarly, rants about an ex partner on Facebook may cause serious problems in a family law dispute.

As a general rule, remember social media is not an appropriate means of sharing sensitive or valuable content.

If you have any questions in relation to the use
of social media please contact our office.

(07) 4963 2000
ONLINE ENQUIRY
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Wet Weather: Duty of
care owed by occupiers

With the wet season upon us, it is important to remember the duty of care owed by occupiers to patrons and visitors of their premises. In Sutherland Shire Council v Safar [2017] NSWCA 203 the Court of Appeal recently upheld a decision finding an occupier responsible for a patron’s slip and fall.

In this case, the injured person was attending a dance eisteddfod at an entertainment centre when she slipped on a wet floor adjacent to the foyer. The local Council owned and occupied the premises. It was a rainy day and water had accumulated on the foyer floor from umbrellas and other patrons entering the building from the rain. There had also been other previous incidents of patrons slipping on the same floor when it was wet.

The Court found that the Council was or should have been aware of the presence of water on the floor, and that it ought to have taken steps to eliminate or reduce the risks of slipping. On this basis, the Court agreed that it was reasonably foreseeable that a patron could slip and fall on the wet floor.

In assessing what reasonable precautions the occupiers could have taken to eliminate or reduce the risk of patrons slipping, the court considered the following:

  • Providing buckets for wet umbrellas;
  • Providing a bagging system for wet umbrellas;
  • Providing patrons with area to hang wet jackets, raincoats, etc
  • Placing mats on the ground; and
  • Employing a person with a mop to wipe water off of the floor.

When considering which of the above were reasonable, the Court of Appeal looked at the simplicity and suitability of these precautions. The Court found that providing buckets and a bagging system for wet umbrellas was reasonable under the circumstances. It also found that having patrons leave wet raincoats and items outside the auditorium was also reasonable. It was agreed that if these precautions had been taken, the floor would have remained dry.

This decision emphasises the need for an injured person to show that the slip and fall would not have happened had reasonable precautions been taken.

If you have suffered an injury from a slip and fall, or if you are an occupier of premises and need advice on reasonable precautions, our compensation team can assist you with your query.

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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