Personal Injury Claims Guide

A personal injury claim can provide you with more than just immediate financial compensation as remediation after experiencing an injurious event. It can offer you a great source of peace of mind, protecting you from incurring short and long-term financial, physical, psychological and emotional costs that arise as a consequence of the event.

Many people risk depriving themselves of the full compensation for injuries they are entitled to by not seeking the expert services of a specialised lawyer for personal injury. Many hope everything will be OK, however they do not understand the full extent of their legal and moral rights, or are intimidated by navigating the legal process. 

If you are considering looking into how to file a personal injury claim, our guide will explain everything you need to know, including what types of injuries are eligible to submit a claim, what you can claim for, why your claim may be rejected, and the steps involved to lodge a claim. Read on to feel more confident about pursuing your rights and interests.

What is personal injury?

A personal injury compensation claim involves the prosecution of a party — an individual, business or other organisation, by a claimant who has been physically, psychologically or financially injured in circumstances at no fault of their own where they are entitled to recover damages or compensation.

To be successful in the injury compensation process — whether your matter is a motor accident, public liability, workers’ compensation, or medical negligence claim — it is necessary to establish that the injury was wholly caused or materially contributed to by another person’s negligence which resulted from their breach of duty of care. Negligence can take many forms. It involves an act or omission on the part of someone which constitutes a breach of their duty of care to you.

The types of personal injury claims eligible for compensation

Seeking legal advice for injury claims of any type is necessary to ensure your case qualifies due to strictly defined criteria governing personal injury and other related compensation laws. These include:

While various types of compensation claims fall under personal injury, seeking legal advice for injury claims is often essential to effectively navigate the legal process. Each claim type is governed by its own set of regulations, which determines how remediation is awarded — these include:

• Workplace injury claims: Workers Compensation Scheme

• Public liability and medical negligence: Civil Liability Act 2002

• Motor vehicle accidents: Motor Accident Injuries Act, 2017.

Who can lodge a claim for personal injury compensation?

Remediation is available for everyone needing to recover any type of cost after an injury. You can lodge a claim for yourself or on behalf of someone you are responsible for who cannot defend their rights, such as children, elderly parents, people with disabilities and other reasons that impair their access to uphold their legal and moral rights. Claimants can also be the family of the affected party who has died or become incapacitated as a result of a personal injury event.

Do I qualify to submit a personal injury compensation claim?

Understanding how to file a personal injury claim can require significant preparatory work to demonstrate causation between the event, your injury and resulting consequences. A successful outcome requires you to argue to the court’s satisfaction and 'on the balance of probabilities' — the standard of proof in civil cases — that the injury was caused or materially contributed to by the negligence of another party. While this may seem overly technical, you ultimately have a claim for personal injury compensation if you have experienced a traumatic event:

• At work

• On the road

• On public or private property 

• Under the duty of care of a health professional

Seeking the expertise of a lawyer for personal injury can help you review the eligibility of your case, investigate your claim, prepare evidence, and do all the work to argue for your best interests.

Legal representation can also make all the difference in helping prove an injury has occurred where causation may be complex and unclear. For example, in cases where the injury can be caused by exercise as much as improper Workplace Health and Safety (WHS) protocols, a personal injury lawyer may still be able to successfully argue that your job materially contributed to the injury.

Additionally, specific roles such as police, firefighters, paramedics, ambulance officers, surf lifesavers, and miners are considered exempt workers who are afforded auxiliary protection under the relevant laws due to the nature of their work.

To submit a claim, the claimant must demonstrate that they were party to the event. For example, in a workplace injury claim, a person only needs to establish that they were a worker within the meaning of the legislation and suffered an injury — except those that may be self-inflicted.

As each personal injury case applies to its own regime, its unique circumstances afford you greater access to various other types of remediation. For example, workers who suffer injury due to their employer’s negligence can also prosecute a work injury damages claim. A successful prosecution usually awards far more damages than what can be traditionally recovered under the workers’ compensation scheme.

Understanding your claim’s eligibility can be frustrating. Using the services of an expert team like Brydens Lawyers can be the deciding factor in accessing all the options available and receiving the maximum compensation you are entitled to.

What am I able to claim for?

The injuries sustained can be either physical, psychological, or a combination of the above, which can be disastrous if the claimant cannot work or undertake regular day-to-day activities as a direct result of the event.

The level of damages you may be entitled to is typically equal to the severity and extent of the injuries sustained, helping to recover costs incurred and necessary to restore your quality of life. The types of damages and compensation that may be awarded can include some or all of the following:

• Non-economic loss, which provides for damages for pain and suffering.

• Past and future medical treatment expenses and out-of-pocket expenses.

• Loss of income and its effect on your ability to earn an income.

• Past and future loss of superannuation benefits.

• Services such as home cleaning, nursing, medical aids and equipment such as wheelchairs. This also includes modifying your home and car to accommodate wheelchairs and other accessibility equipment.

• Costs incurred from continued disabilities.

• A contribution towards your legal costs and disbursements.

• The cost of gratuitous care that has been provided for at least six months for six hours per week.

How much compensation can I receive from a personal injury claim?

When pursuing any type of personal injury compensation, the unique details of your case will be investigated to determine the remediation payable in proportion to your injury’s severity. There are separate criteria that determine your entitled compensation depending on the type of personal injury claim you are filing — these include:

Pain and suffering — non-economic loss

While provisions are included for what you can claim as listed above, additional compensation is available under the Civil Liability Act 2002, known as pain and suffering or non-economic loss. However, the amount awarded is calculated as a percentage by comparing the severity of your injury against the maximum amount reserved for ’a most extreme case’ — $761,500 as of 1 October 2023. To recover damages for their pain and suffering, the injured person must establish that the injury equates to at least 15% of an extreme case.

Motor accident claims

Other factors can influence your case for compensation for injuries, such as provisions governed by the Motor Accident Injuries Act 2017. Regarding a motor accident claim, claimants need to demonstrate they have been impaired by at least 10% of the injuries in an extreme case. However, this threshold is exceptionally high, where the majority of claims will not meet this criteria for pain and suffering and is typically reserved for horrendous events. 

Additionally, people submitting a motor accident case are not eligible to claim gratuitous care provided by family members and friends under the motor accident scheme. This is because the current scheme already provides ongoing statutory benefits for reasonable and necessary treatment expenses, domestic assistance, and wage loss separately from the claim for common law damages.

Workplace injury claims

In a workers’ compensation claim, the injured worker is entitled to weekly benefits to replace their lost wages whilst they are absent from work or a lump sum compensation if they have been wholly impaired for at least 10% of a physical injury. They can also claim a lump sum if they have experienced an impairment of at least 15% for a psychological injury. In relation to economic loss, source documents such as tax returns and business records are relied upon to determine the extent of the losses suffered and assign commensurate damages in relation to their current and future needs.

Is my compensation taxable, or will it affect my Centrelink payments?

Any personal injury compensation you are awarded is generally not a taxable event if the source of the funds derives from a structured settlement and the annuity is purchased from an Australian life insurance company or a state insurer. However, depending on where you live or submit the claim from, certain states may have additional provisions you may be subject to.

Your compensation for injuries sustained will affect your Centrelink benefit and may result in its suspension during the preclusion period — the time you receive compensation for — to prevent you from being paid twice concurrently. 

How to file a personal injury claim

Before a personal injury claim can be brought before the court, the circumstances of the accident that caused the injury need to be ascertained. Thorough investigations of the event need to be completed to support your argument, which involves interviewing witnesses, recovering police reports and injury reports recorded by businesses, and reviewing photographic and video evidence to engage experts in preparing liability reports. This also extends to recovering the notes prepared by doctors, nurses, firefighters and any other person providing professional assistance.

In due course, the injured person will undergo medico-legal assessment by specialists familiar with preparing reports for use in court proceedings. Once sufficient evidentiary material is available, your personal injury lawyer can establish, firstly, the entitlement to a claim and, secondly, the nature and extent of that claim before proceedings will be brought.

It is essential to act on your personal injury compensation claim as soon as possible. All cases are subject to strict time limits for which they are eligible to be heard and prosecuted. Failure to comply may mean the claim is statute-barred, and the injured person may not be entitled to proceed with their prosecution.
 The injury compensation process varies depending on the type of claim that is to be prosecuted.

Filing public liability and medical negligence claims

A claim under the Civil Liability Act, 2002, whether for an injury sustained on public or private property or due to medical negligence, will be pursued in either the District Court or the Supreme Court of New South Wales. A Statement of Claim initiates the proceedings, allowing the opposing party to file a defense before the matter is listed for hearing before a court judge.

Filing for motor accident and workplace injury claims

A claim for damages for injuries arising from a motor vehicle accident or workers’ compensation will be brought to the Personal Injury Commission and heard and determined by its Members. The standard principles of evidence still apply, requiring both parties to present all relevant proofs to the Commission. This allows Members to determine whether damages or compensation are payable and, secondly, the amount that should be awarded.

Why was my claim for personal injury compensation rejected?

There are many pitfalls that a personal injury claimant may fall into following their involvement in an accident either on the road, on public or private property or at work that can deprive them of their ability to submit a successful personal injury claim for compensation — these include:

• Not seeking medical treatment at the earliest opportunity.

• Not recording the injury, including the time it occurred and the circumstances involved with your employer, commercial premises or anywhere where there is an expectation of duty of care.

• Not reporting motor accidents with the police and your insurer.

• Not seeking legal advice for personal injury.

• You have been unable to demonstrate the opposing party is solely responsible for the injury or that their negligence largely contributed to it.

• Submitting a fraudulent claim where the injury never occurred or was self-inflicted.

• The claim has been submitted outside of the qualifying time.

Do I need a personal injury lawyer to claim compensation for injuries?

Procuring legal advice for injury claims of any type or regime can be the deciding factor between simply winning your case and achieving the maximum compensation you are entitled to. 

When filing a claim, the burden is on the claimant to prove causation between your injury and the defendant’s negligent actions. Lawyers for personal injury have the unique experience and expertise to qualify claims, collect evidence sufficient to disprove the defence and navigate the legal injury compensation process to have your case heard and judged by the court within the prescribed time frame. 

Your lawyer or solicitor can help you if you:

• Have been injured but are unsure if you qualify to file a claim.

• Have been injured and are ready to make a claim.

• Have not received the maximum compensation you are entitled to after filing a successful claim.

• Have had your claim partially or wholly rejected.

Find peace of mind with Brydens Lawyers

Any time you are looking into a personal injury claim, whether you are considering filing, collecting evidence, or having your case heard by a court judge or commission, it can be a trying time for yourself, your family, and your friends. 

At Brydens Lawyers, we have assembled an expert team with the experience and expertise necessary not only to win your case with maximum compensation awarded but also to take the time to understand every detail and ensure that you are always supported.

For 50 years, we have worked hard to make sure everyone, no matter their situation, can access affordable legal counsel from a firm with an established history of winning claims. That is why we offer free legal advice* and work with a No-Win, No-Fee* contingency to ensure everyone can defend their rights and interests. (*Conditions apply).

If you are ready to make a claim, feel free to contact us to organise an obligation-free in-person or virtual consultation at any of our offices and legal centres throughout Sydney, regional NSW, and Canberra. We invite you to review our resources for more information about various legal matters or to stay updated about some of our recent wins.