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Contextualising Compensation: What You Need to Know About Claiming

Whether you’re reading about a monster payout in the newspaper, or you’re wondering if you might be entitled to compensation, it’s vital that you have an understanding of compensation that is based on the law, not the media.

What is Compensation?

Compensation is a payment that you are entitled to receive if you suffer harm that was caused by the negligence of someone who owes you a duty of care.

This rather wordy explanation contains several legal definitions you need to be aware of:

Harm refers to all types of injury and loss, including:

  • Physical and psychological injuries
  • Pain and suffering
  • Property damage and;
  • Economic loss (both past and future)

Negligence is when someone else acts recklessly, carelessly, or without the degree of skill usually expected of them in a particular set of circumstances, and this causes some kind of damage or injury to you.

Duty of care refers to circumstances where a person should have foreseen that their conduct could have injured you. If there is a duty of care, the person who owes the duty must perform it or act to a reasonable standard. Failure to do this is called a “breach of duty of care”. Only someone owing a duty of care to you can be said to have acted negligently towards you.

In Queensland, some relationships automatically have a duty of care.

These include (but aren’t limited to) relationships between:

  • Doctor & patient
  • Landlord & tenant
  • Employer & employee
  • Prison & detainee
  • Manufacturer or supplier & consumer
  • Road user & road user
  • Teacher & student

If you think that your case satisfies these three requirements, it’s time to get some legal advice about what to do next.

How Does Claiming Compensation Work?

How you go about making a claim will depend on the specific facts of your case. For example, in Queensland, injuries sustained at your workplace usually involve navigating the WorkCover system first, whereas claims of medical negligence can go straight to court.

If you’re seeking compensation, you’ll need a lawyer to:

  1. Help you see if you have a case
  2. Explain what you need to do next and;
  3. Prepare the relevant documents so you can lodge your claim within the legislated deadlines.

How Much Compensation Can I Claim?

One of the biggest misconceptions in Australia is that large compensation claims are essentially “money for nothing”.

How much a claim is worth is actually based on very real calculations that take into account:

  • Financial losses suffered as a result of the harm caused: This calculation includes both immediate losses and future losses, which can be quite substantial if the claimant’s ability to work has been affected.
  • The extent of any injuries: Injuries that are severe, or have life-long consequences will incur higher compensation payments than temporary or minor injuries.
  • Damage to personal property: Claimants may also receive compensation for physical property that has been damaged, with unique items usually attracting more compensation than replaceable objects.

Every claim is different, which is why most lawyers will be reluctant to give you a dollar figure until they understand all of the details of your case and have communicated with the other party’s insurer or solicitors.

When Can’t I Make a Claim?

There are some circumstances where you cannot claim compensation. These include:

  • Occasions where any harm you suffer is caused by incidents that are deemed to be “acts of God”
  • When harm occurs as the result of an act of war or terrorism
  • Injuries and accidents that were your own fault (as opposed to contributory negligence, where an incident is only partially your fault)

A good personal injury lawyer will tell you very early on if your claim is likely to be unsuccessful because of any of these factors.

What Is No Win No Fee?

You may have seen lawyers who offer “no win no fee” services. This is a popular type of billing arrangement where you may not have to pay any legal fees if your claim is unsuccessful.

It’s important to know, however, that no win no fee is not a risk-free arrangement.

You may have to pay disbursements (out of pocket expenses your lawyers pay other people, e.g. court fees) and if you lose you may also have to pay the opposing side’s legal fees.

Make sure that you fully understand your solicitor’s billing structure before you sign anything.

I Think I May Have a Claim, What Do I Do Now?

There is a handful of accurate and informative online resources available to Queensland residents who are considering pursuing a personal injury or negligence claim. If you want to find out more before you contact a lawyer, take a look at:

Legal Aid (note: this is a basic overview, Legal Aid does not offer specific legal advice in this area)

The Queensland Law Handbook

WorkCover Queensland (for information about work-related claims)

Or, if you’re not sure what to research, you can contact Phoenix Law to book a free, no-obligation claim evaluation with one of our solicitors. Just call (07) 3180 0908 email info@phoenix-law.com.au or use our online contact form to tell us what happened to you.