Everything you need to know about compensation
The English language is complex, with many words, including compensation, often having more than one meaning. In this instance, were going to discuss compensation in the context of personal injury law.
What is compensation?
Compensation is something, typically money but can be anything of value awarded to a victim or their dependent in recognition of a personal injury, death, financial loss or suffering.
Some commonly used synonyms of compensation include;
Compensation falls under both common and statutory law. Although always in the form of money, payments can be small weekly payments or bigger lump sums.
How does compensation work?
In Australia compensation works in a number of different ways depending on an individuals situation and how it’s being claimed.
Usually, only minor injury claims fall under statutory law.
Under statutory law, compensation is designed to bridge the gap between injury and recovery. Generally, statutory claims made against an insurer supplement a person’s wages and medical bills while they are unable to work or work in the same capacity. Once a person has recovered, payments stop, they return to work and the case is closed.
Generally, under statutory law, there is no option to make a claim for any future damages.
Common law claims
Generally, all no-fault injury claims which meet a required threshold fall under common law.
Under common law, compensation is designed to put a plaintiff in a position they were in before having an accident and are often in the form of a lump sum.
Under common law, anyone who has been injured or harmed due to someone else negligence is entitled to be compensated. This means that if an individual can not prove that somebody else was wholly or at least partially at fault, they may not be able to recover damages. However, under statutory law, individuals in many instances can still make a claim, even if they were at fault for the accident which caused their injuries.
How to get it?
Compensation can be claimed by yourself or with the help of a legal representative via no win no fee.
In most cases, minor claims which fall under statute law do not require legal representation unless a dispute arises. To make a statutory claim, you simply need to liaise with the insurer and follow their protocol.
Any type of claim which falls outside of the above is most commonly pursued by plaintiffs with the help of a solicitor. Common law claims can be complex and require a deep understanding of both prior cases and regulations imposed by statute.
How long does it take?
Again, this depends whether an individual is making a statutory claim for compensation or a common law claim. Generally, claims made under statutory law are paid almost instantly and may come on the form of a one-off help payment or weekly benefits, such as wage replacement.
Common law claims generally take anywhere between 1 and 3 years to settle. An insurer will generally not pay out until a plaintiff’s injuries have fully healed.
What are the different types of compensation?
There are many different types of financial compensation claims. The accident or event which caused an individuals injuries determines the type of compensation they are eligible for.
Who can make a claim?
- Motorists injured in road accidents where another party were at fault
- Motorists injured due to adverse road conditions
- pedestrians hit by motorists
- passengers injured in collisions with other motorists
- passengers injured in a single-vehicle accident
- motorcyclists hit by another motorist or injured by defective road conditions
- Truck drivers injured in an array of incidents
- pedestrians, passengers or drivers injured as a result of a hit and run
- cyclists involved in no-fault accidents with other motorists
- witnesses to road traffic accidents
- claims on behalf of a loved one resulting from fatal and catastrophic injuries
There may be other instances we have omitted to mention.
Who is eligible?
- Patients injured during medical procedures where a doctor failed in their duty of care
- Individuals affected by wrongful, delayed or misdiagnosis
- Mothers or children negligently injured during childbirth
- Individuals harmed due to the incorrect reporting of test results
- Patients injured or harmed due to negligence on behalf of their GP
- Residents of care homes inured through neglect
- Victims of hospital neglect
There may be other circumstances that warrant a claim.
Who can claim?
- Employees under the WorkSafe regulated system
- Workers injured in no fault accidents in all states and territories
- Employees injured under the WorkCover system
- Workers injured in at fault accidents in some states and territories
- Employees injured travelling to and from their place of work
- FIFO workers injured on remote sites
- Construction workers injured on building sites
- Production and line workers inured in warehouses and yards
There may be several other instances that give rise to a claim.
Who can sue?
- People injured due to no fault accidents in shopping complexes and supermarkets
- Holidaymakers injured in no fault overseas and domestic holidays
- Patrons who have suffered from food poisoning
- Victims of dog and other pet animal attacks
- Consumers injured because of faulty or defective products
- People injured due to a slip and fall on public or private property
We have not covered every type of claims scenario.
Who can seek a remedy?
- Innocent bystanders injured during the commission of a crime
- Victims of common assault including ABH and GBH claims
- Sufferers of sexual abuse and sexual assault claims
- Children who have been victims of sex abuse and historic claims
- Dependents who have lost a loved one
Who does this apply to?
- Eligible superannuation members
- Holders of total and permanent disability insurance policies
- Income protection policyholders
- and many more
How much compensation can an individual claim?
Under common law, there are numerous heads of damage, however, the bulk of a claim is made up of economic loss and non-economic loss.
Non-economic loss refers to compensation to make up for any pain and suffering. There are numerous Acts in each state and territory that impose several limits on the amount of compensation a plaintiff can receive for non-economic loss arising from personal injury or death.
Economic loss refers to lost income whether that be past or future lost earnings, medical expenses, travel coats or care.
Did you know that we have developed an industry-leading tool that can accurately calculate the amount owed to individuals for different types of accident and injuries?
Claiming compensation for a road traffic accident
Different states have different legislation, however, claimants injured in road accidents may have a statutory claim, a common law claim or both.
Broadly speaking the following generally falls under statutory law in most states.
- Minor injures below 7% wpi regardless of fault
- At-fault victims with catastrophic injures
Anything outside of the above is governed by common law such as;
- No-fault injuries categorised above 7% wpi
Note: Only a practising solicitor in your jurisdiction can make this determination.
Facts about weekly benefits and lump sum compensation for work injuries
As with road accident victims, employees who have suffered a work injury may have the option to make both types of claims simultaneously or separately.
Work injury compensation is a little simpler in the fact that a plaintiff can only make a common law claim of they can prove employer negligence.
Statutory WorkSafe or WorkCover weekly payments are often paid without any resistance, however, in some cases, employees find it difficult accessing their entitlements. More often though problems and disputes arise after a claim is accepted such as;
- Employees being pressured to return to work to soon
- weekly payments being cut-off early
- unfair dismissal
Clinical negligence compensation
Claims for medical negligence fall under common law only.
Public liability damages
As above, public liability also falls under common law.
Do you need to make a claim for compensation?
If you believe that you or a loved one is entitled to compensation but wondering where to start, speak to the experts at Millner and Knight. We can quickly help you understand your rights and entitlements along with providing you with free and impartial advice on what to do next.
To speak with a member of our team who specialises in cases like yours call 1800 106 107. All calls are free, confidential and there will be no pressure to proceed with things after our initial conversation.