Personal Injury

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Personal Injury

If you have suffered a personal injury, it is critical to seek legal advice in relation to your entitlement for compensation for your loss.

This is likely to include ongoing medical costs, loss of working ability and reduced quality of life. Serious injuries can also entail expensive necessities such as assistance around the home and property adjustments to accommodate physical disabilities.

The Civil Liability Act 1936 sets out the relevant legislative provisions for personal injury claims.

The main types of damages that may be claimed in personal injury cases include:

  • Loss of earning capacity

This head of damage addresses the effect of your injury on your earning capacity. This includes both past loss of earnings (calculated from a week after the injury until settlement or judgment) and future loss of earnings. These damages are subject to a prescribed discount rate and thereafter a mandatory 20% reduction.

Damages for economic loss cannot exceed the prescribed maximum, which is calculated in each case using a formula based on the Consumer Price Index.

  • Non-economic loss

Non-economic loss is a broad head of damage encompassing pain and suffering, loss of amenities of life and loss of expectation of life or disfigurement. The Act requires that an Injury Scale Value (ISV) be ascribed and used to calculate damages for non-economic loss.

Damages may also be claimed in respect of:

  • Paid medical expenses and disbursements;
  • Future medical expenses;
  • Past gratuitous services; and
  • Future commercial care (as applicable).

The limitation period for personal injury claims is 3 years. This means that proceedings must be issued within 3 years of the accident occurring (or if the injury remains latent, 3 years after the injury arises). If proceedings are not brought within this limitation period, any claim will thereafter be statutorily barred.

It is also important to note that the claimant, referred to as the plaintiff, bears the burden of proving their cause of action on the balance of probabilities. There are adverse cost implications for unsuccessful claimants. It is therefore critical to consult an experienced personal injury lawyer as to the merit of your claim and any potential contention surrounding liability.

PERSONAL INJURY CLAIM

Motor Vehicle Accidents

The first step in a motor vehicle accident claim is lodging an Injury Claim Form with the relevant Compulsory Third Party Insurer.

This form provides notice to the insurer and details the circumstances of the accident, the injured person, the injuries and other information. To protect your interests and prevent any unforeseen issues, it is essential to obtain legal advice at the outset and prior to completing this form.

It is also important to note that strict time limits apply. You must lodge your injury claim form within 6 months of the injury.

Once you have ascertained the insurer of the other driver, you may commence formulating your claim.

PERSONAL INJURY CLAIM

Dependency Claims

If you are a dependent of a person who has passed away in a motor vehicle accident, section 23 of the Act allows for an action to be maintained and damages recovered for the benefit of you and any other dependents.

A dependent will include a spouse, domestic partner, parent, brother, sister and child of the person whose death was wrongfully caused.

Dependency claims are to be brought in the name of the Executor of the Estate. If, however, there is no Executor or the Executor does not commence an action within 6 months, then an action may be brought by a dependent (for the benefit of all dependents).

Dependency claims are similarly commenced by lodging a Fatality Claim Form with the relevant Compulsory Third Party Insurer.

In a dependency claim, damages may be recovered for:

  • Loss of financial support

Loss of financial support will be based on the deceased person’s income and future earning capacity. Similarly to loss of earning capacity above, this will also be subject to a prescribed discount rate and a mandatory 20% reduction as well as the prescribed maximum.

  • Loss of consortium

Loss of consortium compensates a spouse or domestic partner for the loss of the relationship. This includes loss of companionship and loss of domestic services.

  • Compensable expenses

Compensable expenses include funeral expenses and counselling treatment. It is therefore important to keep a record of these costs, including receipts.

  • Solatium

Section 29 of the Act provides that a surviving spouse or domestic partner is entitled to an additional sum not exceeding $10,000.00 by way of solatium.

PERSONAL INJURY CLAIM

Occupiers Liability

If you have suffered an injury as a result of the dangerous state or condition of premises, section 20 of the Civil Liability Act allows you to make a personal injury claim against the occupier of the premises. This kind of claim is known as occupiers liability and is based on the principles of negligence.

To succeed in this type of personal injury claim, the plaintiff must prove on the balance of probabilities that their injuries were caused by the occupier’s negligence.

There are several factors that the court will take into account in determining the standard of care to be exercised by the occupier of the premises, including:

  • The nature and extent of the premises;
  • The nature and extent of the danger arising from the state or condition of the premises;
  • The circumstances in which the person alleged to have suffered injury, damage or loss or the property of that person, became exposed to that danger;
  • The age of the person alleged to have suffered the injury, damage or loss and the ability of that person to appreciate the danger;
  • The extent to which the occupier was aware or ought to be aware of the danger and the entry of persons onto the premises;
  • The measures taken to eliminate, reduce or warn against the anger; and
  • The extent if at all to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger.
PERSONAL INJURY CLAIM

Workers Compensation

If you have an injury that arose from your employment, you may be eligible to obtain compensation by way of:

  • Application under the Return to Work SA scheme provided by the Return to Work Act 2014;
  • Application under the Comcare scheme pursuant to the Safety, Rehabilitation and Compensation Act 1998 (Cth) (if you are employed by the Commonwealth, a Commonwealth authority or a licensed corporation).

Injuries include physical injuries, mental injuries, disease and aggravation of a prior physical or mental injury.

An injured person is required to give notice of their injury to their employer as soon as practicable. If required by the employer, the injured person must complete a form pertaining to their injury.

For workers compensation under the Return to Work scheme, your claim must be commenced within 6 months of the injury arising or being diagnosed.

The Return to Work scheme provides for:

  • Income support if you are unable to work, based on a percentage of your average weekly earnings for up to 52 weeks;
  • Financial support for medical treatment, including rehabilitation and related travel expenses, for up to one year after your income support ceases;
  • Return to work services including job placement and retraining; and
  • Lump sum payments:
    • For non-economic loss if your whole person impairment percentage as a result of your injury is assessed at 5% or above;
    • For economic loss if your whole person impairment percentage as a result of your injury is between 5% and 29%;
  • Serious injury support, if your whole person impairment percentage is 30% or above. Serious injury support includes income support until retirement age, lifetime treatment, care and support services.

If your injury was caused by way of your employer’s negligence, you may commence a personal injury claim under the Civil Liability Act 1936 and be awarded damages instead of workers compensation payments.

If a work related injury causes the injured person’s death, the injured person’s dependents may make a claim for compensation. If claimed through the relevant scheme, the dependents will receive weekly payments reflecting a percentage of the worker’s notional weekly earnings. The dependents may otherwise bring a dependency claim for wrongful death and seek damages under the Civil Liability Act 1936.

Personal injury compensation claims are complex. It is essential that you obtain specialist legal advice and representation.

Speak to Barbaro Thilthorpe Lawyers today about your personal injury matter to ensure that you are properly compensated for all aspects of your loss.

HOW WE CAN HELP YOU

Areas of Practise

Defacto Relationships

Assets being divided upon the separation of a relationship may, at times, include entitlements to personal injury settlements if a de facto relationship exists.

Financial Rights

Legal counsel should be sought when making personal injury claims for medical negligence, motor vehicle and workplace accidents, no matter the financial circumstances.

Custody Disputes

A child’s best interests will always be served first, therefore it is always important to seek legal advice to discuss your legal rights to joint custody or shared responsibility.

Property Settlements

In the case of a property settlement, there are instances where the pool of assets being divided includes money awarded to a person due to a personal injury.

Separation & Divorce

Although dependent upon each circumstance, the court may decide to include a personal injury settlement in the division of the property pool of a separation or divorce.

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Frank Barbaro
Co-founding Partner
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