71 year old injured driver awarded $300,000for her Pain and Suffering

Maxiom Injury Lawyers recently resolved a claim for a client in her early seventies who was involved in a transport accident. Our client was past the age of retirement at the time of the accident, however she was an extremely active person who was still working.

While returning home from work, our client drove through the green light of an intersection. Another vehicle crossing the intersection from the opposite direction cut across and hit her head on. She was assisted out of her vehicle and taken to hospital where her left ankle and left knee were surgically treated. As a result of the accident, she suffered fractures to her left ankle, ribs and neck, lacerations to her knees and developed post-traumatic stress disorder and anxiety. She had no prior medical issues or psychological history.

Maxiom were happy to assist such a well deserving client and to help her secure a settlement of $300,000 plus costs.

The settlement was a fantastic outcome for our client who suffered a dramatic change to her formerly busy and active life.

If you have suffered an injury in a transport accident, workplace or public place, you should always make enquiries about your potential compensation entitlements, no matter your age.

TAC claims for compensation require expert advice. Please call us on 0488 722 444 or 1800 85 30 85 to find out whether you have a claim.

Wrongs Act Claims

Claiming compensation for injuries sustained in public, due to a defective product, medical negligence or wrongful death

What does a ‘Wrongs Act’ Claim mean?

There are various pieces of legislation that cover the way personal injury claims in Victoria are managed. The main ones are:

  • The Workplace Injury Rehabilitation and Compensation Act 2013 – which covers compensation claims for Victorian workplace injuries.
  • The Transport Accident Act 1986 –for injuries or death as a result of transport accidents which occur in Victoria.
  • The Wrongs Act 1958 – which covers common law damages claims for personal injury.

Personal injury claims such as public liability, medical negligence and wrongful death are covered by the provisions of the Wrongs Act, and this is why they are commonly referred to as a ‘Wrongs Act claim’. Although introduced in 1958, major amendments were made to this Act in 2003 to put restrictions on who can bring a claim, and the value of such claims.

What is involved in a Wrongs Act Claim?

1.Proving Negligence

For a person to be entitled to damages(monetary compensation) for injuries suffered, they must first establish that there has been negligence on the part of another person. In other words, the injury must have been due to someone else’s fault.

The Wrongs Act goes into detail about how fault is and is not established in personal injury cases. For example, a person is negligent if the risk of harm was foreseeable and a reasonable person in the person’s position would have taken steps to remove the risk.

2. Establishing the Significant Injury Threshold

If negligence can be established, the injured person can claim damages for their economic loss, medical expenses including gratuitous care, and pain and suffering.

In order to claim damages for pain and suffering, the injured person must be certified as suffering from a ‘Significant Injury’.

What is a Significant Injury?

There are four ways to prove a Significant Injury for compensation under the Wrongs Act:

1.An injury that satisfies a whole person impairment of:

  • 5% or more for a spinal injury; or
  • 6% or more for any other physical injury; or
  • 10% or more for a psychiatric injury.

2. Loss of a foetus.

3. Psychiatric injury due to loss of child during birth.

4. Loss of a breast.

The level of whole person impairment is determined by a specialist doctor in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 4th edition. This assessment is usually performed 12 months after the date of your injury or when the injury was first discovered. It is important that your injuries are considered permanent and stable at the time of the assessment.

Personal injury claims for compensation require expert advice. Maxiom Injury Lawyers Principal Lawyers Sach Fernando and Lisa Paul are both Personal Injury Law Accredited Specialists. Please call us on 0488 722 444 or 1800 85 30 85 to find out whether you have a claim.

Obligations to undergo treatment whilst claiming Workcover or TAC

A question often asked by our clients is whether they have to undergo treatment recommended to them by a doctor. Medical decisions are, of course, a personal choice that must be made in consultation with your medical professionals.

Whilst no one can force you to undergo treatment, as aclaimant in a personal injury caseyou have an obligation to mitigate your loss and damage. This duty arises from the doctrine of mitigation of damage. It means that you must take steps to do all that you can to reduce the loss and damage suffered from the incident.

Potential Implications

The potential implications of not undergoing treatment can be as follows:

01. Your claim being rejected – If there is a dispute as to whether your injury occurred in the circumstances you say it did, a contemporaneous record of injury in medical notes can be crucial. The absence of any report of injury to any medical practitioner, or treatment for such injury can make it harder to prove that the injury occurred.

02. Your claim for compensation being delayed – The law requires that your condition to have “stabilised” before making any claims for compensation. This means that there is no further treatment that will significantly improve your condition. Claims for compensation will invariably be suspended if your condition is not considered stable.

03. Your injury not being regarded as “serious”– A claim for common law damages under WorkCover and TAC is initiated by making an application for a Serious Injury Certificate. When lawyers for WorkCover or the TAC assess these applications, one of the factors that are considered is the frequency with which the individual is reporting their symptoms and how it is impacting them. An absence of treatment can be taken as suggestive of your injury not being significant or marked.

04. Entitlement to damages –The amount of compensation you can be awarded for your pain and suffering is not a fixed figure. One consideration to be taken into account when determining the amount of compensation to be awarded to you is the nature and frequency of the treatment that you have undergone. If you are not regularly undergoing treatment, this can be indicative of your injury not causing significant pain and suffering consequences.

Are there any exceptions?

There are some exceptions to not undergoing treatment. These can include:

01. Surgical intervention – In certain cases, an orthopaedic surgeon may propose that you undergo surgery. However, surgeries carry risks and therefore you should not be criticised for declining to undergo the surgery. The High Court case of Fazlic v Milingimbi Community Inc, considered the Plaintiff’s refusal to undergo a recommended back surgery because of his fear of operations. The Court found that his refusal was not unreasonable, particularly given nothing was said to dispel his fears.

02. Treatment that is not evidence-based – There are certain forms of treatment that are presently not “evidence based” or “science based”.  These alternative forms of medicine include naturopathy, acupuncture and ayurvedic treatment. Similarly, there search surrounding the use of medicinal cannabis to treat psychiatric conditions appears to be evolving.

03. COVID – During the pandemic and associated lockdowns there was significant disruption to surgical and allied health treatment. Many forms of treatment could not be performed via telehealth or video appointments. An absence of treatment can be justified for these reasons.

We always recommend that you follow your doctor’s advice when it comes to treatment. If you require legal advice about your obligations, rights and entitlements, please contact us on 0488 722 444 or 1800 853 085.