The following steps will usually be appropriate to take:-
- Medical records should be obtained from all Medical Practitioners and hospitals who have treated you to establish the extent of your injuries;
- You may need to be examined by a specialist to obtain an expert opinion on the extent of any permanent injuries that you may have and the expected impact on your life;
- An opinion, from a Barrister specialising in personal injury claims, on the amount of damages you can fairly claim may be obtained to assist in settlement negotiations with an insurer.
Once a settlement is negotiated, you will be required to sign a Deed of Release which creates a binding contract under which you agree that, in exchange for a payment of damages to you, you forever relinquish any further claims against the insurer.
There are a number of heads for damages which could be claimed and these include:-
- Special Damages;
- Pain and Suffering;
- Economic Loss.
Special Damages
Under the heading of Special Damages, you can recover the outlays spent by you in obtaining medication and medical treatment. You will need to keep a careful record of all receipts for medical treatment, pharmaceuticals and also travel costs associated with obtaining treatment. You may also be able to claim for the estimated cost of future treatment
Pain and Suffering (General Damages)
The payment for Pain and Suffering is to compensate you for the pain and inconvenience you experience as a result of the accident. The amount of damages you can claim will depend upon the extent of your injuries. The more serious the injury the greater the payment. You may wish to keep a brief diary of the pain you experience on a daily basis.
Since the passing of the Civil Liability Act 2003, the amount paid for pain and suffering is now regulated by statute and the scale prescribed by Parliament is not very generous, especially in relation to minor injuries. A copy of the relevant statutory scales for calculating damages can be provided upon request.
The specialist you may end up seeing will assess the percentage of any permanent disability you are likely to be left with, and that will assist us calculate an appropriate figure for damages for pain and suffering, and likely future medical costs. The insurer may not accept our specialist report, and may refer you to their own specialist, and base their calculation of damages on what their specialist says.
Economic Loss
The payment for Economic Loss will have two aspects to it. There is a payment for the past economic loss and a payment for future economic loss.
The payment for past economic loss is designed to reimburse you for all loss of income (calculated on a “net” basis, that is, with tax deducted, as you do not pay any tax on the damages you end up getting from the insurer) that you have suffered up until the date of settlement.
The figure for future economic loss is designed to compensate you for potential future losses of income that you may incur as a result of having been injured. A payment of Economic Loss is not appropriate in all cases and once again, depends on the extent of your injuries.
You should keep a careful record of all time you have off work, and any changes to your earnings due to the accident.
The insurer will want to see your tax returns for the last 3 years.
Statutory Refunds
As part of any settlement of a claim there are certain statutory refunds that must be made to government departments before the insurer can release the settlement monies to you. Those refunds include the following:-
- A refund to Centrelink for any Social Security payments made, if your claim includes an amount for economic loss;
- A reimbursement to Medicare for any claims made on Medicare for treatment for injuries sustained in the accident.
- A payment for hospital expenses, if you were treated in a public hospital. If you are treated in a private hospital, your private health fund may want us to seek a re-imbursement from the other side as part of our claim.
You will receive, in the course of this matter, a Claims History Statement from Medicare. This statement sets out all claims you have made on Medicare since the date of your accident. You must tick each of the items that relate to treatment received for injuries sustained in the accident and forward a copy to us so that we have a record of the amount to be reimbursed to Medicare. It is important that you do this promptly, otherwise it can delay the settlement of the matter.
Legal Costs
Since the passing of amendments to the Personal Injuries Proceedings Act in 2000, you cannot claim any payment for your legal costs (including the costs of medical reports) from the insurer, where the amount of damages you receive is less than $42,000.00.
Your matter is not likely to result in a payment of more than that sum and so you will have to pay your own legal costs (including the cost of medical reports), out of the damages you receive.
Consequently, it is important to keep costs to a minimum, and this may mean you will not want to spend a lot of money on obtaining too many medical reports. A specialist’s report typically costs about $2,000 to $3,000. If the insurer will not agree to pay for or share the cost of that report, we will ask you to pay for the cost of those “up front”, together with any other outlays we incur on our behalf.
