Resolving Your Claim
Resolution of a claim involves acceptance of an amount of money to compensate you for the losses associated with the injury you sustained.
A claim for compensation can be resolved in a number of ways.
If the offer is reasonable, you can accept the respondent's offer of settlement at any time.
Early resolution of a claim prior to a compulsory conference may disadvantage you. Acceptance of an offer of settlement is a "once and for all" settlement. You cannot go back later to ask for more money.
You can attend a compulsory conference and negotiate an offer of settlement with the respondent.
You can reject all offers of settlement and proceed to Court
If you choose to initiate court proceedings, this kit cannot help you any further. Stop here and seek legal advice.
Resolution of your claim involves a number of important steps;
Obtain the liability and medico legal evidence. This evidence will be used to support your claim.
Calculate your damages. There are a number of heads of damage you can claim under depending on your circumstances. Use the Damages Calculator and Calculator Help to assist you.
Schedule and attend a compulsory conference. This is a meeting to try and negotiate a resolution to the claim.
Settle at the Compulsory Conference OR Proceed to Court.
Obtaining Medico-legal Evidence
This evidence is used to support the claim that you have sustained an injury. This will assist you to calculate damages. The best type of medico-legal evidence is a written report from an independent specialist who is not involved in the day to day treatment of your injuries. You will need a report from a specialist expert in the type of injury you have sustained. For example, if you sustained a knee injury, an orthopaedic surgeon who specializes in knee injuries would be considered a relevant specialist expert.
The report will state the nature of your injury and how the injury will affect you in your employment and day-to-day life. The report should also state;
a diagnosis of the injury sustained in the incident;
how the injury was caused;
a brief medical history including details of any prior injury;
what treatment will be required for the injury;
whether the injury has stabilised;
what disabilities the person has because of the injuries;
an assessment of ‘whole person impairment’;
the impact of the impairment on the person’s domestic and occupational activities.
You do not need a referral from your GP but you will need to check that the specialist will provide medico-legal reports, as not all specialists do. Reports can be expensive so you will also need to check how much the report will cost.
The best time to get the medico-legal evidence is after your injuries have stabilised. An injury is most likely to be stable when all courses of rehabilitation have been completed. Stabilisation is accepted as one year after the injury occurred or six months after the last operation.
Obtaining Liability Evidence
This type of evidence allows you to make a meaningful assessment of your prospects of success. You should try and obtain the liability evidence from the respondent and if applicable, other relevant bodies. The respondent is obliged to disclose this information. It is recommended that you write a formal letter requesting any evidence within a reasonable timeframe. The letter will also evidence your attempt to gather the liability evidence.
Types of liability evidence include:
Details of the systems in place at the time of the incident (if any) designed by the respondent to reduce the risk of injury or harm;
Details of whether those systems are accepted systems of risk management in the industry and/or;
Any relevant police or other departmental records available which might assist with proving a respondent's negligence.
Calculating Your Damages
To begin the settlement process, you will need to identify the item number of your injury by looking it up in the Regulations.
Download the Civil
As you view the contents of the Regulations, click on the type of injury which best describes your injury. This will navigate you directly to information specific to your injury. Match the injury description to your injury and note the ISV number range in the right hand column of the page.
It is important to get your calculations right so you can make an accurate assessment of your damages claim. Where it is relevant to your case, you can click on the drop down arrows to get more information about how to calculate for each section. Then, add your total into the damages calculator.
Determining an Accurate ISV
An ISV is an Injury Scale Value determined by the Civil Liability Regulations. Most injuries are categorized by the degree of injury.
For example, for wrist injury, the categories are Extreme, Serious, Moderate and Minor wrist injury. The lowest end of the ISV range is 1 and the highest is 25.
Start at the first item for your injury type. Read through the description of the injury to see if your injury fits within that category. Additional comments and examples will assist you. If it doesn’t fit within the first category, ‘Extreme’, move down the item numbers to ‘Serious’ and work through the same process for Moderate and Minor, until you find the correct description of your injury. Once you have determined the category of your injury, note the ISV range for that category.
To work out the value within the range, use the description and additional comments available for your category. For example, a Moderate Wrist Injury shows an ISV range of 6-15. Examples of this type of injury are listed in the Regulations as;
A wrist injury that is not serious and causes some permanent disability, for example, some persisting pain and stiffness
Persisting radio-ulnar instability
Recurrent tendon subluxation or entrapment
The additional comments will assist you to assign the appropriate level of ISV.
An ISV at or near the bottom of the range will be appropriate if there is whole person impairment for the injury of 6%.
An ISV at or near the top of the range will be appropriate if there is whole person impairment for the injury of 12%.
Your medico-legal evidence should mention the level of whole person impairment your injury has caused you. Referring to the doctor’s report will assist you to assign an accurate ISV.
Calculating Multiple Injuries
To calculate multiple injuries, you will need to assess which of the injuries is the most dominant, or most severe. To start, categorise each of the injuries using the Regulations to determine the Injury Scale Value (ISV) for each injury. The injury with the highest ISV at the top end of the range will be the dominant injury. For example, a hip fracture sustained as a result of a fall causes limited mobility leading to depression. The hip injury has an ISV Range of 11-25. The depression assigned an 8% degree of impairment categorized as a moderate mental disorder has an ISV range of 2-10.
Once the dominant injury is identified, you will then need to determine whether the combination of all of the injuries would be adequately covered by using the value at the top of the ISV range of the dominant injury. For example, the hip injury has a top end ISV range of 25 so it is the dominant injury. The depression may be assigned an ISV of 7. The question is whether an ISV of 25 is sufficient to compensate BOTH the hip injury and the psychological injury.
In cases, where the top end of the ISV range is not considered adequate. An uplift of 25% can be added to the ISV, but only from the top of the range. For example, the hip injury (25) + uplift 25% of 25 (6.25) = 31.25. ISV must be whole numbers so the total = 31.
You will need to take into account your past and future expenses when calculating your damages you may be entitled to.
Past expenses can be claimed by adding your receipts to your documentation. You can usually claim out of pocket expenses for payments associated with:
equipment required because of the injury (wheelchairs, crutches, etc);
fuel and travel costs associated with any of the above; and
paid care or other services (housekeeping, domestic cleaning, etc).
You can claim for future expenses if you can show that they will be necessarily incurred because of your injuries. Your doctor’s report is the best way to support this claim. To calculate future expenses follow these steps;
Identify your future expenses.For example, 2 packets of paracetamol costing $5 each
Reduce your future expenses to a weekly figureFor example - 2 packets of paracetamol cost $10/week
Calculate how many years you are likely to pay the expenses.Medical reports should state the period you will need to pay the expenses. If it is stated you will need to pay the expense for the rest of your life, you will need determine the period of your expected lifespan.
To work out your expected lifespan based on your gender and current age, you will need to use the prospective life tables. For example 40 year old male will expect to live another 45.44 years. Round the figure down to 45.
Use the 5% discount tables to locate the multiplier with the corresponding number of years. Multiply the multiplier by the expense per week to achieve the future cost of the expense properly discounted.
For example – 45 years has a multiplier of 950.
950 (multiplier) x $10 (expense) would give you a single future expense of $9,500.
If your family or friends provide unpaid care and assistance to you as a result of your injuries, you can claim an equivalent amount to the cost of paying a commercial provider.
There is a threshold which needs to be met before you are eligible to claim compensation under this category. You must require the unpaid services for at least 6 hours a week, for at least 6 months.
If you are wish to calculate for unpaid services into the future, follow these steps;
Calculate the weekly cost of the unpaid service at commercial rates. For example, lawnmowing services required fortnightly for the next 2 years at $30 = $15 week
Use the 5% discount tables to locate the multiplier with the corresponding number of years. For example, 2 years has a multiplier of 99.
If you will require these services for the rest of your life, you will need to use the prospective life tables. For example, a 40 year old male will expect to live another 45.44 years. Round the figure down to 45.
Multiply the multiplier by the expense per week to achieve the future cost of the service properly discounted.
For example – 2 years has a multiplier of 99.
99 (multiplier) x $15 (expense) would give you a single figure of $1,485 for unpaid care and assistance
You should include any refunds that you may be required to pay back, in your offer of settlement. Certain authorities are entitled to a refund for any amounts they have paid on your behalf in relation to your injury. These include (but are not limited to) refunds from the following organisations:
WorkCover Queensland; and
You should also find out if there is any amount owing to any hospital for treatment received. If you have private health insurance, there may be benefits paid on your behalf.
If you do not include this information when you make an offer of settlement, you may be out of pocket when these authorities require reimbursement.
Calculating Economic Loss
If you have lost income from employment or self-employment as a result of the injuries, you can claim for the loss already incurred. The best way to evidence your past income is by providing income tax returns for the 3 years prior to the incident and payslips for the period directly before.
Calculate the number of days work you have lost (including part days and overtime) and claim that figure.
Multiply the number of days lost by the daily rate of pay received in your employment prior to your injury.
All calculations must exclude tax.
If you were not working at the date of the injury but had plans to return to work, you may be able to claim for the loss of the ability to return to work for the period between the injury and making the claim. You will need evidence (usually a letter from the employer) stating what work you were going to do, average hours per week and the amount you were to be paid.
You can also claim future loss of income as a result of the injuries. This is usually the most significant part of the damages sum. If you had plans to return to work, you may still be able to claim future economic loss.
The best way to show you will lose income in the future from your injuries is to obtain a medico-legal report addressing the impact your injuries will have upon your ability to work. An occupational therapist may also be helpful.
Calculate the future loss per week. For example – if you were earning $500/week (NET) before the injury and will work less hours because of the injury so that weekly earnings are now $350/week (NET). The loss is $150 per week.
From the medico-legal report, work out how many years the loss will be incurred. For example – doctor says 2 years.
Using the 5% discount tables find the multiplier for 2 years.
Calculate your weekly loss against the multiplier.
Where income is inconsistent and or/health and personal circumstances affect the calculations, a global sum approach may apply. Seek legal advice.
Additionally, You can claim for loss of superannuation benefits you would have been paid during the periods when you have lost income, both past and future.
Multiply the total of past economic loss x superannuation rate (paid by your employer) to get your total superannuation and add this to your claim.
Multiply the total of future economic loss x superannuation rate (paid by your employer) to get your total superannuation and add this to your claim.
The superannuation rate paid by your employer is usually the Australian Government’s superannuation guarantee rate. This rate is the default rate if you were not working at the time of the incident.
To use the damages calculator, add totals from past and future economic loss as well as superannuation to achieve a more accurate calculation.
As an injured party, you are entitled to have a compulsory conference. Generally, you cannot start Court proceedings unless you have been attended a compulsory conference. Parties may agree NOT to hold a conference or a Court may order that it is not required, but this is unusual.
The Compulsory Conference is a meeting where you get to meet the respondent (or their insurer or representatives) and attempt to negotiate a settlement of the claim.
Either party can call for the conference to be held at a particular time and place convenient to both parties. (The conference can be held after 6 months has passed since the respondent was given a complying Part 1 Notice) It is important that you carefully prepare a Schedule of Damages to outline what you are entitled to and the amount you are claiming in compensation. This is usually at the high end to allow for some bargaining room. A quantum assessment has figures at both the high end and low end to give you a clear picture of the best case and worse case scenario for your claim. A quantum assessment is prepared before you enter the compulsory conference and is for your use only, it is not given to the other party.
It is strongly recommended you get legal advice from your community legal service before attending a compulsory conference.
At the beginning of a conference, you start by confirming verbally that this is a compulsory conference under the Personal Injuries Proceedings Act. You should then state that everything said at the conference is “without prejudice” and cannot be brought up or later relied on later or in Court.
All documents are required to be submitted to either party seven (7) days prior to the conference. In practice, Certificates of Readiness are often exchanged on the day.
Discussions as to liability say why the injuries are the respondent's fault and why the respondent will be found liable for the injuries. Medico-legal and other evidence should be used to support these claims.
Certificate of Readiness (PDF, 27kb) →
To begin negotiations, the schedule of damages you have prepared must be explained in detail to the other party. Usually, the total of the schedule of damages is the opening offer of settlement. Then, the respondent may question the items you have claimed in your schedule to gain further information.
The respondent will then talk about the case from their point of view and make a counter offer.
If the counter offer is not accepted, you can make an offer by lowering your offer in response. This process may go back and forward between claimant and respondent many times.
It is important to balance and assess the risks of going to Court when you are negotiating a settlement. The aim of the conference is that parties ‘meet in the middle’ to achieve a resolution without having to go to Court.
If you decide to take the respondent’s last offer or vice versa, then the matter will settle.
If this is not possible, then parties will exchange Mandatory Final Offers.
Schedule of Damages (PDF, 77kb) →
Mandatory Final Offer
If there is no agreement, the parties are required to exchange written final offers at the conference. These are known as Mandatory Final Offers. These remain open for acceptance by either party for 14 days following the compulsory conference.
If the claim does not settle by one party accepting the other party's Mandatory Final Offer within the 14 day period, further steps will need to be taken. At this stage, the matter is going to Court. You have ONLY 60 days from the date of a compulsory conference to file material in Court.
You will need to seek legal advice from your community legal service as soon as possible after the compulsory conference to discuss how to progress your claim.
Mandatory Final Offer (PDF, 27kb) →
If either party accepts the offer of settlement made by the other party during the compulsory conference or mandatory final offers are accepted, then the matter will settle.
Upon settlement, a deed of release and discharge will be given to you to sign by the respondent. This is a means of formalising the settlement. Usually, the deed contains a confidentiality clause. The document usually explains that the payment of compensation is a ‘one off’ payment regardless of whether the settlement was sufficient, and regardless of any worsening injuries occurring after the settlement.
It is important you obtain independent legal advice from your community legal service before you sign this document.
Release and Discharge (PDF, 78kb) →