Compensation in Australia - a fair go

The laws in Australia about compensation originally reflected the Aussie idea of a "fair go".

The courts in this country have traditionally said that if I act in a negligent manner which causes you to suffer loss then I should cover you for that loss, whatever it may be. If the repair bill for your car is $10,000 then I should pay you $10,000. If you lose three months from work than I should reimburse you for the after-tax earnings you would have received during that time.

So, what is meant by acting in a negligent manner? Again the courts have taken a pretty straightforward approach. I am expected to act in the way that a reasonable person would act. If I'm 10 years old then I'm supposed to act like a reasonable 10-year-old. If I'm a surgeon carrying out an operation, then I'm supposed to act like a reasonable surgeon.

Compulsary insurance

In 1936 in NSW legislation was introduced creating compulsory third-party insurance in this state and that similar legislation has been enacted in every other state and territory in Australia. This means that the compensation claim of a person injured in a motor vehicle accident isn’t dependent upon whether the negligent driver has any assets. Every motor vehicle has compulsory insurance against personal injury.

The only other area in Australia where there is compulsory insurance is to cover people who are injured at work. In the case of work injuries, there are two types of compensation. The first is simply known as workers compensation and that is a basic restricted type of compensation payable to anyone injured at work. The second is compensation where the employer has been negligent. Both types are covered by compulsory insurance.

Non-compulsary insurance

Other types of damage from negligence are also covered by compensation but usually it is not compulsory insurance -- so not everyone is covered. It is important therefore to be sure that the person against then you are claiming compensation does in fact have insurance or substantial assets.

A complex process

Over the years insurance companies have complained bitterly about the cost of paying damages and have put up insurance premiums and occasionally even refused to provide insurance cover. As a result governments in NSW have passed legislation which places a lot of restrictions on the right to claim compensation including thresholds and caps. Other states have done likewise.

The result is the right to claim compensation anywhere in Australia is highly complex and it would be a brave person who would attempt to pursue their rights without the assistance of a lawyer -- and not just any lawyer, but one who specialises in the area of compensation, because the law has become too complex even for a lawyer who doesn't specialise.

One particular thing to remember is that there are time limits for claiming compensation and these vary widely depending upon the type of claim and the state in which the accident occurred. In the early 1970s an attempt was made by the New South Wales government to have one standard set of time limits for compensation claims. Since that time a mass of legislation means that even a lawyer who specialises in compensation has to be very careful to check exactly what time limits apply to any particular accident.

What our clients say

1/05/2013 |

F F, Kootingal

Di Branch -

Testimonials

I would like to sincerely thank you for representing me in my workers compensation claims. The advice from you and your associates was alway...

Recent Successes

28/11/2011 |

Workers Compensation paybacks in Medical Negligence matters.

Jodie Baker -

Recent Success

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act ...

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act 1987 (NSW) ("the Act"). The client required surgery to treat the injury and as a consequence of the negligence of the treating doctor, suffered an additional injury.

In the course of the proceedings for damages against the doctor, the client sought a declaration from the workers compensation insurer that payments made to him pursuant to the Act were not repayable pursuant to Section 151Z.

The workers compensation insurer advised us that they considered they had a right of recovery for all weekly compensation benefits and medical expenses paid pursuant to Section 151Z (1) (d) of the Act and would be pursuing recovery of these.

In reply we wrote to the insurer and advised there have been a series of Court of Appeal decisions which have found that in this situation Section 151Z (1) (d) does not operate to allow the workers compensation insurer to recover the payments it has made.

In Hood Constructions Pty Limited v Nicholas [1987] NSWLR 60 the court stated that the injury caused by the medical treatment was not "an injury for which compensation is payable" within the meaning of Section 151Z, notwithstanding the fact that the surgery was undertaken to remedy an injury sustained in the court of employment. The court went on to find that the worker's damages against the doctor were to be reduced to take into account the compensation payments already received.

This was confirmed in the matter of Rooty Hill Medical Centre Pty Limited v Gunther [2002] NSWCA 60. The court of appeal confirmed that Section 151Z of the Workers Compensation Act did not apply and the plaintiff’s damages had to be reduced to give effect to the overriding intention of parliament that a worker should not be entitled to both compensation and damages.

The workers compensation insurer then conceded that Section 151Z did not apply in this case and they would not be pursuing any recovery from our client. This was important as we were then able to advise our client on his likely damages if he was successful in the claim.

NO WIN - NO FEE! FULL DISCLOSURE OF LEGAL FEES

At Stacks/The Law Firm we don't charge you legal fees unless we win your compensation case. Furthermore, our basis for charging will be discussed with you at the start of the case and any amounts to be deducted for costs will be clearly explained to you before we seek any instructions to settle your compensation case. One of the important matters always taken into account in determining costs is the net amount of compensation which you will receive.

We specialise in providing expert legal representation in the area of insurance litigation and compensation law.

The Stacks Compensation Law User Group has been established across all of the Stacks/The law Firm offices. This means that compensation law specialists from 20 offices in NSW and QLD can regularly come together via conference calls and face-to-face meetings to share common precedents, pool resources and collectively problem solve. This is a real benefit to individual clients, who receive a consistently high level of service.

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Compensation in Australia - a fair go

The laws in Australia about compensation originally reflected the Aussie idea of a "fair go".

Compulsary insurance

Non-compulsary insurance

A complex process

What our clients say

Recent Successes

NO WIN - NO FEE! FULL DISCLOSURE OF LEGAL FEES

In The Community

Stacks Blog

Latest News

Stacks TV

Make an enquiry

Nearest Specialists