Legal issues: making a compensation claim
When another party has caused an injury
through negligence there may be grounds for making a claim for
NOTE: This fact sheet only provides general information relevant
to Australia - consult a solicitor in your state or country for
accurate legal information.
Can I make a compensation claim?
A case for making a compensation claim is usually based on:
- your injury was caused by someone else's negligence or
- this injury has caused you pain and suffering
- this suffering will continue into the future.
There may still be grounds for a claim even if you were partly
at fault for the traumatic brain injury (TBI). Examples of claims
- an employer with poor or inadequate workplace practices
- The driver of a motor vehicle who caused your injury
- A property owner whose negligence caused your injury
- A health professional providing the wrong diagnosis or
- The manufacturer and/or distributor of a faulty
Changes due to the National Disability
There will be an impact on compensation claims due to the
National Disability Insurance Scheme (NDIS) being introduced across
Australia. The scheme has a "no-fault" basis which means people
with a substantial and permanent disability will receive financial
support to re-establish their lives after an injury, regardless of
who was, or wasn't, at fault. Contact the Brain Injury Association
in your State for updates on this issue, and consult a solicitor
for detailed legal advice.
What can you claim for?
In many cases you can claim for pain, suffering and expenses
both in the past and anticipated into the future. Examples
- Loss of income
- Medical, pharmaceutical and travel expenses
- Care from professionals, carers and family members
- Compensation for pain and suffering
- Home alterations, modifications to your car
- Vocational retraining
- Trustee fees and charges.
Most Australian states, including Queensland, have placed
restrictions on the amounts that can be claimed for pain and
suffering, economic loss, and care. It is often difficult to
calculate what the amounts payable are, so you should consult a
solicitor to ensure that you can claim the maximum amount available
Are there time limits for making a
There are strict time limits in making a claim for damages that
vary from State to State. If you miss that time limit, you may be
precluded from making a claim forever. In most States of Australia
there is legislation that requires an initial notice for a common
law damages claim to be lodged with an insurer within much shorter
To avoid losing the right to claim, a solicitor should be
consulted as soon as possible after any incident that leads to
a traumatic brain injury.
People claiming compensation should keep a careful
record of all expenses, reports and emails relating to
the injury. Make sure you take notes after conversations with
relevant professionals and specialists. Keep a diary of
visits to medical or therapeutic services.
Proof of loss of projected earnings can be more difficult for
self-employed people and it is wise to keep a record of any work
that would have been obtained had the accident not happened.
Most solicitors will give free preliminary advice regarding the
prospects of success. Many solicitors work on a "no win no fee"
basis in personal injury claims. The quality of legal
representation can have a serious impact on the amount of
compensation awarded. Your nearest Brain Injury Association
should have a list of solicitors who specialize in brain
Legal action takes
It may be a long period of time before settlement so don't stop
keeping records and receipts. Be prepared for a long and
frustrating legal process and try to stay positive and focus on
everyday life, not the legal process.
In some States of Australia there is support provided in terms
of counselling, financial assistance and compensation available
where an injury has been caused directly by a criminal act. Check
with the Brain Injury Association in your State for further
References and further information
If you would like more information, please contact your local
Personal Injury Lawyers and speak with them about your