Head & Brain Injuries

You should engage a personal injury lawyer as soon as possible. This is so we can:

• provide you with all the advice and assistance you need, including setting out what your options are;
• help you lodge your claim(s) with NIISQ, the CTP Insurer, WorkCover Queensland (or a workers’ compensation self-insurer) and/or any other insurer;
• track down witnesses and obtain statements and other liability evidence about the accident before it goes missing or memories fade;
• assist with coordinating your treatment, care and support, including any home and transport modifications required;
• ensure that NIISQ or another insurer is paying for all the treatment, care and support you need;
• make sure that your treatment providers are undertaking all appropriate investigations and providing the best possible treatment; and
• make sure that the insurer is fully aware of all the injuries you have sustained, so that you can be properly compensated for them.

Many people who have suffered head injuries or brain injuries do not have the ability to make good decisions or manage their affairs, including finances (ie they lack “legal capacity”).

As a result, it is often necessary to appoint a litigation guardian to act on behalf of the person who has sustained the head injury or brain injury. The same applies to minors, ie children under the age of 18 years, who are considered to not have legal capacity until they turn 18.

The litigation guardian will most often be a spouse, parent, adult child or sibling of the injured person.  If there is agreement as to who is best suited to act as litigation guardian, then the appointment can happen informally (ie without a court order). Where there is a dispute, however, as to who should be appointed, the Queensland Civil and Administrative Tribunal (QCAT) will decide who is the most appropriate person to act as the litigation guardian.

If the injured person does not have an appropriate family member or friend who is willing or able to be their litigation guardian, then the Public Trustee will appointed as their litigation guardian.

The litigation guardian or the Public Trustee then appoints a personal injury lawyer to represent the injured person.

The process involved depends on how your injury occurred (eg in a motor vehicle accident, at work, in a public place or in a hospital).

Click here to find out how to start a claim if you were involved in a motor vehicle accident.

Click here to find out how to start a claim if you were involved in a work accident.

Click here to find out how to start a claim if you were injured in a public place or at someone else’s home, business or venue.

Click here to find out how to start a claim if your head injury or brain injury was caused by medical negligence.

The time limits involved change depending on how you were injured (eg in a motor vehicle accident, at work, in a public place or in a hospital).

Car accidents (and other accidents on the road):

Vehicles that have been identified (even if unregistered):

A person injured in a motor vehicle accident, where the vehicle has at fault been identified, has one (1) month from the date they first consult with a lawyer or nine (9) months from the date of accident, whichever is the earlier, to serve a Notice of Accident Claim Form on the CTP Insurer of the vehicle.  In the case of unregistered vehicles, the claim form has to be served on the Nominal Defendant, a government insurer.

A Notice of Accident Claim Form can still be served on the insurer after the nine (9) month timeframe up to three (3) years after the date of accident provided it contains a reasonable excuse for the delay.

You must then settle your CTP claim with the CTP insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of accident.

Subject to some very limited exceptions, your right to receive compensation for your personal injuries will be lost completely if court proceedings are not commenced within three (3) years of the date of accident. If you are outside that timeframe, please seek legal advice urgently to find out if there are any exceptions that apply to you.

Vehicles that remain unidentified:

A person injured in a motor vehicle accident, where the vehicle at fault has NOT been identified (eg in a hit and run), only has one (1) month from the date they first consult with a lawyer or three (3) months from the date of accident, whichever is the earlier, to serve a Notice of Accident Claim Form on the Nominal Defendant (a government insurer).

A Notice of Accident Claim Form can still be served after the three (3) month timeframe up to nine (9) months after the date of accident provided it contains a reasonable excuse for the delay.

If a Notice of Accident Claim Form is not served on the Nominal Defendant within nine (9) months from the date of accident, all rights to receive compensation are lost.

Provided a Notice of Accident Claim Form has been served within nine (9) months from the date of accident, you must then settle your CTP claim with the CTP insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of accident.

Work accidents:

A workers’ compensation common law claim cannot be started until after the injured worker receives a Notice of Assessment from WorkCover setting out the degree of any permanent impairment, with a lump sum offer for the permanent impairment.

Once a Notice of Assessment issues, an injured worker then has three (3) years from the date of injury to serve a Notice of Claim for Damages on their employer and WorkCover Queensland and to receive a “compliance” response from WorkCover confirming that they have provided all necessary information.

If those steps are not taken within the three (3) year limitation period to protect the worker’s interests, all rights to receive compensation are lost. There are some limited exceptions to this rule, however, so if you are outside that timeframe, please seek legal advice urgently to find out if there are any exceptions that apply to you.

There is also the possibility of being able to pursue a “common law only” claim if you suffered an injury at work but never lodged a statutory workers’ compensation claim. A “common law only” claim must be commenced within three (3) years of the date of accident.

Public liability injury claims:

To commence a public liability injury claim, you have to serve a Form 1 Part 1 Notice of Claim on the individual or company that caused your injury (“the Respondent”).

That claim form has to be served on the Respondent within one (1) month from the date you instruct a lawyer to act on your behalf or within nine (9) months from the date of accident, whichever is the earlier.

A claim can still be commenced outside the nine (9) month timeframe up to three (3) years after the date of accident but you have to provide a reasonable excuse for the delay.

You must then settle your claim with the public liability insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years of the date of accident. There are some limited exceptions to this rule, however, so please speak with one of our expert personal injury lawyers to discuss any options you might have in that regard.

Medical negligence claims:

To commence a medical negligence claim, you must serve an “Initial Notice” on the hospital, doctor or other health practitioner that caused your injury (“the Respondent”).

That Initial Notice has to be served on the Respondent within one (1) month from the date you instruct a lawyer to act on your behalf or nine (9) months from the date the medical negligence occurred (or from the date your symptoms first appeared), whichever is the earlier.

An Initial Notice can still be served upon the Respondent outside the nine (9) month timeframe up to three (3) years after the medical negligence occurred but you have to provide a reasonable excuse for the delay.

Once any relevant clinical notes surrounding your medical treatment have been received, you then have twelve (12) months to serve a Form 1 Part 1 Notice of Claim and a supporting medical report on the Respondents.

You must then settle your claim with the professional indemnity insurer, or commence court proceedings (by filing a Claim and Statement of Claim), within three (3) years from the date the medical negligence occurred. There are some limited exceptions to this rule, however, so please speak with one of our expert personal injury lawyers to discuss any options you might have in that regard.

Car accidents (and other accidents on the road):

Your claim will be against the CTP insurer of the vehicle that caused the accident.  You will be alleging that the driver of that vehicle was at fault but the CTP insurer is the one that conducts the defence of the claim on behalf of that driver.

In circumstances where the vehicle is unregistered or cannot be identified, then the claim is against the Nominal Defendant (a government insurer).

Work accidents:

In order to pursue a workers’ compensation common law claim you have to prove that your employer or a co-worker was negligent in some way.  Your employer will be held liable for the actions of any co-workers, provided they were acting within the scope of their employment.  

As a result, when you bring a common law claim you are effectively suing your employer for negligence but they are then covered by their insurer, which is WorkCover Queensland (or a self-insurer). WorkCover assumes the defence of the claim and ultimately pays out any settlement amount or court award.

Public liability injury claims:

Your claim will be against the individual or company that caused the accident (“the Respondent”).

The Respondent may have to pay a relatively small excess on their insurance and their public liability insurer then takes over the conduct of the claim and pays out any compensation.

Medical negligence claims:

Your claim will be against the hospital, doctor or other health professional whose treatment fell short of the standard reasonably expected of them.

They may have to pay a relatively small excess on their insurance and their professional indemnity insurer then takes over the conduct of the claim and pays out any compensation.

Car accidents (or other accidents on the road):

Provided your family member’s vehicle or friend’s vehicle was registered and there is nothing else untoward (see the exceptions listed below), then there will be absolutely no issue at all. They will not even have to pay an excess to the CTP insurer. The CTP insurer of the vehicle simply assumes control of the claim and communicates directly with your lawyers.

This means that passengers in cars can bring claims against their own family member, if the accident was caused by their family member, without fear of any financial or other penalty.

Exceptions to the rule:

1. If the vehicle was being used without the owner’s authority or without legal justification or excuse, then the insurer may have a right to recover all the compensation and costs paid from the driver.
2. If the driver intended to harm you or some other person (resulting in your injury), then the insurer may have a right to recover all the compensation and costs paid from the driver.
3. If the driver was under the influence of alcohol or drugs at the time of the accident, which then caused or contributed to the accident, the insurer may have a right to recover all the compensation and costs paid from the driver.
4. If the vehicle was being used to commit a crime or for some other illegal purpose, then the insurer may have a right to recover all the compensation and costs paid from the driver.
5. If the vehicle was not registered at the time of the accident, then the Nominal Defendant may have a right to recover all the compensation and costs paid from the driver or owner of the vehicle.

Other injuries caused by your friend or family member:

Your family member or friend may have home and contents insurance over their home and general insurance over their boat or jetski, which will almost always have public liability insurance attached to them.

Normally, there is only a small excess payable on the insurance policy and the public liability insurer then takes over the conduct of the claim. Sometimes there is no excess payable at all.

Exceptions to the rule:

Your friend may not be covered by their public liability insurance if, for example:

1. They were using a vehicle, machinery, equipment or property without the owner’s authority or without legal justification or excuse for using it.
2. They intended to harm you or some other person (resulting in your injury).
3. They were under the influence of alcohol and/or drugs at the time of the accident and their intoxication caused or contributed to the accident.

How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:

• The nature and extent of your brain injury
• What ongoing problems and needs you have as a result of your injury
• What the doctors say about your restrictions and the degree of impairment you have
• Whether you had pre-existing injuries or other conditions that were impacting on you, or were going to impact on you in the future
• What restrictions and difficulties you look like having in the future, particularly with respect to your work capacity
• What your income earning capacity was like pre-accident, compared to what your income earning capacity is now like
• Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your injuries
• Your life expectancy
• What treatment, care and support needs you have
• Whether you have needed voluntary (unpaid) care and assistance as a result of your injuries and, if so, the nature and extent of that support
• Whether you have needed paid care and support as a result of your injuries and, if so, the nature and extent of that support
• Whether you have a need for home or vehicle alterations and other aids or equipment
• How much ongoing treatment, medication and care and support you need in the future

Brain injury claims often settle for millions of dollars.

This depends on how much work is done. Every matter is different. Our hourly rates are extremely competitive. For more information on how we charge, click here.

This is extremely unlikely. You only have to pay some of the insurer’s costs if you proceed to trial and lose completely or if you receive a judgment for less than what the insurer has previously offered to pay you.

The number of personal injury claims that actually proceed to trial is less than 2 in 100, so the chances of having to pay the insurer’s costs are very slim.  During the course of your claim, we will provide you with detailed advice about the quantum of your claim (what we believe a court would award you), so that you know what amount would constitute a reasonable settlement of your claim.

Car accidents (and other accidents on the road):

When you suffer a “serious personal injury” in a motor vehicle accident in Queensland, you are eligible to receive benefits from the National Injury Insurance Scheme (Queensland) (NIISQ).

You, your guardian or the hospital can lodge an “Application Form – Interim Participation” with NIISQ, who then make a determination in relation to your eligibility.  Once you are deemed eligible to receive NIIS benefits, NIISQ takes over the management of your reasonable treatment, care and support needs.

The Application for NIIS benefits can be lodged before or after your CTP claim is lodged. Often, it is lodged beforehand, but the CTP claim should then be lodged as soon as possible thereafter.

A CTP claim entitles you to recover additional heads of damage, over and above what NIISQ provides, including an amount for pain and suffering, loss of amenities and loss of enjoyment of life, past lost income, future lost income, past loss superannuation and future lost superannuation, which can be very significant. This is in addition to any amount required to compensate you for your treatment, care and support needs.

The CTP claim proceeds as normal whilst all treatment is being provided by NIISQ, although there is an option to opt out of NIISQ, which normally occurs around 2 years after the accident. We will assess your situation and provide you with advice on whether you should or should not opt out of NIISQ.

For more information on claims involving NIISQ click here.

Work accidents:

When you suffer a “serious personal injury” at work, a claim should be lodged for workers’ compensation benefits through WorkCover Queensland (or your employer’s self-insurer) (“WorkCover’).

WorkCover will then make a decision as to your eligibility to receive NIIS benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). If you have a “serious personal injury” and WorkCover does not automatically consider your eligibility to receive NIIS benefits, then you should ask them to do so. 

If WorkCover determines that you are eligible to receive NIIS benefits, they will engage the NIISQ Agency to manage your necessary and reasonable treatment, care and support needs.

A NIISQ Agency Support Planner will then liaise with you and your treatment providers to ensure that you are receiving all the necessary and reasonable treatment, care and support services that you need.

If your employer’s negligence caused or contributed to your brain injury, then you would also be entitled to pursue a common law claim. A common law claim entitles you to recover additional heads of damage, over and above any NIIS benefits, including an amount for pain and suffering, loss of amenities and loss of enjoyment of life, past lost income, future lost income, past loss superannuation and future lost superannuation, which can be very significant. This is in addition to any amount required to compensate you for your treatment, care and support needs.

Your statutory workers’ compensation claim proceeds as normal whilst all treatment, care and support is being provided by NIISQ, although there is an option to opt out of NIISQ if and when you commence your common law claim. We will assess your situation and provide you with advice on whether you should or should not opt out of NIISQ.

For more information on claims involving NIISQ click here.

No. In personal injury claims in Queensland we only claim net losses (after tax), so the ATO does not impose tax on any settlement monies. If, however, you invest those funds and earn income then you may well have to pay tax on that income. You should seek advice from your accountant or financial advisor in that regard.