There may be unfortunate moments in someone’s life where they become a witness to the scene of a traumatic event.  You could be entirely independent of the person injured or killed (as in a mere bystander) or a close member of the family of someone who is injured or killed.

These claims relate to psychiatric injury or mental illness triggered by witnessing the traumatic event or in some cases being told about a family member being involved in a traumatic event.

If you are a close family member, you need not even witness the event.

You may be able to seek compensation for the development of any psychiatric or mental injury that you suffer.

Often these claims might arise in the context of a motor vehicle crash as an example, but they are certainly not restricted to those particular events.  Another example are cases involving serious or fatal injuries to someone at work and the close family members who are left to pick up the pieces.

And what of first responders to the scene.  It is well-known that first responders like police officers, ambulance officers and firies often attend very traumatic motor vehicle crash scenes.

In recent years, the Queensland Courts have recognised that even emergency responders may have entitlements to pursue a CTP claim against any “at fault” driver for nervous shock.

As always, it is important to seek legal advice as soon as possible following any traumatic event particularly those resulting in serious or fatal injuries so you can take early steps to obtain rehabilitation.

If you have a psychiatric injury or mental illness triggered by witnessing the traumatic event or being told about a family member being involved in a traumatic event contact our experienced compensation lawyers.

Our last blog reviewed the decision of Hegarty relating to vicarious trauma for Ambulance Officers and firs responders.  But what about lawyers?

Often, in our own line of work, we are exposed to:-

• Daily communications with a range of people who are under great stress;
• Performing difficult court work;
• Viewing photographs, audio and visual material of a traumatic nature;
• Taking statements and examining sometimes thousands of pages of material about traumatic scenes or events and the subsequent injuries or sometimes even fatalities.

It is not an easy job by any means.  It is often challenging intellectually, physically and emotionally.

As lawyers, we are trained (or should be trained) at keeping emotionally distant from our client’s issues, conflicts or trauma, but we are humans after all.

So lets look at a recent case involving vicarious trauma involving the legal profession.

Kozarov v Victoria [2022] HCA 12

Ms Kozarov was a lawyer working in the Specialist Sexual Offences Unit (“SSOU”) of Victorian Office of Public Prosecutions (“OPP”).

She suffered a psychiatric injury resulting from vicarious trauma during the course of her employment.

The Court found that the State of Victoria’s (“Victoria”) duty was “not merely to provide [that] safe system of work” but to “establish, maintain and enforce such a system”.  Victoria conceded that its duty required it to do “almost everything” it could (short of forcing a rotation” to protect Ms Kozarov from the risk of psychiatric injury.

Victoria had in fact established an OH&S framework and vicarious trauma training from 2007 and a formal policy enacted by the beginning of 2008.  So, Victoria had recognised Vicarious Trauma as an occupational health and safety issues, particularly within the SSOU.

Here’s a summary of the main events raised by Ms Kozarov: –

• She commenced work with SSOU in June 2009;
• She dealt with cases of abhorrent child rape and offences of gross depravity;
• She had to consider, among other things, witness statements, video and audio recorded evidence which contained graphic and disturbing content; and
• she was also required to watch explicit child pornography;
• In 2009 – 2010, she attended a workshop on vicarious trauma. She gave examples of how her work was affecting her as a mother and spoke of being uncomfortable even leaving her children with their grandparents because of thoughts of inappropriate behaviour.
• By late 2010 Ms Kozarov was increasingly vocal at monthly staff meetings including instigating discussions on how work was affecting the daily lives of staff.
• In March 2011 Ms Kozarov attended an after hours staff meeting held without management present and during this meeting “significant concerns” were raised about how the SSOU staff were struggling and felt they did not have the support they needed.
• In April 2011 Ms Kozarov signed a staff memorandum setting out “stress related symptoms experienced by solicitors” in the SSOU.
• She was also communicating with her superiors about her workload, specific cases and her health.
• Then she resisted the allocation of the “Lim case” due to her workload, but was unsuccessful. During that case, she reported feeling unwell, dizzy.  She took sick leave for 2 weeks.
• During her leave, Ms Kozarov became aware that the complainants in the Lim case had attempted to commit suicide.

It was found, and upheld in the High Court of Australia, that Victoria breached its duty of care to Ms Kozarov in that: –

• The OH&S framework within the SSOU was “woefully inadequate” and did not include a sufficient program of rigorous training for staff and management on this issue;
• Did not provide training to assist management to identify ‘red flags’;
• When a welfare enquiry was plainly required (around end of August 2011), it did not occur and there was no offer of occupational screening;
• There was no system in place to respond to the outcome of any such screening.

 The Court found in these circumstances that had Ms Kozarov been offered an appropriate welfare enquiry, she would have taken them up on that offer and any screening by a clinician at or about August 2011 would have probably revealed Ms Kozarov work-related symptoms of PTSD.

The Court found that Ms Kozarov would have cooperated and her exposure to trauma would have been reduced.

Vicarious Trauma is a known occupational hazard for a number of professions.  Often these are:

• First responders – police, ambulance and fire fighters;
• Doctors and other health professionals (particularly nurses, psychiatrists and psychologists);
• Lawyers
• Social workers.

So what is Vicarious Trauma.  The Vicarious Trauma Institute (USA) defines it as the “indirect exposure to trauma through a first-hand account or narrative of a traumatic event”.

This is an interesting topic and there have been recent developments in this area.

It is well established that employers have a duty of care to their employees to provide a safe working environment and that duty is non-delegable.  That means that employers cannot escape liability by suggesting that someone or some other company was responsible for a certain aspect of training, safety, provision of suitable plant and equipment.

In certain settings, employers may be liable to their employees if they fail to have appropriate Vicarious Trauma training and policies to manage this high occupational risk.

However, it may not be as straightforward as it seems.

Let’s do a case review: –

Hegarty v Queensland Ambulance Service [2007] QCA 366. 

This case involved a Queensland Ambulance Officer who developed a severe PTSD and Obsessive Compulsive Disorder as a consequence of his work as an ambulance officer.  There were a number of quite traumatic and distressing scenes in this Mr Hegarty was required to attend.

The case looked at the QAS program known as “Priority One” which was a program developed in May 1992 and progressively introduced.  This was in recognition of the occupational stress in emergency services personnel.

It was confirmed that an employer has a duty of care to an employee in respect of any psychiatric injury that develops which is “reasonably foreseeable”.  Mr Hegarty won his case at trial, however on Appeal in the Queensland Court of Appeal he lost his appeal.

Some of the issues that leant against the liability of QAS to Mr Hegarty in this instance were:-

• He remained proficient in his duties;
• He remained ambitious;
• His apparent physical problems and reasonable requests for a transfer

The Court found that it would have been difficult to see how a “layman” in the position of Mr Hegarty’s supervisors, even if they were trained, could have alerted his supervisors (thereby his employer) that his cluster of complaints as a “signal” that he was not coping with the stress of his job.

This was a sad outcome for Mr Hegarty and this case has led the way particularly in Queensland against the protection for vicarious trauma for our emergency services personnel.

As part of a compensation claim, lawyers need to establish that our client has suffered economic loss as a result of their injury.

To non-lawyers, calculating economic loss (or sometimes loss of earning capacity) is far more intricate than you might realise.

Often, clients will ask us – why do you need my tax records? Or why do you need income information if I only worked somewhere for a few days?

So what types of documents might we require as evidence of loss of income or earning capacity: –

• Tax records for at least 3 years before your injury;
• Medical records also assist as often you will tell your doctor about matters which cause your injury to worsen (sometimes called “aggravating factors”). This could be things like lifting, pushing, pulling, bending, walking, driving.  These might be activities that you need to perform as part of your work duties;
• Payslips;
• Employment records – employment contracts, evidence of pay-rises; overtime, leave history;
• Independent medical examination reports from a specialist for evidence of occupational limitations.

It is important to remember, that when we are considering these matters, we need to consider the impact of these injuries on you not just in the present, but until age 67 when you are expected to retire.  As we get older, your injury might not affect you the same way and this should be accounted for.  This is one of the main reasons we need medical evidence to substantiate the trajectory of someone’s permanent impairment.

Then, using this information, your lawyer can consider how your injury is likely to equate to loss of income or loss of earning capacity to your expected retirement.

If you need advice on a compensation claim, contact our experienced compensation lawyers via this link to discuss your enquiry on a no obligation basis.

Everybody assumes that personal injury lawyers are expensive.  This is true to a certain extent.  Often we have a file for 2 years or more.  When a compensation lawyer tells you that their bill could be as much as $20,000 or $30,000 it gives us a momentary cardiac arrest.

The thing to remember is these estimates are given knowing that a compensation claim will on average be managed by that compensation lawyer for no less than 12 months, and sometimes up to 2 years.  And that is only to a Compulsory Conference.

There are many variables which impact how much a compensation claim costs to run for a compensation lawyer.  These are: –

• How bad is the injury?

The more serious the injury, the bigger the medical history is that we need to obtain and review, the more medical investigations we need to undertake, the more likely the insurer on the other side is to be difficult and usually (which is very unfortunate), the less likely to settle in the short term.

• Are there any issues on liability? What this means is – is there an argument about whether or not the other person (insurer) is at fault?

If there is, there could be additional costs in investigating these issues.  These could be: –

• Making a request for information or documents from the insurer;
• Maybe there is expert evidence to be obtained from an engineer about the incident or the cause of the incident (particularly in a work injury type claim);
• How many witnesses are there? Do we need to use a private investigator to track down any of these witnesses?

These types of issues also mean that there is resistance from the insurer about resolving the matter early in the piece.

Unfortunately there is no shortcuts in a compensation claim.  However, how do you attempt to keep costs down.

Things are undoubtedly stressful when you are going through this process.  You may feel the need to ‘vent’ to your compensation lawyer.  I’m sure they’re happy to listen, but remember the clock starts ticking the minute they pick up the phone.

The more you talk to them, the more you email them or send them documents – the bigger their bill is likely to be.

However, a compensation lawyer really needs to have all the information.  It is VITAL that you give them everything relevant to the claim.  If you’re not sure, you should give it to them and let them decide if it’s relevant or not.

So how do you keep costs down?  What are the DO’s and DON’Ts for communicating with a compensation lawyer.

• If you talk to your compensation lawyer on the phone – be prepared and have your questions ready.
• If you communicate with your compensation lawyer by email – this is a good way of keeping your costs down.

However be mindful – the more emails the higher your bill.

We would suggest keeping a personal note of what information or documents you want to send to the compensation lawyer and send the compensation lawyer ONE email only with all the issues.  Perhaps save them up and send one email every fortnight or so.  If you send your compensation lawyer an email every day you are going to get charged for each email.  If you send them one email with all of those matters addressed, you will get charged for the time it takes for the compensation lawyer to read that one email.  There is no question, it will be cheaper to read just the one email.

• If you have bundles of documents – send them in one email not in multiple emails.

If you need advice on a compensation claim, contact our experienced compensation lawyers via this link to discuss your enquiry on a no obligation basis.

You’ve had an injury and you’re seeking legal advice from a compensation lawyer.  You’re given a Costs Agreement from the compensation lawyer.  What are the terms.

A previous blog we have shared dealt with what does “No Win No Fee” really mean.

There are some other common charges you should be aware of in a compensation claim.

If you see an ‘uplift’ fee – what is this?.  In short, an uplift fee is an additional fee (usually 25%) added to professional legal fees to compensate a lawyer for the risk of taking on a ‘no win no fee’ case.

If you see charges for “care and consideration”.  This type of charge can be up to 30% and is another additional fee to compensate a lawyer for work they have done in a particular case in which a lawyer may not be paid for under a scale of costs (set by the relevant Court).  Care and consideration can be allowed to compensate for things done in a file particularly depending on the nature of the claim and the complexity of the issues involved.

For example, care and consideration can cover: –

• Legal research for a novel (or unique or untested) legal issue;
• For re-reading a file before a major step or milestone in your claim like a Compulsory Conference or mediation or even trial;
• For drafting or multiple drafts of complex documents/letters;
• For reviews with other legal practitioners within the same firm to discuss the way forward in your matter.

What are outlays or expenses?

Outlays or expenses are anything that the law firm is required to pay for on your behalf.  For example, in a compensation claim we must obtain your medical history from your treating doctors.  Those doctors will issue an invoice for us to pay on your behalf so that they can print, collate and send your medical file to us.

The biggest cost on a compensation claim is the cost of obtaining expert evidence.  This usually consists of you attending with an independent specialist doctor (for example, an Orthopaedic Surgeon) to get evidence of the nature and extent of your injuries.  These can be quite costly sometimes a few thousand dollars each.  The law firm, in a ‘no win no fee’ arrangement pays these expenses on your behalf.

If you have an incident and you need advice on a potential compensation claim, contact our experienced compensation lawyers to discuss your matter on a no obligation basis.

Compensation Lawyers Toowong – (07) 3870 8244

Compensation Lawyers Albany Creek – (07) 3264 7692

Compensation Lawyers Noosa – (07) 5449 7500

We see this term everywhere in Compensation Law – “No Win No Fee” but is that what it really means???

When finding a compensation lawyer to run a compensation case, it is really important that you understand the costs involved in your claim.  Under a “No Win No Fee” arrangement (sometimes also called a “conditional costs agreement”), you won’t need to pay any money upfront towards your legal bill, but when your case is finished, you will need to pay your lawyer for their time and efforts in resolving your claim.

There are 2 main aspects you need your compensation lawyer to explain: –

1. If I win, how are my costs charged?
2. If I lose my case, can I be charged?

If you win your case – this means that you received a sum of money for compensation (or damages as we sometimes call them).  There are some cases where insurer may pay an amount towards your legal bill.  It is usually some but not all of them.

When this happens this means that you become obligated to pay your legal fees when the money is received from the insurance company.

There are 2 parts to calculating your own legal fees: –

1. There are your professional legal costs. This is usually charged on an hourly rate for the lawyer and/or their teams work on your file;
2. Expenses (or disbursements). These are the costs that the law firm incurs on your behalf during the course of the claim.  For example, often we have to obtain a medico-legal report from a doctor about the injuries and consequences of those injuries.  These can be quite costly.  The law firm will make payment of those costs on your behalf until the successful outcome in your matter.

Another common question that comes up is – can my compensation lawyer take more money than I get ‘ín-hand’?

The short answer is ‘No!’.

“No Win No Fee” agreements must comply with the “50 / 50 Rule”.  Under this rule, you must pay back government refunds (like Centrelink or Medicare and others), you must also pay back the expenses (disbursements) to the compensation law firm.  After those amounts are paid, the remainder may be split 50/50 with the compensation lawyer and you.

The other misconception is that this rule means the compensation lawyer takes 50% of the compensation amount or some other percentage of the compensation amount.  This is actually called a contingency fee.  These are prohibited.

If you think your compensation lawyer is proposing to charge on this basis, it is best to seek clarification from them and if you still think this is the case – we would recommend seeking a second opinion.

Then there is the untimely situation where you lose your case?

Well, you don’t need to pay for your own lawyers fees and disbursements under a “No Win No Fee” arrangement.  But watch out – if your case goes to Court, a Judge might make an order that you pay the insurer’s legal bill (usually not all of it).

Lawyers offering a “No Win No Fee” agreement will usually explain to you at the outset what they believe your prospects are for winning.  It is not a guarantee that you will win, but it can give you some explanation about the case and your probabilities of winning.

It is important to remember also that most types of compensation claims resolve outside of Court.  You will be given opportunities along the pathway to resolving your matter to attempt settlement.

Legal costs can be confusing and it is important to understand the basis on which you are being or likely to be charged and the risks you may enter.

So what questions do you ask your lawyer: –

1. What is your hourly rate and the hourly rates of your team?
2. What is the uplift fee to be charged and the care and consideration fee?
3. What are the estimates of the professional legal fees and expenses in my case?
4. What are my prospects of winning?
5. What might happen if I lose my case?
6. Will the insurer contribute to my legal costs?

Our experienced compensation lawyers can assist you by giving you clear advice about your claim and the likely legal costs involved.  Contact our experienced compensation lawyers for a no obligation consultation about your compensation matter.

Compensation Lawyers Toowong – (07) 3870 8244

Compensation Lawyers Albany Creek – (07) 3264 7692

Compensation Lawyers Noosa – (07) 5449 7500

This blog is to provide some basic information regarding the obligations of Compulsory Third Party (CTP) Insurers to fund reasonable and appropriate rehabilitation. This is particularly relevant in motor vehicle accidents.

Every person that owns a car in Queensland must pay registration fees.  As part of our registration fees, we pay for Compulsory Third Party (CTP) Insurance.  This can include a component for a CTP insurer called the Nominal Defendant which is a government insurer set up for those involved in a road accident with either an unregistered vehicle or an unknown vehicle (ie a ‘hit and run’).

The Motor Accident Insurance Commission (“MAIC”) is the regulatory body set up with the responsibility for managing the CTP scheme in Queensland.

It publishes various information brochures and guides about the CTP scheme in Queensland.

This includes a “Road to Recovery” brochure which can be found here https://maic.qld.gov.au/wp-content/uploads/2017/05/MAIC-Road-to-Recovery-Brochure-May-2017.pdf.

In simple terms, if you commence a CTP claim for injuries which you sustained in a road accident (which was not your fault), the CTP Insurer has an obligation to fund the reasonable and appropriate rehabilitation that you need in order to assist in your recovery.

It should be noted that the CTP Insurer does not have this obligation until it admits liability for your injuries (that is admits that their driver was the ‘at fault’ driver) which could be up to 6 months after you delivery your ‘Notice of Accident’ claim form.

However, in practice, the majority of the time, the CTP insurer will agree to pay the reasonable and appropriate rehabilitation before this step happens.  Also, it is quite common that in a road accident claim, it is easy to establish liability and the CTP insurer will not take very long to send their admissions.

But what is “reasonable and appropriate rehabilitation”.

Well this could depend on a number of factors, including: –

• What is nature and extent your injury? Ie do you need specialist assessment, surgery, etc
• Is it a catastrophic or serious personal injury – like a spinal cord injury? Maybe you need occupational therapy to assist in learning to use a wheelchair, toileting, getting around your home, you will need home modifications. Potentially all of these things could be reasonable and appropriate rehabilitation;
• What is your treating doctors recommended allied health rehabilitation programs.
• Some people just rehabilitate or recover at different speeds. Some people might recover quicker than others.
• Maybe there is a psychiatric/psychological component which needs addressing that might assist in any physical recovery.

It is vital to talk to your doctor about ALL your injuries, complaints or other symptoms so that your treating medical providers can complete a full and accurate assessment.

The CTP Rehabilitation funding scheme operates on a ‘GP referral’ based scheme.  Basically, you need to see your GP (usually your first point of contact), talk to them about your injuries or other complaints symptoms and ask them for their advice about what you need.

Rehabilitation could be a referral to a specialist surgeon (ie an Orthopaedic surgeon), for physiotherapy, for counselling.  You might also need medication (like pain relief).  This can also be funded or reimbursed.  You might also incur costs of travel to and from your medical providers.  Maybe you can’t drive as a result of your injuries and you need to get an Uber or a taxi.  You could ask for this to be reimbursed!

What is reasonable and appropriate, is arguably anything that your treating doctor recommends for your recovery from injuries that have occurred in your accident.

Remember – 2 important rules: –

1. Tell your doctor about every complaint, symptom or other issue which has arisen after your accident AS SOON AS POSSIBLE. The earlier you tell your doctor the easier it is to prove it was caused by your road accident;
2. keep your receipts! This is the best way to establish your claim to have these costs reimbursed!

And remember – the sooner you get treatment and rehabilitation for your injuries the better your long term recover should be.

You should talk to our experienced Compensation Lawyers about commencing a CTP claim and your rights and entitlements to funding for your recommended recovery program

15 – 22 November 2020 is Road Safety Awareness Week.

Accurate car record keeping started in 1925.  Since then 190,000 fatalities have been recorded.  Whilst the introduction of stricter road safety measures and laws like the introduction of compulsory seatbelt wearing, speed limits etc.

Every year about 1200 people are killed on our roads.  That averages out to 3.2 people every day that don’t make it home to their loved ones.

The majority of those killed or injured are young people.  It is the biggest killer of children under 15 and also aged 15 – 24.

According to the Australian Government Department of Infrastructure, Transport, Regional Development and Communications, in October 2020, there was 113 road deaths for the month.  Compared to the previous 5 years monthly average for October this was an increase of 10.1%.

Traffic injuries also come with a heavy social cost.  These injuries account for about 40% of all injuries recorded.  It is estimated about 44,000 people are injured on Australian roads and this is only getting worse.

What is clear is Road Safety is everybody’s business.

We all have a responsibility to each other when driving, riding, cycling or even walking on our roads to ensure that everybody gets home safe to their loved ones.  This week “Shine’s a Light” on the impact of road trauma and ways we can prevent it.

This Friday, 20 November 2020 – Turn your headlights on to shine a light on road safety and remind each other to drive safely so others survive.

If you or anyone you know has been involved in a road accident, please contact our experienced Compensation Lawyers – 3870 8244 (Toowong) and 3264 7692 (Albany Creek).

PLEDGE TO DRIVE – SO OTHERS SURVIVE: https://roadsafetyweek.com.au/home/#home/pledge

So you have had an accident or have been injured and need to find an experienced Compensation Lawyer.  You may not even know where to start or how to “shop” around for the right Compensation Lawyer besides hunting down multiple Google searches.  It seems that there is no end to advertising of Compensation Law firms – you might see them on the back of buses and the side of taxis.  This does not always mean that the lawyer or the firm advertising is the right Compensation Lawyer for you.

There are so many “big” Compensation Law firms out there nowadays and they can inundate you with their marketing presence.

Whilst Google might be the best place to start to narrow down a list of options, nothing beats a good word of mouth referral or even a conversation with the person who is going to be handling your Compensation claim.

Why pick us as your Compensation Law Experts?

Well, supporting small business means you will get a better and more personalised customer service and you will get to speak with an experienced Compensation Lawyer about your claim!

Here are our top tips for finding the right Compensation Law:

1. When you called the Compensation Law firm – did you speak with an experienced Compensation Lawyer? Over the years, the most common complaint we have found from client’s changing law firms is “I never even spoke to a lawyer at the start!”.

Whilst Compensation Lawyers work as a team of administration assistants and paralegals to assist in the running of a file and may be a first point of contact, it can often be the case that when you first contact a compensation law firm, that you were not given the opportunity to speak with an experienced Compensation Lawyer about your enquiry?

If you weren’t given that opportunity – it should be a red flag.  Assistants and paralegals can’t give legal advice – you need to speak with a lawyer!

2. Did the Compensation Lawyer explain things to you so that you could understand what you are about to get involved in? This is a good start. Having an experienced Compensation Lawyer who can clearly explain the gist of the case and the (often complex) law in the area is a good sign!

3. Check out Google reviews of that compensation law firm. This will give an indication of the type of people that work for this firm and experiences of other clients.  If they are overwhelmingly positive – you could be in the right place!

4. Ask questions of the Compensation Lawyer! Did you get answers to those questions? An experienced Compensation Lawyer should be readily available to provide an explanation (that you can understand). It is important for the compensation lawyer and client relationship that there is a clear understanding of what’s involved in the process. There’s no such thing as a silly question!

You should contact an experienced Compensation Lawyer for advice about what happened as soon as possible following an accident and to find out if there is any avenue to obtaining compensation.  Commencing a claim for compensation sooner rather than later also enables you and your Compensation Lawyer to work together to gather and collect evidence when it is fresh.

There are strict time limits to make a claim in Queensland depending on the relevant law that applies to your claim.

Contact our experienced Compensation Lawyers to obtain advice and assist you in the claims process in our service areas – 07 3870 8244 (Toowong) or 07 3264 7692 (Albany Creek).