Understanding personal injury claims in NSW – your key questions answered
Published on October 25, 2024 by Milena Cugalj and Scott Dougall
Personal injury claims in New South Wales (NSW) can be complex, especially when it comes to understanding the legal concepts and procedures involved. If you’ve been injured due to someone else’s actions, it’s important to know your rights and the steps you need to take to seek compensation. That’s why we have developed this short article which answers six of the commonly asked questions about personal injury claims in NSW.
1. What is negligence?
Negligence is a legal concept that forms the foundation of many personal injury claims. In NSW, negligence occurs when a person or entity fails to take reasonable care to avoid causing harm to others. In NSW, claims in negligence are governed by the Civil Liability Act 2002 (NSW). To establish negligence in a personal injury claim, you must prove four key elements:
- Duty of Care – the defendant owed you a duty of care. This means they were legally obligated to take reasonable steps to avoid causing you harm. For example, drivers owe a duty of care to other road users, and property owners owe a duty of care to visitors.
- Breach of Duty – the defendant breached that duty of care by acting or failing to act in a way that a reasonable person would in the same situation. For instance, a driver who runs a red light or a business owner who fails to clean up a spill may be considered to have breached their duty of care.
- Causation – you must show that the defendant’s breach of duty directly caused your injury. This means proving that your injuries were a foreseeable result of the defendant’s actions or inaction.
- Damages – finally, you must demonstrate that you suffered actual harm or loss because of the breach. This could include physical injuries, psychological injuries, financial losses, or a combination of these.
Negligence is the basis for many personal injury claims, including car accidents, workplace injuries, medical malpractice, and public liability cases.
2. How does a personal injury claim work?
The personal injury claim process in NSW typically involves several key steps:
- Seeking medical attention – your health and well-being should be your priority. Seek medical treatment immediately after an injury and ensure that your injuries are documented by a healthcare professional.
- Reporting the incident – depending on the circumstances, you may need to report the incident to the relevant authorities. For example, car accidents should be reported to the police, and your workplace injury should be reported to your employer.
- Seeking legal advice – consult with a personal injury lawyer to discuss your case. A lawyer can provide advice on whether you have a valid claim, the likely value of your claim, and the steps involved in pursuing compensation.
- Make a claim – your lawyer will help you to lodge your personal injury claim with the relevant insurer or through the relevant court if necessary. The claim will outline the details of your injury, the circumstances of the incident, and the compensation you are seeking.
- Gather evidence – your lawyer will gather evidence to support your claim, including medical records, witness statements, and expert reports. This evidence is crucial in proving negligence and establishing the extent of your injuries.
- Negotiate a settlement – in many cases, the insurer or defendant may offer a settlement to resolve the claim without going to court. Your lawyer will negotiate on your behalf to ensure that any settlement offer is fair and reflects the full extent of your losses.
- Court proceedings – if a settlement cannot be reached, your case may proceed to court. Your lawyer will represent you in court, presenting evidence and arguments to support your claim.
3. Are there time limits to make a personal injury claim?
Yes, the Limitation Act 1969 (NSW) provides for strict time limits, known as limitation periods, for making a personal injury claim in NSW. The general rule is that you have three years from the date of the injury to commence court proceedings. However, this time limit can vary depending on the specifics of your case:
- Minors – if the injured person is under 18 years old, the three-year limitation period does not begin until their 18th birthday.
- Delayed onset injuries – in some cases, injuries or the full extent of harm may not become apparent until sometime after the incident. The limitation period may start from the date you became aware (or should have become aware) of the injury.
- Extension of time – in exceptional circumstances, the court may grant an extension of the limitation period. However, this is not guaranteed, and delays in pursuing a claim can jeopardise your ability to seek compensation.
Given these time limits, it’s important to seek legal advice as soon as possible after an injury to ensure that your claim is lodged within the required timeframe.
4. How are negligence claims finalised?
Negligence claims in NSW are typically finalised in one of two ways: settlement or court judgment.
Settlement – most personal injury claims are resolved through a negotiated settlement. This involves the parties agreeing on a sum of compensation without the need for a court trial. Settlement negotiations can take place at any stage of the claims process and often involve mediation or negotiation between the parties’ lawyers.
Court judgment – if a settlement cannot be reached, the case may proceed to court, where a judge will hear the evidence and make a decision. The court will determine whether the defendant was negligent and, if so, the amount of compensation to be awarded.
Once a claim is finalised, either through settlement or court judgment, the injured party generally cannot pursue further compensation for the same injury.
5. What is a medico-legal examination?
A medico-legal examination is an independent medical assessment conducted by a doctor with expertise in the relevant field of injury. This examination is often required in personal injury claims to provide an objective evaluation of your injuries and their impact on your life.
The purpose of a medico-legal examination is to assess the extent of your injuries, determine whether they are consistent with the incident, and provide an opinion on your prognosis and future treatment needs. The doctor will prepare a detailed report, which is used as evidence in your claim. The doctor is not retained to provide you with treatment but rather, conduct an assessment and provide a report that is used for the purpose of your claim.
6. What am I to expect at a medico-legal examination?
At a medico-legal examination, you can expect the following:
- Discussion of your medical history – the doctor will ask you about your medical history, including any previous injuries or health conditions, and how your current injuries occurred.
- Physical examination – the doctor will conduct a physical examination to assess the nature and severity of your injuries. This may include tests to evaluate your range of motion, strength, and any pain or discomfort.
- Discussion of symptoms – you will be asked to describe your symptoms, how they have affected your daily life, and any ongoing treatment or rehabilitation you are receiving.
- Report preparation – after the examination, the doctor will prepare a medico-legal report, which outlines their findings and provides an opinion on your injuries, prognosis, and any future treatment needs.
It’s important to be honest and thorough during the examination, as the report will play a significant role in determining the outcome of your claim.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you believe you have a claim, you can also use our fast and simple Personal Injury Claim Check and we will get into touch with you shortly.
