Category Archives for General Legal Articles

Work Of Fiction?

Court of Appeal dismisses insurer’s argument that trial judge didn’t give weight to Plaintiff’s dodgy tax returns.

the situation

Jack was a 53-year-old tiler.

Jack was on his way home after a hard day’s work.

Jack was thinking about what to make for dinner as he sat stationary at lights on Mains Road, Sunnybank.

Jack sat contemplating a hot lamb roast, braised beef cheek, or perhaps penne pasta.

Jack thought life was hard enough trying to pick what to have for dinner…

Until

Jack was rear-ended by another car.

Jack was immediately transferred to the QE2 Hospital. He underwent a course of strong painkillers and was discharged the next day. In the next few days, though, Jack had to take a visit to his doctor after he developed neck and back pain.

Unfortunately, Jack was no stranger to pain. Jack had already been hit by a car just 18 months earlier. At least that time he largely recovered from his neck injuries.

He wasn’t so lucky the second time around.

The second crash aggravated his pre-existing neck condition, and he couldn’t return to work.

Prior to the accident, Jack worked as a successful tiling contractor. He was a good tiler and hardworking man. Now he found himself rejecting job offers and being unable to carry out heavy work or work on a full-time basis.

the judge's decision

Jack sued the insurer for damages caused by the second car accident.

Just when Jack thought life couldn’t get unluckier, his credibility in court was questioned due to phoney financing.

The Judge found great inconsistencies in his past tax returns and declared they were a ‘work of fiction’. The financial evidence Jack provided in court did not align with the money he had previously declared.

Fortunately for Jack, the Judge concluded that the weight of witness statements and medical evidence outweighed the questions brought on by his creative accounting.

Jack received $461,249 in compensation at trial.

The insurer appealed this decision in the Supreme Court of Queensland.

The insurer argued that Jack’s inconsistent financial figures should have displayed enough dishonesty to allow rejection of his evidence.

The trial judge to closely scrutinise Jack’s and his tax records. When the trial judge looked at the tax returns he found:

  • the tax returns were lodged years late
  • Jacks increase in income after the accident was inconsistent with his claim that his symptoms worsened
  • The character evidence provided by previous colleagues found inconsistencies in his success as a contractor compared to the low turnover figures in his tax returns
  • Jack admitted working on a barter basis but did not declare the value of the benefit in his tax returns
  • There was an expense of $25,000 simply referred to in the tax return as “expenses for bob”

The Court of Appeal confirmed the trial judge’s decision that the tax returns were not reliable evidence. But that:

gavel

Court of Appeal Judge

 “a finding that there has not been honest compliance with taxation laws does not inevitably mean that loss of earning capacity or economic loss cannot be made out on other evidence

The Court of Appeal held that the trial judge did not base his acceptance of Jack’s evidence alone, but the judge preferred and accepted the evidence of medical experts and other witnesses .

The Court of Appeal said:

gavel

Court of Appeal Judge

what is evident is that the learned trial judge did not make a blanket rejection or acceptance of the evidence of Mr Marinkovic. His honour was quite careful to make express findings on matters where he rejected his account, because it was inconsistent with documents or it was evasive or simply because he was no persuaded of its reliability. However the trial judge was equally careful to make findings as to what he accepted from that evidence and whether Mr Marinkovic was credible and reliable

The Court of Appeal rejected the insurer’s argument and decided that the trial judge had got it right the first time.

the critical evidence

The critical evidence in this case was the medical evidence and the character evidence.

medical expert

  • Medical expert- is a medical specialist who examines a claimant for medico-legal purposes and provides a report to the court. The medical expert has a duty to assist the court and this duty overrides any obligation the expert may have to any party to the proceeding or to any person liable for the expert’s fee or expenses.

the result

Gained:

  • An award of damages for pain and suffering,
  • past and loss of superannuation
  • damages for out of pocket expenses
  • future out of pocket expenses

Lost:

  • Ability to work full time hours
  • Ability to work to full capacity
  • Psychiatric condition
  • Life long pain and suffering

the conclusion

This case proves more evidence is key.

The judge weighed up the alleged dodgy tax returns against the evidence of the medical experts and lay witnesses. The insurer at the trial argued the judge should accept the tax returns as reliable evidence. This prompted the judge to look closely at the tax returns and scrutinize them and Jack. While the judge did not accept all of Jack’s evidence in relation to his earning capacity pre-accident, he considered how Jack had reported the symptoms to the medical experts and to lay witnesses, and the expert medical opinion to conclude that Jack had suffered real injuries which was cause Jack to lose income in the future. The Court of Appeal upheld the trial judge’s decision and Jack was awarded compensation for the injuries that changed his lifestyle dramatically.

Gratuitous Care and Assistance

Often following a serious accident a person is unable to return to their former household duties and chores due to their accident related injuries.

It is completely understandable.

A person’s friends and family are often the ones who take over these duties. On top of that, they generally provide any other necessary care and assistance. Care provided to an injured person can make up a substantial part of a person’s claim.

requirements

There are thresholds that must be fulfilled to make such a claim. The relevant act* specifies that damages should only be awarded to an injured person for gratuitous services provided if they:

  • Are necessary
  • Arise solely out of the injury in relation to which damages are being awarded
  • Are in relation to tasks that you were doing solely prior to the accident
  • check
    Are provided, or are to be provided for at least six hours per week for at least six months

If these thresholds are met, an injured person is qualified to claim for gratuitous care and assistance.

but, what about commercial assistance?

In addition to this, an injured person may also claim for commercial assistance they receive.

Commercial assistance is when a person is hired to perform duties they otherwise would have completed themselves prior to the accident – perhaps hiring a gardener to mow the lawn, take care of your garden, or clean the pool.

be warned

These types of claims are heavily scrutinised by the insurance company.

It’s for this reason a claimant, or their loved ones, should keep a detailed record of all and any gratuitous services provided after the injury, that was not provided prior to the incident, and were required as a result of the incident.

Written by Ashley Tulley | Chief Commercial Officer

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* Section 59 of Civil Liability Act 2003 (QLD)

What you MUST prove before you’ll be compensated for your injuries

Ashley Tulley

Chief Commercial Officer

If a person is injured because of another person’s negligence, they can bring a compensation claim for personal injuries.


Unfortunately, claimants aren’t automatically given compensation for their injuries.


Instead, they must prove why they should be compensated.


To do this, a claimant must prove that they suffered loss caused by the other person’s negligence.

Helen* could not prove this critical link, so her claim was dismissed.[1]

Read on to learn what was wrong with Helen’s case (and how to avoid making the same mistakes).

Helen's Story

Helen’s version of events

Helen claimed that she was walking through parklands while watching over her young daughter riding a bicycle.

She saw her daughter lose control of her bicycle, careen off the footpath and begin speeding downhill towards a lake.

Helen ran after her daughter, but her foot became wedged somehow, causing her to fall.

As a result, she sustained spiral fractures to her left tibia and fibula (serious left leg fractures).

She had to have surgery to correct her fractures and needed to take five months off work. She struggled to keep up with her clinical duties as a registered nurse, having to take regular breaks.

About nine months later, Helen returned to the place where she fell.

While she was there, she saw what looked like the top of a wooden post sticking out of the ground near the footpath. When she saw this, she concluded that her foot must have become wedged between the post and the path, causing her to fall.

Helen brought a claim for personal injuries against the local Council, claiming the Council was negligent by not removing the wooden post.

Council’s version of events

The Council argued that Helen did not sustain her injuries the way she said she did.

The Council looked at evidence from a paramedic who helped Helen in the parklands, and a nurse who saw Helen at the hospital. Based on their medical notes, it appeared that Helen actually injured herself by stepping into the lake to stop her daughter from falling in.

The Council also obtained evidence from a soil erosion expert, who said that it was likely the post was underground at the time of the incident. That expert said the wooden post probably only became exposed some months after the event, during the wet season.

Want to know how to build evidence pressure and win your injury claim without using a lawyer

Get our FREE guide and receive:

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    Over 54 template, guides, how-to's and checklists to automate and speed up your claim
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    Quick, easy to follow timelines and hints that power your through your claim - without a lawyer - and puts you in complete control
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    Approved letter template that give you an edge in insurance negotiations and push your business confidence through the roof
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    Applies the law of negligence to your unique situation and informs you of your legal rights

Your actions can be used against you in court.

The Issue

Helen’s claim went to trial in a Court.

The issue was whether Helen could prove, on the balance of probabilities, that the wooden post played a role in causing her injuries.

Beyond the Jargon

Click to reveal it's definition

Balance of Probabilities

The problem for Helen was, what she had told people changed regularly.

…She told her version of events differently to different people.

…She told a 000 operator that she had tripped (and did not mention her foot being trapped).

 …She told a paramedic that she fell into the lake.

…She told a doctor that she injured herself and then continued to run down to the lake

The Judgement

The Court decided that, based on the evidence available, it was more probable that Helen was injured when she fell into the lake (not when stepping off the footpath).

gavel

Judge 

“I am not satisfied that [Helen’s] foot became trapped…or that she tripped over the post. Nor am I satisfied that the top of that post was even exposed at the relevant time.”


“It is more probable that [Helen] sustained the injury when she fell left-foot into the lake…”

Your Evidence is Paramount

For any personal injuries claim to be successful, there must be sufficient evidence to back it up.

In Helen's case, her primary evidence was her recollection of what happened.

Unfortunately, her recollection kept changing. Because of this, the Judge was reluctant to rely on Helen's memory.

Helen’s other evidence was the existence of the post. Unfortunately, she could not prove that the post was even exposed on the day of the accident, because she did not go back to check until nine months had passed.

Because Helen didn’t have sufficient evidence, she could not prove, on the balance of probabilities, that she was injured the way she said she was.


Sadly for Helen, this meant her claim was dismissed.

Ashley Tulley

Chief Commercial Officer

Don’t be like Helen – take notes.

Helen’s case demonstrates the importance of finding and securing evidence fast.

Follow our guide on how to take notes that will stand up in Court below.

Want to know how to build evidence pressure and win your injury claim without using a lawyer

Get our FREE guide and receive:

  • check
    Over 54 template, guides, how-to's and checklists to automate and speed up your claim
  • check
    Quick, easy to follow timelines and hints that power your through your claim - without a lawyer - and puts you in complete control
  • check
    Approved letter template that give you an edge in insurance negotiations and push your business confidence through the roof
  • check
    Applies the law of negligence to your unique situation and informs you of your legal rights

[1] McAllister v Brisbane City Council [2017] QDC 94

Written by Verity Smith | Solicitor

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* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

5 ways to avoid the insurance run-around

Ashley Tulley

Chief Commercial Officer

Do not rely on your memory. 

We have heard of cases where valid claims have fallen down...
...because the plaintiff has forgotten the details of an accident...
..became flustered in meetings...
...and lost credibility as a witness.

Your ability to recall minor facts can be make or break, a year or two down the track.

Don't have your claim discounted because the insurer trips you up over small details.

Insurers and lawyers are predictable. We know that.  We are lawyers.  Without fail insurers and their legal team will try to discount you as a witness (and reduce your compensation as a result).

But it doesn’t have to be all bad news. Taking some simple steps to collect evidence, particularly in the first few weeks following an accident can help prove your credibility and ensure your claim is taken seriously.

Write it down...so you can recall it with unwavering confidence.

Notes can be essential two or six or ten months later when you put the important facts together for a final demand for compensation.

Having notes to remind you of...

  • all of the details of what happened, and
  • what you went through...

...is far easier and more accurate than relying on your memory. 

Start by making a word doc or writing in a journal. Alternatively, use Google Docs, so you have access to your notes wherever you are.

There are 6 types of notes you need to start making ASAP.

1. Were you hit by a reckless driver?

As soon as your head is clear enough, write down all the details of your accident.

Take notes of things including:

  • check
    What you were doing
  • check
    Where you were going
  • check
    Location of the accident
  • check
    Who you were driving with
  • check
    Who saw the accident
  • check
    Time of accident
  • check
    What was the weather like

This is the bulk of your journaling. Do not skip small details. Include every detail of what you saw and heard and felt…

…all of the twists, blows and shocks to your body immediately, during and right after the accident.

Ashley Tulley

Chief Commercial Officer

You don't know how valuable the minor details could be later down the track. Write everything you can think of down.

Be sure to include anything you remember hearing anyone – a person involved in the accident or a witness – say about the accident.

2. Has it left you a physical and emotional wreck?

In the first days following your accident, make daily notes of all pain and discomfort your injuries cause.


For at least the first month or two make notes daily on areas such as any:

  • check
    diagnosed injuries (broken bones, sprains, cuts, abrasions)
  • check
    additional aches & pains and the area they are affecting
  • check
    anxiety
  • check
    Loss of sleep
  • check
    Or other problems

Again write down the small details. You may suffer niggling pain that seems inconsequential at the time but may become important when you trying to gain compensation.

Taking notes on your injury will make it easier for you (and possibly your lawyer) to later describe to an insurance company how much and what kind of pain you were in, and for how long.

Writing down your different injuries will also help you remember to report them to a doctor or other medical provider when your receive treatment.

A relatively small snap of the neck, for example, may not seem worth mentioning but it might help:

  • the doctor and
  • the insurance company

…understand why your bad back pain developed two to three days later, or several weeks, after the accident.

The easiest way to provide evidence of the injuries sustained in the accident is to have them documented in your medical records.


The only way to get your injuries into a medical record is tell your doctor about them and to accurately do that, you will need notes to jog your memory.

Ashley Tulley

Chief Commercial Officer

Take photographs too...

As the saying goes, a picture is worth a thousand words, and then some.

Photos are useful because they…

…preserve evidence of the extent of the injury

…show the damage better than you can describe them

…are difficult to contradict. An insurer will find it harder to deny the evidence in a photograph. 

Wounds and injuries heal. Without photographs it will be difficult later to convince and insurance company in the ways and to the degree you claimed.

Photographs are hard to deny. They are a great weapon to have in your arsenal. Use them as much as possible.

...And get immediate medical attention.

Failing to seek immediate treatment can lead an insurance company to believe that your injuries were not that serious, or that you made them up entirely.

Ashley Tulley

Chief Commercial Officer

The high cost of medical treatment often makes people reluctant to go see a doctor or physio.

But in the case of an accident where someone else was at fault, that person or business, through its insurance, will be obligated to repay you for all reasonable medical expenses associated with your injury.

3. Has it drained your bank account?

You may also be entitled to compensation for economic and other losses but you will need documentation.

Most claims for economic loss rely on you proving that you either:

  • couldn’t go to work;
  • lost your job; or
  • missed job opportunities (promotion, new jobs, pay rises)

… because of your injuries.

Other important notes to make that don’t relate to your economic loss but rather cover your general loss of enjoyment of life include missed:

  • Classes
  • check-circle
    Events
  • check-circle
    Family or social gatherings
  • check-circle
    Holidays
  • check-circle
    Or anything else that would have benefited you but you were unable to do because of the accident

Make note of these factors too. They can often be overlooked in a compensation claim and can be financially compensated for.

4. Notes about the scene of the accident

Return to the scene of the accident as soon as possible to locate any evidence and photograph any conditions you believe may have contributed to the accident.


Draw a diagram of where key things were/are located such as:

  • Your car
  • plus
    The other vehicle, motorbike etc.
  • Lanes
  • plus
    Skid marks
  • plus
    Traffic lights
  • Witnesses

Again, take photos from a range of angles. Be sure to take them at around the same time of day as the accident to show the appropriate light and traffic conditions.

5. Why you need willing witnesses

Having a witness on your side is powerful.

Witnesses may be able to describe details that confirm what your believed happened. This backs up your story…

…and ensures that the insurer can’t dismiss your claim.

Here’s how to gather evidence from witnesses so that the insurer disregard their statements.

  • check
    Write down the witnesses’ names, home addresses, email addresses, and home, work or mobile numbers – as many details as they are willing to provide.
  • check
    ​Talk with witnesses about what they saw and ask exactly where they were when they saw it (note this on your sketch above).
  • check
    Ask the witnesses if it would be okay for you to write up what they told you and send it to them for confirmation on its accuracy. Ask if they would be willing to sign the document and send it back.

Simple notes on the conversations with witnesses are a pivotal part of proving the credibility of your case.

A quick note on other conversations too.

Start taking notes about conversations (telephone, in person or emails) that you have  with witnesses, insurance companies and other medical personnel (such as other doctors or nurses).

Make written notes of the:

  • date,
  • time,
  • people involved and
  • contents

…of every conversation you have about your accident. 

6. How to avoid taking a knife to a gunfight

This last point is less about note-taking and more about taking an extra action that covers all your bases so no insurance company can discount you as a liar.

In the course of your claim, you will likely be told or promised something or given some information that you want to make sure isn’t denied at a later date...

…such as…

…witness statements or

…results of tests

…when you expect to hear the result of your claim.

Immediately after the conversation, send a letter confirming what the person told you.

The letter does not have to be elaborate, just a brief restatement of what was said.

Make a copy for your files before sending it on.

A sample email or letter can be shown below.

Avoid the he-said, she-said spiral by confirming things in writing. It will make the complaints process far easier.

Sample Letter

Mr Smith
111 Smith Street
Brisbane QLD 4000


Dear Mr Smith,

This email is to confirm our telephone discussion on January 2, 20xx in which you informed me that you would advise me of the outcome of my claim  by no later than January 15, 20xx. 

Thank you for your attention to this matter.

Kind regards,

Julie Kim

Stay Strong.

The claims process can be a battle of determination. Insurers are tough but with these notes, you will be holding all the cards. 

1 Injury Almost Everyone Forgets To Claim For

The mental consequences following accidents is often overlooked in compensation cases. 

It's rarely spoken  about.

Rarely reported in case studies.

And rarely claimed for. 

But mental harm from an accident is so common. It can manifest itself in growing anxiety

Psychological injury (or mental harm) is reported in 30 percent of accidents involving motor vehicles. 

In 2016, there were 6,888 claims for compensation following a car accident in Queensland.

No. of people who made a claim

No. of claimants with mental injury

That means, over 2,000 Queenslanders suffered mental harm following an accident. But only 19 percent of these people made a claim for their mental injuries....

Mental harm can manifest itself in many ways. This could include anxiety, depression, fear, difficulty concentrating. The list goes on...

Mental harm can also result in personality change. While a little obscure, it still warranted claim. 

This played out in (Winters v Bishop & Anor [2014] QSC 312), where a claim for mental harm following an accident was disputed. 

Discover what the Courts decided. 

Zoe's Story.

Zoe* was just 27 years old when she was involved in an accident that changed her life forever.

As a successful planning manager with a background in town planning, Zoe and her husband had previously lived a social and financially comfortable life in Brisbane. They both worked hard in their careers, and enjoyed travelling when they had the chance. They both wanted to have a baby shortly.

One day, Zoe was walking into her work when she approached a pedestrian crossing outside. As she walked across it, she was suddenly struck by a vehicle and knocked to the ground.

Zoe suffered head and elbow injuries from the accident. She rushed to the Princess Alexandra Hospital with an acute brain injury. She suffered a seizure on arrival and had post-traumatic amnesia. CT scans confirm significant damage to multiple parts of Zoe’s brain.

The defendants (the driver at fault and his insurer) accepted that Zoe’s physical injuries were caused by the accident.

However, they did not accept that Zoe’s psychiatric injury – or at least the severity of it – was also caused by the accident.

Zoe took the matter to court. Here’s what the court considered.

Zoe's Psychiatric Injury

Home life

Zoe spent over 5 weeks in hospital as she received treated for her injuries. Unfortunately, Zoe’s amnesia stopped her from properly understanding her injuries.

In her mind, there was no need to be in hospital for that long. She became aggressive towards her husband, blaming him for keeping her there.

When she came home, she continued to feel “angry, erratic and out of control”. She also felt extremely tired, and had problems with short-term memory and the concept of time.

Zoe was no longer able to help around the house or do the things she used to, which made her frustrated. She started becoming aggressive, and even violent, towards her husband.

When they discussed having children, her husband told her he didn’t think she would be able to care for a baby anymore.

Their relationship continued to suffer, and they divorced just 2 years after the accident. Both agreed they would have still been married if it weren’t for the accident.

Work

When Zoe returned to work (on a reduced basis), her lack of awareness of her injuries caused her to think she was completely ready. She wasn’t.

She was constantly exhausted. She couldn’t remember things. She struggled to comprehend paperwork. She couldn’t think of the words to have a normal conversation.

She had to make many, many lists because she was scared that she would forget something and make a terrible mistake.

Without meaning to, she was rude to her colleagues. She struggled to accept feedback, and interpreted it as criticism.

Less than 3 years after the accident, Zoe resigned.

She told the court she “did not feel like [she] was ever going to get the same type of job responsibility and enjoyment [she] had … before the accident”.

Zoe tried other jobs, but struggled to find anything she could do properly. She continued to perceive other employees as bullying her and being against her, and struggled with her duties required with her roles.

The Defendant's Argument

Zoe was examined by multiple psychiatric specialists. Two of those specialists had conflicting opinions.

One specialist believed that Zoe had suffered a personality change as a result of the brain injury sustained in the accident. The second specialist believed that Zoe’s personality change was actually an exacerbation of personality characteristics that she had before the accident.

The defendants relied on the second specialist’s opinion.

The Verdict

Was her personality change due to pre-existing traits?

Evidence from work

The court took evidence from Zoe’s employers before the accident, who suggested that she was a very intelligent and hard-working person…who could also be argumentative at times. One employer said that Zoe liked to get the last word, and would sometimes get aggressive.

The court compared this type of behaviour to Zoe’s behaviour after the accident. Ultimately, being argumentative and determined on some occasions was not the same as being rude, aggressive, defensive and overly sensitive all the time.

Evidence from home

The court also took evidence from Zoe’s family, and came to the same conclusion.

Ultimately, Zoe has suffered severe and sustained symptoms including poor memory, being angry and erratic, fatigue, aggression and violent behaviour, lack of motivation, impulse control issues, frequent headaches and an altered sense of smell and taste.

Zoe’s behaviour after the accident was far too different from her behaviour beforehand.

The court found that Zoe’s change in personality was a result of the accident.

gavel

Judge 

"I find that the damage to the plaintiff’s brain manifested itself in a significant alteration in her behaviour, particularly in the short-term.

 This included short-term memory loss, lack of inhibition, changes in mood, fatigue and difficulty with multi-tasking and high-level cognitive abilities”

The Result

Zoe received over $1.3 million in compensation. Her compensation included:

  • check
    Over $1 million for economic loss and impairment of her ability to earn an income;
  • check
    $47,200 for pain, suffering and loss of the enjoyment of life;
  • check
    Nearly $50,000 for treatment and medication costs;
  • check
    Over $25,000 for gratuitous care (care provided by family and friends);
  • check
    $12,000 for future care costs.

The Message

Accidents such as Zoe’s often cause psychiatric injuries. Whether the injured person is a driver, passenger, or pedestrian like Zoe; psychiatric conditions are a common consequence.

In fact, as many as 30% of people involved in motor vehicle accidents in some way suffer a psychological injury.

30%
of people suffer psychological trauma
19%
claim for psychological trauma 

Despite that number, only 19.5% of claims for compensation include a claim for psychological injury.

Zoe’s case shows that psychiatric conditions caused by another person’s wrongdoing can be included in a claim for compensation.

If you find yourself struggling after an accident, physically or mentally, take action and seek the treatment you need.

 If you have any questions about how to incorporate your psychological difficulties into a claim for compensation, our team of specialists at McInnes Wilson Lawyers can help.

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

5 ways to avoid the insurance run-around

Ashley Tulley

Chief Commercial Officer

Do not rely on your memory. 

We have heard of cases where valid claims have fallen down...

...because the plaintiff has forgotten the details of an accident...

..became flustered in meetings...

...and lost credibility as a witness.

Your ability to recall minor facts can be make or break, a year or two down the track.

Don't have your claim discounted because the insurer trips you up over small details.

Insurers and lawyers are predictable.

We know that.  We are lawyers.  

Without fail insurers and their legal team will try to discount you as a witness (and reduce your compensation as a result).

But it doesn’t have to be all bad news. Taking some simple steps to collect evidence, particularly in the first few weeks following an accident can help prove your credibility and ensure your claim is taken seriously.

Want to know how to win your injury claim without using a lawyer

Get our FREE guide and receive:

  • check
    Over 54 template, guides, how-to's and checklists to automate and speed up your claim
  • check
    Quick, easy to follow timelines and hints that power your through your claim - without a lawyer - and puts you in complete control
  • check
    Approved letter template that give you an edge in insurance negotiations and push your business confidence through the roof

Write it down...so you can recall it with unwavering confidence.

Notes can be essential two or six or ten months later when you put the important facts together for a final demand for compensation.

Having notes to remind you of...

  • all of the details of what happened, and
  • what you went through...

...is far easier and more accurate than relying on your memory. 

Start by making a word doc or writing in a journal. Alternatively, use Google Docs, so you have access to your notes wherever you are.

There are 6 types of notes you need to start making ASAP.

1. Were you hit by a reckless driver?

As soon as your head is clear enough, write down all the details of your accident.

Take notes of things including:

  • check
    What you were doing
  • check
    Where you were going
  • check
    Location of the accident
  • check
    Who you were driving with
  • check
    Who saw the accident
  • check
    Time of accident
  • check
    What was the weather like

This is the bulk of your journaling. Do not skip small details. Include every detail of what you saw and heard and felt…

…all of the twists, blows and shocks to your body immediately, during and right after the accident.

Ashley Tulley

Chief Commercial Officer

You don't know how valuable the minor details could be later down the track. Write everything you can think of down.

Be sure to include anything you remember hearing anyone – a person involved in the accident or a witness – say about the accident.

2. Has it left you a physical and emotional wreck?

In the first days following your accident, make daily notes of all pain and discomfort your injuries cause.

For at least the first month or two make notes daily on areas such as any:

  • check
    diagnosed injuries (broken bones, sprains, cuts, abrasions)
  • check
    additional aches & pains and the area they are affecting
  • check
    anxiety
  • check
    Loss of sleep
  • check
    Or other problems

Again write down the small details. You may suffer niggling pain that seems inconsequential at the time but may become important when you trying to gain compensation.

Taking notes on your injury will make it easier for you (and possibly your lawyer) to later describe to an insurance company how much and what kind of pain you were in, and for how long.

Writing down your different injuries will also help you remember to report them to a doctor or other medical provider when your receive treatment.

A relatively small snap of the neck, for example, may not seem worth mentioning but it might help:

  • the doctor and
  • the insurance company

…understand why your bad back pain developed two to three days later, or several weeks, after the accident.

The easiest way to provide evidence of the injuries sustained in the accident is to have them documented in your medical records.


The only way to get your injuries into a medical record is tell your doctor about them and to accurately do that, you will need notes to jog your memory.

Ashley Tulley

Chief Commercial Officer

Take photographs too...

As the saying goes, a picture is worth a thousand words, and then some.

Photos are useful because they…

…preserve evidence of the extent of the injury

…show the damage better than you can describe them

…are difficult to contradict. An insurer will find it harder to deny the evidence in a photograph. 

Wounds and injuries heal. Without photographs it will be difficult later to convince and insurance company in the ways and to the degree you claimed.

Photographs are hard to deny. They are a great weapon to have in your arsenal. Use them as much as possible.

...And get immediate medical attention.

Failing to seek immediate treatment can lead an insurance company to believe that your injuries were not that serious, or that you made them up entirely.

Ashley Tulley

Chief Commercial Officer

The high cost of medical treatment often makes people reluctant to go see a doctor or physio.

But in the case of an accident where someone else was at fault, that person or business, through its insurance, will be obligated to repay you for all reasonable medical expenses associated with your injury.

3. Has it drained your bank account?

You may also be entitled to compensation for economic and other losses but you will need documentation.

Most claims for economic loss rely on you proving that you either:

  • couldn’t go to work;
  • lost your job; or
  • missed job opportunities (promotion, new jobs, pay rises)

… because of your injuries.

Other important notes to make that don’t relate to your economic loss but rather cover your general loss of enjoyment of life include missed:

  • Classes
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    Events
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    Family or social gatherings
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    Holidays
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    Or anything else that would have benefited you but you were unable to do because of the accident

Make note of these factors too. They can often be overlooked in a compensation claim and can be financially compensated for.

4. Notes about the scene of the accident

Return to the scene of the accident as soon as possible to locate any evidence and photograph any conditions you believe may have contributed to the accident.


Draw a diagram of where key things were/are located such as:

  • Your car
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    The other vehicle, motorbike etc.
  • Lanes
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    Skid marks
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    Traffic lights
  • Witnesses

Again, take photos from a range of angles. Be sure to take them at around the same time of day as the accident to show the appropriate light and traffic conditions.

Want to know how to win your injury claim without using a lawyer

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    Over 54 template, guides, how-to's and checklists to automate and speed up your claim
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5. Why you need willing witnesses

Having a witness on your side is powerful.

Witnesses may be able to describe details that confirm what your believed happened. This backs up your story…

…and ensures that the insurer can’t dismiss your claim.

Here’s how to gather evidence from witnesses so that the insurer disregard their statements.

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    Write down the witnesses’ names, home addresses, email addresses, and home, work or mobile numbers – as many details as they are willing to provide.
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    ​Talk with witnesses about what they saw and ask exactly where they were when they saw it (note this on your sketch above).
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    Ask the witnesses if it would be okay for you to write up what they told you and send it to them for confirmation on its accuracy. Ask if they would be willing to sign the document and send it back.

Simple notes on the conversations with witnesses are a pivotal part of proving the credibility of your case.

A quick note on other conversations too.

Start taking notes about conversations (telephone, in person or emails) that you have  with witnesses, insurance companies and other medical personnel (such as other doctors or nurses).

Make written notes of the:

  • date,
  • time,
  • people involved and
  • contents

…of every conversation you have about your accident. 

6. How to avoid taking a knife to a gunfight

This last point is less about note-taking and more about taking an extra action that covers all your bases so no insurance company can discount you as a liar.

In the course of your claim, you will likely be told or promised something or given some information that you want to make sure isn’t denied at a later date...

…such as…

…witness statements or

…results of tests

…when you expect to hear the result of your claim.

Immediately after the conversation, send a letter confirming what the person told you.

The letter does not have to be elaborate, just a brief restatement of what was said.

Make a copy for your files before sending it on.

A sample email or letter can be shown below.

Avoid the he-said, she-said spiral by confirming things in writing. It will make the complaints process far easier.

Sample Letter

Mr Smith
111 Smith Street
Brisbane QLD 4000


Dear Mr Smith,

This email is to confirm our telephone discussion on January 2, 20xx in which you informed me that you would advise me of the outcome of my claim  by no later than January 15, 20xx. 

Thank you for your attention to this matter.

Kind regards,

Julie Kim

Stay Strong.

The claims process can be a battle of determination. Insurers are tough but with these notes, you will be holding all the cards. 

Written by Ashley Tulley | Chief Commercial Officer

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Two sources of video evidence to prove a ‘hit and run’ accident in Brisbane

If you have suffered in a hit and run accident – you might not have caught the registration details of the vehicle at fault.

This can make it a lot more difficult to prove an accident occurred.

If you can’t prove that the accident occurred – you will not recover compensation to replace your lost income.

If there are no witnesses, you will need to look to other sources of evidence to prove your story.

The first questions you need to ask yourself is this…

“ Is there any video surveillance in the area?”

There are two sources of video surveillance that can be very compelling evidence  (if it is available).

Depending on the location of your accident, it is possible the accident was captured by either:

  1. A Red Light or Fixed Speed Camera operated by the Department of Transport and Main Roads;  or
  2. One of hundreds of CCTV cameras operated by the Brisbane City Council.

Don’t Delay

The video footage held by the Department of Transport and Main Roads and the Brisbane City Council is only held for a limited period of time.

If you make your application more than 14 days after the accident, the chances that the video footage will still be available are reduced.

If you wish to access video footage, you should make the relevant application at the earliest possible opportunity.

1. Obtaining red light or fixed speed camera footage

There is a list of Department of Transport and Main Roads camera locations available here.

If you think that one of the cameras may have captured your accident, you should apply to the Department of Transport and Main Roads for a copy of any footage they hold from the date and time of the accident.

You can make this application online at the link below:

https://www.smartservice.qld.gov.au/services/information-requests/home.action

When completing the application, you will need to:

  1. Provide accurate information about the date, time and location of the accident;
  2. Specify which video camera (from the list above) you consider might have captured the accident;
  3. Specify the reason you are seeking to access the footage, i.e explain that you were injured and require the footage to support your claim for damages for personal injuries;
  4. Provide a certified copy of your photo identification; and
  5. Pay the application fee of $48.00. (You may be eligible for a waiver of this fee if you are a recipient of regular Centrelink payments).

You should receive a response to your application within 25 business days of the date on which the application is received by the Department of Transport and Main Roads. It is therefore important your get started on your application as soon as possible.

2. Obtaining CCTV Footage

The Brisbane City Council operates two different types of CCTV cameras:

  1. Traffic CCTV Cameras which monitor some major roads throughout Brisbane; and
  2. City Safe CCTV Footage which operate in and around the Queen Street and Fortitude Valley Malls

2.1 Brisbane City Council Traffic CCTV Footage:

You can access Brisbane City Council Traffic CCTV footage by making a Right to information Application to the Brisbane City Council using the following form:

https://www.brisbane.qld.gov.au/sites/default/files/20150917-rti-application_form.pdf

When completing the application, you will need to:

  1. Provide accurate information about the date, time and location of the accident;
  2. Specify the reason you are seeking to access the footage, i.e explain that you were injured and require the footage to support your claim for damages for personal injuries;
  3. Provide a certified copy of your photo identification; and
  4. Pay the application fee of $48.00. (You may be eligible for a waiver of this fee if you are a recipient of regular Centrelink payments).

You should receive a response to your application within 25 business days of the date on which the application is received by the Department of Transport and Main Roads.

2.2 Brisbane City Council CitySafe CCTV Footage:

If your accident occurred on or near either the Queen Street or Fortitude Valley Malls, you may wish to request access to the Brisbane City Council CitySafe CCTV footage network.

You can request access online, using the link below.

https://forms.business.gov.au/aba/qldlg1/citysafe-footage-review-request/

This application is free and will be processed within 5 business days.

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Why Ignorance is Not Bliss

Let me tell you about Bob….
Bob is a 35 year old electrician living in Deception Bay, QLD with his wife and family.
Bob loves a beer or two, particularly after a hard day’s work on site. It was a Thursday evening and Bob decided to go to the pub.
Being the responsible bloke his is, Bob left his car at home and walked down to the pub. Bob had about four schooners when his wife phoned to tell him dinner was ready.
He finished his beer (because leaving a half full schooner at the pub in front of his mates is asking for trouble) and walk home.
Bob was hit by a car on his way home. The car mounted the footpath, at speed, hitting Bob and then sped off.
Bob called his wife to tell her he had been hit by a car.

“Likely story” she says, “knocked over while walking home from the pub? Sure thing”.

Arriving at the scene, Bob’s wife reviews his extensive injuries and immediately calls an ambulance.
Bob suffered a compound fracture to his right leg, so much so, that the bone pierced his skin and also tore through his heavy King Gee trousers.
Bob’s immediate thought was…

“I won’t be able to work for a few months. How the #@!* am I going to be able to afford that Bali holiday I promised the kids at Christmas”

MCW Legal is part of a well-established law firms that’s been in operation since 1975. Last year we were listed as a first tier, leading personal services firm. We also won nine other awards from Doyle’s Guide for plaintiff insurance work.
We help people like Bob deal with the uncertainty of lost incomes every day by providing them with information about the law of negligence.
For example, McLean v Nominal Defendant [2012] closely resembles Bob’s situation.
The first step we would take is to provide Bob with a worksheet that will enable him to quickly calculate his lost earnings as a result of his broken leg. This enables Bob to make a decision about whether compensation is an appropriate step in replacing his income.
A copy of this same worksheet is available to download below.
 

How much could your claim be worth?

If you have been injured and are wondering how the Courts calculate compensation, download this free ‘Economic Loss Worksheet’.  Discover the simple calculations that will estimate the value of your claim in 10 minutes.

Click here to access your own Economic Loss Worksheet

As a result, Bob discovered his lost income was $120,000.
Had Bob not done these calculations it is highly likely that he would have never decided to seek insurance for his set-back and never been able to take his family to Bali.
From lying roadside thinking….

“How am I going to keep food on the table?”

Bob found himself three weeks later cooking eye fillet on the BBQ telling his mates it was all sorted.

If you’ve got more questions, feel free to reach out and give us a call.

Most of these queries can be answered easily in under 15 minutes.

1300 855 103

IF NOW IS NOT A GOOD TIME TO CALL

Give us your contact details and we can ring you back to answer your questions.  It's free.


 

Unborn child receives $118,200 after father is left for dead in hit and run

The Facts

It’s a big part of our culture…

And one we are all so familiar with.

A Friday night BBQ at friends.

But for Stephen and his partner, this BBQ would end in absolute disaster.

It was a Friday night in May, 2003 and Stephen and his partner went to a friend’s BBQ to celebrate the end of the week. Many hours later, Stephen’s partner decided to leave the BBQ driving their car home, with Stephen promising to catch a cab home later.

Stephen continued drinking, having consumed in total a bottle of rum and two shots of bourbon.

Sometime later, friends placed a very drunk Stephen into a taxi telling the driver Stephen’s home address.

The taxi dropped Stephen to a house 4 doors down and unsurprisingly, the owners did not know who the man was.

With no wallet and no cash (as Stephen’s partner had accidentally taken them earlier), the taxi driver had no way to confirm the identity of the mystery man or his actual address.

The driver called police. After 10 minutes the police hadn't arrived so the taxi driver opened the door and Stephen fell out of the cab on to the footpath.

After Stephen was left on the footpath a series of events took place but exactly what happened next will never be known.

Approximately forty-five minutes later, Stephen was seen lying on another road. He had been run over twice by two separate cars and dragged along the ground by the first vehicle.

Stephen died at the scene of the accident from extensive head injuries.

The Judgment

Stephen Crouch's partner and his 4 children sued the taxi driver's insurer, the taxi company, the second driver's insurer and also the Nominal Defendant being the insurer of the unidentified driver who first ran over Stephen.

The Nominal Defendant is a State fund set up to provide compensation for someone involved in an accident involving an unregistered or unidentified vehicle.

Where the at fault vehicle cannot be identified the Nominal Defendant is the insurer. This is the standard "hit and run" scenario.

The court found that there was two people that were at fault for Stephen’s death:

1. The Taxi Driver

The court found that…

“the taxi driver owed a duty of care to Stephen to make sure he dropped him home safely instead of leaving him lying on the footpath and therefore he breached his duty of care”

2.The Unidentified Driver

The unidentified driver was also found at fault for breaching his/her duty of care by failing:

  • Failing to keep a proper lookout and running over Stephen.
  • Failing to seek help and
  • Leaving Stephen injured and dying on the road to be run over by a second vehicle.

The court found that the taxi driver was 80% at fault for Stephen's death and the unidentified vehicle was 20% at fault.

The Defendants tried to say that Stephen caused or contributed to his own death and the money his family received should be reduced.

The court did not agree and said that Stephen's drunkenness had no connection with the breach of duty of either the taxi driver or the unknown driver.

The court said ....

"taxi drivers perform an important social role in relation to drunk peoplea role which must carry with it some responsibility. A taxi driver who voluntarily assumes responsibility for taking a drunk person to a certain address should take all reasonable steps to do so and should not simply leave a passenger and drive off."

Damages were awarded for the loss of support which Stephen Crouch would have provided to his partner and children.

The family was awarded $762,350This is much higher than the average payout for fatal accidents (See image below).

MCW Legal's Opinion

The decision of the Court as to which defendant was most at fault for Stephen's death is of particular interest.

Dependency Claim Facts (Source: RACQ)

It is not unreasonable to see that if a person is left drunk on the footpath that there is a risk that person would wake up, wander onto the road and be hit by a vehicle.

This decision is particularly helpful if you or a friend or family member is ever injured because a taxi driver has not taken reasonable steps to ensure you have arrived safety at your intended destination, particularly if they have had too much to drink.

This decision is an example of a claim against the  Nominal Defendant involving either unregistered  or unidentified vehicles. They have increased significantly in the  last year (see  image below).

The Consequences

Ultimately this decision is a partially positive outcome for Stephen's partner and children. They are not left struggling financially and are adequately compensated for the negligence of both the taxi driver and the unknown driver.

Nothing will replace the grief of losing a loved one. Make sure you get your friends home safely wherever possible..

Psychological Injuries Matter Too

To most people an injury is something you can see. But what about those that you can’t see?

A psychological injury or “nervous shock” can be just as debilitating as a physical injury. But how do you know if you have suffered such an injury?

Nervous shock is the legal term for any psychological injury suffered that is caused or contributed to by a particular incident. Depression, post-traumatic stress disorder, anxiety type disorders and traffic phobia are just some examples of injuries of this kind. An exacerbation of a pre-existing condition (such as depression) that was well managed prior to the incident can also be classified as a psychological injury.

Examples of incidents that may cause you to suffer psychological injury include the death of a loved one, motor vehicle accidents, a significant fall or even medical malpractice. Even if you were not directly involved in the incident you may still have suffered psychological injury.

In situations where you can show sufficient proximity to an incident that caused you to suffer a psychological injury you may still be able to make a claim. An example of such an incident may be if a close friend of family member lost their life in a car accident at which you were not present.

It is a common misconception that if you bring a personal injury claim you will be suing a person who most likely cannot afford to pay. In fact, any payout will come from the insurer, not the individual.

If you have home and contents insurance and your house burns down, you’d mostly likely make a claim. If you are in a car accident and your car is damaged by someone else, you’d make a claim against their insurance.

It is worth remembering that insurance for personal injury is like any other. It is there to ensure that people who suffer damage are properly compensated. That is the reason this insurance (or any other type of insurance) exists in the first place.

So if you have suffered an injury (including a psychological injury) which you believe was caused by the fault of someone else you should seek legal advice to make sure that you’re informed of your options.

Remember, strict time limits may apply to making a claim so it is important that you receive proper legal advice as soon as possible.

If you require more specific information on the law of negligence or indeed your own personal circumstances, please contact us. One of our specialist lawyers will call you within one business day to clarify your questions and set your mind at ease.

By Mitch Herlihy.