Basics of personal injury law

To expand on the basics of personal injury law, it’s essential to delve deeper into the concepts of duty of care, breach, and damage, which are the cornerstones of this legal field. Personal injury law focuses specifically on situations where an individual suffers harm due to another’s negligence or wrongful actions. The injured party may seek compensation for physical, emotional, and financial losses resulting from the incident, and a personal injury lawyer helps to ensure that these claims are prepared within strict timelines and that all procedural requirements are met to protect the injured party’s rights.

What is Personal Injury Law?

Personal injury law, sometimes referred to as a PI claim or compensation claim, covers a range of cases where an individual has been harmed through no fault of their own. Common terms like compensation law, negligence law, and tort law, are all other terms used to describe personal injury law. This area of law primarily covers cases of negligence but also includes intentional acts that result in harm, such as assault, battery, or false imprisonment. Personal injury law can apply to a wide range of incidents, including but not limited to:

1. Vehicle Accidents: Car accidents are among the most common cases in personal injury law, often due to driver negligence, road conditions, or even faulty vehicle components.  Vehicle accidents include, motor vehicle accidents, truck accidents, public transport accidents, motorcycle accidents and pedestrian accidents.
2. Workplace Injuries: Employers have a duty to maintain a safe work environment, and personal injury law allows employees to seek compensation if injured in connection with their work.
3. Medical Negligence: When medical professionals fail to uphold the standard of care required in their profession, resulting in harm to a patient, personal injury law provides a means for seeking compensation
4. Product Liability: If a consumer product is defective and causes injury, the manufacturer or distributor may be held responsible.
5. Premises Liability: Property owners have a duty to ensure their premises are safe for visitors. If someone is injured due to a hazardous condition on the property, the owner may be liable.
6. Intentional Torts: Not all personal injury cases stem from negligence; some are due to deliberate actions like assault, battery, and defamation, where the injured party can seek damages for their suffering.

Elements of a Personal Injury Claim

In personal injury law, certain elements must be present for a claim to succeed. These elements form the foundation of any personal injury case, and each must be demonstrated through evidence.

1. Duty of Care

The first element of any personal injury claim is establishing that the defendant owed the plaintiff a duty of care. A duty of care is a legal obligation to act in a manner that ensures the safety and well-being of others. It arises in situations where one party is in a position to prevent harm to another. For example:

• Road Users: Drivers owe a duty of care to other road users. They are legally obligated to drive responsibly, adhere to traffic laws, and ensure they do not pose a risk to other drivers, pedestrians, and passengers.
• Employers: Employers have a well-established duty of care toward their employees. They are responsible for maintaining a safe working environment, providing necessary safety equipment, and training employees on safe work practices.
• Property Owners: Owners and occupiers of properties have a duty to ensure that their premises are safe for visitors. This duty might extend to fixing hazards, posting warnings, or restricting access to dangerous areas.
• Medical Professionals: Doctors, nurses, and other healthcare providers owe a duty of care to their patients. This duty involves providing treatment that meets the standard of care expected in the medical field.

For a personal injury claim to be successful, the injured party must show that a duty of care existed in the context of their specific situation.  Personal injury lawyers have a vast knowledge of the laws and precedents in this area and will be able to advise you if they believe there has been a breach of a duty of care.

2. Breach of Duty

Once a duty of care has been established, the next step in a personal injury claim is to show that this duty was breached. A breach of duty occurs when the responsible party fails to act in a reasonably safe manner or neglects to fulfill their obligations, resulting in harm to another person. Personal injury lawyers are skilled at gathering evidence and applying legal standards to demonstrate that a breach of duty occurred. Examples of a breach might include:

• Negligent Driving: A driver texting or driving under the influence may be considered to have breached their duty of care by failing to operate their vehicle safely.
• Unsafe Work Environment: An employer who does not provide adequate training, or fails to maintain machinery, could be seen as breaching their duty of care to their employees.  An employer is also responsible for the negligent acts of their other employees, it isn’t uncommon for injuries to occur as a result of co-worker error.
• Failure to Warn: A property owner who fails to warn visitors of a dangerous condition, such as a slippery floor, could be in breach of their duty to maintain a safe environment.
• Medical Errors: A surgeon who operates on the wrong body part or a pharmacist who dispenses the wrong medication may have breached their duty to the patient.

In legal proceedings, this breach must be demonstrated with evidence showing that the responsible party’s actions fell short of what a reasonable person would have done in similar circumstances.

3. Damage (Injury or Loss)

The final core element in a personal injury claim is establishing that the plaintiff suffered harm as a direct result of the breach of duty. The term “damage” in this context refers to actual physical, emotional, or financial losses. Even if a duty of care was owed and breached, no claim can be made if there was no harm caused. Types of damages include:

• Financial Losses: If an injury prevents someone from working, they may be compensated for lost wages and potential future earnings. Medical bills and rehabilitation costs are also recoverable.
• Pain and Suffering: The court may award damages for pain and suffering, which are intended to compensate the plaintiff for the physical and emotional impact of their injuries.
  • Physical Injuries: Broken bones, concussions, or other bodily injuries are common forms of physical harm.
  • Emotional Distress: Personal injury cases also take into account emotional trauma that can arise from an incident. For example, someone who suffers from anxiety or depression after a traumatic accident might seek compensation for these non-economic damages.

The plaintiff must provide evidence of these damages, which may include medical records, proof of lost wages, and expert testimony regarding long-term effects or the nature of the injury and the impact of the injury on your ability to work.

The Role of Evidence in Personal Injury Claims

Evidence is the backbone of any personal injury case. The injured party must present compelling evidence to demonstrate the duty of care, breach, and damages. Here are some common types of evidence used in personal injury cases:

• Medical Records: These documents provide proof of injuries, medical treatments, and potential long-term effects.
• Eyewitness Testimonies: Statements from witnesses who saw the accident can corroborate the plaintiff’s account of events.
• Photographic Evidence: Photos of the accident scene, damaged property, or visible injuries help substantiate claims.
• CCTV Footage: In some cases, CCTV or dashcam footage is available which can be of great assistance in establishing liability.
• Training records: In the case of a work accident, training records can be helpful in establishing a lack of adequate training.
• Expert Testimonies: Experts in fields such as medicine, accident reconstruction, or mental health may provide insights into how the injury occurred, its impact on the plaintiff, or future rehabilitation needs.

Compensation in Personal Injury Cases

The compensation awarded in personal injury cases varies depending on the circumstances of each case and the severity of the injuries. Compensation typically includes:

1. General Damages: General damages compensate for non-financial losses that can’t be directly calculated, such as pain and suffering, loss of enjoyment of life, and emotional distress. For example, if a person is permanently disfigured in an accident, they may receive general damages to account for the psychological toll and loss of quality of life that results from their injury.
2. Economic Loss:  Your lawyer will gather evidence about the income and superannuation you have lost as a result of the injuries sustained in the accident.  The past losses are usually straightforward to calculate.  A personal injury lawyer will need to gather evidence about your ability to work in the future to build a case for a claim for future lost income and superannuation that will be paid as a lump sum now. 
3. Expenses: These are specific financial losses that can be quantified, such as medical expenses, and out-of-pocket costs directly related to the injury. 
4. Care: In some cases, a claim can be made for care and assistance required by the injured party.  This might have been paid for or done by family members and friends at no cost to the injured person. 

 No Win, No Fee Arrangement

One of the hallmarks of personal injury law is the no win, no fee arrangement. Many personal injury lawyers work on this basis, which means that clients do not pay legal fees unless they receive a successful outcome. If the case is won, the lawyer’s fees are to be paid from the settlement sum. This arrangement makes legal representation more accessible to those who may not have the financial means to pursue a claim otherwise.

If the personal injury lawyer believes your claim for compensation is valid and has merit, they will offer to act for you on a no win no fee basis.  This is an excellent offering as it saves you needing to pay legal fees upfront and in the event your case is unsuccessful, you are not left with a legal bill from your lawyer. 

The lawyer will require you to sign a Costs Agreement.  The Costs Agreement details the no win no fee arrangement and will set out how any fees will be calculated.  It is a requirement in Queensland that the Costs Agreement be signed, this isn’t something that only some lawyers will require.  

It is important you ask any questions you have about the Costs Agreement and that you understand how fees will be calculated.  One trap to look out for is an uplift fee, some lawyers will charge up to a 25% increase on their fees.  At Trilby Misso, we never charge an uplift fee.

Challenges in Personal Injury Cases

Although personal injury cases are common, they can be challenging due to various factors:

• Proving Liability: Establishing liability can be difficult, especially in cases where the facts are disputed or where multiple parties may be at fault.
• Contributory Negligence: In some cases, if the plaintiff is partially at fault for the incident, their compensation may be reduced. This concept, known as contributory negligence.
• Insurance Companies: Insurance companies often aim to minimize payouts and may dispute the severity of injuries or the need for certain types of compensation. Personal injury lawyers negotiate with insurance companies to ensure their clients receive fair compensation.

Conclusion

Personal injury law is a complex yet vital area that provides relief to individuals who suffer harm through no fault of their own. Personal injury lawyers work to uphold the rights of injured individuals, ensuring they receive appropriate compensation to cover their losses and rebuild their lives. The philosophy of personal injury law is to compensate the injured party to put them in the position they would have been in had the accident not happened. Personal injury law remains an essential safeguard, ensuring that individuals have recourse in the face of negligence or intentional harm.

Further Reading: Personal Injury – Legal Aid Queensland

This page offers general information about making a personal injury claim in Queensland, including time limits and notification requirements.

https://www.legalaid.qld.gov.au/Find-legal-information/Personal-rights-and-safety/Health-and-medical/Personal-injury