COMPENSATION FOR INJURIES

In an ideal world, every time a person was injured, he would automatically be compensated for it. But, alas, this is not the situation at present. Some persons are compensated for their injuries, others are not.

WHO CAN OBTAIN COMPENSATION?

Broadly, they are 1) persons injured at work, 2) persons injured in traffic accidents, 3) persons injured in a crime, 4) persons who have taken out their own personal accident insurance policies and 5) persons injured as the result of the negligence of other people. I shall consider each of these categories later on. Almost everything said applies equally to a husband, wife or single person.

SOCIAL SECURITY ENTITLEMENT

But first, I should mention Social Security. Every time that a person is unable to work because of sickness, he is entitled to Sickness Benefit. Sickness Benefit will be payable, of course, when the sickness is due to an injury. At present, Sickness Benefit is $148 per week for a single person and $267 for a married person who has only a spouse as a dependant. If a person is permanently unable to work, then a Disability Pension is payable. At present, Disability Pension is $163 for a single person and $270 for a married person with a dependant spouse. However, an injured person will not be able to claim both Social Security and some other form of compensation, such as Workers Compensation or traffic accident benefit. In such a case, Social Security cannot be drawn.

SUPERANNUATION ENTITLEMENT

If you are in a superannuation scheme and you have to retire early because of injury, then you can normally start drawing your superannuation immediately. Often the superannuation will be equal to your normal working wages.

AWARD COVERAGE

If you are covered by an Award at work, then the Award will nearly always provide for sick leave payments.

COMMON FEATURES

The insurance schemes providing cover for injuries at work, traffic accidents, personal accidents and criminal compensation have the following features in common. They all 1) provide payment of medical expenses, 2) pay your wages while off work, 3) pay a lump sum for loss of a limb etc and 4) pay a benefit to dependants in case of death.

INJURIES AT WORK

The workplace is the spot where most injuries take place. Each State and Territory has a compulsory insurance scheme. It may be called Workers Compensation, Workhealth, Workcare or some other name. Sometimes, the workers' compensation insurance and the traffic accident insurance have been amalgamated and are run by one authority with almost identical benefits being provided. Workers Compensation is payable for any injury caused by the work environment. The injury can be an injured back caused in an accident. Or it can be an occupational disease like asthma or asbestosis caused by dust or asbestos. It can be RSI, repetitive strain injury. It can be a skin disease caused by chemicals. It can be cancer caused by passive smoking. A typical scheme will provide a) full wages for first 26 weeks of injury, b) 75% of wages after 26 weeks, c) payment of all medical and rehabilitation expenses and e) payment of a lump sum for loss or impairment of limbs. The maximum lump sum under this last heading is currently around $122,000. In the case of death, the surviving spouse will receive a lump sum of around $91,000 and will also receive weekly maintenance for children, currently around $58 per week for each child. At one time, it used to be possible in all States to take the employer to Court and obtain very large sums in compensation if one were badly injured. Amounts from 1/2 million dollars to five million dollars were not unusual. However, most States have now banned this practice. They have fixed a maximum sum that one can get. At present, the maximum amount is set at approximately $122,000.

TRAFFIC ACCIDENTS

If one is injured in a traffic accident, one will receive benefits virtually identical to Workers Compensation benefits. The category of persons covered by third-party insurance includes all road users such as drivers, passengers, pedestrians etc. At one time, to obtain benefits, one had to prove that the other driver was at fault. Many States have now discontinued this requirement. Compensation is payable on a "no-fault" basis. However, reduced compensation is payable to an injured driver who was drunk or who did not have a valid driving licence. As with Workers Compensation insurance, it used to be possible in all States to take the driver at fault to Court and, in some cases, obtain compensation of some millions of dollars from his insurers. Many States have now banned this practice and fixed a maximum limit on the amount that one can recover.

CRIMINAL COMPENSATION

Most States have now what is called a Criminal Injuries Compensation scheme. Briefly, any person who is injured in the commission of a crime is entitled to compensation for injuries received. It does not cover injuries to the criminal himself. Typically, the kind of injuries that one can be compensated for are bodily harm, mental injury or shock and pregnancy. However, the bad news is that the maximum that one can recover is much less than that payable under a Workers Compensation claim. Typically, the maximum that one can recover is limited to around $50,000. To obtain compensation, it is not necessary that someone be convicted of the crime first.

PERSONAL ACCIDENT INSURANCE

What about if you are injured and you do not come within any of the above categories? You were not at work, not on the road and a crime was not being committed. Suppose you are injured at home. Will you be entitled to compensation? The general answer is No. However, it is possible to recover compensation in some cases. Many people take out personal accident insurance cover. Others take out cover against sports injuries. A typical personal accident policy will pay your wages while off work and provide a lump sum for loss of a limb etc. One of the major causes of being off work for young men in their 20's is sports injury. Contact sports such as boxing, rugby, Australian Rules are notorious for causing injury. A Sports Injury policy will pay your wages and provide a lump sum in the case of permanent impairment.

CLAIMS FOR NEGLIGENCE

You have been injured and the injury is not covered by any of the categories already mentioned. Is there any hope of recovering compensation? There may be. If you have been injured by the negligence of some other person, you are entitled to recover compensation from that person. The "person" may a natural person or it may be a business organisation or even the Government. Often the person will be insured and you will, in fact, recover compensation from his insurance company.

What does being negligent mean? It means not taking the normal care that an ordinary person would take in the circumstances. The kind of activities covered under this heading is very wide. For example, it covers buying goods, the carrying out of professional services, leaving dangerous objects lying about, keeping dangerous animals etc. In fact, negligence will arise in any activity where proper care is not exercised. If someone is injured as a result of not taking proper care, then the person injured can claim compensation for his injury.

Let us take a few examples. You buy an electrical appliance. You take it home and when you start to use it, it blows up and you are injured. It is quite clearly a case of faulty manufacture. The manufacturers have been negligent. You can recover compensation from them for your injuries. In the landmark case of Donoghue v. Stevenson, Mrs Donoghue and her girlfriend went into a cafe and ordered ginger-beer. When Mrs Donoghue had almost finished her bottle, the decomposed body of a snail floated out. Mrs Donoghue was violently ill and suffered gastro- enteritis. She sued the manufacturers and obtained compensation for her illness. Take another example. A neighbour has invited you over for a cup of coffee. When going up the path to the house, you step on a garden rake which had been left there. The rake swings up and injures you. Can you recover compensation for your injury from your neighbour? You can. The neighbour did not take proper care. He should not have left a rake lying on the garden path where it could injure someone. He was negligent. You can, therefore, recover compensation for your injury. Compensation can include medical expenses and also any wages lost through being off work. Take another example. You are waiting for a bus in a queue. The bus arrives and the person behind you pushes you. You fall and injure yourself. You can recover compensation from the person who pushed you.

In all cases of personal injury, it must be remembered that there is no point in suing somebody who cannot pay. If the person is insured, then well and good. The insurance company will pay. If the person owns his own home, then it is very likely that he will be able to pay. However, if he is a transient who lives in a flat and owns nothing but the clothes that he stands up in, then you would be very foolish to waste good money in suing him. You should also remember that an employer is liable for the negligent acts of his employee. Therefore, you can obtain compensation from the employer in such a case.

DISCLAIMER: See disclaimer on home page.

Copyright 1994.




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