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Joshua Brown

My Health Record – Is it as Secure as Promised?

By | General Information

If you read our information guide on the My Health Record, My Health Record (“MHR”) is an online summary of your key health information, established by the My Health Records Act 2012 (“the Act”). In that summary your health information is intended to be viewed securely online, from anywhere at any time. It was also intended to enable Healthcare providers to gain access to your MHR when they need, to such as when you are in an accident or emergency.

If you didn’t opt out of MHR, the MHR gathered all your health information from you, your healthcare providers and Medicare. This information can include medical conditions, medication, allergies, test or scan results and treatments all accessible within the one place.

In our guide we speculated that this open access of information could create new risks from the online transmission and storage of personal information in the MHR system.  By having this system easily accessible by storing it online, leaves your information vulnerable to snoopers, criminals and hackers. This risk could also extend to your children’s information as well.

Recently, it was reported that a number of participants had another person’s medical details incorrectly entered into their own records. In other instances, some records had been viewed by fraudsters, and in another a child had the incorrect parent assigned to their records.

There have also been a number of breaches reported to the Office of the Australian Information Commission.

If errors like this can happen, is it really a reliable source of information for doctors when you have been in an accident or emergency?

There have been fears raised about perpetrators of family violence being able to become an authorised representative of a child’s MHR. Amendments were passed to the Act on 26 November 2018 providing that a person cannot become an authorised representative of a child’s MRH if the life, health or safety of the child or another person would be put at risk. Unfortunately, this can only be identified by Court order, which means that if a person has not applied to the Court for domestic violence protection orders, there remains a risk to their, or their child’s safety.

Online access to a child’s MHR would provide information about the location of a child and family and/or their treatment providers and the nature and date of treatment. Family lawyers in particular should be aware of this when advising clients. There may be risk of family violence their clients and/or their children if the other parent were to gain access to the health record information or location revealed through the MHR system.

The opt out period has now been extended to 31 January 2019, after which all children and adults will have an electronic health care record created for them. Everyone should consider their own personal circumstances and decide whether the MHR is appropriate for them.

This Call May be Used for Quality and Training Purposes….and Evidence if We Sue You!

By | Compensation Law, General Information

We have all heard the pre-recorded statement that the telephone call will be used for quality and training purposes. But what if that warning is not played, and what can they, or someone else, do with the recording?

And what about that recording button on your mobile phone. Can you record a conversation with someone and use it against them?

This short article generally explores the privacy rights around recorded phone calls, and the uses of the recording as evidence in Court proceedings.

It all begins in the Invasion of Privacy Act 1971 as to whether recording of a conversation is legal.

There is no offence if the recording is of a telephone conversation to which you are a party, or your recording unintentionally picks up another conversation that you are not a part of – some of you might have seen the episode of Suits where Samantha uses Alex’s daughter to ‘accidentally’ record a conversation to then be used in a deposition. Although it might have worked in Suits, this does not work in real life. This would in fact be a breach of the Invasion of Privacy Act 1971.

So, recording a conversation to which you are a part of is not illegal.

The next question is whether you can use that recording as evidence for whatever reason? Maybe you want to record your ex in a family law dispute? Maybe you want to record a witness in an injury claim?

The Invasion of Privacy Act 1971 provides that it is an offence to communicate or publish that recording, or a report of the recording, of the private conversation. The penalty is imprisonment of up to 2 years or a fine of up to $5,222.00.

However, you can use the recording if the other party to the conversation gives their consent, whether it is expressly given (ie they say they agree to you communicating or publishing the phone call) or it is implied (when the pre-recorded statement says the telephone call will be used for quality and training purposes and you continue with the phone call anyway).

The use in legal proceedings is limited, and makes the recording inadmissible as evidence in civil or criminal proceedings unless consent is given to use the recording.

So what can you do with the recording if you can’t use it as evidence? Perhaps you can produce a diary note of the conversation from the recording. Perhaps you can produce an affidavit as to what was discussed in the conversation from the recording. In either case, the document might put you in breach of the Invasion of Privacy Act 1971 by producing a report of the recording.

It appears at this stage the extent of which you can use a telephone call recording without consent is yet to be truly tested in the Court.

In the example of an injury claim where you are recording a witness, do you need to disclose the recording or written record of the recording? Setting aside the issue of whether it is legal to communicate or publish the phone call, we turn to the Uniform Civil Procedure Rules 1999. If you have the witnesses consent, you can obviously disclose the recording, or written record. If you don’t want to disclose it, rule 213 of those Rules allows you to claim privilege to the document.

There are three types of privilege that you can claim: advice privilege, litigation privilege and third party privilege.

Advice privilege applies where the communication in question was made for the purpose of giving or seeking legal advice. Advice privilege can also protect confidential communications between a client and third parties made for the dominant purpose of enabling the client to obtain legal advice – such as a Barrister.

Litigation privilege relates to documents brought into existence for the purpose of use in legal proceedings, or for obtaining or collecting evidence to be used in the legal proceedings. This includes statements of potential witnesses, and surveillance film taken for potential use in litigation.

It is important to note that if you were to claim privilege to a statement, that privilege is waived by conduct which is inconsistent with the maintenance of the privilege – such as discussing the contents of the privilege statement with a third party.

If you need any advice regarding recorded conversations, contact one of our lawyers on 13 58 28.

ALERT: Suncorp Superannuation Customers

By | Superannuation

If you are a Suncorp Superannuation customer, read this article. There has been a significant privacy breach that might include you.

In December 2017, the Federal Government established a Royal Commission into the Banking, Superannuation and Financial Services Industry, which has been holding hearings and receiving evidence throughout the year. As part of this work, the Royal Commission requested information and records from a number of financial services organisations, including Suncorp.

Suncorp apparently sought a formal order or agreement from the Royal Commission that the information provided was not to be published and would remain confidential. The order was granted by the Commission, but for whatever reason information was posted by the Commission on it’s public website on 7 September 2018.

On 8 November 2018 Suncorp discovered the publication and immediately asked the Royal Commission to remove the information, and it was removed.

The publication was an electronic spreadsheet containing Suncorp customer information. The spreadsheet contained the following customer information:

  1. Address;
  2. Phone number;
  3. Email address;
  4. Employment details;
  5. Salary;
  6. Gender;
  7. Date of Birth;
  8. Insurance Status;
  9. Beneficiary nominations;
  10. Superannuation balance.

Suncorp have offered 12 months free access to Equifax’s credit monitoring and identity theft protection services, and have recommended that customers:

  • Consider changing the password to their Suncorp superannuation account;
  • Monitor their Suncorp account, and other accounts and immediately report unusual activity;
  • Contact other financial services to inform them that their personal data may have been compromised.

But is this really enough? If a savvy criminal had accessed that information while it was published – for two months – any number of criminal acts could be committed at any time in the future using the Suncorp customers personal information.

This incident involves a mandatory data breach incident under the Notifiable Data Breach scheme, which commenced on 22 February 2018.  It also involves a likely breach of privacy under the Privacy Act 1988 (Cth). There may be the possibility to make a claim for this breach.

This is not the first time Suncorp have found themselves involved in a data breach. In early 2017 Suncorp wrote to members of the relatively new ‘Brighter Super’ product informing them that Suncorp recently discovered a system error within the Suncorp Brighter Super Website “that made it possible for other members to temporarily view your personal information”.

The personal information included your name, address, date of birth, member number, tax file number and employer information,” the letter said.

We live in a world where information is stored electronically, and if that information gets in the wrong hands people can be significantly affected. You might have read our article that raised our concerns about information privacy with the My Health Record.

If you have any concerns about your superannuation or information privacy please contact one of our lawyers on 13 58 28.

Hunold v Facebook

By | Compensation, Compensation Law

You might have read our previous articles about the effect of social media on personal injuries claims. Our firm recently had the opportunity to see first hand how social media profiles can effectively destroy an otherwise solid personal injury claim.

Our firm acted on behalf of Mr Kris Hunold in a personal injuries claim against the Queensland Police Service. Judgment was delivered on 23 March 2018 (see Hunold v Twinn & The State of Queensland [2018] QDC 43).

Mr Hunold had been out in Surfers Paradise in 2009. At around 4:00 am two unidentified females approached Mr Hunold’s sister and cousin on the footpath and a physical argument began.  Mr Hunold stepped in to assist and protect his sister and cousin when police officer Twinn approached him from the rear, pinned him to the ground, struck and detained him.

Mr Hunold was arrested for public nuisance and alleged he was injured in the process – specifically a fracture of his vertebrae. Mr Hunold claimed the actions of Twinn amounted to an assault and battery.

The District Court found that the actions did amount to assault and battery, and Mr Hunold won his claim.

However, even though Mr Hunold won his claim, the award for damages was a miserly $27,500.00 being $11,000 for general damages, $1,500 for out-of-pocket expenses and $15,000 for past economic loss.

Mr Hunold appealed this decision to the Court of Appeal where he was given leave to appeal the decision, but the appeal was then dismissed (see Hunold v Twinn [2018] QCA 308). The Court of Appeal ultimately agreed with the findings of the District Court.

So how did Facebook effect the claim? In the Court of Appeal decision it was said from the findings of the District Court “her Honour made specific findings that the applicant was not as physically restricted as he had maintained in his evidence, having regard to photographic evidence obtained from his Facebook page. Again, there were nine instances of activity shown by the photographs not consistent with the applicant’s evidence as to the extent of his disabilities.”

During the original proceedings it was submitted on behalf of Mr Hunold that it is difficult to make any real assessment of how a person is truly feeling by looking at what they choose to present to the rest of the world on their Facebook page. In the real world, people do not post pictures of themselves feeling sore or sad, but rather just those moments where they are happiest and enjoying life which might not be all too often. The original Judge was not critical of Mr Hunold living his life, but did find the pictures and videos to be evidence of what Mr Hunold was capable of doing.

If you are in the process of making a personal injuries claim, if you use any social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim, just as in Mr Hunold’s claim.

Had certain photos or videos not been on Mr Hunold’s Facebook page, the award for his damages could have been very different.

If you have started an injury claim you should talk to your lawyer about reviewing your Facebook, or other social media, pages.

We strongly recommend that you bear in mind that the Respondent to your claim, or any future claim, may investigate your social media profiles ,or even your friend’s profiles. Before posting comments, pictures or videos you should bear in mind whether these posts might ‘suggest’ that you are capable of more then you actually are.

Even if your profile is closed to the public, the Respondent may still be able to obtain an Order from the Court for you to disclose the entire content of your social media profile. In Mr Hunold’s case, he was ordered to ‘friend’ the opposing legal representative so that access was unrestricted.

For more information about personal injuries claims or the impact of social media contact one of our injury lawyers on 13 58 28.

Bullying and Harassment at the Ipswich Hospital

By | Compensation, Compensation Law

The Queensland Times newspaper recently published an article suggesting a recent spike in bullying and harassment at the Ipswich Hospital.

This article suggests that 33% of junior doctors at the Ipswich Hospital have experienced bullying, discrimination or harassment at work. This had apparently increased from 9% in 2017 [based on a survey conducted by the Resident Hospital Health Check].

The Logan Hospital came out worse at 37%, and the Darling Downs Health Services were slightly better at 32% for this year.

Across the State, these figures increase to 37.9% on average, but down from 47% the year prior.

The Hospitals adopt a zero tolerance approach to bullying, but this appears to not be enough to stamp out the culture according to this survey.

So if the State figures are reducing, but the Ipswich Hospital has had such a dramatic increase in bullying, discrimination or harassment at work, what is going on, and if you are one of those victims what can you do about it?

Every worker, no matter gender, age, race or occupation is entitled to be free from harassment in their workplace.

You might have options to protect you through the Anti-Discrimination Act 1991 if you are discriminated or harassed because of:-

  1. Gender;
  2. Age;
  3. Race;
  4. Impairment or disability;
  5. Religious or political beliefs;
  6. Sexuality; or
  7. Pregnancy or marital status.

or the Workers Compensation and Rehabilitation Act 2003 if you are subjected to:-

  1. Bullying;
  2. Intimidation; or
  3. Unreasonable management action, taken in an unreasonable way.

Bullying and harassment can be from a co-worker, a manager, or supervisor but is not acceptable in any situation.

Sometimes your employer can be responsible for the bullying or harassment by one of their employees. This is known as vicarious liability.

An employer would not normally be held vicariously liable if they can prove that they took reasonable steps to prevent the harassment. Queensland Health have adopted the zero tolerance policy, but the test is a bit more complicated than just adopting that policy. Something must be done to protect those that care for others.

In some instances bullying and harassment can be easily identifiable, such as, a physical assault that is witnessed by others, however, there are some instances where it is sometimes difficult to prove that bullying or harassment has occurred.

The survey suggests that only 5% of the bullying or harassment that occurred in the Ipswich Hospital was reported, and of those only, 25% were appropriately addressed. 67% of those surveyed feared that there would be negative consequences if they reported the bullying or harassment.

If there is fear of negative consequences, then why would someone report bullying or harassment, but if it is not reported it undoubtedly makes it much more difficult to prove. By not reporting, it allows those bullies to get away with their behavior. It is not tolerated in the schoolyard, so why should it be tolerated in our Hospitals.

If you have experienced bullying or harassment time limits apply.

For complaints of discrimination or harassment, you only have 12 months to lodge your complaint in writing to the Anti-Discrimination Commission of Queensland or the complaint may not be able to be investigated.

For WorkCover claims, you must lodge your application for workers’ compensation with WorkCover Queensland within six (6) months of your injury.

If more than six (6) months lapses between the time of the occurrence of the injury and lodging the claim, the claim may not be granted by WorkCover Queensland without a reasonable excuse for the delay.

If you have the right to make a common law claim for damages you have three (3) years from the date of injury or accident to file court documents or serve a compliant Notice of Claim for Damages or you will forever lose your right to make a claim.

For more information or assistance for bullying or harassment complaints call one of our injury lawyers on 13 58 28.

Join the Drive for Safer Roads

By | Compensation Law, General Information

Every year approximately 1,300 people die on Australian roads. Queensland’s death toll alone accounts for an estimated 300 fatalities. Additionally, over 3,000 people in Queensland are seriously injured in road accidents leaving them disabled, out of pocket and unable to return to work.  Tragically, 90% of all road accidents are easily preventable if the driver was not speeding, under the influence of alcohol or merely paying attention to the road.

A few safety driving tips for when you’re driving:-

  • Switch your phone to silent or flight mode as soon as you get behind the wheel and let everyone know you’re driving ‘phone-free’ and remove pressure to be in contact.
  • Driving tired affects reaction times and impairs judgement. Take a break or don’t drive if you’re tired.
  • Regularly check your speed to ensure you are travelling within the posted speed limit; most crashes happen at less than 10 kilometres over the speed limit.
  • If the weather, traffic or road conditions are poor, you may need to slow down, increase the distance between you and the vehicle in front, and travel below the speed limit to stay safe.

Every person has the right to travel and arrive home safely when using Queensland roads and by being aware, you can do your bit to reduce the chance of an accident. However, as we cannot control other people’s actions while driving, it is important to know what you are entitled to if you were ever to find yourself or a loved one injured, disabled or killed from an accident.

If you or a loved one have sustained an injury in a car accident you may have the right to make a common law claim for damages. In Queensland you have three (3) years from the date of injury or accident to settle your claim or file court documents or you will forever lose your right to make a claim.

For more information about motor vehicle accident claims contact one of our injury lawyers on 13 58 28.

Data Breach

Do you need a Data Breach Response Plan?

By | Business

The Privacy Amendment (Notifiable Data Breaches) Act 2017 was assented to on 22 February 2017 with amendments to the Privacy Act commencing on 22 February 2018.

The passage of the amending Act established the Notifiable Data Breaches (NDB) scheme in Australia. The NDB scheme applies to all relevant agencies and organisations with existing personal information security obligations under the Australian Privacy Act 1988 (Privacy Act) from 22 February 2018. That is an entity that has a turnover (gross) of over three million dollars unless volunteered for the Act to apply.

The NDB scheme will also apply to certain credit providers, credit reporting bodies, and holders of tax file number information.

The NDB scheme introduced an obligation to notify individuals whose personal information is involved in a data breach that is likely to result in serious harm. This notification must include recommendations about the steps individuals should take in response to the breach.

Agencies and organisations must be prepared to conduct a quick assessment of a suspected data breach to determine whether it is likely to result in serious harm, and as a result require notification.

(Serious harm may be constituted by serious physical, physiological, emotional, economic and financial harm, as well as serious harm to reputation and other forms of serious harm that a reasonable person and the entities position would identify as a possible outcome of the data breach.)

 In particular, Australian Privacy Principle 11 requires organisations take reasonable steps to protect the personal information it holds from misuse, interference and loss, and from unauthorised access, modification or disclosure. “Reasonable steps” includes notification of certain data breaches, and having and implementing a data breach response plan.

The first 24 hours after discovery of a data breach are critical to restoring security, minimising harm, obtaining and preserving evidence and complying with contractual and legal obligations. Therefore a relevant entity should establish a Data Breach Response Plan.

A Data Breach Response Plan should provide your organisation with prioritised key steps to take, (i.e. what to do), in response to a cyber incident/data breach and key warnings as to what not to do, as well as identify the type of attacks that could occur, the location of sensitive data stored electronically, and identify the level of protection that assets require from various threats.

Breaches are not limited to malicious actions like theft or “hacking”. They include human error and mishandling of personal information resulting in accidental loss or disclosure. Lost or stolen electronic devices. Employees accessing or disclosing personal information outside the authorisation of their employment, and an organisation mistakenly providing personal information to the wrong person or sending it to the wrong email address. These are just some of the examples of human error that could apply.

For more information or assistance about the amendments to the Privacy Act, or preparing a Data Breach Response Plan contact one of our lawyers on 13 58 28.

Armoured Vehicles

Rheinmetall Defence Australia Awarded $5 billion contract to Build the Next Generation of Armoured Vehicles

By | General Information

It has just been announced that Rheinmetall Defence Australia has been awarded a $5 billion contract to build the next generation of armoured vehicles with some 225 Boxer CRV’s being built in our very own Ipswich, using Australian steel.

It is intended that these vehicles will replace the current Australian Army’s Light Armoured Vehicle fleet, to be used for everything from regional stability and peacekeeping to high-threat operations.

This contract could mean more than 350 long-term jobs, significant opportunities for local SMEs and associated work with an ongoing delivery and maintenance in Ipswich.

There may even be a further stage in the future to construct 450 more vehicles in a $15 billion project.

This news leads us to reflect on the other great industries in Ipswich. With key industry sectors in energy and environment, food and agribusiness, advanced manufacturing, education and training, transport and logistics, property and construction, and defence, Ipswich is home to a broad range of industries that have flourished historically and are poised for substantial growth going forward, particularly with the new military vehicle contract.

Our own firm is based in the historic Queen Victoria Silver Jubilee Memorial Technical College which operated as a TAFE college until 2006, cementing us in a piece of iconic Ipswich history, alongside the CPM Group, Hutchinson Therapy Services, Gibson Architects, the Pumpyard Brewery, Dovetails Restaurant and now to top it all off – Ben Ungermann’s ice cream parlour!

We look forward to Ipswich’s future development and being able to assist all of these industries grow along with our city.

If you have any legal concerns you may wish to visit our website for information relevant to your matter and other legal topics – https://mcna.com.au/

Be our friend on Facebook for future legal updates and information! https://www.facebook.com/McNamara-Associates-141566852640942/.

Sexual Harassment

Sexual Harassment in Your Backyard?

By | Compensation Law, Criminal Law

There has recently been a lot of publicity on celebrities bullying and sexually harassing co-workers….but what can you do if you have experienced sexual harassment in your own backyard?

Every worker, no matter if you work with a celebrity or not, should feel safe from sexual harassment in their workplace.

So what should you do if you suffered from sexual harassment?

Lodge the claim early!!! 

You only have 12 months from the date of harassment to lodge a complaint with the Anti-Discrimination Commission otherwise you will forever lose your right to make a complaint.

The Commission might only accept the claim outside of those times if you have a reasonable excuse for the delay.

Once the claim is lodged, you then need to prove the claim.

Evidence to prove fault

As Queensland has a fault based system, you will need to be able to prove sexual harassment has occurred. This means collecting evidence. To start with statements should be taken from anyone who witnessed the harassment.

Attempt to resolve the claim

Once the complaint has been lodged, the Anti Discrimination Commission will contact your previous employer and the person who harassed you to discuss the matters complained of and to see if they would be willing to resolve the matter informally.

If the matter cannot be informally resolved, the Anti Discrimination Commission will arrange a Conciliation Conference for the parties to meet either face to face, or by way of telephone.

The purpose of the Conciliation Conference is to enable the parties to discuss the complaint and explore options for settlement of the dispute.

If the complaint cannot be resolved then you may elect to commence proceedings through the Queensland Civil Administrative Tribunal.

Get legal advice

In any case, it is important to get legal advice about your particular set of circumstances. Failure to get legal advice could result in you missing compensation you might otherwise be entitled. In some cases, you might even be able to make a workers’ compensation claim.

For more information or assistance contact one our injury specialists on 13 58 28.

Are You a Victim of a Terrorist Act?

Are You a Victim of Terrorist Act?

By | Compensation Law, General Information

On 11 September 2017 we paused to remember the terrorist attack on the World Trade Centre in America in 2001. This marks the 16th anniversary of when nearly 3,000 people were killed.

Remembering this attack also brings to mind that many people were, and may still be suffering ongoing mental health illnesses.

On 21 October 2013 the Australian Government introduced the *Social Securities Amendment (Supporting Australian Victims of Terrorism Overseas)* Act 2012 whereby victims of acts of terrorism of prescribed terrorist acts could have access to a financial assistance scheme.

Unless special circumstances applied, primary victims of those terrorist acts only had two (2) years from the declaration of the schemes operation, 21 October 2013, to make their applications. That time expired on 21 October 2015. Secondary victims only had twelve months, ie until 21 October 2014.

Although it may be too late for primary and secondary victims of Australia to seek financial assistance from this scheme in respect to the World Trade Centre incident in 2001, people can now claim assistance for a number of other acts of terrorism that have been declared. The additional acts of terrorism now include:-

– 2017 Stockholm, Manchester, Baghdad and London (3 June 2017) attacks
– March 2017 London attack
– December 2016 Berlin attack
– July 2016 Nice, France attack
– March 2016 Brussels attacks
– November 2015 Paris attack
– September 2014 Kabul, Afghanistan kidnapping
– March 2015 Tunis, Tunisia arms assault

Primary victims will only have two years from the dates of these attacks to lodge an application for financial assistance. Secondary victims will only have twelve months.

For more information about terrorist act compensation or for assistance in completing the necessary application form please contact one of our injury lawyers on 13 58 28.

Auto-Cessation of Multiple Superannuation Accounts

Auto-Consolidation or Auto-Cessation of Multiple Superannuation Accounts

By | Disability Superannuation

The Australian Government has asked the Productivity Commission to undertake a review of the competitiveness and efficiency of the Australian superannuation system.

One of the proposed measures is the *auto-consolidation or auto-cessation of multiple superannuation accounts. *

We are concerned that this type of measure could prejudice, or harm, many people who hold multiple superannuation accounts. An unforseen consquences of automatically consolidating multiple funds could be the affect on, or at worst the removal of, total and permanent disability insurance.

In submissions to the Productivity Commission the Australian Lawyers Alliance have recommended that auto-consolidation and auto-cessation should be subject to a no-disadvantage test, and should never occur without ensuring that the policy holder is aware that automatic consolidation or cessation is about to occur, what the implications of such an automated event might be, and how they can avoid the automated event from occurring.

At McNamara and Associates, we have assisted injured persons claim on as many as four superannuation accounts. It would be concerning to many people if the proposed measure of auto-consolidation were introduced without something like the no-disadvantage test being applied.

If you require any assistance with any other superannuation insurance matter do not hesitate to contact one of our superannuation lawyers on 13 58 28.

car accident claims

Greedy CTP Insurers Trying to Take Away Your Rights

By | Compensation

Recently Suncorp and RACQ have proposed changes to Queensland’s Compulsory Third Party (CTP) insurance scheme that would see less benefits for injured motorists.

On 17 August 2017 Suncorp and RACQ released a joint statement in which they announce they have joined forces to implore the State Government to address the” rampant rorting of Queensland’s Compulsory Third Party (CTP) insurance scheme”.

These two insurers seem to believe that urgent action is required to make the system fairer and protect Queensland motorists from a spike in CTP premiums, despite the Suncorp Group reporting over a billion dollars net profit in their 2016-17 financial report (increased by $37 million in the year prior).

RACQ’s John Myler said “Despite a steady decline in the number of car accidents, we are seeing a growth in dodgy CTP insurance claims due to people exploiting the system to get cash payouts,”

What RACQ and Suncorp are really asking for is a smashing of rights and benefits for those people who have had the misfortune to be injured, often through no fault of their own.

These insurers want the State Government to introduce defined benefits for low severity claims. This means that if the insurers have their way, an injured person would receive a prescribed amount of compensation for a certain type of injury. Injured persons would lose other compensation such as loss of earnings which is usually the most significant part of their claim.

We share the views of the Australian Lawyers Alliance that the insurer’s defined benefits proposal is driven by their desire for greater profits and fails to recognise that Queensland’s CTP scheme is the best run and best structured CTP scheme in Australia.

Rod Hodgson of the Australian Lawyers Alliance said that “Premiums in Queensland are second lowest in the country and the Queensland CTP scheme provides good access to benefits for those who are injured.”

It is important to acknowledge a number of facts about CTP insurance in Queensland:-

  • In addition to being inexpensive the Queensland scheme has a very low disputation rate, which sees less than 1 per cent of matters commenced go to court;
  • Claims which lack merit are almost nonexistent – if an insurer believes that a claim lacks merit they should do their job properly and dispute the claim;
  • The Queensland courts have a strong track record of supporting only claims which have merit and dodgy claims are not tolerated;
  • Defined benefits schemes are simply insurance company code for “we know best, benefits ought to be less and the courts ought to get out”;
  • A race to the bottom by joining some of those other State’s models is not in the interests of Queensland motorists who can be very proud of our present scheme and how it’s run; and
  • Queensland has long had a strong focus on rehabilitation and this was recently enhanced with changes that see those catastrophically injured from 01 July 2016 having access to not fault coverage.

If you have sustained an injury in a car accident you have the right to make a common law claim for damages in Queensland and you have three (3) years from the date of injury or accident to settle your claim or file court documents or you will forever lose your right to make a claim.

For more information about motor vehicle accident claims, contact one of our personal injury lawyers on 13 58 28.

Facebook Versus Personal Injury Claims

Facebook Versus Personal Injury Claims

By | Compensation, General Information

When you commence an injury claim it is likely that the Respondent to your claim will appoint investigators to investigate the factual basis of your claim, or perform those investigations themselves.

These investigations might range from simply taking statements from witnesses but can be as extensive as conducting video surveillance of you.

It has become all too common for Respondents to perform full reviews of a claimant’s social media profile, whether it be Facebook, Twitter, Instagram, Linkedin, Snapchat, YouTube or any other social media platforms.

We have increasingly seen the Courts make Orders for claimants to disclose not just the public aspects of their Facebook profiles, but also the private aspect that is only viewed by friends.

If you use any of these social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim.

The types of information you may need to disclose may include things like instant messages, text messages, photographs, typed posts and/or videos and audio clips.  However, disclosure could also extend as far as computer system information and meta-data (data contained within an electronic file relating to the identification, origin or history of the file) – although we are yet to see a Court Order for disclosure to this extent.

The meta-data means that even if you deleted posts on social media they can be made available for the Courts viewing.

It is increasingly important that claimants remain mindful of any content that is posted on social media.

The scope of the disclosure that may be relevant is interpreted broadly by the courts.  For example, a document may be relevant precisely because it does not say something when it would be expected that it would. With the example of Facebook, it might be suspicious if you go from a post per hour type of person, to a post per month.

Examples of occasions where a claimant’s claim may be adversely affected by a Facebook or Instagram post are:-

  1. a post of you socialising with friends when you allege to be suffering from depression;
  2. a post of you skydiving when you allege to be suffering from a significant physical injury.

These types of posts may cause your credibility to be questioned.

Claimants have a duty to the court to ensure that they disclose all relevant documents in their possession as well as documents held by others. If you can exercise some control over those documents they are disclosable. This means that if a friend takes a photograph of you and posts that photograph on social media, that photograph may be disclosable.

WHAT IF THE DOCUMENT NO LONGER EXISTS?

You must tell your lawyer if you previously had any relevant documents that have since passed out of your control, been destroyed or have otherwise ceased to exist.  In those cases, the court may order you to file and serve an affidavit stating:-

(a)       that a document does not exist or has never existed; or

(b)       the circumstances in which a document ceased to exist or passed out of your possession or control.

It is a serious offence for a party to intentionally destroy, withhold, conceal, alter or falsify a document that is required to be disclosed.  An individual who commits such an offence risks criminal prosecution.

In consideration of the importance of social media if you have started an injury claim you should give access to your lawyer by adding them as a friend to fully investigate what documents may need to be disclosed in the injury claim.

As for the future, we strongly advise that you bear in mind that the Respondent to your claim may investigate your social media profiles before posting comments, pictures or videos. If your profile is closed to the public, the Respondent may obtain an Order from the Court for you to disclose the entire content of your social media profile.

For more information about personal injuries claims or the impact of social media contact one of our injury lawyers on 13 58 28.

Victim of Crime Assistance

Amendments to the Victims of Crime Assistance Act 2009

By | Criminal Law

By Joshua Brown, Associate, McNamara & Associates Solicitors

In August 2009 the Victims of Crime Assistance Act 2009 came into effect which created a scheme whereby victims of violent crime in Queensland have access to financial assistance and recovery of loss. The scheme provides assistance for not only the primary victim but also a secondary victim such as a parent of the primary victim, another related victim or a witness to the violent event.

On 1 December 2016 the Queensland Government introduced the Victims of Crime Assistance and Other Legislation Amendment Bill 2016. The Bill was passed by Parliament on 22 March 2017 but the commencement date is yet to be confirmed.

Criminal Proceedings Aspect

The intention of the Bill was to enact changes to the Criminal Code, the Evidence Act 1977, the Victims of Crime Assistance Act 2009 and other Acts so that sexual assault victims have better protection for their privacy when discussing the assault with their counsellor, and to provide for giving evidence in court in a pre-recorded form, from a remote witness room, or behind a screen, therefore protecting the victim from the offender.

Changes will be implemented to the legislation, with the insertion of a new section: Protected counselling communications.

The prosecution will not be required to give the accused person a copy of a document if the prosecution reasonably considers the document is a protected counselling communication.

Once the changes to the Act come into force victims should feel much more comfortable discussing the assault with their counsellor.

The introduction of this new protection for victims will enable the prosecution to refuse to provide all relevant evidence to an accused person. For persons who are contesting criminal charges any counsellor’s records that contain something controversial will not be disclosable. If a person makes a personal injuries claim for a sexual assault against an accused, the accused may find it very difficult to obtain copies of the Claimant’s medical records.

Victims of Crime Aspect

The proposed changes to the Act also include allowing access to financial assistance for domestic violence, including the violence that is not physical such as a psychological injury.

Amendments were made to section 5 of the Victims of Crime Assistance Act 2009 which mean that a victim will now also include a person who has suffered harm:-

(a) because domestic violence is committed against the person; or

(b) because the person is a family member or dependant of a person mentioned in paragraph (a); or

(c) as a direct result of intervening to help a person mentioned in paragraph (a).

The definition of crime in section 6 will also be amended to include a domestic violence offence, including an attempt or conspiring to commit a domestic violence offence, but the act of violence will only include an act that directly results in the death of, or injury (either physical or psychological) to, 1 or more persons.  Simply planning to commit domestic violence that does not cause injury will not be enough to satisfy an application for financial assistance.

A victim can only claim if the act of violence or domestic violence has been reported to a police officer, counsellor, psychologist, doctor, or domestic violence service.

There is a further amendment to section 6 (2)(b) which says “it does not matter whether the person who did the act or made the omission has been identified, arrested, prosecuted or convicted in relation to the act or omission”. On occasion an aggrieved party makes an application for a domestic violence protection order without the support of any evidence. The accused will often consent to a domestic violence order without admitting fault purely with the view of avoiding costly and timely court proceedings to defend the allegations. If this occurs, alleged victims have the right to seek victims of crime financial assistance based on what could be unsupported allegations.

The recovery provisions of the original Act remain unaltered, meaning the State can only recover assistance granted from the convicted persons. This means that an accused would only be pursued for the financial assistance if a Court found beyond all reasonable doubt that the offence had been committed.

Other amendments include:-

  • an increase for funeral cost assistance from $6,000 to $8,000;
  • an increase in the special assistance (the lump sum payment on top of the financial assistance and recovery of loss) and removal of a range of payment:-
    • For a Category D act of violence from a range of $130 to $650, now fixed at $1,000;
    • For a Category C act of violence from a range of $651 to $1,300, now fixed at $2,000;
    • For a Category B act of violence from a range of $1,301 to $3,500, now fixed at $3,500;
    • For a Category A act of violence from a range of $5,000 to $10,000, now fixed at $10,000; and
  • removing the pool of assistance for secondary victims (under the original act all related and family victims could only receive a total of $100,000. Once the amendments come into effect all secondary and family victims will be able to apply for up to the maximum of $50,000 each, regardless of how many related or family victims apply).

Domestic violence offences fall within a Category D offence, unless an assault occasioning bodily harm, or more serious injury, occurs from the domestic violence.

Domestic violence is broadly defined and can range from physical abuse, down to something like withholding a credit card, or taking a mobile phone.

The maximum assistance available to primary victims remains at $75,000.00 plus an additional grant of $500 for legal costs incurred in applying for assistance under the Act.

It is important to remember that strict time limits apply to applications for assistance. In Queensland a victim has three (3) years from the incident to commence their application unless exceptional circumstances prevent such application or the victim is under a legal disability, for example a child who is under the age of eighteen (18).

For more information if you are a victim of a crime please contact Joshua Brown on (07) 3812 2300.

Alcohol

Legal Update: Backflip on the new Queensland Liquor Laws – What it means for you.

By | Business, General Information

By Joshua Brown of McNamara & Associates Solicitors

Recently we wrote an article giving you the information you need to know about the new Queensland lockout and alcohol consumption laws.

One of the most significant changes to the law was that from 1 February 2017 the lock out time would be wound back to an earlier time of 1:00am. This meant if you left a venue after 1am, you would not be permitted to re-enter the venue.

Just before those changes to the law were to take effect the Queensland Government announced that they would not proceed with the 1:00am lock out in safe night precincts. Therefore you can still be permitted entry up to 3:00am in the safe night precincts.

The ban on the sale of shots, cocktails and premixed drinks after 12am continues, and instead of the earlier lock out bars, pubs and nightclubs that are approved to operate after 12am will be required to install and operate ID Scanners (by 1 July 2017).

You could find that you are prevented entry to these venues if you have a Queensland Police, or Court imposed ban relating to the premises.

Interestingly enough, the lock out and drinking restrictions do not apply to Casinos (holding a commercial special facility license) if they have an approved application for extended trading hours which will allow them to trade until 5am. The lock our provisions also do not apply on New Year’s Day.

If you have any enquiries about the liquor law or have been charged with an alcohol related offence, McNamara & Associates would be happy to assist.

WorkCover Offer

WorkCover have just sent me an offer for my injury. What do I do now? – Part 2

By | Special Law

Recently we wrote an article giving you the information you need to know about lump sum offers of compensation from WorkCover Queensland. Since the changes to the Workers’ Compensation and Rehabilitation Act 2003 on 30 October 2014 we have observed some practices by WorkCover Queensland that could limit the amount of compensation you receive. As discussed in our previous article at this stage you have probably received an offer of lump sum compensation from WorkCover or a self insurer. This offer has been based on an assessment of permanent impairment by a Doctor.

A permanent impairment is impairment from an injury resulting in:

  • loss of efficient use of part of the body, or
  • loss of part of the body.

For example, you may be assessed as having a back injury with a 4% impairment. The impairment is permanent if your injury is stable and stationary and not likely to improve with further treatment. The percentage of permanent impairment is used to calculate your offer of lump sum compensation.

We have observed that WorkCover Queensland will send injured persons to an Occupational Physician who is generally underqualified to assess significant injuries such as spinal injuries. The theory being that you are given a low percentage of permanent impairment which equates to less compensation. For example, currently for every 1% of impairment you are assessed as having, you receive $3,073.85.

If you disagree with the assessment of permanent impairment you can request a review of the assessment by a second medical specialist or the Medical Assessment Tribunal (unless the Tribunal made the original decision). You only have 20 business days after receiving the Notice of Assessment of permanent impairment to request a review of the decision by the Medical Assessment Tribunal or you are taken to have agreed with the PERCENTAGE of permanent impairment.

At McNamara & Associates, our clients have had success when we have advised clients to reject the offer of lump sum compensation and elect for an assessment by a second medical specialist. This has allowed us to assist our client in selecting a Specialist who is more appropriate to assess their particular injury.

Typically we have found the assessment by the second Specialist will result in a much higher impairment percentage being assessed, which in turn equates to a higher lump sum offer. Even if the impairment is increased by 1%, that means an additional $3,073.85 in your pocket.

If you elect for an assessment by a second medical specialist you still have the option of rejecting the second opinion and asking the Medical Assessment Tribunal to review the injury.

If the Medical Assessment Tribunal has made the decision, you may defer the offer and seek fresh medical evidence to challenge the percentage of impairment if you believe it should be higher.

The lump sum compensation is the initial offer made by WorkCover and is often not a large amount or adequate compensation.

You should seek legal advice before accepting any offers of lump sum compensation as accepting an offer prevents you from making a common law damages claim. You can only accept a lump sum offer OR claim common law damages, not both.

If you do not accept the lump sum offer then the next step will be to lodge a Notice of Claim for Damages with WorkCover and your employer. However  if your injury occurred between 15 October 2013 and 31 January 2015 and your impairment has been assessed as 5% or less you are not entitled to pursue a common law claim for damages.

sexual harassment workplace

Sexual harassment in the workplace

By | Criminal Law

By Joshua Brown of McNamara & Associates Solicitors

Every worker, no matter gender, age, race or occupation is entitled to be free from sexual harassment in their workplace.

Sexual harassment is defined by the Anti-Discrimination Act 1991 as:-

  1. Subjection to an unwelcome act of physical intimacy; or
  2. Subjection to an unwanted demand or request (whether that request is direct or implied) for sexual favours from the other person; or
  3. Subjection to a sexual comment with sexual suggestion; or
  4. Engagement in any other unwelcome sexual conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described above does so:-

  1. with the intention of offending, humiliating or intimidating the other person; or
  2. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Sexual harassment, whether it be a co-worker, a manager, or supervisor is not acceptable in any situation. Sometimes your employer could be responsible for the sexual harassment by one of their employees. This is known as vicarious liability. An employer would not normally be held vicariously liable if they can prove that they took reasonable steps to prevent the harassment. That used to be simply proving that at some stage employees were told that harassment is bad and they were not to do it. The test has now developed into something a bit more complicated.

It is now accepted that a diligent employer will:-

  1. Implement a sexual harassment policy – this policy should have clear and significant consequences for perpetrators of sexual harassment at work;
  2. Regularly train staff about sexual harassment and the policy;
  3. Take complaints seriously and manage investigations well;
  4. Avoid any actions that may be perceived as victimising a complainant. These could include standing down or dismissing a complainant, or demoting or transferring a complainant to another work site;
  5. Treat the safety of workers from harassment as a primary and over-riding duty;
  6. Educate managers about sexual harassment.

Failure to take these actions could result in the employer being held responsible for their employee’s actions.

In some instances sexual harassment can be easily identifiable, such as, a physical assault that is witnessed by others, however, there are some instances where it is sometimes difficult to prove that sexual harassment has occurred or that you, as the employee, were not a willing participate on the conduct.  The Courts have accepted that there are usually three ways in which a person will respond to sexual harassment:-

  1. Ideally, the victim would make it abundantly clear to the perpetrator that the comments are unwanted. Then if they continue, he or she would complain to management. This ideal approach is not always practical and may not be available if the employer is likely to be unsupportive, or to require proof: some employers regard the making of unsubstantiated allegations as a disciplinary matter;
  2. Other employees faced with this problem might try to ignore the comments and hope that they cease;
  3. A further way to deal with it would be to go along with the banter to some extent and that way try to stop it getting out of hand.

If you are successful in proving sexual harassment then you may be compensated for:-

  1. Non-economic loss – for the insult and hurt of the actions, but also included is compensation for any diagnosable injury you may have suffered such as anxiety or depression; and
  2. Economic loss – for any lost earnings you have suffered because of the harassment which can include any past loss but also future loss.

Some of the more prominent cases that have been heard include:-

  1. Nunan v Aaction Traffic Services Pty Ltd[2013] QCAT 565 – where the victim was awarded $102,217.00 for a major depressive disorder and economic loss. The harassment was related to a female traffic controller who was subjected, over a 5 month period, to personal comments and questions of a sexually explicit nature. Ms Nunan went along with the comments hoping they would not get out of hand. She did not complain about the sexual harassment until after she left her employment as she was concerned she would lose her job.
  1. Bell v State of Queensland [2014] QCAT 297 – where the victim was awarded $9,000.00 for an adjustment disorder following her boss asking her to join in a threesome at a Christmas party. There were additional damages for bullying and harassment making up a total of $22,000.00.
  1. McCauley v Club Resort Holdings Pty Ltd [2014] QCAT 243 – where the victim was awarded $35,490.00 for an adjustment disorder following harassment over a three day period in the kitchen area of a resort where the perpetrator said the victim smelt like ‘Old Spice’, called her ‘cougar’ and sniffed, growled and leaned in close to the victim.

Some more recent decisions have been handed down demonstrating an increase in the award for damages resulting from sexual harassment:-

  1. Green v State of Queensland, Brooker and Keating [2017] QCAT 008 – where the male victim was awarded $156,051.00 for a chronic adjustment disorder with mixed emotional features, predominantly anxiety and depressed mood with significant post traumatic stress disorder like symptoms. A significant injury that occurred months after victimisation by a number of co-workers. The injury started developing when the two perpetrators pulled an explicit prank where they tricked the Plaintiff into thinking a ‘sex romp’ occurred in a school’s lunch room, noting the Plaintiff was the cleaner at that school. Props were used which included ladies underwear, condoms, empty bottles of wine and ‘bodily fluids’. It was an elaborate stunt which was ultimately found for be sexual harassment.
  1. STU v JKL (Qld) Pty Ltd and Ors [2016] QCAT 505 – where the victim was awarded $313,316.10 for post traumatic stress disorder and a major depressive illness. The circumstances in this case were that a male employee (onsite caretaker) entered the female complainant’s bedroom (noting she was employed as an onsite guest service agent at a hotel) naked, touched her upper thigh and groin and attempted to remove her underwear.

It is important to note that in most of these cases the employers were found vicariously liable, generally because they did not implement sufficient guidelines and training for sexual harassment.

It is also important to note that time limits apply for complaints of sexual harassment. In Queensland you only have 12 months to lodge your complaint in writing to the Anti Discrimination Commission of Queensland or the complaint may not be able to be investigated.

For more information or assistance for sexual harassment complaints please contact our Mr Joshua Brown on (07) 3812 2300.

Grey Nomads Beware

Grey nomads beware

By | General Information

If you are at that stage in your life where you are looking at retiring and purchasing a caravan, then you should read this.

Under the Motor Dealers and Chattel Auctioneers Act 2014 (the Act) any dealer who is trying to sign you up on the purchase of a caravan is not required under the Act to give you a cooling off period nor are they required to give you any disclosure documentation.

Under the Act a caravan is defined as being a motor vehicle for the purposes of the act. However under section 98 of the Act which deals with cooling off periods and disclosure statements, the definition of used motor vehicle specifically excludes caravan from the definition of the used motor vehicle for the purpose of that section of the Act.

What this means for anyone who is in the market for the purchase of a caravan is that you need to do all of your home work prior to contacting a dealer. You would need to ensure that you have sufficient finance. You would need to make sure what type of caravan you want to purchase. You need to satisfy yourself that you are getting sufficient warranty with the purchase.

If you are unsure about any of these issues, you should consider contacting McNamara & Associates on 13 58 28 to review the contract prior to signing.

Sunsuper Superannuation Policy

Important updates for anyone with a Sunsuper Superannuation Policy

By | Disability Superannuation

On 1 July 2016 Sunsuper launched a new total and permanent disability (TPD) insurance product which they promote “will remove waiting periods for the majority of claims and focus on early intervention, vocational rehabilitation and, where possible, helping members return to work”.

These changes will affect any person with Sunsuper’s Standard Cover where their date of disablement occurs on or after 1 July 2016. If the date of disablement occurs prior to 1 July 2016, then the disability is assessed under the definition that was in force at that date of disablement.

The new definition (for employed members) is:-

(a) You have been continuously unable to perform your occupational duties since the Date of Disablement and remains so at the Date of Lodgement and each Annual Assessment Date (if applicable) solely due to the injury or sickness; and 

(b) You are under the care of, and following the advice and treatment of, a Medical Practitioner; and

(c) Either: 

  1. You have not been required by the insurer to participate in a Rehabilitation Program; or
  2. You have been required by the insurer to participate in a Rehabilitation Program and are fully participating in the Rehabilitation Program to the satisfaction of the insurer*; and

 (d) The insurer, after considering all relevant evidence which is reasonably available to the insurer as at the Date of Lodgement and each Annual Assessment Date (if applicable), including any Rehabilitation Program and any education, training or experience acquired by you up to the Date of Lodgement or Annual Assessment Date (if applicable) then determines in its opinion that you will be unable ever again to be gainfully employed in any occupation for which you are reasonably suited by education, training or experience. 

The key features of the new definition are:-

  1. The current waiting period of 6 months will be removed completely.
  1. There will now be a five year period from the date of disablement to lodge a TPD claim with Sunsuper. You would no longer be eligible to claim for TPD if the claim is not lodged within five years. On the previous definition, there was no limitation period.
  1. On the previous definition if you were accepted as TPD then you would receive a lump sum payment. The new TPD policy will provide an annual payment. The annual payments will be made as 6 payments over 5 years. This will not apply to a person who has a severe injury or sickness. In that case a lump sum will still be paid.
  1. If accepted as TPD you would then need to prove to Sunsuper every year for five years that you are still totally and permanently disabled every year.
  1. A rehabilitation program has been introduced to get people back to work. Failure to participate in the rehabilitation program could result in no TPD payment being made.

These changes do not affect Sunsuper’s Tailored TPD Cover which has the following definition (for employed members):-

(a) You are unable to perform your occupational duties for a period of three consecutive months since the Date of Disablement solely due to the injury or sickness; and

(b) You are under the care of, and following the advice and treatment of, a registered Medical Practitioner; and 

(c) The insurer, after considering all relevant evidence which is reasonably available, then determines that you will be unable ever again to be gainfully employed in any occupation for which you are reasonably suited by education, training or experience.

For Tailored TPD cover the five year time limit will still apply.

We are quite concerned about these changes and how they will effect people who Sunsuper do not believe have a severe injury or sickness but still cannot return to work. The financial pressures that people experience when becoming disabled are difficult enough without the superfund then drip feeding the disability benefits to them.

There is also the concern of being required to prove annually that you are still disabled. We believe this is unnecessarily burdensome requiring a person who has suffered a life changing disability to prove not just once, but six times that they cannot work.

We are specifically concerned with the requirement to be under the care of a Medical Practitioner. What happens in the situation where your doctor says there is nothing further to be done? If you are no longer receiving treatment because you have reached maximum improvement, do you cease to meet the definition?

Our other major concern is how Sunsuper will use the requirement to participate in rehabilitation to circumvent the “education, training or experience” provisions. What is to stop Sunsuper retraining a person in an occupation which they have never had experience, just so they can say they no longer meet the definition?

It seems that Sunsuper are finding ways to avoid having to pay TPD benefits to everyone but those with the most serious of injuries or illnesses.

A possible way around Sunsuper’s new definition would be to apply for Tailored TPD cover, however at what cost? Sunsuper will likely charge much higher premiums for a Tailored TPD policy.

If you have any concerns about your superannuation policy you should seek advice from a financial advisor.

For more information or assistance for total and permanent disability claims please contact our Mr Joshua Brown on (07) 3812 2300.

 

The National Injury Insurance Scheme

The National Injury Insurance Scheme

By | General Information

“At present about half of all people who sustain such catastrophic injuries on Queensland’s roads are not covered by their CTP because they were found to be at fault or no one was at fault,” – The Honourable Curtis Pitt

If you have been injured in a motor vehicle accident in Queensland, the Compulsory Third Party Insurance scheme provides compensation for injuries if your were not at fault for the accident.

In circumstances where an injured person was at fault, or there was no negligent party involved, then that injured person is unable to claim for compensation for their injuries.

Commencing on 1 July 2016, anyone, including those not at fault, and at fault, who sustain serious personal injuries in a motor vehicle accident will receive necessary and reasonable care and support under the National Injury Insurance Scheme.

Eligibility for the National Injury Insurance Scheme

The National Injury Insurance Scheme (Queensland) Bill 2016 applies to a serious personal injury caused by, through or in connection with a prescribed vehicle, if:-

(a) the injury is a result of:-

(i) the driving of the prescribed vehicle; or

(ii) a collision, or action taken to avoid a collision, with the prescribed vehicle; or

(iii) the prescribed vehicle running out of control; or

(iv) a defect in the prescribed vehicle causing loss of control of the vehicle while the vehicle is being driven; and

(b) the incident (the motor accident) resulting in the injury happens in Queensland on or after 1 July 2016.

If you qualify for the National Injury Insurance Scheme Queensland then assistance will be provided so you can undertake your daily activities, maximise your independence, and pursue employment opportunities.

However, you are not eligible to participate in the scheme in relation to a serious personal injury if you have been awarded damages, under a final judgment of a court or a binding settlement, in relation to your treatment, care and support needs as a result of the injury.

Also, you are not eligible to participate in the scheme in relation to a serious personal injury if:-

(a) before the motor accident resulting in the serious personal injury, you suffered from another injury or condition; and

(b) the serious personal injury does not permanently increase the extent of any disability experienced by you before the motor accident.

What is a serious injury?

A serious injury is a life-changing injury that leaves a person with a permanent disability, requiring assistance in their everyday life. Serious injuries include:

  1. Spinal cord injuries
  2. Traumatic brain injuries
  3. Multiple amputations
  4. Severe burns
  5. Permanent blindness

Time Limits

If the application for the National Injury Insurance Scheme is made within 1 year after the motor accident happened (the application period), the agency must accept the application.

If the application is made after the application period, the agency must decide whether or not to accept the application. In making a decision the agency must consider whether it would be fair and reasonable in the circumstances to accept the application, having regard to:-

(a) whether you were likely to be eligible to participate in the scheme; and

(b) whether a claim has been made, or can be made, for the serious personal injury; and

(c) the nature and severity of the person’s injury.

There are also strict time limits that apply to motor vehicle accident claims in Queensland. A Notice of Accident Claim form must be given:

  • if it is to be given to the Nominal Defendant because the motor vehicle at fault can not be identified – within three (3) months after the motor vehicle accident; or
  • in any other case – given to the CTP insurer within the period ending on the earlier of the following dates:
  • nine (9) months after the motor vehicle accident or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury;
  • if you retain a solicitor/lawyer, then within one (1) month of the first consultation with the solicitor/lawyer.

Your claim could be rejected if you lodge outside the timeframes. Early lodgment of your claim will assist in early access to treatment and rehabilitation if required.

In Queensland, you also only have three (3) years from the date of injury or accident to commence proceedings in a Court of law for damages. Should an action not be commenced by this time, you are forever barred from bringing a claim in the future.

Services provided in the National Injury Insurance Scheme

If you qualify for the National Injury Insurance Scheme Queensland then proposed services you can access:

  1. Medical treatment;
  2. Dental treatment;
  3. Pharmaceuticals;
  4. Rehabilitation;
  5. Ambulance transportation;
  6. Care: respite, attendant and domestic assistance;
  7. Prostheses, aids and appliances other than ordinary personal or household items;
  8. Educational and vocational training;
  9. Home or transport modification.

If you have suffered injury in a motor vehicle accident you should seek legal advice as soon as possible due to the time limits that apply. You should also ensure you seek legal advice before settling any personal injuries claim as the settlement may preclude you from being eligible for the National Injury Insurance Scheme.

For more information about the National Injury Insurance Scheme please contact our Mr Joshua Brown on (07) 3812 2300.