Spinal cord injuries - compensation avenues in Queensland

NIISQ

NIISQ stands for the National Injury Insurance Scheme, Queensland. It’s a Queensland Government run program. It’s designed to give benefits to people who suffered serious personal injury in a motor vehicle accident. The relevant legislation which governs the scheme is the National Injury Insurance Scheme (Queensland) Act 2016

This is a no-fault system. In other words, even if you were the driver and you caused the accident, you can receive benefits through NIISQ.

NIISQ doesn’t pay lump sum damages. Benefits received are in the form of treatment, care and support which they fund.

For spinal cord injury victims, NIISQ provides the following supports (by way of example):

• medical treatment and pharmaceuticals. For example, GP consults, surgery, diagnostic imaging such as radiology, pain management. Pharmaceuticals include prescription and over-the-counter medicines, medical devices and vitamins/supplements
• dental treatment. This can include a wide range of services including oral and maxillofacial surgery, prosthodontics, radiology, replacement of dentures and so on.
• home modifications, for example home automation such as automatic opening and closing doors
• motor vehicle modifications, such as wheelchair related modifications
• rehabilitation. The scope of available supports is very broad, for example: audiology services, dietetic supports, formulated food and feeding supports, exercise physiology, occupational therapy, optometry, podiatry, physiotherapy, psychology
• ambulance transportation
• attendant care: personal hygiene (showering, grooming), toileting, meal preparation, in and out of bed transfers and a range of other services. These also include in community support such as attending medical/therapy appointments, support during recreational activities
• domestic assistance services such as meal delivery, cleaning, dishwashing
• home and garden maintenance
• aged care services including for younger people in residential aged care
• assistive products and consumables (for example power wheelchairs)
• vocational and rehabilitation support such as resume writing, educational support

If you are eligible to NIISQ benefits, please note you may be able to also bring a common law damages claim (i.e. a CTP claim). This is in addition to receiving NIISQ supports. There are some important timeframes to make certain critical elections, which we deal with below.

CTP claim after a motor vehicle accident

A CTP claim can be made after a motor vehicle accident which occurs in Queensland. The claim is made against the CTP insurer of the at fault-driver. The legislation which governs the claim is the Motor Accident Insurance Act 1994.

The claim is for lump sum damages paid at the end of the claim process.

A CTP claim is a fault based claim. It’s available if the accident was at least partially somebody else’s fault. For example the person at fault may be:

• driver of another car
• driver of the car in which you were a passenger

If the accident was caused by someone else, but you were also negligent, you can still make a claim. This situation is known as contributory negligence. It means the damages award will be reduced by a certain percentage to take into account the extent of your negligence.

You can make a CTP claim even if the at fault person was driving an unregistered vehicle – but strict timeframes apply.

You can also make a claim even if the driver was a family member or a friend. Say the driver was your spouse. You can still claim damages, because you make the claim against the CTP insurer.

The insurance coverage is unlimited.

It’s important to understand that making a CTP claim is not the only available option. For example, in addition to making a CTP claim, you can also claim supports through the NIISQ. There are important timeframes which apply.

Workers’ compensation

You can claim through workers’ compensation if the injury happened at work. The relevant legislation which governs the claim is the Workers’ Compensation and Rehabilitation Act 2003.

The way in which a workers’ compensation claim works is this:

• in the first stage, WorkCover Queensland progressively supplies your medical treatment, care and support needs. For example, hospital treatment, aids and equipment such as a wheelchair, occupational therapy and so on. This part of the claim is a no fault system. These services can continue for an interim period of for life. Importantly, this is not a lump sum payment. This services provided in this first stage of the claim are very similar to those which NIISQ provides (see above) – in fact the workers’ compensation insurer can get the NIISQ agency to provide these services
• In addition to the above, if the accident was caused by someone’s negligence, you can bring a common law damages claim. This will made against WorkCover Queensland and the employer – but damages are paid by WorkCover. This part of your claim is fault based, and it’s for a lump sum payment.

The benefit in bringing a common law damages claim is that you receive significant extra payments. These are for:

• Pain and suffering
• Your loss of income – from the accident through to retirement age
• Loss of superannuation
• Cost of medical, rehabilitation and other out-of-pocket expenses

In addition, you may have the option to convert the treatment, care and support which WorkCover provides into an additional lump sum payment.

Public liability claim

If the accident happened in a public place (say for example at a hotel venue) then you can bring a public liability common law damages claim. It’s important to understand:

• this is a fault-based claim
• the claim is made against the at-fault party’s insurance company
• if the claim is successful, you receive a lump sum damages amount
• because the claim is made against the at fault party’s public liability insurance company, the available insurance coverage is not unlimited – though in many cases the available insurance coverage is sufficient.

One of the challenges in a public liability claim is that damages are paid at the end. The question is, how do you receive the necessary supports during the claim? There may be several options:

• you may be able to receive benefits through your super or TPD insurance, which provides funds for at least some medical treatment, care and support
• benefits may be available through the NDIS
• if there are more than one negligent parties, then you could make multiple claims running parallel to each other. For example, in some situations both your employer and a third party are negligent. In a case like this, you could make a public liability claim against the third party, and also a workers’ compensation claim against the employer and thereby immediately access medical treatment, care and support through the workers’ compensation insurer.

Damages

If you make a common law claim (whether a CTP claim, through WorkCover or public liability), the damages amount will likely be very significant. It will include the following (by way of example):

• pain and suffering: this amount is paid for the pain and suffering which you have and continue to experience due to your injuries
• loss of earnings: this is calculated from the date of accident, all the way to retirement age. Complex calculations are involved particularly for injured children and your people whose entire working life would still have been ahead of them
• lost superannuation contributions, which you would have earned on top of your income
• the value of care which you require, including care provided to you by friends and family
• the cost of various aids and equipment
• the cost of medical treatment, medication, allied health services
• for children and people with no legal decision making capacity: fund management costs to look after and protect the damages amount

NIISQ preservation notice

If your injury occurred in a motor vehicle accident, and someone else was at fault, you can receive benefits from NIISQ and also claim damages from the at fault driver’s CTP insurer. NIISQ benefits are provided continuously, while CTP damages are paid in one lump sum. For example, NIISQ would pay medical treatment costs as they arise, whereas your loss of income is paid and calculated as a one off lump sum damages amount.

If you don’t want to rely on NIISQ for funding of treatment and supports, you may have the option to convert these benefits to a lump sum damages payment. In this situation, experts calculate the total cost of your lifetime treatment, care and support needs, which you could then receive in one lump sum (in addition to other damages you receive as part of your CTP claim.)

It’s important to understand that if you want to exercise this option, you have to give a preservation notice to NIISQ and the CTP insurer. It’s called a preservation notice because you preserve your right to decide at the end of your CTP claim whether to convert your treatment supports into a lump sum payment, or whether you stay with NIISQ for these services. You only   have a very brief period of time to give this preservation notice. Consult a lawyer before you bring a CTP claim so that you don’t miss the chance to give the preservation notice.

You might be wondering, which is better: stay with NIISQ so they keep funding your treatment, care and support needs, or alternatively, convert this into one lump sum. This is a significant issue. Each person’s situation needs to be considered on its own merits. There are several considerations:

• if you stay in the NIISQ system, you remain completely dependent on them. They have wide discretion in approving funding for various services. We don’t know how they will approach things in 10 years’ time, and whether it will be difficult to secure funding for things you need, or whether the system will run smoothly.
• If you convert to a lump sum, the money has to last for a lifetime. (And prices for services go up.)
• If you receive a lump sum amount, you need to be able to manage the money to make sure you don’t lose it.
• Your condition may change over time which means you may require more or less services as time goes on.

Claims by children

A particularly tragic situation is when children suffer life-altering injuries.

You should know that all of the compensation avenues discussed above are available for children.  There are some unique considerations with respect to claims made on behalf of children:

• children need a litigation guardian to make a claim. In most cases this would be a parent. The parents then engage a lawyer to act on behalf of the child.
• claims on behalf of children may take longer. There are a variety of reasons for this, but basically it takes more time to work out the appropriate amount of damages as well as a child’s lifetime needs.
• the time limit to make certain claims are different than for adults.
• depending on when the matter is resolved, the settlement may need to be sanctioned by the court. In other words, a judge would review the settlement and then decide whether to approve it. This is to ensure that the terms of settlement serves the child’s best interests.
• it may be necessary to employ a fund manager to look after the damages amount – at least until the child attains the age of 18. This is expensive, and the costs should be added to the settlement.

Parallel claims

Some of the compensation avenues listed here are available in parallel with each other. For example:

• You can receive benefits from NIISQ and make a CTP claim
• Your injury may have occurred in circumstances where both your employer and a third party were at fault. You could make both a workers’ compensation claim and a public liability claim

It’s important to explore all available avenues and to claim from all potential sources. You may be eligible for an increased lump sum damages amount. In addition, you may be able to recover more for your legal costs.