What is a catastrophic injury claim?
These are claims usually involving a combination of very serious injuries and can involve a traumatic brain injury, a spinal cord injury and/or permanent loss of function affecting vital organs, requiring often intensive and sometimes 24 hour lifetime care.
These claims are not limited to a particular injury type and can occur in the context of a work injury, a transport accident injury, a public liability claim, a medical negligence claim or even as a result of being a victim of a severe assault. The benefits and entitlements available to a client suffering one or more of these injuries can vary greatly, depending upon whether the injuries were sustained in the context of a medical negligence event, a work accident, a motor vehicle accident/TAC claim or in a public liability context, eg. catastrophic injury sustained in a fall.
The benefits available where the injuries are sustained in a transport accident or work injury context are governed by the no fault legislation under the TAC and WorkCover schemes under which medical, rehabilitation and care costs are provided on a no fault basis. The injury will almost certainly result in very substantial no fault impairment benefit claims and, in cases where the injuries were caused by the negligence of the employer, another driver or at fault party, then substantial common law damages can also be paid. See our pages on WorkCover and TAC claims for more information on impairment benefits and common law damages entitlements. The only major difference is that the entitlements would be substantially greater for a catastrophic injury claim and, for example, a single injury claim.
Where a catastrophic injury occurs in a public liability, medical negligence or serious assault context then the only compensation entitlements available are common law entitlements, which can only be accessed where you are able to prove negligence or fault on the part of another party. This test does not apply to common law claims against the perpetrators of assault, whether they be physical or sexual, but in the cases of claims against individuals, from a practical point of view, you need to establish whether the perpetrator has assets which could meet a common law damages award or settlement. There is no need to prove negligence either in terms of a claim against an individual perpetrator. Negligence does need to be proved in the case of a claim against a government body or religious institution, in terms of sexual assault claims, and in that regard see our page on these claims.
Specifically, where the injuries are sustained in a medical negligence or public liability context, in addition to proving negligence, in order to recover damages for pain and suffering you would need to establish that your injuries met the “significant injury” threshold under the Wrongs Act. In almost all, if not all, cases given the threshold is relatively low (5% or 6% for physical injuries and 10% for psychological injuries) it is highly likely that the injuries would meet that threshold.
What entitlements do you have?
Again, for injuries sustained in a work or transport accident context, apart from lump sum compensation, the medical, rehabilitation and care etc. costs are governed by the TAC and WorkCover schemes and the legislation governing those. In most cases, applications for approval must be made for particular benefits. We are experts with such claims and could assist with all aspects of those.
If the injuries are sustained in a medical negligence or public liability context, where a common law claim is required, the compensation is largely not governed by legislation, although there are some caps on damages, for example, for pain and suffering and loss of earnings and loss of earning capacity, there are largely no limits on damages for medical, rehabilitation and care costs. There are some limited tests or caps on damages but in catastrophic injury cases these caps or tests often don’t apply.
It is important in these types of common law claims for all injuries, disability and impairments to be assessed by obtaining clinical notes and reports from a person’s treating doctors and then detailed specialist opinions and reports regarding the nature and extent of the injuries and their effect on a person’s life, including their ability to work, if applicable, travel and on activities of every day living, as well as their medical and rehabilitation treatment and service needs.
It is very important to obtain an opinion from an occupational therapist specialising in catastrophic injury cases and for them to provide a detailed report on the client’s current and future needs, usually for the remainder of their lives. These costs alone amount to millions of dollars aside from any loss of earnings/loss of earning capacity and pain and suffering claims and must be assessed very carefully. A common law claim only gives the client one opportunity to claim compensation for these costs and future needs and accordingly it is essential that all aspects of a person’s life and future needs are assessed very carefully, including the nature and frequency of those and, most importantly, the current and future cost of those.
These needs can include, but are not limited to, medical treatment needs, including the cost of seeing a specialist, medication costs, hospital and surgery costs, allied health costs (including psychologists, speech therapists, dieticians, physical therapists) as well as home, vehicle and work modifications, equipment and rehabilitation aids (as applicable), needs for a person’s education if the client is young and still at school, disability needs, including disability access or assistance may be required to enable the client to travel both on an everyday basis and on holidays, an assessment of the specific treatment needs where treatment is required on a life long basis. All the costs and potential costs must be assessed now and into the future for the person’s entire life, as well as collecting and collating all past treatment, rehabilitation and care costs. A careful assessment needs to be made of the client’s work capacity and likely substantial loss of earnings and loss of earning capacity for the remainder of their potential working life. Again these claims can be very substantial. Vocational assessments often need to be conducted to assess this loss. Assessments also need to be made of the cost of financial advise and investment of often very large awards of damages for the balance of the person’s life. Financial advice and management costs can be substantial and need to be included in the claim. Assessments also need to be made of a client’s mobility and use of every day items such as mobility or walking aids (eg. wheelchairs), their bed, seating and ability to eat and drink. Often hands on care is required or at least rehabilitation aids and tools, all of which must be carefully assessed. Often special clothing is required, such as special shoes and other devices. A claim can also be made for the actual cost of care which, in some cases, can be 24/7 care and often many hours of hands on care a week, either at home or in a hospital or residential care context. A claim can also be made for the commercial cost of services provided by friends or family members and although this may not cost the client any money specifically, a claim can be made for the commercial value of that care, known as a gratuitous care claim and, again, this can amount to very substantial compensation.
All of the entitlements must also carefully take into account that often there may be very substantial liabilities to be taken into account in the claim, such as reimbursement to Medicare, private health insurers, NDIS, Centrelink and even private income protection insurers where the client has utilised such a policy. Often these liabilities and reimbursements can amount to hundreds of thousands of dollars and must be included in the claim to ensure the client does not lose large amounts of the compensation.
Saines Lucas are experts in such claims and have conducted several claims, including one particular claim which resulted in the highest award of damages to an individual in Victorian legal history of $20,000,000.00. We are experts in ensuring that no aspect of these very complex claims is missed and we ensure that you are fully informed of all your rights and entitlements.
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