Synapse - reconnecting lives

When another party has caused an injury through negligence there may be grounds for making a claim for compensation. 

NOTE: This fact sheet only provides general information relevant to Australia - consult a solicitor in your state or country for accurate legal information. 

Can I make a compensation claim?

A case for making a compensation claim is usually based on:

• your injury was caused by someone else's negligence or carelessness
• this injury has caused you pain and suffering
• this suffering will continue into the future. 

There may still be grounds for a claim even if you were partly at fault for the traumatic brain injury (TBI). Examples of claims include:

• an employer with poor or inadequate workplace practices
• The driver of a motor vehicle who caused your injury
• A property owner whose negligence caused your injury
• A health professional providing the wrong diagnosis or treatment 
• The manufacturer and/or distributor of a faulty product. 

Changes due to the National Disability Insurance Scheme

There will be an impact on compensation claims due to the National Disability Insurance Scheme (NDIS) being introduced across Australia. The scheme has a "no-fault" basis which means people with a substantial and permanent disability will receive financial support to re-establish their lives after an injury, regardless of who was, or wasn't, at fault. Contact the Brain Injury Association in your State for updates on this issue, and consult a solicitor for detailed legal advice. 

What can you claim for?

In many cases you can claim for pain, suffering and expenses both in the past and anticipated into the future. Examples include:

• Loss of income
• Medical, pharmaceutical and travel expenses
• Care from professionals, carers and family members
• Compensation for pain and suffering
• Home alterations, modifications to your car
• Vocational retraining
• Trustee fees and charges.

Most Australian states, including Queensland, have placed restrictions on the amounts that can be claimed for pain and suffering, economic loss, and care. It is often difficult to calculate what the amounts payable are, so you should consult a solicitor to ensure that you can claim the maximum amount available to you.

Are there time limits for making a claim?

There are strict time limits in making a claim for damages that vary from State to State. If you miss that time limit, you may be precluded from making a claim forever. In most States of Australia there is legislation that requires an initial notice for a common law damages claim to be lodged with an insurer within much shorter time frames. 

To avoid losing the right to claim, a solicitor should be consulted as soon as possible after any incident that leads to a traumatic brain injury. 

Keep records

People claiming compensation should keep a careful record of all expenses, reports and emails relating to the injury. Make sure you take notes after conversations with relevant professionals and specialists. Keep a diary of visits to medical or therapeutic services.  Proof of loss of projected earnings can be more difficult for self-employed people and it is wise to keep a record of any work that would have been obtained had the accident not happened.

Choosing a solicitor

Most solicitors will give free preliminary advice regarding the prospects of success. Many solicitors work on a "no win no fee" basis in personal injury claims. The quality of legal representation can have a serious impact on the amount of compensation awarded. Your nearest Brain Injury Association should have a list of solicitors who specialize in brain injury. 

Legal action takes time

It may be a long period of time before settlement so don't stop keeping records and receipts. Be prepared for a long and frustrating legal process and try to stay positive and focus on everyday life, not the legal process. 

Victim of crime?

In some States of Australia there is support provided in terms of counselling, financial assistance and compensation available where an injury has been caused directly by a criminal act. Check with the Brain Injury Association in your State for further information.