What really happened?
Many people have probably seen the headline about a woman slipping over at Coles and getting $90,000. If you are feeling like you should have made a claim for that time you slipped over two years ago in a public place, then consider this:
- The woman slipped over in October 2012, it took four years of lawyers and litigation to get that payment
- The woman was claiming over $1M which included lost wages from when she couldn't work initially, her entire lost wages claim was denied
- Part of that payout would have to be given to the government, to Medicare or the Department of Health, to cover all medical expenses that the government paid. There is no percentage it depends on the actual case, in this case it was estimated at the time of hearing to be $4,200. The Judge did not include this full amount in the damages schedule as he felt it wasn't sufficiently proven, but Medicare will still require that the full amount be paid.
- The woman would have had to pay up front expenses, like the cost of medical reports which are usually more than $2,000 each, over the last four years in order to get to this point.
- The Plaintiff's case was criticised because she was not under the ongoing care of a specialist for her injuries (and therefore the theory goes did not need ongoing care), even though the court accepted as truthful her evidence that she had not been to see the specialist yet as she could afford the fee (per appointment) of $395.
- The arguments over legal costs haven't occurred yet, she may yet need to use some of her pay out to pay her lawyers.
- The legal costs may be substantial and through no fault of the parties, for instance in this case part of the evidence was 'non transcribable' (that is, the recording equipment failed) and so the parties had to have an additional mention at court to try and agree on the evidence that was missing from the transcript.
- There is still time for Coles (or rather their insurer) to appeal.
Personal Injury Law - do I have rights?
The law surrounding personal injury underwent significant changes with the introduction of the Civil Liability Act 2002. The express intention of the new Act, as stated in the Parliamentary readings, was transfer the liability (cost) of injury from the insurance company to the injured party. This was done because the insurance companies promised to lower premiums, which of course has not happened.
In this case the Judge made a finding that the Plaintiff was a credible and reliable evidence, and that the factual witness for the Defendant was 'unduly defensive' and so the Defendant's evidence was discounted. Furthermore the Judge took issue with the medical expert evidence provided by the Defendant (Coles). The Judge found that the injury did indeed impair her ability to walk, sit at a computer, do housework, exercise, and participate in leisure activities, but she failed to lead sufficient evidence in relation to the income lost as distinct from expert evidence regarding the injuries themselves. No doubt part of the reason for this was the cost of providing further expert evidence in relation to lost income. She did not receive any money for lost income, domestic assistance or future economic loss (for instance the inability to do certain jobs because she cannot walk or sit at a computer for long periods of time).
Some rights do remain in relation to personal injury claims, but they are severely limited. You should still seek advise if you are injured, but try to ignore all the newspaper articles suggesting easy money for small injuries.
Was it worth it?
If the woman knew that she would only get $90,000 when she started this legal case would she still do it? Only she can answer that.
The reason that we don't do personal injury matters anymore at Coode & Corry is we found that, given the amount of work and time put in by the client and our legal team, the pay outs were frustratingly low.
We also found that the outcomes didn't really match the level of injury. Some claims where the client was really worse off had lower pay outs because they were difficult to prove, for instance because there was a mental health or a loss of mental capacity element, and other claims where there were obvious but perhaps less crippling injuries like scars would get higher pay outs.
That is not to say that you don't have some personal injury rights, or that you shouldn't get legal advice if you are injured. If we think you have a case we will refer you to a lawyer who can assist you. We are just saying, don't think this women got an easy $90,000. If you invested that same capital (in this case upfront expenses she would have had to pay) and the time with professionals (in this case lawyers and doctors) in just about any other venture, you would make more than $90,000 in four years.