For most Australians their most likely interaction with the law will be via a personal injury claim, whether for a workers’ compensation, motor vehicle accident or public liability claim. For this reason it’s important to have some understanding of the legal terminology used in personal injury claims – so that you can understand the details of your case, what you might be entitled to, and the importance of effective representation by a specialty compensation lawyer.
In this article, we’ll shed light on some of the most common legal terminology used in personal injury proceedings, empowering you with the knowledge to actively participate in the process.
Economic and non-economic loss
These terms are some of the most important used in personal injury cases as they are a critical component of determining the appropriate compensation in a claim.
Economic loss refers to the financial losses incurred as a result of a personal injury, including lost wages, diminished earning capacity, medical expenses (past and future), rehabilitation costs, and any other out-of-pocket expenses directly related to the injury. Most of these are reasonably straightforward to quantify.
Non-economic losses– sometimes referred to by lawyers and judges as ‘general damages’ – covers the non-financial ‘costs’ of suffering a personal injury, such as pain and suffering, loss of enjoyment of life, disfigurement, and emotional distress. Non-economic losses, therefore, are harder to quantify than economic losses and often require extensive medical evidence in order to be awarded.
Threshold Injury
In some Australian jurisdictions, there is a legal requirement known as the ‘threshold injury’ that must be met before a claimant is entitled to statutory compensation benefits or to be able to pursue compensation for non-economic loss.
In NSW, for example, establishing a threshold injury after a motor vehicle accident allows the inured person to claim weekly income support payments, medical and treatment expenses, and domestic and personal care services, for up to 52 weeks after the crash. A person with a threshold injury is considered someone who will recover well with treatment; manage their symptoms independently or with some support, and; return to work or usual activities within a short time. Threshold injuries include:
- soft tissue injury: sprains, strains, and minor muscle injuries.
- threshold psychological or psychiatric injury: Covers emotional distress resulting from the accident.
What is considered a threshold injury varies across states and territories but generally involves demonstrating a certain level of permanent impairment or disability resulting from the injury.
Damages
It can be easy for a lay person to mix up ‘damage’ – the harm done to you in the form of an injury – and ‘damages’, which is the monetary compensation awarded to you if your personal injury claim is successful. The aim of damages is, as best as possible, to restore the injured person to the position they would have been in had the injury not occurred. As outlined above, damages can be categorised as economic (e.g. lost wages, medical expenses) or non-economic (e.g. pain and suffering).
Contributory negligence
In many claims for compensation the insurance company assessing the claim will push back on the person making the claim alleging ‘contributory negligence’. This term refers to injury situations where it’s alleged the injured party’s own actions or omissions contributed to the occurrence of their injury or the extent of the harm they suffered. If the claimant’s contributory negligence in causing their injury can be proved, the damages awarded may be reduced proportionately to reflect their degree of fault or negligence.
Liability
Liability refers to the legal responsibility of a party for causing harm or injury to another. In personal injury cases, establishing liability is a crucial step in determining whether the claimant is entitled to compensation and, if so, from whom.
Negligence
The concept of ‘negligence’ is central to personal injury claims and refers to the failure of a party to exercise reasonable care, resulting in harm or injury to another person. To succeed in a personal injury claim, the claimant must typically demonstrate that the defendant’s negligent actions or omissions directly caused their injuries.
Duty of care
This term has become popular in many areas of society, from healthcare to sport. In essence, the ‘duty of care’ refers to the legal obligation of an individual or an organisation to act in a reasonably responsible manner to avoid causing harm or injury to others. In certain relationships – such as that between a doctor and a patient, or a motorist and other drivers on the road – a duty of care is presumed to exist. When proving the negligence of one party in causing injury to the other party, establishing that the claimant was owed a duty of care by the defendant is a key element.
Mitigation of damages
‘Mitigation of damages’ refers to the legal principle that an injured party has a responsibility to take reasonable steps to minimise their losses or prevent further harm resulting from the injury. Failure to mitigate damages can potentially reduce the amount of compensation awarded in a personal injury claim.
Statute of limitations
There are important deadlines to observe in any compensation claim, many of them set down in legislation. One of the most important is referred to as the ‘statute of limitations’ – a legal time limit within which a personal injury claim must be filed. If you compensation claim is not initiated within this timeframe, you can be barred from further pursuing the claim. The statute of limitations varies across Australian states and territories, typically ranging from one to six years, depending on the circumstances of the case.
Discuss your case with our specialist compensation lawyers
By familiarising yourself with these common personal injury claim terms, you’ll be better equipped to understand what is involved if you’ve been injured and believe you’re entitled to compensation. This is useful because when you engage compensation experts like our professional team at BPC Lawyers, you are instructing us to act on your behalf. Thankfully, we deal with the complexities of personal injury law every single day and can help guide you to a successful outcome. Contact us today if you need advice on making a personal injury compensation claim.