If your injuries have been assessed as non-minor and you weren’t the driver at fault, you’re entitled to make a common law damages claim for a lump sum. A lump sum claim is the only way to get support beyond 24 months after your accident, and these lump sum payments can be substantial.
But before you lodge your claim for a lump sum, take some time to understand how the lump sum claim process works, to make sure you give your application the best possible chance of success. Then, when you’re ready, follow our step-by-step guide to lodging a lump sum claim.
Many injuries get worse over time, and psychological injuries can take some time to develop. So if you believe your condition has worsened or you’ve developed symptoms of psychological injuries, you should consider lodging a common law claim for a lump sum. For example, you may have suffered a minor whiplash injury, however the pain medication you have been taking has started to cause you digestive issues, which are regarded as non-minor.
Please call our free advice line if you believe your injuries have deteriorated and you would like them to be re-assessed.
Even if you’ve previously lodged a dispute with the DRS on your statutory claim, and it was ruled against you, if your injuries are re-classified as non-minor then you can still lodge a lump sum claim.
Understanding the two types of lump sum payments.
Common law damages for a lump sum include compensation for:
- Future income loss; and
- Pain and suffering.
Future income loss is a mathematical calculation that determines your loss of earnings or reduced ability to earn income due to your injuries, right up until the date of retirement.
For example – if you can only work 20 hours a week because of your injuries, and you used to work 40 hours, your lump sum could include an amount to cover 20 hours a week in lost earnings for the rest of your working life.
Please note however that this calculation is not an exact science and is open to much debate and interpretation. To give yourself the best possible chance of success, you should talk to a specialist CTP lawyer before you lodge your common law damages claim for a lump sum, or if you disagree with the insurer’s decision on the value of your future earnings.
A lump sum for pain and suffering is to compensate you for reduced quality of life. Only a person with a whole person impairment of more than 10% can claim for pain and suffering as well as income loss. This is a little harder to quantify, and if you plan to claim pain and suffering it’s a good idea to seek legal advice first.
Future lost earnings.
Here’s an example of how a future lost earnings lump sum claim could run.
Joe was 42 when he injured his back in a car accident that wasn’t his fault. He had been working as a carpenter for almost 20 years. He had twelve weeks off work for medical treatment and rehabilitation, then could only return to light duties, four days a week, because of the back pain brought on by working. His average earnings had been $1500 a week.
Firstly, the twelve weeks Joe had off for medical treatment and rehabilitation will be paid to Joe as part of his statutory benefits at 95% of his pre-accident earnings. So his past lost earnings are:
12 weeks off work @ $1500 per week @ 95% = $17,100.
However, Joe will be able to claim a further lump sum to cover the reduction in his future earnings capacity. Based on a retirement age of 68, Joe’s future lost earnings are:
1 day a week x 18 years = $280,800.
Please note that that this is a basic formula and the final calculation is more complicated, indexing Joe’s earning for inflation and also taking into consideration the severity of the injury. But we have used this as an example to illustrate the basis of how lost earnings are calculated.
Pain and suffering.
Lump sum payments for pain and suffering are based on a fixed scale that specifies how much compensation you’ll get depending on the injury you’ve sustained.
However, in most cases the actual amount you receive will be reduced depending on the extent of your injury, on a sliding “partial” scale. For example, the scheme provides a substantial payment for the loss of use a limb, so if you’ve suffered a partial loss of use, the payment will be reduced accordingly. This is where it gets very subjective, and a specialist CTP solicitor will argue your case based on what’s reasonable and get the best outcome for you.
The biggest mistake you can make is to submit your own common law claim for pain and suffering and simply accept the insurer’s decision – if you do, you’ll almost certainly be a lot worse off than if you have a solicitor arguing your case. Keep in mind that your solicitor’s fees will be paid out of your settlement, so as long as the solicitor caps their fees at a reasonable rate you’ll be better off financially.
Lodging your claim.
If you’ve looked at the SIRA website or any of the insurers’ websites, you may have noticed that there’s very little information on how to actually lodge a common law damages claim for a lump sum, and no information on how to increase your chances of success.
We’ve taken the best tips from our CTP specialists and summarised them into one article – so if you’re ready to proceed with a claim, you can follow our step-by-step guide to lodging a lump sum claim.
Lump sum compensation payments can be substantial, so it’s important to understand your entitlements and make sure you don’t miss out.
– Adrian Pin, Managing Director of Australia’s largest specialist personal injury law firm.