A head injury encompasses any damage done to the head — from minor soft tissue cases to skull fractures and life-threatening brain injuries. Brain injury is sometimes referred to as an “invisible disability” because there’s often no outward sign of impairment. Because of the intricacies of the brain and nervous system, milder forms of injury such as a concussion are easily missed. Even more complex injuries can be overlooked by health professionals.
Getting a head or brain injury is a serious matter that affects more people than you may realise. In 2019, an estimated 1 in 45 adults suffered a brain injury according to Synapse. Anyone who’s experienced a head injury — whether from an accident at work, whilst driving or due to a breach of medical duty of care — should consider pursuing injury compensation.
In this article, you’ll learn how to start a head injury claim.
Do I have a head injury claim?
What constitutes a compensable head injury varies but there are commonalities to be found in successful claims. One point that must be met is that the injury was the result of another’s negligence or fault. For example, you would not qualify for compensation if you hopped a fence and hurt your head, but you could claim negligence if a doctor missed clear signs of a stroke that affected your brain function.
Common head injuries claimed by those in head injury accidents include:
- Concussion: Occurs when the brain connects with the skull suddenly and forcefully.
- Cuts and wounds: Occur when objects penetrate the skin and cause cuts or deep wounds.
- Diffuse axonal injury: Occurs when the nerve fibres, axons, are disrupted at the cellular level, most often from severe acceleration-deceleration and rotational forces.
- Coup-contrecoup brain injury: Occurs when the brain is injured in one place (coup) that results in damage to another area (contrecoup).
- Skull fracture: Occurs when the skull breaks from high impact, and is often accompanied by a concussion and contusion (bruise on the brain).
Traumatic vs non-traumatic brain injury
A traumatic brain injury (TBI) is a type of acquired brain injury (ABI) where damage is done by an outside force. In many cases, traumatic brain injuries can be the result of a head injury that occurred:
In all of these situations, you may be entitled to compensation.
Acquired brain injuries (which refers to an injury that occurred after birth) also includes non-traumatic brain injuries. In these cases, the injury is a result of damage caused by internal factors such as a heart attack, stroke or an aneurysm.
Non-traumatic brain injury due to medical negligence
There are circumstances where you are under the care of a medical professional and their negligence results in a brain injury. Certain infections like meningitis or toxoplasmosis are easily treatable and detectable, but a negligent hospital staff member could miss it, leaving you or a loved one with a severe brain injury.
In these cases, compensation can help cover:
- Loss of income, both past and future.
- Medical bills.
- Homecare assistance and household help.
- Home modifications.
- Pain and suffering.
It’s notoriously difficult to win the full compensation you are entitled to if you try to handle these types of cases on your own due to the complex nature of making a claim. Gerard Malouf & Partners (GMP Law) can handle the case for you by gathering evidence from trusted medical partners and navigating you through the entire claims process.
What is the average head injury compensation in Australia?
A critical — or even minor — head injury can disrupt everyday life, from sleep to mechanical functioning. But how much compensation are those with a mild head injury or catastrophic circumstance entitled to in Australia?
The payout for a head injury depends on the severity of the damages.
Safe Work Australia reported that in 2019-2020, a total of 120,355 serious injury claims were filed nationwide, and 4% were head injuries. The median payout for one working week was $11,500 for women and $14,500 for men during that year. While accurate, the numbers from the State Insurance Regulatory Authority (SIRA) in NSW paint a different compensation picture. SIRA reported paying $72,468,602 for a total of 3,218 head injury claims — an average of $22,519.76 monthly per case as of October 2022.
Talking with a head and brain injury lawyer can help make sense of what head injury compensation is possible for your situation.
How are payouts influenced?
Payouts are influenced by individual circumstances such as the state’s laws governing personal injury compensation caps, the seriousness of the injury and whether or not negligence can be claimed. Payouts for negligence claims tend to be higher than for no-fault claims. Let’s look a bit closer at how brain injury compensation calculations vary by state.
There are four avenues for brain injury compensation:
- No-fault claim.
- Personal injury claim.
- Workers compensation claim.
- Public liability claim.
These claim types cover specific situations that lead to the accident such as a car accident, a slip and fall or medical negligence.
Payouts for an acquired brain injury (ABI) compensation claim include either weekly benefits or a lump sum payment. This means that a person who suffers a traumatic brain injury at work or from a car accident can file a claim for medical treatment, rehabilitation, home care and income support with their local third-party insurance company. This type of no-fault claim is supported by the National Disability Insurance Scheme.
Although there’s no national accident law in Australia, coverage of an accidental injury is a federated effort promoted by the government. Head injuries are a recognised priority for lawmakers, employers and other stakeholders.
State-specific compensation laws
Consider the following brain injury claim scenarios for Queensland, Victoria and New South Wales (NSW).
A resident of Queensland sustains a skull fracture in a motorcycle accident. They can file a claim with a compulsory third party (CTP) scheme for motor vehicle accidents regardless of who was at fault for the incident. In Queensland, they could also file a no-fault claim under the National Injury Insurance Scheme Queensland for costs related to caring for a traumatic brain injury.
Similarly, a resident of Victoria sustains a minor brain injury from a car accident. That person can file a common law claim for damages. According to the Transport Accident Commission, injury compensation is contingent on proving negligence. Additionally, there are common law compensation caps including a pain and suffering maximum of $591,910.
A worker in NSW falls and suffers a concussion. They can file a claim for weekly benefits covering past and future loss of earnings and medical treatment with SIRA. In addition, they could lodge a work injury damages claim of employer negligence. Such a claim can either be settled, mediated or go to court. The level of compensation in NSW is limited to 95% of your pre-injury average weekly earnings (PIAWE).
Should you have any questions about the level of compensation you may be entitled to, consider reaching out for legal advice from a specialist in personal injury law for a case assessment.
How to make a successful head injury claim
To make a head injury claim, you must collect evidence proving you have suffered loss as a result of another party that was either at fault or guilty of negligence. Whether you believe your baby’s brain injury was a product of medical negligence or you’re filing a worker’s compensation brain injury claim, evidence is necessary.
- Medical records will help prove that a brain injury exists, the prognosis and even the link to the cause of the injury.
- Accident reports will offer insurers or the court proof of where the injury occurred. After an accident on the road or at work, you will need to notify the necessary authority members like the police or your boss directly following the accident.
- Medical bill records will prove how much money you’ve spent on the injury so far. These documents will help determine the amount of compensation you’ll likely need.
- Witness reports can help support your claim as well. If you can get a report from someone who was at the scene of the accident, this can further prove your need for compensation.
Your legal representation can do a lot of this groundwork on your behalf so you can focus on recovery.
Where can I go for help with my compensation claim?
Brain Injury Australia (BIA) is a clearinghouse of information on ABI if you’re looking for more information on your injury. Synapse also is a wealth of information for those seeking an understanding of the full process of brain injuries from diagnosis to compensation and beyond.
Seeking legal advice as soon as possible is your best chance to make a successful compensation claim. GMP Law has the resources and expertise to help you achieve the best possible outcome for your case. Contact us today to get started and learn more about your options as a brain injury survivor.