Legal Issues - Fact Sheet
In addition to the medical consequences arising from acquiring a brain injury, a person with brain injury and their family may be confronted with a variety of legal issues.
Because every person’s situation is unique, and because the law is different in each State, it is important to consult a solicitor to obtain legal advice that relates to your particular circumstances. The following is a general guide to the legal issues around acquired brain injury. Please note that this fact sheet is relevant to Queensland, Australia. For accurate legal guidelines in other areas, please contact your local Brain Injury Association.
Compensation and injury claims
A person who acquires a brain injury may be entitled to compensation for loss or damage sustained and to meet the costs of changes and adjustments to individual lifestyle.
Compensation may be roughly divided into three categories. They are:
Compensation may be roughly divided into three categories. They are:
- “No fault” or “statutory” motor vehicle and workers compensation schemes
- Common law claims for damages for personal injuries
- Claims for criminal compensation.
There are two simple rules that apply to every situation:
- Assume you are entitled to compensation until you receive expert advice to the contrary
- Strict limitation periods will apply so seek expert advice as soon as possible.
Workers compensation
A person injured in a workplace accident should be assumed to be entitled to compensation. In order to receive compensation, it is not always necessary to show that anyone was to blame for the injury. There must, however, be a sufficient connection between the injured person’s employment and the injury to entitle them to compensation. A worker injured at work, on the way to work, or travelling between places of employment, is generally covered.
The initial claim is generally made against the State insurance body that handles workers’ compensation but be aware that there are strict time limits for the lodging of claims. If an application for compensation is refused, it may affect a person’s entitlement to common law damages. Therefore, it cannot be stressed enough that an injured worker should seek advice from a solicitor as soon as possible after the injury occurs.
In general, compensation to a worker who has been totally or partially incapacitated consists of:
The initial claim is generally made against the State insurance body that handles workers’ compensation but be aware that there are strict time limits for the lodging of claims. If an application for compensation is refused, it may affect a person’s entitlement to common law damages. Therefore, it cannot be stressed enough that an injured worker should seek advice from a solicitor as soon as possible after the injury occurs.
In general, compensation to a worker who has been totally or partially incapacitated consists of:
- Regular payments while the worker is not working or is on a reduced income
- Medical, hospital, pharmaceutical and rehabilitation expenses
- Travelling expenses incurred in obtaining treatment
- The cost of alterations to the home and special facilities for comfortable living.
In some States, if a worker accepts an offer of lump sum benefit, the worker may not have the right to seek damages at common law against his or her employer. Therefore, it is most important that a worker seeks assistance from an experienced lawyer, on receiving an offer.
Wilful misconduct
Wilful misconduct refers to behaviour that is carried out deliberately or recklessly or with indifference to its consequences. This does not mean that all behaviour that is careless or negligent is wilful misconduct. Unless it can be shown to be grossly negligent, a disregard for safety rules is not necessarily enough to exclude a worker from compensation. Even when proved to be guilty of serious and wilful misconduct, a worker who sustains injuries may still be entitled to compensation.
Motor vehicle accidents
Each State has its own legislation governing the entitlement to compensation for injuries arising out of motor vehicle accidents. In some states, there is a “no fault” scheme which entitles a person to compensation irrespective of who was at fault. In some States, the injured person must be able to show that another person was partly or entirely responsible for the accident, and in some States a hybrid system operates in which the injured person is immediately entitled to compensation but may still be able to sue at common law for damages. Assume you are entitled to compensation. Get expert advice immediately.
Common Law Claims for Damages for Personal Injuries
Some States allow the injured person to sue for damages at common law. Common law has developed over time through decisions and judgments handed down by the Court in previous cases involving similar circumstances. However, in the current climate relating to insurance, it is important to note that legislation may be created which may limit a person’s ability to pursue a common law claim and may limit the amount of damages a person can receive.
Be aware that claims for damages for personal injury are limited by time restrictions. In some States of Australia in accidents involving unidentified motor vehicles, the right to claim may be lost if certain notices are not given within nine months of the date of the accident. At the other extreme, a child may have until the date of their twenty-first birthday within which to commence proceedings.
To avoid losing the right to claim, a solicitor should be consulted as soon as possible after any incident that leads to injury. The most common concerns of people who sustain a brain injury evolve from the lifestyle changes they are forced to endure. These include physical loss, emotional and psychological stress, financial burdens of extended medical expenses, and loss of employment. An ‘action’ is, therefore, commenced to obtain compensation and reimbursement for those costs and losses.
Be aware that claims for damages for personal injury are limited by time restrictions. In some States of Australia in accidents involving unidentified motor vehicles, the right to claim may be lost if certain notices are not given within nine months of the date of the accident. At the other extreme, a child may have until the date of their twenty-first birthday within which to commence proceedings.
To avoid losing the right to claim, a solicitor should be consulted as soon as possible after any incident that leads to injury. The most common concerns of people who sustain a brain injury evolve from the lifestyle changes they are forced to endure. These include physical loss, emotional and psychological stress, financial burdens of extended medical expenses, and loss of employment. An ‘action’ is, therefore, commenced to obtain compensation and reimbursement for those costs and losses.
Negligence
In order to succeed in a claim for damages for personal injuries, the injured person, called “the Plaintiff” must show that the person who caused their injury, called “the Defendant” was negligent. In deciding whether or not someone has been negligent, the following four factors are considered:
- A ‘duty of care’ exists when it can be reasonably foreseen that a certain action, situation or environment may lead to harm to a person.
- Standard of care is the standard to which a given activity must be performed to meet the duty of care. This standard is not perfection but is what would be reasonably expected.
- Breach of duty of care is when it can be demonstrated that the standard of care has not been met.
- Harm or loss resulting from a breach of duty of care is when some harm or loss can be demonstrated from the breach.
It is important to remember that because a claim for damages for personal injuries is a civil and not a criminal action, a different standard of proof applies. That is, the plaintiff needs only to prove their case on the balance of probabilities. They do not need to prove their case beyond reasonable doubt.
Fault
Sometimes people assume they have contributed to the accident and are therefore at fault. However, the fact that a person commits a breach of some safety code or regulation does not necessarily mean they are at fault in an accident - although it could be a significant factor. It is, therefore, important for all people injured in an accident to submit a claim or at least speak to a solicitor regarding their position.
Types of damages
Compensation may be recovered for the following types of losses:
- Loss of past income
- Loss of future income
- Physical pain and suffering
- Emotional/psychological trauma
- Medical expenses
- Travelling expenses
- Rehabilitation costs
- Costs for the services that family members have provided in the rehabilitation and care
- Home modifications
- Aids such as wheelchairs.
The above list is not exhaustive and may vary from State to State. The types of damages to which an injured person may be entitled will depend on the nature and extent of the injury and the effect the injury has on the person. Most Australian States have placed restrictions on who can claim compensation for non-economic loss and have set limits on how much is payable.
Keeping records
People claiming compensation should keep a careful record of all expenses resulting from the accident. A diary of visits to medical or therapeutic services should be maintained, together with expenses and receipts. 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 your solicitor
Most solicitors will give preliminary advice regarding the prospects of success, free of charge. Many solicitors are prepared to act on a “no win no fee” basis in personal injury claims. In matters of compensation, the quality of legal representation will have a serious impact on the final amount of compensation awarded. Without insight into the long-term effects of a brain injury, it would be easy to underestimate the level of future support required. When selecting a solicitor it is advisable to consider the quality of service offered, the projected costs for legal representation and the solicitor’s insight into the rehabilitation and support needs.
A personal injury claim takes time
It may be a long period of time before settlement so don’t stop keeping these records. Be prepared for a long and frustrating legal process and try to maintain a sense of humour. Stress and bitterness can be more damaging than the accident.
Substitute Decision Making
All Australians have the right to make decisions about their personal, financial and health-related affairs if they are over 18 years of age and are mentally able to understand the nature of, and foresee the effect of, a particular decision. They must also be able to do so freely and voluntarily and be able to communicate that decision in some way.
If, as a result of a brain injury, a person has lost the capacity to make some or all decisions for themselves, there are some important legal considerations of which they, family members and close friends must be aware.
Legislation, terminology and processes regarding substitute decision making in Australia, may vary between States. Readers are advised to consult the Brain Injury Association of their particular State to clarify local variations. However, the general philosophies within Australia are consistent with the following sections.
If, as a result of a brain injury, a person has lost the capacity to make some or all decisions for themselves, there are some important legal considerations of which they, family members and close friends must be aware.
Legislation, terminology and processes regarding substitute decision making in Australia, may vary between States. Readers are advised to consult the Brain Injury Association of their particular State to clarify local variations. However, the general philosophies within Australia are consistent with the following sections.
Appointing someone else to make decisions
A Power of Attorney is a document that appoints someone to act as an agent on our behalf. This may be required if for some reason we are not going to be able to act personally (e.g. being overseas).
A General Power of Attorney unfortunately has limitations as a device for the future planning of our affairs. If we were to incur some illness or injury that deprived us of the capacity to manage our financial affairs, this type of Power of Attorney is not of much assistance as it is automatically revoked because of our incapacity to give instructions to the Attorney.
An Enduring Power of Attorney continues in force after the principal has become mentally incapable of understanding the nature and effect of decisions about a financial matter or a personal matter as the case may be. The appointment of an Attorney under the Enduring Power of Attorney must be made while the principal is still capable of understanding the nature and effect of the document.
All States have Guardianship Tribunals with power to appoint a guardian (for personal matters) or an administrator (for financial matters). All have requirements about the adult having impaired capacity and for there to be a need for decisions to be made on the adult’s behalf.
A General Power of Attorney unfortunately has limitations as a device for the future planning of our affairs. If we were to incur some illness or injury that deprived us of the capacity to manage our financial affairs, this type of Power of Attorney is not of much assistance as it is automatically revoked because of our incapacity to give instructions to the Attorney.
An Enduring Power of Attorney continues in force after the principal has become mentally incapable of understanding the nature and effect of decisions about a financial matter or a personal matter as the case may be. The appointment of an Attorney under the Enduring Power of Attorney must be made while the principal is still capable of understanding the nature and effect of the document.
All States have Guardianship Tribunals with power to appoint a guardian (for personal matters) or an administrator (for financial matters). All have requirements about the adult having impaired capacity and for there to be a need for decisions to be made on the adult’s behalf.
Medical directives and attorneys
One of the greatest challenges to assisted decision making is the question of what happens if a person loses capacity and there are no prior arrangements about health care. All States appear to agree on the common principles of this issue but terminology, and the extent of directions that can be given vary significantly. For up-to-date information relating to a particular State, contact your local Brain Injury Association.
A Statutory Health Attorney in Queensland is someone close to the adult who can give consent to health care, where there is no enduring attorney or enduring guardian, or guardian appointed by the tribunal. Formal appointment is not necessary in some States, since their authority comes from their relationship to the patient with impaired capacity.
An Advance Health Directive enables an adult to make arrangements regarding the type of future health care they desire (or do not desire) should they become incapable of making decisions. An Advance Health Directive may also include the name of an appointed person to assist with determining the principal’s wishes. However, an Advance Health Directive can only be made by a person while they have the mental capacity to do so and comes into effect only after the person has lost that capacity.
A “Ulysses Agreement” enables a person with an episodic mental illness to give directions (including the use of restraint) so that a trusted person or persons can arrange for psychiatric treatment when specified symptoms or behaviour become apparent. Where an Advance Health Directive conflicts with the type of treatment that can be carried out under the Mental Health Act, the terms of the Advance Health Directive must be followed as closely as is possible.
A Statutory Health Attorney in Queensland is someone close to the adult who can give consent to health care, where there is no enduring attorney or enduring guardian, or guardian appointed by the tribunal. Formal appointment is not necessary in some States, since their authority comes from their relationship to the patient with impaired capacity.
An Advance Health Directive enables an adult to make arrangements regarding the type of future health care they desire (or do not desire) should they become incapable of making decisions. An Advance Health Directive may also include the name of an appointed person to assist with determining the principal’s wishes. However, an Advance Health Directive can only be made by a person while they have the mental capacity to do so and comes into effect only after the person has lost that capacity.
A “Ulysses Agreement” enables a person with an episodic mental illness to give directions (including the use of restraint) so that a trusted person or persons can arrange for psychiatric treatment when specified symptoms or behaviour become apparent. Where an Advance Health Directive conflicts with the type of treatment that can be carried out under the Mental Health Act, the terms of the Advance Health Directive must be followed as closely as is possible.
Interstate recognition of Attorneys Guardianship and Administration Orders
An enduring power of attorney or enduring guardianship document made in another State is recognised in Queensland. This means that if an adult with impaired capacity moves to Queensland, their enduring attorney or enduring guardian will be able to continue to act for them. All other States are currently considering changing their laws to recognise the authority of enduring attorneys or enduring guardians from another State.
Making a Will
Along with the Enduring Power of Attorney, a Will is amongst the most important documents most of us will ever sign. Anyone can make a Will, as long as they are over eighteen years of age and have testamentary capacity at the time. It is recommended that a Will be prepared through a professional service, as a Will produced contrary to the requirements of law may lead to lengthy court proceedings and may be ineffective. The Executor of a Will is the person appointed to attend to the administration of the estate. They should have the necessary knowledge, experience and judgment to perform the task.
Marriage
A person with a disability is subject to the same marriage laws as any other person. A person can marry provided that they have the ability to understand the nature and effect of the marriage ceremony at the time of the ceremony.
Voting
The law states that a person who is incapable of understanding the nature and significance of enrolment and voting is not entitled to vote. In reality, a person’s eligibility to vote is unlikely to be questioned when they enrol. If an objection is raised regarding a person’s eligibility, the Divisional Returning Officer will decide upon the issue. The decision of the Divisional Returning Officer is then subject to appeal.
Entering A Contract
A person entering into a contract must have the ability to comprehend the nature of the agreement being entered into. If a person with a brain injury has a cognitive disability and enters into a contract, the obligations entered into in the contract may be questioned. Whether or not the contract is enforceable will depend upon a variety of factors:
- Whether the other party knew or ought to have known of the person’s disability
- If the subject of the contract was not an essential item, such as food
- If the person was subject to a protection order at the time of entering into the contract
- If an innocent third party acquired an interest in the subject matter of the contract
- If substantial resolution is possible
- If the contractual document was signed with a mistaken belief regarding the subject matter or the nature of the document.
Any queries regarding the nature of a contract or a person’s rights concerning a signed contract should be taken up with a solicitor or other legal professional.
Specific Laws and People with a Disability
The law is a set of principles and guidelines designed to protect and give all Australians the freedom to live without fear of intrusion by others. People with a disability are no different. Laws are as applicable to people with a disability as they are for everyone else. However, legislation has been passed through parliament, which is specifically designed to cater for the additional needs of people with a disability.
The Disabilities Services Act 1986 gives people with disabilities the right to:
The Disabilities Services Act 1986 gives people with disabilities the right to:
- Receive respect for their human worth and dignity as individuals
- Realise their capacities for physical, social, emotional and intellectual development
- Services that support their attaining a reasonable quality of life in a way that supports their family unit and their full participation in society
- The grant of financial assistance to ensure that a minimum quality of life is attainable.
Each Australian State has additional legislation that supports and enhances the above points.
The Anti-Discrimination Act aims to prevent a person being discriminated against because of their disability. Any concerns can be forwarded to the Anti-
The Anti-Discrimination Act aims to prevent a person being discriminated against because of their disability. Any concerns can be forwarded to the Anti-
Discrimination Commission.
The entitlement of a child to receive an education cannot be denied. The concept of ‘inclusive education’ provides that a disabled child’s specific needs should be met in a classroom community. Various Commonwealth and State Acts have been introduced to assist children with a disability attain an inclusive education.
If a person believes their child has been disadvantaged or discriminated against because of the child’s disability, they may lodge a complaint with the Education Department, which should have a specialised legal unit to investigate complaints raised regarding discrimination.
The Building Code of Australia has clear specifications for the inclusion of appropriate measures to make public buildings easier to access by people with a disability. The Disability Discrimination Act also contains a provision that specifically addresses access to public property for people with a disability.
The main purpose of Equal Employment Opportunity policy is to identify key minority target groups and to set guidelines to help ensure that their opportunities for employment are no different to those of other people. These laws have made it illegal for an employer to discriminate against people with a disability, whether it be in choosing someone for a job, the way an employee is treated, or the dismissal of an employee. Any issue regarding possible violations of these laws can be forwarded to the Anti-Discrimination Commission.
A person with an acquired brain injury has the same rights as any other person under criminal law. They have the right to remain silent and the right to obtain legal representation. They also have the right to apply for legal help from the Legal Aid Office. A person with an acquired brain injury who has committed an indictable offence must be placed for a committal hearing at the earliest available time. The mental capacity of the person will be assessed in order to identify their capacity to stand for criminal trial. Any queries regarding this should be directed to the Legal Aid Office or to an independent legal representative. If a person with a brain injury is to be interviewed by the police regarding a criminal matter, a third independent person must accompany them; usually a Justice of the Peace, solicitor or parent. Their job is to be present during the interview to protect the rights of both the person with the brain injury and the investigating officers.
If a person believes their child has been disadvantaged or discriminated against because of the child’s disability, they may lodge a complaint with the Education Department, which should have a specialised legal unit to investigate complaints raised regarding discrimination.
The Building Code of Australia has clear specifications for the inclusion of appropriate measures to make public buildings easier to access by people with a disability. The Disability Discrimination Act also contains a provision that specifically addresses access to public property for people with a disability.
The main purpose of Equal Employment Opportunity policy is to identify key minority target groups and to set guidelines to help ensure that their opportunities for employment are no different to those of other people. These laws have made it illegal for an employer to discriminate against people with a disability, whether it be in choosing someone for a job, the way an employee is treated, or the dismissal of an employee. Any issue regarding possible violations of these laws can be forwarded to the Anti-Discrimination Commission.
A person with an acquired brain injury has the same rights as any other person under criminal law. They have the right to remain silent and the right to obtain legal representation. They also have the right to apply for legal help from the Legal Aid Office. A person with an acquired brain injury who has committed an indictable offence must be placed for a committal hearing at the earliest available time. The mental capacity of the person will be assessed in order to identify their capacity to stand for criminal trial. Any queries regarding this should be directed to the Legal Aid Office or to an independent legal representative. If a person with a brain injury is to be interviewed by the police regarding a criminal matter, a third independent person must accompany them; usually a Justice of the Peace, solicitor or parent. Their job is to be present during the interview to protect the rights of both the person with the brain injury and the investigating officers.
Please note that this information is only a guide and you should consult a solicitor.
The long-term effects of a brain injury may not be evident for some time. At best, those with a mild brain injury may be able to return to work but will spend the rest of their lives battling a range of cognitive problems. Others will find themselves dependent on others for the rest of their lives, while the most unfortunate may never emerge from a state of coma.
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