Earlier this year, we talked about the Australian Government's proposed COVID-19 vaccine indemnity scheme. At the time of the article, there was little information surrounding the scheme and what it would entail. 

The Australian Government (Department of Health) has now provided further details on the proposed no fault COVID-19 Vaccine Claim Scheme.

The Australian Government has confirmed the scheme is for those who experience “a moderate to significant” adverse reaction to the COVID-19 vaccine.[1] However, what is considered “a moderate to significant” adverse reaction has not be clarified.

The scheme seeks to provide “quick access” to reimbursement or compensation without having to resort to expensive and “complex legal proceedings.”[2]

The scheme will be funded by the Commonwealth and administered by Services Australia with the assistance of the Therapeutic Goods Administration (TGA).[3]

However, there are a few restrictions on who will be eligible to claim from this scheme.

Firstly, the scheme will only cover costs of injuries of $5,000 and above.[4] Accordingly, claims for less than $5,000 will not be covered by the scheme.  

Furthermore, claimants will only be able to claim reimbursement/compensation between $5,000 and $20,000 if:[5]

• they were hospitalised for at least one night
• confirm “they are seeking less than $20,000”
• be able to provide evidence as to:
  • the fact that their injury was likely related to the COVID-19 vaccine
  • their hospitalisation
  • their medical expenses
  • their lost wages

The Australian Government is yet to advise on the “evidence requirements” for claims over $20,000 (including death) or how such claims will be handled under the scheme.[6]

 In addition, the scheme will only apply to COVID-19 vaccines which have been approved by the TGA. Currently, only two COVID-19 vaccines have been approved by the TGA: Vaxzevria

(AstraZeneca) and Comirnaty (Pfizer).[7] However, provisional approval has been granted for Spikevax (Moderna0).[8]

The Australia Government has advised it is creating a portal by which claims and relevant evident can be submitted. Potential claimants can register their interest in making a claim here.

[1] Australian Government (Department of Health), ‘COVID-19 vaccine claims scheme’, Department of Health (webpage, 6 September 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/covid-19-vaccine-claims-scheme>

[2]Hon Greg Hunt MP (Minister for Health and Aged Care), ‘No Fault COVID-19 Indemnity Scheme’ Ministers: Department of Health (media release, 28 August 2021) <https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/no-fault-covid-19-indemnity-scheme>

[3] Hon Greg Hunt MP (Minister for Health and Aged Care), ‘No Fault COVID-19 Indemnity Scheme’ Ministers: Department of Health (media release, 28 August 2021) <https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/no-fault-covid-19-indemnity-scheme>

[4] Australian Government (Department of Health), ‘COVID-19 vaccine claims scheme’, Department of Health (webpage, 6 September 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/covid-19-vaccine-claims-scheme>

[5] Australian Government (Department of Health), ‘COVID-19 vaccine claims scheme’, Department of Health (webpage, 6 September 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/covid-19-vaccine-claims-scheme>

[6] Australian Government (Department of Health), ‘COVID-19 vaccine claims scheme’, Department of Health (webpage, 6 September 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/covid-19-vaccine-claims-scheme> 

[7] Australian Government (Department of Health), ‘COVID-19 vaccine weekly safety report – 09.09.2021’, Therapeutic Goods Administration (webpage, 9 September 2021) < https://www.tga.gov.au/periodic/covid-19-vaccine-weekly-safety-report-09-09-2021>

[8] Australian Government (Department of Health), ‘COVID-19 vaccine weekly safety report – 09.09.2021’, Therapeutic Goods Administration (webpage, 9 September 2021) < https://www.tga.gov.au/periodic/covid-19-vaccine-weekly-safety-report-09-09-2021>

• WHAT IS NDIS?
• WHO CAN CLAIM UNDER NDIS?
• HOW DO YOU APPLY FOR NDIS?
• WHAT BENEFITS ARE PAID UNDER NDIS?
• HOW DOES NDIS AFFECT MY RIGHTS TO BRING A COMMON LAW CLAIM?

1. WHAT IS NDIS?

The National Disability Insurance Agency (NDIS) is a federal scheme which provides disability support for Australians with permanent and significant disabilities. The scheme was established in 2013 and currently provides “more than $22 billion in funding a year to an estimated 500,000 Australians.”[1]

2. WHO CAN CLAIM UNDER NDIS?

The NDIS provides support to Australians with a permanent and significant disability. The NDIS defines ‘permanent and significant disability’ to pertain to disabilities which are “likely to be lifelong.”[2]

This may include “intellectual, physical, sensory, cognitive and psychosocial” disabilities.[3]

However, there are a few qualifications on who claim NDIS support.[4] To be eligible for NDIS support, an applicant must:

1. be under the age of 65;
2. live in Australia; and
3. be an Australian Citizen, Permanent Visa holder or Protected Special Category Visa holder.

NOTE: Children under the age of 6 with developmental delay may be entitled to “early intervention supports.”[5]

3. HOW DO YOU APPLY FOR NDIS SUPPORT?

Applicants can apply to the NDIS verbally by calling NDIS on 1800 800 110 (Verbal Access Request), or in writing by submitting an Access Request form by post (GPO Box 700, Canberra, ACT 2601) or by email ([email protected]).[6]

An application for NDIS services and funding may need to be supported by relevant evidence. This may include having your treating health professional complete a Supporting Evidence Form.[7]

4. WHAT BENEFITS ARE PAID UNDER NDIS?

The NDIS provides assistance and funding for various aspects of participants lives. This may include funding to facilitate transportation, workplace help, help with domestic chores, home modifications and mobility equipment.[8]  

However, the NDIS cannot provide funding for expenses which are covered by another government body/agency, do not relate to the participant’s disability or which relate to day-to-day living costs which are unrelated to the participant’s disability-support needs.[9]

5. DOES CLAIMING NDIS AFFECT YOUR RIGHT TO BRING A COMMON LAW OR STATUTORY CLAIM FOR PERSONAL INJURIES?

There may be circumstances in which a participant in the NDIS is also pursuing compensation/damages in relation to a personal injury claim. This is likely to arise where an injured person suffers a permanent and significant disability as a result of a motor vehicle accident or due to medical negligence.

Where an NDIS participant has a personal injury compensation claim, they may be required to notify the NDIS of their claim.[10] If the participant is paid compensation as a result of their personal injuries claim, they may be required to make a repayment back to the NDIS.[11] 

Whether a claimant is an NDIS participant may also be relevant to whether they can claim future expenses (such as medical treatment and support services) as part of their personal injuries claim.[12] This is because it is arguable that the claimant’s future are needs will be met by the NDIS services/supports.[13]

[1] NDIS, ‘What is the NDIS?’, NDIS (webpage, 19 May 2021) <https://www.ndis.gov.au/understanding/what-ndis>

[2] NDIS, ‘What is the NDIS?’, NDIS (webpage, 19 May 2021) <https://www.ndis.gov.au/understanding/what-ndis>

[3] NDIS, ‘What is the NDIS?’, NDIS (webpage, 19 May 2021) <https://www.ndis.gov.au/understanding/what-ndis>

[4] NDIS, ‘Am I eligible?’, NDIS (webpage, undated) <https://www.ndis.gov.au/applying-access-ndis/am-i-eligible>

[5] NDIS, ‘What is the NDIS?’, NDIS (webpage, 19 May 2021) <https://www.ndis.gov.au/understanding/what-ndis>

[6] NDIS, ‘What is an Access Request Form?’, NDIS (webpage, 15 March 2021) <https://www.ndis.gov.au/how-apply-ndis/what-access-request-form#access-request>

[7NDIS, ‘What is an Access Request Form?’, NDIS (webpage, 15 March 2021) <https://www.ndis.gov.au/how-apply-ndis/what-access-request-form#access-request>

[8] NDIS, ‘What types of supports are funded??’, NDIS (webpage, undated) <https://www.ndis.gov.au/understanding/supports-funded-ndis>

[9] NDIS, ‘What types of supports are funded??’, NDIS (webpage, undated) <https://www.ndis.gov.au/understanding/supports-funded-ndis>

[10] LexisNexis Australia, Practice Guidance AU – Personal Injury QLD: National Disability Insurance Scheme (NDIS) <https://advance.lexis.com/document/lpadocument/?pdmfid=1201009&crid=7defae62-7df9-4584-80f0-eb76eb6badf0&pddocfullpath=%2Fshared%2Fdocument%2Fpractical-guidance-au%2Furn%3AcontentItem%3A5WHY-7TM1-DY33-B3R9-00000-00&pdcomponentid=406350&pdpinpoint=CITEID_713964&pdcontentcomponentid=406350&pdcurrmodid=1013014&ecomp=t8thkgk&prid=af8bd2c0-888f-41c1-b408-e030aca7b329#>

[11] Ibid.

[12] Ibid.

[13] Ibid.

In our most recent article, How Medicare And Centrelink Benefits Affect Medical Negligence Claims, we identify how Medicare and Centrelink benefits impact upon medical negligence claims.

However, it is important to note that there are other benefits that have an impact on medical negligence claims.

OTHER BENEFITS THAT HAVE AN IMPACT ON MEDICAL NEGLIGENCE CLAIMS: -

1. Income protection benefits
2. Private health benefits
3. NDIS benefits 

Do income protection benefits have an impact on medical negligence claims?

YES, those injured in the course of medical negligence may be eligible to obtain income protection benefits through their super fund or other held income protection insurance.

If an injured person is unable to work due to medical negligence, it is likely that their medical negligence claim will include a head of damage for “past economic loss”, which is a figure representing the past loss of income and past loss of superannuation.

If a claim is made for past economic loss and that compensation is paid out at settlement, the injured party may be required to pay back the income protection benefits received in the past in accordance with the income protection policy.

Generally, unless the injured party has purchased income protection insurance (i.e. not through a super fund), most policies will require a pay-back of the income benefits in circumstances where an injured person has been compensated for economic loss sustained during the same period income protection payments were received.

How to calculate the income protection refund?

Generally, income protection will pay a percentage of an injured person’s wage (e.g. 80%). When a past economic loss claim is made for medical negligence, the claim is made for the entire value of the loss.

Therefore, it is expected that after any income protection refund is made, the injured party will retain some compensation for past economic loss and loss of superannuation.

To find out how much is required to be reimbursed for income protection payments, the injured person should: -

- Speak to the income protection insurer to clarify whether they need to pay back the income protection benefits if they obtain compensation for past loss of income

- Obtain a statement from the income protection insurer detailing all income protection payments made under the policy

In some circumstances, the injured party may have obtained income protection from two separate insurers. This can make calculating the reimbursement amount difficult.

Therefore, it is important to be open and upfront about any income protection benefits obtained so any potential reimbursements can be factored into the medical negligence claim when negotiating a resolution.

Do private health insurance benefits have an impact on my medical negligence claim? 

YES, if treatment has been obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expenses”.

The compensation received at settlement for past medical expenses cannot be kept by the injured party as this would constitute a double-up of compensation. This means that any expenses paid by the private health insurer in relation to injuries sustained as a consequence of medical negligence must be paid back to the private health insurer.

Upon request, the private health insurer will provide a benefit history statement detailing all benefits received during the injury period that is required to be reimbursed.

If an injured party has received compensation for future treatment expenses, the compensation may affect an injured person’s ongoing entitlements to claim future private health benefits in relation to that injury.

For example, under most private health policies, if compensation is received by the injured person for future surgery at $20,000.00, the injured person would be precluded from obtaining private health benefits in relation to that surgery, as if they received compensation from the medical negligence claim and from the private health insurer this would constitute a double up of compensation.

Do NDIS benefits have an impact on my medical negligence claim?

YES, if NDIS benefits are obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expenses”.

NDIS will provide a statement of benefits detailing expenses that will need to be reimbursed if compensation is obtained for past medical expenses.

If you are in receipt of NDIS benefits as a lifetime scheme member, your solicitor will need to weigh up whether claiming future medical expenses in your medical negligence claim is appropriate in the circumstances.

This is because, if compensation is received for future care and assistance, NDIS cover may cease along with any entitlements to the lifetime scheme membership program as obtain future NDIS benefits would constitute a double up in compensation.

It is therefore vitally important to disclose all information in relation to income protection, private health, and NDIS benefits as these benefits have significant and, in some circumstances, ongoing implications for the injured person.

To read more about medical negligence damages, see our recent blog post: THE 4 MOST COMMON DAMAGED CLAIMED IN MEDICAL NEGLIGENCE MATTERS

Do Medicare & Centrelink affect my medical negligence claim?

YES, past Medicare and Centrelink benefits do have an impact on medical negligence claims.

Compensation received in medical negligence claims may also affect the injured persons ongoing rights and entitlement to Centrelink.

IMPORTANT: -

1. Past Medicare charges relating to a medical negligence injury will need to be paid back to Medicare if the claim is resolved. Future Medicare entitlements may be affected by a medical negligence settlement if part of the claim relates to future medical expenses.
2. Past Centrelink benefits may need to be paid back to Centrelink if the medical negligence claim settles and a portion of the settlement was for past economic loss.
3. Future Centrelink benefits may be affected by a medical negligence settlement if part of the claim relates to economic loss.

Do past Medicare charges have an impact on medical negligence claims?

Yes, if treatment and other Medicare benefits such as nursing and home care benefits have been obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expense”.

Do I have to pay back Medicare at the end of my medical negligence claim?

Yes, while expenses paid by Medicare are claimable as a head of damage in medical negligence, the compensation received at settlement for past medical expenses cannot be kept by the injured party as this would constitute a double-up of compensation.

Therefore, the money claimed for past Medicare must go back to Medicare and/or the private health fund.

How do you calculate a Medicare refund?

Upon request, Medicare will issue a Medicare History Statement from the date of injury to the date of request. This statement will detail every expense paid by Medicare over that period.

The injured party will need to tick the box next to treatment that relates to any injuries sustained as a result of the medical negligence. This form is then returned to Medicare.

Following this, Medicare will issue a Medicare Notice of Charge, which provides a total figure to be paid back to Medicare when the matter settles.

If a Medicare Notice of Charge is not available or has expired at the time of settlement, then 10% of the settlement money will be deducted by the Insurer and sent to Medicare.

Medicare will then send a Medicare History Statement to the injured party, upon receipt of the Medicare History Statement, Medicare will determine the charge and withdraw the charge amount and return the balance of the 10% to the injured party.

If there is no Medicare Charge, the full 10% will be returned to the injured party.

Does my past Centrelink benefits have an impact on my medical negligence claim?

Yes, if, as a result of medical negligence, the injured party is unable to work and has obtained a Centrelink benefit, the injured party may need to reimburse Centrelink at the end of the medical negligence claim.

If an injured party is unable to work, their past economic loss will form part of the medical negligence claim as a head of damage called “past economic loss”.

If the injured party is compensated for their past loss of income, they will not be able to keep that compensation and the Centrelink benefit for the same period as this would constitute a double-up of compensation.

How is Centrelink reimbursed?

If a portion of the settlement money relates to past economic loss, Centrelink will be notified and will issue a clearance or charge.

The clearance will advise of any amounts owing to Centrelink for any benefits that are compensation affected.

It is important to note if the injured party has unpaid Centrelink debts (e.g. garnishee or unpaid child support), those debts may be payable from the medical negligence compensation.

If there is an amount to be reimbursed to Centrelink, the insurer will deduct the amount owed to Centrelink from your settlement money.

An insurer is unable to pay out any settlement money until a Centrelink clearance or charge is received. Generally, this process takes between four 4-12 weeks.

If no Centrelink benefits have been claimed over the relevant period, Centrelink will issue a Clearance stating there is no charge and no money will be deducted by the insurer for reimbursement.

Does my medical negligence settlement affect my ongoing rights to Centrelink? 

YES, in some circumstances.

If a portion of the settlement money represents a loss of income, an injured worker may be precluded from obtaining Centrelink benefits in the future.

A preclusion period applies irrespective of whether the injured party has previously received Centrelink.

It is important to note; preclusion period may affect entitlements to Pensions and other age benefits.  

The injured party will be advised of any Medicare and/or Centrelink reimbursements as well as any Centrelink preclusion periods prior to the resolution of their medical negligence claim.

However, it is important to be open and frank about past Medicare and Centrelink benefits and debts to ensure the claim runs smoothly, and the right amount of compensation is obtained at the resolution of the medical negligence claim.

To read more about medical negligence damages, see our recent blog post: THE 4 MOST COMMON DAMAGES CLAIMED IN MEDICAL NEGLIGENCE MATTERS 

Keep an eye out for our next article on medical negligence and the impact of NDIS funding, income protection, and private health!

Since this article was published on 2 July 2021, the Hon Greg Hunt MP (Minister for Health and Aged Care) issued a media release providing greater detail on the scope of the proposed COVID-19 vaccine indemnity scheme (see https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to-protect-health-professionals-and-patients).

The Australian Government has now clarified the proposed COVID-19 vaccine indemnity scheme will operate as “a no fault claims process scheme” to provide compensation where patients suffer “a significant adverse reaction, causing injury and economic loss because of vaccination”. What constitutes “a significant adverse reaction” has not yet been defined.

Furthermore, the COVID-19 vaccine indemnity scheme will “be backdated to the start of the national vaccine rollout”. Meaning, patients who suffer COVID-19 vaccine-related injuries prior to the scheme’s implementation will be entitled to claim compensation under the scheme.

Whilst the COVID-19 vaccine indemnity scheme will likely provide a simpler process for COVID-19 vaccine related injuries, injured persons are still entitled to pursue common law medical negligence claim compensation for adverse reactions to the COVID-19 in the interim and even after the scheme’s implementation.

National Indemnity Scheme

In late June 2021, the Federal government announced its intention to establish a professional indemnity scheme for medical practitioners who are “providing advice to people in relation to COVID-19 vaccination.”[1] 

Few details have been released about how the scheme will operate, and the scope of the scheme is unclear. However, the statement by the Federal Government seems to indicate the scheme will indemnify healthcare practitioners, not patients, from potential adverse reactions from the COVID-19 vaccine. 

Accordingly, it seems Australia will continue to lag behind other countries, such as New Zealand and the United States of America, who have established no-fault compensation schemes for vaccine-related injuries.[2] 

Medical Negligence Claims and the COVID-19 Vaccine

Interestingly, in the absence of a no-fault compensation scheme, injured persons may still be entitled to claim compensation for an adverse reaction to the COVID-19 vaccine by way of a medical negligence claim.  

Given that the Therapeutic Goods Administration has approved various COVID-19 vaccines as safe,[3] injured persons will most likely need to prove negligence by the medical practitioner who administered the COVID-19 vaccine in order to claim compensation.

An action in medical negligence requires an injured person to prove a medical practitioner failed to provide care to the standard of a competent medical practitioner at the time, and this failure caused them to suffer loss/damage as a result.[4]

Negligence in administering the COVID-19 vaccine might arise where a medical practitioner failed to warn the injured person of the potential risks or harmful side effects of a COVID-19 vaccine,[5] or incorrectly administered the COVID-19 vaccine (for example, injected the vaccine into the injured person’s nerve/bloodstream, rather than their muscle). 

Negligence might also arise if a medical practitioner administered a COVID-19 vaccine against the advice/recommendations of the Australia Government or the manufacturer. For example, the Queensland Government has advised that persons with a history of blood clotting disorders (such as Heparin-induced thrombocytopenia (HIT) or Central venous sinus thrombosis (CVST)) should not receive the AstraZeneca vaccine.[6] Accordingly, administering the AstraZeneca vaccine to a patient with a history of blood clotting who then suffers blood clots may give rise to liability in negligence. 

Similarly, persons with severe allergies to any of the ingredients in the COVID-19 vaccines have been advised not to have the COVID-19 vaccine.[7] Accordingly, where a patient suffers a severe allergic reaction to the COVID-19 vaccine, and the administering medical practitioner failed to take a relevant medical history,[8] this may also give rise to liability in negligence.

For a claim in medical negligence for an adverse reaction to a COVID-19 vaccine to be financially viable, an injured person will need to have suffered serious and prolonged symptoms/injuries following vaccination. Accordingly, where a patient merely suffers the known and common side-effects to the COVID-19 vaccine, which tend to only last a couple of days [9], they are unlikely to be entitled to any/much compensation. 

Compensation from Statutory Schemes

Where an injured person needs to take time off work to recover from a COVID-19 vaccine, even for known and common side-effects, they may be entitled to Workers’ Compensation.[10] An entitlement to Workers’ Compensation may particularly arise where an injured person is vaccinated against COVID-19 at the direction of their employer.[11]

Similarly, funding from the National Disability Insurance Scheme (NDIS) may be available where an injured person suffers “a permanent and significant disability” as a result of receiving a COVID-19 vaccine but will not be available for temporary symptoms/injuries following vaccination.[12] 

  [1] Prime Minister Scott Morrison, ‘National Cabinet Statement’ (media statement, 28 June 202) <https://www.pm.gov.au/media/national-cabinet-statement-5>

[2] See generally Wood et al, ‘Australia needs a vaccine injury compensation scheme: Upcoming COVID-19 vaccines make its introduction urgent,’ Australian Journal of General Practice (online, 9 September 2020) Table 1 <https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche>

[3] Therapeutic Goods Administration, ‘COVID-19 vaccine: Provisional registrations,’ COVID-19 Vaccines (webpage, 25 June 2021) <https://www.tga.gov.au/covid-19-vaccine-provisional-registrations>

[4] Civil Liability Act 2003 (Qld) s 22; see generally Rogers v Whitaker (1992) 175 CLR 479.

[5] See generally Rogers v Whitaker (1992) 175 CLR 479;  Civil Liability Act 2003 (Qld) s 21. 

[6] Queensland Government, ‘COVID-19 vaccination information: Patient Information,’ Queensland Government (fact sheet, June 2021) <https://www.health.qld.gov.au/__data/assets/pdf_file/0029/1029359/covid19-patient-information-sheet.pdf>

[7] Ibid. 

[8] Chin Keow v Government of Malaysia and Another [1967] 1 WLR 813

[9] Australian Government Department of Health, ‘Are COVID-19 vaccines safe?’ Australian Government Department of Health (webpage, 17 June 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/learn-about-covid-19-vaccines/are-covid-19-vaccines-safe>

[10] See generally WorkCover Queensland, ‘COVID-19 vaccines and your workplace health and safety obligations,’ (webpage, 2 March 2021) <https://www.worksafe.qld.gov.au/news-and-events/news/2021/covid-19-vaccines-and-your-workplace-health-and-safety-obligations>

[11] See generally Megan Bowe and Emma Croskery, ‘Can employers make the COVID-19 vaccination mandatory?’, Colin, Biggers & Paisley (webpage, 1 February 2021) <https://www.cbp.com.au/insights/insights/2021/february/can-employers-make-the-covid-19-vaccination-mandat?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>

[12] Nicholas Wood, ‘Who pays compensation if a COVID-19 vaccine has rare side-effects? Here’s the little we know about Australia’s new deal,’ The Conversation (online, 15 October 2020) <https://theconversation.com/who-pays-compensation-if-a-covid-19-vaccine-has-rare-side-effects-heres-the-little-we-know-about-australias-new-deal-147846>

Forecasting out-of-pocket expenses after medical negligence. 

As the name suggests, this head of damage covers all immediate expenses, past and into the future. These ‘immediate expenses’ generally refer to things such as:

Classified as ‘special damages,’ - or, damages possible of precise calculation – out-of-pocket expenses are fairly easy to calculate, particularly in reference to those that have happened in the past.

Since we use the past expenses to calculate the future expenses, we will be doing this slightly different from the previous heads of damage, calculating the past first.

Quantifying Your Past Out-of-Pocket Expenses

To quantify your past expenses, you simply need to list the main out-of-pocket costs you have incurred as a result of the medical negligence.

This is generally in the form of:

It’s important to remember (when listing medical costs) to factor in previous payments owed to third-parties, such as Centrelink and Medicare. This needs to be done as the amount will be required to be repaid from the settlement amount.

To calculate your costs:

The total will be your past out-of-pocket expenses, but there is one more thing to consider on this amount – the interest!

Interest on past expenses

We can’t forget that there was a potential to earn interest on the past expenses. The law in
QLD takes this into account, allowing you to be compensated for it. To work out what amount
you should be compensated for, follow these steps:

You can now add this number to your schedule on page XX.

Now that we’re finished with the past, we can move onto the final section – your future expenses.

Quantifying Your Future Out-of-Pocket Expenses

Once again, predicting the future is difficult – but here’s where we heavily rely on the experts to help us out.

Nearly all of your out-of-pocket expenses will be related to medical necessities – whether that’s appointments and medication, travel to and from, or recommended modifications from an occupational therapist.

The good news from this is that you can rely on a medical professional to identify what future costs you could incur and for how long. They will generally tell you the cost of these items, and you can note them down.

For contentious and varying items such as pain killers, where an amount can’t possibly be
prescribed for ten years down the track, a ‘global buffer’ can be applied. This is an estimated
amount for any unforeseen costs you might experience.

This is the first option but, for a more precise calculation, we’ll be basing your projected requirements off your current requirements (once your injury has stabilised).

We wait for injuries to stabilise so that we have an understanding of what the longterm might look like.

To calculate your future costs using this method:

Putting it all together.

You should now have added your figures to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the
$150,000 quantum threshold.

Below is Tom’s example.

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the $150,000, don’t dispair. You might be in a position where liability is clear cut (or admitted) and you won’t need the expert reports in your situation.

You can fill in this interactive form and will get reviewed by an experienced medical negligence lawyer who will provide you with a step-by-step guide of what to do next.

Monetising the pain and suffering you've experienced.

In this section, we’re going to focus on the actual victim of medical negligence, and how the injuries have impacted their life.

We call these ‘general damages’.

In simpler terms, it refers to the impacts of medical negligence that cannot immediately be measured in monetary value. These impacts include:

To help quantify something so subjective, the courts created a generalised approached called the ‘Injury Scale Values’ (ISV). 

The scale goes from 0 to 100 and, generally, the higher the ISV number, the greater the injury,
the bigger the compensation.

For example, the impact of paraplegia on your quality of life will be much greater than a stubbed toe – the ISV considers this and produces a general figure for each – $283,800 and $3,160 respectively.

So, now, let’s dig deeper and explore what ‘pain and suffering’ means in legal terms, and convert it to a dollar figure.

Quantifying Your Pain and Suffering

Despite its subjectivity, pain and suffering is quite easy to calculate because of these ISV’s.

What you need to do is not be intimidated by the number of steps – each is a bite-sized step of a larger, simpler process.

To find out the value (ISV) of your injury and what it’s worth, follow these steps:

Consideration for mental trauma.

There are a few extra steps involved when recording your mental injuries.

In the CLR, instead of noting what the injury is, such as ‘schizophrenia’, ‘PTSD’, ‘anxiety’, etc., it
instead refers to a ‘PIRS’ rating. This stands for the ‘psychiatric impairment rating scale’.

This is used because the measurement is taken by the level of impairment caused, rather than the ‘injury’ itself.

For example, it will consider in what ways PTSD has affected you, rather than what the level of
PTSD you have is.

Straightforward, we need to work out your PIRS and then convert it to an ISV. This will then be converted to a dollar figure.

You have now measured your level of mental impairment and can translate that to an ISV number. To do this:

The conversion from ISV to $

We’ve worked out some numbers... but what do they mean and how do we translate them to a dollar figure?

Putting it all together.

You should now have added your figures to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the
$150,000 quantum threshold.

Below is Karen’s example.

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry.

We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.

Monetising the care your family provides. 

Now that we’ve calculated the biggest head of damage, we can move onto the second biggest – care.

And don’t worry, this one’s easier.

Victims of medical negligence will often find themselves relying on relatives, partners, and other persons for care and assistance.

As opposed to commercially paid or hired help, this type of care is referred to as ‘gratuitous’ – or, free of charge.

But, the addition of this care can often have a heavy impact on the providers, taking time out of their social lives, work, and other day-to-day duties.

To compensate for this, the court offers an award for gratuitous care services.

This award is calculated with reference to the market (or commercial) cost of the services, with the extent of coverage stretching far and wide across common duties such as:

Day-to-day duties;

Personal duties;

Home and maintenance duties; 

Before we jump in, we wanted to cover off some important limitations, or criteria, that apply to gratuitous care payouts.

Now that you’ve checked your eligibility for gratuitous care, let’s
jump into calculating it.

Quantifying your Future Gratuitous Care

Future Economic Loss

To start your calculation, you will need to:

Quantifying your Past Gratuitous Care

Now that we’ve quantified your future care costs – the significant costs – we can start quantifying the care you’ve already received.

And doing that isn’t too hard.

Putting it all together.

Now you can add this to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.

Below is Jess's example:

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry.

We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.

Quantifying your contribution to the workforce. 

It’s not uncommon that a victim of medical negligence will experience difficulties in trying to return to work in any capacity, let alone the same job.

The strain of an injury, or the mental trauma inflicted, can often cause the victim to lose wages, now, and into the future.

The past and future economic loss head of damage aims to protect the victim from a loss of earnings. It bridges the gap between what they used to earn, what they earn now, and what they will earn 20 years into the future.

More specifically, it can cover things like:

These are the types of things not accounted for in most government and private insurance
schemes.

Schemes like the NDIS or Private Accident Insurance.

These schemes will pay the immediate out-of- pocket expenses, but not pay for loss of earnings.

The law will, as much as reasonably possible, try to put the injured person back into the position they most likely would’ve been in before the accident, which includes considering their future potential.

And just how you calculate these future losses can be a complicated exercise.

See, if you asked yourself 10, 15, 25 years ago where you’d be today, you’d probably have no idea.

But that’s precisely what this head of damage is asking you to do – predict every wage-earning movement from the date of the incident until the expected time of retirement.

It might seem impossible. But in just 15 minutes you will be able to do it.

Below we’re going to step you through the same process a lawyer would take to help you calculate your economic loss - considering your future first, and then the past.