Insurers can be hard work.
Notes can be essential two or six or ten months later when you when you put together all the important facts into a final demand for compensation. .
Having notes to remind you of all of the details of what happened, and what you went through is far easier and more accurate than relying on your memory.
Start by making a word doc or writing in a journal. Alternatively, use Google Docs, so you have access to your notes wherever you are.
As soon as your head is clear enough, write down all the details of your treatment.
Take notes of things including:
This is the bulk of your journaling. Do not skip small details. Include every detail of what you saw and heard and felt…
…all of the twists, blows and shocks to your body immediately, during and right after the accident.
You don't know how valuable the minor details could be later down the track. Write everything you can think of down.
Be sure to include anything you remember hearing anyone – a person involved in the accident or a witness – say about the accident.
In the first days following your accident, make daily notes of all pains and discomfort your injuries cause.
For at least the first month or two make notes daily on areas such as:
Again write down the small details. You may suffer niggling pain that seems inconsequential at the time but may become important when you trying to gain compensation.
Taking notes on your injury will make it easier for you (and possibly your lawyer) to later describe to an insurance company how much and what kind of pain you were in, and for how long.
Writing down your different injuries will also help you remember to report them to a doctor or other medical provider when you receive treatment.
A relatively small snap of the neck, for example, may not seem worth mentioning…
…but it might help:
…understand why your bad back pain developed two to three days later, or several weeks, after the accident.
The easiest way to provide evidence of the injuries sustained in the accident is to have them documented in your medical records.
The only way to get your injuries into a medical record is tell your doctor about them and to accurately do that, you will need notes to jog your memory.
As the saying goes, a picture is worth a thousand words…and then some. Photos are useful because they…
…preserve evidence of the extent of the injury
…show the damage better than you can describe them
…are difficult to contradict. An insurer will find it harder to deny the evidence in a photograph.
Wounds and injuries heal. Without photographs it will be difficult later to convince an insurance company in the ways and to the degree you claimed.
Failing to seek immediate treatment can lead an insurance company to believe that your injuries were not that serious, or that you made them up entirely.
Don’t be a hero. Seek medical attention or it may come back to bite you when you really need it.
The high cost of medical treatment often makes people reluctant to see a doctor or physio.
But in the case of an accident where someone else was at fault, that person or business, through it's insurance company, will be obligated to repay you for all reasonable medical expenses associated with your injury.
You may also be entitled to compensation for economic and other losses. But you will need documentation.
Most claims for economic loss rely on you proving that you either:
...because of your injuries.
Other important notes to make that don’t relate to your economic loss but rather cover your general loss of enjoyment of life include missed:
Make note of these factors too. They can often be overlooked in a compensation claim and can be financially compensated for.
Return to the scene of the accident as soon as possible to locate any evidence and photograph any conditions you believe may have contributed to the accident.
Draw a diagram of where key things were/are located such as:
Again, take photos from a range of angles. Be sure to take them at around the same time of day as the accident to show the appropriate light and traffic conditions.
Having a witness on your side is powerful.
Witnesses may be able to describe details that confirm what your believed happened. This backs up your story…
…and ensures that the insurer can’t dismiss your claim.
Here’s how to gather evidence from witnesses so that the insurer cannot disregard their statement.
Start taking notes about conversations (telephone, in person or emails) that you have witnesses, insurance companies, lawyers and medical personnel (such as other doctors, nurses or admin staff).
Make written notes of the:
...of every conversation you have about your treatment or complaint.
This last point is less about note-taking and more about taking an extra action that covers all your bases so no insurance company can discount you as a liar.
In the course of your claim, you will likely be told or promised something or given some information that you want to make sure isn’t denied at a later date
…the witness statements or
…results of tests
…when you expect to hear the result of your complaint.
Immediately after the conversation, send a letter confirming what the person told you. The letter does not have to be elaborate, just a brief restatement of what was said.
Make a copy for your files before sending it on.
A sample email or letter can be shown below
111 Smith Street
Brisbane QLD 4000
Dear Mr Smith,
This email is to confirm our telephone discussion on January 2, 20xx in which you informed me that you would advise me of the outcome of my claim by no later than January 15, 20xx.
Thank you for your attention to this matter.
The claims process can be a battle of determination. But with these notes, you will be holding all the cards.
... A sport I’ve tried my best to wrap my head around for a long time, but for the life of me I just can’t understand the appeal.
It’s a culture unto its own.
From getting up at ungodly hours in the dark, squeezing into some brightly coloured Lycra (often leaving little to the imagination) and punching out a few hours on the road dodging cars, all before breakfast.
I’ve tried my best but just can’t get into it, hats off to you mob that genuinely enjoy it. The only thing I can relate to is the post ride latte.
But hey, I’m all for exercise and getting people moving so if you fit the mould go for gold.
That being said, cyclists tend to get a fair few injuries, and not just from the bastard neighbourhood magpie/plover.
Any cyclical activity (cycling, swimming, running) has the potential for things to creep up slowly like compound interest.
Little niggles can build and build until merely the thought of your 1kg carbon fibre frame with wheels makes your knee ache. So to keep you on the road longer (much to the annoyance of local territorial birds) here are some tips to staying healthy.
Zipties in the helmet – magpie repellent. I really don’t know the effectiveness of this, or if there’s actually any data to back it up, but I’ll be damned if you don’t look stylish in those helmets.
Make sure the bike fits you; have a PhysioBikeFit – Each person has a “window of function” regarding the shape and size of the bike, meaning there are no exact measurements. Some riders will need to change their set-up during a season as they get fitter and stronger. If the body fits the bike, and is well conditioned, there is less pain, overload, and need for recovery. With direction from your physio’s assessment, your body can be adapted and changed for the better.
Have a great pedalling technique – Efficient pedalling not only allows you to go faster for longer, but also shares the load, preventing specific overload of any one joint or area of tissue and minimising discomfort. Which means less energy spent, stronger and quicker rides and a reduced risk of injury. Win, win, win.
Vary your riding – There’s no need to ‘go hard or go home’ every day – There is a tendency for Australian cyclists to compete and ride hard all the time. Not even pros ride hard every day, nor should you. The day after a long, hard riding session should be easy, with high cadence, low resistance pedalling. Even at the end of a hard ride you should have 15-30 minutes of easy pedalling to recover your legs and flush out the lactic acid build-up.
Warm it up – If you are suffering from stiffness or soreness, your technique may suffer. Especially those chilly winter morning rides. Also, cold muscle is more likely to be injured. The best warm-up is to allow your blood to circulate, warming the tissues. Build easy into your cycle by pedalling easy to begin with.
Strength and Conditioning – having a great well rounded strength program will compliment your riding immensely. Talk to your physio about a good program that includes both upper and lower body exercises, targeting any specific weaknesses identified
Lifestyle - Target sleep, stress, diet and alcohol, general health can really affect your ability to perform and recover. A lack of sleep increases the risk of stress fractures by 300%; stress makes you more likely to be injured, and slows recovery from injury and also those tough rides.
Diet – Eat to fuel performance. Our bodies can probably handle one hour without food, but from the second hour onwards it requires 50-100mg of carbohydrate per hour. Protein after a ride is a great idea for recovery.
Have a strong and consistent recovery routine – Muscles can become sore due to inflammation and tightening of the fibres, with lactic acid build up a by-product of exercise. Gentle stretching and self-massage helps to remedy this, a spikey ball and foam roller are essential. Using cold or hot-cold therapy, like walking in the sea or hot-cold showers.
Physio and Massage – Along with a good recovery routine, checking in regularly with your physio/massage therapist is a great way to keep on top of any niggles, aches and pains. And to make sure the body is functioning as it’s meant to.
If you or someone you know loves to punch out kilometres like Cadell Evans, be sure to take note of these tips. It could be the difference to being on the road or watching your bike collecting dust in the garage. With any sport it’s essential to stay as healthy and injury free as possible, otherwise what’s the point right? So take care on the road you crazy cyclists.
Stay tuned for another article from the Queen Street Physiotherapy team soon
In the meantime, if you have any questions regarding this interview, treatment of cycling injuries or other health issues please do not hesitate to contact Donovan and the rest of the team by visiting the Queen Street Physiotherapy website.
Queen St Physiotherapy offers ergonomic advice, custom made orthotics, running assessment, hydrotherapy, dry needling, remedial massage, exercise and stretching programs.
EMILY BILLIAU // Australia's Leading Lawyer for Cyclists
Perhaps the driver fled the scene of the accident or the rego plate is too blurry to read on your camera footage.
Your bike is trashed, you're in pain, and you're all on your own.
So who do you turn to?
Get the police involved early
If you are unable to identify the vehicle involved, it important that you act you promptly.
You should take steps to urgently report the incident to police.
Critically though, if police are unable to identify the vehicle that caused the accident, you may still be able to pursue civil action.
Your claim would proceed against the state insurer, the Nominal Defendant.
Who is The Nominal Defendant?
The Nominal Defendant is a statutory corporation established under the Motor Accident Insurance Act 1994 (MAIA).
It serves as an insurer of last resort.
One of it’s purpose is to provide access to compensation to persons injured as a result of the negligent acts of drivers of unidentified motor vehicles.
Unfortunately, claims against the Nominal Defendant can involve quite complex legal issues.
The legislative and procedural requirements that apply to bringing a claim are strict.
To get the police to take action, you have to take action. Getting the police involved early will help you later on. Make sure you note the officers and the station that you spoke with. If you need a hand with what to say then hit the big orange button below.
To succeed in a claim against the Nominal Defendant, you will need to be able to establish that you have undertaken due search and enquiry to identify the vehicle involved.
EMILY BIILIAU // Australia's leading Lawyer for Cyclists
Like all legal terms “due search and enquiry” can be vague.
Lawyers refer to claims against the Nominal Defendent colloquially as a “Nommo claim”.
...and if your claim is to succeed you need to fully exhaust all avenues YOURSELF to identify the vehicle.
You need to carry out the “Nommo Inquisition”.
In general terms, “due search and enquiry” means:
And the best advice is to overcook your efforts….leave nothing to chance.
And if you adopt this “nothing left to chance’ mindset you will turn “due search and inquiry’ into ‘The Nommo Inquistion’.
Because the phrase ‘due search and inquiry’ is vague the effort required to satisfy the ‘Nommo’ can vary dramatically from case to case.
….due search and enquiry may be found sufficient in one matter, and insufficient in another.
The first step in deciding whether to locate the unidentified driver is to ask yourself "Am I doing the right thing?" Take the poll below to see what others think.
In the matter of R –v- Nominal Defendant, a truck was driving on the Pacific Highway, not far from a particular Truck Stop, at approximately 6.00pm in the evening, when one of the wheels of the B-Double truck detached from the truck, striking the barrier and colliding with Mr R’s vehicle.
The truck did not notice that the wheel had become detached and did not stop. They were also unaware that an incident had occurred.
In an attempt to identify the truck the claimant did the following:
1. Placed an advertisement in a local newspaper;
2. Put up Truck Stop Notices, within a five kilometre radius of the incident site.
In such circumstances, it was accepted, given the
that the due search and enquiry was reasonable and the Nominal Defendant accepted that the vehicle was unidentified.
Community notice boards can be an integral part of your 'inquisition' campaign'. They need to be local to where the incident was. Putting up a notice on a public board in Sweden probably won't help your case if the accident happened in Birdsville.
In the matter of L –v- Nominal Defendant, an incident occurred on a local suburban Street in Ashfield New South Wales, where
In this matter, newspaper advertisements were undertaken and the Nominal Defendant identified that:
“such enquiry was not reasonable and determined that “due search and enquiry” had not been fulfilled”
It was suggested that in such a circumstance, given the time and place of incident, a door knock and postal drop would have rendered further assistance.
It is noted that such enquiries were then undertaken by the claimant, resulting in no witnesses being found.
Accordingly, upon forwarding further information to the Nominal Defendant, it was ultimately determined that “due search and enquiry” had been fulfilled.
It is clear from these two examples, that “due search and enquiry” has no one meaning.
Door knocking doesn't have to be hard, nor should it be intimidating. Most people will be happy to help you if they saw something. People want to live in safe neighborhoods so will generally do anything they can to help a victim of a hit and run that happened in their street. If you need a plan or a script of what to ask for click on the big orange button below.
Whilst this list seems overwhelming, a slip-shod approach to finding the offending driver could cost you tens or even hundreds of thousands of dollars in lost compensation.
EMILY BILLIAU // Australia's Leading Lawyer for Cyclists
The right way is to leave no stone unturned and follow the checklist above.
The wrong way is to leave the investigation in the hands of others and/or do a half-way job.
It is simply not worth the risk.
"Fortunately for cyclists you can force a police investigation into the actions of dangerous drivers. Just follow a simple civil law process."
We can all agree that a 'near miss' on the roads can be terrifying.
Imagine the cyclist's level of frustration when they take he video footage to the local police station only to hear one of these excuses:-
Traffic incidents and crashes may be reported to Qld Police in a number of circumstances. For example:-
The cyclist does not have to report the incident if points 2 and 3 above are not applicable.
But let's say that points 2 and 3 are on the table.
Officers receiving reports of traffic incidents involving psychological trauma are to ensure that the incident is recorded and investigated in accordance with their Operational Procedures Manual.
“It is a fact of law that police are obliged to investigate certain types of road incidents.
You cannot be turned away.
You do not have to accept their reasoning or excuses.
This is the law.
Remember our laws apply to law enforcers too.
let's all work together to make the roads safer.
Emily Billiau - Principal, CycleLaw
Reporting an incident to a police should not be an intimidating experience. You should not feel as if you are the offender. If you are worried you won't be taken seriously run your story past me (by clicking on the orange button below) before you go to the police station.
So, if you are traumatised by an incident and intend to make a claim against the driver, you are required by law to ensure a police officer is notified of the incident.
Once you have the form it's a pretty straight forward process:
1. fill out the form
2. take it to the police station
3. speak to the officer in charge of the station who will
4. assign the notice/form to an investigating officer
the investigating officer should provide you with an occurrence number which you can use to follow up your claim against the driver
Officers directed to investigate an incident such as a 'near miss' that causes trauma should:
An injury often leads to time away from work. Whether you’re an employee, a contractor or a business owner; this usually means economic loss.
Compensation claims can cover for this loss, but figuring out how much to claim is not always easy. Find out why the Judge rejected Gary’s calculation (in Land v Dhaliwal & Anor ), and how you can avoid the same outcome.
Gary had an interesting work history. Like many people, he’d tried a few things. He’d worked as a fitter and turner, a barman, a go-go dancer and a cleaner. He’d studied, he’d travelled, and he’d owned a doughnut business.
About 4 years prior, he became involved with bicycle shops – as an owner and also a mechanic. One year before the accident, Gary purchased the bike shop he was working at and took over the running of the business.
I have finally found something I am passionate about and good at.
I am working hard to make this business profitable for me and my future family.
My wife and I are expecting our first daughter this year so I am really pulling out all the stops now.
Then the accident happened. Gary was cycling along Airport Drive in Eagle Farm, Brisbane when a taxi driver pulled in front of him. The driver came to an immediate and sudden stop. Gary was flung over the boot of the car.
Gary suffered an extensive back injury and aggravated an existing knee injury.
He underwent several surgical procedures to both his back and knee but was left with chronic pain.
After the accident, Gary couldn’t return to his normal life. He couldn’t stand for long periods, struggled to sleep, and suffered memory difficulties.
He struggled to work and do simple everyday tasks he had done before the accident.
Gary’s frustration started affecting his relationships and work. He could no longer remain patient with customers and he had to employ more staff to cover the work he couldn’t do.
With mounting medical bills and more stress at work, Gary was forced to sell his business. His dream of being able to provide his family with a stable income was now impossible.
He felt like he had let everyone down.
The government recognises this and provide people like Gary an avenue to access compensation to cover their financial hardship, known as Compulsory Third Party (CTP) scheme.
It also provides an opportunity for cyclists to hold motorists accountable for their negligent acts.
Compulsory Third Party (CTP) is insurance attached to the registration of your vehicle, which provides protection to the at fault driver, against compensation claims from people injured in a motor vehicle accident
Gary brought a personal injury claim to compensate him for his injuries and the effect they had on his life. He brought his claim against the taxi driver and the taxi driver's compulsory third party (CTP) insurer. His claim consisted of the following components:
Most parts of his claim were simple. But as Gary soon found out, putting a dollar figure on the impact the injuries have had on his life was harder than he thought.
Because of his varied and complex work history, Gary’s assessment for economic loss was a contentious issue at trial.
To calculate Gary’s economic loss, the Judge had to calculate:
Gary’s economic loss is the difference between those two amounts.
The tricky part was figuring out what those two amounts were. Gary and the defendants had very different ideas about this.
Gary relied on a chartered accountant to calculate his loss. The accountant estimated Gary’s economic loss to be over $750,000.
The accountant came to this figure by looking at the profit of Gary’s bike shop before the accident, and the profit of Gary’s bike fitting business some years after the accident.
The accountant calculated the difference between those two figures and claimed that that loss would occur every year until Gary’s retirement.
The Judge did not like this approach for a few reasons:
The Judge rejected Gary’s calculation, saying:
“The methodology adopted by [the accountant]…suffers from…difficulties… accordingly, I do not accept the bases advanced by [Gary].”
The defendants engaged a forensic accountant to properly analyse Gary’s earning capacities.
The forensic accountant provided an expert report and later gave evidence at trial.
The forensic accountant focused her calculations around the value of Gary’s labour. She figured out what this was by looking at what Gary paid his staff to fill in for him. Or in essence, how much Gary would have earned working for another company as a retail manager and bike mechanic.
The forensic accountant went into great detail and explored many hypothetical scenarios. Importantly, all of these scenarios matched how the Courts typically assess economic loss.
The Judge liked the forensic accountant’s calculations, saying:
“…the methodology employed by [the forensic accountant] is consistent…with the relevant principles for the assessment of economic loss.”
The Judge adopted the forensic accountant’s approach and awarded Gary just under $250,000 for economic loss.
This was $500,000 less than what Gary was claiming.
Gary was smart enough to know he needed help – but he called in an accountant who wasn’t equipped for the job.
The defendants were smarter and called in an expert in this area of accounting – one who was familiar with how the courts expect economic loss to be calculated. As a result, she came up with a much more compelling argument, provided multiple alternatives to cover her bases and won.
Even if an injured person’s career path is more straight-forward than Gary’s, it’s still difficult to predict what their earning capacity might have been and what it is now. There’s no crystal ball that can show us both scenarios.
To properly calculate economic loss, there needs to be careful analysis of things like:
Asking an expert to do this analysis can make a lot of difference. In Gary’s case, it was a $500,000 difference.
Learn from Gary’s mistake. If in doubt, back up your claim with an expert – preferably one that knows the Court system.