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Part 4: How much is my claim worth? – Pain & Suffering

Emily Billiau

Principal

It is a significant part of a compensation claim.


Particularly for those who cannot claim wage losses, such as young people, retirees or the unemployed, pain and suffering often comprises the most considerable part of a compensation claim

We are back again with the final part of our four-part series on quantum or how much is your claim worth.

As discussed in Part 1, Part 2 and Part 3, many factors influence the amount of compensation a person can receive.

In this article, we learn about the final factor (or head of damage in legal-speak), known as pain and suffering.

For the injured person, the suffering post-incident can feel like it has the most significant impact on their life.

The hardest part is quantifying that intangible pain left after an injury. While difficult, it shouldn’t be overlooked.

What are pain and suffering damages?

Pain and suffering damages (aka general damages) refer to an award given by the court to the plaintiff for physical and emotional pain due to injury, illness, or loss. 

These damages are not the same as economic damages, which reimburse the injured person financially but are meant to assist them with the pain inflicted after an incident.


What are some examples?

Typically, claims for pain and suffering are for such things as:

  • Actual pain and suffering experienced
  • The pain and suffering you will encounter in the future
  • Loss of enjoyment of life
  • The inability to participate in your pre-injury sports, hobbies, education and recreational activities
  • The shortening of your life
  • Grief over the death of a loved one

Unfortunately, just because you may have experienced pain and suffering does not mean you will necessarily be entitled to compensation for it.


Why would you not be entitled to it?

The awards for pain and suffering depends very much on the circumstances surrounding the incident in which you were injured.

For example, being injured at work can result in different compensation entitlements to being injured in a car accident or a fall in a shopping centre. 

This difference is because there are different laws apply to each type of accident.


How is pain and suffering proven?

The pain and suffering of an individual can be subjective and very difficult to prove.

Medical experts are typical witnesses in these cases and often pivotal to a cases success. 

This is because they can determine the impact the injuries may have had on the injured person's livelihood. They can do this based on an Injury Scale Value (ISV) scale (see below).

However, the court takes into consideration other factors in its analysis, including:

  • The extent of the injury, as well as the medical diagnosis and prognosis.
  • Length of time that the symptoms have been presenting.
  • Physical or mental limitations in the plaintiff’s daily life (e.g., work, school, everyday tasks).
  • Accounts of other individuals with similar injuries, and the extent of their reported pain and suffering.

How much can you claim?

More on the ISV Scale…

Without getting too complex, the ISV scale is used to calculate pain and suffering damages in Queensland.

The scale regulates the award given for the areas of compensation based on the individual's level of injury.

Each injury has a corresponding ISV range. For example, a minor injury such as whiplash might have an ISV range of 5 – 10. Whereas, a severe injury such as quadriplegia may be at the top of the scale at 100.

Medical experts can help determine where a person might sit on this range.

Once the ISV range is known, then that range corresponds to a monetary amount on the scale.

For bicycle injury claims, your ISV range can be determined from the civil liabilities act Schedule 4.

These can be very subjective and confusing, so we recommend seeking expert advice before lodging any claim.

Tips for maximising your settlement amount.

When filing a claim that involves pain and suffering damages, you may wish to follow these guidelines:

  • Try to be as specific as possible when presenting your condition- vague conditions that can’t be proven will not result in an award of compensation
  • Make a log of your injuries before and after the incident - this will help to determine how your pain and suffering is related to the event, whether it be a car accident, slip and fall case, or another type of personal injury
  • Keep all written legal documents, such as police reports, medical receipts and bills, pay slips, and other records that can be used as evidence

Finally…

Be sure to read up on the other areas of compensation available to you to maximise your overall settlement amount. Click the links below to read them all.

Part 1: How much is my claim worth? – Future Economic Loss
Emily Billiau Principal ​Most people have heard of personal injury claims but very few would understand what quantum is. …and[...]
Part 2: How much is my claim worth? – Care Costs
Emily Billiau Principal Care costs can be the single most significant component of a claim.  Particularly when the injured party[...]
Part 3: How much is my claim worth? – Medical Expenses
Emily Billiau Principal Medical Expenses are a crucial part of all claims for compensation. Why? Well apart from the obvious[...]

Written by Emily Billiau | Principal

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Part 3: How much is my claim worth? – Medical Expenses

Emily Billiau

Principal

Medical Expenses are a crucial part of all claims for compensation. 


Why? Well apart from the obvious fact they pay for the cost of any medical treatment...


... compensation for medical expenses allows you to recover to your fullest extent as it removes the stress of working how you are going to afford it. 


It also gives you access to the tools needed to get back on with life, if you are unlikely to make a full recovery. 

We are continuing our four-part series on discovering the areas that your can claim under. 

Understanding these areas, will allow you to estimate how much your claim is worth. 

In this article, we unpack what medical expenses you can claim for, some example claims and the evidence you will need when approaching the insurers.

Don't forget to read  Part 1 on future economic loss and Part 2 on care costs

What are medical expenses?

Without stating the obvious too much, medical expenses relate to the costs of rehabilitation following an injury.

The expenses include both past fees that were already paid for, as well as future medical costs.


How much can you claim?

As is the case in every other area of compensation, the amount that can be recovered will vary depending on the individual’s treatment plan and care needs.

Some real-life case examples have been provided.

Example 1 - Slip & fall, permanent brain injury

Adam was cycling home from work one afternoon when a car failed to see him ahead and collided into the rear of Adam's bicycle.  Adam was throvn over his handlebars and landed heavily on his right shoulder. The force of the fall smashed his head into the ground. Despite the fact he was wearing a helmet, Adam suffered a brain injury. He was kept in hospital for a week to monitor his head and other injuries.

Adam has substantial memory deficiencies now. He finds it difficult to concentrate and had to relearn basic skills including walking and talking. 

Beyond that, he has significant post-traumatic stress disorder after the accident and cannot be in a car, let alone a bicycle. 

To facillitate his recovery, Adam requires comprehensive rehabilitation including physiothereapy, pyschology and others. He also needs the help of various assistive technologies to aid his walking.  

Because his life was irrevocably changed at such a young age and he requires significant ongoing treatment and assistive technology, Adam was awarded $409,000 toward his medical expenses.

Example 2 – pedestrian accident, ongoing hard damage

John was cycling along Moggill Road when a driver suddenly exited their driveway onto the road, taking John out with them. 

John flew over the back of the car. He landed heavily on the road, breaking his left ankle in the process.

The significant impact also caused nerve damage to his right arm. After much rehabilitation, John's nerve damage still causes him constant pain. He now requires regular doses of pain killers to manage his ongoing injury. 

John was awarded as part of his compensation a total of $32,496 for the cost of his past and future medical expenses (including medical appointments, medications and rehabilitation treatment).


What can you claim?

Some typical medical expenses that are included in a compensation claim include:

  • Hospital bills
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    Diagnostic testing expenses (laboratory fees)
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    Surgery costs
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    Therapy and rehabilitation costs (including physio, massage, psychology and much more)
  • Cost of prescription medicines
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    Cost of future home modification
  • Cost of any assistive technology required (crutches, wheelchairs, modified cars etc.)
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    Pain management

For this reason, it's essential to be very thorough when documenting injuries in your claim file so that it is possible to calculate damages to account for future problems.

It is also important to attend all medical appointments or therapy sessions.


What evidence will you need?

Proving these expenses may require the help of an expert medical professional. Usually, thorough documentation is needed to calculate the total costs of medical treatment. These may include the presentation of various items of evidence in court, such as:

  • Hospital bills;
  • Chiropractor or medical therapy costs;
  • Medical treatment receipts;
  • Pharmaceutical bills; or
  • Any other documents showing the costs of the medical expenses

Keeping a clear record of items related to your injury is paramount to maximising your compensation amount.

As the old bible saying goes – Ask, and you shall receive.


There are many cases we have seen where critical medical expenses have been left out of a person’s compensation because of inadequate documentation, or they just forgot to include it.


It is crucial to gain expert advice from occupational therapists and doctors on likely requirements you will need in the future.


Small expenses such as assistive technology and home modifications are often overlooked but can be so important to an injured person’s quality of life.

Emily Billiau

Principal

Keeping a record of the medical expenses (treatment costs, medications, assistive technology) you had due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having a claim at all.

Keep a spreadsheet that details the following:

  • Type of service or item
  • Service or item provider (doctor surgery or pharmacy)
  • Date of service/purchase
  • Cost of service/item
  • Will the service/item be required in the future and how often

To help ensure that you maximise your damages, keep in mind the following helpful tips:

  • Buy all of your prescriptions/dressings/painkillers etc. from the one pharmacy and ask your pharmacist to record all of your purchases.  When it comes time to claim your damages, you can simply obtain a printout from the pharmacy;
  • Keep receipts for any purchases that you have made;
  • Photocopy or scan those receipts, in case they get lost or destroyed;
  • Consistently fill out the table as each service is provided.

Next Steps...

Don't miss out on other aspects of your claims...

...read the other blogs in the series below.

Part 1: How much is my claim worth? – Future Economic Loss
Emily Billiau Principal ​Most people have heard of personal injury claims but very few would understand what quantum is. …and[...]
Part 2: How much is my claim worth? – Care Costs
Emily Billiau Principal Care costs can be the single most significant component of a claim.  Particularly when the injured party[...]
Part 4: How much is my claim worth? – Pain & Suffering
Emily Billiau Principal It is a significant part of a compensation claim. Particularly for those who cannot claim wage losses,[...]

Written by Emily Billiau | Principal

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Part 2: How much is my claim worth? – Care Costs

Emily Billiau

Principal

Care costs can be the single most significant component of a claim. 


Particularly when the injured party doesn’t work (therefore doesn’t have significant income loss) but is seriously injured.

How much is my claim worth?

It's a big question.

And one that is asked by every claimant we see.

Unfortunately, the answer is never straightforward – mostly because there are many factors that significantly influence the overall amount awarded. 

The amount of compensation that a person receives is known as quantum.

As we learn through this four-part series, there are a number of areas under which you can determine what your quantum is and in turn, discover how much your claim is worth.

The second topic we will be covering is care costs.

Be sure to read our first article on future economic loss first.

What are care costs?

Care costs relate to an injured party inability to complete daily living tasks.

The idea is the amount of money received under this head of damage will pay for another person to assist with daily living and maintenance task.

The care can be provided to you by friends, neighbours or relatives, or you may have engaged paid services to undertake the tasks you could not perform yourself due to your injury.

Legislation in Queensland imposes threshold care requirements in cases of motor accident injury or public liability claims, and there are increased restrictions on care claims when claiming for a work injury.


How much can you get for it?

Again, this is dependent on the level of care that is required based on your unique circumstance.


What factors influence it?

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    The extent of injuries and their lasting impact on your ability to complete daily tasks
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    What daily tasks you completed before the accident
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    The ability to PROVE the above two factors

Example 1 – Bicycle Car Accident 

Jack was an 25-year-old, training for the cycle leg of an upcoming triathlon. He was riding in the streets close to Mt Cootha and as he crossed an intersection with a green light, a car sped through a red light and straight into Jack. 

Jack was left quadriplegic. For the rest of his life, will require assistance with feeding, toileting and bathing. All movement around his house, getting in and out of bed, and any daily errands will need help from another person.

His claim for compensation included daily care to assist him in completing tasks as well as home maintenance, garden care and driving services. His care cost totalled $2.5 million.

Example 2 – Inferior Infrastructure Accident

Angie was cycling along a bike path on her way to work. Angie slowed as she approached a stretch of the path that she knew was slippery due to the surface material. She had heard of other cyclists having accidents at that same spot before.    

Despite her efforts to stay safe, Angie's wheels had slipped on the surface. Angie instinctively held her arms out to catch herself. By doing so, Angie fractured both her wrists. She required surgery to correct her fractures and her surgeon indicated that recovery would likely be slow. Because of her injuries, Angie could not longer complete household and personal care tasks. She relied on her husband and as well as some commercial help in the form of a cleaner for around 8 months. 

Angie’s claim for care totalled $35,000. The money covered the cost of her cleaner and compensated her husband for his time assisting Angie. 

What care is covered?

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    Domestic tasks – such as general household chores such as cooking, cleaning, mopping, vacuuming, taking out rubbish, changing bed sheets, laundry, ironing, cleaning windows or mirrors, dusting, scrubbing out bathroom areas, grocery shopping etc.;
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    Personal care tasks - such as helping you out of a chair or bed, or helping you to the toilet, helping you bathe, helping you dress, changing bandages or cleaning wounds, helping with hair care, obtaining your medications or medical aids for you, cutting your toenails or shaving, even providing you with massages to relieve pain etc;
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    Travel tasks – such as driving you to appointments or helping you run personal errands. Even taxi services can be considered paid care where you are unable to drive due to your injuries.
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    Vehicle maintenance tasks - such as cleaning your car, or undertaking your car repairs or maintenance that you did yourself before the accident;
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    Home maintenance - such as cleaning down gutters or eves, washing down walls or outside windows and screens, house repairs and general maintenance to your home such as fixing gates or even changing light bulbs etc, as well as yard maintenance such as mowing the lawn, undertaking the gardening, weeding, whipper snipping, lopping back trees, pruning bushes etc.

Did you know you can also claim for the help your friends and family provide?

It’s known as gratuitous care.

Confusing title aside, it relates to any voluntary work of third parties (like your friends, family (including your partner), neighbours, and very kind strangers) who assist you in any of the above tasks.

IMPORTANT: Under legislation in Queensland, a person can only claim for gratuitous care if:

  • The care is different from any help previously provided
  • The care was/is provided for at least 6 hours a week and for at least 6 months.

Take for example....


If your mum helped look after your children one day a week while you work, and she continued to assist while you were off work recovering, that assistance could not be claimed for after the accident.

 

However, if she helped out an additional day (over 6 hrs of unpaid work) after the accident and that help continued for six months or more that care can be claimed for.

Emily Billiau

Principal


What evidence will you need?

You will need to prove that you completed the tasks before the accident.

For personal care tasks (such as showering, cleaning your teeth), it’s assumed you would have completed tasks those tasks yourself.

For jobs such as cooking, cleaning, garden care and child care, evidence is needed to show that you were responsible for some or all of these tasks within your household.

Equally so, you will need to put a monetary value on the work that you do. 

Some examples of evidence might include:

  • Testimony from partner, or someone living with you of the jobs you usually do around the house
  • Tax invoices and receipts for commercial care post accident
  • Quote for commercial care (such as a gardener, cleaner, nanny etc.)
  • Record of help provided by friends and time allocated
  • A medical note from a medical professional on your ability to complete daily tasks
  • Written testimony from friends and family of the hours worked and tasks that were undertaken.

Keeping a record of care provided since the accident is crucial

Keeping a record of the care and assistance provided to you due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having such a claim at all.

Keep a spreadsheet that details the following:

  • Type of care (paid or unpaid)
  • The service provider (company or person's name if unpaid)
  • Kind of service provided (i.e. mowing, laundry, cleaning)
  • Date and duration of service
  • Cost of service (if paid)
  • Will the service be required in the future and how often

To help ensure that you keep an accurate record, keep in mind the following helpful tips

  • Keep receipts for any services that you have paid for;
  • Photocopy or scan those receipts, in case they get lost or destroyed;
  • Consistently fill out the table as each service is provided;
  • Ask the service provider to give you an "Itemised Account" that details the dates and costs of each service when they are performed

No good compensation claim is without Future Economic Loss.

Like the saying – don’t put all your eggs in one basket - don’t forget to read the rest of the articles in this series on the other areas of compensation available to you.


Part 1: How much is my claim worth? – Future Economic Loss
Emily Billiau Principal ​Most people have heard of personal injury claims but very few would understand what quantum is. …and[...]
Part 3: How much is my claim worth? – Medical Expenses
Emily Billiau Principal Medical Expenses are a crucial part of all claims for compensation. Why? Well apart from the obvious[...]
Part 4: How much is my claim worth? – Pain & Suffering
Emily Billiau Principal It is a significant part of a compensation claim. Particularly for those who cannot claim wage losses,[...]

Written by Emily Billiau | Principal

SHARE THE POST

Part 1: How much is my claim worth? – Future Economic Loss

Emily Billiau

Principal

Most people have heard of personal injury claims but very few would understand what quantum is.


…and they really should – behind liability, it's the second most significant determinant of a successful claim.​


You’d be forgiven for thinking quantum has something to do with physics. But it nowhere near as difficult to wrap your head around.


Simply put, quantum means an amount. So, it refers to the amount of compensation a person will receive for a personal injury.

As we learn through this four-part series, there are a number of areas under which you can determine what your quantum is and in turn discover how much your claim is worth.

The first topic we will be covering is a person's future economic loss. This area often makes up the most significant percentage of your quantum.

[RELATED: Calculate your Future Economic Loss using our worksheet here)


What is Future Economic Loss?

Future Economic Loss relates to an injured person’s ability (or inability) to work after an accident.

Simply, it covers a person's reduced income.

For example, this area of compensation might cover a person’s:

  • Total inability to return to work
  • Fewer hours or a move to part-time work
  • Change in duties or job
  • Inability to progress career through promotions or job changes

..up until they retire.


How much can you get for it?

The amount awarded for future economic loss varies considerably.

It depends on five major factors including:

  • The extent of injuries and their lasting impact on the ability to continue working
  • Pre-employment history
  • Likely career trajectory
  • The ability to prove the above three factors; and
  • Age at trial or settlement (how far you are away from retirement).

Example 1 – Bicycle-car accident, long-term soft tissue injury

Olly was on a bike when a car switches lanes and pulls in front of him. Olly runs into the back of the car, falls off his bike and hits the ground.  

Hospital X-rays show ligament damage to his injured ankle and a cracked left wrist, which is put in a cast. Despite having worn a helmet, Olly has a concussion and is kept in hospital overnight. Olly is advised to begin a physical therapy on his ankle and wrist once its removed from its cast. 

He misses out on a week of work. 

Two months of physical therapy has had little impact on his ankle.  He found he had continuing pain for many months but was mostly able to work through it.

At age 29, he has most of his working career as a Teacher ahead of him. While he never lost the ability work (beyond his week off), Olly felt he lost work opportunities because of his continual pain meant he couldn't go the extra mile in his job. This reduced the likelihood he would be picked for new job or promotions. As it's difficult to quantify missed job opportunities, Olly's lost future earning capacity couldn't be calculated mathematically.

As a result, the judge awarded a small estimated figure to compensate his loss. Olly was awarded $40,000 in lost future economic loss. This is largely due to his young age. Otherwise, his injury has had only minor impact on his future economic loss. 

Example 2 – T-Bone collision, permanent hard injury

Jane cycling to work one morning. As she rode alongside a row of parked cars the door of one car unexpectedly flew open. Jane was thrown over the front of her bike and head first into the door. Jane suffered severe whiplash, ligament damage to her left knee and broke both wrists as a result of the incident. Jane required surgery to stabilise her wrist fractures which required her to take three months off work.

Jane was 35 and worked a registered nurse. She was in line for promotions to managerial positions. Because of the injuries suffered in the accident, she has difficulties working for long periods of time. This means she is unable to put in the hours required for her promotion. She has also found that she struggles to complete her clinical duties and cannot accept overtime hours.

As Jane’s weekly income is reduced (because she cannot accept overtime), she is $300 worse off every week. Adding to that, had Jane been successful in her promotions she would have added $500 to her weekly wage.  Combining this and multiplying it by the number of weeks until her retirement, Jane's economic loss totalled $657,600.


What factors influence it?

How is someone's future loss of earnings calculated for personal injury claims?

Someone's future loss is usually calculated by looking at four things.

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    A person’s pre-injury weekly salary is compared with their pay at trial (or settlement). This difference will fairly quantity any reductions in work hours. Understanding weekly changes in your wage is important, particularly, if the injured person has had to move to part-time work or is no longer able to take overtime work. 
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    The person's maximum salary over the course of their career is determined. This decision will quantify any lost job opportunities.  A difference between maximum earning potential and the pre-injury wage is determined.
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    An amount is then deducted from your weekly earnings to compensate for the fact you are likely to accumulate interest on your salary. This deduction is known as applying discount rate (see below). In Queensland, we use 5% multiplier. 
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    Finally, the superannuation you would have lost is accounted for based on your maximum earning potential.

How future economic loss is calculated sounds complex, but if you follow our worksheet it breaks down the steps into easy to understand (and action) summaries.

Want to know how to calculate your future economic loss?

Our FREE guide shares the secret formula insurance companies use to discover what your future earning capacity. 

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    step-by-step guide
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    clear examples
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    gives you evidence to support your claim that WILL stand up in Court.

Not downloading the guide may be the most expensive mistake of your life. 

In exceptional circumstances, calculations cannot be made.

When a person’s earning capacity is difficult to determine (such as in children’s cases, or where a person hasn’t taken time off work) a court will award a global sum.

This a blanket award of money determined by the trial judge. Such a case was evidence in example 1 above.


More on discount tables...

The discount rate relates to the rate of return that may be expected on money awarded in a lump sum settlement and is expressed as a percentage per annum.

A discount rate of 5% implies an expectation that the money, when invested, will achieve a return of 5% per annum.

Discount rates are used when assessing someone's future economic loss.

They are essential in determining how much needs to be paid now to compensate for amounts that would have been received in the future.

[RELATED: Calculate your Future Economic Loss using our worksheet here)

What evidence will you need?

Critical pieces of evidence required to prove your future economic loss include:

  • Pay summaries
  • Salary estimates or your current and future jobs
  • Examples of colleagues who have progressed and their wages
  • Average retirement age in your industry
  • Medical reports on your likelihood of returning to work
  • Pre-injury medical history

Next Steps...

Like the saying – don’t put all your eggs in one basket - don’t forget to read the rest of the articles in this series on the other areas of compensation available to you.

Part 2: How much is my claim worth? – Care Costs
Emily Billiau Principal Care costs can be the single most significant component of a claim.  Particularly when the injured party[...]
Part 3: How much is my claim worth? – Medical Expenses
Emily Billiau Principal Medical Expenses are a crucial part of all claims for compensation. Why? Well apart from the obvious[...]
Part 4: How much is my claim worth? – Pain & Suffering
Emily Billiau Principal It is a significant part of a compensation claim. Particularly for those who cannot claim wage losses,[...]

Written by Emily Billiau | Principal

SHARE THE POST


PTSD

The 1 thing no one discusses about near-misses

We don’t need to explain the phenomenon of near-misses.

They happen far, far too often on our roads.

We often hear stories of people too afraid to get back on the bike after a near miss.  

So much so we decided to ask for some expert advice on the matter.

Brisbane Psychologist Romana Bowd has put together a quick article on the mental impact near misses can have on cyclists.

Discover how to identify psychological trauma and what your next steps should be.


How is mental trauma related to near misses?

As a driver of a car, bike rider or even pedestrian we can be involved in a significant accident that can leave not only physical injuries but also psychological injuries.

However we can suffer psychological injuries due to a ‘near miss’ or even witnessing an accident. These injuries can leave emotional scars that are as traumatic as physical ones.

We refer to these emotional problems as Post Traumatic Stress Disorder (PTSD) if a person’s emotional state remains unstable many days or months past the original incident.


What is PTSD?

A person is diagnosed with PTSD if there are any emotional or environmental triggers that can bring back memories of the trauma accompanied by intense emotional and physical reactions.

Symptoms may include nightmares or flashbacks, avoidance of situations that bring back the trauma, heightened reactivity to stimuli, anxiety or depressed mood.

It also can include:

  • hyperalertness (exaggerated startle response),
  • sleep disturbance,
  • guilt related to the incident,
  • trouble concentrating,
  • avoidance of activities that replicate the incident in any way
  • avoidance of activities that previously were enjoyable; and 
  • worsening symptoms by exposure to events resembling the original incident.

Does PTSD affect everyone?

Often people do not consider themselves to be suffering from PTSD because it is often associated and most commonly reported in war veterans and just witnessing an accident or being involved in a ‘road accident’ is under-estimated by most of us as not serious enough to seek help.

However, health professionals consider that anyone subjected to severe or sudden stress needs to be treated seriously just as if they had a physical injury.

PTSD can occur in anyone of any age, gender, culture and socioeconomic background.


What should you do if you are suffering?

If you are suffering  from symptoms, then it is recommended that you go and see your GP.

Your GP and you can assess whether it would be helpful to see a psychologist, psychiatrist and/or start medication.

If PTSD is severe it does not just ‘go away’ often our brain cannot erase the memories of the incident and it is very important to seek help.


Thanks Romana

Romana is a qualified psychologist based in Brisbane. For any questions relating to this blog post, psychological trauma or other related issues, please contact Romana using the details provided below.

Dr Romana Bowd PhD, BSc(AppPsych), BSc(Hons), MAPS, CHP, Assoc. CCounsP

Taringa 7 Day Medical Centre

Phone: 3830 5999

Email: [email protected]

If you need immediate help, please contact emergency services on 000 or LifeLine on 13 11  14

8 Reasons the 1m Rule Could Cost Motorists $000’s in 2018

"

"Every motorist that overtakes a rider within the legally-required 1 metre could be liable for the mental harm they cause that cyclist…"


Emily Billiau - Principal, CycleLaw

Finances are one things but the trauma of a near death experience is another. 


Fortunately for Queensland cyclists, their peak body, Bicycle Queensland (BQ), has stepped up to the plate to provide a free trauma counselling service for affected riders. 


The ”Incident Debrief Service" is an Australian first.


Leading Brisbane-based CycleLaw Principal, Emily Billiau praised BQ on their new initiative, which sees their members given 24/7 phone-based support from a qualified counsellor.


“This program gives unprecedented support to Queensland riders.  Any service that gives cyclists access to immediate and useful support is a win in our mind.”

The Elephant in the Room. 

We often hear reports of accidents involving cyclists and cars.

The physical injuries are often well-known.

Trauma is the elephant in the room.

The anxiety and mental problems riders face after they are involved in repeated ‘near misses' can be life changing.

Depression among cyclists triggered by road safety incidents could become costly to society.  Should the drivers pay?  Take this poll.

In January 2018, over 50 percent of the riders CycleLaw spoke to suffered psychological trauma as a result of an incident involving a motorist.

Emily Billiau said, "The cyclists who I spoke to listed the same anxiety triggers when getting back on the bike. These included the:

  • 1
    Feeling of fast movement
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    Sound of brake pads on the rim
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    Sound of the wind or traffic
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    Sight of the ground moving below the tyre
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    Feeling of wind on their face
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    Smells such as dry air, dust, gravel, moisture, oil, exhaust fumes
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    Feeling of their arms on handlebars
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    Proximity of other cyclists or motor vehicles."

These anxiety triggers, if left untreated, can sometimes develop in to more serious mental illness.

The downward spiral often has a devastating impact on the cyclists ability to carry out their job.

and this is where a successful lawsuit against the careless driver begins.

Emily Billiau

Principal, Cyclelaw

Never Hit a Cyclist? 

You don't have to physically touch a rider to be liable for the mental harm you cause them.

“It is a fact of law that driver's need to give riders at least 1 metre of space when overtaking. 


Failure to do so can leave drivers liable for the psychological harm they cause. 


Times are changing, and motorists can no longer ignore the mental consequences of their blatant disregard for rider's rights."

​​​​Emily Billiau - Principal, CycleLaw

In the meantime, initiatives such as Bicycle Queensland’s incident debrief service is a valuable support resource for cyclists.

If you would like more information on this service, please visit the BQ website here.

2 Things Cyclists Need To Get Police To Take Action Against Dangerous Drivers

You need evidence.  And the two big ones will be video evidence and your own statement.  But it's not 'what' evidence you need that counts as much as it's the 'how' it is presented.  Read on...right to the end.

What do the police need?

To successfully prosecute a driver in Court, it is necessary for Qld Police to have evidence to support the case.

The police prosecutor must be able to prove the case.

What are the four things the police will consider?

Well, they don't need you to take your evidence to the police in Scotland, but no doubt sometimes you probably feel as if that might get you a better result.

So here's what they do need.....

If you say one thing and the driver of the vehicle contradicts what you say, then the police officer (and ultimately the Court if police prosecute the matter) will have to decide which version they accept.

In order to convince police of your version, you need to be able to present them with solid evidence. 

You can help persuade them…

Qld Police will then make the decision as to whether they iIssue a traffic infringement notice (and ultimately prosecute the matter in the Court).

They will do so  on the basis of all of the evidence that is available to them at the conclusion of their investigation into the incident. 

They will critique:

  1. the reliability of the evidence;
  2. your character; 
  3. the character of the driver, and
  4. the character of any independent witnesses to the incident.

The first two are particularly important...

...in many cases where the cyclist is reporting a 1m breach, the police will not have spoken to the offending motorist.

emily Billiau

principal, Cycle law

What evidence can the police accept?

Evidence can take several forms – for example, it may be lead in the form of documents, witness statements and video recordings.

What are the Rules of Evidence

In Queensland, the Evidence Act 1977 (Qld) prescribes the rules which govern the procedure and admissibility of evidence in the Courts.

The rules are aimed at ensuring fairness.

Evidence will only allowed into Court (admissible) if it is relevant.

And it is only relevant where its existence tends to indicate that one of the facts in issue (or one of the versions (yours or the drivers)) is more likely than the other.

get RELEVANT evidence

Evidence  is only relevant where its existence tends to indicate that one of the facts in issue (or one of the versions - yours or the driver's) is more likely than the other.

Exclusion of evidence - what won't be considered?

While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence from being considered by a Court.

Probably the most well known exclusion is that of hearsay.

Hearsay evidence will not be admitted.

For example, if Emily tells Ashley that she had seen a third person, Anne (a motorist), pass a cyclist only allowing a gap of 0.5m, Ashley would not, as a general rule, be able to give evidence of Emily’s statement against Anne in Court.  

One of the other more common exclusions relates to opinion & expert evidence.

When a person gives evidence it ought to be a direct account of what that person actually saw.

A person's interpretation or opinion cannot normally be admitted as evidence.

For example, if Emily, Ashley and Anne were riding together in single file (and in that order), and Anne was clipped from behind by a motorist, Emily and/or Ashley could not give that they assume Anne was clipped by the motorist because they did not actually see that occur.

OK, so how about my video evidence then?

Video evidence is a good place to start.

If it captures the incident itself, it cannot easily be excluded as hearsay or opinion evidence. It has to be taken at face value.

And whilst the video might not capture everything, it is a much better starting point than the usual “he said, she said” incident police are faced with.

Video sounds great, is there anything else I need?

    A well prepared written statement (that you can do yourself) will go a long way to letting the police know you are serious    

Written statements should include enough factual and persuasive information as possible.  If you do most of the work, you are making  it easy for the police - and you will most likely get a much better response.


The statement should  include things like your personal details, geography descriptions, date and time, position of other roads and traffic islands etc, how the accident occurred and so on.

Get our free statement template

We have prepared a document to help cyclists prepare their own incident statements. 

It is kept in a closed facebook group called "The Revolution".

The Revolution is comprised of like-minded cyclists who are pushing for reform to make our roads safer.  Join the group and get the statement template.  You can also participate in an active online community that is troll free.

Join The Revolution With One Click (and Get Free Access to the Statement Template)

Once inside The Revolution, look for this post...

...or do this....

3 Reasons Why Motorists Can’t Push Cyclists Off the Edge

You don’t have to ride on the shoulder of the road.

The law of the left edge

In Queensland, the Transport Operations (Road Use Management—Road Rules) Regulation 2009 prescribe the rules which must be followed by road users.

So let’s get some of them down:

  • Section 129 (1) states that a driver (rider), on a road other than a multilane road, must ride as near as practicable to the far left side of the road; (so we get where the motorists are coming from)
  • Section 129 (3) states that the road does not include a road related area; (so what is a road–related area?)
  • Section 13 (2) (a) states that the shoulder of the road is a road related area
  • Section 13 (3) (b) (ii) states that any area outside an edge line is a shoulder

If it's not safe on the left edge, don’t ride there

The short of this – if there is a wide shoulder that does not mean the cyclist has to occupy the shoulder.

Cyclist often will ride on the shoulder as a matter of courtesy. However, they should only do so if it is safe.  

Unless you had a death wish you would NOT STAY LEFT on the road pictured above - and you would be entitled to move into the centre of the lane.

The law states that you are to ride as near as practicable to the far left side of the road (and this does not include the shoulder).

Proving the left edge is not safe

The words “as near as practicable” are open to interpretation.  Whenever anything is open to interpretation, it is important to gather compelling evidence that can sway this ‘interpretation’ in your favour.

 If the edge of the road is in a bad way...

  • chipped, 
  • cracked,
  • bitumen breaking away
  • sunken depression
  • potholes

...then it will be reasonable/practicable for you to move towards the centre of the lane.

A video camera on the front of your bike will capture the condition of the road – your compelling evidence.  Live ‘date-stamped’ footage will be extremely powerful should you be involved in a ‘near miss’. Particularly if the offending motorist claims you were not as far to the left as you should have been.

get evidence

A video camera on the front of your bike will capture the condition of the road – your compelling evidence.  Live ‘date-stamped’ footage will be extremely powerful should you be involved in a ‘near miss’. Particularly if the offending motorist claims you were not as far to the left as you should have been.

What should you do with the video evidence?...Here's one idea...

    THERE IS A PLACE FOR THOSE OF US WHO WANT TO LIVE ON THE EDGE OF CHANGE!     

Cycle Law and Bicycle Queensland have teamed up to create a strongly policed, closed Facebook community for cyclists called The Revolution

  • Video footage from members of the group will be openly discussed and shared. 
  • Highly experienced litigation lawyers will provide tips as to how best gather the right kind of footage (that will stand up to the sting of battle in a court-room).
  • The aim is to collect hours and hours of this type of ‘robust’ evidence.

It will assist with law reform bids to make cycling safer and our community healthier.

Join the Revolution With One Click

Leading Brisbane Lawyer Urges Cyclists To Get Video

In recent years on-bike-cameras have emerged as a must-have among cyclists.

They have also become a common feature in social media, with videos capturing horrific incidents involving cyclists and other motorists.

Take, for example, the incident involving a young father and husband who was devastatingly struck by a passing car on his daily commute to work (see video below).

The footage is shocking – it captures the moment that the vehicle, which was travelling in the same direction, struck the young father throwing him to the ground at high speed. You can hear his screams and his tears of pain.

In the following hours, the young father would lose litres of blood and spend hours in surgery. His life changed forever.

There was also the astonishing footage out of the United Kingdom of the driver who intentionally swerved onto the wrong side of the road and drove head-on at a cyclist. It would have been very difficult to comprehend without the footage.

What are the advantages of running a camera?

We speak to  Emily Billiau, our Cycle Law Expert who understands the issues cyclists face and has dealt with over 500 cycling accident claims in her legal career.

“Overall, I think there are some key advantages to cyclists using cameras:-

  • 1
    Deters motorists who would otherwise break the law
  • 2
    Gathers evidence to help the police prosecute these law-breakers
  • 3
    Raises awareness that there is zero tolerance for illegal behaviour on our roads."

Keep pests away.

One of the main advantages of cameras would have to be deterrence. With the increasing use of cameras, comes the increasing risk to impatient motorists that they will be captured on camera.

“Not only will the actions of irresponsible drivers be captured, but they can also be identified and reported to the police.  The cyclist haters will now have to think twice before cutting in close or hurling abuse.”

- Emily Billiau

And logic would suggest that that might be enough to deter a small number of people who might otherwise deliberately target cyclists or be inclined to leave the scene of an accident.

We have your number. 

Secondly, the footage captured on cameras can have great evidentiary value. They can help cyclists with establishing liability/fault.

“Our goal at Cycle Law is to help cyclists’ present video evidence to the police so that the police can charge irresponsible motorists and issue them with demerit points.  Ultimately drivers who continually and repeatedly break the law will lose their license.  
The law will remove them from the road.  Then the roads will be safer for cyclists.

- Emily Billiau

Beware, awareness is coming. 

And thirdly, with captured footage regularly featuring on the news and in social media, the video will help raise awareness of the vulnerability of cyclists generally on our roads. Hopefully, other motorists will come to appreciate the catastrophic effects that their actions can have on cyclists.

There are many different models of cameras available to cyclists. One of the best on the market is arguably the new Australian invented Fly-12.

With a significant number of road rage incidents and liability disputes in collisions involving cyclists, the camera footage could be vital.

Cycliq Fly12 HD

  • check
    1080p HD Video Recording
  • check
    10-hour battery life
  • check
    All-weather protection
  • check
    WiFi and Bluetooth connectivity

Join us in the fight for law reform and try and win a camera (10 to giveaway)!

Next month Cycle Law will be giving away ten Fly-12 cameras to start the process of identifying the Queensland drivers that make roads unsafe for cyclists.

Emily Billiau | Principal
(07) 3014 6590
[email protected]

Top 4 Tips to Stopping Cyclist’s Cramps

Cramps. They are the death of every cyclist. 

We have enlisted the help of Physiotherapist, Sean McCoola from Maximize Health Group to give us some tips on how to better manage cramps.

Sean brings experience to his clients from 18 years as a physiotherapist and has a particular interest in sporting teams and rehabilitation programmes.

Sean sat down with us earlier this month to give us his top 4 tips on stopping cramps. 

Take it away Sean.

4 Factors to Help Stop Cramps

At Maximize Health we are often asked by the cyclists we treat about cramps and how to stop them.

Below is a discussion and guide to what we have seen work over the years. The simple reminders below will enhance performance and aid general well-being and if you fit the pieces of the puzzles together for you, it may even stop cramps for your cycling endeavours.

Studies have shown that cramps are associated with high intensity activity and muscle fatigue. Yes, no proverbial Sherlock!

This directs you in the first instance to get your training and race plans suited to you and your current sustainable exertion level.  And then address other factors below including hydration, stretching, electrolyte balance and nutrition which are often quoted as areas to address to avoid the possibly devastating effects of cramping while out on the bike (e.g poor race performance, pushing the bike home), or after the event/training (jack knifing in the car when driving home from the charity ride).

My advice is to increase your awareness of when the cramps occur for you and then experiment with the factors leading up to the occurrence.

Sorry guys and gals there are often no quick and easy answers for the road warriors.

1. Hydration

Hydration continues to be a major topic in the discussion of cramps. I take a wide gauge view at this and recommend that appropriate hydration needs to be an everyday activity especially if training loads are high and frequent and when coming into summer months and/or humid conditions. Some cyclists are heavy sweaters, and this loss in fluid is often associated as a major contributing factor to cramps. 

Select Content Template

Experiment

Weigh yourself before and after a one hour ride.
If you weigh less afterwards you may need more fluid intake.
If you weigh more, maybe you’ve gone too hard on the sports drink. 

Hydration levels are imperative for optimal performance and getting this part of the puzzle to fit for you may also reduce cramps.

2. Stretching

Another risk factor for cramping demonstrated in studies is low or irregular rates of stretching.

Don’t get too hung up on the bio-physiology but go by the rule that if muscles are tight (shorter than optimal resting position) and/or if they have trigger points (localised areas of increased muscle firing that resets and increases the resting tone of the whole muscle), this seems to increase the chance of cramping.

Optimal muscle length will also reduce discomfort and improve performance. Winning all round! Unfortunately some riders will just have to stretch and address trigger points more than others.

Tip 1

 Stretch each offending muscle group for a minimum of 2 x 30 seconds.
For muscles that have increased tone such as calves stretch for at least 1 minute.
Complete this process 3 - 5 days a week. 

Tip 2

 Try trigger point work or foam rolling to get optimal results

3. Electrolytes or Die

We all need electrolytes to maintain correct muscle function to help maintain life as we know it.

There is little scientific evidence stating that electrolyte levels play a significant role cramping.

Optimal electrolyte balance may assist in cramp prevention, but how much is enough?

Once again this will come down to experimentation for individuals. Test the various input options (Drinks, gels, salt tabs or food) for brand, concentration levels, timing etc.

There are now companies doing sweat tests for the salt/sodium levels in your sweat. But a general guide is if you have the white ring or streaks around your neck on your jersey after you ride you are possibly sweating out electrolytes, including, sodium/salt in higher than optimal levels, and this may need to be addressed.

4. Nutrition

What we put into our bodies leading up to and on race/training days may affect cramping incidence.

A balanced diet must help performance and general health and well-being. “Balanced” will mean different things to the individual and depend on physical and even mental load.

I believe the overall and longstanding aim is for you to give yourself the right amount of energy to fuel your body for tasks you are giving It, in acceptable input formats to promote continued health to train at your desired increased intensities for longer.

Tip 3

 Nutrition, like hydration, is an everyday task.

Nutrition plans should include the weeks and days before, on the day, and during the event.  

As always folks, tips like these may not be fully comprehensive for your situation and seeking out a health professional is a worthwhile exercise if cramping persists and is affecting your ability to bring your 'A' game.

This discussion is by no means exhaustive and there are many other cramp prevention strategies that may work for you (my Mum swears by camphor in a sock by your feet under your bottom sheet in bed overnight to prevent calf cramps).

What we have found over the years is that if you address the above factors and fit the pieces of the puzzle to your situation it will at the very least improve your performance and enhance your health and well-being.

Now on your bikes and enjoy.


Thanks Sean. Stay tuned next month for another article from Maximize Health Group.

In the meantime, if you have any questions regarding these tips, prevention of cramps or other health issues please do not hesitate to contact Sean on +61 7 3343 5494 or [email protected].