Personal Injury Claim: What to Do When Served with a Notice
What To Do When Served with a Notice of Claim Form
It is important you contact a lawyer as soon as you are served with a personal injury claim, as time limitations apply and they can impact your defence as well as your financial interests.
Notice of Claim Form
Generally, you will be personally served with a letter from a law firm attaching a lengthy document.
The front page of that document will likely be headed ‘Form 1’ and state it is a ‘Notice of Claim’ under the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’).
Sometimes the letter and claim form will arrive by tracked mail.
One Month to Respond
As a respondent to a personal injury claim, you will have one month to provide a response pursuant to sections 10 and 12 of PIPA.
Essentially, that response advises whether you are a proper respondent to the claim and whether the Notice of Claim form is compliant with the requirements of PIPA. If you do not provide that requisite response within the one-month time period, you may waive your rights to obtain further information and documentation from the claimant, as the Notice of Claim form will be deemed compliant.
Likewise, you simply cannot ignore the personal injury claim. We will discuss those implications further below.
Insurance Policy
A one-month period is not necessarily a long time to respond as there are some preliminary factors that may apply. That is, you may have an insurance policy that will indemnify you and defend the claim on your behalf.
Often businesses hold an insurance policy, and sometimes individuals may have a home and contents insurance policy that will respond. Indemnity under these policies is determined on a case by case basis as not all insurance policies are equal, nor are the circumstances surrounding the incident that caused the personal injury.
For example, a criminal act that caused the personal injury is often an exclusion in most insurance policies, but not always.
We recommend contacting your insurer as soon as possible to enquire whether your policy will respond. Even if your insurer denies coverage, we may be able to argue a case for indemnity under your insurance policy, and in the meantime, also protect your interests by providing the initial legislative response to the personal injury claim.
Defending the Claim
If your insurance policy does not respond, or you wish to avoid a large excess and/or premium increase, we are able to defend the personal injury claim on your behalf.
Our litigation lawyers have experience acting for both parties (claimants and respondents) in personal injury proceedings, so we are best placed to strategise a tactical defence and potential early resolution of the claim.
Income and Assets
If you have assets, or earn an income, it is important to defend the personal injury claim and not ignore it.
If you bury your head in the sand and simply do not respond to the claim, the claimant may apply to the court to obtain a default judgment for a compensation award against you.
The default judgment can then be enforced by warrants either seizing and selling your assets, or garnishing your wages, in order to fulfil the judgement amount.
Please note we cannot provide you with asset protection advice. We suggest you contact your accountant or financial advisor in that regard. Any attempts to hide assets and income to avoid paying compensation can be wound back by a court.
Accordingly, it is important you engage a lawyer to defend the personal injury claim and mitigate any compensation amount owed.
Liability
Your defence will be bespoke to your circumstances and formulated on a case by case basis. For example, if you were convicted of a crime that caused the personal injury, then you will likely not have a defence to the personal injury claim, aside from a potential argument of contributory negligence depending on how the claimant’s injury occurred.
Sometimes, respondents are misidentified – this is often the case in historical child sex abuse personal injury claims due to the length of time that has passed and the claimant’s memory of a traumatic event.
Other times, there are situations to suggest that while the injury may have occurred, it was not your fault and/or you may have taken reasonable steps to ensure the safety and wellbeing of the claimant (and any other person) and the avoidance of personal injury.
Depending on the circumstances, we will provide a response either admitting or denying liability, and/or potentially claiming contributory negligence from the claimant. Section 22 of PIPA requires all liability investigations to be actioned and a liability response to be provided to the claimant, within six months of their complying Notice of Claim.
Expert Evidence
It may be worthwhile obtaining expert evidence regarding liability, if the elements of the personal injury claim warrant it. This may include hiring a liability investigator to surveil the claimant, requesting CCTV video footage from the incident site, conducting slip test investigations, obtaining statements from witnesses to the incident causing the personal injury, and/or potential witnesses the claimant’s pre-existing conditions or post incident illnesses, injuries or contradictory conduct.
It is also likely worthwhile to obtain independent medico-legal evidence with respect to the claimant’s injuries, the degree of permanent impairment sustained, and the impacts of their activities of daily living (in the past and anticipated in the future).
Quantum
Once liability is determined and all necessary expert evidence is obtained, the next step in defending personal injury claims focusses on quantum. That is, the amount of damages or compensation the claimant’s personal injury claim is worth.
As an overview, there are several heads of damage that comprise any compensation sum awarded in personal injury claims. These heads of damage include, but are not always limited to:
- general damages (the claimant’s pain and suffering);
- economic loss;
- loss of superannuation;
- special damages (out of pocket medical and rehabilitation expenses);
- gratuitous care and assistance (providing it meets the legislative threshold).
Most of these heads of damage will include an allowance for past losses, as well as future anticipated losses for the remainder of the claimant’s lifetime.
We will not go into depth for each head of damage as the calculations can be complex and rely on a range of factors.
Nevertheless, even if you do not have a strong defence in terms of liability, you may be able to mitigate the extent of compensation owed to the claimant with regard to the above heads of damage. It will depend on the evidence obtained regarding the degree of permanent impairment sustained by the claimant, their taxable income prior and post the personal injury, and the amount of medical rehabilitation required as well as any care and assistance provided by friends and family.
Again, these considerations will be made on a case by case basis.
The Process
PIPA sets out legislative procedures that we must follow, which can cause significant time to lapse. If proceeding formally, the personal injury claims process can take anywhere between one to three years, depending on the complexities of the case and the amount of expert evidence required.
That said, we appreciate many clients wish to resolve these claims as expeditiously as possible and if appropriate (and with the claimant’s agreement), we can informally negotiate in an attempt to settle claims quickly.
Legal Fees
We understand that no one wants to spend their hard earned cash on legal fees. Unfortunately, sometimes the need to engage a lawyer is unavoidable. Being served with a Notice of Claim form is one of those occasions if you wish to protect your assets and income and defend the personal injury claim being made against you.
While the process can be disappointingly lengthy, this does provide clients with time to fund their legal costs on a stage by stage basis. We require a deposit for legal fees to be paid upfront into our trust account before we undertake any legal work on your behalf. However, we will set out each stage and the scope of work required of us along with the fee estimate for that stage. So while defending a personal injury claim can amount to a significant sum (depending on the work required of us), there is opportunity to fund us in incremental payments.
We will always provide upfront disclosure and progress reports as to the defence of the personal injury claim, and the legal fees required for future work to be performed. Our initial costs disclosure and progress report updates are part of our legislative obligations under the Legal Profession Act 2007.
What To Do If Served
It is important you contact a lawyer as soon as you are served with a personal injury claim (Form 1 Notice of Claim form) so that we may consider how best to protect your interests and defend the claim.
Time limitations apply, and ignoring the claim may be detrimental to your financial position.
Accordingly, please do not delay in obtaining legal advice as soon as you are served with a Notice of Claim form.