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Personal Injury Claims

Potts Lawyers > Personal Injury Claims

Making A Personal Injury Claim

Motor Vehicle Accident Claims

If you have sustained injuries as a result of a car crash, truck or motorcycle accident, you may be eligible to make a personal injury claim seeking compensation for your pain and suffering.  Whether you were a driver or passenger in the vehicle, or even a pedestrian bystander, you may advance a compensation claim providing you suffered personal injury and did not cause the accident.

These types of personal injury claims are generally advanced against the Compulsory Third Party insurer of the at-fault vehicle.

If however, the registration details of the at-fault vehicle are unknown, or the vehicle was unregistered at the time of the accident, you may still be able to submit your claim for compensation via the State Government’s Nominal Defendant.

Personal injury claims arising from motor vehicle accidents are governed by the Motor Accident Insurance Act 1994 (Qld).  Strict time limitations apply under the legislation, so we encourage you to seek legal advice as soon as possible.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the circumstances of the motor vehicle accident and provide preliminary advice as to whether your potential personal injury claim has prospects of success.  If so, we are able to offer our professional services under a no win no fee, speculative agreement.

Please contact our litigation team for further details.

Marine Vessel Accident Claims

If you have suffered injuries as a result of a marine incident involving a ship, boat or jetski, you may be eligible to seek compensation by making a personal injury claim.

Ideally, the at-fault party whom operates or owns the vessel will possess comprehensive insurance covering their negligence in causing the marine accident.  It is important to realise however, that unlike motor vehicles, a marine vessel’s annual government registration does not include Compulsory Third Party insurance.

Unfortunately, without comprehensive ship, boat or jetski insurance, the at-fault party may be uninsured for their negligent act causing your personal injury.  In these circumstances, it is important to consider whether the respondent has assets or income in order to adequately satisfy your personal injury claim.

In either scenario, these compensation claims fall under the Personal Injuries Proceedings Act 2002 (Qld).  Strict time limitations apply under the legislation, so we encourage you to seek legal advice as soon as possible.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the marine accident in detail, and provide preliminary advice as to whether your potential compensation claim for personal injury has prospects of success.  If so, we are able to offer our professional services under a no win no fee, speculative agreement.

Please enquire with our litigation team as to how we may assist you.

Public Liability Claims

If you have sustained an injury as a result of a physical incident whereby another party acted negligently or failed to take proper care, you may be eligible to seek compensation for your pain and suffering by making a personal injury claim.

Examples of public liability claims include a slip and fall incident, physical assault, an accident involving a boat or jetski, or perhaps even a wayward golf ball.

In order to be eligible to make a personal injury claim, the other party to cause the incident must be negligent.  That is, the at-fault party must owe a duty of care to you, subsequently fail to take reasonable care in breach of its duty, causing the subject incident which resulted in you suffering personal injury, loss and damage.

These types of compensation claims fall under the Personal Injuries Proceedings Act 2002 (Qld).  Strict time limitations apply under the legislation, so we encourage you to seek legal advice as soon as possible.

Ideally, the respondent to your personal injury claim may possess insurance for the subject accident.  However sometimes, the at-fault party may be liable individually, and may not have appropriate insurance, or their insurance policy may not respond depending on the nature of the act.  In these circumstances, it is important to consider whether the respondent has assets or earns income in order to satisfy your claim for compensation.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the nature of the accident and provide preliminary advice as to whether your potential personal injury claim has prospects of success.  If so, we are able to offer our professional services under a no win no fee, speculative agreement.

Please contact our litigation team to discuss your matter further.

Worker’s Compensation Claims

If you have sustained injuries as a result of workplace accident, you may be eligible to make a personal injury claim seeking compensation for your pain and suffering.

You may advance a worker’s compensation claim providing you have suffered a personal injury or injuries, and did not cause the subject incident.  A key characteristic of your entitlement to seek compensation for personal injuries sustained in the workplace accident, is negligence on the part of your employer.

Your employer owes a duty of care to its employees to provide a safe working environment.  Negligence occurs when your employer fails to take reasonable care, thus breaching its duty to you, which subsequently results in the workplace accident causing you personal injury, loss and damage.

Worker’s compensation personal injury claims are generally advanced against your employer’s insurer.

Personal injury claims arising from workplace accidents are governed by the Worker’s Compensation and Rehabilitation Act 2003 (Qld).  Strict time limitations apply under the legislation, so we encourage you to seek legal advice as soon as possible.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the circumstances of the workplace incident and provide preliminary advice as to whether your potential personal injury claim has prospects of success.  If so, we are able to offer our professional services under a no win no fee, speculative agreement.

Please contact our litigation team for further details.

Defending A Personal Injury Claim

Motor Vehicle Accident Claims

If you have caused or possibly caused a motor vehicle accident and your vehicle is registered and holds a current Compulsory Third Party insurance policy then you are obliged to report the accident to your insurer as soon as possible. You will then usually be covered for claims against you as driver or owner. We can assist you to make a claim on your third party insurance and deal with the police on your behalf.

If you have caused or possibly caused a motor vehicle accident while drunk or driving while affected by drugs, you may be uninsured for any personal injuries sustained by other persons in the accident.

Unfortunately, a criminal charge or conviction of this nature may negate the coverage offered by your vehicle’s Compulsory Third Party insurance.  While the insurer will respond to the claim and perhaps pay the injured person money, the insurer may seek to recover any payout from you.

In circumstances where you are charged with a traffic or other offence, your insurer may wish to investigate the circumstances of the motor vehicle accident and seek to interview you with respect to your actions.  It is important that you seek legal advice before participating in any interview process conducted by the insurer or their representative, as any admissions may have an impact on your insurance coverage, or impact upon your potential criminal defence.

Similarly, if you are convicted of driving under the influence or recklessly driving, subsequently causing the motor vehicle accident, your Compulsory Third Party insurer may respond to the personal injury claim on your behalf but later seek to recover the compensation award from you.  The insurer can issue a demand, and pursue enforcement proceedings to sell your assets or garnish your wages in an attempt to recover the compensation sum paid to the injured party.  Alternatively, we may be able to negotiate a reduced sum settlement on your behalf, depending on your financial position.

In the event you are faced with motor vehicle accident personal injury claim with allegations of criminality, please immediately seek our legal advice as early intervention can best protect your interests.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the circumstances of the motor vehicle accident and provide preliminary advice as to your position and the options available to you.

As there may be significant consequences in failing to respond to a personal injury claim within certain time periods, or cooperating and assisting the insurer with its investigations to the detriment of your legal position, we encourage you to contact our litigation team as soon as possible.

Marine Vessel Accident Claims

Unfortunately, boat and jetski accidents can be traumatic and have dire consequences.

The sun may have been shining in your eyes, or the swimmer may have been on the other side of a swell so you simply did not see the person until it was too late.  While accidents do happen, these situations will nevertheless amount to negligence, making you liable for the personal injuries caused to the other party and any compensation claim that may follow.

Ideally, you will have previously taken out a comprehensive insurance policy on the vessel which will likely cover you for the marine accident and respond to any personal injury claim brought against you.

It is important to realise however, that unlike motor vehicles, a marine vessel’s annual government registration does not include Compulsory Third Party insurance.  This means that without comprehensive ship, boat or jetski insurance, you may be uninsured for negligently causing personal injury to another party.

Alternatively, you may possess comprehensive marine vessel insurance, but are alleged to have been operating the vessel whilst drunk, or otherwise driving recklessly.  In these circumstances, your insurance policy may not indemnify you or respond to the personal injury claim on your behalf.  You may then be personally liable for the compensation sum owed to the injured party.

If you are served with a personal injury claim arising from a ship, boat, or jetski accident, or your insurer wishes to interview you and conduct an investigation into the circumstances of the marine accident, please contact Potts Lawyers without delay.  We aim to protect your interests – be it tactically responding to any investigations, assessing your insurance position and seeking indemnity from your insurer, or responding to the personal injury claim on your behalf – whichever situation applies to you.

Strict time limitations apply under the Personal Injuries Proceedings Act 2002 (Qld), so we encourage you to seek legal advice as soon as possible.

At Potts Lawyers, we offer free initial consultations at which time we will discuss the circumstances of the marine accident, your insurance position, and provide our preliminary advice as to your legal position and the options available to you.

Please contact our litigation team to discuss your matter further.

Public Liability Claims

Unfortunately, accidents happen.  You may have been involved in an incident where you mistakenly did not take reasonable and proper care and as a result, negligently caused a person to suffer personal injury.

Examples of public liability claims include slip and fall incidents, physical assaults, accidents involving marine vessels, drones, non-compliant pool fencing, or perhaps even a wayward golf ball that causes another party harm.

In these circumstances, the injured party may make a personal injury claim against you, and seek compensation for their pain and suffering. These types of compensation claims fall under the Personal Injuries Proceedings Act 2002 (Qld).

If you are served with a personal injury claim, it is important you seek legal advice straight away, as time limitations apply with respect to your response.

In a perfect scenario, you may hold a relevant insurance policy that will respond to the claim on your behalf.  Even if your insurer initially refuses to cover you under the insurance policy, depending on the circumstances surrounding the alleged incident and the policy wording, we may provide submissions to your insurer as to why they should indemnify you.

Sometimes you may be excluded from coverage under the insurance policy should a criminal charge or conviction give rise to the cause of the injury.  Similarly, you simply may not hold a relevant insurance policy and will need to respond to the proceedings yourself.

In those circumstances, we are also able to assist in protecting your interests and defending the matter on your behalf.  At the outset, we will advise you on the procedural aspects governing personal injury claims, and your preliminary prospects of defending the claim in terms of whether you are liable for the incident or not.  We will also advise you of the factors that may impact upon the compensation amount that may ultimately be payable to the claimant.

Given strict time limits do apply, we urge you to contact Potts Lawyers as soon as you are served with a personal injury claim so that we may adequately protect your best interests.

Historical Child Sexual Abuse Claims

Recently, the Federal and State Governments have imposed new laws so that no limitation period exists with respect to actions for child sexual abuse.  That is, personal injury claims arising from the sexual abuse of a person when they were a child, are no longer limited by time so the right to make a claim does not expire.

Previously, the party exposed to child sexual abuse had a right to bring the claim before they reached the age of 21 years, otherwise the party had to apply to Court to overcome the limitation period by arguing a material change in their life led to the realisation of the injury subsequently caused.  Failing to bring their claim within these two methods meant that the right to make a claim was exhausted, and the person became statute barred from advancing their compensation claim.  This practice however, no longer exists.

The new changes in legislation mean that a party exposed to child sexual abuse can make a claim for compensation at any time in their lifetime.  We expect this may open a floodgate of allegations and personal injury claims as a result of any psychological injury and impairment the person may have suffered.

Historical child sexual abuse claims are made under either the National Redress Scheme, or the Personal Injuries Proceedings Act 2002 (Qld).

The compensation claim falls under the National Redress Scheme if an institution was responsible for bringing the injured party into contact with the person whom sexually abused the party as a child.  In these circumstances, the Federal government will respond to an application for redress made by the injured party.

However, the injured party is also eligible to make a personal injury claim against their alleged abuser personally.  This means that any compensation payable to the injured party will be sought against the individual respondent, which carries potential consequences to their assets or income.  A personal injury claim advanced in these circumstances, falls under the Personal Injuries Proceedings Act 2002 (Qld).

In the event you are served with a personal injury Notice of Claim form, it is important you seek legal advice straight away.

Certain time limitations apply with respect to your response, and if you simply ignore the personal injury claim or do not respond within the appropriate timeframe in the manner specified by the legislation, you may adversely affect your position to defend the claim.

We are able to assist in protecting your interests and defending the matter on your behalf.  At the outset, we will advise you on the procedural aspects governing personal injury claims, and your preliminary prospects of defending the claim.  We will also advise you of the factors that may impact upon the compensation amount payable to the injured party, and its potential effects on your assets and income.

Please contact the litigation team at Potts Lawyers as soon as you are served with a personal injury claim so that we may best protect your interests.

A Practical Guide To Personal Injury Claims

At Potts Lawyers, we recognise knowledge is power.  Accordingly, we have developed a practical guide addressing certain aspects of personal injury law with the aim of providing insight into the procedures and processes involved in personal injury claims, and the many factors that govern the compensation sum payable to an injured party.

Importantly, this practical guide does not circumvent the need for parties to personal injury claims to obtain legal advice specific to their circumstances.   Rather, we seek to supplement our legal advice by providing information on the common queries that arise in personal injury law.

Please contact our litigation team at Potts Lawyers with respect to making a personal injury claim, or defending a personal injury claim in circumstances where you are uninsured, so that we may discuss your matter in further detail.

No Win No Fee, Speculative Agreements

In many circumstances, Potts Lawyers will offer a ‘no win, no fee’ costs agreement, otherwise known as a speculative fee agreement, to assist clients to make a personal injury claim against an insurer.

This means that you will not have to bear the upfront legal costs of making a personal injury claim, nor will you need to enter into a pay-as-you-go arrangement, nor finance any related third party disbursement costs such as the provision of expert reports, from your own pocket.

We understand that should you suffer personal injury, your means to earn an income and pay daily living expenses will likely be affected, as you may find yourself unable to work while you are recuperating.

A no win no fee costs agreement effectively provides you with greater access to justice, ensuring you do not have to fund the upfront costs of retaining a lawyer to assist in making a personal injury claim against an insurer.

It is important to note however, that you will be liable to pay our legal costs, providing a settlement is achieved, awarding you compensation for the personal injury you sustained.

At Potts Lawyers, we pride ourselves on providing clients with comprehensive costs agreements and disclosure notices at the very outset of the matter.  We also provide clients with fee updates throughout the course of their claim, and will seek clients’ instructions prior to incurring any third party disbursement costs such as the provision of expert reports to evidence and bolster your claim.  Our aim is to be upfront and clear on costs, so that there will be no surprises as to the anticipated legal fees that will be deducted from any settlement sum your claim receives.

No win no fee agreements, are governed by legislation, and regulated by the Legal Services Commission.  These speculative fee agreements, are defined in the Legal Profession Act 2007 (Qld) as ‘conditional costs agreements’ with section 323 of the Act further explaining that payment of your legal fees is conditional on the successful outcome of your matter.

Should you require further information about ‘no win no fee’ speculative agreements, the Legal Services Commission has published a regulatory guide which can be accessed on their website.

The regulatory guide will provide information on the 50/50 Rule, which is discussed further on our website and in our client engagement documents that are provided to you when considering engaging our services to make a personal injury claim on your behalf.  In addition, the regulatory guide discusses law firms charging an ‘uplift fee’ on top of their standard rates, for successful outcomes in settling your personal injury claim for a compensation sum.  The uplift fee is allowable under section 324 of the Legal Profession Act 2007 (Qld).

Potts Lawyers however, do not charge an uplift fee.  Our aim is to provide you with the maximum amount of compensation ‘in the hand’.  While we do provide a service, and legal fees are an essential part of business, we do not believe uplift fees, charged in excess of lawyer’s hourly rates, are appropriate.

We invite you to contact our litigation team so that we may detail the fee arrangements that will apply to your personal injury claim.

50/50 Rule

The 50/50 Rule applies to no win no fee, speculative costs agreements in personal injury matters.  Effectively, the rule developed to protect clients by restricting the maximum amount a law firm can charge when achieving a successful outcome in a personal injury claim.

The objective of the 50/50 Rule is to ensure clients are not financially disadvantaged by pursuing a personal injury claim.

The 50/50 Rule is set out at section 347 of the Legal Profession Act 2007 (Qld) which legislates legal fees in speculative agreements are to be capped to an upper limit.

Essentially, the maximum amount a law firm can charge is 50% of the total settlement sum, after all disbursements and statutory refunds (to government bodies such as Medicare and Centrelink etc) are paid.  The formula is succinctly expressed as follows:

Maximum Fees = [Settlement Amount – (Disbursements + Statutory Refunds) ÷ 2]

It is important to note that this formula only applies to compensation sums awarded in personal injury claims.

This method of calculating the 50/50 Rule was confirmed in the decision of Legal Services Commissioner v Dempsey [2009] LPT 20.

Following this decision, the Legal Services Commission published on their website, multiple regulatory guides regarding no win no fee, speculative agreements and the correct interpretation of the 50/50 Rule.  Should you require further information on the 50/50 Rule, we suggest consulting those regulatory guides.

Alternatively, should you wish to discuss the 50/50 Rule in specific connection to your personal injury claim, please contact the litigation team at Potts Lawyers.

Uplift Fee

Potts Lawyers do not charge an uplift fee.

Uplift fees can apply to no win no fee, speculative costs agreements.  Essentially, a law firm can charge up to 25% extra, in addition to the legal fees incurred, for achieving a successful outcome in your personal injury claim.

This practice is authorised by section 324 of the Legal Profession Act 2007 (Qld), and regulated by the Legal Services Commission.  Should you require further information about uplift fees in no win no fee costs agreements, the Legal Services Commission has published a regulatory guide which can be accessed on their website.

It is important to understand however, that law firms do not have to charge an uplift fee.

Potts Lawyers do not charge an uplift fee as our aim is to provide you with the maximum amount of compensation ‘in the hand’.  While we do provide a service, and charging fees for that service is an essential part of business, we do not believe uplift fees charged in excess of lawyers’ hourly rates, are appropriate.

Should you wish to discuss our fee arrangements specific to your personal injury claim, please do not hesitate to contact our litigation team.

Time Limitations

Strict time limitations apply to personal injury claims.  These time limitations are commonly referred to as prescribed periods, or the limitation period, and must be adhered to.

Whether your personal injury arose from a public liability incident, workplace or motor vehicle accident, the time limitations are consistent across the board.

Prescribed Periods

In making a personal injury claim, you must deliver the appropriate claim form within the earliest of the following prescribed periods:

  1. 1 month after instructing a lawyer to act on your behalf in seeking damages for the personal injury, and the person against whom the proceeding is proposed to be started is identified;
  2. 9 months after the date of incident giving rise to personal injury, or if not immediately apparent, following the onset of symptoms;
  3. 3 years from the date of incident giving rise to personal injury.

 

The first two prescribed periods may be overcome with a reasonable excuse for delay.  That is, if you have a reasonable excuse as to why you are delivering your claim form outside the legislatively prescribed periods, then your personal injury claim may be informally accepted by the respondent and allowed to proceed.  Sometimes however, an application to Court is required, to determine whether your reasonable excuse for delay is valid, and therefore determined by a Court to allowed to proceed.  What constitutes a reasonable excuse for delay, is discussed further on our website.

It is our strong recommendation that you do your utmost to adhere to the prescribed time limitation periods.

 

Limitation Period

The third prescribed period, being 3 years after the date of the incident, is commonly known as the limitation period.

The limitation period is the final and ultimate prescribed period, and can be fatal to your personal injury claim.  Under section 11 of the Limitation of Actions Act 1974 (Qld), claims for personal injury cannot be brought after the expiration of 3 years from the date of the incident.

If your personal injury claim has not commenced within that 3 year limitation period, you may be prohibited from seeking compensation for your injuries sustained in the subject incident.  There is an option to apply to the Court, seeking leave to commence your personal injury claim despite noncompliance with the 3 year limitation period, however this process is a costly exercise and not guaranteed to succeed.

Similarly, if your personal injury claim has not resolved within 3 years from the date of the subject incident, you must either enter into a written agreement with the respondent to informally extend the time limit (if appropriate), or  institute court proceedings to stay the time limit.  In the absence of either of these options, you will be statute barred from advancing your claim for compensation.  In other words, you will have no right or recourse to seek compensation for the personal injuries you sustained in this incident.

 

Exception:  Material Fact of a Decisive Character

There may be an applicable exception to the rules that govern limitation periods.  On rare occasions a limitation period may be extended by the Court, pursuant to the test set out in section 31 of the Limitation of Actions Act 1974 (Qld).

Upon application, the Court may grant leave for your personal injury claim to proceed even if it is out of time (that is, after the 3 year limitation period has expired), on the basis that a material fact of a decisive character was not within your knowledge until two or more years after the date of the subject incident.

It is important however, that there is evidence to establish the right of action exists.  In other words, you must have evidence pertaining to the incident that caused your personal injury and that negligence existed on the part of another causing such injuries.

If these elements are satisfied, then a Court will likely grant an extension of 12 months from the date of that material fact, to allow your personal injury claim to proceed.

The requirements to this exception are further discussed under the Limitation Period Exception –‘Court Extension tab.  The test is a difficult hurdle to overcome and cannot be relied upon in the event you had the means to bring an action for personal injury within the prescribed periods, but simply failed to do so.

Accordingly, it is very important you comply with the above mentioned prescribed periods and final limitation period, as noncompliance with the respective time limits may be fatal to your personal injury claim.

Given strict time limitations apply to personal injury claims, we urge you to contact us to obtain legal advice as soon as possible.

Reasonable Excuse for Delay

As discussed in the time limitations section, certain prescribed periods relate to personal injury claims.  When discussing whether a reasonable excuse for delay may apply, we are concerned with the prescribed periods set out below.  That is, you must make a personal injury claim within the earlier of:

  1. 1 month after instructing a lawyer to act on your behalf in seeking damages for the personal injury, and the person against whom the proceeding is proposed to be started is identified;
  2. 9 months after the date of incident giving rise to personal injury, or if not immediately apparent, following the onset of symptoms;

The final limitation period, being 3 years after the date of the incident, invokes a different test and ultimately, can be fatal to your personal injury claim.

The reasonable excuse for delay provision relates only to the two prescribed periods numbered above.  If you do not deliver your claim form within the earlier of the two prescribed periods, you must provide a reasonable excuse for your delay in order to comply with the legislative requirements.

Your reasonable excuse must be comprehensive and provide particulars as to why you delayed.  The excuse must contain reasonable circumstances surrounding the delay in order for it to be accepted, and for your claim to be allowed to continue even though the relevant form was delivered late and outside the prescribed periods.

Justice Wilson, in the case of Piper v Nominal Defendant (2003) QSC 039, provides further explanation at paragraph [19]:

‘Whether an excuse is a reasonable one is to be judged objectively in all the circumstances.  Those circumstances include the claimant’s personal characteristics such as his age, intelligence, and education, the nature of the injuries sustained, and the likelihood of prejudice to the [Respondent].’

That is, a Court will weigh your position against any prejudice that may be caused to party responding to the claim, when determining whether the excuse for delay is reasonable and ultimately, whether to allow the personal injury claim to proceed.

Despite noncompliance with the reasonable excuse for delay provision, Courts have been reluctant to strike out personal injury claims.  Instead, the Courts have favoured the use of their discretionary powers authorised by relevant legislation, whereby a Court may authorise a claimant to proceed further with the claim despite the noncompliance.

The case of Stanton v DMK Forest Products Pty Ltd [2003] QDC 150 provides that it is not a reasonable excuse for the claimant to rely on his solicitor’s failure to deliver the claim form within time.  However, when further considering the absence of prejudice to the respondent, and indications that the claim was probably a viable one, the Court nevertheless opted to exercise its discretion and allowed the personal injury claim to proceed despite the noncompliance.

Applying to the Court to seek its judgment on this issue however, is a costly exercise and there is no guarantee a judge will exercise their discretionary powers to allow your personal injury claim to proceed.

Each and every case is decided on its own merit.

In the first instance, we strongly recommend simply complying with the prescribed periods that govern your personal injury claim.  However, should your claim fall outside the 1 month and 9 month periods set out above, then you must provide a reasonable excuse as to why delivery of your claim form was delayed.

As strict time limitations do apply to personal injury claims, with the final 3 year limitation period potentially fatal, the best course of action is to seek legal advice straight away.  Feel free to contact the litigation team at Potts Lawyers to discuss further.

Limitation Period Exception – Court Extension

A claimant has 3 years after the date of the incident, to bring an action for personal injury.  This 3 year period is commonly known as the limitation period.

Under section 11 of the Limitation of Actions Act 1974 (Qld), claims for personal injury cannot be brought after the expiration of 3 years from the date of the incident.  Accordingly, the limitation period can be fatal to your personal injury claim.

In the first instance, it is best to deliver your personal injury claim well within the 3 year limitation period in order to safely protect your interests.

However, there are rare occasions where a limitation period may be extended by the Court.  The test for this exception, is set out in section 31 of the Limitation of Actions Act 1974 (Qld).

Upon application, the Court may grant leave for your personal injury claim to proceed even if it is out of time, on the basis that a material fact of a decisive character was not within your knowledge until two or more years after the date of the subject incident.

It is important however, that there is evidence to establish the right of action exists.  In other words, you must have evidence pertaining to the incident that caused your personal injury and that negligence existed on the part of another causing such injuries.

If these elements are satisfied, then a Court will likely grant an extension of 12 months from the date of that material fact, to allow your personal injury claim to proceed.

A material fact of a decisive character can take many forms, and is considered on a case by case basis.  As an example, it may be accepted, pending supporting evidence, that you were unaware of your injuries until they manifested at a date nearing or after the limitation period expired.

As every case is different, it is important that you seek legal advice custom to your personal injury claim.

Ideally, your personal injury claim will be made within the time limits prescribed by legislation, and will not invoke the need to apply to the Court for its grant of leave to proceed with your action.  While applying to the Court for an extension of time is possible, it is a costly exercise and there is no guarantee a judge will ultimately allow your personal injury claim to proceed.

Accordingly, we urge you to seek legal advice with respect to making a personal injury claim at your earliest opportunity.

If however, your potential personal injury claim falls outside the limitation period, there may be a way to salvage your right to damages providing a material fact of a decisive character applies

In these circumstances, it is important you obtain legal advice regarding your claim for compensation.

Liability

Personal injury claims revolve around the premise of liability.

Section 69 of the Civil Liability Act 2003 (Qld), which applies to personal injury claims, defines liability to include:

  • Fault; and
  • Negligence

In making a personal injury claim, you are effectively issuing a claim and seeking compensation for your injuries from the at-fault party.  It is necessary however, for that at-fault party to have been negligent in the incident that caused your injuries.

Negligence occurs when a party owes you a duty of care, but fails to take reasonable care thus causing the subject incident, and subsequently causing you loss or damage by way of the personal injuries you sustained.

In other words, liability arises with that party owing an obligation, and failing to act in a way that satisfies the obligation.  It is this breach of duty or obligation, which causes the at-fault party to be held accountable, or liable, for your personal injuries.

In personal injury claims, liability is an element that must be proven against the party to whom you state caused the incident and your injuries.  The at-fault party must have been a position to owe you a duty of care.  In breaching that duty, you must have then suffered loss or damage as a result.

Issues of liability can often arise in personal injury claims.  Every set of facts in each case is different, and must be considered on its own merits.

If you have concerns about whether you, or another party, are liable for an incident that resulted in someone suffering personal injury (be it yourself or another), please contact our litigation team to discuss your specific circumstances.

Contributory Negligence

Personal injury claims revolve around the premise of liability and negligence.  However, sometimes it is unclear whether a party is wholly liable for an incident causing personal injury to another, or liable only in part.

It may be that the person who sustained a personal injury as a result of the subject incident, somehow contributed to the incident or the causation of their injuries by failing to act prudently themselves.

When these circumstances arise, the injured party’s actions can be a contributing factor to the incident, making them partly liable for the injuries they sustained, along with the at-fault party also.

Sections 23 and 24 of the Civil Liability Act 2003 (Qld) govern the principles surrounding contributory negligence.  Essentially, when assessing whether the injured party is guilty of contributory negligence by failing to take precautions against the risk of that harm, each case is considered on its merits.

The standard of care required to be exercised by the injured person is considered with regards to what a reasonable person in the position of the injured party might do, and on the basis of what the injured person knew or ought reasonably have known at the time the incident occurred.

If for instance, a passenger in a vehicle that was rear-ended by another vehicle was not wearing their seatbelt, then they will have contributed to their injuries by not complying with their legal requirements.

While the injured party may still advance a personal injury claim against the driver of the at-fault vehicle (via the Compulsory Third Party insurer), their claim for compensation may be discounted by a percentage owing to their contributory negligence.

This means that any settlement sum awarded could be reduced for their negligent part in the incident.

It is important to note also, that a Court may reduce the compensation sum awarded by up to 100%, should it consider the injured party’s contribution to the incident warrants it just and equitable to do so.

All personal injury claims are different, with each case to be considered on its own facts.

If you have any queries regarding potential contributory negligence to an incident causing personal injury, be it on the part of yourself or the other party, please contact us for custom advice pertaining to your matter.

Rehabilitation

For any personal injury claim to resolve, it is essential that the claimant’s injuries first reach maximum medical improvement.  This is so their personal injury claim can be adequately calculated to ensure that any compensation sum sufficiently covers the injured party’s loss and damage.

It reasonably follows that claimants will likely require rehabilitation in order to assist with recovery in the immediate aftermath of the incident, and for their injuries to reach maximum medical improvement.  Commonly required forms of rehabilitation include physiotherapy, chiropractic treatment, counseling, and surgery.

Until such time as the insurer admits liability for the incident that caused your personal injury, they are otherwise under no obligation to meet the cost of any rehabilitation expenses you might incur.

The legislative procedures governing personal injury claims gives insurers six months from the date you deliver a compliant claim form, to investigate the incident and provide a response as to their liability position.  Unfortunately, until that time, they are under no obligation to fund your medical and rehabilitative treatment.

In many circumstances however, particularly with claims arising from motor vehicle accidents where liability is clear cut and not contested, the insurer will pay for your upfront rehabilitation costs.

Alternatively, if you do incur out of pocket expenses relating to your rehabilitation, these expenses can be included when calculating the quantum of your personal injury claim (compensation amount your claim is worth), with reimbursement of the expenses ultimately sought from the insurer upon settlement.

Please contact Potts Lawyers should you wish to discuss you rehabilitation expenses connected to a claim for personal injury.

Expert Evidence

Prior to entering into any settlement negotiations in respect of your personal injury claim, it is important the parties gather all evidence they require in support of their respective negotiating positions.

The most common expert evidence required is a report, or reports, from independent medical examiners, whom specialise in the field of medicine that relates to your injuries.

Both parties will require you to undergo a medico-legal assessment with a specialist doctor, who is independent to any treating doctor you have visited.  The assessment may take place with an orthopaedic surgeon, psychologist or psychiatrist, neurologist, occupational therapist, or all of the above, plus any other specialty applicable.  Further, the parties may agree to a medical specialist assessing you and preparing the medico-legal report jointly instructed by them, or alternatively, may require you to attend two separate doctors in order to obtain two reports which contain competing opinions as to the extent of your injuries.  The two competing reports will be used to evidence the respective parties’ counter arguments.

These medico-legal reports, whether obtained jointly or independently, will address the impact your injuries have on your daily life, comment upon whether you have sustained a whole person impairment and if so, assess the percentage of impairment you have sustained in accordance with medical guidelines.

As lawyers generally do not have any medical expertise, these medico-legal reports help lawyers to understand the nature of your injuries, which is then used to revert to comparative legislative tables that assist in determining how much your pain and suffering, ongoing limitations and restrictions, are worth in terms of a compensation figure.

In conjunction with medico-legal reports, the parties may also obtain an investigation report into the circumstances of the incident should liability be an issue in dispute.  This may include reports from slip test experts, engineers, private detectives and the like.

A forensic accountant report may also be required, should your income, and comparative economic loss suffered as a result of the injuries you sustained, derive from intricate business and/or trust structures.

The expert evidence that is required is considered on the facts of your particular personal injury claim.  The objective to gathering all relevant expert evidence is to ensure that all parties are in all respects ready and prepared to argue their best case in settlement negotiations.

Should your personal injury claim advance to a legislatively required compulsory conference, as is the general procedure, both parties must attest that they have obtained all expert evidence that is necessary and that they are in all respects ready for the conference, and the proceeding trial should the claim not resolve.

If you wish to discuss the expert evidence that may be required to argue your best case in respect of your personal injury claim, please contact our litigation team at Potts Lawyers.

Disclosure

Both parties to a personal injury claim, whether making or responding to the claim, are subject to legislative disclosure obligations.

In the lead up to any negotiations, there is a legislative requirement for the parties to undertake investigations and obtain the evidence they ultimately believe will prove their case.

For instance, information that may be relevant to your personal injury claim may include, but are not limited to:

  • details surrounding the circumstances of the incident;
  • nature of the injuries you sustained;
  • ongoing restrictions concerning your activities of daily life;
  • care and assistance you have received;
  • any pre-existing illnesses or injuries that may impact on the extent of your personal injuries;
  • costs incurred by you in relation to your rehabilitation;
  • any economic loss sustained.

Supporting documentation in the form of your medical records, employment and earnings history, income derived from any statutory body (such as Medicare and Centrelink), receipts evidencing your out of pocket rehabilitation expenses, and documents relating to any prior personal injury claim, are also required to be disclosed.

Other evidence may be in the form of private investigation reports, CCTV footage. slip test reports, medico-legal reports, taxation records, forensic accounting reports and the like.

The parties must exchange all of the evidence obtained, regardless of whether or not it bolsters your claim, or puts certain arguments into question.

Disclosure is an ongoing process.

In addition, prior to attending a compulsory conference and/or during court proceedings, the parties will also deliver a court ‘List of Documents’ form to each other, so that each party can then request copies of any documentation that may have inadvertently not been disclosed.

Disclosure is a mandatory requirement and the parties cannot attend a compulsory settlement conference without certifying that they have complied with the procedural requirements of the Uniform Civil Procedure Rules 1999 (Qld).  This includes fully complying with their obligations to give the other party all material relevant to the claim whether in their possession, or in their power of possession.

It is important to note that any information or documentation that may have an impact on your personal injury claim is disclosable.  Accordingly, insurers will request your medical and earnings history for the period at least three years preceding the incident that caused your personal injury, until the date your claim is settled or presided over in Court.  While the three year period immediately preceding the incident is the general rule, if any pre-existing injury, illness or personal injury claim exists beforehand, and is relevant to the current personal injury claim, then the parties are at liberty to obtain information and documentation in that regard also.

Essentially, all information and documentation relevant to your personal injury claim is disclosed between the parties, so that there is a set evidentiary baseline for negotiations, or for court determination.

If you have any queries regarding material that may or may not be disclosable in relation to your personal injury claim, please do not hesitate to contact our litigation team.

Costs Awards

Depending on the quantum of your claim, you may be entitled to an award for legal costs.  A legal costs award however, does not necessarily mean all of your legal costs will be paid.  Rather, the awards are split into three categories:

  • Regulation Costs (also known as Declared Costs)
  • Standard Costs
  • Indemnity Costs

Each category is discussed in further detail below.

Regulation Costs 

These costs are prescribed by regulation and declare a specific costs award having regard to the amount of damages that are payable upon settlement or court award of your personal injury claim.

The declared costs award depends on the applicable Act and Regulation, the date the personal injury arose, and is restricted by an award of damages falling between lower offer limit and upper offer limit.

For example, section 27 of the Motor Accident Insurance Regulation 2014 (Qld) provides that for injuries sustained:

  • Between 1 July 2019 to 30 June 2020, regulation costs are declared at $3,910, providing the personal injury claim settled for an award of damages between the lower offer limit of $46,800 and upper offer limit of $78,040
  • On 1 July 2020 or after, the regulation costs are declared at $4,000, providing the personal injury claim settled for an award of damages between the lower offer limit of $47,850 and upper offer limit of $79,790.

As you will see, the declared regulation costs award increases over time, having regard to inflation.

It is important to note that these costs are prescribed by regulation, so if your personal injury claim settles for, or a Court awards damages for, a sum that falls between the lower and upper limits, the legal costs component cannot be any less or any more than the declared amount.

If the personal injury claim settles, or a Court awards damages, for a sum less than the lower offer limit, there will be no provision for legal costs.  If however, the claim settles, or a Court awards damages, above the upper offer limit, standard costs may apply.

Standard Costs 

Standard costs are typically higher than the declared regulation costs award.  If your personal injury claim settles, or a Court awards damages, for a sum above the upper offer limit prescribed by regulation, standard costs may apply.

Costs are ordinarily assessed on a standard basis or can otherwise be agreed between the parties.

Standard costs include all costs necessary or proper for the attainment of the settlement, compensation sum, or damages award applicable to your personal injury claim.

Importantly, you will not recover your entire legal fees arising from the claims process (as is the case with indemnity costs) but rather, the costs will be calculated pursuant to a Court scale.

The court scale provides a set amount for professional legal fees depending upon each task undertaken (for example, emailing correspondence, attending court, briefing counsel) however, the costs are calculated on a standard basis and have a capped limit (for example, for each 100 words of drafting a document an award of $20.70 is provided, an email transmission costs $0.60, a court attendance attracts an award of $81.50 per quarter-hour). The court scales are different in the Magistrates, District and Supreme Courts and are updated regularly.

The other party may simply agree to a sensible estimated amount for the standard legal cost component.  However, they may also require the file to be cost assessed to ensure accuracy pursuant to the court scale.  It depends upon the position taken by the other party.  A cost assessment is an additional expense to be borne by the parties and so, the party that is to pay may be open to negotiating the legal costs component in conjunction with the remainder heads of damage in your personal injury claim during the negotiation phase.

Suffice to say, costs on a standard basis, ordinarily amount to far less than privately charged legal fees.

Notably, a Court can award standard costs against you, in favour of the insurer, as a consequence to the Mandatory Final Offer process required by compulsorily legislated settlement conferences.  That is, you may be required to pay the insurer their legal costs on a standard basis, if you are not careful in the formal negotiation process. These cost consequences are discussed further below, under Mandatory Final Offers.

Indemnity Costs 

Indemnity costs are governed by Rule 703 of the Uniform Civil Procedure Rules 1999 (Qld) and generally encompass the entirety of your actual legal costs, charged by your legal representatives in accordance with their hourly charge out rates and the relevant time spent in completing each task , plus third party disbursement expenses.

When a court assesses costs on an indemnity basis, it allows for all costs reasonably incurred by the party, having regard to:

  • the prescribed court scale of fees;
  • any costs agreement between the party and their solicitor; and
  • charges ordinarily payable by clients to solicitors for work involved in the personal injury claims process.

Items will only be excluded from an indemnity costs award if a court finds that particular cost was unreasonably incurred or for an unreasonable amount.  Indemnity costs are far broader than standard costs and are generally awarded when a party is found to have conducted their case improperly by acting in an unreasonable manner that protracted the personal injury claim process.

Indemnity costs can be awarded to either party, as a consequence to the Mandatory Final Offer process required by compulsorily legislated settlement conferences.  That is, you may be required to pay the insurer their legal costs on an indemnity basis, if you are not careful in the formal negotiation process. Although mostly, an indemnity costs award attaches to the respondent to the personal injury claim rather than the claimant – depending on the parties’ behaviour.  These cost consequences are discussed further below, under Mandatory Final Offers

Informal Negotiatons

During the course of your personal injury claim, it may be tactically beneficial for the parties to undertake informal ‘without prejudice’ negotiations with a view to expediting the settlement of the claim and avoiding substantial legal costs that are incurred in the compulsory conference stage.

An informal offer is prepared by way of correspondence, setting our your claims under each head of damage and the evidence supporting your claim.  The respondent to the personal injury claim generally responds with a written counteroffer, and the negotiating process evolves from that point onwards.  Generally, multiple communications between the solicitors ensue with a view to seeing if the claim can be settled early.

If a settlement cannot be reached, the parties may elect to obtain further evidence to support the weaknesses identified in the personal injury claim, and advance towards a compulsory conference.

 

Compulsory Conference

Pursuant to relevant governing personal injury legislation, parties are required to attend a compulsory conference in an attempt to resolve the claims, prior to bringing an action in Court.  This legislative requirement has an overarching policy consideration, as it ultimately frees the Courts from hearing personal injury matters that might otherwise be able to settle without judicial involvement.

Importantly, parties can only attend a compulsory conference if they have gathered all the information and evidence they intend to rely upon, as if they were headed to trial, presided by a judge in court.

Certificate of Readiness 

In the lead up to the compulsory conference, each party to the personal injury claim must legislatively provide the other side with a Certificate of Readiness that states:

  • they are in all respects ready for the compulsory conference, and subsequent trial (if required);
  • all investigative material required has been obtained;
  • medical or other expert reports have been obtained from all persons the party proposes to call as expert witnesses;
  • they have fully complied with their disclosure obligations to give the other party material relevant to the claim; and
  • the solicitor has provided their client with a Costs Statement setting out all information legislatively required.

The Certificates of Readiness must be exchanged one week prior to the compulsory conference convening.

Costs Statement 

The correlating Costs Statement, as referred to in the Certificate of Readiness above, is required by legislation to set out:

  • details of the legal costs (clearly identifying costs that are legal fees and disbursements) payable by that party, to their solicitor, incurred up to and including the compulsory conference stage;
  • an estimate of the likely additional legal costs (clearly identifying costs that are legal fees and disbursements) if the personal injury claim proceeds to trial to be determined by the Court; and
  • a statement of the cost consequences that attach to particular scenarios should a Court award damages for a sum that is less or more than a party’s Mandatory Final Offer exchanged at the compulsory conference.

The Cost Statement must be provided to the relevant party at least one week before the compulsory conference, and prior to the delivery of the Certificate of Readiness to the other party.

Conference Process 

The compulsory conference is usually convened either at insurer or solicitor offices or at counsel’s chambers where multiple conference rooms are available.

At the commencement of the compulsory conference, the parties will all convene in the one room.  Counsel will open with arguments in support of your personal injury claim which will provide insight into the impact of the injuries sustained on your daily life, and will delve into the evidence relied upon when calculating the quantum, or worth of your claim.

Likewise, the respondent’s solicitors (perhaps with counsel also) will provide a counter argument as to the evidence they prefer with respect to liability and/or, in support of their calculations on the worth of your personal injury claim.  It is in this session that the insurer may also ask questions and seek further clarification from your lawyer as to certain aspects of your injuries, the impact upon you and your employment and earnings, the out of pocket costs you incur, the future surgeries, treatment, aids, equipment, care and assistance you may require etcetera.

 

In addition, the insurer may also raise life expectancy and/or pre-existing injuries and illnesses to argue that your future damages awards should be reduced or discounted.

Depending upon the questions asked we may agree to answer any queries in that initial joint session or simply advise the insurer that we will seek your instructions independent of their presence, and counsel will revert to them later with your responses.

It is at this point in time that the parties will split into separate ‘break-out’ rooms, and where negotiations will commence.

When the parties split into separate rooms, your legal team may traverse back and forth with the respective parties’ exchanging counteroffers and their associated arguments advanced for each counteroffer.  Obviously, the aim is that the parties ultimately reach an agreed settlement, and the personal injury claim settles at the compulsory conference.

During the exchanging of offers, we will keep you regularly informed of each parties’ position, the tactical process we feel best to adopt, and seek your instructions on each counteroffer made.  You will be able to ask us any questions that arise throughout this process.  We will also update you upon each offer exchanged, as to the amount you can expect to receive ‘in the hand’ following deduction of your legal fees, disbursements and any statutory refunds payable, from the overall settlement sum.

Should a settlement sum be reached, it is possible, that the insurer will seek your file held by your lawyers be assessed by a qualified costs assessor following the compulsory conference, in calculating the legislative award for the legal costs component they are statutorily obligated to pay.  As mentioned above, a costs assessor will evaluate our file and calculate the legal costs award pursuant to the applicable court scale.  

Mandatory Final Offers

In the event the personal injury claim does not settle, Mandatory Finals Offers (also known as MFOs) are subsequently exchanged at the conclusion of the compulsory conference, but while the parties are still present.

As the name suggests, the offers represent the parties’ final position in negotiations, and are mandatory in accordance with governing legislation.  These Mandatory Final Offers remain open for a period of 14 days from the date of the compulsory conference, for either party to accept.  If the 14 day period lapses and neither offer is accepted, then the expiry is taken as a rejection of the MFO.

There are however, potential legal cost consequences when it comes to the exchanging of Mandatory Final Offers in terms of any subsequent Court judgment, and so the parties must be strategic in the offer advanced in writing.

Should your personal injury claim advance to trial, each party’s Mandatory Final Offer is sealed in an envelope and opened by the Court following the judge’s determination on the damages award.  In the event the judicially decided compensation figure is above the figure in your Mandatory Final Offer, the insurer may be ordered to pay your indemnity costs (that is, the entirety of legal costs charged) from the date of the compulsory conference up to and including the trial.

However, if the judge awards a damages figure for an amount less than your Mandatory Final Offer but above the figure set out in the respondent’s Mandatory Final Offer, the respondent will most likely only be ordered to pay your standard costs from the date of the compulsory conference up to and including the trial. That is, you will not recover your entire legal fees as is the case with indemnity costs but rather, the costs will be calculated pursuant to the applicable court scale.  Costs on a standard basis amount to far less than privately charged legal fees.

Should the judgement award fall under the Mandatory Final Offer provided by you to the respondent, then you will have to pay for the respondent’s legal costs, from the date of the offer to the end of the matter, usually calculated on a standard basis although there is discretion for an indemnity costs award depending on the circumstances of the claims process.

Given the cost consequences associated with the Mandatory Final Offers, it is very important that the parties’ are strategic in the figure exchanged.  Should the compulsory conference advance towards this stage, we will provide you with carefully considered advice regarding the amount to be put in the Mandatory Final Offer, and our devised strategy in light of the negotiations on foot.

Instituting Court Proceedings

In circumstances where Mandatory Final Offers are exchanged, should neither party accept the other party’s offer within the 14 day period, then you must institute proceedings in a Court, in order to advance the matter towards trial.  You will have 60 days from the conclusion of the compulsory conference to institute Court proceedings via the lodgement of a Claim & Statement of Claim, which will be prepared based on the quantum previously calculated as the worth of your personal injury claim.

Failure to lodge a Claim & Statement of Claim in the Court during this period will result in the claimant being statute barred from pursuing their personal injury claim.  Accordingly, the 60 day period acts as another limitation period to the personal injury claim.  Once served however, the time limitations that apply to the personal injury claim are effectively stayed pending the court process.

In circumstances where a limitation period attaching to a personal injury claim is almost due to expire, but the compulsory conference is yet to be convened, Court proceedings may be instituted by Application, so as yo stay the limitation period.  The parties will then have to revert back to the pre-court procedures required by legislation, in an attempt to settle the claim expeditiously.  Should this occur, the relevant limitations will be reactivated upon the convening of the compulsory conference.  If the personal injury claim does not settle following the compulsory conference, then the Court procedures are subsequently followed.

During this 60 day period, but following the expiration of the 14 day Mandatory Final Offer period, either party may wish to again attempt to negotiate a settlement on an informal basis.  We would likely only recommend this option if the parties are relatively close in their final offers and the legal costs involved in instituting court proceedings outweigh any advantage that may be obtained.

Obviously, we would need to provide our advice on strategy bespoke to the circumstances at that point in time.  Further, our recommendations at that time would also hinge on the quantum ranges previously estimated by us or counsel in their advice, in comparison with the respondent’s negotiating position.  It may be that the insurer would be willing to increase their offer following the expiration of their Mandatory Final Offer in an attempt to avoid the costs associated with court procedures and protracted litigation.

Should you institute proceedings, the respondent then has a further 28 days from the date of service of your Claim & Statement of Claim, to file and serve a Notice of Intention to Defend & Defence.  You are then required to file a Reply in response to the Defence served by the insurer within 14 days.

Rather than delve into the entire and sometimes overwhelming court procedures, we simply touch upon the initiating process at this stage.  In the event a settlement cannot be reached at compulsory conference or shortly thereafter, we will set out the complete court procedures to be followed in advancing the personal injury claim towards trial.

Unfortunately, court proceedings can be a rather lengthy and involved process, over and above the timely pre-court procedural course the personal injury claim has already taken.  Accordingly, a comprehensive outlook on court procedures is provided only when necessary, as it is our aim to have the personal injury claim reach a settlement favorable to our clients at compulsory conference if not beforehand via informal negotiations.

Quantum / Compensation Amount
Quantum / Compensation Amount

Prior to undertaking any calculation of the quantum of your claim, or how much compensation your personal injury claim is worth, there must first be an assessment with respect to liability for the accident, and whether any percentage for contributory negligence applies.  It is also important that all evidence supporting your claim is obtained, so that accurate calculations may be made.

Once the issues of liability and contributory negligence are settled, as well as the provision of all evidence required, then an advice on quantum can be prepared.  If you settle your claim or a Court makes an award in your favour, the money you receive is referred to as “damages”.

A quantum advice will set out the likely low and high ranges of damages you can expect to receive in compensation as a whole.

The quantum of your claim is calculated with regard to numerous heads of damage which are outlined below.

Calculations are complex, and rest on the facts and circumstances surrounding your particular personal injury claim.  The quantum is assessed on a case by case basis, as every personal injury claim is different.

For your information however, we will explain some of the key characteristics that are considered when calculating the amount your personal injury claim is worth, having regard to each head of damage.

General Damages

The term general damages refers to your pain, suffering and loss of amenities as a result of the injuries you sustained in the incident.

In Queensland, an award for general damages is governed by the Civil Liability Act 2003 (Qld).  The Civil Liability Regulation 2014 (Qld) further sets out the range of awards for specific injuries.

However the legislation does not apply to injuries for which workers’ compensation is payable.  In workers’ compensation personal injury claims, a claimant may be entitled to general damages based on common law principles.  Common law general damages are usually much higher than the general damages amount prescribed by the Civil Liability Act 2003 (Qld).

For the purposes of this practical guide, we will concentrate on the legislative allowances for general damages.

As a preliminary step, the legislation requires us to first ascertain the claimant’s dominant injury; whether it be neurological, orthopaedic, disfigurement or psychiatric.  This assessment will take into account the evidence contained in medico-legal reports obtained from experts whom provide an opinion as to a percentage of whole person impairment.

The dominant injury may have the highest percentage of whole person impairment, or otherwise be the most debilitating to the claimant.

The regulations then provide a range of item numbers attributable to each dominant injury, and assesses each injury as minor, moderate, or severe in accordance with an array of example circumstances.

The regulations then state that injuries falling under a particular item, carry an Injury Scale Value (ISV) of between 0 and 100, which then translates to a correlating monetary figure for an award of general damages.

However, in calculating general damages, regard must also be had to the claimant’s associated injuries, in conjunction with their dominant injury.  An example may be associated disfigurement from surgical scarring pertaining to a dominant orthopaedic injury, and/or associated psychological injuries.

With these associated injuries in mind, a further review of the Civil Liability Regulations 2014 (Qld) is conducted in order to ascertain whether they fall within a minor, moderate or severe range.  The claimant can then be entitled to an ‘uplift’ of up to 25% on top of their general damages award.

Pursuant to the legislation, interest is not payable on general damages awards.

Calculating an award of general damages to compensate a person’s pain and suffering is a complex exercise.  It revolves around the medico-legal evidence obtained in respect of a claimant’s injuries, and then legislative provisions are referred to in order to assess the appropriate range of damages that may be payable.

A calculation of pain and suffering will not provide an exact amount as it depends on multiple factors, such as:

  • a person’s dominant injury;
  • any associated injuries;
  • a percentage of whole person impairment awarded; and
  • the impacts of the injury on their activities of daily living,

Following the abovementioned formula however, will provide a low and high range calculation of what a claimant might expect to receive as an award for general damages.

Given the complexities, and calculations requiring an examination of the evidence surrounding each case, please contact us to discuss the merits of your particular personal injury claim.

Economic Loss

Awards for economic loss take into account your past loss of earnings, anticipated future loss of earnings, together with your past and future losses of superannuation entitlements.

Past Economic Loss

When calculating your past economic loss, a Court will take into account the time you required off work as a result of your injuries.  This may include time lost immediately following the incident allowing you to convalesce, and time off work for surgical intervention, rehabilitation consultations such as physiotherapy and counselling, gradual return to work programs and other intermittent time required due to your symptoms.

Both parties will obtain your taxation records for the three years preceding the incident giving rise to your personal injury, and the period following your injury up to the date of settlement or trial.  Your employment records may also be obtained as part of the evidentiary process.

An analysis of your earnings and employment history will be undertaken in order to assess the difference between your pre-accident earnings and post-accident earnings.  This difference will make up your past economic loss claim.

As tax is not payable on any lump sum settlement award, your economic loss will be calculated based on your net (after tax), rather than gross (before tax), earnings.

Pursuant to section 54 of the Civil Liability Act 2003 (Qld), any award of damages for loss of earnings is limited to three times the present value of average weekly earnings for individuals.  That is, even if you are an extremely successful and highly paid employee or businessperson, your past economic loss claim is limited to a maximum of three multiples of the average weekly earnings for any person in Queensland.

Interest is payable on your past economic loss.

Future Economic Loss

When calculating your future economic loss, a Court will consider many factors, including but not limited to:

  • the extent and severity of your injuries;
  • your qualifications;
  • your work history and experience;
  • the physical demands of your chosen occupation;
  • your potential education or training conducted for future career progression;
  • whether you are able to continue working in your pre-accident occupation, either in a full or partial capacity;
  • whether modified and restricted duties and/or limited hours assists in keeping you employed in your chosen employment;
  • if you cannot undertake your pre-accident occupation, whether you are suited to alternate employment for which you are appropriately qualified or experienced;
  • if so, any differences in income between these employment roles;
  • any further time required off work for ongoing medical treatment and rehabilitation;
  • whether your injuries have caused other future anticipated losses such as loss of business, overtime, promotion opportunities, and/or expected increases in wage under enterprise bargaining agreements or performance reviews;
  • if you were not receiving a salary, drawing guidance from your pre-accident and post-accident commissions or drawings from business income;
  • whether you have been demoted in your chosen occupation as a result of your injuries and limitations;
  • your current age;
  • your anticipated life expectancy; and/or
  • any potential disadvantage you may experience when applying for employment in the open labour market as a result of your injuries.

Previously, Courts have been reluctant to award potential damages above the age of 60 years, although future losses of earnings have recently trended towards a retirement age of 65 years with some judges now making an allowance up to age 67.

Drawing parallels from the past economic losses, any future economic loss claim will require both parties to investigate your taxation and employment records to deduce any evidentiary trend that may assist in determining your likely future employment and earnings projections.

Losses will also be calculated using projected net (after tax) earnings and are considered on a case by case basis.  Likewise, section 54 of the Civil Liability Act 2003 (Qld) also applies – limiting any award of damages to three times the present value of average weekly earnings for individuals.

Interest is not payable on any claim for future economic loss.

It is difficult to quantify future economic loss with exactness and depending on the evidence available, sometimes a global compensation award will be sought and awarded.  Likewise, future economic loss claims may also be discounted for contingencies and vicissititudes of life, taking into account any potential for changes in circumstances or fortunes.

Courts appreciate that quantification of damages for loss of economic capacity defy precise calculation and involve, the ‘double exercise in the art of prophesying’ (as Lord Diplock said in Paul v Rendell i(1981) 55 ALJR 371, and adopted by McMeekin K in Nucifora & Anor v AAI Ltd [2013] QSC 338.  Accordingly, global claims are often appropriate.

Loss of Superannuation

In certain circumstances, section 57 of the Civil Liability Act 2003 (Qld) provides an entitlement to claim any associated losses of superannuation in accordance with the minimum statutory percentages applicable to your earnings.

As superannuation rates are legislated to increase over time, your claim for future loss of superannuation will take into account the higher statutory rate anticipated.

Percentage calculations will be based on your respective past and future economic loss claims.

Interest is payable on past losses, but not payable on any award for future loss of superannuation entitlements.

Special Damages

Special damages, in part, refers to any injury-related benefits received from statutory departments such as WorkCover Queensland, Medicare Australia, Centrelink, Veteran’s Affairs, Education, Employment and Training, and Services Australia.  These benefits will comprise ‘statutory refunds’ that will be owed upon settlement of your personal injury claim, as s reimbursement to the relevant department that funded some of your injury-related expenses.

Special damages also includes your injury-related out of pocket expenses incurred for medical treatment, rehabilitation, counselling, pharmaceuticals, aids and equipment, and associated travel expenses to attend appointments.

The case of Wilson v McLeay (1961) 106 CLR 523, also provides authority for the recovery of out of pocket expenses incurred for necessary travel related expenses such as fares, accommodations and costs, for a parent or relative to care for the injured person.

All special damages, be they statutory benefits or out of pocket expenses, are built into your personal injury claim, so that the relevant parties are appropriately refunded for the injury-related expenses incurred.

It is important you keep a log and receipts of any expenses you pay for out of your own pocket, as well as a diary detailing your injury-related appointments and distance of return travel.  This will evidence your claim for past special damages.

Interest is payable on monetary awards for past special damages.

Your evidence retained for past special damages may also indicate an appropriate award for anticipated future special damages.  Both parties will also assess any medical evidence obtained, including medico-legal reports from appropriately qualified specialists, which will indicate whether you will require future medical treatment, surgerys costs, rehabilitation expenses, counselling, pharmaceuticals, aids and equipment, vocational training and courses, and the like.

Depending on the evidence available, you may also be entitled to monetary compensation for special damages envisaged for the future.

If so, any futures calculation will also take into account your current age, your anticipated life expectancy (including other considerations for pre-existing injuries and illnesses that may decrease any average expectancy), and the years of life you likely have remaining.

A global claim for future special damages os made after reviewing all evidence and material factors.

Statutory Refunds

As noted above in the Special Damages section, if your personal injury claim is successful and you receive compensation, any payments made to you by WorkCover Queensland, Centrelink, Medicare Australia, the Department of Education, National Disability Insurance Scheme, Employment and Workplace Relations or a private health insurer, must be repaid to these agencies from the damages award. These amounts are factored into any settlement offer or court judgement.

Prior to the conclusion of your claim, we will obtain statements of the amounts paid from these agencies so that we may build the statutory refunds amounts into your claim for damages.

The only exception is Centrelink as it no longer gives claimants a statement of compensation charges and preclusion periods. Instead, they now ask claimants to estimate these refund and preclusion period amounts themselves using an online Compensation Estimate Calculator.   We are able to perform a number of estimates using the Centrelink Estimate Calculator and give you a “best case – worst case” range of the possible amount you may need to refund to Centrelink, and the period of time you may be precluded from receiving Centrelink benefits.

While we will do our best to provide a realistic estimate based on the information you have given us, in the absence of definitive statements from these statutory agencies, estimates concerning the refunds amounts owed may represent a “best guess” and the final demand from relevant departments may be more or less.

Gratuitous Care & Assistance

This head of damage refers to the care and assistance you received gratuitously from your friends, neighbours and/or relatives in respect of your injury-related limitations and restrictions.

The policy consideration is that your friends and family should be compensated for the level of domestic care and assistance they provided you, to the value that an independent service provider would receive, per commercial market rates, depending on the type of task performed.

Such compensable care and assistance encompass many tasks such us household chores and maintenance, gardening and lawn care tasks, vehicle maintenance and transport requirements, and any assistance provided in activities of daily living such as showering, toileting dressing, grocery shopping, meal preparation, assisting you with bed and chair transfers and the like.

You will have had to have perform such tasks prior to the incident that caused your injuries and be unable to subsequently perform those tasks post-accident.

Griffiths v Kerkemeyer (1977) 139 CLR 161 provides the common law principle that damages are recoverable if the relevant loss is caused by the claimant’s incapacity for self care and that loss is to be quantified by reference to the value or cost of providing the needed services.

This case was later restricted by section 59 of the Civil Liability Act 2003 (Qld) insofar as the services must be necessary and arise solely from the injuries sustained in the incident.  Moreover, the legislation now imposes a minimum threshold so that in order to advance a claim for gratuitous care and assistance, care and assistance must be provided for a minimum of 6 hours per week over 6 months, before it can be considered compensable.

Any past claim will turn on the evidence that can be obtained from the person/s who provided you with the relevant care and assistance, and if it meets the threshold requirement, interest will also apply.

Your future claim for gratuitous care and assistance, if applicable, will also consider evidence as to your current needs and specialist medico-legal evidence commenting on your likely future needs.  A claim for future care and assistance must have previously met the past gratuitous threshold.

As with all other heads of damages, calculations are made on a case by case basis, and if the threshold requirement is met, global claims will likely apply as it is difficult to quantify the exactness of any future award.  Likewise, future care and assistance will consider your age, life expectancy, years of life remaining, and may be discounted for the vicisstitudes of life.

Loss of Servitude / Consortium

In some circumstances, an award for damages for loss of servitude and loss of consortium may apply.  Section 58 of the Civil Liability Act 2003 (Qld) provides an award only applies if the injured person has died as a result of the injuries suffered, or their injuries are so severe that their general damages meet an amount prescribed under regulation.

If applicable, this action is brought by a spouse to recover loss suffered as a result of being deprived of the comfort, society, and services of their injured or deceased spouse.

Exemplary, Punitive or Aggravated Damages

Generally, exemplary, punitive or aggravated are not awarded in personal injury claims.  That said, section 52 of the Civil Liability Act 2003 (Qld) allows such damages to be awarded in limited circumstance.  Specifically, if the act that caused the personal injury was an unlawful intentional act done with intent to cause personal injury, or an unlawful sexual assault or other unlawful sexual misconduct.

Legal Costs

Depending on the quantum of your claim, you may be entitled to an award for legal costs.  A legal costs award however, does not necessarily mean all of your legal costs will be paid.  Rather, the awards are split into three categories:

  • Regulation Costs
  • Standard Costs
  • Indemnity Costs

For further information, please refer to the Costs Awards section.

Your evidence retained for past special damages may also indicate an appropriate award for anticipated future special damages.  Both parties will also assess any medical evidence obtained, including medico-legal reports from appropriately qualified specialists, which will indicate whether you will require future medical treatment, surgerys costs, rehabilitation expenses, counselling, pharmaceuticals, aids and equipment, vocational training and courses, and the like.

Depending on the evidence available, you may also be entitled to monetary compensation for special damages envisaged for the future.

If so, any futures calculation will also take into account your current age, your anticipated life expectancy (including other considerations for pre-existing injuries and illnesses that may decrease any average expectancy), and the years of life you likely have remaining.

A global claim for future special damages os made after reviewing all evidence and material factors.

Impact of National Injury Insurance Scheme

Following a motor vehicle accident, if the injured person then becomes a participant in the National Injury Insurance Scheme, damages for personal injury may be restricted.

Specifically, section 52B of the Civil Liability Act 2003 (qld) legislates that courts cannot award damages in relation to the injured person’s treatment, care and support needs result from the personal injury, and arise or arose when the person is/was a participant in the insurance scheme.

If however, the person is a lifetime participant of the National Injury Insurance Scheme as a result of personal injuries sustained in a motor vehicle accident, and the Compulsory Third Party insurance agency is liable, then section 62C of the Act allows a court to award the CTP insurer’s contribution towards treatment, care and support damages.