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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 324 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.