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Personal Injury

QLD

This publication assists practitioners in advising and representing clients with common law personal injury claims in Queensland under the Civil Liability Act.

2 Matter Plans

Overview

The commentary covers all aspects of claims, including the principles of liability, preparing and commencing claims, negotiating and settling claims, and examples of future complications for various injuries and court proceedings.

The Reference materials folder includes guidance on electronic signing and witnessing, and the comprehensive Getting the matter underway folder includes compliance and client care documents. Using the extensive Retainer Instructions when gathering information ensures nothing is missed.

Also included is 101 Subpoena Answers, which is a useful reference guide.

Precedents in this publication include:

  • Letters to clients, insurers, doctors, and relevant authorities gathering information;
  • Medical authorities;
  • Instructions to settle;
  • Library of example pleadings
  • Example content for a schedule of damages and issues.
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2 Matter Plans Included

  • Item icon Matter Summary (Personal Injury)
  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Personal Injury (QLD)
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon Medical Glossary
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Litigation
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
    • Folder icon Demonstrating the use of precedents
      • Item icon Demonstrating the Use of Precedents
        To demonstrate the range of precedents available in the guide and to illustrate how they can be adapted to a particular matter, one set of precedents are based on a set of facts in a debt recovery that escalates when a cross-claim is brought alleging a course of conduct between the parties and a ...

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      • Item icon Demonstration - Letter of demand
      • Item icon Demonstration - Response to letter of demand
      • Item icon Demonstration - Pleadings and particulars
      • Item icon Demonstration - Request for further and better particulars
      • Item icon Demonstration - Defence
      • Item icon Demonstration - Affidavit of defendant
      • Item icon Demonstration - Cross-claim or counterclaim
      • Item icon Demonstration - Defence to cross claim or counterclaim
      • Item icon Demonstration - Calderbank offer
      • Item icon Demonstration - ADR order - Referral to mediation
      • Item icon Demonstration - Mediation position paper - Plaintiff
      • Item icon Demonstration - Mediation position paper - Defendant
      • Item icon Demonstration - Consent orders
      • Item icon Demonstration - Deed of release - Settlement of proceedings
    • Item icon Further information
  • Item icon Overview and limitation periods
    The conduct of a personal injury claim is governed by several pieces of legislation, all of which have strict time limits. Failure to comply with time limits may mean a client's claim cannot succeed, and the practitioner may be exposed to a law claim. The relevant legislation is:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Personal injury claim
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Personal injury claim
    • Item icon Conflict of interest check
    • Item icon Initial letter to client enclosing costs agreement
    • Item icon Initial letter to client enclosing costs agreement - Personal injury - Extensive
    • Item icon Costs agreement - QLD
    • Item icon Conditional costs agreement - QLD
    • Item icon Conditional costs agreement - Uplift fee - QLD
    • Item icon Scope of work - Personal injury claim - Acting for the plaintiff
    • Item icon Abbreviated costs disclosure - Costs under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions in personal injury matters
      A client will present either specifically to receive advice about an injury they or a family member have suffered, or when seeking advice about an entirely different matter, they will mention an injury sustained in an accident. In either of the above situations, it is essential to obtain all ...

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    • Item icon Authority for medical records - General
    • Item icon Personal injury information sheet
    • Item icon National Injury Insurance Scheme (Queensland)
      In some circumstances, the client may be eligible to receive lifetime treatment, care and support under the National Injury Insurance Scheme Queensland (NIIS). The National Injury Insurance Scheme (Queensland) Act 2016 and the National Injury Insurance Scheme (Queensland) Regulation 2016 ...

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    • Folder icon If required - National Injury Insurance Scheme forms
      • Item icon Application form - Interim participation
      • Item icon Application form - Insurer
    • Item icon Notice of Claim - Dependency Claims
    • Item icon Notice of claim - Health care claims
    • Item icon Notice of claim - Non health care claims
    • Item icon Liability
      To succeed in a common law claim, the claimant must show that the defendant’s negligence caused the accident and the injuries sustained. The claimant must show that the defendant owed them a duty of care and breached that duty, resulting in the claimant’s injury and damage. A duty of care will ...

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    • Item icon Gathering information
      It is essential to gain a firm understanding of the factual evidence relevant to liability and consequential loss before:

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    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Gathering information
    • Item icon Gathering information
      It is essential to gain a firm understanding of the factual evidence relevant to liability and consequential loss before:

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    • Item icon Obtaining expert opinion
      It will be necessary to obtain reports from medical practitioners about damages and quantum and possibly reports from other experts concerning liability. Precedent letters for instructing expert witnesses are available on the matter plan. Many experts are very busy, and wait times for reports can ...

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    • Item icon Medical examinations
      As discussed above, quantum expert evidence must be obtained from an expert who has examined the plaintiff. If agreement can be reached, it is possible under s 23(1) of the Personal Injuries Proceedings Act for the parties to jointly appoint an expert to draft a report on the following issues:

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    • Item icon Record of information requested, received, and served
    • Folder icon Client
      • Item icon Letter to plaintiff on medical evidence, investigators, and staying in contact
      • Item icon Letter to plaintiff to attend medical appointment
      • Item icon Letter to plaintiff to attend medical appointment made by defendant
      • Item icon Letter to plaintiff on mitigation of damages
      • Item icon Letter to plaintiff on claim for domestic assistance
    • Folder icon Ambulance
      • Item icon Authority for ambulance service report
      • Item icon Letter to ambulance service for reports with authority and fees
    • Folder icon Centrelink
      • Item icon Centrelink - Authority to release personal information - personal injury, insurance, superannuation or other matter
      • Item icon Letter to Centrelink with FOI form for details of benefits
      • Item icon Centrelink - Freedom of Information - request to access or change document(s)
    • Folder icon Doctors
      • Folder icon Doctor
        • Item icon Authority for medical records - General
        • Item icon Letter to doctor for report
        • Item icon Letter to doctor seeking time for payment
        • Item icon Irrevocable authority to pay doctor
        • Item icon Letter to other side serving expert report
      • Folder icon Specialists
        • Item icon Authority for medical records - General
        • Item icon Letter to specialist doctor for report
        • Item icon Letter to other side serving expert report
    • Folder icon Employer
      • Item icon Authority for employer to provide loss of income details
      • Item icon Letter to employer for income details
    • Folder icon Hospital
      • Item icon Authority for information from hospital
      • Item icon Letter to hospital for clinical notes
      • Item icon Letter to hospital for report
    • Folder icon Medicare
      • Item icon Letter to Medicare for details of payments with authority
      • Item icon Medicare compensation recovery - Medicare history statement request
      • Item icon Medicare Australia - Request for Medicare claims information
      • Item icon Medicare Australia - Request for Pharmaceutical Benefits Scheme claims information
      • Item icon Medicare compensation recovery - Third party authority (no bar code)
      • Item icon Medicare compensation recovery - Section 23A statement
    • Folder icon Police
      • Item icon Authority for police reports
      • Item icon Letter to police for report
    • Folder icon ATO
      • Item icon Letter to ATO for information
    • Item icon Briefing counsel
      Briefing counsel experienced in personal injury claims is usually appropriate, preferably at an early stage, rather than just before trial. This helps the claim to be appropriately pleaded, prepared and presented, as counsel will identify any difficulties or evidentiary deficiencies that need to be ...

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    • Item icon Brief to counsel - Injuries
    • Item icon Example content - Brief to counsel - Injuries
  • Folder icon C. Commencing the claim
    • Item icon Law practice certificates
      Claim farming is the practice of giving or receiving consideration for a claim referral or potential claim referral or soliciting or inducing a claimant to make a claim, in contravention of the various provisions of legislation governing personal injury, workers’ compensation, and motor accident ...

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    • Item icon Law Practice Certificate
    • Item icon Law practice certificate - Legal Services Commission QLD
    • Item icon Pre-court procedures
      Part 1 of Chapter 2 of the Personal Injuries Proceedings Act 2002 provides for mandatory pre-court procedures before proceedings can be commenced. These include:

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    • Item icon Example timeline for a claim
      A basic timeline of the likely progress of a client's claim would be as follows:

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    • Item icon Notice of Claim – Part 1
      The first step in bringing the claim is to issue Part 1 of the Notice of Claim to the respondent, the person who the client believes caused the accident or injury. The notice must be given the earlier of:

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    • Item icon Notice of Claim – Part 2
      The Part 2 Notice must be given to the respondent within two months of the earlier of:

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    • Item icon Notice of Claim - Dependency Claims
    • Item icon Notice of claim - Health care claims
    • Item icon Notice of claim - Non health care claims
    • Item icon Letter to respondent enclosing Part 1 of the notice of claim
    • Item icon Letter to respondent's solicitor enclosing Part 1 of the notice of claim
    • Item icon Response to the Notice of Claim
      Within one month of service of Part 1 of the Notice of claim, the respondent must respond confirming they are the proper respondent and that the Notice of claim complies with the Personal Injuries Proceedings Act. Acknowledgment that a person is a proper respondent to a claim is not an admission of ...

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    • Item icon Tips for completing the Notice of Claim
      There is no requirement for a claimant to undergo a medical assessment before providing details about the extent of disabilities suffered from the injury: Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149 at [11]. The Notice of Claim must contain all of the information required by s 3 of the ...

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    • Item icon Serving the Notice of Claim
      The Personal Injuries Proceedings Act does not specify the form of serving the required notice. The best course is to serve the respondent either personally or by post, under s 39 of the Acts Interpretation Act 1954.

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  • Folder icon D. Settling it early
    • Item icon Assessment of damages
      Heads of damage Chapter 3 of the Civil Liability Act 2003 deals with the assessment of damages and restrictions that apply to various heads of damage and types of claimants.

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    • Item icon Structured settlements
      Damages are usually paid as a lump sum. Alternatively, the client may prefer a structured settlement, by which there is an agreement for payment of all or part of the damages by periodic payments, funded by an annuity or other agreed means: ss 63 – 67 of the Civil Liability Act 2003. If the ...

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    • Item icon Repayments
      Before making or considering settlement offers, it is essential to determine and advise the client about all necessary repayments that will apply. See Deductions and preclusions under Finalisation below.

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    • Item icon Letter to respondent enclosing Part 2 of the notice of claim
    • Item icon Letter to respondent's solicitor enclosing Part 2 of the notice of claim
    • Item icon Compulsory conference
      If the matter does not settle, a compulsory conference must be held unless dispensed with by agreement between the parties or by order of the court. If the conference is dispensed with by agreement, proceedings must be commenced within 60 days of the date of the agreement.

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    • Item icon Certificate of readiness
    • Item icon Costs statement
    • Item icon Mandatory final offers
      See s 39 of the Personal Injuries Proceedings Act. If the matter is not settled at the compulsory conference, the parties must exchange mandatory final offers (MFOs) at the conference, which remain open for 14 days.

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    • Item icon Letter to respondent - Mandatory final offer
  • Folder icon E. If required - Going to court
    • Item icon Urgent proceedings
      Proceedings may be commenced despite non-compliance with the pre-court procedures required by the Personal Injury Proceedings Act if the court is satisfied there is an urgent reason to do so: s 43. The imminent expiry of the limitation period might be such a reason. An application under s 43 is not ...

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    • Item icon Obtaining expert opinion
      It will be necessary to obtain reports from medical practitioners about damages and quantum and possibly reports from other experts concerning liability. Precedent letters for instructing expert witnesses are available on the matter plan. Many experts are very busy, and wait times for reports can ...

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    • Item icon Trial preparation checklist - Personal injury claim
    • Item icon Brief to counsel - Injuries
    • Item icon Example content - Brief to counsel - Injuries
    • Folder icon Library of UCPR forms
      • Item icon ADR consent order
      • Item icon ADR referring order
      • Item icon Affidavit (Form 46)
      • Item icon Affidavit accompanying payment into court
      • Item icon Agreement to change of venue
      • Item icon Appearance slip - for use in Townsville District & Supreme Courts
      • Item icon Application
      • Item icon Application for approval as a costs assessor
      • Item icon Application for costs assessment and costs statement
      • Item icon Application for reduction of fees by an individual
      • Item icon Application for review
      • Item icon Certificate of exhibit multiple documents with Index to exhibits
      • Item icon Certificate of exhibit single document
      • Item icon Certificate of explanation of duty of disclosure
      • Item icon Certificate of readiness - District Court
      • Item icon Certificate of solicitor under rule 244
      • Item icon Claim
      • Item icon Conditional notice of intention to defend
      • Item icon Consent adjournment of application
      • Item icon Consent of litigation guardian
      • Item icon Costs assessor's certificate
      • Item icon Costs statement
      • Item icon Default judgment
      • Item icon Defence
      • Item icon Defence and counterclaim
      • Item icon Document plan
      • Item icon Enforcement hearing summons - order
      • Item icon Enforcement hearing warrant
      • Item icon Enforcement warrant - possession of land
      • Item icon Enforcement warrant - redirection of earnings
      • Item icon Enforcement warrant - seizure and sale of property
      • Item icon Judgment
      • Item icon List of documents
      • Item icon List of documents (electronically managed)
      • Item icon Mediator's certificate
      • Item icon Memorandum of agreement to dismissal of appeal
      • Item icon Notice claiming contribution
      • Item icon Notice of acceptance of offer
      • Item icon Notice of address for service
      • Item icon Notice of address for service - District Court
      • Item icon Notice of appeal
      • Item icon Notice of appeal - District Court
      • Item icon Notice of appeal subject to leave - District Court
      • Item icon Notice of appointment of solicitor
      • Item icon Notice of cessation or default
      • Item icon Notice of change of address for service
      • Item icon Notice of change of solicitor
      • Item icon Notice of discontinuance
      • Item icon Notice of intention to defend
      • Item icon Notice of non-party disclosure
      • Item icon Notice of objection
      • Item icon Notice of withdrawal of notice of intention to defend
      • Item icon Notice of withdrawal of solicitors
      • Item icon Notice proposing application without oral hearing
      • Item icon Notice that debtor not employee
      • Item icon Notice that party acting in person
      • Item icon Notice to admit documents
      • Item icon Notice to admit facts
      • Item icon Notice to employer - redirection of earnings
      • Item icon Order
      • Item icon Originating application
      • Item icon Registrars order for costs
      • Item icon Request for consent order of registrar
      • Item icon Request for default judgment
      • Item icon Request for fee refund
      • Item icon Request for subpoena
      • Item icon Request for trial date
      • Item icon Special witness jurat (for UCPR)
      • Item icon Statement of claim
      • Item icon Statement of financial position (company)
      • Item icon Statement of financial position (person)
      • Item icon Statement supporting application for enforcement warrant
      • Item icon Subpoena for production
      • Item icon Subpoena for production and request for subpoena
      • Item icon Subpoena for production and to give evidence and request for subpoena
      • Item icon Subpoena to attend enforcement hearing
      • Item icon Subpoena to give evidence and request for subpoena
      • Item icon Subpoena to produce documents (Commercial Arbitration Act)
      • Item icon Third party notice
      • Item icon Title (long)
      • Item icon Title (short)
      • Item icon Undertaking re letter of request
  • Folder icon F. Finalising the matter
    • Item icon Letter to plaintiff when not proceeding before retainer
    • Item icon Letter to plaintiff when not proceeding after retainer
    • Item icon When the case is over
      After the hearing, the case is not over, and the file is not dead the very second the judge leaves the bench. Do not give in to the temptation to chuck all notes and documents in a box and wave goodbye to the client. The file, which has inevitably been torn apart in court in response to counsel’s ...

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    • Item icon Deductions and preclusions
      Before seeking instructions to settle or to proceed to an assessment of the claim, it is essential to obtain a complete summary of all amounts likely to be deducted from any sum payable to the claimant and to be aware of the extent of any preclusion from benefits otherwise payable to the claimant. ...

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    • Item icon Instructions to settle
    • Item icon Authority and instructions to negotiate party-party costs
    • Item icon Authority to receive - Direction to pay
    • Item icon Authority and instructions for payment of settlement or award
    • Folder icon If required - Medicare and Centrelink
      • Item icon Letter to plaintiff with Medicare authority
      • Item icon Letter to plaintiff to complete Medicare statement
      • Item icon Summary of medical expenses
      • Item icon Medicare compensation recovery - Notice of judgment or settlement
      • Item icon Medicare compensation recovery - Section 23A statement
      • Item icon Medicare compensation recovery - Bank account details collection (no bar code)
    • Item icon Letter to plaintiff finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - QLD
    • Item icon Invoice recital - Injuries, works compensation, victims support
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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A team of legal professionals contribute to By Lawyers' publications, all helping to ensure that content is updated regularly to reflect changes in legislation, practice, and procedure.

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