Personal injuries

This factsheet outlines the general law of personal injury claims set out under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and the Civil Liability Act 2003 (Qld) (CLA).

It does not consider claims for personal injuries which:

• resulted at work and are covered by the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
• occurred as a result of a car accident and are covered by the Motor Accident Insurance Act 1994 (Qld);
• occurred as a result of a crime and are covered by the Criminal Offence Victims Act 1995 (Qld) or the Victims of Crime Assistance Act 2009 (Qld);
• are dust-related conditions; or
• resulted from use or exposure to tobacco products or tobacco smoke.

Time limits

Claims for damages for personal injuries must be commenced within three years of the cause of action arising. In most personal injury cases, this means three years from the date the injuries were sustained. The three year limitation period may be extended in certain specified circumstances.

If you are considering making a personal injuries claim, you should contact a private solicitor who can assist you on a speculative (no win, no fee) basis without delay.

Pre-Court procedures

Before you can start proceedings for a personal injury claim in court, you must comply with the pre-court procedures in PIPA.

Notice of a claim

Firstly, you must notify the person who caused your injury (the ‘respondent’) of your intention to make a claim. Notice is given in two parts, Part 1 and Part 2, on prescribed forms. You can obtain the forms from the Department of Justice website, located here.

The time limit for delivering a Part 1 Notice to a respondent is the earlier of:

• 9 months from the date you sustained the injury, or
• 1 month from the date you first instructed a lawyer (other than a lawyer working at a community legal centre).

A Part 1 Notice requires: a description of the incident which led to your injury, details of any medical treatment received and any relevant pre-existing medical conditions or injuries, and information about the circumstances surrounding the incident and who you say caused the incident. A medical certificate relating to the injuries and, if appropriate, a diagram of the scene of the incident, must be attached to the Part 1 Notice.

Notice of a claim arising out of a “medical incident”

If your claim arises out of a “medical incident”, you must give an initial notice of your claim to the respondent before providing a Part 1 Notice.

There is no prescribed form for the initial notice, however, section 9A(3) of PIPA sets out the information required, including: your details, a description of the medical services which you allege gave rise to your injury and the date and place that the medical services were provided.

The Part 1 Notice must then be provided to the respondent within one year from the date you receive their response to the initial notice. A copy of any advice or warnings provided to you by the health care provider must also be attached to the Part 1 Notice. You must include a written report from a medical specialist, competent to assess the incident alleged to have given rise to your injury.

After the respondent has received your Part 1 Notice

Once you provide a Part 1 Notice to the respondent, the respondent has one month to let you know whether they are the proper respondent and whether they accept your Part 1 Notice as complying with PIPA.

If the respondent disputes that they are a proper respondent to your claim, they must give you information to enable you to identify the appropriate respondent. If the respondent disputes that your Part 1 Notice complies with PIPA, they must give you written notice of the defects, after which, you will have one month to rectify those defects.

If the respondent does not respond to your Part 1 Notice within one month, they are presumed to have accepted the notice.

A Part 2 Notice must then be given to the respondent within two months of the earlier of:

• The date the respondent replies to your Part 1 Notice (whether or not the respondent accepts that they are the proper respondent to your claim);

or

• The date the respondent is presumed to have accepted your Part 1 Notice.

You must include copies of any other documents relevant to your injury, economic loss, medical treatment or rehabilitation that is in your possession with the Part 2 Notice.

Failure to comply with the pre-court procedures within time

If you fail to provide your Part 1 and/or Part 2 Notice within the prescribed time limit, you must provide a reasonable excuse for your delay. In considering whether an excuse is reasonable, the court will consider, among other things, the extent and nature of your injuries, whether you have a reasonably sustainable cause of action, the length of, and reasons for, the delay.

If you are unable to provide a reasonable excuse for your delay, you may be prevented from proceeding further with your claim. However, if you are within the three year limitation period, you may still be able to pursue your claim by applying to the court for leave to commence proceedings even though you haven’t complied with pre-court procedures or by seeking the agreement of the other side to allow you an extension of time to comply with the pre-court procedures.

Compulsory conference

Before you can start court proceedings in relation to your injury, you must have a conference with the respondent or get the respondent’s agreement that a conference is not appropriate. The purpose of the conference is to try to resolve your claim with the respondent without the need to go to court. Either party can request that a conference take place any time after 6 months from the date you gave the respondent a compliant Part 1 Notice.

Before a compulsory conference can be held you and the respondent must have disclosed (given to the other party) any documents relevant to your claim and have signed a certificate of readiness. Each party must have completed their preparation work, and have all of their evidence, together with the appropriate notices to the Health Insurance Commission and Centrelink in place, in order to participate in a conference.

If the matter is still not settled after the compulsory conference, mandatory final offers can be sought.

Mandatory final offers

Mandatory final offers must be exchanged if you do not reach an agreement with the respondent at the compulsory conference. These are the final offers you and the respondent will make in an attempt to settle the matter out of court. The court must, if relevant, have regard to the mandatory final offers in making a decision about costs (see LawRight factsheet ‘Costs Orders‘ ). If a mandatory final offer is not accepted, then the PIPA requirements are complete and a party is free to commence legal action in the courts.

Court proceedings

Court proceedings are to be commenced within 60 days of a compulsory conference. Once court proceedings have been commenced, a different set of deadlines apply, as governed by the Uniform Civil Procedure Rules 1999 (Qld).

Establishing liability

In order to succeed in a negligence action, the following must be shown:

1. The defendant owed the plaintiff a duty of care:
   A defendant has a duty of care when there is an obligation on them to care for the plaintiff in circumstances where they can foresee injury or damage could result from their conduct.
2. The defendant breached their duty of care:
   A breach of duty occurs when the defendant fails to do what a reasonable person would have done in the same circumstances.
3. The injury was suffered as a result of the breach of duty:
   The injury or loss must be a direct result of the defendant’s failure to fulfill their responsibility and the injury must not be too remote.

Calculation of damages

General damages

‘Damages’ refers to the amount of money you ask for to compensate you for your injuries. Below is some information specifically related to personal injury proceedings. For more general information about damages see the LawRight factsheet ‘Damages and Loss‘ .

General damages refers to:

• pain and suffering
• loss of amenities of life
• loss of expectation of life
• disfigurement

The amount in general damages awarded depends upon the seriousness of the injury and is capped by law at $250,000.

In calculating general damages, the court will assign an injury value from 0 (negligible injury) to 100 (the most serious injury). In order to assess the injury, the court is guided by rules prescribed under the Civil Liability Regulation 2014 (Qld) and injury values attributed to similar injuries in prior proceedings.

Other types of damages

• Damages for loss of earnings or earning capacity:
  The maximum amount of money available for loss of earnings is approximately three times the average weekly earnings.
• Damages for gratuitous services:
  Damages for gratuitous services required by the injured party are available if the services are necessary, the need for the services arises solely out of the injury, the services are provided at least 6 hours per week and the services are required for at least 6 months.
• Exemplary, punitive or aggravated damages:
  Exemplary, punitive or aggravated damages may be awarded in limited cases in which the act that caused the injury was an unlawful act done with intent to cause personal injury, or an unlawful sexual assault or other unlawful sexual misconduct.

If you are awarded damages you may enter a structured settlement. This is an agreement for the payment of damages in periodic payments rather than a lump sum.

Notice to minimise damages

An injured person has a duty to minimise their loss and damage by taking reasonable steps to mitigate damage. They may be served a notice suggesting certain steps that should be taken to minimise loss such as for the injured person to undergo specific rehabilitation or medical treatment. Failure to follow the suggestions may result in damages being reduced.

Getting legal help

Before deciding to engage a solicitor for a personal injury action, you should be clear about some basic information. Please refer to Legal Aid Queensland’s website, Personal Injury. This site outlines how you can find a lawyer to assist you and some important questions you should ask your lawyer before commencing proceedings.

In small claims of <$50,000, it can be difficult to find a solicitor who will act on a ‘no win, no fee’ basis. In such a case, you may be able to make a claim yourself. The Suncoast Community Legal Service has created a useful self-help guide which can be completed online or downloaded.