Personal Injury, MVA & Workers Compensation

“ An angiogram is an X-ray test that uses a special dye and camera, fluoroscopy, to take pictures of the blood flow in an artery, such as the aorta, and can be used to look at the arteries or veins in the head, arms, legs, chest, back, or belly. Abduction ”

“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”

“ District Court of NSW Personal Injuries legal framework – Judicial Commission of New South Wales Civil Trials bench book ”

“ NSW District Court Litigation NSW Supreme Court Litigation ”

“ A client will either come in to see you specifically because they want to receive advice about an injury that they or a family member have suffered in an accident, or they will be consulting you about an entirely different matter and happen to mention difficulties that they are having due to an ... ”

“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”

“ A client will present either specifically because they want to receive advice about an injury that they or a family member have suffered in an accident, or they will be seeking advice about an entirely different matter and happen to mention difficulties that they are having due to an injury that ... ”

“ Persons under legal incapacity require a tutor In personal injury cases it is not uncommon for the client to be a person under legal incapacity as defined in s 3 of the Civil Procedure Act 2005 and r 7.13 of the Uniform Civil Procedure Rules 2005 (UCPR). This may be either because they are under ... ”

“ Basically, a claimant must demonstrate harm that has been caused by another party’s breach of a duty of care or breach of a statutory duty owed to the claimant. This means that the important threshold questions must be satisfactorily addressed: ”

“ Section 5B of the Act provides that a person is not negligent, and therefore not liable to another person, unless the risk of harm being suffered by that other person was: reasonably foreseeable, and ”

“ Under s 49(1): there is no duty of care owed to a person merely because that person is intoxicated; and ”

“ Under s 54(1): damages cannot be awarded for harm caused to a person by their engagement in conduct which probably constitutes a serious offence. ”

“ Under s 52(1) a person is not liable for damages for reasonable conduct which they believe necessary to: respond to a perceived threat to their own personal safety; ”

“ Under ss 56, 57 and 58 a person who acts in good faith and without expectation of reward in an emergency, in coming to the assistance of someone who is apparently injured or at risk of injury (a ‘good samaritan’), is not liable for any harm caused by their acts. This protection does not apply if: ”

“ Under ss 60–66 volunteer is not liable for the consequences of any community work undertaken, except for: defamation; ”

“ Under ss 5L and 5M the Act, a ‘dangerous recreational activity’ is one that involves a significant risk of physical harm. A recreational activity includes: ”

“ Part 1B of the Act creates a duty on organisations to prevent child abuse and creates a presumption that an organisation has breached that duty if a child for who it is responsible suffers abuse by an individual associated with the organisation. The Act also makes organisations vicariously liable ... ”

“ An obvious risk is one that would be obvious to a reasonable person even if it has a low probability of occurring or is otherwise inconspicuous: s 5F. A person is presumed to be aware of an obvious risk unless proven otherwise on the balance of probabilities: s 5G. ”

“ A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk: see s 5I of the Act. An ‘inherent risk’ is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. ”

“ There is no duty of care owed by a defendant to take steps to prevent mental harm to another person unless it is shown that the defendant should have known that a normal person might suffer psychological injury if reasonable care was not taken: s 32. ”

“ Section 41 of the Act defines the public and other authorities that benefit from the protections given by ss 42 to 46: Consideration of the duty of care owed by a public authority must take into account its overall functions and duties, financial resources and its compliance with general standards ... ”

“ The Civil Liability Act establishes the importance of commonly held standards accepted within various professions in determining the nature and extent of the relevant due standard of care owed to a person to whom professional services are provided. Section 5O provides that: ”

“ An apology is defined by the Act as an ‘an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter’: s 68. An apology made in connection with ... ”

“ The Act consolidated the principles of causation applying to negligence claims previously set within the common law, with a renewed emphasis on the ‘but for’ test. Section 5D(1) requires two essential elements to be established in order to establish causation of harm: ”

“ The common law relating to contributory negligence is largely unaffected by the Act: 5R Standard of contributory negligence ”

“ The Act sets out certain thresholds and limits that apply to damages payable for harm suffered by a claimant. In the vast majority of personal injury claims, damages will be assessed under Part 2 of the Act. However, there are personal injury claims which do not fall under Part 2. This arises in ... ”

“ This section applies to an award of damages: (a)for past economic loss; or ”

“ In determining an award of damages for future economic loss, the court must first be sure that the assumption about future earning capacity agrees with the claimant’s most likely future circumstances but for the injury. This amount is then adjusted by reference to the percentage possibility that ... ”

“ Damages for attendant care services are for services of a domestic nature, services relating to nursing, and services that aim to alleviate the consequences of an injury. These services are provided by another person to the claimant, for which the claimant is not liable to pay. Prior to the ... ”

“ Damages may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: The claimant provided the services to those dependants before the time that the liability in respect of which the claim is ... ”

“ The maximum amount of damages payable for loss of superannuation entitlements is the ‘relevant percentage’ payable in respect of the gross amount of lost earnings or loss of earning capacity upon which the claimant??s economic loss has been assessed. The ‘relevant percentage’ is the percentage ... ”

“ No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s 16(1). The maximum amount of damages that may be awarded for non-economic loss is indexed each year on 1 October in accordance with s 17. The indexed yearly amounts ... ”

“ In claims to which the Act applies, a court cannot award exemplary, aggravated or punitive damages: s 21. However, as discussed above, there are personal injury claims to which the Act does not apply: s 3B. For these claims, damages are assessed under common law principles. Exemplary, punitive and ... ”

“ Interest may be ordered as payable at the prescribed rate upon past damages other than damages for non-economic loss, gratuitous services, or inability to provide gratuitous domestic services. ”

“ The Act does not specifically refer to other heads of damage to which a successful claimant is entitled under the common law. These include: Past and future amounts reasonably paid or likely to be payable for products and services which include, but are not limited to, medical treatment, ... ”

“ Soft tissue Repetitive strain injury ”

“ It is important to gain a firm understanding of what the factual evidence relevant to liability and consequent loss is likely to be before: providing initial advice to a client about the likely success of any claim; or ”

“ It will be necessary to obtain reports from medical practitioners and possibly reports from other independent experts. Ensure all experts are provided with a copy of the Expert Witness Code of Conduct. Various precedent letters for instructing expert witnesses are available on the matter plan. Many ... ”

“ 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 properly pleaded, prepared and presented, as counsel will identify any difficulties in the claim, or evidentiary deficiencies, that ... ”

“ Most claims will be the subject of informal settlement discussions and will also be required to be the subject of mediation before being allocated a hearing date. It is imperative that instructions are obtained from the client about resolution of the claim that are validly based and informed; to ... ”

“ A structured settlement is an agreement that provides for the payment of an award of damages in the form of periodic payments funded by an annuity or other agreed means: s 22 Civil Liability Act. The Act states that, contrary to what appears to be current common practice, plaintiffs negotiating the ... ”

“ Legislation relevant to social security entitlements and lump sum compensation and damages provides that, if a person has been compensated for loss of income, they should use that money to live off rather than receive a taxpayer-funded payment. Lump sum compensation payments are treated on the ... ”

“ Before seeking instructions to settle or to proceed to an assessment of the claim, it is very important to obtain a full and detailed summary of all amounts which are likely to be deducted from any sum payable to the claimant. This may include: payments for treatment made by Medicare; ”

“ The District Court has a jurisdictional limit up to $750,000 for personal injury claims other than for motor accident injury claims; claims that are likely to exceed this limit should be brought in the Supreme Court. If a claim is remitted from the Supreme Court back to the District Court, the ... ”

“ A solicitor must have reasonable grounds to believe that a claim has reasonable prospects of success before commencing court proceedings on a client’s behalf. Specifically, clause 4(2), Schedule 2 Legal Profession Uniform Law Application Act 2014 provides: ”

“ Practice Note DC (Civil) No. 1 - Case Management in the General List is a practice note issued to 'facilitate the just, quick and cheap resolution of the real issues in all proceedings before the Court'.  The following is a brief summary of this practice note and the issues it covers. Practitioners ... ”

“ Proceedings should only be commenced when they are fully ready to proceed. Be sure the relevant impairment threshold for damages for non-economic loss has been reached. ”

“ The plaintiff must serve proposed consent orders for the preparation of the case on the defendant with the Statement of Claim. If the defendant doesn't agree with the proposed orders or wants to add additional steps, then they must serve amended consent orders on the plaintiff’s solicitor at least ... ”

“ If a party is legally represented, a legal practitioner with adequate knowledge of the case must represent that party whenever the case is listed before the court. ”

“ The court will allocate a pre-trial conference date when the Statement of Claim is filed. The plaintiff must notify the defendant of the date and time when the Statement of Claim is served. The pre-trial conference is held two months after commencement of proceedings. ”

“ Subpoenas Parties must issue subpoenas as early as possible so that documents can be produced and inspected and are available for the proper preparation of the case, including submission to experts. For more information about subpoenas please see our 101 Subpoenas Answers guide. ”

“ Within its standard practice note, it is stated that the District Court aims to have all cases completed within 12 months of commencement. Most cases will therefore be required to take a hearing date within a period between 8 and 11 months from commencement.   Matters allocated a hearing date will ... ”

“ The court will refer all appropriate cases for alternative dispute resolution under part 4 of the Civil Procedure Act. The parties must have instructions about suitability for mediation, arbitration or other alternative dispute resolution when they ask for a hearing date. ”

“ At any stage, the court may refer a case to a directions hearing before the civil list judge or the judicial registrar. If a case is not ready for hearing at the status conference it will be referred for directions. Any order to provide statements or file affidavits must be strictly complied with. ... ”

“ The court will only grant adjournment applications where there are very good reasons. The failure to comply with orders will normally not be a reason for adjournment. Parties who breach orders may be restricted in the evidence that they can rely on at the hearing. An application for adjournment of ... ”

“ Until terms of settlement, consent orders or a notice of discontinuance are filed, the parties must attend when the case is listed before the court. ”

“ For cases of professional or medical negligence, refer to Practice Note No. SC CL 7 - Supreme Court Common Law Division - Professional Negligence List. For other claims refer to Practice Note No. SC CL 5 - Supreme Court Common Law Division - General Case Management List. ”

“ Plaintiff A plaintiff must file an originating process as well as a General Case Management (GCM) document. The GCM sets out a statement justifying the commencement of the proceedings in the Supreme Court and why the claim is for that amount. ”

“ Proceedings in the list will generally be managed by way of Directions Hearings. The first Directions Hearing will be appointed for approximately three months after proceedings are entered in the list. The date of the first Directions Hearing will be given by the registry in a notice issued at the ... ”

“ The court is concerned about the number of experts often expected to give evidence in personal injury cases. The practice of having a large number of experts, medical and otherwise, whose opinions may be overlapping and whose reports either are not used or are of little assistance to the court when ... ”

“ If the matter appears to the court to be appropriate for resolution by mediation or arbitration, the court will refer the proceedings for mediation or arbitration. ”

“ Case management directions given at a directions hearing and times set for compliance with any direction may be varied: by consent of all parties, so long as such variation does not extend the time for compliance with any direction beyond the date specified by the court for compliance with the last ... ”

“ When ready for trial, for proceedings in which a claim is made for damages for personal injury or disability, standard directions are deemed to have been made, unless the court otherwise orders. For further information about conducting a matter in either the District Court or Supreme Court, please ... ”

“ The case is not over and the file is not dead the very second that the judge leaves the bench after each side has made submissions! Do not give in to the temptation to chuck all your notes and documents in a box and wave goodbye to the client as if you will never have to see them again. The file, ... ”