Personal Injury, MVA & Workers Compensation
This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!
Recent updates can be viewed on Obiter - our blog.
A comprehensive guide to advising and representing clients with common law personal injury claims under the Civil Liability Act, with all commonly required forms and precedents.
This valuable publication is a companion to the District and Supreme Court guides and allows practitioners to confidently assist injured clients to assert their rights.
Separate guides to Workers Compensation and Motor Vehicle Accident are also available.
The easy to follow commentary covers all aspects of claims, including:
- The principles of liability
- Preparing and commencing claims
- Guidance on lay and expert evidence
- Examples of future complications for various injuries
- Documenting settlements
The publication includes all commonly required precedents, including:
- Correspondence, including initial letter to defendant seeking information
- Gathering information letters to client/insurer/relevant authorities et cetera
- Medical authorities
- Instructions to settle
- Library of example pleadings
- Example content for schedule of damages and issues
This comprehensive and easy to follow publication helps practitioners to navigate the convoluted and restrictive legislation which applies to motor accident claims in NSW. There are two separate guides - one for pre-December 2017 accidents and another for post-December 2017 accidents, to which different legislative schemes apply. Links to the necessary forms and precedents are supplied.
This valuable publication will allow a practitioner to advise with confidence on the critical time limits and dispute resolution processes for each step of a claim, understand the highly restricted nature of the benefits available and costs recoverable for claimants and address the supporting material required to obtain the best result for the claimant.
Popular precedents provided with both guides include:
- Gathering information letters to client/insurer/relevant authorities et cetera
- Medical authorities
- Various letters to client explaining the process at each stage
- Letters to doctors
- Applications for statutory benefits
- Example pleadings and particulars for common law damages
This comprehensive and easy to follow publication assists practitioners to advise and represent clients in the highly regulated area of workers compensation.
The guide clearly explains how to obtain initial WIRO approval and funding to act for injured workers under the ILARS scheme, how to make and support an application and how to conduct matters in the Workers Compensation Commission.
Precedents provided with this publication include:
- Various letters to client explaining the process at each stage
- Gathering information letters to client/employer/insurer/relevant authorities et cetera
- Letters to doctors
- Example statement of client
- Claim forms including for permanent impairment and weekly payments
- Commutation agreements
- Example pleadings and particulars for common law damages
Guides in this publication
MATTER PLAN
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“ Commentaries ”
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“ Overview This Personal Injury guide concentrates upon injury claims caused by negligence, the questions and considerations that should be taken into account and the steps necessary to get the claim underway. ”
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“ 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 ”
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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, is ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading NSW civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public officers. ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor 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 regulated ... ”
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“ Disclosure requirements vary between the states and territories and are embodied in each costs agreement. Law practices are required to make written disclosure of a wide range of matters relating to the costs of legal services before or as soon as practicable after the law practice is retained. ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ Termination When a retainer is terminated before completion a lawyer may claim costs for the work done to the date of termination on a quantum meruit basis if: ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the cost assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ Other states For more information on similar procedures that exist in some other states, see: ”
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“ District Courts of NSW Personal Injuries legal framework – Judicial Commission of New South Wales Civil Trials bench book ”
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“ Papers, articles and case law District Court Litigation guide ”
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“ 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 ... ”
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“ 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. ”
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“ Basically, a claimant must demonstrate harm that has been caused by another party’s negligent 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: ”
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“ General principles 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: ”
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“ Intoxication: s 49(1) There is no duty of care owed to a person merely because that person is intoxicated; and ”
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“ 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. ”
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“ A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. An ‘inherent risk’ is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. ”
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“ 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. ”
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“ 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 ... ”
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“ 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: ”
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“ Duty of care Part 1B of the Civil Liability Act 2002 (NSW) creates a duty on organisations to prevent child abuse and creates a presumption that an organisation has breached that duty if a child for which it is responsible suffers abuse by an individual associated with the organisation. ”
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“ 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 ... ”
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“ The Act changes the principles of causation applying to negligence claims previously set within the common law. Section 5D(1) requires two essential elements to be established in order to establish causation of harm: ”
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“ The common law relating to contributory negligence is largely unaffected by the Act: 5R Standard of contributory negligence ”
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“ This section applies to an award of damages: (a)for past economic loss; or ”
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“ 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 ... ”
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“ Damages for gratuitous 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. Such ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ In claims to which the Civil Liability Act applies, a court cannot award exemplary, aggravated or punitive damages: s 21. ”
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“ 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. ”
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“ 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, ... ”
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“ Soft tissue Repetitive strain injury ”
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“ The Civil Liability Act applies to civil liability whether arising in tort, contract, or under statute: see ss 5A(1), 28 and 40. The types of claims that are specifically excluded by s 3B from operation of the provisions of the Act are: ”
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“ 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 ... ”
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“ A solicitor must have reasonable grounds to believe that a claim has reasonable prospects of success before commencing court proceedings. Specifically, clause 4(2), Schedule 2 Legal Profession Uniform Law Application Act 2014 provides: ”
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“ 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 ”
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“ It will be necessary to obtain reports from medical practitioners as well as reports from other independent experts. Ensure all experts are provided with a copy of the Expert Witness Code of Conduct. You will find a precedent letter instructing expert witness for this on the matter plan. Many ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ 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 ... ”
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“ 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; ”
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“ Uniform Civil Procedure Rules – Pt 4, Pt 14, Pt 15 File the Statement of Claim, and the number of copies necessary to serve each defendant plus one copy to be retained on your file, in the registry of the court with the correct filing fee. ”
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“ A claim for interest is not available, and should not be claimed, within the Statement of Claim. Interest however may be paid as a penalty on the defendant if they failed to make a reasonable offer of settlement. This is claimed at the trial after the verdict. ”
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