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New personal injury guide – NSW

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By Lawyers are pleased to announce the publication of a new personal injury guide: Personal injury – Acting for the defendant.

With a separate matter plan, commentary and precedents, the new guide is now available along with Personal injury – Acting for the plaintiff.

The new Personal injury – Acting for the defendant guide concentrates on the defence of negligence claims to which the provisions of the Civil Liability Act 2002 apply, while also covering the common law to some extent, with regard to intentional torts. It assists practitioners acting for defendants and insurers, in both un-litigated and litigated personal injury claims.

The commentary discusses all the relevant considerations and necessary steps to investigate and progress claims to resolution. Commentary sections include:

  • Duty of care, including general principles of liability, specific legislative provisions, obvious and inherent risks, mental harm, causation and contributory negligence.
  • Damages, with coverage of economic and non-economic loss, attendant care services and also exemplary, punitive and aggravated damages.
  • Responding to the claim, with guidance and practical tips for dealing with un-litigated claims, gathering factual evidence and obtaining expert opinion.
  • Settling it early, with helpful commentary on preparing for and attending mediations.
  • Going to court, including the procedure for responding to claims in either the District Court or the Supreme Court.

The guide also contains many helpful precedents, including:

  • Letters to various sources gathering information
  • Medical authorities
  • Example content for a mediation position paper for the defendant
  • Offers of compromise
  • Example content for pleadings and other documents
  • Letters to clients finalising the matter after settlement or hearing.

Practitioners using the By Lawyers personal injury publications will also benefit from the By Lawyers litigation publications: District Court – Civil and Supreme Court – Civil – Common Law Division.

Personal Injury Commission – NSW

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Overview

From 1 March 2021 the Personal Injury Commission (PIC) became the ‘one-stop shop’ for dispute resolution for workers compensation and motor accident claims in NSW.

The PIC has two divisions with a single point of entry via an online portal. The PIC takes over from the Workers Compensation Commission, which has been abolished. The PIC also takes over most of the dispute resolution functions from the State Insurance Regulatory Authority (SIRA) regarding motor accident claims.

The idea of the consolidation is to gain efficiencies via a single entity, especially with medical assessments and medical dispute determination. Medical assessors for both workers compensation and motor accidents claims, along with merit reviewers for motor accident matters and mediators for workers compensation matters, are appointed by the President of the PIC and operate under the PIC legislation.

The substantive law does not change.

The By Lawyers Workers Compensation and Motor Accidents publications – both Prior to 1 December 2017 and From 1 December 2017 – have all been be amended.

Legislation

Personal Injury Commission Act 2020;

Personal Injury Commission Regulation 2020; and

Personal Injury Commission Rules 2021.

What the PIC does

The PIC is not a court but is headed by a President, who is a judge of a court of record. The PIC will publish its decisions.

The two divisions, Motor Accidents and Workers Compensation, have a common registry, and common practice and procedure wherever possible.

The PIC replaces the Workers Compensation Commission and determines all disputes under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987.

Disputes in relation to claims under the Motor Accidents Injuries Act 2017 (MAIA) and the Motor Accidents Compensation Act 1999 (MACA) previously managed and resolved by SIRA are now dealt with by the Personal Injury Commission. The PIC also takes over from the Motor Accidents Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS).

The Act requires the PIC to deal with proceedings justly, quickly, cost-effectively and with as little formality as possible.

The rules of evidence do not apply and proceedings must be as informal as possible, including telephone conferences instead of formal hearings.

What the PIC does not do

Disputed common law damages claims still go to the District or Supreme Court. However, the PIC must mediate the dispute first and/or provide a certificate before proceedings can be commenced.

As it is not a court, the PIC cannot determine matters that involve federal jurisdiction. The PIC Act provides a mechanism to send proceedings that involve federal jurisdiction to the District Court.

The Workers Compensation Independent Review Office (WIRO) is now known as the Independent Review Office (IRO). It continues to manage disputes regarding insurers previously managed by WIRO, with the addition of CTP insurers for motor accident claims. IRO also continues WIRO’s previous responsibility for the funding of workers compensation claims via the existing ILARS grants.

No change to the substantive law

The establishment of the PIC and the transfer to it of dispute resolution functions does not affect the underlying substantive law.

There is no change to the entitlements of injured persons to damages, benefits and entitlements under either workers compensation or motor accidents legislation.

Transitional provisions

Transitional provisions are set out in the Personal Injury Commission Regulation 2020.

For existing matters – that is, claims lodged before the commencement of the PIC on 1 March 2021 – the PIC deals with disputes and medical assessments. However it does so under the previous legislative framework – so the Workers Compensation Commission Rules 2011 and the existing provisions of the motor accidents legislation. That includes appeals, so for any arbitrated decision that was heard before 1 March 2021, but which is appealed after 1 March 2021, the appeal proceeds on the basis of the pre-existing legislation.

By Lawyers keeps you up to date!

All relevant By Lawyers publications have been updated in line with the commencement of the Personal Injury Commission. Commentary and precedents have been amended, replaced or added wherever required in our Workers Compensation, Motor Accidents and District Court publications.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Personal Injury QLD

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The By Lawyers Personal Injury QLD publication has been reviewed, including the addition of a recent Supreme Court case relating to the extension of limitation periods.

Limitation periods are a critical consideration for practitioners advising and representing clients in personal injury claims. Strict limitation and notice periods apply. Extensions are possible under s 59 Personal Injuries Proceedings Act 2002, but good reasons for delay must be shown and the Court does not exercise its discretion to extend limitation periods lightly. Section 59 also applies to any extension of the limitation period that is granted under the Limitation of Actions Act 1974.

The issues relating to such an application were examined recently in Faram v Hensec Pty Limited [2020] QSC 327. The application to extend the limitation period in that case was refused where the applicant had failed to comply with the necessary pre-action procedures.

The By Lawyers Personal Injury QLD commentary deals in detail with limitation periods and pre-action procedures.

This review has also seen the commentary updated and revised for enhanced searchability.

Related By Lawyers guides for Queensland litigation include Motor Vehicle Accidents, Workers Compensation, District Court, Supreme Court and 101 Subpoena Answers.

Workers’ compensation – QLD

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Recent amendments to workers’ compensation legislation have commenced in Queensland.

All workers’ compensation provisions of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 have commenced as of 1 July 2020. They mostly apply only in relation to new claims.

The amendments include:

  • extending workers’ compensation coverage to unpaid interns;
  • requiring employers and insurers to provide ongoing rehabilitation and return to work services if the injured worker has been unable to return to work after their entitlement to weekly benefits and medical expenses ceases;
  • requiring employers and insurers to take reasonable steps to provide support services for workers with psychiatric and psychological injuries on a without prejudice basis while their claims are being assessed;
  • removing the requirement for the worker’s employment to have been the major significant contributor to a worker’s psychiatric or psychological injury;
  • making the decision of an insurer not to provide support services to workers with psychiatric and psychological injuries reviewable;
  • extending circumstances in which insurers have discretion to waive time requirements for lodging an application;
  • replacement of dollar amounts of compensation with reference to QOTE, being the seasonally adjusted amount of Queensland full-time adult ordinary time earnings, as declared by the Australian Statistician;
  • requiring self-insured employers to report injuries and payments to WorkCover;
  • making provision for qualification, via accredited training, of the rehabilitation and return to work coordinators that employers must appoint under the Act;
  • providing that apologies or expressions of regret by employers regarding workplace injuries are not admissible or able to be considered on the question of liability in an action for common law damages – this applies retrospectively to apologies or expressions of regret made before the commencement of these amendments.

The By Lawyers Queensland Workers’ Compensation publication has been updated accordingly.

Personal injury – QLD

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A useful recent case has been added to the commentary in the By Lawyers Personal injury – QLD publication.

In Folwell v Mayer [2020] QSC 162 the court allowed the applicant an extension of time. The circumstances were that the applicant had issued a complying notice of claim under Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) within the limitation period, but had not otherwise completed the pre-litigation procedures required under the Act and was out of time to commence proceedings.

The applicant applied under s 59 of the Act for leave to commence proceedings even though the limitation period had expired.

The court reviewed the legislation and the cases on such applications, in some detail.

The factual circumstances were also examined closely, especially the chronology of the steps taken in relation to the matter by the applicant and her solicitors. These factual details proved to be determinative, as is usually the case in such applications.

The court found that the applicant herself had been less than pro-active in pursuing her claim, but further found that ‘… on the material before the court, the failure to conscientiously comply with the legislative requirements… rests predominantly with the applicant’s solicitor, rather than the applicant herself.’

The court also noted that ‘…the respondent does not identify any specific prejudice it will suffer if the application is granted.’

In the circumstances, notwithstanding the delay, the court determined that the applicant had an arguable claim and there could still be a fair trial. Accordingly the court ruled that ‘…the interests of justice favour exercising the discretion to grant the application to alter the limitation period under s 59’.

The case has been added to the commentary in Personal injury – QLD under Limitation periods.

Motor Accident claims disputes – NSW

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The NSW State Insurance Regulatory Authority (SIRA) has launched its new digital portal for motor accident claims disputes. The new platform allows online lodgement, gives all parties to a dispute access to real-time status updates, and is designed to enhance communication and efficiency.

Motor accidents in NSW which occurred after 1 December 2017 are covered by the Motor Accidents Injuries Act 2017 (MAIA). Under the MAIA disputes scheme there is a SIRA Dispute Resolution Service (DRS) established by sections 7.2 and 7.3 to consider and determine a wide range of disputes as set out in Schedule 2 of the MAIA.

The types of disputes fall into three broad categories:

  • Merit Review;
  • Medical Assessment issues;
  • Claims Assessment matters;
  • Miscellaneous disputes.

Essentially, the DRS is the ‘one-stop shop’ for disputes under the scheme.

Application for resolution of motor accident claims disputes can now be lodged online via the SIRA DRS portal.

The portal can also be used to check the progress of applications, receive notification of the outcome of the dispute and to lodge any review if required.

To use the portal practitioners need to register an account with Service NSW and link the account with SIRA.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Out of time claims – Workers Comp – NSW

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Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

Personal Injury – New list – VIC

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Personal injury lawyers should be aware that the Supreme Court of Victoria has a new case management list. The Institutional Liability List in the Common Law division manages institutional child abuse matters.

Proceedings suitable for inclusion in the list are those involving:

  • Claims against an organisation founded on the death or personal injury of a person as a result of alleged physical or sexual abuse of a minor.
  • Claims for breach of the duty of care imposed by s 91 of the Wrongs Act 1958 (Vic).
  • Applications to set aside a previous judgment or settlement agreement pursuant to sections 27QB or 27QD of the Limitation of Actions Act 1958 prior to the commencement of a proceeding on an action referred to in s 27QA of that Act.
  • Claims against an educational organisation arising out of the death or personal injury of a student of that organisation as a result of physical, sexual or psychological abuse by a fellow student or individual employed or associated with that organisation.

The management of proceedings in the Institutional Liability List is in accordance with Practice Note SC CL3 – Personal Injuries List.

The By Lawyers Personal Injury (VIC) Publication and the Supreme Court Civil (VIC) Publication have been updated accordingly.

Workers Compensation – NSW

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The By Lawyers Workers Compensation – NSW publication has been updated.

The final provisions of the Workers Compensation Legislation Amendment Act 2018 commenced on 21 October 2019.

The amendments include the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings.

The new Schedule 3 to the Workers Compensation Act 1987 provides the method for determining pre-injury average weekly earnings. Insurers and workers may now agree on a figure.

The relevant section of the By Lawyers Workers Compensation – NSW commentary has been updated accordingly.

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