ByLawyers News and Updates

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.

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.

Motor vehicle accidents – NSW

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The By Lawyers NSW Motor vehicle accidents publication has been reviewed by our author, experienced solicitor Kim Rickards, an accredited specialist in personal injury law.

This publication contains two separate guides, covering the two different statutory schemes for motor vehicle accidents which occurred before, or on and after, 1 December 2017.

Accidents prior to 1 December 2017

Claims arising from motor vehicle accidents which occurred prior to 1 December 2017 are governed by and made under the Motor Accidents Compensation Act 1999 (MACA).

Recent decisions which have considered MACA and the operation of the scheme have been added to this commentary. These include IAG Limited T/as NRMA Insurance v Khaled [2019] NSWSC 320  and IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382.

The main issue in these cases was whether an assessor had properly considered, under the SIRA guidelines, whether to issue a certificate under s 92(1)(b) of MACA that the matter was not suitable for assessment by the Claims Assessment and Resolution Service (CARS). The issue of such a certificate is required before the applicant can commence court proceedings for a claim.

Accidents on or after 1 December 2017

Claims arising from motor vehicle accidents which occurred on or after 1 December 2017 are governed by and made under the Motor Accident Injuries Act 2017.

Enhancements to this commentary have been made in a number of areas including Costs and Common law claims, including the very practical suggestion that the insurer be requested to concede that the threshold of 10% whole person impairment is overcome, so as to permit prompt commencement of a common law claim where fault exists on the part of another driver.

 

Workers Compensation guide – NSW

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The By Lawyers Workers Compensation guide has received an extensive author review. The matter plan has been amended in accordance with the commentary updates. This reflects recent amendments to the Workers Compensation Act 1987. New precedents have also been added.

The following are excerpts from the updated commentary in our NSW Workers Compensation guide:

Interaction with the Motor Accident Injuries Act 2017

For clients who have suffered injuries which require significant ongoing treatment into the future, or who have an established entitlement to payment of ongoing weekly income benefits, the value of ongoing and future benefits must be considered and explained to the client so that instructions to finalise the MAIA claim and therefore finalise all future workers compensation benefits are given on a fully informed basis. The advice given and the instructions received must be fully recorded in a file note and the client required to sign a written authority to settle on that basis.

There is a precedent Authority to settle available on the matter plan.

Entitlement to weekly benefits

The extent of any entitlement to weekly benefits is assessed with regard to the capacity of the injured worker to undertake some form of employment and is reviewed by a twenty-eight-day cycle. This entitlement to weekly benefits cannot be regarded as fixed and final until retirement age even where the worker has suffered a serious injury.

An injured worker is required to provide to the insurer a Certificate of Capacity from the treating doctor. This certificate is required to contain the opinion of the doctor about work capacity even where work which is stated to be within the capacity of the injured worker is not available.

The insurer is not required to accept the treating doctor’s opinion and may adopt the opinion of its own doctor.

The insurer is required to make a Work Capacity Decision based upon available, proper information.

Precedent letters to the client’s treating and specialist doctors, requesting the doctor’s opinion about work capacity, are available on the matter plan.

Personal Injury Victoria – Commentary update

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Commentary update for new Practice Note PNCLD 2-2018

There has been a commentary update to the By Lawyers Personal Injury Guide for Victoria by our author, barrister Nawaar Hassan, to reflect the changes in practice and procedure in the Common Law Division, with the introduction of the new Practice Note PNCLD 2-2018 which commenced on 1 August 2018.

Key points of the update

The new practice note:

  • Disbands the Civil Directions Group, with directions and orders now being managed by the Commercial and Common Law Registries;
  • Introduces an obligation on the plaintiff to file a ‘Mediation Results Order’ where proceedings are settled at or after mediation; and
  • Covers the practice and procedure in relation to eCourtbooks, which must be provided in addition to a hard copy Court Book from 1 August 2018.

Relax!

By Lawyers always keep you up to date with developments in practice and procedure in the courts covered by our Guides.

Podcast – Personal Injury Guide – Victoria

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If you are wondering what all the fuss is about with By Lawyers new Personal Injury Guide for Victoria, listen to this podcast from our Senior Consultant and Editor Brad Watts explaining the content and advantages of this newest addition to the By Lawyers litigation guides.

Brad takes you through the new guide from start to finish and discusses key pieces of commentary and the helpful precedents that make it easy to represent a client with a personal injury claim. The content discussed includes:

  • Limitation periods and taking proper instructions
  • Costs agreements
  • Assessing the viability of a personal injury case – elements of negligence under the Wrongs Act
  • Supporting and preparing the claim – gathering evidence from the client and witnesses
  • Settling the claim early through mediation and offers of compromise
  • Managing the case in court

You can access this episode on Soundcloud – or click below to listen!

New Guide – Personal Injury – Victoria

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We are delighted to announce the launch of the latest addition to By Lawyers’ Injuries publications, being a Personal Injuries Guide for Victoria.

This publication covers all aspects of advising and representing clients with personal injury claims under the Wrongs Act 1958.

The publication contains helpful commentary and precedents for conducting a claim from start to finish.

Commentary

The detailed and practical commentary discusses all aspects of personal injury claims, including:

  • Limitation periods
  • Taking comprehensive instructions
  • Establishing a duty of care
  • Establishing a breach of duty
  • Factual causation and scope of liability
  • Particular negligence situations such as occupiers’ liability
  • Defences, including obvious and inherent risks
  • Damages
  • Supporting and preparing a claim
  • Mediation
  • Offers of compromise
  • Costs considerations
  • Going to court – Supreme Court and Country Court procedures.

Precedents

Easy to use precedents provided for each stage of the matter include:

  • Retainer instructions
  • Initial letter to plaintiff
  • Costs agreement
  • Letter to medical panel
  • Letter to plaintiff advising on mitigation of damages
  • Example content – pleading and particulars
  • Brief to counsel
  • Subpoenas and Notices to produce
  • Authority and instructions for payment of settlement or award

Before advising a client, it is important to understand the nature and extent of the restrictions imposed upon claims and damages by the Wrongs Act, as well as the defences created.

The By Lawyers Personal Injuries Guide will enable Victorian practitioners to confidently assist clients with personal injury claims.

Personal Injury NSW

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NOVEMBER 
  • Commentary – Updated link to clause 3 of CIVIL LIABILITY (NON-ECONOMIC LOSS) ORDER 2010 regarding maximum amount of damages for non-economic loss.
OCTOBER 
  • Retainer instructions – Updated reference to index amount for maximum non-economic loss.
  • Costs Agreements
    • Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.

Personal Injury QLD

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Personal Injury 

August 
  • Additional commentary added on NIIS – updated to ensure compliance with the National Injury Insurance Scheme (Queensland) Act 2016. The act applies to individuals who may eligible to receive necessary and reasonable lifetime treatment care and support for a serious personal injury resulting from a motor vehicle accident.
  • LINKS TO – National Injury Insurance Scheme (QLD) – Notification form
    LINKS TO – National Injury Insurance Scheme (QLD) – Application form – Interim participation
    LINKS TO – National Injury Insurance Scheme (QLD) – Application form – Insurer
April 
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
February 
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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