I was injured other than in a motor vehicle collision or work accident.
The owner (Occupier) of a property or business that you visit has a duty of care to take reasonable care to ensure your safety. If you slip, fall, trip or are otherwise injured while on that property, you may be able to make a claim for public liability compensation.
Public liability injuries can occur at any time or place. Common locations include:
- private residences
- shopping centres
- parking garages
- train and bus stations
- nightclubs and pubs
- movie cinemas
- sporting events
- theme parks
- dog parks
The Limitation Period for personal injury claims is generally three (3) years from the date of the injury.
Where a person is under 18 years when injured the three (3) year limitation period does not commence until their 18th birthday and they have until their 21st birthday to commence proceedings.
Where a person is under a legal disability (eg due to serious head injury) then the limitation period does not commence until that legal disability is lifted.
The Limitation Period can be extended where you become aware of a “material fact of a decisive character relating to the right of action” within the last 12 months in certain circumstances.
The limitation period must be considered in the context of the legislation relating to the particular claim.
Occupier’s liability claims in Queensland are governed by the Personal Injuries Proceedings Act 2002 (the “PIPA”).
The PIPA requires you to give Part 1 of a Notice of Claim in the prescribed form to the respondent within nine (9) months after the day of the injury or one (1) month after the day you first instruct a law practice to act on your behalf in seeking damages for personal injury and the person against whom the proceeding proposed to be started is identified. If the Notice is given after that time then a “reasonable excuse for the delay” in providing the Notice must also be given.
The respondent must give a response under the PIPAwithin one (1) month of receiving the Notice of Claim.
The injured person then provides Part 2 of the Notice of Claim within 2 months.
Within six (6) months of receiving Part 1 of your Notice of Claim the respondent must give a further notice advising whether the respondent admits or denies liability and/or claims contributory negligence.
Injured people who are less than 18 years are able to proceed with their claims but are not required to comply with the requirements of the PIPA until they reach 18 years of age.
Both you and the respondent are required to disclose certain documents and information to each other.
After 12 months from the date of injury you are examined by a specialist or specialists and medico legal reports obtained. If you have suffered a serious head injury the assessment will not take place until 24 months have elapsed. The respondent may also have you examined by a specialist or specialists to be chosen from a panel of three (3) specialists for each specialty.
When your medico legal reports are received we usually engage a Barrister to assist us in preparing a Statement of Loss and Damage detailing your claim to the respondent and to attend the Compulsory Conference. All Barristers we engage in personal injuries actions are engaged subject to them agreeing to act as we do on a “no win no fee” basis.
Once these steps have been taken the parties must proceed to a settlement conference called a Compulsory Conference. At the conference the parties come together to attempt to settle the claim. If the claim does not settle at the conference the parties will exchange written offers which are open for 14 days from the date of the conference. These offers are called “Mandatory Final Offers” or “MFOs”. If an MFO is not accepted then you may commence Court proceedings within 60 days from the conference. The Mandatory Final Offers have an impact on the amount of costs a party may recover after judgment has been given in the unlikely event the claim proceeds to trial.
Court proceedings are commenced within sixty (60) days after the conclusion of the Compulsory Conference. Those proceedings must be commenced prior to the Limitation Period expiring three (3) years of the date of the injury or prior to the 21st birthday for a minor, failing which you will forever lose the right to sue for damages. If the mandatory pre court procedures cannot be completed prior to the Limitation Period expiring you can, prior to the expiration of the Limitation Period apply to the Court for leave to commence proceedings despite non compliance with the PIPA.
Once the Court process commences your claim is governed by both the PIPA and the Uniform Civil Procedure Rules 1999 (“the UCPR”).
The Court process commences by filing a Claim and Statement of Claim in the State Court with the relevant monetary jurisdiction, which are as follows:
Magistrates Court – up to $150,000.00
District Court – up to $750,000.00
Supreme Court – Unlimited jurisdiction
Together with the Claim and Statement of Claim a copy of your Mandatory Final Offer will be filed in a sealed envelope and held by the Court until after judgment.
Within 28 days of the date of service of the Claim and Statement of Claim the Defendant has to file a Notice of Intention to Defend and Defence setting out its defence of your claim.
Within 14 days of receiving the Notice of Intention to Defend and Defence you file a Reply, if required, in answer to the Defence.
14 days after the Defence is served or when the Reply is served pleadings close.
Within 28 days of the close of pleadings the parties are to exchange Lists of Documents listing each of the documents which are disclosable under the UCPR. There are usually few surprises at this stage as all of the relevant documents will have been disclosed during the pre Court proceedings.
Also within 28 days of the close of pleadings you are required to serve a Statement of Loss and Damage. Within 28 days after that Defendant must serve a Statement of Expert and Economic Evidence which is a document detailing the expert and economic evidence it intends to rely upon at Trial.
Once these final Court documents have been exchanged it is not uncommon for the parties to again attempt to settle the claim whether by the exchange of formal offers under the UCPR, informal offers or by way of Mediation. If all attempts to settle the claim have not succeeded by that stage a Request for Trial Date will be submitted to the Defendant and a Court date set for your matter.
More than 95% of these claims settle prior to trial. A claim may settle any time up until Judgment is given.
In personal injuries claims it is necessary for your injuries to have been assessed by medico legal specialists prior to our providing you with an assessment of your likely damages. In the usual course the assessment of physical injuries will occur approximately twelve (12) months after the date you suffered injury and in the situation where you have suffered a serious head injury these assessments will likely take place approximately two (2) years after the accident. In our view in is not appropriate to attempt to assess your damages prior to that time.
No. Personal injury compensation payments are not subject to taxation. The earnings you subsequently make from those payments are subject to taxation as income (eg bank interest).
If I am injured in the course of my employment because of the negligence of both my employer and the occupier who do I claim against?
You may claim against one or the other or both. To claim against your employer you must meet the requirements of the Workers’ Compensation and Rehabilitation Act 2003.
I have received a Total and Permanent Disability payout. Can I also make a claim for personal injuries?
Yes. The claim for damages for personal injuries is a separate claim maintainable against the person or entity at fault and is separate to your Total and Permanent Disability