Personal Injury Lawyers Brisbane

How the law of negligence works in Queensland

Most personal injury matters in Queensland rest on the law of negligence. Negligence means a failure to take the care that a reasonable person would have taken in the circumstances, where that failure causes harm to someone else. The common law rules are modified by the Civil Liability Act 2003 (Qld).

Under section 9 of that Act, a person does not breach a duty to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant, and a reasonable person in the same position would have taken the precautions.

Section 11 deals with causation, which is the link between the breach and the harm. The breach must have been a necessary condition of the harm, and it must be appropriate for the scope of the person's liability to extend to that harm. The same principles apply to the injured person. Under section 23, those principles are used to decide contributory negligence, meaning a failure by the injured person to take reasonable care for their own safety, judged by the standard of a reasonable person in that position.

Which procedural statute applies depends on where and how the injury happened.

Queensland's three pre-court procedures: PIPA, CTP and WorkCover Queensland

Queensland is distinctive because a court proceeding for personal injury damages generally cannot be started until a statutory pre-court procedure has been completed. There are three separate procedures.

The Personal Injuries Proceedings Act 2002 (Qld), usually called PIPA, covers most injuries outside the road and the workplace, such as public liability and medical negligence matters. The claimant gives the proposed respondent a written notice of claim in two parts in the approved form. In a medical negligence matter, section 9A requires a separate initial notice before part 1, and part 1 must be accompanied by a written report from a medical specialist. Under section 20, the respondent has six months from a complying part 1 notice to investigate, state whether liability is admitted or denied, and make or respond to a written offer. Section 36 requires a compulsory conference, a formal meeting of the parties, before any proceeding is filed. PIPA does not apply to dust-related conditions.

Injuries from motor vehicle accidents are excluded from PIPA and fall under the Motor Accident Insurance Act 1994 (Qld). Written notice of the claim is given to the compulsory third party (CTP) insurer of the vehicle alleged to be at fault, using a Notice of Accident Claim Form. The Motor Accident Insurance Commission (MAIC) regulates the scheme. Where the vehicle is uninsured or cannot be identified, the Nominal Defendant, a statutory body corporate, is the insurer.

Work injuries fall under the Workers' Compensation and Rehabilitation Act 2003 (Qld). An application for statutory compensation is lodged with the employer's insurer, which is WorkCover Queensland unless the employer is a self-insurer. The insurer must decide an application within 20 business days after it is made. Section 237 limits who may seek common law damages from an employer: generally a worker must first have received a notice of assessment from the insurer, with limited exceptions such as a terminal condition. That path has its own notice of claim and compulsory conference.

Time limits for personal injury matters in Queensland

The general limitation period is set by section 11 of the Limitation of Actions Act 1974 (Qld). An action for damages for personal injury must not be brought after three years from the date the cause of action arose. No limitation period applies to personal injury resulting from a dust-related condition, or under section 11A to injury resulting from the abuse of a person when the person was a child. Different rules apply to children and to people under a legal disability.

The pre-court notice periods are shorter than the limitation period. Under section 9(3) of PIPA, part 1 of the notice of claim is due by the earlier of nine months after the incident, or the first appearance of symptoms, and one month after a law practice is first instructed and the respondent is identified. In a medical negligence matter that timing applies to the initial notice under section 9A instead, and part 1 follows within 12 months after the respondent responds to the initial notice.

Under section 37 of the Motor Accident Insurance Act 1994, the CTP notice is due by the earlier of nine months after the accident, or the first appearance of symptoms, and one month after a lawyer is first consulted about a possible claim. Where the vehicle cannot be identified, notice to the Nominal Defendant is due within three months, and the claim against the Nominal Defendant is barred if notice is not given within nine months. Under both Acts, if notice is late the obligation to give it continues and a reasonable excuse for the delay must be given.

An application for workers' compensation is valid and enforceable only if lodged within six months after the entitlement arises, although section 131 allows an insurer to waive this in limited circumstances.

Where Brisbane personal injury matters are dealt with

Under section 42 of PIPA and section 51D of the Motor Accident Insurance Act 1994, if a matter does not resolve at the compulsory conference a proceeding should be started within 60 days after the conference concludes, or within a further period agreed by the parties or fixed by the court.

The court depends on the amount in dispute. The Magistrates Court of Queensland deals with civil cases of $150,000 or less, and the Brisbane Magistrates Court is at 363 George Street. The District Court of Queensland deals with civil disputes from $150,000 to $750,000, and cases above that range go to the Supreme Court of Queensland. In Brisbane both of those courts sit in the QEII Courts of Law Complex at 415 George Street.

The scheme bodies are also in the city. MAIC and the Nominal Defendant are at 275 George Street, Brisbane. Reviews of workers' compensation insurer decisions are made to the Workers' Compensation Regulator, and appeals from review decisions go to the Queensland Industrial Relations Commission or, for some decisions, an industrial magistrate.

Vitt Legal's Queensland office is at Level 1 Jubilee Place, 470 St Pauls Terrace, Fortitude Valley QLD 4006. Personal injury is one of the firm's areas of practice. A written costs disclosure is provided before any work starts. Contact details are on the firm's contact page.