If you have been injured and can show your injury was caused by someone else’s actions, you may be able to make a personal injury claim against them.
In Queensland the Personal Injuries Proceedings Act 2002 (PIPA) was introduced to provide a speedy resolution of claims for damages for personal injury. This Act requires a person intending to commence a claim for damages to first provide written notice of the claim to the person against whom the claim is to be made (s9 PIPA). For a claim involving medical negligence, s9A of PIPA requires additional information regarding inter alia, the medical procedure.
General Law personal injury claims are set out under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and the Civil Liability Act 2003 (Qld) (CLA).
It does not consider claims for personal injuries which:
- resulted at work and are covered by the Workers' Compensation and Rehabilitation Act 2003;
- occurred as a result of a car accident and are covered by the Motor Accident Insurance Act 1994;
- occurred as a result of a crime and are covered by the Criminal Offence Victims Act 1995 or the Victims of Crime Assistance Act 2009;
- are dust-related conditions; or
- resulted from use or exposure to tobacco products or tobacco smoke.
Claims for damages for personal injuries must be commenced within three years of the cause of action arising. In most personal injury cases, this means three years from the date the injuries were sustained. The three year limitation period may be extended in certain specified circumstances.
Section 11 of the Limitation of Actions Act applies to common law actions by injured workers or their dependents against their employers. The Act provides that an action for damages or breach of duty, in which the damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person, shall not be brought after the expiration of three years from the date on which the cause of action arose.
Court proceedings are to be commenced within 60 days of a compulsory conference. Once court proceedings have been commenced, a different set of deadlines apply, as governed by the Uniform Civil Procedure Rules 1999 (Qld).
In order to succeed in a negligence action, the following must be shown:
- The defendant owed the plaintiff a duty of care:
A defendant has a duty of care when there is an obligation on them to care for the plaintiff in circumstances where they can foresee injury or damage could result from their conduct.
- The defendant breached their duty of care:
A breach of duty occurs when the defendant fails to do what a reasonable person would have done in the same circumstances.
- The injury was suffered as a result of the breach of duty:
The injury or loss must be a direct result of the defendant's failure to fulfil their responsibility and the injury must not be too remote.
Calculation of damages
'Damages' refers to the amount of money you ask for to compensate you for your injuries. Below is some information specifically related to personal injury proceedings. For more general information about damages see the QPILCH factsheet 'Damages and Loss'.
General damages refer to:
- pain and suffering
- loss of amenities of life
- loss of expectation of life
The amount in general damages awarded depends upon the seriousness of the injury and is capped by law at $250 000.
In calculating general damages, the court will assign an injury value from 0 (negligible injury) to 100 (the most serious injury). In order to assess the injury, the court is guided by rules prescribed under the Civil Liability Regulation 2003 and injury values attributed to similar injuries in prior proceedings.
Other types of damages
- Damages for loss of earnings or earning capacity:
The maximum amount of money available for loss of earnings is approximately three times the average weekly earnings.
- Damages for gratuitous services:
Damages for gratuitous services required by the injured party are available if the services are necessary, the need for the services arises solely out of the injury, the services are provided at least 6 hours per week and the services are required for at least 6 months.
- Exemplary, punitive or aggravated damages:
Exemplary, punitive or aggravated damages may be awarded in limited cases in which the act that caused the injury was an unlawful act done with intent to cause personal injury, or an unlawful sexual assault or other unlawful sexual misconduct.
If you are awarded damages you may enter a structured settlement. This is an agreement for the payment of damages in periodic payments rather than a lump sum.
Notice to minimise damages
An injured person has a duty to minimise their loss and damage by taking reasonable steps to mitigate damage. They may be served a notice suggesting certain steps that should be taken to minimise loss such as for the injured person to undergo specific rehabilitation or medical treatment. Failure to follow the suggestions may result in damages being reduced.