Specialist Accreditation - Queensland Law Society · • list any lectures, seminars, workshops, continuing legal education courses or publications that the applicant has conducted

Distinction in law

Specialist Accreditation

Personal Injuries Law Assessment Criteria 2011

2011 Assessment Criteria for Personal Injuries Law 1

1. Introduction

The 2011 Personal Injuries Law Specialist Accreditation Assessment Criteria are designed to assist practitioners interested in becoming accredited in personal injuries law to understand, prepare for and undertake the assessment process. These Assessment Criteria include the following:

1 Introduction 2 Important dates 3 Privacy 4 Eligibility criteria 5 Application information 6 Assessment Information 7 Personal Injuries Law Specialist Specific Information

• Core Areas (Schedule 1, Part A) • Skills (Schedule 1, Part B) • Committee Members (Schedule 2)

Please note: The 2011 Personal Injuries Law Specialist Accreditation

Assessment Criteria should be read in conjunction with the Specialist Accreditation Handbook.

Enquiries

Please address all enquiries regarding Personal Injuries Law Specialist Accreditation to: Specialist Accreditation Queensland Law Society GPO Box 1785 Brisbane Qld 4001

tel: 07 3842 5929 fax: 07 3221 2279 email: [email protected]


2. Important dates

Wednesday 23 February 2011

Specialist Accreditation Information Evening Applications open

Monday 11 April 2011

Applications close (by 4pm)

May 2010

Candidates advised of acceptance into program Written Examination held (am) Simulated Client Interview held (pm)

Saturday 23 July 2011

Mock File distributed

Monday 15 August 2011

Mock File due (by 4pm or sent by registered post postmarked no later than 4pm)

November 2011

Candidates will be advised of results by mail

NB: The Personal Injuries Law Specialist Accreditation Advisory Committee reserves the right to change any of these dates, but will give candidates notice of any change. Late applications will only be accepted at the discretion of the Personal Injuries Law Specialist Accreditation Advisory Committee.


3. Privacy QLS is committed to protecting your privacy and the confidentiality and security of personal information provided by you to us. The information you provide us will be used to process your application and to contact you with further details of the program. Further, it is a condition of application for accreditation that the applicant gives consent for the Professional Standards Department of the Law Society and the Legal Services Commission to provide to the Board and/or the Personal Injuries Law Specialist Accreditation Advisory Committee any information, the release of which is not prohibited by statute. Further details about the QLS’s privacy policy, including the Privacy Statement, Plan and Code of Practice and the collection of personal information can be found on the Society’s website at www.qls.com.au. 4. Eligibility Criteria Please read in conjunction with the Specialist Accreditation Handbook. To be eligible to apply for accreditation, an applicant must:

• be a member of the Queensland Law Society;

• hold a current practising certificate;

• have been engaged in full time legal work for at least five years following the date of their admission to practice;

• demonstrate substantial involvement (at least 25%) in this area of practice over the past three years;

An applicant who is not able to fully satisfy the criteria concerning:

• years of experience in practice; or

• level of involvement in the area of practice;

may be accepted into the program at the discretion of the Personal Injuries Law Specialist Accreditation Advisory Committee. Application for the exercise of this discretion must accompany the application for accreditation and must be made by letter addressed to the Personal Injuries Law Specialist Accreditation Advisory Committee, outlining the applicant’s case for the exercise of the Committtee’s discretion to accept the applicant as a candidate.


5. Application Information

5.1 Closing date Applications must be received by Queensland Law Society prior to 4pm on Monday 11 April 2011. 5.2 Form of Application Applications must be made on the prescribed application form, which may be downloaded as part of the ‘Specialist Accreditation Application Kit’ from the Specialist Accreditation section of the Queensland Law Society website, at www.qls.com.au. The form must be accompanied by the following documents:

1. a resume of work (see 5.4 below) 2. three references in support of the application (see 5.5 below) 3. the application fee of $880.00 (including G.S.T.) payable

to the Queensland Law Society Inc by credit card or cheque 5.3 Address for Submission of Application Completed applications must be submitted via email, fax or post to: Specialist Accreditation Queensland Law Society GPO Box 1785 Brisbane Qld 4001

tel: 07 3842 5929 fax: 07 3221 2279 email: [email protected]

5.4 Resume of Work 5.4.1 The purpose of the resume

• The purpose of the resume is to demonstrate the applicant’s experience and capacity in the area of personal injury law.

• This element will be assessed by reference to the resume demonstrating

the applicant’s ability to prepare, conduct and represent clients to a high standard in personal injury law.

• The Resume of Work is an eligibility pre-requisite. Applicants will not

proceed to the examination stage unless the resume of work meets all criteria as outlined.


• Where the committee proposes to reject an application, the applicant may be given the opportunity to clarify aspects of the application before the application is denied.

5.4.2 General requirements of the resume

• The resume should be formal, concise and carefully presented. It should not exceed 4 pages (exclusive of any necessary attachments).

• The applicant should seek to address the specific requirements as set out

below by reference where possible to the Personal Injury Law Specialist Accreditation Performance Standards (outlined in this document).

• The resume should be set out as per the content requirements below,

addressing each point.

• Applicants are required to use Microsoft Word format with 12pt font, 1.5 line spacing, with 2cm margins.

5.4.3 Specific content requirements of the resume

The resume should:

• state the applicant’s date of admission to practice; • give a broad description of the applicant’s legal career since admission. It

should outline the applicants experience in personal injury law including:

o the percentage of time spent in the practice of personal injury law over the last five years and, in particular, the last twelve months; and

o specification of the courts/tribunal, the types of actions that the

applicant has been engaged in and details of the applicants role.

• describe the applicant’s experience in the following areas over the past three years in at least three of the following areas:

o drafting court pleadings; o drafting applications and affidavit evidence; o completing interlocutory steps in District and Supreme Court

actions. o preparing for and appearing in mediations and case appraisals; o trial preparation and conduct; or o advising clients.


• provide a brief description (not exceeding 250 words per matter) of at

least one, but no more than three, actions that the applicant conducted in the last 12 months which have involved some degree of complexity in law, procedure or fact. A short narrative of the circumstances and the issues involved and the applicant dealt with them should be provided. No documents are required.

• list any lectures, seminars, workshops, continuing legal education courses

or publications that the applicant has conducted or been involved in, relevant to their personal injury law practice, over the last 12 months. The nature of the applicant’s involvement should be specified.

• outline an action in which the applicant has personally represented a

client or briefed counsel in the last 12 months. The applicant should explain the action and as part of this requirement, may decide to attach material including any memorandum to counsel, index to brief, research notes or summation of evidence or other relevant documents. It should only include material prepared by the applicant. Any material supplied must be de-identified so as not to breach any duty of confidence or waiver of privilege.

5.5 Referees 5.5.1 Applicants are required to nominate three referees who can attest to their

competence and involvement in the area of personal injuries law. Applicants are urged to carefully consider the following criteria when selecting their referees:

• the referees should be legal practitioners residing in Queensland; • no more than one reference may be obtained from a member of another

profession, provided that the referee has appropriate expertise in their field and that field has some relevance to the application;

• it is desirable that at least one of the referees has acted on the other side

of a transaction or matter in which the applicant has been involved; • none of the following is eligible to act as a referee:

o partner, associate, employer, employee (i.e. another member of the applicant’s firm), or relative of the applicant;

o another applicant in the area of practice (cross-references are not acceptable);

o Specialist Accreditation Board members or members of the Advisory Committee in the nominated area of practice;

o Queensland Law Society staff; or o Queensland Law Society Council members.


• the Personal Injuries Law Specialist Accreditation Advisory Committee

reserves the right to seek additional references from referees and other people.

5.5.2 A Referee’s Report form has been included in the application kit. The

responsibility for distribution of referee reports lies with the applicant. 5.5.3 All three Referee’s Report forms must be returned to QLS by the applicant or the

referees by the closing date for applications (see 5.1 above). Applicants may not proceed to the examination stage until all three Referee’s Report forms are received by Queensland Law Society.

6. Assessment Information 6.1 Assessment Stage Once an application is accepted by the Personal Injury Law Specialist Accreditation Advisory Committee, an applicant becomes a ‘candidate’ and must successfully complete the prescribed assessment program set out in this section to be awarded specialist accreditation. 6.2 Performance Standards Practitioners wishing to be accredited must display knowledge of the law and procedure which underpins the performance of tasks in this area of practice and be able to perform the below tasks:

o fulfill duty to client; o obtain instructions, facts and evidence; o develop plan; and o implement plan.

Further details of the standard required are contained in Schedule 1 6.3 Assessment Tasks The assessment program for specialist accreditation in personal injuries law is in three parts. Part 1 Written Examination Part 2 Simulated Client Interview Part 3 Mock File


To gain accreditation, candidates must obtain the required mark in each Part of the assessment program The required marks are as follows: Written Examination 65% (for each of Parts A and B) Simulated Client Interview Candidates must achieve a grading of 3, 4 or 5 to

pass. Grades of 1 and 2 are failures. Mock File 75% Candidates will be assessed on the law as it stands at the date of the assessment. 6.3.1 Written Examination

Date: Saturday 23 July 2011

Venue: Queensland Law Society Auditorium, Law Society House, 179 Ann Street, Brisbane

Time: Approx. 8.30am to 12.00pm (exam will run for 3 hours with 30 mins reading time)

The Examination will take the following format: Part A This part comprises 2 (unseen) problem questions out of a choice of three, i.e. hypothetical cases, in which candidates will be asked to advise the parties on matters such as:

• possible causes of action; • possible defences; • appropriate jurisdiction; and • relevant legislation.

The problems may cover the core areas of motor vehicle accidents, workplace accidents, medical negligence and/or public liability. Part A is worth 40% of total marks (allow approximately 1 hour 10 minutes – 35 minutes per question). Part B This part comprises 20 (unseen) questions out of a pool of 30 questions. The questions will require short answers ranging from a few lines to a maximum of half a page.


These questions will test basic knowledge and understanding of legal principles and statutes, calculation of damages including use of actuarial tables, and medical terminology. Part B is worth 60% of total marks (allow approximately 1 hour 40 minutes – 5 minutes each question). Candidates must achieve a pass on both Part A and Part B to pass this assessment.

Assessment criteria

Candidates will be assessed on their:

• Identification of relevant issues from given fact situations;

• Knowledge of relevant law (including any significant recent decisions) and skill in

applying that knowledge in practice;

• Knowledge of the procedural rules; and

• Ability to provide practical, clear and comprehensive advice.

Examination conditions

• The duration, including reading time, will be 3 hours and 30 minutes.

• The examination will be open book.

• Candidates may take into the examination room any books, notes or other written material. Portable computers may be used for reference purposes on a “read only” basis so long as their use does not disturb other candidates.

• Internet access is strictly prohibited.

• Mobile telephones are not permitted.

• Answers must be written in the answer booklets provided.

• Answers must be numbered correctly.

• Handwriting must be legible.

• Candidate numbers (not names) must be written on all answer books submitted.


6.3.2 Simulated Client Interview

Date: Saturday 23 July 2011

Venue: Queensland Law Society Auditorium, Law Society House, 179 Ann Street, Brisbane

Time: Appointments allocated for Saturday afternoon following the written examination

Candidates will be asked to conduct a simulated first interview with a person acting in the role of a plaintiff client. The exercise will take 30 minutes and will be visually recorded. Candidates are advised that: • the first ten minutes should be used to extract factual information; • the next twenty minutes must be spent addressing relevant issues and giving

advice; and • the visual recording will be assessed by the examiners. Assessment criteria This exercise will test a range of performance standards including the following:

• ability to obtain instructions and facts from the client; • identification of relevant issues;

• assessing facts and legal options;

• knowledge of relevant law and skill in applying that knowledge in practice;

• ability to appropriately communicate with the client;

• canvassing options with the client and developing the initial plan;

• ability to provide practical, clear and comprehensive advice, including advice

about costs; and

• ability to recognise and address relevant ethical issues.


6.3.3 Mock File

Date of distribution:

Saturday 23 July 2011

Due date: Monday 15 August 2011 (by 4pm or sent by registered post, postmarked no later than 4pm)

Candidates will be presented with a mock file and required to complete specific tasks, which may include instigating inquiries, preparing pleadings, drafting a letter of advice including a detailed assessment of damages, and negotiating settlement. The mock file will assess the candidate’s ability to deal with more complex issues. Candidates can choose from one of the core areas listed below in which to complete the mock file.

• Motor Accident – Plaintiff; • Workers Compensation/Industrial – Plaintiff; or

• Workers Compensation/Industrial – Defendant.

Please nominate the area of your choice on the application form. Mock File Conditions

• Candidates may use the resources of their offices in completing this exercise. However, candidates will face automatic disqualification from the accreditation program if any assessment material is referred to counsel or any other person for opinion or assistance. Candidates will be required to provide a signed statement to this effect.

• Submissions received after Monday 15 August 2011 will not be assessed unless

the Advisory Committee directs otherwise.

• No reference or marks which may identify the candidate or their firm should appear anywhere in the candidates work.

Assessment criteria This exercise will test the following skills:

• identification of relevant issues from the given fact situation; • knowledge of relevant law and skill in applying that knowledge in practice;


• assessment of any liability; and

• ability to provide practical, clear and comprehensive advice.

7 Personal Injuries Law Specialist Specific information The following specific information about accreditation as a Personal Injuries Law Specialist is set out in the Schedules to this document:

• Core Areas (Schedule 1, Part A) • Skills (Schedule 1, Part B) • Committee Members (Schedule 2)


SCHEDULE 1 PART A CORE AREAS 1 The Core Areas of personal injuries law are:

� Motor Accident – Plaintiff;

� Motor Accident – Defendant;

� Public Liability – Plaintiff;

� Public Liability – Defendant;

� Workers Compensation/Industrial – Plaintiff;

� Workers Compensation/Industrial – Defendant;

� Product Liability Cases; and

� Medical Negligence Cases.

2 Expected Knowledge Note: This list is not exhaustive but is set as a guide to applicants on the type of

matters that may be raised in the assessment program. Not all the topics listed will necessarily be tested. Topics are grouped under headings as a matter of convenience only.

Any matter relevant to practice in personal Injury law may be examined.

2.1 Common law principles 2.1.1 Liability in Negligence and Breach of Statutory Duty

• The duty of care

o general principles; o specific categories, e.g. product liability, motor vehicles, duties to

rescuers, occupiers’ public liability, duties in the workplace;

o medical negligence, public authorities liability, nervous shock/pure psychiatric injury;

o non-delegable duty; and

o no-duty situations and immunities, e.g. barristers, joint illegal enterprise.


• Breach of duty and the standard of care

o the standard of care o proof of negligence

– general principles – the onus of proof – circumstantial evidence – res ipsa loquitur

• Damage

o causation of damage

– general principles – tests of causation – multiple or complex causes

o remoteness of damage

– general principles – eggshell skull rule – intervening actions

o statutory impact

2.1.2 Liability in public nuisance 2.1.3 Liability in private nuisance 2.1.4 Liability for professional negligence arising out of personal injuries claims. 2.1.5 Liability in assault, battery and false imprisonment 2.1.6 Liability in contract 2.1.7 Defences

• Voluntary assumption of risk • Contributory negligence

• Disclaimers

• Inevitable accident


• Fraud

• Consent

• Illegality

2.1.8 Liability for animals 2.1.9 Vicarious liability 2.1.10 Assessment of damages

• General damages

o pain and suffering o loss of amenities and enjoyment of life o loss of expectation of life o disfigurement

• Special damages

o out of pocket expenses o statutory liability

• Past economic loss

o allowance for receipt of statutory benefits, in particular calculation of interest and allowance for receipt of sick pay and superannuation

• Future economic loss

o use of actuarial tables including deferred calculations and life expectancy tables

• Care

o gratuitous care o other future care

• Particular issues

o interest on awards o overlap with other claims o contributory negligence o statutory limitations


• Compensation to relatives claims

o dependency actions e.g.. loss of expectation of financial support o loss of services

• Parties

o the naming of correct parties e.g.. CTP insurer when under the Motor Accident Insurance Act;

o circumstances when it is appropriate to have action against insurer alone i.e. death of insured; and

o the correct party to claim in some cases for economic loss e.g. company and partners.

• Future recurring and deferred expenses

o ongoing expenses o cost of aids and appliances o future deferred surgery

• Mitigation of damages

2.1.11 Choice of Law

General knowledge of choice of law rules applicable in interstate accidents

2.1.12 Time limitations

• Common law principles as to when cause of action arises, eg. with the onset of disease.

• Statutory limitations and notice provisions (Motor Accident Insurance Act

and WorkCover Queensland Act, Workers’ Compensation and Rehabilitation Act 2003 and Personal Injuries Proceedings Act, claims against the Commonwealth).

2.2 Statutory Provisions 2.2.1 Legal Profession Act 2007 2.2.2 Motor Accident Insurance Act 1994 as amended. 2.2.3 WorkCover Queensland Act 1996 2.2.4 Workers’ Compensation and Rehabilitation Act 2003 2.2.5 Personal Injuries Proceedings Act 2002


2.2.6 Civil Liability Act 2003 2.2.7 Further legislation relevant to personal injury litigation

• Supreme Court Act and Uniform Civil Procedure Rules • District Court Act and Uniform Civil Procedure Rules

• Magistrates Court Act and Uniform Civil Procedure Rules

• Supreme Court Act 1995 as amended

• Provisions from Common Law Practice Act

o Assessment of damages o Actions against and by executors

• Law Reform Act 1995

o Tortfeasors Contribution and Contributory Negligence o Civil remedies between spouses o Legal capacity of spouses

• Limitation of Actions Act 1974 - Section 11, Section 31 • Public Trustee Act 1978

• Succession Act 1981

• Service and Execution of Process Act 1992

• Trade Practices Act 1974 - Part 5A – liability for products

• Criminal Offence Victims Act 1995

• Victims of Crime Assistance Act 2009

• Workplace Health and Safety Act 1989 & 1995

• Commonwealth Employees Rehabilitation and Compensation Act

• Choice of Law (Limitation Periods) Act 1996

• Crown Proceedings Act 1980

• Health and Other Services (Compensation) Act 1994


• Guardianship and Administration Act 2000

• Coal Mining Safety and Health Act

2.3 Stages of proceedings 2.3.1 Pleadings

• Commencement of proceedings • Serving originating process

• Entry of Appearance and Defence

• Statement of Claim (Supreme Court only)

• Third Party Notices/Notices claiming contribution or indemnity

• Cross Claims specific pleadings

2.3.2 Discovery, disclosure and privilege

• Discovery • Interrogatories

• Notices of non-party disclosure

• Privilege

2.3.3 Statements of loss and damage

• Statements of loss and damage • Statements of expert and economic evidence

2.3.4 Settlement procedures

• Settlement conferences • Mediation

• Case appraisal

• Preparation of terms of settlement/orders of judgment


• Release, indemnity and discharge

• Written instructions

2.3.5 Trial preparation

• Preparation of chronologies • Preparation of schedules

• Agreement on heads of damage

• Conferences

• Subpoenas

• Documents for tendering

• Witnesses, lay and expert

• Evidence by electronic media

2.3.6 Special procedures in cases of legally disabled

• Appointment of Litigation Guardian

• Settlement of claims for legally disabled

• Sanction of settlement by the court or by the Public Trustee

• Appointment of Administrator 2.3.7 Application for speedy trial 2.3.8 Procedures for judgment

• Obtaining default judgment • Enforcing judgment

2.3.9 Taxation/Assessment of costs 2.3.10 Appeals

• Leave to appeal from interlocutory judgment


• Appeals from Magistrates Court, District and Supreme Courts to Court of

Appeal

• Applications for special leave to appeal to the High Court

• Notice of appeal

• Outline of appellant’s submission

• Outline of respondent’s submission

• Appellant’s reply

• Respondent’s reply


PART B SKILLS The skills required to be demonstrated during assessment process include the following: 1 Fulfill duty to the client 1.1 Conducting cases efficiently, effectively and expeditiously

The specialist personal injury solicitor: • takes the initiative and acts promptly to promote the client’s case; • is commercially responsible and guards against wasteful procedures and

over servicing;

• develops and maintains efficient and disciplined office procedures, including an efficient diary system for pleadings and time limitations;

• is objective and professional; and

• ensures all actions and advice is in accordance with their ethical duties.

1.2 Helping the client to gain a realistic understanding of the case

The specialist personal injury solicitor: • regularly advises the client in relation to the assessment and likely outcome

of the claim; • explains to the client the basis on which damages or compensation are

assessed, the likely range of damages, the impact of discount rates, the statutory restrictions contained in the Motor Accident Insurance Act, WorkCover Queensland Act, and Workers’ Compensation and Rehabilitation Act 2003, Personal Injuries Proceedings Act and Civil Liability Act 2003, Uniform Civil Procedure Rules;

• advises on the availability of Alternative Dispute Resolution mechanisms e.g.

arbitration, mediation; • advises in relation liability;

• advises on mandatory final offers, offers to settle, the implications in relation

to costs and the principles of awarding interest;


• warns of the risks of proceeding with litigation;

• clarifies with the client the implications of settlement and the impact

settlement may have on Social Security and/or Workers Compensation entitlements;

• advises on all statutory entitlements and refunds;

• discusses and enters into a Costs Agreement; and

• advises about the availability of structured settlements in appropriate cases.

1.3 Obtains instructions/facts/evidence 1.3.1 Eliciting information from the client

The specialist personal injury solicitor: • displays an ability to communicate with clients to elicit all relevant details

relating to liability and quantum; • is guided by a knowledge of the common law, statutory provisions and the

relevant time limitations;

• identifies available defences and considers admissions of liability, grounds for privilege and third party proceedings;

• obtains full details of the injury which lead to the development of a “before”

and “after” picture of the plaintiff;

• combines a professional attitude with objectivity, tolerance and a thorough of approach in obtaining information;

• establishes rapport;

• thoroughly discusses costs, including the basis on which the client will be

charged and costs recovery rules. Ensures the client has the opportunity to raise any questions or concerns regarding costs issues;

• provides the client with a balanced overview of the process and gives an

overview of time frames, time limits and the “pros” and “cons” of proceeding with a claim; and

• openly raises any ethical issues and advises about any peculiar issues that

may arise.


1.3.2 Obtaining evidence on liability

When gathering supporting information, the specialist personal injury solicitor: • demonstrates initiative, promptness and knowledge of the appropriate

sources; • obtains factual reports; • takes statements from all relevant witnesses; and

• engages and qualifies appropriate experts.

1.3.3 Obtaining appropriate medical evidence

The specialist personal injury solicitor: • obtains medical information from hospitals, treating doctors and qualified

medical experts; • if necessary, conducts an investigation of previous medical history and

obtains details of the likely cost of any future treatment and care;

• updates this information in response to constant monitoring of the progress of the medical condition by treating doctors or other health professionals, including rehabilitation programs;

• is familiar with medical terminology and the medical experts who are

available to give required medical evidence; and

• ensures that the medical experts address themselves to the important questions of evidence eg. causation.

1.3.4 Obtaining evidence of loss and damage

The specialist personal injury solicitor:

• quantifies or tests the claims for loss and damage by developing and contrasting a picture of the claimant’s post-accident life, including future possibilities, with a “might-have-been” picture of the claimant’s pre-accident expectations;

• when appropriate, obtains details of employment, taxation, income, ability,

duties, prospects for promotion, redundancy and retirement, personal records, professional qualifications and references;


• if necessary, engages and qualifies actuarial experts to assess economic

loss;

• arranges necessary surveillance of plaintiff/applicant; and

• is familiar with relevant superannuation legislation and its application to damages assessment.

1.3.5 Using procedures to obtain additional facts

To obtain additional facts the specialist personal injury solicitor uses initiative and a knowledge of formal and informal procedures including: • before action

o discovery before action; o searches; and o use of Freedom of Information Act to obtain hospital and other

government records.

• after action o subpoenas to produce documents; and o interlocutory proceedings eg. discovery, interrogatories and

notices to admit facts.

• application of provisions of the Evidence Act (s134A).

1.4 Develops a plan 1.4.1 Assessing liability

The specialist personal injury solicitor: • analyses the strengths and weaknesses of the claimant’s case in light of

the available facts and the current law; • considers the identity of the correct defendant, the probable evidence of

the opponent’s experts’ reports, probable defences, the possibility of third party proceedings; and the likely availability, demeanor and credibility of all parties and witnesses; and

• assesses the likelihood of success.

1.4.2 Assessing compensation

When assessing likely compensation the specialist personal injury solicitor:


• adopts a realistic approach to the quantification of heads of damage and the

calculation of entitlements to workers compensation, and applies a knowledge of common law principles and legislation;

• reviews precedent;

• considers questions of insurance and the other party’s ability to pay;

• evaluates the strength and extent of the medical evidence, based on

knowledge of medical terminology and investigative procedures;

• considers obligations and entitlements to provide and receive rehabilitation services;

• considers the likely availability, demeanor and credibility of all parties and

witnesses; and

• considers statutory limits of the Workers’ Compensation and Rehabilitation Act 2003,WorkCover Queensland Act, Motor Accident Insurance Act, Personal Injuries Proceedings Act and Civil Liability Act 2003, Uniform Civil Procedure Rules.

1.4.3 Determining the appropriate tribunal

When determining the appropriate tribunal the specialist personal injury solicitor applies the principles regarding: • the nature and quantum of causes of action; • the appropriate jurisdiction both monetary and geographical; and

• the advantages and disadvantages of various tribunals, including alternative

dispute resolution. 1.4.4 Considering tactics

The specialist personal injury solicitor: • determines when to proceed with, defer or attempt to settle a claim; • understands the commercial reality and assesses the strengths and

weaknesses of the evidence on both liability and damage;

• if appropriate, uses any of the following to advance the client’s position: o speedy hearings; o interlocutory proceedings; o offers to settle;


o requiring experts to be available for cross-examination; o seeking agreement on the quantum of heads of damage; o application for mediation or case appraisal; o availability of jury trial; o compulsory conferences; and o joinder of parties.

1.4.5 Advising the client on a course of action

The specialist personal injury solicitor: • advises the client on possible courses of action, including alternative

dispute resolution, need to compromise, settlement options, and the likely duration, cost and outcome of litigation;

• considers joining other parties to the proceedings, the availability and

desirability of jury trial, and time limitations;

• communicates with the client in a manner consistent with the client’s needs;

• remains objective and realistic; and

• advises client in an ethical and professional manner

1.5 Implements plan by: 1.5.1 Preparing or scrutinising documents


• accurately prepares all necessary documentation in accordance with the rules of court, common law and statutory provisions;

• ensures that documents reflect the client’s instructions or the terms of any

agreement;

• draws pleadings which identify all relevant parties and disclose proper causes of action, heads of damage or defences; and

• if required, prepares documents for the appointment of next friend.


1.5.2 Briefing counsel


• briefs a barrister who is skilled in the appropriate field in appropriate

cases;

• takes an active role in liaison between the client and counsel;

• monitors the presentation of the case; and

• does not abdicate responsibility to counsel. 1.5.3 Reviewing evidence

The specialist personal injury solicitor regularly:

• reviews the file to ensure the preservation of evidence and updates evidence of loss;

• considers the opponent’s material; and

• reviews which reports will be used and which experts should be called as

witnesses or be required for cross-examination. 1.5.4 Assessing general damages

When assessing general damages, the specialist personal injury solicitor applies common law principles and applying the injury scale prescribed under the Civil Liability Act 2003.

1.5.5 Assessing care component

The specialist personal injuries solicitor:

• applies relevant principles to the calculation of all heads of special

damages and statutory provisions; and

• applies restrictions provided by the WorkCover Queensland Act, Workers’ Compensation and Rehabilitation Act 2003,Personal Injuries Proceedings Act, Motor Accident Insurance Act and Civil Liability Act 2003 as appropriate.


1.5.6 Calculating past losses


• obtains particulars and calculates the out-of-pocket expenses;

• tests whether out-of-pocket expenses are reasonable and arise out of the injury;

• considers and calculates entitlement to interest; and

• Applies restrictions provided by Motor Accident Insurance Act, Personal

Injuries Proceedings Act, WorkCover Queensland Act and Civil Liability Act 2003 and Workers’ Compensation and Rehabilitation Act 2003.

1.5.7 Assessing future loss


• considers and calculates the various heads of damages in relation to:

o future loss, including loss of income; o loss of opportunity; o medical and rehabilitation costs; o the value of care provided voluntarily and/or commercially; o the recurring costs of special equipment; and o home and transport modifications.

• applies the appropriate discount rates and actuarial tables;

• takes into account adverse contingencies, the vicissitudes of life and life expectancy; and

• applies the relevant statutory provisions on restrictions on future loss.

1.5.8 Negotiating settlement


• demonstrates an appreciation of when and how to negotiate;

• understands the advantages/disadvantages of acceptance/offers to settle;

• assesses the known attitude and likely approach of the other parties and the strength of the opponent’s case;


• in appropriate cases, considers structured settlements;

• advises client on social security implications;

• advises client on Medicare requirements and WorkCover refund; and

• advises client of indemnity and standard costs.

1.5.9 Preparing and conducting hearing


• marshals the evidence;

• issues subpoenas;

• confers appropriately with counsel;

• determines availability of witnesses;

• ensures adequate representation with counsel at hearing;

• ensures efficient and considerate calling of witnesses;

• keeps client informed; and

• advises client on prospects of appeal/re-hearing. 1.5.10 Finalising the claim The specialist personal injury solicitor:

• ensures all court documents and forms of judgment are properly prepared

and filed;

• seeks court approval when necessary;

• notifies proper authorities, including Medicare;

• advises the client of relevant dates, e.g. payment of interest, re-hearing or appeal, and any other arrangements which need to be made;

• takes steps to see that verdict or settlement monies are paid promptly;

• obtains written authorities to settle;


• records instructions with finalisation of claims;

• pays all outstanding accounts/expenses;

• prepares final accounts and complies with proper accounting procedure;

• prepares and arranges execution of deed of release or discharge;

• enforcement of judgment and settlement; and

• where appropriate promptly prepares and sends assessment of costs.


SCHEDULE 2 Personal Injuries Law Specialist Accreditation Advisory Committee (current as at February 2011) Ms J Rennick, MurphySchmidt (Chair) Ms J Cameron, Corrs Chambers Westgarth Mr G Cowan, Rees R & Sydney Jones Mr T Schultz, Schultz Toomey O'Brien Lawyers Mr P Sterling, MacDonnells Law Ms A Stickley, Queensland University of Technology