Personal Injuries Law

Transcription

1 Personal Injuries Law Assessment Criteria 2015 Specialist Accreditation Distinction in law

2 1. Introduction Contact details Important dates Assessment program Core areas of knowledge Expected areas of knowledge Skills

3 1. INTRODUCTION The 2015 Personal Injuries Specialist Accreditation Assessment Criteria is designed to assist practitioners to understand, prepare for and undertake the assessment specific to this area of accreditation. This document is to be read in conjunction with the Specialist Accreditation Scheme 2015 Candidate Handbook which contains the policies and procedures relevant to all areas of accreditation. 2. CONTACT DETAILS Please address all enquiries regarding specialist accreditation in personal injuries to: Specialist Accreditation Team Queensland Law Society GPO Box 1785 tel: fax: Brisbane Qld IMPORTANT DATES Wednesday 20 May 2015 Monday 15 June 2015 Saturday 25 July 2015 Friday 24 July Sunday 26 July 2015 Mock File distributed Mock File due (by 4pm or sent by registered post postmarked no later than 4pm) Written Examination held Simulated Client Interview held (individual appointments will be allocated between these dates) NB: The Personal Injuries Specialist Accreditation Advisory Committee ( the committee ) reserves the right to change any of these dates. Sufficient notice will be provided to candidates. 2

4 4. ASSESSMENT PROGRAM Candidates must successfully complete the prescribed assessment program set out in this section to be awarded specialist accreditation in this area of accreditation. Practitioners wishing to be accredited should be able to: a. perform at a high standard which is expected of practitioners wishing to hold themselves out as specialists in the area, and b. display a high standard of knowledge of the law and procedure which underpins the performance of tasks in this area of practice. Details of the knowledge and skill expected are contained at the end of this document. The assessment program for specialist accreditation in personal injuries is in three parts. All parts are weighted equally. Part 1 Part 2 Part 3 Mock File Written Examination Simulated Client Interview To gain accreditation, candidates must perform satisfactorily in each of the three parts of the assessment program. Candidates will be advised of what constitutes satisfactory performance in the assessment instructions. Candidates will be assessed on the law as it stands on the date of the assessment. 3

5 4.1. Mock File Date of distribution: Wednesday 20 May 2015 Due date: Monday 15 June 2015 (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 letters 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 application. Mock File Conditions Candidates may use the resources of their offices in completing this exercise. 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. Submissions received after the due date will not be assessed. Candidates should refer to the appropriate section of the Specialist Accreditation Scheme 2015 Candidate Handbook if they experience a problem completing the assessment by the due date. No reference or marks which may identify the candidate or their firm should appear anywhere in the candidate s work. 4

6 4.2. Written Examination Date: Saturday 25 July 2015 Venue: Time: Brisbane (exact venue to be confirmed at a later date) Time to be confirmed (exam will run for 3 hours with 30 mins reading time) Part A This part comprises two 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. Part B This part comprises 20 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. Candidates must achieve a pass (50%) on both Part A and Part B to pass this assessment. 5

7 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

8 4.3. Simulated Client Interview Date: Friday 24 July Sunday 26 July 2015 Venue: Queensland Law Society, Law Society House, 179 Ann Street, Brisbane Time: Individual appointments will be allocated on either Friday, Saturday or Sunday 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 for assessment purposes. 7

9 5. CORE AREAS OF KNOWLEDGE For the purposes of the personal injuries specialist accreditation assessment program, the core areas of knowledge have been identified as: 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. 8

10 6. EXPECTED AREAS OF KNOWLEDGE The below list is not exhaustive but is set as a guide to candidates as to the type of matters that may be raised in the personal injuries specialist accreditation assessment program. Topics are grouped under headings as a matter of convenience only. Not all the topics listed will necessarily be tested and any matter relevant to practice in personal injuries may be examined Common law principles a. 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 o Statutory impact 9

11 Damage o causation of damage general principles tests of causation multiple or complex causes remoteness of damage o general principles o egg-shell skull rule o intervening actions statutory impact b. Liability in public nuisance c. Liability in private nuisance d. Liability for professional negligence arising out of personal injuries claims. e. Liability in assault, battery and false imprisonment f. Liability in contract g. Defences Voluntary assumption of risk Contributory negligence Disclaimers Inevitable accident Fraud Consent Illegality 10

12 h. Liability for animals i. Vicarious liability j. 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 11

13 Compensation to others 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 k. Choice of Law General knowledge of choice of law rules applicable in interstate accidents l. 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) Statutory provisions a. Legal Profession Act 2007 b. Australian Solicitors Conduct Rules 2012 c. Motor Accident Insurance Act 1994 as amended. 12

14 d. WorkCover Queensland Act 1996 e. Workers Compensation and Rehabilitation Act 2003 f. Personal Injuries Proceedings Act 2002 g. Civil Liability Act 2003 h. Further legislation relevant to personal injury litigation o Assessment of damages o Actions against and by executors 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 Law Reform Act 1995 Limitation of Actions Act Section 11, Section 31 Public Trustee Act 1978 Succession Act 1981 Service and Execution of Process Act 1992 Trade Practices Act Part 5A liability for products Criminal Offence Victims Act 1995 Victims of Crime Assistance Act 2009 Workplace Health and Safety Act 1989 & 1995 Work Health and Safety Act 2011 o Tortfeasors Contribution and Contributory Negligence o Civil remedies between spouses o Legal capacity of spouses 13

15 Commonwealth Employees Rehabilitation and Compensation Act Military Rehabilitation and Compensation Act 2004 Safety, Rehabilitation, and Compensation Act 1988 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 Civil Aviation (carriers liability) Act 1959 (Cth) Civil Aviation (carriers liability) Act 1964 (Qld) Corrective Services Act 2006 Consumer Act 2010 Civil Proceedings Act Stages of proceedings a. Pleadings Commencement of proceedings Serving originating process Entry of Appearance and Defence Statement of Claim Third Party Notices/Notices claiming contribution or indemnity Cross Claims specific pleadings b. Discovery, disclosure and privilege Discovery Interrogatories 14

16 Notices of non-party disclosure Privilege c. Statements of loss and damage Statements of loss and damage Statements of expert and economic evidence d. Settlement procedures Settlement conferences Mediation Case appraisal Preparation of terms of settlement/orders of judgment Release, indemnity and discharge Written instructions e. 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 Supervised case management pursuant to Practice Direction 17/2012 Citation of Authority pursuant to Practice Direction 16/2013 Setting trial dates pursuant to Practice Direction 9/

17 Taking evidence by telephone and video link pursuant to Practice Direction 1/2008 f. 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 g. Application for speedy trial h. Procedures for judgment Obtaining default judgment Enforcing judgment i. Taxation/Assessment of costs j. 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 16

18 7. SKILLS The skills required to be demonstrated during the personal injuries specialist accreditation assessment program include the following: 7.1. Fulfil duty to the client a. Conducting cases efficiently, effectively and expeditiously 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. b. Helping the client to gain a realistic understanding of the case 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 17

19 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 the terms of the retainer discusses and enters into a Costs Agreement having particular regard to conditional cost agreements, and advises about the availability of structured settlements in appropriate cases Obtains instructions/facts/evidence a. Eliciting information from the client 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 18

20 openly raises any ethical issues and advises about any peculiar issues that may arise. b. 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. c. Obtaining appropriate medical evidence 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 e.g. causation. d. Obtaining evidence of loss and damage 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 preaccident expectations when appropriate, obtains details of employment, taxation, income, ability, duties, prospects for promotion, redundancy and retirement, personal records, professional qualifications and references 19

21 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. e. 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 Right of Information Act 2009 to obtain hospital and other State 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) Develops a plan a. Assessing liability 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. 20

22 b. Assessing compensation 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 (and associated Regulations), and Uniform Civil Procedure Rules. c. 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. d. Considering tactics 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 21

23 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. e. Advising the client on a course of action 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 the client in an ethical and professional manner 7.4. Implements plan by: a. 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 22

24 if required, prepares documents for the appointment of next friend. b. 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. c. 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. d. Assessing general damages When assessing general damages, the specialist personal injury solicitor applies common law principles and applies the injury scale prescribed under the Civil Liability Act 2003 and the Workers Compensation and Rehabilitation Act e. 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. 23

25 f. 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 g. 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. h. Negotiating settlement demonstrates an appreciation of when and how to negotiate understands the advantages/disadvantages of acceptance/offers to settle 24

26 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. i. 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. j. Finalising the claim 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 25

27 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. 26