Why Most Personal Injury Claims in Queensland Are Resolved Out of Court

You might be surprised to learn that most personal injury claims in Queensland are resolved through negotiation between the parties and their lawyers, rather than through court proceedings. There are several reasons for this:

1. it is generally cheaper to negotiate a settlement than to go to court
2. going to court can be a risk, as the outcome is uncertain and you may end up with less money than you would have if you had negotiated a settlement
3. the relevant law is designed for both parties to go through negotiations before going to court

For the vast majority of personal injury claims, they will proceed to what is called a compulsory conference. At a compulsory conference, both parties might exchange a mandatory final offer. This article will explain in detail how most personal injury claims are made and resolved before going to court.    

1. The personal injury claims process in Queensland

The plaintiff in a personal injury claim has the burden of proving that the defendant’s negligence caused their injuries. To do this, the plaintiff must show that the defendant owed them a duty of care, that the defendant breached this duty, and that the plaintiff’s injuries were caused by the breach. The plaintiff must also prove that they suffered damages as a result of their injuries. This is called the assessment of liability (who owed a duty of care) and quantum (damages also known as compensation). As the plaintiff, you must first complete a Notice of Claim and then serve it to the defendant’s insurer. This Notice of Claim is a document that outlines your injuries and losses, as well as how the respondent is at fault. The defendant’s insurer will then have some time to reply to you with an acknowledgment of receiving the Notice of Claim, often called a compliance notice. The insurer must also advise you whether they consider themselves to be liable. This is called a liability notice. The plaintiff and defendant’s insurer have a duty to negotiate and settle the claim in a speedy and fair manner. Both parties also have a duty to disclose relevant documents and material. Once both parties have received all relevant documents, they must then proceed to arrange a compulsory conference as a way to settle the claim.  

2. What is a compulsory conference?

The compulsory conference is a meeting between all the parties involved in the claim. It is an important step in the process of resolving a personal injury claim and gives the parties an opportunity to discuss their respective positions. Compulsory conferences are usually held at the solicitor’s office or a barrister’s chambers. Furthermore, as a form of protection, anything that is discussed during the conference cannot be used against either party in court, even if negotiations fail at the conference. During the conference, both parties will focus on 2 main issues:

1. What is the degree of liability for the defendant?
2. How much compensation should be awarded?

These conferences can last any time between 1 and 2 hours. There are only 2 possible outcomes of a compulsory conference. If the parties can reach an agreement on the issues of liability and compensation, then the claim will be settled. The amount will be kept confidential. If both parties are not able to reach an agreement on the issues, then they must exchange an offer in written form. This is called a mandatory final offer. Please see below for the relevant rules about the mandatory final offer for different types of claim:

• For Car accident Claims
• For Work-related accident claims
• For Public Liability Claims

 

3. What is a mandatory final offer?

Under Queensland law, if your claim is not resolved at a compulsory conference, both parties must exchange a mandatory final offer. This is basically an offer to settle the claim before going to court. The mandatory final offer must be valid for 14 days and cannot be withdrawn. For the plaintiff, your mandatory final offer is considered to be the lowest amount of compensation amount for your claim to be settled. For the defendant’s insurer, their mandatory final offer is considered to be the highest amount of compensation they are willing to offer to settle your claim. Both parties must be extremely careful when considering the amount in the mandatory final offers because if either offer is unreasonable, there will be negative consequences. If the claim ends up in court, a judge will make a decision on how much compensation should be awarded to the plaintiff. The judge will review the mandatory final offers from both sides. If the final awarded compensation is higher than the plaintiff’s mandatory final offer, then the defendant’s insurer will be facing a penalty. If the final awarded compensation is lower than the insurer’s mandatory final offer, then the plaintiff will be facing a penalty. The penalty mentioned in this case is the need to pay for the other part’s costs, as in legal costs. The above system is designed to provide motivation for both parties to make a fair and reasonable offer as their mandatory final offer.  

This information is general in nature and does not constitute legal advice. Drafted with AI assistance and reviewed by our legal team.