QLD Do I Have a Personal Injury Case Against the Council?

[Rasoir]

Wondering if I have a personal injury case against the local council after sustaining an injury to my knee.

I was out walking and stumbled over the upraised lip of a concrete slab of a footpath. The cartilage was split and I was unable to work following surgery for 3 months.

Is my case likely to succeed, given that the council could reasonably be expected to know the state of their assets and likely risks to pedestrians? Not sure if the council employs an arborist to audit the effects tree roots are having on footpath slabs and so on.

I reported the issue to council a few days later, and they firstly smoothed the slab with bitumen, to limit the likelihood of another person tripping. Then a couple of weeks later, the whole footpath was torn up and replaced by gravel.

I took a photo of the slab the day I reported it and sent it to the council, so they could do something to prevent injury to others. At that time, I had no idea I would be heading for surgery myself over it. Thought the knee would settle down, but it was never going to with the internal injury sustained.

Is a solicitor/lawyer likely to take on such a case on a no win no fee basis?

Second scenario...

Is it a good thing to represent me, if no lawyer is interested?

I am aware that there could be a view that I should have kept my eyes open, but the particular slab was not obvious to me, else I would not have tripped on it. No one looks at the ground and watches every single step they take.

I have ongoing (pain) issues with the knee after 7 months and am considerably out of pocket for wages and medical expenses.

Is this something I can succeed with? We are a single income family, and this loss of income has hurt us badly.

 

[Rod]

You may have a case.

I don't recommend DIY for these kinds of claims as they are not straight forward and if you lose your case it will cost you their fees.

 

[Rasoir]

Thank you very much for your response, Rod.

I rang a PI lawyer on Monday 9th instant.

She said she had "many years in PI cases" but couldn't remember the Civil Liabilities act. In fact after just two readings of it, I knew far more than she could remember, and this is supposed to be her bread and butter. Pity help anyone who goes to that firm needing assistance. Very inflated junior articled clerk with poor communication skills ... or maybe that was what was wanted to be conveyed!

There were so many "ums" and "arr's" that it was fairly clear to me she was fibbing a bit and fudging her experience. Anyway - enough roasting for now ...

The bottom line is that she didn't want my case, because it meant she would have to actually do some hard work and prepare a case. She did not want to do that, because she told me her fees would likely exceed any benefits coming back to me. First time I ever heard such truth from one such!

My claim will be more than $43,000 and less than $45,000, because I do not intend to complicate the case with fluffy issues like "pain and suffering" calculations, and "future medical costs" although there have been, and would likely be, some of both already.

My path now has been clarified by the lazy attitude of greedy pseudo lawyers, who have no interest in simple justice for vulnerable people, but exist only as parasitical assistance to those who can and will, pay and pay and pay, for every single letter and phone call they make, at times and rates that they can stretch out to the ludicrously sublime.

Spare a thought for the men and women who act pro bono, on behalf of those who desperately need legal representation; possibly for the experience, but I like to think out of a sense of altruism, which is a mythical belief that exists only in the minds of the naive today, and in certain of those lawyers.

I digress.

I am leaning towards representing myself, but unlikely to the extent that this will end in court, unhappily.

Those that could assist, do not deem it worthy of their time. So this may be open and shut. I am likely to take an offer, if one is forthcoming in the first instance. However, I may not fold so easily, since I do have an acquaintance who has been through a similar situation successfully recently, who has pointed out to me where the council has an Achilles heel. I can not disclose what that may be, on a public forum.

So there is the lie of the land, Rod.

I have made clear my reasons for my contempt for the legal profession, just as I will make clear my case to the respondent, when I shortly submit Part I of the claims document. There may not be a lot of room for them to move. But then again, as they have an insurer representing them with high powered and more devious legal brains on their side, I am not confident the exercise will be any more than fodder for a yarn to spin around some distant, yet unlit campfire.

What a pity morality and ethics are not taught in law school. The common man really is on a hiding to nothing when they come up against these *****.

Thank you for your ears - appreciated.

 

[Rod]

ethics are not taught in law school.

Legal ethics are taught. How well someone follows the teachings then depends on that person's beliefs and morals which are shaped by the time someone is a teenager, not developed at law school.

The legal profession is not much different from any other profession as far as ethics go. You get good people, you get bad people.

Lawyers have their own special areas of interest and a PI specialist dealing with workplace and transport accident schemes may not be familiar with civil liability claims. The lawyer however that takes on the case will generally familiarise themselves with the relevant law and seminal judgements before preparing a case.

They can pick it up and run with it, knowing the traps along the way, and consequences if things start to go wrong. They know what is admissible in court, and what isn't. They know how to structure a claim, write letters of demand etc etc.

I read somewhere last year that there are over 6,000 pages of new and updated laws each year. It is not realistic to keep up with each and everyone of these changes, so lawyers specialise. They will however do research after taking on a case and call on the right specialist to help them as needed. It is not reasonable to call a lawyer out of the blue and expect them to know each provision of each act, and especially one you may just having been reading online.

What you should expect is if they decide to take on the case they will do the research necessary to give you the best possible chance of winning your case at court or even better, convincing the other party to settle before court saving everyone time and money. Remember some cases are just not winnable, even with the best lawyer in the country.

Of course anyone with time and a decent IQ can learn what they need to get by, after all, that is what lawyers did to become qualified.

Self learning can be good enough in some cases. In other cases it isn't enough due to some arcane point of law they didn't find out about. It can be an expensive mistake.

At the end of the day it is your decision, your injury to rehabilitate as best you can, your time to consider and your money at risk if you go to court.

 

[Rasoir]

Fair enough defence of the profession, Rod. But it begs the question that if a lay person can, as you say, with "a decent IQ can learn what they need to get by" why is it rocket science for a lawyer?

The answer is, in the detail, of course.

Justice goes to those with the smarts, the connections and the money ... all three of which I lack in enough quantity and quality to try to take this as far as a court. The situation/threat of costs is something that will deny me justice. And while the awarding of costs may be in part, designed to prevent frivolous action, how many are like me?

I could only get the aged pension while off work for 14 weeks, and do not have the means to retire. It is impossible to get legal aid, because straight away the fact that I am earning income precludes me from that avenue of expertise and assistance.

My best hope is to do some research and present my own case to the Insurer, with the hope that they will decide that an offer to me is their cheapest result.

But with the Insurer eating people like me for breakfast every morning, they know that here is just another of "those cases" and simply do what works "as usual."

I won't walk away without having a go, but I'm afraid a lay person up against a pack of wolves will only be fodder for some trainee lawyer to sharpen their teeth on.

I'll get back to this thread in due course with the outcome, but you can write your own ending already.

Sad.

 

[Rod]

Situations like yours are one reason I've gone back to uni after a few decades to study law.

Law needs detail. And logic. And a good sense of fairness. Detail is what helps uncover the truth, logic ensures the detail is not twisted into an untruth, fairness helps keep us on the lighted path to truth when things turn grey and murky. (c) 2017 @Rod

I'd like to help people sort out their legal problems in way that they can afford. I'd like to contribute something back to our great country and its people before I leave this world. We may have our problems but most of us have helped in one way or another make this one of the best places on the planet to live our lives.

Hope it works out for you.

 

[Rasoir]

Thank you Rod. Uplifting.

That goes down well with me...all the best with your studies.

 

[Rasoir]

Brief Update: Just for the information of anyone needing to know where to start with these smallish Personal Injuries claims.

No Win - No Fee lawyers don't usually get involved in these cases because their costs outweigh any benefits you are likely to receive. Lawyers don't drive Toyotas!

However, after a cursory read of those, I decided the best by far is this one:
http://www.justice.qld.gov.au/__data/assets/pdf_file/0003/26724/Personal_injury_form_1.pdf

The entire document comes as one download, but is designed to be submitted in two parts. The first 14 pages need to be submitted within 9 months to the day of the personal injury occurring.

If the person submitting the claim is unable to complete the form, provision is included for a guardian to complete it.

I did not find it at all difficult to locate the information requested. It was then a matter of copying original documents and then taking it all to a Justice of the Peace for certification of my (photo) ID and signature, as well as verification of true copies of original documents required to be sent.

The respondent (or their lawyer or insurance agent) will get back to you very quickly to advise receipt. Mine was sent by registered snail mail and arrived in a timely manner. They respondent has to advise you of anything amiss in the original claim that may impede finding out what happened, what was the injury, and who treated the injured person.

Part two needs to be completed within one calendar month of notification that Part one has been received. Those 4 weeks go very fast, so you need to get stuck into it to request reports, visit doctors to get reports, and work out what the costs and personal economic loss is to date, and is likely to be in the future.

You can include things like travelling costs, loss of wages/income/business and all medical costs, hospital visit, MRI/X-Rays ... the lot! Don't forget Superannuation is also a cost for the period of economic loss (time off work).

You will need proof of income for past three years (Tax returns) as well as evidence of employment (recent/current payslips.

No need to get into too much detail as it is all set out clearly. I mention these things because you will only have 4 weeks to get it all together, and you have to act immediately to get it all assembled.

If a treating specialist happens to be on holidays, you need to know that in the first few days, otherwise you risk getting into the position of having to submit a late document.

Be organised. Get help quickly if needed. And don't get into side issues. Stick to the facts and keep it all clear, and logically presented with an accurate time-line of events, doctors seen and so on. Follow the instructions.

So that's where I am up to right now - waiting for the respondent to get back to me. They have 6 months from the date of the original submission to investigate, process and make their decision to negotiate, make an offer, or decline to settle.

In that case (declining to settle), we'll be heading for legal adjudication, and that could be expensive, and a very precarious matter to ponder if/when it occurs.

 

[Rod]

Thank you for the update.

 

[Rasoir]

Hope you are still around Rod - further update:

Have received a response one day before the deadline, within which is an assembled statement of facts which will be used by the counsel for the defendant to state their side of things. They note that they "have not made any approaches to the client (me), in accordance with standing orders."

I have been urged to get legal assistance, but this is not available for small Personal Injury claims.
I won't go on about my feelings about that, but there is no chance of my taking this to court without legal representation. I simply could not pay costs should I not succeed.

The final word from the other party's counsel: "We look forward to receiving correspondence from your appointed lawyers as soon as possible so that the progress of this matter is not unnecessarily delayed." Sounds like a taunt, to me. But to them, it is a necessary next step.

Very depressing scene and I'm afraid my best efforts have not been of consequence here.

The case is basically assembled. The facts seem to me to be clear.

There is no guile in my claim. It's just that no one wants to assist in any way - they run for the exits.

Thanks for listening