Assessing liability in a personal injury claim
A liability assessment is the first step after intake. It tests whether there is a reasonable prospect of establishing duty, breach, causation, and damage, and whether any limitation, contributory, or threshold issues will defeat the claim.
This is an 8-step workflow for assessing liability in a NSW personal injury claim under the Civil Liability Act 2002 (NSW) Part 1A and related legislation.
Before you start
- Client intake complete
- Incident description documented
- Medical records request consent
- Preliminary copy of any incident report or claim form
The workflow
Identify duty of care
Identify whether the defendant owed a duty of care to the claimant. Classify the duty type (employer, occupier, motorist, medical practitioner, public authority).
Assess breach
Assess the standard of care and whether the defendant's conduct fell below that standard applying the calculus of negligence.
Analyse causation
Analyse factual and legal causation using the two-step process under s 5D. Consider any intervening events or pre-existing condition issues.
Check limitation and notification periods
Check any applicable limitation and notification periods — 3 years for personal injury under the Limitation Act, plus claim form deadlines under MACA or workers compensation.
Apply statutory schemes
Apply the statutory scheme — Motor Accidents Injuries Act, Workers Compensation Act, Civil Liability Act — and assess thresholds and caps on damages.
Assess contributory negligence
Assess the likely contributory negligence reduction under s 5R. Consider intoxication and failure to wear a seatbelt statutory presumptions.
Document the assessment
Document the assessment in a memo covering duty, breach, causation, quantum range, and recommendation to accept or decline the file.
Communicate outcome to client
Communicate the outcome in writing to the client — either a costs agreement and next steps, or a declinature letter explaining why the claim is not viable.
What you will have at the end
A documented liability assessment that supports the decision to accept or decline the claim and, if accepted, sets the strategic direction for investigation and proceedings.
Common issues
- Overlooking statutory notification deadlines under MAIA or workers compensation
- Not addressing the calculus of negligence factors in s 5B
- Treating factual causation as legal causation
- Missing the public authority defence under s 43A
- Underestimating contributory negligence in intoxication cases
Run this workflow on a real matter
Quillio drafts the liability assessment memo, mapping the evidence to the Civil Liability Act framework and scheme thresholds. See /practice-areas/personal-injury-lawyers or start a free trial.
This workflow is a general guide for NSW. Other jurisdictions have different personal injury legislation and thresholds.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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