How to sue for negligence

If you’ve been injured and unable to negotiate the payment of compensation from the person, company or government body who caused or contributed to your injury (“the defendant”) under the various “pre-action processes”, it will be necessary for you to sue respondent in either the Magistrates, District or Supreme Court of Queensland.

Generally, the court process by which an injured person (who is referred to as the plaintiff) sues a defendant is commenced by the plaintiff filing with the court and serving the defendant documents known as a claim and statement of claim.  By these documents the plaintiff is required to set out all relevant facts in relation to:

• the incident by which their injury was caused;
• why they say the defendant is responsible for or contributed to the cause of the injury;
• what loss they say they have suffered and how much compensation they say they should receive from the defendant.

The defendant once served with the claim and statement of claim has 28 days in which to file a defense.  The defendant’s defense must set out:

• whether they accept that they caused or contributed to the cause of the plaintiffs injury;
• whether they accept that they should pay the plaintiff compensation and if so how much;

Assuming the defendant denies some or all of the plaintiff’s claim, the plaintiff will usually file a document known as a reply which sets out any matters arising from the defendant’s defence that the plaintiff wishes to draw the court’s attention to.

Both the plaintiff and defendant must make disclosure by providing one another with all relevant documents to the incident by which the injury was caused, the injury (including medical reports) and the loss suffered by the plaintiff (including financial documents such as tax returns and the like).

Once disclosure has occurred the plaintiff and defendant will ordinarily participate in a mediation which is a negotiation between the parties supervised by a senior barrister who is independent to both the plaintiff and defendants.

If the parties have been unable to negotiate a settlement of the plaintiff’s claim during the mediation the matter will usually proceed to a final hearing before a judge in the court in which the process has been commenced.