Division 2 Personal injury cases

15.12   Particulars required for proceedings generally

(cf DCR Part 9, rule 27 (2)–(5))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any event (the accident), other than a claim that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor, a statement accompanied by the following documents:

(a)  copies of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:

(i)  hospital, medical and similar accounts, and

(ii)  letters from a workers’ compensation insurer indicating moneys paid to or for the plaintiff, and

(iii)  letters from employers, wage records, income records and group certificates, and

(iv)  reports, award rates and correspondence relied on to support any claim in respect of domestic assistance or attendant care,

(b)  copies of all hospital and medical reports available at the time of serving the statement on which the plaintiff intends to rely at the hearing.

(3)  The statement must set out the following particulars:

(a)  particulars of injuries received,

(b)  particulars of continuing disabilities,

(c)  particulars of out-of-pocket expenses.

(4)  If the statement makes any claim in respect of domestic assistance or attendant care, it must also set out full particulars of the claim.

(5)  If the statement makes any claim in respect of loss of income, it must also set out the following particulars:

(a)  the name and address of each employer during the 12 months immediately before the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(b)  the name and address of each employer since the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(c)  the amount claimed in respect of loss of income to the date of the statement (by comparison between what the plaintiff has earned since the accident and what the plaintiff would have earned but for the accident) setting out, in respect of what the plaintiff would have earned but for the accident, including, where appropriate:

(i)  particulars of the earnings of comparable employees and the identity of those employees, or

(ii)  particulars of any payment that the plaintiff would have received under a relevant award or industrial agreement, together with the title of that award or industrial agreement,

(d)  particulars of any alleged loss of earning capacity and future economic loss,

(e)  if the plaintiff is self-employed or has been self-employed at any time during the 12 months immediately before the accident, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income.

(6)  If the statement makes any claim in respect of loss of income, it must also be accompanied by the following documents:

(a)  a letter from the employer or employers (if any) of the plaintiff immediately before the accident the subject of the proceedings, providing particulars of:

(i)  the dates on which the plaintiff was absent from work due to the accident, and

(ii)  the total net remuneration lost by the plaintiff in respect of that absence, including overtime, and

(iii)  if the plaintiff returned to work for that employer, the plaintiff’s classification and duties, and any alteration in the remuneration paid to the plaintiff, after that return, and

(iv)  if that employment has been terminated, the date of and reason for the termination,

(b)  if the plaintiff was self-employed immediately before the accident, copies of any accountants’ reports or other documents on which the plaintiff intends to rely to establish his or her pre-accident income,

(c)  copies of the plaintiff’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of the accident, together with copies of any income tax returns lodged by the plaintiff since the date of the accident.

(7)  If any, or any part of, any document required to be served by subrule (6) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

15.13   Particulars required for proceedings under Compensation to Relatives Act 1897

(cf DCR Part 9, rule 27 (6) and (7))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any act, neglect or default (the accident) that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor, in respect of each person on whose behalf the proceedings are commenced, a statement accompanied by the following documents:

(a)  a copy or extract of the person’s birth certificate and, if the person has been married, a copy of the person’s marriage certificate,

(b)  a letter from the employer (if any) of the deceased person immediately before the accident, providing particulars of the deceased person’s remuneration and prospects of promotion at the date of his or her death,

(c)  copies of the deceased person’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of his or her death,

(d)  copies of any bank statements, financial records or other documents on which the plaintiff intends to rely to establish the extent of the support and other benefits provided to the person by the deceased person, covering a period of not less than 12 months immediately before the date of the death of the deceased person,

(e)  copies of all documents, including accounts and receipts, in support of any claim for the cost of a funeral or headstone or for any other expenses relating to the deceased person’s death,

(f)  copies of documents evidencing the net value of the estate of the deceased person.

(3)  The statement must set out the following matters:

(a)  the person’s name, address, relationship to the deceased person the subject of the proceedings, marital status and any anticipated alteration to that status,

(b)  whether the dependency of the person on the deceased person, or the reliance by the person on services provided by the deceased person, is claimed to have been whole or partial, the circumstances in which the person received support or services from the deceased person, and the quantum of that support or those services during the 12-month period immediately before the death of the deceased person.

(4)  If any, or any part of, any document required to be served by subrule (2) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

15.14   Statements, documents and reports to be complete

(cf DCR Part 9, rule 27 (8)–(10))

(1)  The statement and documents required by rule 15.12 or 15.13 to be served:

(a)  must be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence, be made, and

(b)  must contain such information as the plaintiff can then provide as to any medical examination of the plaintiff to be conducted after the date of service.

(2)  As soon as practicable after becoming aware that any information contained in a statement or document that has been served as required by rule 15.12 or 15.13 is no longer accurate and complete as regards the plaintiff’s claim, the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete.

(3)  If the plaintiff gives advice as referred to in subrule (2), the court may direct the plaintiff to file an amended statement of particulars.

(4)  Unless the court orders otherwise, the plaintiff must file a copy of the final statement of particulars at least 42 days prior to the date fixed for hearing or arbitration of the proceedings.

(5)  Subject to subrules (3) and (4), an amended statement of particulars may not be filed except by leave of the court.

15.15   Provision of schedule of documents and reports

(cf DCR Part 9, rule 27 (10A))

On the first occasion on which the parties are required to appear before the court, each party to the proceedings must provide to the court:

(a)  a schedule of all the documents served by the party as required under this Division (including the dates of service of the documents), and

(b)  a schedule of any documents that the party will seek the leave of the court to file in the future and the expected date of service of such documents or reports.

15.16   Effect of failure to comply with Division

(cf DCR Part 9, rule 27 (11))

If, after conducting a review or status conference or otherwise, the court is of the opinion that the plaintiff has not sufficiently complied with the requirements of this Division, the court may dismiss the proceedings or make such other order as it thinks fit.

15.17   Division not to apply in certain circumstances

(cf DCR Part 9, rule 27 (1))

This Division does not apply to a claim that is accompanied by:

(a)  a notice of motion seeking a separate trial on the question of liability, or

(b)  a notice of motion seeking an order to defer the application of this Division to the proceedings.