My lawyer only speaks legalese!
Your guide to turning common injury claim legal terms into plain English.
The terms that your lawyer uses during a personal injury claim can be very confusing
for those of us that aren’t lawyers, yet lawyers seem to use them all the time. Part of
the reason that some lawyers will use this legal jargon or ‘legalese’ is because a word or
phrase can have a very specific meaning in law that is different when used outside of
the legal context.
Many legal terms have been around for hundreds of years, which is why many terms sound so antiquated and old. Sure, some legal enthusiasts may find this language charming, but it can be very confusing for people who are not familiar with these legal terms.
Below is a list of terms commonly used in a personal injury claim and what, in plain language, they mean:
Act of God is a phrase used to describe an event or happening that is outside of the
control of any human and for which nobody can be held responsible.
Affidavit is a written statement by somebody that is made under oath (i.e. sworn on the bible) or by affirmation and is typically for use in court proceedings.
Burden of Proof is the responsibility borne by one of the parties in a legal dispute to actually prove the claims that they are making (as opposed to the other party/parties to a dispute who only has to respond to the claims made against them). In a personal
injury claim, the Claimant/Plaintiff bears the Burden of Proof and must prove their case
on the ‘balance of probabilities’, that is, that it is more probable than not that what the
Claimant/Plaintiff says happened is true.
Causation refers to the relationship between the negligence and the loss or injury that
you have suffered, that is, you need to show that the other party’s negligence caused
your injury and that your injury caused the loss that you are claiming.
Claimant is the person making a personal injury claim.
Compulsory Conference is an informal meeting between the parties in an attempt to
try and settle or resolve your claim that is mandatory for both parties to attend and
participate in. A Compulsory Conference will be held before the parties can commence
court proceedings.
Contributory Negligence is a term used, usually by a Respondent/Defendant when
defending your claim, to describe your own negligence that caused or contributed to
your injuries.
CTP is short for Compulsory Third Party. CTP is usually used to refer to a CTP claim
which is a motor vehicle accident claim made against the other party’s CTP insurer. CTP
insurance is the insurance paid with your vehicle registration to insure against the
damage that you might cause to other people (personal injury) while driving your
motor vehicle (as distinct from the damage that you might cause to another person’s
property).
Damages is the word used to describe money that a court may award you if you are
successful in your claim. The fundamental principle is that you should be awarded
such sums of money as will restore you to the position that you would have been in if
you had not been injured (so far as money can restore you to the health that you
enjoyed pre-injury). Damages should be assessed so that they represent no more and
no less than your actual loss. Your actual loss is not restricted to your loss from the
date of injury to the date of resolving your claim – it can also include losses that you are
more likely than not going to incur in the future.
Deemed means to be ‘treated as’. For example, if your claim is ‘deemed’ compliant it is to be treated as if it is compliant.
Defendant is the term used to describe the person or party against whom your claim is made. The term Defendant is usually only used once court proceedings have been
filed. Prior to that time, the Defendant is usually referred to as the Respondent.
Disbursement is money paid out on your behalf by another person.
Disclosure is the process in which all of the documents that are relevant to your claim
are exchanged with the other party. Disclosure, as a process, is intended to prevent
surprise at the trial and encourage the resolving of your claim at an early stage.
Discovery is a formal procedure, similar to disclosure, in which all of the documents that are relevant to your claim are exchanged with the other party, generally after
court proceedings have been filed but before the case comes on for hearing.
Duty of Care is a moral or legal obligation to ensure the safety or well-being of others.
Fifty/Fifty (50/50) Rule refers to the rule found at section 347 of the Legal Profession Act 2007. The 50/50 rule sets a cap on the professional fees that you can be charged in
your personal injury claim. It means that the maximum amount that your lawyer can charge you is 50% of any of the monies remaining in your settlement or judgment amount after the deduction of any statutory refunds and disbursements.
Filing refers to the delivery and lodging of a document at court.
Finding is the determination of a factual issue (usually by a Court or Tribunal).
Inadmissible means that it is not allowed to be used as evidence in your claim.
Instructions are the directions given or information and materials provided by you to your lawyer throughout the course of your claim.
Jurisdiction means the authority of a court to decide or make findings on matters
brought before it. It can also refer to the physical/geographical limit within which a
court order can be enforced.
Legal Capacity means the cognitive ability to understand and give instructions in relation to a legal matter. For example, a child does not have legal capacity.
Liability in the context of a personal injury claim refers to a party being held legally responsible for your injury. If you do not prove liability in your claim, that is, show that
the other party is responsible for your injuries, then you will not win your claim for damages.
Litigation usually refers to the stage at which court proceedings are commenced in a
personal injury claim.
Magistrate is a judicial officer presiding over a Magistrates Court.
Mediation is a meeting designed to help resolve your dispute where an impartial third
party (‘the Mediator’) helps the parties to see if they can communicate and negotiate an outcome that both parties are happy with, but without actually making any findings or formally deciding the outcome of the dispute.
MFO is short for Mandatory Final Offer. In Queensland, parties to a personal injury
claim are required to make a written MFO at the conclusion of an unsuccessful Compulsory Conference. The MFO is supposed to represent each party’s ‘best’ or final offer before commencing court proceedings (although it is often not each party’s final offer).
MVA is short for motor vehicle accident.
Negligence is a term that refers to the failure by someone to take care toward others which a reasonable person would do in the same or similar circumstances.
Particulars refers to the more precise details of your claim as opposed to a generalisation. For example, you can say generally that you have been injured, but the particulars of your injury may be that you have suffered a fracture to your L5 vertebrae
(one of the bones that makes up your spinal column).
PIPA is an acronym for the Personal Injuries Proceedings Act 2002. This is the Act or piece of legislation that regulate how personal injury claims are managed in Queensland. A lot of lawyers will refer to a public liability claim as PIPA claim (as distinct from a WorkCover claim or a motor vehicle accident claim).
Plaintiff is the term used to describe the person who makes a claim for personal injury and is usually only used once court proceedings have been filed. Prior to that time, the Plaintiff is usually referred to as the Claimant.
Pleadings are formal written statements that set out your case for the court.
Pre-existing usually refers to an injury or condition that existed at any time prior to the accident that is the subject of your personal injury claim.
Quantum refers to the amount of money or damages that might be awarded in your claim (i.e. what your claim might be worth or how much compensation you can expect to receive).
Respondent is the person or party against whom your claim is made.
Service refers to the specific way that you are required to provide or deliver a legal document to another party so that the court can be satisfied that the other party has
received it or is aware of it.
Stable and Stationary refers to the status of your injury, specifically at the point where your injury has plateaued and, no matter what further treatment is provided, will not get any better. It is at this stage that your injury can be assessed by a medical
specialist to determine the level (if any) of permanent impairment that you may have.
Subpoena is a formal legal document that compels the attendance of a person at court or requires the production of documents to a court.
Without Prejudice is a form of privilege that will generally prevent statements or
offers that are made in a genuine attempt to settle your claim, whether made orally or in writing, from being shown to the court. The Without Prejudice rule is designed to allow parties to speak freely, to facilitate the settlement of a matter without the need to commence or continue court proceedings, in the knowledge that those statements or offers may not be used against them should the settlement discussions fail.
WorkCover Queensland is the workers’ compensation insurer established by the
Queensland Government to provide workers’ compensation benefits for Queensland workers who are injured in the course of their employment.
Contact us with any questions
Here at TPIL Lawyers, we’re happy to help you with any claim you might be considering. We’ll explain the terms and more importantly, help you win your case on a no win, no fee basis. Feel free to contact us with any questions.
