Why personal injury files need better notes than most
A personal injury matter can run for years, the client is often unwell when they give instructions, and they usually pay nothing until the end. The first time many clients look closely at costs is the day the settlement money is divided.
The Legal Practitioners' Liability Committee in Victoria publishes a practice risk guide on personal injury litigation. Its advice is blunt: keep detailed file notes of conferences with the client, pay particular attention to the initial conference, check the client understands the advice and record their response, and where a client wants to settle against advice, make a contemporaneous file note of the advice and the client's reasons and confirm it in writing.
The conduct rules point the same way. Rule 7.1 of the Australian Solicitors' Conduct Rules requires clear and timely advice so the client can make informed choices. Rule 7.2 requires you to tell the client about alternatives to a fully contested hearing. Rule 8.1 requires you to follow lawful, proper and competent instructions. For how courts weigh notes against memory, see file notes as evidence.
No win no fee: the costs agreement and the notes that go with it
In the Uniform Law states (NSW, Victoria and Western Australia), a no win no fee retainer is a conditional costs agreement under s 181 of the Legal Profession Uniform Law. The agreement must set out what counts as a successful outcome, be in writing and in plain language, be signed by the client, and include a statement that the client has been told of their right to seek independent legal advice before signing. It must also contain a cooling-off period of at least five clear business days, during which the client can terminate by written notice.
If the agreement includes an uplift fee, s 182 applies. The agreement must identify the basis of the uplift and include an estimate of it, or a range and the major variables if an estimate is not reasonably practicable. In a litigious matter the firm must have a reasonable belief that a successful outcome is reasonably likely, and the uplift must not exceed 25% of the legal costs otherwise payable, excluding disbursements. Section 183 prohibits contingency fees, meaning costs calculated by reference to the amount recovered. Under s 185 an agreement that contravenes these provisions is void, and an uplift charged in breach of s 182 cannot be recovered.
Section 174(3) of the Uniform Law requires the practice to take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action and the proposed costs. That is a conversation, and the only record of it is your note. On a conditional file, record that you explained:
- What 'win' means under the agreement, including whether accepting an offer counts and what happens if the client rejects an offer you recommend.
- What the client pays if the claim fails. Disbursements, and the other side's costs if proceedings are lost, are the two that surprise people.
- The uplift, in dollars on the current estimate, as well as the percentage.
- That costs recovered from the other side will usually be less than the costs the client owes you, and the gap comes out of the damages.
- The cooling-off period and the right to independent advice.
Then record what the client said. 'Client asked whether she pays the barrister if we lose. Explained yes, under clause 7 of the costs agreement, estimated at $4,000 to $6,000. Client said that was OK and she understood' is worth more than a tick in a box. Under s 174(1)(b) disclosure is ongoing, so each time the estimate moves, note the call in which you told the client and their reaction. See costs disclosure file notes for the disclosure provisions in detail.
State differences, at a high level
Personal injury costs are regulated differently around the country and we have only included the points we could check against the legislation or a regulator's own material.
| Jurisdiction | Rule | What to note on the file |
|---|---|---|
| NSW | Legal Profession Uniform Law Application Act 2014, Sch 1: where the amount recovered on a personal injury damages claim does not exceed $100,000, a plaintiff's costs are capped at 20% of the amount recovered or $10,000, whichever is greater. The cap does not limit solicitor-client costs to the extent a complying costs agreement provides for them. | That the cap was explained, and that the client understood the effect of the costs agreement on it. |
| Queensland | Legal Profession Act 2007 (Qld) s 347, the 50/50 rule: in a speculative personal injury claim the practice cannot charge more than half of the amount the client is entitled to receive after deducting refunds and disbursements. The Queensland Law Society has reminded practitioners that it is a cap only and should not be used to calculate fees. | That the rule was explained at the start, and the worked calculation given to the client at settlement. |
| Queensland | Personal Injuries Proceedings Act 2002 (Qld) s 9: a notice of claim is due by the earlier of 9 months after the incident (or first symptoms) and 1 month after the claimant first instructs a law practice and the respondent is identified. | The date of first instructions. It starts a clock. |
Workers compensation, motor accident and transport accident schemes each have their own notice requirements, thresholds and costs rules on top of this. We have not tried to summarise them. In every scheme, record which scheme you identified, which time limits you calculated, and that you told the client.
Limitation period advice
Missed time limits are the classic personal injury negligence claim. The LPLC guide says to advise the client in writing at the start of the retainer of the limitation period and the consequences of missing it, and to calculate and diarise the date as early as possible.
The general provisions are similar in the two largest states. Under s 50C of the Limitation Act 1969 (NSW) and s 27D of the Limitation of Actions Act 1958 (Vic), a personal injury action must be brought within whichever expires first: 3 years from the date the cause of action is discoverable, or 12 years from the act or omission. In Queensland, s 11 of the Limitation of Actions Act 1974 sets 3 years. Different rules apply to minors, people under a disability, dust diseases, child abuse claims and several statutory schemes, and pre-court steps often fall due long before the limitation date.
Because discoverability turns on what the client knew and when, the first attendance note should record the facts that fix the date, in the client's words: when the incident happened, when symptoms first appeared, when a doctor first linked the symptoms to the incident, and when the client first thought someone else might be at fault. Then record the date you calculated, the assumptions behind it, that you told the client, and that it went into the firm's critical dates system.
Offers, settlement advice and instructions
For every offer, in either direction, the note should capture:
- The offer: amount, whether it is inclusive of costs, whether it is clear of statutory paybacks, when it expires, and its form, such as a Calderbank letter or a formal offer of compromise under the court rules.
- The evidence you had when you advised: which medical reports, whether the injury had stabilised, what was still outstanding.
- Your assessment of the range, with the qualifications you gave. The LPLC guide recommends qualifying any advice about value and telling the client it may change as evidence comes in.
- The risks you explained: liability, contributory negligence, credit, the costs consequences of not beating an offer.
- The net figure. What comes out for your costs, disbursements, Medicare under the Health and Other Services (Compensation) Act 1995 (Cth), any Centrelink repayment and compensation preclusion period under the Social Security Act 1991 (Cth), workers compensation or other insurer paybacks, and what the client is likely to receive in hand.
- The effect of the release: that the claim is finished, that it cannot be reopened if the injury worsens, and what else the deed releases.
- Your recommendation, stated as a recommendation.
- The client's instructions in their own words, and their reasons if they are going against advice.
Confirm the advice and instructions in writing the same day where you can. At a mediation, time-stamp each offer. If the client is under 18 or lacks capacity, the settlement will need approval before it binds them, for example under s 76 of the Civil Procedure Act 2005 (NSW) or s 59 of the Public Trustee Act 1978 (Qld). Note that you explained this to the litigation guardian.
Medico-legal appointments
Medico-legal examinations generate a lot of short calls. A missed appointment can cost a non-attendance fee, delay the claim, and under some schemes put the client's entitlements at risk. A one-line note each time is enough:
- Appointment details given to the client: examiner, specialty, date, time, address, who arranged it (you or the insurer).
- What you told the client about the examination: the examiner is not a treating doctor, what they say will be reported, be accurate and consistent about symptoms and work history, mention good days as well as bad.
- That you warned about non-attendance fees and any scheme consequences.
- The reminder call, and the client's confirmation.
- After the report arrives: that you read it, any inconsistencies with earlier reports or the client's statement, and the call in which you took the client through it.
Time recording for costs assessment
A conditional file is still a timed file. Under s 172 of the Uniform Law, legal costs must be fair and reasonable, and proportionately and reasonably incurred. A client, or a third party payer, can apply for costs assessment, and the assessor will look at the work actually done. On a speculative file the bill is often drawn years after the work, by someone who was not there.
Personal injury files are heavy with short attendances: the client checking on progress, the rehab provider, the insurer's claims officer, the GP's rooms, counsel's clerk. Each is a few minutes. Over a long matter they add up, and they are the entries most likely to be missing or challenged. A note that shows date, duration, who, and what was discussed supports both party-party and solicitor-client costs. A time entry that says 'TC client 6 mins' with nothing behind it invites a reduction. We cover the mechanics in capturing billable time from client calls.
Checklist: personal injury file notes by stage
| Stage | What the note should show | What it answers later |
|---|---|---|
| First attendance | Incident, symptom onset and discoverability facts in the client's words; all possible causes of action and schemes identified | Limitation disputes, failure to advise on a claim |
| Limitation advice | Date calculated, assumptions, client told, diarised, confirmed in writing | Missed time limit claims |
| Costs agreement | Win defined, costs if lost, uplift in dollars, cooling-off, independent advice, estimate, the client's questions and answers | s 174(3) understanding and consent, s 181-182 compliance, costs disputes |
| State costs cap | NSW Sch 1 or Qld 50/50 rule explained where it applies | Overcharging complaints |
| Medico-legal | Details given, warnings, reminder, report reviewed with the client | Non-attendance fees, delay, evidence gaps |
| Each offer | Terms, evidence held, range, risks, net-in-hand figure, release, recommendation | Under-settlement and 'I was pressured' claims |
| Instructions | the client's words, reasons if against advice, confirmed in writing | ASCR r 8.1, authority to settle |
| Legal incapacity | Approval or sanction requirement explained to guardian | Validity of the settlement |
| Every attendance | Date, start and finish, who, what was discussed | Costs assessment |
For a firm-wide version covering general file obligations, use the law firm file note compliance checklist.
Worked example note
The client, the matter and every figure below are invented.
- Why we called
The defendant made a formal offer of compromise on 11 March: $165,000 plus costs, as agreed or assessed. It is open for 28 days.
- Evidence we hold
- Our orthopaedic surgeon, Dr A (February 2026): 14% whole person impairment. Right knee stable. Possible total knee replacement in 10 to 15 years.
- The defendant's medical examiner, Dr B (January 2026): 8% whole person impairment. No future surgery.
- Treating physiotherapist's notes up to December 2025.
- Tax returns for 2020 to 2025.
- No vocational report yet.
- What the claim is worth
Likely $190,000 to $240,000 if liability is fully proved. Told Daniel this is an estimate and could move either way depending on the evidence at the hearing.
- Risks explained
- Partly to blame: CCTV shows Daniel was on his phone when he fell. There is a real risk the court finds him partly responsible (contributory negligence), likely by 15% to 25%. At 20%, the range drops to about $150,000 to $190,000.
- Cross-examination: Dr B's report will be put to Daniel in court, about his gym attendance.
- Costs if he rejects the offer: if he does not beat $165,000 at the hearing, he is likely to pay the defendant's costs from the date of the offer, and lose the costs the defendant would otherwise pay him for that period. Explained what that means in dollars: an estimated swing of $40,000 to $60,000.
- What he would take home
On $165,000 plus the defendant's contribution to his costs, less our costs under the costs agreement (the gap is estimated at $18,000 to $22,000), less the Medicare repayment on its notice ($3,100), less the Centrelink repayment (estimated at $9,000, updated notice still to come). Estimated in hand: $130,000 to $135,000. A Centrelink preclusion period will apply, so Daniel is to ask Centrelink how long it will be. We will confirm these figures in writing.
- Settlement is final
A settlement is full and final. He cannot come back for more if the knee gets worse or he needs the knee replacement sooner.
- Our recommendation
Counter-offer at $200,000 plus costs. We would recommend accepting anything at or above $180,000.
- What Daniel said
'I can't do another year of this. If they come up a bit I'll take it.' He asked whether he has to go to court if there is no deal. Explained the hearing is listed for August 2026, he would give evidence, and he would be in the witness box for about a day.
- Daniel's instructions
- Counter-offer at $200,000 plus costs.
- Authority to settle at $180,000 plus costs or better, without calling him again.
- Anything below $180,000, come back to him.
- He repeated the figures back correctly.
- Next steps
- Letter to Daniel today confirming the advice and his instructions.
- Counter-offer to the defendant tomorrow.
- Chase the updated Centrelink notice.
The note shows the evidence the advice was based on, the range and its qualifications, the net-in-hand figure, the release, the recommendation, and the instructions in the client's words. If this client complains in three years that he was pushed to settle, the note answers it.
Getting the notes made on a high-volume practice
Personal injury practices run on volume. The settlement advice note gets skipped because the next call is already ringing, and the note written at 5pm is two lines.
If your phone or meeting system already produces a transcript, CallNote turns that transcript into a structured attendance note in your firm's own format in about two minutes. It receives transcripts automatically from Dialpad, Aircall and Microsoft Teams meetings, or you can paste one, upload a .vtt or .txt export from Teams, Zoom or Meet, or forward it by email. For an in-person conference you can dictate a voice memo afterwards. CallNote never records calls, never joins a meeting and never stores call audio. You review the draft, fix it, then publish it. A published note is sealed with a checksum, and any later change shows as a dated amendment with an audit trail.
There is no native integration with LEAP, Smokeball or Actionstep. Notes go across by copy and paste, PDF, or Zapier where your system supports it. The note is still yours to check. A draft that gets a WPI figure or an offer amount wrong must be corrected before it is lodged.
You can try the format with the free attendance note generator, or see how it fits a practice on the for law firms page.
Common questions
What should a personal injury lawyer record in a file note?
Record the date, time, duration and who was on the call, the facts or update the client gave, the advice you gave with its qualifications, the client's response, and their instructions in their own words. On a personal injury file the critical notes cover the costs agreement explanation, the limitation date, medico-legal appointments, every offer and the advice on it, and the instructions to accept or reject.
What are the requirements for a no win no fee costs agreement in Australia?
In NSW, Victoria and Western Australia, s 181 of the Legal Profession Uniform Law requires a conditional costs agreement to define a successful outcome, be in writing and plain language, be signed by the client, state that the client was told of their right to independent legal advice, and include a cooling-off period of at least five clear business days. Other states have their own legislation, such as the Legal Profession Act 2007 in Queensland.
How much can the uplift fee be on a no win no fee matter?
Under s 182 of the Legal Profession Uniform Law, an uplift fee in a litigious matter must not exceed 25% of the legal costs otherwise payable, excluding disbursements, and the practice must reasonably believe a successful outcome is reasonably likely. The agreement must identify the basis of the uplift and include an estimate. Fees calculated as a share of the damages are prohibited by s 183.
What should I note when a client settles against my advice?
Make a contemporaneous note of the offer, the evidence you held, your assessment of the range, the risks explained, the net amount the client would receive, the effect of the release, your recommendation, and the client's reasons for settling in their own words. Then confirm it in writing. The LPLC personal injury risk guide recommends exactly this, because settlement claims are hard to defend without it.
What is the limitation period for personal injury claims in Australia?
It depends on the state and the type of claim. In NSW (Limitation Act 1969 s 50C) and Victoria (Limitation of Actions Act 1958 s 27D) the general rule is the earlier of 3 years from when the cause of action is discoverable and 12 years from the act or omission. Queensland sets 3 years under s 11 of the Limitation of Actions Act 1974. Statutory schemes, minors and some claim types have different rules and earlier notice deadlines.
Do I need to record time on a no win no fee file?
Yes. Costs must still be fair and reasonable under s 172 of the Legal Profession Uniform Law and can be assessed. On a conditional file the bill is often drawn years after the work was done, so the attendance notes and time entries are the only proof of the work. Short calls with clients, insurers and treaters are the entries most often missing.