Speaking about the Victorian experience, Ms Hotchin explained that there are numerous challenges at present with regards to the hearing of claims of serious injury, given that there cannot be appearances in person in courtrooms.

“The pandemic has understandably caused disruption and delays, but the County Court is adapting by hearing matters via Zoom. As part of this process, the injured person is asked to sit in a room in front of a computer screen by themselves. This is to avoid any allegation they are being ‘coached’ in the witness box,” she said.

“I do wonder whether clients could be unfairly judged when giving evidence or being cross-examined via video link if they are not looking at the camera or their responses are delayed. Our barristers are expected to cross-examine to a screen. They need to ensure they are not on mute and have a speedy internet connection so they don’t miss vital evidence.”

When asked how and why serious injury applications are an important step in securing and determining both no-fault workers’ compensation benefits and initiating civil lawsuits where negligence or blame can be established, Ms Hotchin said that the Victorian legislation allows injured people to claim no-fault benefits regardless of the extent of their injury.

However, she noted, in order to sue for damages, like pain and suffering or economic loss, an injured person must demonstrate they have sustained a serious injury.

“The first step is to apply to either the Transport Accident Commission or Victorian WorkCover Authority. If the authority rejects this application, the only way to be granted leave to sue for damages is by order of the court. It doesn’t matter if the injury was someone’s fault, unless and until you have a serious injury certificate, your hands are tied.”

In light of all this, there are a number of steps that lawyers working in this space can take to ensure that applications currently running can proceed smoothly, in their ongoing support of clients.

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“The biggest thing plaintiff solicitors can do is to ensure their client understands this is a court case and they need to treat it as one even though they are in a room in front of a computer. They need to give evidence down the barrel of a camera,” she advised.

Moreover, Ms Hotchin made the following recommendations: “Prior to commencing the matter, provide the witness with a copy of the relevant documents and show them where the page numbers are. When the barrister takes them to that piece of evidence, they can navigate it without the helpful court staff present to guide them.

“Advise the witness that when they are in the middle of cross-examination the solicitor cannot speak with them, even if the matter is adjourned. Ensure the room is not accessible to others. If anyone does enter the room, the matter needs to be stood down and reconvened when the disruption is removed.

“Ensure you have a separate laptop for your witness, so that you can be logged on in another room and document the evidence.

The meeting commences with the parties present together with the judge’s associate. The judge then enters the meeting as they would enter a courtroom. There is no expectation for bowing or standing, but to ensure that formal address is still maintained.

“Make sure your barrister is not on mute, so if they need to object, they can do so in a timely manner. Instructing solicitors should arrange a communication mechanism with their counsel so they can properly instruct. This may be through SMS, WhatsApp, messenger, or email.

“Have a laptop or desktop computer as the court is now requesting the parties seek leave to appear through a mobile device. [And] you may need to use an old-school pen and paper to take notes, unless you have multiple screens.”

Given that all industries are expecting to pivot in this unprecedented time, lawyers working in this space must ensure that they embrace technology and get ahead of the pack, Ms Hotchin concluded.

“We don’t have to fear it. In my office we have now run two serious injury applications in the County Court online. We need to be flexible, if the internet drops out, we need to be able to hotspot from our mobiles,” she outlined.

“But we can get through this. It isn’t really that much different from appearing in court, except that lawyers can now get away with wearing a suit jacket with track pants.”