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PERSONAL INJURIES PROCEDURES BILL 2002

           Personal Injuries Procedures Bill

                          Circulation Print

              EXPLANATORY MEMORANDUM


Clause 1   sets out the purposes of the Bill.

Clause 2   sets out the proposed commencement of the Bill.
           Clause 2 provides for the Bill to come into operation on a day to
           be proclaimed or on 1 January 2004 if it has not been proclaimed
           before then.

Clause 3   sets out the definitions used in the Bill.

Clause 4   sets out that the Bill applies to all claims for death or personal
           injury even if the claim is based on breach of contract or any
           other form of action, except the following--
             ·      those deaths or injuries which arose from intentional
                    torts, for deaths or example sexual assault or sexual
                    misconduct;
             ·      claims by or on behalf of a person under a disability,
                    that is a minor or a handicapped person;
             ·      claims under statutory compensation schemes; and
             ·      claims belonging to a class of claim exempted under the
                    regulations.
           This clause also clarifies that the Bill applies to any claim for
           death or personal injury regardless of the form of action.
           Consequently, the Bill applies whether the claim is based in
           negligence, breach of contract or breach of statutory duty.

Clause 5   sets out the obligations of the parties to a claim to attempt to
           settle a claim prior to commencing court action and to fully
           inform themselves of the circumstances in which the claim arose,
           the defence and the value of the claim.




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541348                                          BILL LA CIRCULATION 1/11/2002

 


 

Clause 6 requires a claimant to provide the respondent with a notice of claim prior to commencing a proceeding in a court. A claimant may only give notice-- · if his or her medical practitioner reports that the injury is stabilised; or · the relevant limitation period will expire within the next 12 months; or · the claim relates to the death of an individual. The notice of claim must be in the prescribed form and contain the following information-- · details of the incident which caused the death or injury which is the subject of the claim; · how the incident caused the death or injury; · the medical treatment and rehabilitation services that the claimant required as a result of the death or injury; · any information relevant to the claim from the claimant's medical history and any other claims for personal injury damages made by the claimant; and · details of the claim for economic loss, non-economic loss and medical and like expenses. Clause 7 provides that the respondent must provide a response to the notice of claim within 30 days of receiving the notice. Sub-clause (2) provides that the respondent must respond in the prescribed form and can respond in one of the following ways-- (a) by stating that he or she is the proper respondent and providing a statement as required by clause 8; or (b) if the respondent is unsure from the notice of claim whether he or she is the proper respondent, by requesting further information from the claimant in order to determine whether he or she is the proper respondent; or (c) by stating that he or she is not the proper respondent, providing reasons for this belief and giving any further information that may assist the claimant in identifying the correct respondent. Sub-clause (3) provides that a response that the respondent is the correct respondent is not an admission of liability in relation to the claim. 2

 


 

Sub-clause (4) provides that where a respondent has requested further information from the claimant, the claimant must provide the respondent with the information which is reasonably required. The respondent must then provide a response in accordance with sub-clause (2)(a) or (c) within 30 days. Sub-clause (5) provides that where a respondent advises the claimant that he or she is not the proper respondent, the claimant must provide a notice to the respondent which states-- (a) on the information available to the claimant, the claimant believes that the respondent is not the proper respondent; or (b) the claimant considers the respondent to be the proper respondent and requires the respondent to make a statement under clause 8. Sub-clause (6) provides that a notice under sub-clause (5)(a) does not prevent the claimant from giving a notice of claim to a respondent at a later time. Clause 8 provides that where a respondent responds to a notice of claim in accordance with clause 7(2)(a) or clause 7(5)(b) the respondent must give the claimant a statement in writing that he or she is satisfied that the notice of claim meets the prescribed requirements, or if it does not comply, how it fails to comply and whether the respondent is willing to waive compliance with the requirements. Sub-clause (2) provides that if the notice of claim does not meet the prescribed requirements of clause 6(4) and the respondent is not prepared to waive compliance, the claimant must remedy the non-compliance within 21 days of receiving the statement provided by the respondent under sub-clause (1). Clause 9 provides that if the respondent does not respond to a notice of claim, the notice is deemed to comply with the requirements in clause 6(4) and the parties must immediately proceed to the exchange of written offers provided for in clause 19(7). Clause 10 provides that once the respondent has notified the claimant that he or she is the proper respondent or the claimant has advised the respondent that he or she is considered to be the proper respondent, the relevant limitation period in the Limitation of Actions Act 1958 or the Wrongs Act 1958 is suspended. The limitation period does not start to run again until 3 months after the claimant's acceptance or rejection of the respondent's written final offer or, if the matter has settled earlier, the date of settlement. This is to allow the parties to engage in the procedures in the Bill prior to having to issue proceedings. 3

 


 

Clause 11 provides that the claimant may add other respondents to the claim by giving them a notice of claim and copies of documents exchanged with other parties to the claim. Any additional respondents must provide a response to the notice of claim in the same manner as the initial respondent. Clause 12 provides that in a claim where there is more than one respondent, one of the respondents may act as the "respondents' claim manager" on behalf of some or all of the respondents. The respondents' claim manager will exercise powers and perform the duties conferred by the Bill and must act with the agreement of the other respondents as far as practicable. Action taken by the respondents' claims manager on behalf of the other respondents is binding on the other respondents insofar as it affects the claimant. If the respondents' claim manager acts beyond the scope of his or her agreed authority, the respondents' claim manager is liable to the other respondents he or she represents for any loss suffered by the other respondents. Clause 13 provides that a respondent may join a contributor by giving them a notice claiming an indemnity for or contribution towards any liability the respondent may have and the grounds on which the respondent holds the contributor liable. The respondent is required to provide the contributor with copies of documents about the claim which the respondent has given or received from parties to the claim. Clause 14 provides that a contributor must give to the respondent who provided him or her with the contribution notice, a written response within one month after receiving the notice. The response must state the following-- (a) the name, address and business or company details of the contributor; (b) details of the contributor's legal representative; (c) whether the claim in the contribution notice is admitted, denied or admitted in part; and (d) if the claim is admitted in part, to what extent it is admitted. Sub-clause (2) provides that if the contributor's response contains an admission of liability, that such an admission is not binding on the contributor in relation to any other claim and is not binding on the contributor if the admission was induced by fraud. 4

 


 

Clause 15 allows the respondent and claimant to arrange jointly for an expert report for the following-- · the cause of the incident which caused the death or injury and the persons who may be responsible for, or contributed to, the incident; · the claimant's medical condition and prognosis; · the claimant's cognitive, functional or vocational capacity. Sub-clause (2) provides that the parties must agree on the expert who is to provide the report and that the expert must have qualifications and experience in the relevant field. The expert report must be provided to each party by the expert. Sub-clause (4) requires the respondent to reimburse the claimant for the reasonable cost of obtaining the report where the claimant is liable for obtaining the report. This is subject to any agreement between the parties. Clause 16 provides that if a respondent wants to obtain an expert report pursuant to clause 15 but the claimant refuses, the respondent may request the claimant to submit to the following at the respondent's expense-- (a) a medical examination. The respondent may nominate a panel of three doctors with appropriate expertise from which the claimant is to choose; (b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel nominated by the respondent. Sub-clause (2) requires the claimant to comply with the request for examination unless the respondent's request is unreasonable or unnecessarily repetitious. Clause 17 requires all parties to a claim to provide other parties with the following-- (a) all information and documents which a party holds that are relevant to assessing claim liability or the value of the claim; and (b) a statement as to whether there are documents that a party once held but no longer holds. The party must also advise where they now believe these documents are held. Sub-clause (2) provides that clause 17 does not apply to legal advice obtained in anticipation of legal proceedings on the claim 5

 


 

or for the purposes of the pre-litigation procedures required in this Bill. Clause 17 does not apply to information or documents that are not admissible before a court or tribunal under any other Act. Sub-clause (3) requires the following information and documents to be provided-- · reports about the incident which caused the injury or death; · reports about the claimant's medical condition and prognosis; · reports about the claimant's cognitive, functional and vocational capacity; · information about any medical and like services that the claimant has received; · relevant details of the claimant's medical history including details about other injuries or claims for personal injury damages; and · information about the claim for economic loss and non- economic loss. Sub-clause (4) states that a party is not required to give information to a party to whom it has already supplied the information. Sub-clause (5) requires parties to have provided all information 42 days after the last notice of response, whether it is from a respondent or contributor, and to certify in writing that the documents listed have been provided. Sub-clause (6) states that a party must exchange any other information or documents which it obtains after the certification has been provided in sub-clause (5). Sub-clause (7) provides that if a party fails to exchange the information and documents required by clause 17, the party is deemed not to have made a written final offer and be liable for costs resulting from the failure. Sub-clause (8) provides that if a party fails to produce a document, the document may not be adduced in evidence in a later court proceeding based on the claim. The document may however be adduced if the other parties agree or the court orders that it may be adduced. 6

 


 

Sub-clause (9) imposes a penalty on a party who misuses the information provided or exchanged pursuant to the Bill without the consent of the party who provided the information. A penalty of up to 60 penalty units ($6000) may be imposed. This is consistent with the provisions of the Information Privacy Act 2000 which impose penalties for misuse of information. Clause 18 requires all parties to the claim to attend and participate in a conference in an effort to settle the claim. The conference is to be arranged between the parties at a time and place on which they agree. The conference must be commenced within 90 days of the last response from a contributor or respondent and be completed within 60 days of its commencement. The parties have 60 days in which to complete the conference as conferences may be adjourned from time to time, particularly in the more complex personal injury matters. Sub-clause (3) provides that if the conference is not commenced within this time frame then the parties must immediately proceed to the exchange of written offers provided for in clause 19(7). Sub-clause (4) provides that the parties must, unless it is unreasonable to do so, attend the conference in person. If it is unreasonable for a party to attend, the party may be represented by a person who has the authority to negotiate a settlement on his or her behalf. Sub-clause (5) provides that, if a party has legal representation, they must attend the conference with a statement of the costs they have incurred up until the commencement of the conference and the costs it is anticipated they will incur if the matter proceeds to trial. This ensures that the parties are aware of their positions with respect to costs. Sub-clauses (6) and (7) provide that the parties may appoint a mediator to oversee the conference. An agreement to appoint a mediator must specify how the costs of the mediation are to be apportioned between the parties. Sub-clause (8) provides that the parties may change or adjourn the time or place of the conference provided that it is still commenced within 90 days of the last response and completed within 60 days of commencement. 7

 


 

Clause 19 applies if a claim is not settled at the compulsory conference. Sub-clause (2) provides that all offers made under this clause are open for 14 days, except further or counter offers made pursuant to sub-clause (11). Sub-clause (3) provides that offers made under this section must specify what component of the offer is for damages and what component is for costs, except for those offers made pursuant to sub-clause (6). Sub-clause (4) provides that if a respondent denies liability for the claim, the written offer is to be expressed as $nil. Sub-clause (5) provides that a claimant cannot commence court proceedings while a written offer remains open. Sub-clause (6) provides that within 7 days of the completion of the conference, respondents and contributors must give each other offers to contribute towards settlement of the claim. These offers must be exclusive of costs and may be subject to any conditions specified in the offer. Sub-clause (7) provides that within 7 days of the last offer, the claimant and respondent must exchange written offers to settle the claim. Sub-clause (8) provides that if there are 2 or more respondents, the claimant may make a written offer to settle with any respondent and likewise, any respondent may make a written offer to settle with the claimant. Alternatively, sub-clause (9) provides that, if there are 2 or more respondents, the claimant may make a written offer to all of the respondents to settle the claim. Likewise, the respondents may make a written offer to the claimant to settle the claim. Sub-clause (10) provides that respondents who make an offer in this manner are jointly and severally liable for the whole amount of the offer. Sub-clause (11) provides that, within 14 days of these initial offers, the parties may exchange further or counter offers. However, on the expiry of the 14 day period, the claimant must give the respondent a written final offer to settle the claim. The respondent has 14 days to accept or reject the claimant's offer pursuant to sub-clause (12). 8

 


 

Sub-clauses (13) and (14) provide that if the respondent does not accept the claimant's final written offer, he or she must give the claimant a final written offer to settle the claim. The claimant has 14 days within which to accept or reject this offer. Clause 20 provides for the filing of final offers in court. Sub-clause (1) requires a claimant who commences a proceeding to file his or her written final offer with the court in a sealed envelope at the commencement of the proceeding. Sub-clause (2) requires a respondent to file his or her written final offer or joint final offer in a sealed envelope prior to or at the time of filing a defence. Sub-clause (3) provides that, if a respondent and contributor have exchanged offers to contribute to the settlement of the claim, the respondent must file his or her offer with the court in a sealed envelope at the time of filing a third party notice to join the contributor. The contributor must file his offer with the court in a sealed envelope prior to or at the time of filing a defence to the third party notice. Sub-clause (4) provides that if a claimant fails to exchange a written final offer and commences a proceeding in the Magistrates' Court, he or she is deemed to have made a final offer of an amount equal to the jurisdictional limit of the Magistrates' Court (which is currently $40 000). If the proceeding is commenced in the County Court, the claimant is deemed to have made a final offer of $150 000. If the claimant has commenced the proceeding in the Supreme Court without making a written final offer, he or she is deemed to have engaged in conduct described in clause 25(4) which allows the court to disregard the cost thresholds. Sub-clause (5) provides that if a respondent has failed to make a written final offer, they are deemed to have made a final offer of $nil. Sub-clause (6) provides that the court must not see the written final offers or offers to contribute until it has determined the claim and is determining the costs orders for the proceeding. Clause 21 provides that all information, reports and documents exchanged by the parties to a claim are protected by privilege that would exist if these documents were disclosed in relation to a proceeding before the Supreme Court. 9

 


 

Clause 22 requires a claimant who commences a proceeding in a court based on a claim to file at commencement, either-- · a certificate of compliance; or · an affidavit stating that the pre-litigation procedures required by the Bill have not been complied with or that the respondent refuses to sign, or has delayed the signing of, the certificate of compliance. Sub-clause (2) requires that the certificate of compliance be in the prescribed form. The certificate of compliance must be signed by each party or their legal practitioner and must state that the pre-litigation procedures required by this Bill have been completed and that the parties understand the costs consequences of proceeding to trial. Sub-clause (3) specifies that it may constitute misconduct or unsatisfactory conduct pursuant to the Legal Practice Act 1996 for a legal practitioner to sign a certificate of compliance knowing that it is false or misleading. Clause 23 states that parties may commence a proceeding without complying with the pre-litigation procedures specified in the Bill if-- (a) the claim is urgent, for example, in a claim relating to a terminal illness; or (b) the court determines that the matter involves issues of law or fact which require the court's supervision and management, for example, complex medical negligence matters. Clause 24 provides that if a claimant commences a proceeding without having complied with the pre-litigation procedures required by the Bill, whether the proceeding is commenced under clause 23 or otherwise, and the court considers that the parties ought reasonably have complied with the procedures, the court may adjourn the proceeding and direct the parties to engage in the pre- litigation procedures. Sub-clause (2) provides that, if the court adjourns the proceeding, the court may make an appropriate order for costs. 10

 


 

Clause 25 applies if a court awards a claimant $50 000 or less in damages in a proceeding based on a claim that has been the subject of pre- litigation procedures required by the Bill. Sub-clause (2) applies to awards of damages of $30 000 or less, after reducing the award of damages for any award made on a counterclaim, and states that the court must apply the following principles-- · if the court awards the claimant damages in excess of or equal to the claimant's written final offer, the claimant will be awarded costs on a solicitor/client basis from the date on which the proceeding was issued; · if the court awards the claimant damages that are less than or equal to the respondent's written final offer, the respondent will be awarded costs on a party/party basis from the date on which the proceeding was issued; and · if the court award is less than the claimant's written final offer but more than the respondent's written final offer, each party will bear their own costs. Sub-clause (3) applies to awards of damages of $50 000 or less but more than $30 000, after reducing the award of damages for any counterclaim, and states that the court must apply the following principles-- · if the court awards the claimant damages in excess of or equal to the claimant's written final offer, the claimant will be awarded costs on a solicitor/client basis from the date on which the proceeding was issued and costs to a maximum of $2500 for the pre-litigation procedures; · if the court awards the claimant damages that are less than or equal to the respondent's written final offer, the respondent will be awarded costs on a party/party basis from the date on which the proceeding was issued and costs to a maximum of $2500 for the pre-litigation procedures; and · if the court award is less than the claimant's written final offer but more than the respondent's written final offer, each party will bear their own costs of the proceeding, but the claimant will receive costs to a maximum of $2500 for the pre-litigation procedures. 11

 


 

However, sub-clause (4) provides that a court may disregard these principles if a party-- (a) has not complied with the pre-litigation procedures required by the Act within the required timelines; or (b) has engaged in the pre-litigation procedures required by the Act in a vexatious manner; or (c) has delayed the proceeding or complicated the issues in the proceeding; or (d) has done something which has unfairly prejudiced another party to the proceeding. Sub-clause (5) also provides that a court may make an order for costs on the basis of an offer made subsequent to the written final offer. This occurs if the court is satisfied that a party to the proceeding has made an offer subsequent to the exchange of written final offers due to factors arising that were not reasonably foreseeable at the time of making written final offers. An example of a factor that is not reasonably foreseeable is when a claimant, who has suffered a brain injury, develops cerebral palsy after the exchange of written final offers. Clause 26 provides that the court can penalise a party by way of a costs order for commencing a proceeding in the wrong court. This applies to proceedings in the Supreme or County Courts. Sub-clause (1) provides that if a claimant, who issues proceedings in the Supreme Court, receives an award of damages of less than $150 000, exclusive of costs and the claimant is entitled to costs pursuant to clause 25 or otherwise, the claimant will only be awarded costs on the appropriate County Court scale of costs. In this circumstance, the respondent will be entitled to costs that he or she has properly incurred by reason of having to defend the matter in the Supreme Court rather than the County Court, but is not entitled to receive costs which are in excess of the costs that the claimant is entitled to. Sub-clause (2) provides that if a claimant, who issues proceedings in the County Court, receives an award of damages of less than half of the jurisdictional amount of the Magistrates' Court (which is currently $40 000), exclusive of costs and the claimant is entitled to costs pursuant to clause 25 or otherwise, the claimant will only be awarded costs on the appropriate Magistrates' Court scale of costs. In this circumstance, the respondent will be entitled to costs that he or she has properly incurred by reason of having to defend the matter in the County Court rather than the Magistrates' Court, but is not entitled to 12

 


 

receive costs which are in excess of the costs that the claimant is entitled to. Clause 27 sets out the power to make regulations under this Bill. Clause 28 provides that the Bill applies to claims in respect of a death or injury that occurs on or after the commencement of the Bill. Where the date of injury is not known, the Bill applies to causes of action that are taken to have accrued on or after commencement of the Bill. 13

 


 

 


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