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CIVIL LAW (WRONGS) AMENDMENT REGULATIONS 2004 (NO 1) (NO 8 OF 2004)
2004
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
CIVIL LAW (WRONGS) AMENDMENT
REGULATIONS 2004 (No 1)
EXPLANATORY
STATEMENT
SL2004-8
Circulated by authority of the
Attorney General
Mr Jon
Stanhope MLA
The Civil Law (Wrongs) Amendment Act 2003 (No 2) amends the
Civil Law (Wrongs) Act 2002 by including a range of reforms to improve
the ACT civil justice system and address legal issues arising from the recent
insurance crisis.
The objectives of the legislation are:
• to
create greater certainty in personal injury outcomes, particularly in the case
of medical negligence;
• to adopt measures that will foster efficiency
in case processing and management; and
• to adopt pre-court procedures
to assist settlement of cases before they get to court.
The Civil Law
(Wrongs) Amendment Regulations 2004 (No 1) (the Regulations) prescribe
information that is required under the recent reforms to the Civil Law
(Wrongs) Act 2002. The Regulations specify what information is required to
be included in a Notice of Claim, Statement of Claim, and the information that
parties can have access to in personal injury matters, as part of the pre-court
procedure provisions. The Regulations also prescribe several time limits for the
steps in the pre-court procedures; they require legal practitioners to certify
that cases have a reasonable chance of success; they state the documents that
must accompany a notice of claim; and prescribe a contributors response to a
notice.
In addition, the regulations clarify how the pre-court
procedures in part 5 of the Act apply to existing injuries where the plaintiff
did not consult a lawyer before the commencement of part 5. In these cases the
time limits in the Act for submitting a notice of claim may not be met, although
there is provision for the plaintiff to give a reasonable excuse for not meeting
the time limits. However, to clarify this, a transitional regulation has been
included that provides that the appropriate time limit for these plaintiffs to
provide a notice of claim is the lesser of nine months after 8 March 2004 or
four months after they consult a lawyer. This transitional regulation also
provides time limits for persons whose symptoms arise before 8 March 2004.
Regulation 1 – Name of regulations – provides that the
regulations are the Civil Law (Wrongs) Amendment Regulations 2004 (No
1).
Regulation 2 – Commencement – states that the
regulations commence on the day after their notification
day.
Regulation 3 – Legislation amended – provides
that the regulations amend the Civil Law (Wrongs) Regulations 2003.
Regulation 4 – New part 1 heading – provides a new
part 1 heading to be inserted into the Regulations.
Regulation 5
– New part 2 – inserts a new part 2 into the Regulations. Part
2 provides requirements and prescribes guidelines for the pre-court procedures
for personal injury claims.
New regulation 4A – Information in
notice of claim – Act, s 51(2)(a) – states the information to be
contained in a notice of claim under section 51(2)(a) of the Act. The
regulation provides requirements for the pre-court procedures of personal injury
claims. The information that a notice of claim must contain, or substantially
contain, includes:
• Details about the injured person, such as name,
home address and date of birth;
• Details about the accident, including
the date, time and place of the accident, details and a diagram of how the
accident happened, whether any emergency services attended, details about
witnesses and witness statements (if any), and if a seatbelt or helmet was worn
when the accident happened;
• Details about the injured person’s
injury, such as a description, hospitalisation details, and medical
treatment;
• Details about economic loss, including changes to
employment of the injured person;
• The date the claimant first
consulted a lawyer about the claim and identified the respondent;
• If
the claim is against a health service provider, a description of the medical
condition, the alleged act or omission by the provider.
New regulation
4B – Records respondent to be authorised to access etc – Act, s
51(2)(b) – states that a notice of claim must authorise the respondent
and the respondent’s insurer to have access to particular records and
sources of information relevant to the personal injury under s 51(2)(b) of the
Act. These include:
• Clinical notes held by a health service provider
who treated or assessed the injured person;
• Clinical notes held by a
hospital where the injured person received treatment;
• Records held by
an emergency service that treated or assisted the injured
person;
• Wage, leave and work history records in the possession of an
employer or previous employer of the injured person.
New regulation 4C
– Documents to accompany notice of claim – Act, s 51(2)(c)
– states the documents that must accompany a notice of claim under s
51(2)(c) of the Act. These include documents from health service providers, and
other documents upon which the claimant might rely for the
claim.
New regulation 4D – Claimant may add later
respondents – prescribed times – Act, s 55(2)(a) and (3)(b)
– states the time prescribed within which the claimant may add a later
respondent under s 55(2)(a) of the Act. The regulation states that the
claimant may add a later respondent anytime before the certificate of readiness
is filed in a court in a proceeding in relation to the claim. The regulation
also states the time within which the claimant must notify, in writing, the
other respondents of the later respondent, under s55(3)(b) of the Act. The
claimant must notify the other respondents within one month from the day that
the later respondent is added.
New regulation 4E – Respondent
may add someone else as contributor – prescribed times – Act,
s 57(1) and (3) – states the time within which the respondent may
add someone else as a contributor under s 57(1) of the Act. The contributor must
be added before the certificate of readiness is filed in a court in the
claim’s proceedings. The regulation also states the time within which the
respondent, if adding another contributor, must give a copy of the contributing
notice to each other party, under s 57(3) of the Act. The respondent must give
the contributing notice within one month of adding someone else as a
contributor.
New regulation 4F – Contributor’s response
– prescribed information and documents – Act, s 58(1)(a)
– states the information that must be contained in the contributors
response under s 58(1)(a) of the Act. The contributor’s response must
contain particulars about the contributor such as name, address, lawyer’s
details, and if relevant, the corporation’s ACN and
address.
Regulation 6 – New part 3 heading – provides
a new part 3 heading to be inserted into the Regulations.
Regulation 7
– New regulation 5A – inserts new regulation 5A into the
regulations. Regulation 5A provides the general format for the certificate
signed by the claimant’s lawyer stating that the claim or defence has a
reasonable prospect of success.
Regulation 8 – New regulation 7
– inserts new regulation 7 into the regulations. Regulation 7 is
a transitional regulation which provides that part 5 of the Act dealing with
pre-court procedures applies to accidents that occurred before the commencement
of the part, on 8 March 2004, if the plaintiff did not consult a lawyer
before the commencement. This regulation also clarifies the time limits for
submitting a notice of claim for these plaintiffs. The regulation provides that
these plaintiffs must provide a notice of claim in the lesser of nine months
after 8 March 2004 or four months after they consult a lawyer. This
transitional regulation also provides time limits for persons whose symptoms
arise before 8 March 2004.
Regulation 9 – Dictionary, new
definitions – provides definitions for health service and
provider.
Regulation 10 – Legislation amended –
renumbering – provides that the provisions will be renumbered when the
regulations are next republished under Legislation Act.