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

CIVIL LAW (WRONGS) AMENDMENT REGULATIONS 2004 (No 1)

Outline

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.  

Clause Notes

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.