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Important Provisions - Personal Injuries Proceedings Act 2002

Home > News > Important Provisions - Personal Injuries Proceedings Act 2002

excerpts from the Personal Injuries Proceedings Act 2002 QLD

You may be interested in the legislation that applies to public liability claims for personal injury in Queensland.  We have included excerpts from the Personal Injuries Proceedings Act 2002 Queensland as follows, but if you wish to view this legislation in it's entirety, please go to legislation.qld.gov.au (Current as at 1 July 2014)

 

Chapter 3 – Claims

Part 1 – Pre-court Procedures

 

Division 1 – Claim procedures

9. Notice of a claim

 

1. Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started. 

(1A) The approved form must provide for the notice to be in 2 parts, namely part 1 and part 2.

(1B) The approved form may provide that some or all information included in the notice be verified by statutory declaration.

 

2. The notice must-

(a) contain a statement of the information required under a regulation; and

(b) authorise each of the following to have access to records and sources of information relevant to the claim specified under a regulation—

     (i) the person;

    (ii) if the person is insured against the claim, the person’s insurer for the claim; and

(c) be accompanied by the documents required under a regulation.

 

(2A) A regulation may require information or other material to accompany a particular part of a notice of a claim.

 

(3) Part 1 of the notice must be given within the period ending on the earlier of the following days—

(a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury;

(b) the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.

 

(3A) Part 2 of the notice must be given, to the person to whom part 1 of the notice was given, within 2 months after the earlier of the following to happen—

(a) the person to whom part 1 of the notice was given complies with section 10(1);

(b) the person to whom part 1 of the notice was given is, under section 13, conclusively presumed to be satisfied part 1 of the notice is a complying part 1 notice of claim.

 

(4) If the claimant is a child, the child’s parent or legal guardian may give the notice for the child.

 

(5) If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the obligation to give the notice under subsection (1) continues and a reasonable excuse for the delay must be given in part 1 of the notice or by separate notice to the person against whom the proceeding is proposed to be started.

 

(6) If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the claimant is taken to have a reasonable excuse for subsection (5) if—

(a) the claimant-

    (i) has made a health service complaint about the person against whom the proceeding is proposed to be started to the Health Rights Commissioner under the Health Rights Commission Act 1991 within the period prescribed for making a complaint under that Act; and

    (ii) gives part 1 of the notice to the person as soon as practicable after the complaint is finalised under the Health Rights Commission Act 1991, the repealed Health Quality and Complaints Commission Act 2006 or the Health Ombudsman Act 2013; or

(b) the claimant-

    (i) has made a health service complaint about the person against whom the proceeding is proposed to be started to the Health Quality and Complaints Commission under the Health Quality and Complaints Commission Act 2006 within the period prescribed for making a complaint under that Act; and

    (ii) gives part 1 of the notice to the person as soon as practicable after the complaint is finalised under the Health Quality and Complaints Commission Act 2006 or Health Ombudsman Act 2013; or

(c) the claimant-

    (i) has made a health service complaint about the person against whom the proceeding is proposed to be started to the health ombudsman under the Health Ombudsman Act 2013 within 2 years after the claimant became aware of the matter of the complaint; and

    (ii) gives part 1 of the notice to the person as soon as practicable after the complaint is finalised under the Health Ombudsman Act 2013.

 

(7) If a proceeding based on a claim may be started against 2 or more persons, the person to whom part 1 of a notice of a claim is given must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it—

(a) give a copy of it to each other person known to the person who may be a person against whom a proceeding might be started by the claimant based on the claim; and

(b) advise the claimant of each other person to whom a copy of it has been given and give the claimant a short statement of the person’s reasons for considering the other person may be a person against whom a proceeding might be started based on the claim.

 

(7A) Subsection (7)(a) does not require the person (the first person) to whom part 1 of the notice is given by a claimant to give a copy of it to another person if the claimant has advised the first person in writing that the claimant has given, or will give, a copy of it to the other person.

 

(8) If the person against whom a proceeding based on a claim is proposed to be started is the State or an entity with the privileges and immunities of the State, the giving of part 1 of a notice of a claim is effective only if it—

(a) is given to the Crown solicitor; and

(b) identifies the government department or entity the claimant considers responsible for the conduct that caused the injury.

 

(8A) If part 1 of a notice of a claim is given under subsection (8), the government department or entity identified under subsection (8)(b) is taken to be the person to whom part 1 of the notice of a claim is given.

 

(9) To remove any doubt, it is declared that subsection (3)(a), to the extent that it provides that part 1 of a notice may be given after the first appearance of symptoms of the personal injury, does not determine or affect when a cause of action in relation to the injury arose for the purposes of the Limitation of Actions Act 1974.

 

(9A) For subsection (3)(b), consultation by a claimant with a community legal service as defined under section 67A(2), whether before or after the commencement of this subsection, is to be disregarded.

 

(9B) This section is subject to section 9A.

 

(10) In this section— access, to records and sources of information, includes access to copy the records and sources of information.

 

9A Particular provision for notice of a claim procedure for medical negligence cases

 

  1. This section applies to a claim based on a medical incident happening on or after the commencement of this section that is alleged to have given rise to personal injury. 

  2. Before giving part 1 of a notice of a claim under section 9, the claimant must give written notice (initial notice) of the claim to the person against whom a proceeding based on the claim is proposed to be started.

  3. The initial notice must state it is given under this section and contain the following information-

  • the claimant’s full name and address;

  • any other name by which the claimant is known or has been known;

  • if the initial notice is given by the claimant’s parent or legal guardian, the parent’s or guardian’s name; 

  • the claimant’s date of birth; 

  • a description of the medical services alleged to have given rise to the personal injury;

  • if known, the name of the doctor who provided the medical services; 

  • the date or dates when the medical services were provided; 

  • the place or places at which the medical services were provided; 

  • a description of the personal injury alleged to have been suffered. 

 

20 Respondent must attempt to resolve claim

 

  1. Within the period prescribed under a regulation or, if no period is prescribed, within 6 months after a respondent receives a complying part 1 notice of claim, the respondent must-
  • take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and

  • give the claimant written notice stating--

    • whether liability is admitted or denied;

    • if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and

  • if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, invite the claimant to make a written offer of settlement; and

  • make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and

  • make a written offer, or counter offer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.

 

Division 4 – Compulsory conferences

36 Compulsory conference

  1. Before starting a proceeding in a court based on a claim, there must be a conference of the parties (the compulsory conference).

  2. Any party may call the compulsory conference

  • at a time and place agreed between the parties; or 

  • if the relevant day has passed, at a reasonable time and place nominated by the party calling the conference.

 

39 Parties to exchange mandatory final offers if claim not settled at compulsory conference

  1. If the claim is not settled at the compulsory conference, the claimant and a respondent must, unless the court has dispensed with this obligation, exchange written final offers--

    • at the conference; or

    • if the conference has been dispensed with, within 14 days after the date of the agreement or order dispensing with the conference.

  2. If there are 2 or more respondents, the claimant may make a written final offer to settle with any respondent, and any respondent may make a written final offer to settle with the claimant.

  3. However, subsection (4) applies if--

    • the claimant agrees to make a written final offer to all of the respondents to settle the claim as against all of the respondents; and

    • all of the respondents agree to make a written joint final offer to the claimant to settle the claim as against all of the respondents.

  4. If this subsection applies--

    • the claimant's offer must be made to all of the respondents and is an offer to settle the claim against all of the respondents; and

    • the respondents' offer must be made by all of the respondents to the claimant and is an offer to settle the claim against all of the respondents.

  5. Respondents who make an offer under subsection (3) are jointly and severally liable to the claimant for the whole of the amount of the offer if the offer is accepted.

  6. A written final offer required under this section is called a mandatory final offer.

 

40 Provisions about mandatory final offers

  1. A mandatory final offer for the upper offer limit or less must be exclusive of costs.

  2. If a mandatory final offer is for more than the lower offer limit but not more than the upper offer limit, and is accepted, costs are to be calculated and paid on a basis (but subject to limits) stated under a regulation.

  3. Even though a respondent denies liability altogether, the respondent must nevertheless make a mandatory final offer but, in that event, the offer is to be expressed as an offer of $nil.

  4. A mandatory final offer must remain open for 14 days and a proceeding in a court based on a claim must not be started while the offer remains open.

  5. If the claimant starts a proceeding in a court based on the claim, the claimant must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant's mandatory final offer.

  6. A respondent must, before or at the time of filing a defence, file at the court a sealed envelope containing a copy of the respondent's mandatory final offer or, if a joint final offer is made by multiple respondents, a copy of the respondents' mandatory final offer.

  7. The court must not read the mandatory final offers until it has decided the claim.

  8. However, the court must, if relevant, have regard to the mandatory final offers in making a decision about costs.

  9. The court may, on application by a party, dispense with the obligation to make mandatory final offers.

 

Part 3 – Proceedings in Court

56 Costs in cases involving damages awards of not more than an amount equal to the upper offer limit

  1. This section applies if a court awards an amount equal to the upper offer limit or less in damages in a proceeding based on a claim, but it does not apply to the costs of an appellate proceeding. 

  2. If the court awards an amount equal to the lower offer limit or less in damages, the court must apply the following principles-

  • if the amount awarded is less than the claimant’s mandatory final offer but more than the respondent’s, or the respondents’, mandatory final offer, no costs are to be awarded; 

  • if the amount awarded is equal to, or more than, the claimant’s mandatory final offer, costs are to be awarded to the claimant on an indemnity basis as from the day on which the proceeding started, but no award is to be made for costs up to that date;

  • if the amount awarded is equal to, or less than, the respondent’s, or the respondents’, mandatory final offer, costs are to be awarded to the respondent or respondents on a standard basis as from the day on which the proceeding started, but no award is to be made for costs up to that date.

  • If the court awards more than an amount equal to the lower offer limit but not more than an amount equal to the upper offer limit in damages, the court must apply the following principles— 

  • if the amount awarded is less than the claimant’s mandatory final offer but more than the respondent’s, or the respondents’, mandatory final offer, costs are to be awarded to the claimant on a standard basis up to the declared costs limit; 

  • if the amount awarded is equal to, or more than, the claimant’s mandatory final offer, costs are to be awarded to the claimant on the following basis— 

    • costs up to the date on which the proceeding started are to be awarded on a standard basis up to the declared costs limit; 

    • costs on or after the date on which the proceeding started are to be awarded on an indemnity basis; 

  • if the amount awarded is equal to, or less than, the respondent’s, or the respondents’, mandatory final offer, costs are to be awarded on the following basis— 

    • costs up to the day on which the proceeding started are to be awarded to the claimant on a standard basis up to the declared costs limit; 

    • costs on or after the day on which the proceeding started are to be awarded to the respondent or respondents on a standard basis. 

  • The court must not award costs to a party related to the introduction of evidence by the party that is unnecessarily repetitive. Example— If a claimant calls 2 or more expert witnesses from the same area of expertise to give evidence to substantially the same effect, and the claimant is entitled to costs of the proceeding under the principles laid down in this section, the court might only allow costs related to 1 of the expert witnesses. 

  • Unless an award of damages is affected by factors that were not reasonably foreseeable at the time of the exchange of mandatory final offers, the court must not award costs to a party related to investigations or gathering of evidence by the party after— 

  • the conclusion of the compulsory conference; or

  • if the parties or the court dispensed with the compulsory conference, the day when the parties completed the exchange of mandatory final offers. 

  • If an award of damages is affected by factors that were not reasonably foreseeable by a party at the time of making the party’s mandatory final offer, the court may, if satisfied that it is just to do so, make an order for costs under subsection (2) or (3) as if the reference to a mandatory final offer in the relevant subsection were a reference to a later offer made in the light of the factors that became apparent after the parties completed the exchange of mandatory final offers. Example— Suppose that a claimant’s medical condition suddenly and unexpectedly deteriorates after the date of the final offers and the court makes a much higher award of damages than would have been reasonably expected at that time. In that case, the court may ignore the mandatory final offers and award costs on the basis of later offers of settlement. 

  • This section does not limit the court’s power under section 48. 

  • In this section— party does not include contributor.

 

SCHEDULE - DICTIONARY

award, of damages, includes-

  • a payment of damages, whether or not liability is admitted; and

  • an ex gratia payment of monetary compensation.

claim means a claim, however described, for damages based on a liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty and, for a fatal injury, includes a claim for the deceased's dependants or estate.

damages includes any form of monetary compensation.

 

dust-related condition means any of the following diseases--

  • aluminosis

  • asbestos induced carcinoma

  • asbestosis

  • asbestos related pleural diseases

  • bagassosis

  • berylliosis

  • byssinosis

  • coal dust pneumoconiosis

  • farmers’ lung

  • hard metal pneumoconiosis

  • mesothelioma

  • silicosis

  • silicotuberculosis

  • talcosis; or 

  • any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.

 

incident, in relation to personal injury, means the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury

injured person means a person who suffers personal injury.

insured includes indemnified.

insured person, in relation to a claim, means a person who is insured or purportedly insured against the claim.

insurer, of a person in relation to a claim, means the insurer or other entity providing, or purportedly providing, the person cover or an indemnity against the claim.

personal injury includes--

 

  • fatal injury; and

  • prenatal injury; and

  • psychological or psychiatric injury; and

  • disease.

 

rehabilitation includes the use of medical, psychological, physical, social, educational or vocational measures-

 

  • to restore, as far as reasonably possible, physical or mental functions lost or impaired through personal injury; and

  • to optimise, as far as reasonably possible, the quality of life of a person who suffers the loss or impairment of physical or mental functions through personal injury.

 

The above is only a small excerpt from the Personal Injuries Proceedings Act 2002 (Queensland). Public liability claims are complex.  If you have been injured in public liability accident, you should chat live with us, email or call us free at The Personal Injury Lawyers where we can answer any questions on claims. 

 

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