Northern Territory Second Reading Speeches

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PERSONAL INJURIES (CIVIL CLAIMS) BILL 2003


Madam Speaker, I move that the bill be now read a second time.

As the Assembly is aware the Northern Territory government along with the Commonwealth, state and ACT governments is engaged in a comprehensive reform program designed to deal with the increasing costs and reduced availability of public indemnity insurance across Australia.

Members will recall that on 13 August 2002 the Chief Minister reported to the House concerning the government’s response to the national crises concerning public liability and medical indemnity insurance. The Chief Minister announced a package of legislative reform.

This package comprised legislation relating to self-assumption of risk by persons who are clients of providers of recreational services. This bill, in the form of a Consumer Affairs and Fair Trading Amendment bill no. 2 2002 was introduced into parliament on 20 August 2002 and it will be debated later today.

Legislation dealing with various personal injuries and tort law and related reform such as caps and thresholds on non economic losses, caps on economic loss and for limits on gratuitous attended care. Consequently the Personal Injuries Liabilities and Damages bill 2002 was introduced into parliament on 17 October 2002. Again, this bill is to be debated later today.

Legislation dealing with litigation processes. This is the Personal Injuries (Civil Claims) bill 2003, this is the bill that I am currently introducing. And finally the legislation dealing with various aspects of legal costs and advertising. This bill will be introduced later today.

The proposals contained in these bills have been subject to considerable debate within the various professions affected by them. This had led to the government holding over passage of the first two bills until today and a delay from October 2002 in the introduction of the two new bills following the release of discussion drafts in October 2002.

In October 2002, the government accepted advice to the effect that further consultation was required regarding this bill and the Legal Practitioner Amendment Costs and Advertising bill. Accordingly, I established the Tort Law Reform Legal Process group and asked that it report to me by no later than the end of 2002 on discussion drafts of the Personal Injuries (Civil Claims) bill 2002 and the Legal Practitioners Amendment Costs and Advertising bill 2002.

The working group was chaired by a senior Northern Territory litigation lawyer Dr David Farquar and including the honourable Sally Thomas, Northern Territory Supreme Court judge, Mr Rod Smith of the Department of Health and Community Services, Ms Jenny Daniel-Yee of the Department of Justice and Mr Ian Morris president of the Law Society of the Northern Territory and Mr Paul Emery formally of the Northern Territory Treasurer. Additionally, Mr Michael Grove of the Australian Plaintiff Lawyers Association played a significant role as the alternate law society member to Mr Morris. The working group duly reported on the 24 December 2002.

Madam Speaker, I place on the record my appreciation of the work of the group. Within a limited time its members have produced a thoughtful analysis of the two discussion bills, while having due regard to what the government was trying to achieve with the bills. The report of the working group has now been released and can be found on the Department of Justice’s website.

The major recommendations of the working group regarding the Legal Practitioners (Costs and Advertising) Bill will be set out in my speech introducing that bill.

I now turn to the Personal Injuries (Civil Claims) Bill 2003. The discussion draft of the Personal Injuries (Civil Claims) Bill 2003 was modelled on the Queensland Personal Injuries Proceedings Act 2002. As such, it provided for a comprehensive set of processes to be followed before proceedings could be commenced in any court in respect of personal injuries that were within the scope of the legislation. The main findings of the working group in respect of the Personal Injuries (Civil Claims) Bill 2002 were as follows:

· support for the general proposal that legislation or rules of court provide for pre-litigation notices of claim, exchange of evidence, compulsory conferencing, mandatory exchange of offers and legal cost incentives; · a preference that the Supreme Court rules rather than the legislation be the method used for bringing about a common set of changes applicable to all courts. The working group suggested that the executive approach the judiciary about making the rules; · legislation should only be enacted if such rules were not made; and

· acceptance of the policy objectives for the provisions in the discussion draft clause 55 regarding legal costs.

The government has accepted the broad thrust of the recommendations of the working group’s report, though implementation may vary from that contemplated by the members of the working group. Additionally, there are some recommendations that have not been accepted.

I will now outline the main provisions of the bill and provide some explanation in terms of the discussion draft of the bill and the recommendations of the working group. The bill as introduced today is significantly different. Instead of the detailed provisions of the kind contained in some 60 substantive clauses it provides for four key principles, namely:

· in clauses 7 and 8: ‘An obligation of a potential claimant to notify the potential defendant within 12 months of either the injury or the time when the claimant became aware of the injury’; · in clause 9: ‘An obligation of a potential respondent to respond to that notice’; · in clause 11: ‘An obligation on the parties to a claim to attend a conference for the purposes of resolving the claim’; and · in clause 11: ‘An obligation both parties to make final offers if they have failed to settle their differences.

These clauses set out the general principles. The detailed requirements will be set out in rules made under the act. For example, the rules will set out what information a claimant must provide when lodging a claim.

Clauses 13 and 14 provide the Supreme Court with the power to make rules binding on itself, the local court and any other Northern Territory court or tribunal having jurisdiction in respect of claims that are subject to the act. Clause 22 also permits the Administrator to make rules for the purpose of the act. Such rules cannot be made by the Administrator until at least six months after the commencement of clause 13.

Effectively, these key principles will have no operational impact until the rules are made. The aim of these broad principles is to ensure that the parties may resolve as many issues as is practicable prior to the commencement of formal legal proceedings. They should be able to do this between themselves and without the need for costly judicial supervision. The intention is that the same rules apply regardless of the court in which the proceedings may eventually take place. The aim, of course, is to achieve settlement without the need for litigation in the courts.

The bill also makes a number of other changes concerning practises related to claims arising from personal injuries. I shall now list these:

· clause 12 provides the court with the power to make a structured settlement regardless of whether formal proceedings have commenced in a court. This provision needs to be read with the provisions dealing with structured settlements as contained in the Personal Injuries (Liabilities and Damages) Act 2003, as proposed to be enacted later today; · clause 15 provides that section 12(2) of the Evidence Act, and various common law principles, do not apply to give professional legal or medical privilege in respect of a medical report concerning personal injury claims. This clause was not part of the discussion draft of the bill. It was recommended by the legal process working group on the basis of there being a practical need to ensure a full and frank exchange of medical evidence. This proposal is similar to section 110b of the Work Health Act.

· Clause 18 limits costs payable by the claimant in circumstances where a claim is resolved prior to the commencement of proceedings in a court. It does this in two ways: first, if the damages are less than the amount to be prescribed by regulation, no such costs will be payable; second, if costs are more than the prescribed minimum, the costs payable will not be amounts greater than those set out in the Regulations.

· Clause 20 regulates costs recoverable by a plaintiff from a claimant after a claim has proceeded to court. Clause 20(2) deals with situation where the damages awarded are less than the minimum amount prescribed by regulation. In that situation, no such costs are payable by either party if the damages are less than the claimant’s offer and more than the respondent’s final offer. However, if the damages awarded are less than the claimant’s final offer and also equal to or less than the respondent’s final offer, the claimant must pay 25% of the respondent’s scale costs for a period of time after the date of the respondent’s final offer.

· Clause 20(3) deals with situation where the award of damages is equal to or greater than the minimum amount prescribed by regulation and less than the maximum amount prescribed by regulation. In this situation, depending on the relationship between the amount awarded and the various final offers of the parties, the costs vary from the respondent paying the claimant cost fixed at 25% or 50% of the scale costs to the claimant paying up to 25% of the respondent’s costs.

There are similar rules for awards of damages greater than the maximum amount prescribed by regulation. The respondent is only required to pay 100% of the scale costs if the damages are equal to or greater than both final offers and if the amount awarded is over the prescribed maximum. These provisions appear prescriptive, however, clause 20(5) through to 20(7) provide various grounds in which the court can make decisions which moderate the rigorous application of these provisions. Additionally, I note that these provisions are different from those contained in the discussion draft of the bill. In fact, these are substantially the provisions recommended by the working group.

In line with the view expressed by the working group, clauses 16 and 17 give the courts power to make various orders appropriate to the enforcement of the act. Most of the offence provisions in the discussion draft of the bill have been removed. The exception is that the bill provides that it will be an offence to take statements or provide documents in the course of proceedings under the act that are false or misleading.

Madam Speaker, before I close, I wish to mention two final matters concerning the application of the legislation. First, the legislation will have no retrospective operation in respect of proceedings that commenced prior to the commencement of section 8 of the act. In relation to injuries that occurred prior to the commencement of the act, the act applies so that the 12 month period during which notice must be given is to commence on the date of the commencement of section 8. Second, the act does not apply to claims excluded by clause 5(4) or which are excluded by regulation. These excluded claims include various claims covered by statutory schemes such as accidents in the workplace or traffic accidents. It also excludes some kinds of specialist legislation, such as that related to dust diseases.

As an interim measure, clause 5(4)(c) provides that persons who suffer an injury as a child are not required to give notice of claim until they reach 18 years of age. Issues regarding the interaction of the notice requirements and limitation periods under the Limitation Act are to be examined in the next stage of reforms regarding the law of negligence as it applies to personal injuries.

The discussion draft of this bill provided a set of prescriptive rules to govern pre-litigation proceedings. However, the bill as introduced takes a different approach. It sets out a policy framework for the making of rules regarding such proceedings. Executive government will seek to provide all necessary support for the judiciary and the legal profession in the development of detailed rules necessary to give effect to the policy principles. I look forward to these developments, and I fully realise that the reform of litigation processes is dependent on effective commitment from the legal profession and the courts.

Madam Speaker, there are a number of broad issues that have yet to be dealt with concerning the operation of the law of negligence. These include matters such as professional negligence, particularly for medical practitioners, proportionate liability and limitation periods. The government, together with other jurisdictions, is currently considering its response to the recently released report of the National Review of Law of Negligence. In line with the outcomes of the ministerial meeting of 30 May 2002, the bill, along with Legal Practitioners Amendment Costs and Advertising Bill 2003, is intended to reduce the cost of personal injury claims by simplifying the processing for making such claims, and by discouraging costly mechanisms for the resolution of small claims.

I expect comment from the community concerning all of the matters covered by this bill, however I mention that some of the provisions in this bill arise from the recommendation of the working group, rather than from the provisions of the discussion draft of the bill. For example, those excluding the operation of section 12 subsection 2 of the Evidence Act, and detailed rules dealing with legal costs. In respect of these matters, I especially seek feedback from the community.

Madam Speaker, I commend the bill to honourable members.

Debate adjourned.






 

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