PERSONAL INJURIES PROCEEDINGS ACT 2002 - SECT 9
Notice of a claim
PERSONAL INJURIES PROCEEDINGS ACT 2002 - SECT 9
Notice of a claim
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 2013within 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.
(9C) Subsections
(3) , (5) and (6) do not apply to a claim based on a personal injury of a
person resulting from the abuse of the person when the person was a child.
(10) In this section—
"abuse" , of a child, means—
(a) sexual abuse or serious physical abuse of
the child; or
(b) psychological abuse of the child perpetrated in connection
with sexual abuse or serious physical abuse of the child.
"access" , to records and sources of information, includes access to copy the
records and sources of information.