Commencing a personal injury claim in the Australian Capital Territory
Published 15 Jun 2015
Author: Gerard Malouf
The piece of legislation that determines what actions need to be taken in personal injury matters within the Australian Capital Territory is the Civil Law (Wrongs) Act 2002 (ACT), which will now be referred to as “the Act”.
This article makes particular reference to Chapter 5 of the Act, being pre-court procedures in personal injury claims. Ultimately this Chapter determines who may make a claim and how a claim is to be made. The following is a discussion on the major points a claimant needs to be aware of.
Under this piece of legislation, the claim being referred to is for damages based on a liability for personal injury. This extends to public liability claims, motor vehicle accidents and claims for a deceased’s dependants or estate. The only personal injury claim that this chapter does not apply to is that of workers compensation. Worker’s compensation claims are actioned under the Workers Compensation Act 1951 (ACT).
Making the Personal Injury Claim
When making a claim under the Act you become known as the ‘claimant’, and the person you are acting against becomes known as the ‘respondent.’ Before commencing proceedings against the respondent, the claimant must give written notice of the claim, which must contain the following:
- A statement of the information surrounding the claim;
- Authority for the respondent and the respondent’s insurer to have access to your records, being medical records etc; and
- Documents as required by the legislation.
There are two time limits you must be aware of when giving a notice:
- 9 months after the date of the accident or from the day the symptoms of the injury first appear; or
- 4 months after you seek advice from a lawyer or from the day respondent is identified, whichever occurs last;
As mentioned above, the documents which the claimant is required to give a respondent can be found within section 64 of the Act, and include documents such as reports about the accident, medical reports and any reports on vocational capacity. Furthermore, the respondent will be within their rights to request further information in regards to the accident itself, the claimant’s medical history and details regarding losses claimed.
Within one month after receiving a notice of claim, the respondent must reply to the claimant. Under section 54 of the Act this reply must disclose whether or not the respondent is satisfied or dissatisfied whether the notice given by the claimant is a complying notice. If no response is given within a month this is deemed to be satisfied.
In the response, the respondent is also allowed to request further information to determine whether they are the correct respondent, or if they are not, they may tell this to the claimant in writing also, giving reasons why and assisting the claimant in finding the correct respondent.
Whilst the respondent may accept that they are the correct and proper respondent, it is not in itself an admission of liability.
Much like section 64 of the Act, section 68 of the Act forces the respondent to give those documents mentioned above to the claimant, as the claimant is required to give to the respondent.
Failure to give complying notice of claim
If a notice of claim is deemed to be non-compliant, the claimant cannot proceed with the personal injury claim further. Other than the respondent being satisfied with the notice, or failing to respond within a month, the only exceptions to allow the claim to progress are if the respondent waives any non-compliance, or via court orders. An order from the court will only be given if it does not prejudice the respondent.
Attempts to resolve before court
Section 61 of the Act forces the respondent to attempt to resolve the claim before it gets to court. Within 6 months of receiving the notice of claim they must accept or deny liability, respond to any offers made by the claimant or if no offers have been conveyed, invite the claimant to make an offer of settlement. Prior to the court process commencing one of the following must occur:
- The respondent make a written offer or counteroffer of settlement; or
- The respondent settle the claim by accepting an offer made by the client.
In ACT matters, certain documents are not protected by client legal privilege. Section 72 of the Act discusses this. It goes so far to say that “an investigative report, medical report of report relevant to the claimant’s rehabilitation must be disclosed.”
This needs to be kept it mind. Even if a report is given that may be unreasonable to you as a claimant, the legislation determines that the respondent has the right to this material. Non-disclosure of documents is deemed to be fraud and this information may only be kept from disclosure with the court’s approval.