Queensland: Personal Injuries Proceedings Act 2002 (Qld)

Personal Injuries Proceedings Act 2002 An Act to regulate particular claims for and awards of damages based on a liability for personal injuries, and for other purposes Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Personal Injuries Proceedings Act 2002. 2 Commencement This Act is taken to have commenced on 18 June 2002. 3 Notes in text A note in the text of this Act is part of the Act. Part 2 Main purpose and application of Act 4 Main purpose (1) The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury. (2) The main purpose is to be achieved generally by— (a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and (b) promoting settlement of claims at an early stage wherever possible; and (c) ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and (d) putting reasonable limits on awards of damages based on claims; and (e) minimising the costs of claims; and (f) regulating inappropriate advertising and touting; and (g) establishing measures directed at eliminating or reducing the practice of giving or receiving consideration for a claim referral or potential claim referral, or soliciting or inducing a claimant to make a claim, in contravention of this Act. 5 Act binds all persons (1) This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States, unless otherwise provided. (2) However, the Commonwealth or a State can not be prosecuted for an offence against this Act. 6 Application of Act (1) This Act applies in relation to all personal injury arising out of an incident whether happening before, on or after 18 June 2002. (2) However, this Act does not apply to— (a) personal injury within the meaning of the Motor Accident Insurance Act 1994 and in relation to which that Act applies; or (b) accidental bodily injury caused by, through, or in connection with a motor vehicle, within the meaning of the Motor Vehicles Insurance Act 1936, and in relation to which that Act applies; or (c) injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act; or Example for paragraph (c)— W, a worker employed by E, sustains an injury in the course of employment. The injury is caused by a design fault in a machine designed by X Company. If, as a result of sustaining the injury, W seeks damages against E, W must comply with the pre-court procedures under the Workers' Compensation and Rehabilitation Act 2003 before starting a proceeding in a court for damages against E. This Act does not require W to comply with pre-court procedures under this Act in seeking damages against E. If, as a result of sustaining the injury, W seeks damages against X Company, W must comply with the pre-court procedures under this Act before starting a proceeding in a court for damages against X Company. (d) injury within the meaning of the WorkCover Queensland Act 1996 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act; or (e) injury within the meaning of the Workers' Compensation Act 1990 suffered on or after 1 January 1996 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by part 11 of that Act; or (f) injury within the meaning of the Workers' Compensation Act 1990 suffered before 1 January 1996 and in relation to which that Act applies, but only to the extent that the injury suffered created, independently of that Act, a legal liability in the employer of the person suffering the injury for which the employer was indemnified under that Act in relation to the injury or required by that Act to be so indemnified; or (g) injury within the meaning of the Workers' Compensation Act 1916 and in relation to which that Act applies, but only to the extent that the injury suffered created, independently of that Act, a legal liability in the employer of the person to pay damages in relation to the injury. (3) Also, this Act does not apply to— (a) personal injury in relation to which a proceeding was started in a court, including in a court outside Queensland or Australia, before 18 June 2002; or (b) personal injury that is a dust-related condition. (4) In addition, sections 40(2) and 56 do not apply to personal injury if the act causing the personal injury is an unlawful intentional act done with intent to cause personal injury or is unlawful sexual assault or other unlawful sexual misconduct. (5) Further, this Act does not affect the seeking, or the recovery or award, of damages or financial assistance in relation to personal injury under any of the following— (a) the Anti-Discrimination Act 1991, section 209(1)(b); (b) the Civil Aviation (Carriers' Liability) Act 1964, including the applied provisions as defined under that Act; (c) the Victims of Crime Assistance Act 2009; (d) the repealed Criminal Offence Victims Act 1995, as it continues to apply under the Victims of Crime Assistance Act 2009, chapter 6, part 2; (e) the Criminal Code, repealed section 663D, as it continues to apply under the Victims of Crime Assistance Act 2009, chapter 6, part 2. (6) This section does not affect the general application of chapter 3, part 1 or 2. (7) In subsection (4)— act includes omission. 7 Provisions of this Act that are provisions of substantive law (1) Provisions of this Act that provide for the kinds of damage, and the amount of damages, that may be recovered by a person, and the provisions of chapter 2, part 1, divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, law. (2) Despite subsection (1), notice of a claim is to be given in the form approved for a notice of a claim when the notice is given. (3) Also, subsection (2) has effect for notice of a claim given before the commencement of this subsection. Part 3 Interpretation 8 Definitions The dictionary in schedule 1 defines particular words used in this Act. Chapter 2 Claims Part 1 Pre-court procedures Division 1AA Requirements for law practice certificates 8A Application of division to potential claimants In this division, a reference to a claimant includes a reference to a potential claimant. 8B Meaning of law practice certificate (1) A law practice certificate is a certificate in a form approved by the commissioner that states the matters mentioned in subsections (2) to (4). (2) The certificate must state— (a) the supervising principal and each associate of the law practice have not— (i) given, agreed to give or allowed or caused someone to give consideration to another person for a claim referral or potential claim referral for the claim in contravention of section 71(1); or (ii) received, agreed to receive or allowed or caused someone else to receive consideration from another person for a claim referral or potential claim referral for the claim in contravention of section 71(2); or (b) if the supervising principal believes section 71 does not apply because of section 71(3)—the reasons for the belief. (3) Also, the certificate must state— (a) the supervising principal and each associate of the law practice have not personally approached or contacted the claimant and solicited or induced the claimant to make the claim in contravention of section 71B; or (b) if the supervising principal believes section 71B does not apply because of section 71B(3)—the reasons for the belief. (4) In addition, if the claim is a speculative personal injury claim, the certificate must state the costs agreement relating to the claim complies with section 71E or the Legal Profession Act 2007, section 347. (5) The law practice certificate must be signed by the supervising principal and verified by statutory declaration. (6) To remove any doubt, it is declared that this section does not require or permit the supervising principal of a law practice to give information about communication with a claimant that is subject to legal professional privilege. (7) In this section— consideration, for a claim referral or potential claim referral, see section 71A. speculative personal injury claim see the Legal Profession Act 2007, section 346. 8C Law practice retained by claimant before notice of claim or urgent proceeding (1) This section applies if a law practice is retained by a claimant to act in relation to the claimant's claim before— (a) the claimant has given notice of the claim under section 9 or 9A; or (b) an urgent proceeding for the claim is started under division 5. (2) The supervising principal of the law practice must— (a) complete a law practice certificate for the claim; and (b) give the certificate to the claimant before the claimant gives notice of the claim or the urgent proceeding is started. Maximum penalty—300 penalty units. 8D Supervising principal can not complete law practice certificate or notice (1) This section applies if the supervising principal of a law practice can not comply with section 8C, 8F, 9C, 13A or 61 in relation to a claim. (2) Either of the following may complete and give the law practice certificate or notice mentioned in section 8F(3) for the supervising principal to satisfy the section— (a) another principal of the law practice; (b) if the supervising principal is the only principal of the law practice—a lawyer nominated by the supervising principal. 8E False or misleading law practice certificate A supervising principal of a law practice must not sign or give to a claimant, potential claimant, respondent or respondent's insurer, a law practice certificate or copy of a law practice certificate the principal knows is false or misleading in a material particular. Maximum penalty—300 penalty units. 8F Law practice referral through sale of business (1) This section applies if— (a) a law practice (the current practice) sells all or part of the law practice's business to another law practice (the new practice); and (b) as part of the sale, a claimant is to be referred to the new practice; and (c) the claimant has not or will not have given notice of the claim under section 9 before the referral occurs. (2) The supervising principal of the current practice must, before the referral occurs— (a) complete a law practice certificate for the claim; and (b) give the law practice certificate to the new practice and a copy of the certificate to the claimant. Maximum penalty—300 penalty units. (3) If the new practice does not receive the law practice certificate mentioned in subsection (2), the supervising principal of the new practice must, as soon as practicable— (a) complete a notice that states the new practice has not received the certificate; and (b) give the notice to the commissioner. Division 1 Claims 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) if a law practice is retained by the claimant to act in relation to the claim and section 9A does not apply in relation to the claim—be accompanied by— (i) a copy of the law practice certificate for the claim given under section 8C by the supervising principal of the law practice; and (ii) if the claimant has received a copy of a law practice certificate for the claim under section 8F(2)(b)—the copy of the certificate; and (d) 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, whether before or after the commencement of this subsection, is to be disregarded. (9B) This section is subject to section 9A. (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. 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— (a) the claimant's full name and address; (b) any other name by which the claimant is known or has been known; (c) if the initial notice is given by the claimant's parent or legal guardian, the parent's or guardian's name; (d) the claimant's date of birth; (e) a description of the medical services alleged to have given rise to the personal injury; (f) if known, the name of the doctor who provided the medical services; (g) the date or dates when the medical services were provided; (h) the place or places at which the medical services were provided; (i) a description of the personal injury alleged to have been suffered. (3A) If a law practice is retained to act in relation to the claim, the initial notice must also be accompanied by— (a) a copy of the law practice certificate for the claim given under section 8C by the supervising principal of the law practice; and (b) if the claimant has received a copy of a law practice certificate for the claim under section 8F(2)(b)—the copy of the certificate. (4) The initial notice must be given within the period ending on the earlier of the following days— (a) the day 9 months after the day the medical incident happened or, if symptoms of the personal injury arising out of the incident were 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. (5) If the claimant is a child, the child's parent or legal guardian may give the initial notice for the child. (6) If the initial notice is not given within the period prescribed under subsection (4), the obligation to give the initial notice continues and a reasonable excuse for the delay must be given in the initial notice to the person against whom the proceeding is proposed to be started. (6A) If an initial notice, given after the commencement of this subsection, is not given within the period prescribed under subsection (4), the claimant is taken to have a reasonable excuse for subsection (6) 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 the initial 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 the initial 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 the initial notice to the person as soon as practicable after the complaint is finalised under the Health Ombudsman Act 2013. (7) If the person against whom the proceeding is proposed to be started is the State or an entity with the privileges and immunities of the State, the giving of the initial notice is effective for subsection (2) only if it is given to— (a) if the place at which the medical incident happened is a place under the control of a Hospital and Health Service—the health service chief executive of the Hospital and Health Service; or (b) if paragraph (a) does not apply—the chief executive officer of the department or entity having control of the place at which the medical incident happened. (8) A person to whom an initial notice is given must, within 1 month after receiving the initial notice, give the claimant— (a) a written response advising whether any documents are held in relation to the medical services mentioned in the notice; and (b) copies of all documents held by the person about the medical services. (9) The claimant— (a) may give part 1 of the notice of the claim only after giving the initial notice; and (b) must give part 1 of the notice within 12 months after the respondent complies with subsection (8); and (c) is not required to comply with section 9(3); and (d) must, as part of giving a complying part 1 notice of claim, give a written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury, stating, in the medical specialist's opinion— (i) that there was a failure to meet an appropriate standard of care in providing medical services; and (ii) the reasons justifying the opinion; and (iii) that as a result of the failure, the claimant suffered personal injury; and (e) must give the report mentioned in paragraph (d) when giving part 1 of the notice of claim. (10) If the claim is based on, or includes, an allegation of a failure to warn of a risk in relation to the provision of medical services, it is not necessary for subsection (9) for the report to comment on, or address, the alleged failure. (11) To remove any doubt, it is declared that subsection (4)(a), to the extent that it provides that 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. (12) No obligation exists on a person to whom an initial notice is given to investigate, assess or respond to the initial notice other than as required by subsection (8). (13) For subsection (4)(b), consultation by a claimant with a community legal service is to be disregarded. (14) In this section— Hospital and Health Service means a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17. medical incident means an accident, or other act, omission or circumstance involving a doctor happening during the provision of medical services. medical specialist means a person registered or eligible for registration under the Health Practitioner Regulation National Law to practise in the medical profession as a specialist registrant. 9B Law practice certificate not given (1) This section applies if— (a) the supervising principal of a law practice in relation to a claim fails to give a law practice certificate to the claimant as required under section 8C; and (b) because of the principal's failure, the claimant— (i) can not comply with the requirements of section 9(2) within the period mentioned in section 9(3) or 9A(9)(b); and (ii) terminates in writing the engagement of the law practice to act for the claimant in relation to the claim. (2) The principal— (a) must, within 14 days after the termination, refund to the claimant all fees and costs, including disbursements, paid by the claimant in relation to the claim; and (b) can not charge or recover from the claimant any further fees and costs in relation to the claim. (3) In this section— claimant includes a potential claimant. 9C Law practice retained by claimant after notice of claim (1) This section applies if a law practice is retained to act in relation to a claimant's claim after the claimant has given notice of the claim under section 9. (2) The supervising principal of the law practice in relation to the claim must within 1 month after the practice is retained— (a) complete a law practice certificate for the claim; and (b) give a copy of the law practice certificate to the respondent to the claim mentioned in section 12(1). Maximum penalty—300 penalty units. 10 Person to whom notice of a claim is given must give preliminary response to claimant (1) A person to whom part 1 of a notice of a claim is given must, in writing and within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving part 1 of the notice— (a) if the person considers that the person is a proper respondent to the claim, give notice to the claimant under section 12; or (b) if the person is unable to decide on the information contained in part 1 of the notice whether or not the person is a proper respondent to the claim, advise the claimant of the further information the person reasonably needs to decide whether the person is a proper respondent to the claim; or (c) if the person considers that the person is not a proper respondent to the claim, give the claimant, in writing— (i) reasons why the person considers the person is not a proper respondent to the claim; and (ii) any information the person has that may help the claimant to identify a proper respondent to the claim. Maximum penalty—100 penalty units. (2) If the claimant is advised of the need for further information under subsection (1)(b), the claimant must— (a) give the person the information the person reasonably needs to decide whether the person is a proper respondent to the claim; or (b) advise the person, in writing, that the claimant considers the person to be a proper respondent to the claim and require the person to give notice to the claimant under section 12. (3) After being given information under subsection (2)(a), the person must, having regard to the information given to the person— (a) if the person considers that the person is a proper respondent to the claim, give notice to the claimant under section 12; or (b) if the person considers that the person is not a proper respondent to the claim, give the claimant, in writing— (i) reasons why the person believes the person is not a proper respondent to the claim; and (ii) any information the person has that may help the claimant to identify a proper respondent to the claim. Maximum penalty—100 penalty units. (4) If the person advises the claimant that the person considers the person is not a proper respondent to the claim, the claimant must advise the person, in writing, that— (a) on the information available to the claimant, the claimant accepts the person is not a proper respondent to the claim; or (b) the claimant considers the person to be a proper respondent to the claim and requires the person to give notice to the claimant under section 12. (5) Advice given to a person under subsection (4)(a) does not prevent the claimant from giving the person another part 1 of a notice of a claim under section 9 at a later time. 11 Acknowledgement that a person is a proper respondent to a claim is not an admission of liability (1) Notice by a person that the person considers that the person is a proper respondent to a claim is not an admission of liability by the person in relation to the claim. (2) Also, a person does not breach a term or condition of any relevant insurance policy only because the person gives notice under subsection (1). (3) Further, an insurer does not agree to indemnify a person under any relevant insurance policy only because the insurer gives notice on behalf of the person under subsection (1). (4) Subsection (2) or (3) has effect whether the notice under the subsection was given before or after the commencement of the subsection. 12 Respondent's response to part 1 of a notice of a claim (1) This section applies to a person (respondent) to whom part 1 of a notice of a claim is given under this division or purportedly under this division and who— (a) considers himself, herself or itself to be a proper respondent to the claim; or (b) is given notice under section 10(2)(b) or (4)(b) that the claimant considers the person to be a proper respondent to the claim. (2) The respondent must, within the prescribed period, give the claimant written notice— (a) stating whether the respondent is satisfied that part 1 of the notice is a complying part 1 notice of claim; and (b) if the respondent is not satisfied, identifying the noncompliance and stating whether the respondent waives compliance with the requirements; and (c) if the respondent does not waive compliance with the requirements, allowing the claimant a reasonable period, of at least 1 month, specified in the notice either to satisfy the respondent that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the noncompliance. (3) If the respondent is not prepared to waive compliance with the requirements in the first instance, the respondent must, within 1 month after the end of the period specified under subsection (2)(c), give the claimant a written notice— (a) stating that the respondent is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance, or waives the noncompliance in any event; or (b) stating that the respondent is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, and giving full particulars of the noncompliance and the claimant's failure to remedy it. (4) In this section— prescribed period means— (a) if the respondent responds directly to the claimant under this section as contemplated by section 10(1)(a)—the period prescribed under section 10(1); or (b) otherwise— (i) the period prescribed under a regulation; or (ii) if no period is prescribed, the later of the following— (A) if the respondent gives notice to the claimant under section 10(3)(a) that the respondent is a proper respondent to the claim—1 month after the respondent is given the further information under section 10(2)(a); (B) if the claimant advises the respondent under section 10(2)(b) or (4)(b) that the claimant considers the person to be a proper respondent to the claim and requires the person to give notice to the claimant under this section—1 month after the claimant advises the respondent under the paragraph. 13 Consequences for respondent of failure to respond to part 1 of a notice of a claim If a claimant gives part 1 of a notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to it under section 10 or 12 within the prescribed period under the section, the person is conclusively presumed to be satisfied it is a complying part 1 notice of claim. 13A Duty to give law practice certificate if waiver or presumption (1) This section applies if— (a) a claimant gives notice of the claimant's claim that does not comply with section 9(2)(c)(i); and (b) the respondent to the claim— (i) waives compliance with the requirements under this division for giving notice of the claim; or (ii) is presumed to be satisfied notice has been given as required under this division. (2) If the supervising principal of a law practice gave the claimant a law practice certificate for the claim under section 8C but the claimant has not given the certificate to the respondent, the supervising principal must, as soon as practicable, give a copy of the certificate to— (a) the respondent; and (b) if the respondent's insurer has responded to part 1 of the claimant's notice of claim—the respondent's insurer. (3) Subsection (4) applies if— (a) the supervising principal of a law practice retained by the claimant in relation to the claimant's claim did not give the claimant a law practice certificate for the claim under section 8C; and (b) the claimant has not subsequently given the respondent a law practice certificate for the claim from the supervising principal. (4) The supervising principal must, within 1 month after the claimant is notified of the waiver or the presumption takes effect— (a) complete a law practice certificate for the claim; and (b) give the certificate to the respondent and a copy of the certificate to— (i) the claimant; and (ii) if the respondent's insurer has responded to part 1 of the claimant's notice of claim—the respondent's insurer. Maximum penalty for subsection (4)—300 penalty units. 14 Claimant may add other respondents (1) A claimant may, within the time prescribed under a regulation, add someone else as a respondent by giving the person— (a) part 1 of a notice of a claim mentioned in section 9; and (b) copies of other documents given to or received from any other respondent under this Act. (2) If the time prescribed under subsection (1) for adding a respondent has ended, the claimant may add someone else as a respondent only with the person's agreement and the agreement of the parties or with the court's leave. (3) If a claimant adds someone as a respondent under this section— (a) the person must respond to part 1 of the notice as if it were given under section 9; and (b) the claimant must notify each other party of the addition by written notice within the time prescribed under a regulation. 15 Multiple respondents (1) If there are 2 or more respondents to a claim, 1 of the respondents (the respondents' claim manager) may act for 1 or more of the other respondents under this division, division 2 and part 3 with the agreement of the other respondents. (2) The respondents' claim manager— (a) may exercise the powers and perform the duties conferred by this division, division 2 and part 3 in relation to the claim and the claimant for all respondents for whom the respondents' claim manager acts; and (b) must act as far as practicable with the agreement of the other respondents for whom the respondents' claim manager acts. (3) Action taken or an agreement made by the respondents' claim manager in relation to the claim is binding on each respondent for whom the respondents' claim manager acts so far as it affects the claimant. (4) However, if the respondents' claim manager acts beyond the scope of the respondents' claim manager's authority under the agreement under subsection (1), the respondents' claim manager is liable to each other respondent who is a party to the agreement for any loss suffered by the other respondent. (5) If there are 2 or more respondents to a claim and a respondents' claim manager is not acting for all the respondents, the respondents must cooperate with each other, to the greatest extent practicable, to ensure that all respondents are in a position to participate in the compulsory conference with the claimant at the earliest possible opportunity. 16 Respondent may add other person as contributor (1) A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice (contribution notice)— (a) claiming an indemnity from, or contribution towards, the respondent's liability; and (b) stating the grounds on which the respondent holds the person liable; and (c) stating any other information that may be prescribed under a regulation; and (d) accompanied by copies of documents about the claim given to or received from any other party under this Act. (2) If the time prescribed under subsection (1) for adding a contributor has ended, a respondent may add someone else as a contributor only with the person's agreement and the agreement of the parties or with the court's leave. (3) If a respondent adds someone as a contributor under this section, the respondent must give a copy of the contribution notice to each other party within the time prescribed under a regulation. Maximum penalty for subsection (3)—50 penalty units. 17 Contributor's response (1) A contributor must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a contribution notice, give the respondent who gave the contribution notice a written response (contributor's response)— (a) containing a statement of information prescribed under a regulation; and (b) accompanied by any documents that may be prescribed under a regulation. (2) The contributor's response must also state— (a) whether the claim for the contribution or indemnity claimed in the contribution notice is admitted, denied or admitted in part; and (b) if the claim for the contribution or indemnity is admitted in part, the extent to which it is admitted. (3) An admission of liability in the contributor's response— (a) is not binding on the contributor in relation to any other claim; and (b) is not binding on the contributor at all if it later appears the admission was induced by fraud. (4) If the respondent requires information provided by a contributor under this section to be verified by statutory declaration, the contributor must verify the information by statutory declaration. 18 Claimant's failure to give part 1 of a notice of a claim (1) A claimant's failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless— (a) the respondent to whom part 1 of a notice of a claim was purportedly given— (i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or (b) the respondent has waived compliance with the requirement; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant's failure to comply with the requirement. (3) This section does not affect the application of section 13A. 19 Legal disabilities (1) A claimant's obligation to comply with this division is suspended while the claimant is under a legal disability. Note— If the claimant is a child, under section 9(4) a parent or guardian of the child may give the notice mentioned in section 9 for the child. (2) A period within which the obligation is to be complied with begins when the claimant's legal disability ends and, to give effect to this part, this chapter is to be read as though a reference to the day the incident giving rise to the personal injury happened were a reference to the day the claimant's legal disability ends, and with other necessary changes. (3) This section does not prevent a claimant, or a person acting for the claimant, from complying with an obligation under this chapter while the claimant is under a legal disability. (4) A claimant is under a legal disability for this section in the circumstances in which a person is taken to be under a disability for the Limitation of Actions Act 1974. 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— (a) 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 (b) give the claimant written notice stating— (i) whether liability is admitted or denied; and (ii) if contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and (c) 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 (d) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (e) 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. (2) If part 1 of a notice of a claim is not a complying part 1 notice of claim, a respondent is taken to have been given a complying part 1 notice of claim when— (a) the respondent gives the claimant notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or (b) the court makes a declaration that the claimant is taken to have remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance. (3) An offer, or counter offer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer's possession that may help the person to whom the offer is made make a proper assessment of the offer. (4) A respondent or claimant to whom a written offer, or counter offer, of settlement is made must, unless a response to the offer is to be made under subsection (1)(c), respond in writing to the offer within the period prescribed under a regulation or, if no period is prescribed, within 3 months after receiving it, indicating acceptance or rejection of the offer. (5) An admission of liability by a respondent under this section— (a) is not binding on the respondent in relation to any other claim; and (b) is not binding on the respondent at all if it later appears the admission was induced by fraud. Division 1A Special provisions for notification of claims in relation to injuries to children arising out of medical treatment 20A Limitation of actions not affected This division does not limit or affect the Limitation of Actions Act 1974. 20B Application of div 1A (1) This division applies if the claimant is, or at the time of the cause of action arose was, a child and the personal injury to which the claim relates arises or arose out of the provision of medical treatment to the claimant. (2) This division applies regardless of when the personal injury to which the claim relates arose. 20C Notice of claim for damages for child (1) A parent or legal guardian of the claimant must give part 1 of a notice of a claim under section 9 for the claimant before the earlier of the following days— (a) the day 6 years after the day when the parent or legal guardian knew or ought reasonably to have known that the personal injury had occurred; (b) the day 18 months after the day the parent or legal guardian first consults a practitioner about the possibility of seeking damages for the personal injury. (2) A practitioner acting for a parent or legal guardian required by subsection (1) to give part 1 of a notice of a claim for a child must, as soon as practicable after being instructed by the parent or legal guardian to give part 1 of the notice to the person against whom the proceeding is proposed to be started, give part 1 of the notice to that person. (3) A failure by the practitioner to comply with subsection (2) is professional misconduct. (4) For subsection (1)(b), consultation by a claimant with a community legal service, whether before or after the commencement of this subsection, is to be disregarded. 20D Respondent may apply for late claim not to proceed If part 1 of the notice is given after the time mentioned in section 20C, the person to whom part 1 of the notice is given may apply to the court for an order that the claim not proceed further. 20E To what the court must have regard in deciding application In deciding an application under section 20D, the court must consider the justice of the case having regard to the following— (a) the extent of the injuries; (b) the reason for the delay in giving part 1 of the notice; (c) any prejudice suffered by the applicant as a result of the delay; (d) the nature of the parties' conduct; (e) any other relevant matter. 20F Court may order that certain costs not be recovered (1) This section applies if an application under section 20D is dismissed. (2) The claimant is not entitled to recover any of the following amounts in relation to any period before the giving of part 1 of the notice, unless the court orders otherwise— (a) an amount for costs incurred by the claimant's parent or legal guardian for medical or other expenses, or legal costs paid or incurred; (b) an amount for gratuitous services provided by the parent or legal guardian. 20G Notice of adverse incidents (1) A person who provides medical treatment to a child may give a parent or legal guardian of the child a written notice of an adverse event arising out of the treatment. (2) The notice may be accompanied by an expression of regret under the Civil Liability Act 2003, chapter 4, part 1 or an offer to remedy any harm suffered as a result of the incident, or both an expression of regret and offer. (3) A notice of an adverse event is not an admission of liability and is inadmissible in any subsequent proceeding in relation to the event, other than a proceeding mentioned in section 20H. (4) A person who gives a notice of an adverse event must as soon as practicable after giving the notice give to the public trustee a copy of the notice and any document provided to a parent or legal guardian with the notice. 20H Time by which claim must be made after notice of adverse incident (1) If a notice of an adverse event is given, and part 1 of a notice of a claim under section 9 is not given within the time prescribed under section 20C, notice of a claim under section 9 can be given only with the leave of the court. (2) The onus of showing why the claim should proceed is with the claimant. 20I Matters to which the court must have regard in deciding application In deciding whether leave should be granted under section 20H to give a notice of a claim, the court must consider the justice of the case having regard to the following— (a) the extent of the injuries; (b) the reason for the delay in giving part 1 of the notice; (c) any prejudice suffered by the respondent as a result of the delay; (d) the nature of the parties' conduct; (e) any other relevant matter. 20J Court may order that certain costs not be recovered (1) This section applies if the court grants leave to give notice of a claim under section 20H. (2) The claimant is not entitled to recover any of the following amounts in relation to any period before giving part 1 of the notice of a claim, unless the court orders otherwise— (a) an amount for costs incurred by the claimant's parent or legal guardian for medical or other expenses, or legal costs paid or incurred; (b) an amount for gratuitous services provided by the parent or legal guardian. Division 2 Obligations of the parties 21 Purpose of div 2 The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim. 22 Duty of claimant to provide documents and information to respondent (1) A claimant must give a respondent— (a) copies of the following in the claimant's possession— (i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates; (ii) reports about the claimant's medical condition or prospects of rehabilitation; (iii) reports about the claimant's cognitive, functional or vocational capacity; and (b) information reasonably requested by the respondent about any of the following— (i) the incident; (ii) the nature of the personal injury and of any consequent disabilities; (iii) if applicable, the medical treatment and rehabilitation services the claimant has sought or obtained; (iv) the claimant's medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant; (v) the claimant's claim for past and future economic loss; (vi) any claim known to the claimant for gratuitous services or loss of consortium or servitium consequent on the claimant's personal injury. (2) If the claim is a health care claim, the claimant must, if reasonably requested by a respondent, give the respondent a single report from a doctor with appropriate qualifications and experience in the relevant field that includes an opinion regarding— (a) the nature and extent of the personal injury alleged to have been suffered; and (b) the causal relationship between the incident and the personal injury alleged to have arisen from the incident. (3) The respondent may not request a report under subsection (2) if a similar report has already been given under subsection (1). (4) However, the giving of a report under subsection (2) does not limit the respondent's right to require the claimant to undergo an examination or assessment under section 25. (5) The claimant must— (a) provide the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after giving notice of a claim under division 1 or purportedly under division 1 and, to the extent that the reports or material come into the claimant's possession later, within 7 days after they come into the claimant's possession; and (b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it. (6) If, after notice of a claim is given to a respondent under division 1 or purportedly under division 1 but before the claim is resolved, the claimant becomes aware of— (a) a change in the claimant's medical condition or disabilities; or (b) a change in other circumstances relevant to an assessment of the claimant's claim; the claimant must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after becoming aware of the change, inform the respondent of the change. (7) If a respondent requires information provided by a claimant under this section to be verified by statutory declaration, the claimant must verify the information by statutory declaration. (8) If a claimant fails, without proper reason, to comply fully with a request by a respondent under this section, the claimant is liable for costs to the respondent resulting from the failure. (9) In this section— health care means any care, treatment, advice, service or goods provided in relation to the physical or mental health of a person. health care claim means a claim against a health care provider in relation to personal injury caused entirely or partly by the fault of the health care provider in providing health care. health care provider means— (a) a person who is registered under the Health Practitioner Regulation National Law in a health profession; or (b) a provider of a public sector health service as defined under the Hospital and Health Boards Act 2011, schedule 2; or (c) a licensee of a private health facility as defined under the Private Health Facilities Act 1999, section 8. 23 Respondent and claimant may jointly arrange for expert report (1) A respondent and a claimant may jointly arrange for an expert report about all or any of the following— (a) the cause or probable cause of the incident alleged to have given rise to the personal injury to which the claim relates and whether, in the expert's opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the incident; (b) the cause or probable cause of the personal injury to which the claim relates and whether, in the expert's opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the injury; (c) the claimant's medical condition or prospects of rehabilitation; (d) the claimant's cognitive, functional or vocational capacity. (2) Neither a respondent nor a claimant is under any obligation to agree to a proposal to obtain a report under this section. (3) The person from whom an expert report is obtained is to be a person, agreed to by both parties, with appropriate qualifications and experience in the relevant field. (4) The person preparing the expert report must give both parties a copy of the report. 24 Costs of obtaining expert report if report obtained by agreement (1) If an expert report is obtained by agreement between a respondent and a claimant, and the claimant is liable for the cost of obtaining the report, the respondent must, at the claimant's request, reimburse the claimant for the reasonable cost of obtaining the report. (2) However, a claimant's right to reimbursement under this section is subject to the terms of any agreement between the claimant and the respondent. 25 Examination of claimant by medical expert in absence of agreement between the parties (1) This section applies if a respondent wants to obtain an expert report about all or any of the following, but fails to obtain the claimant's agreement— (a) the cause or probable cause of the incident alleged to have given rise to the personal injury to which the claim relates and whether, in the expert's opinion, 1 or more persons (who may be named), are responsible for, or contributed to, the incident; (b) the cause or probable cause of the personal injury to which the claim relates and whether, in the expert's opinion, 1 or more persons (who may be named) are responsible for, or contributed to, the injury; (c) the claimant's medical condition or prospects of rehabilitation; (d) the claimant's cognitive, functional or vocational capacity. (2) The claimant must comply with a request by the respondent to undergo, at the respondent's expense either or both of the following— (a) a medical examination by a doctor to be selected by the claimant from a panel of at least 3 doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request; (b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience in the relevant field nominated by the respondent in the request. (3) However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious. (4) If 3 doctors or experts with appropriate qualifications and experience in the relevant field are not available for inclusion on a panel under subsection (2), the number on the panel may be reduced to 2. 26 [Repealed] 27 Duty of respondent to give documents and information to claimant (1) A respondent must give a claimant— (a) copies of the following in the respondent's possession that are directly relevant to a matter in issue in the claim— (i) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates; (ii) reports about the claimant's medical condition or prospects of rehabilitation; (iii) reports about the claimant's cognitive, functional or vocational capacity; and (b) if asked by the claimant— (i) information that is in the respondent's possession about the circumstances of, or the reasons for, the incident; or (ii) if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident. (2) A respondent must— (a) give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent's possession later, within 7 days after it comes into the respondent's possession; and (b) respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it. (3) If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration. (4) If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure. 28 Duty of respondent to give documents to contributor (1) A respondent must give a contributor for the claim added by the respondent copies of the following in the respondent's possession— (a) reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates; (b) reports about the claimant's medical condition or prospects of rehabilitation; (c) reports about the claimant's cognitive, functional or vocational capacity; (d) reports about the claimant's personal injury and of any consequent disabilities; (e) if applicable, information about the medical treatment and rehabilitation services the claimant has sought or obtained; (f) informati