INTRODUCTION

This paper will be limited to the effect of the amendments to the Personal Injuries Proceedings Act through the Civil Liability Act in so far as those amendments impact upon the notice provisions and the obligations of the parties in Chapter 2, Part 1, Divisions 1, 1A and 2 of the PIPA. Reference in this paper to various sections of the PIPA refers to Reprint 1A (the Act as amended at 9 April 2003).

NOTICE PROVISIONS

A. New Notice Of Claim Form – General Comments

The first and most important point to note is that the Notice of Claim now comes in two parts – Part 1 and Part 2. This is in respect of all claims, including health care claims (subject to the comments post). Essentially, the notice provisions in the pre-amended PIPA now apply to Part 1 of the new notice – that is to say, the same time constraints etc as apply to a Notice of Claim now apply to Part 1 of a Notice.

B. When Do You Need To Deliver A Notice Of Claim In The New Form?:

i. Incidents occurring on or after 9 April 2003
The amended notice provisions apply to any incident occurring on or after 9 April 2003.

ii. Incidents occurring prior to 9 April 2003
The transitional provisions are contained at ss78 to 81 of the PIPA.

S.79 effectively provides that the provisions of the pre-amended PIPA in relation to the notice provisions, i.e. ss 9, 10, 12, 13, 14, 16 and 18 continue to apply if a notice of claim has been given under the pre amended Act ie before 9 April 2003. (ss.79(1) and (2)).

Essentially therefore if a Notice of Claim was given prior to 9 April 2003, the pre-amended PIPA applies. The question is however, was a compliant Notice of Claim required prior to 9 April 2003?

S.79(3) provides that for the purposes of s.79(2) the definition “complying Notice of Claim” in the schedule of the pre-amended Act also continues to apply. Similarly, reference in the PIPA to a notice of claim will undoubtedly be judicially determined to be a complying notice as it is under the MAIA. It therefore seems that unless a compliant Notice of Claim was given prior to 9 April 2003 a claimant may be required to deliver a Notice of Claim in the new form. Certainly if no Notice of Claim had been delivered prior to 9 April 2003 the new form must be used.

This issue seems to be one causing some consternation among respondents. Some respondents take the view that absent the respondent complying the notice prior to 9 April a notice in the new form must be delivered. The majority of respondents appear however to be adopting a more reasonable approach.

The issue of whether s.79(1) refers to a complying NOC was recently raised before Wilson SC DCJ in Stanton -v- DMK Forest Products Pty Ltd (see post). His Honour declined to make any specific ruling on the point.

The issue as to whether or not a Notice of Claim has been delivered prior to the commencement of the amending Act is of course relevant to any question of delay should a further Notice of Claim be required to be delivered in the new form.

C. The New Claim Form

As stated, the new claim form comprises Part 1 and Part 2. In respect of non health care claims practitioners should be using Version 3 and in respect of health care claims practitioners should be using Version 4. For dependency claims Version 2 should be used.

Part 1 of the new Notice of Claim contains details of the claimant, a description of the incident, details of medical treatment, details of the circumstances surrounding the incident and who caused the incident, details of medical treatment provided and details of any relevant pre-existing medical conditions or injuries.

D. What Needs To Be Sent With Part 1 Of The Notice Of Claim?

i. Non Health Care Claims

Part 1 of the Notice of Claim must be accompanied by a copy of any medical certificate relating to the injuries, and, if appropriate a diagram of the scene of the incident. In respect of dependency claims a copy of the death certificate should also be provided (s.9(2)(c) and also see regulations – s.5(1)).

ii. Health Care Claims

A Notice of Claim in respect of a health care matter must be preceded by an Initial Notice (this will be discussed in more detail post). Part 1 of the Notice must be accompanied by :-

• A copy of any advice or warnings provided to the injured person by the health care provider about the treatment (reg 5(1)(c));
• A copy of any consent provided to the health care provider by the injured person about the treatment alleged to have given rise to the personal, injury (reg 5(1)(d));
• A written report from a medical specialist stating :-
  • That there was a failure to meet an appropriate standard of care;
  • The reasons justifying the opinion.
  • That as a result of the failure the claimant suffered personal injury (see s.9A(9)(d) – discussed post).

E. When Is The Notice Required To Be Given?

In respect of non health care claims, Part 1 of the Notice of Claim is required to be given within nine months of the date of injury or the first occurrence of symptoms (whichever is later) or one month from the date of first consultation with a lawyer whichever is the earlier.

F. Part 2 Of The Notice Of Claim

i. When is Part 2 of the notice required to be given?

Part 2 of the notice is required to be given within two (2) months from the earlier of either:

• The date of compliance with s.10(1); or
• The date s.13 operates to deem the notice compliant.

It is therefore very important for practitioners to take careful note of s.10(1) in terms of the timing of the delivery of Part 2 of the notice. The two months will run from the date:-

(a) The respondent, in the first instance, acknowledges that it is a proper respondent (s.10(1)(a));

(b) The respondent asks for further information in order to decide whether it is a proper respondent (s.10(1)(b));

(c) The respondent advises that it is not a proper respondent and providing reasons (s.10(1)(c)).

Practitioners should therefore note that even where a respondent responds by denying that it is a proper respondent the two month period within which to deliver Part 2 of the notice is triggered.

Note that the Act does not require a reasonable excuse for the late delivery of Part 2, nor is Part 2 of a Notice subject to compliance issues. A respondent would however have the ability to make an application pursuant to s.35 if there was an assertion that Part 2 had not been properly given.

ii. Documents Accompanying Part 2 of a Notice of Claim

Part 2 of the Notice of Claim must be accompanied by copies of any other documents relevant to the personal injury, economic loss treatment or rehabilitation that is in the claimant’s possession. In this regard note the provisions of Regulation 5(1).

G. Delay In Giving Part 1 Of A Notice

Delay in the delivery of Part 1 of a notice must be accompanied by a reasonable excuse for such delay. It is outside the scope of this paper to consider in detail the issue of “reasonable excuse” and the recent developments in this area of the law. The issue of reasonable excuse for delay has rapidly become one of some significance following the decision in Piper v The Nominal Defendant [2003] QSC039. Clearly most respondents are now taking the view that an excuse must be one entirely to the satisfaction of the respondent. Indeed, some respondents are going so far as to suggest that a failure to provide a notice within the required time and in the absence of a reasonable excuse results in the claim being statute barred.

Note however the decision in Miller v The Nominal Defendant [2003] QSC081. Miller was determined some eight weeks after Piper. In MillerFryberg J was somewhat unimpressed with the excuse for the delay in giving notice in an unidentified vehicle claim. Accordingly His Honour was not prepared to order that the notice was compliant. Nevertheless in considering, inter alia, the justice of the case, and the absence of any real prejudice to the Defendant, His Honour permitted proceedings to be commenced pursuant to s.39(5)(c)(ii) of the MAIA (the equivalent of s.18(1)(c)(ii) PIPA).

Practitioners should also note the decision in Nicol v Caboolture Shire Council [2003] QDC033. Robin DCJ was faced with a claim involving a late PIPA notice in which His Honour acknowledged that there was a “paucity of evidence” on the issue of the excuse for the delay. There was no suggestion of prejudice. His Honour permitted proceedings to be commenced pursuant to s.43 (the limitation period was imminent) and made an additional order pursuant to s.18(1)(c)(ii). The issue of the reasonableness of the excuse for the delay was thus neatly sidestepped. It is however the author’s understanding that consideration is being given to appealing this decision.

Most recently the issue of reasonable excuse for delay was considered by Wilson SC DCJ in two judgements delivered on 16 May 2003 in the Southport District Court, Sarina -v- Thursday Afternoon Pty Ltd andStanton -v- DMK Forest Products Pty Ltd. In both cases, the insurer for the respondent was Suncorp.

In Sarina the claimant was injured on 4 February 2002 in a bar assault. The relevant chronology was:
04/02/02 date of incident
22/02/02 claimant consults solicitor
25/02/02 solicitors write to respondent
20/03/02 Suncorp write back advising that they are insurer
March 02 –
August 02 various communications between the parties
13/01/03 claimant forwards orthopaedic report and advising that PIPA NOC would be delivered
30/01/03 NOC sent
26/02/03 Suncorp write and state NOC out of time

His Honour considered the decision in Piper and what is meant by the term “reasonable excuse”. His Honour considered that:

• The early notice of the claim;
• The ongoing communications
• The invitation by the insurer to the claimant to submit medical evidence
• The failure by the insurer to state that it intended to rely upon the PIPA time limits
• The failure by the insurer to take the point until 2 months after the delivery of a NOC was first mooted gave rise to a reasonable excuse. His Honour accordingly made orders pursuant to s.18(1)(c)(i).

Wilson DCJ however observed that he would be prepared to make an order pursuant to s.18(1)(c)(ii). His Honour, relying upon Thomas -v- Transpacific Industries Pty Ltd (2003) 1 Qd R 328, found that the delay was short, that the respondent had not suffered any prejudice and that the claimant had a sustainable cause of action. No order as to costs was made.

In Stanton the facts were a little less favourable to the claimant. The relevant chronology was as follows:
11/12/02 claimant injured in the course of his employment whilst at other premises
13/12/02 claimant consults solicitor
18/12/02 solicitor sends letter of demand to respondent
30/01/02 Suncorp writes to solicitor advising failure to deliver NOC within time
03/02/03 solicitor writes to Suncorp advising that WorkCover file will be obtained and NOC will be delivered
17/02/03 Suncorp write to solicitor and advise that NOC must be served upon respondent
03/03/03 –
25/03/03 NOC forwarded to Suncorp
25/03/03 Suncorp write to solicitor advising NOC out of time and non compliant

Wilson DCJ considered the same issues as he had considered inSarina. In Stanton the delay was wholly attributable to the solicitor. The reasonable excuse, it was argued, was that the claimant had promptly engaged a solicitor and had therefore not delayed.

Wilson DCJ had difficulty with this argument and noted that a principal is ordinarily liable for the acts of his agent carried out within the scope of the agent’s authority. His Honour found that the provisions should be construed so that the excuse exculpates not only an applicant but his or her solicitor. A logical inconsistency would arise if the incompetence or negligence of a solicitor could excuse a claimant a lengthier delay than otherwise might be the case.

His Honour concluded that there was an absence of a reasonable excuse for the delay and thus the claim could not be deemed compliant. His Honour noted:

“The jurisdiction is to be exercised in a way which acknowledges the claimant is seeking an indulgence and has an obligation to demonstrate to the Court why he should be allowed to proceed with his claim.”

His Honour considered the decision in Thomas -v- Transpacific and specifically noted the following passage:

“Explanation for delay is a relevant factor but is only one factor for…consideration in exercising its discretion…under s39(5) (of the MAIA). …it was likely that the respondent would suffer some prejudice. The respondents did not point to specific prejudice. On the other hand, to refuse the application was to forever shut the applicant out of his cause of action against the respondent.”

In Stanton the respondent could point to no specific prejudice. The respondent however argued that the claim had little prospect of success and the claim should not be permitted to proceed. His Honour considered that the material, while sparse, suggested that the claim was not futile.

His Honour considered that:

• Early notice of the claim
• Short delay in the delivery of the NOC
• Absence of prejudice
• Viable claim pointed to the conclusion that the discretion to authorise further proceedings ought be exercised in the applicant’s favour.

The respondent also took the point that the transitional provisions effected under the CLA meant that, as a complying NOC had not been given before 9 April 2003, the claimant was obliged to re deliver an NOC in the new form. Wilson DCJ did not specifically rule on whether s.79(1) refers to a complying NOC. His Honour declined to impose conditions upon his granting leave for the claim to proceed despite non compliance.

Accordingly, even if a Court fails to consider an excuse reasonable, the Court may authorise a proceeding despite non compliance.

H. New Notice Provisions – Medical Negligence Claims

During the consultations leading up to the amendments to the PIPA, the issue of the introduction of an “initial notice” was canvassed by the Government with all relevant stakeholders. Medical insurers were concerned at the volume of Notices being received and the expense of dealing with such Notices within the time constraints imposed by the Act. Accordingly the idea of an initial notice, akin to the former MAIA s.34 notice, was suggested as a solution to address the situation. Initially the proposal was to limit the initial notice to other than failure to warn claims however this does not appear to the case in the Act.

The new notice provisions apply to “a medical incident” happening on or after 9 April 2003.

A “medical incident” is defined as “an accident, or other act, omission or circumstance involving a doctor happening during the provision of medical services”.

The explanatory notes to the medical negligence notice provisions state:

The new section applies to claims relating to allegations of medical negligence. The result of the new section will be that, prior to giving part 1 of a notice of a claim under that Act, a claimant will be required to provide an initial letter to the person they consider at fault, detailing certain defined information. This initial notice will be required to be provided within the time frame currently outlined for provision of part 1 of a notice. The person to whom the initial notice is given will have 1 month to respond in writing, advising whether they hold records relating to the treatment identified, and to provide copies of those documents. The claimant will then have a period of twelve months to assess those documents, obtain a medical report from a medical specialist and provide this report along with the part 1 of the notice of claim to the respondent. If the claim involves a failure to warn, the medical report is not required to address this allegation. The section provides that the claim will then enter into the current pre-court procedure under that Act. It is specifically provided that, during the period between the time at which the initial notice is given and the provision of the medical report and part 1 of the notice of claim, the person is not require to otherwise investigate the claim.

Clearly therefore the new provisions relate to all medical negligence claims including failure to warn cases.

In failure to warn cases however it is important to note that a claimant has the option of delivering an initial notice and Part 1 of a Notice of Claim simultaneously given the effect of s. s.9A(10) – ie an expert report does not need to deal with the issue of failure to warn.

The new notice provisions in respect of medical negligence claims concerned should be considered in two separate categories:-

(a) Non infant claims;
(b) Infant claims

A. Non Infant Claims

i. The initial notice

A new s.9(A) deals with medical negligence claims based on a medical incident happening on or after 9 April 2003. Part 1 of the notice must be preceded by an initial notice stating :-

(a) The claimant’s full name and address;
(b) Any other name by which the claimant is known or has been known;
(c) The parent or guardian’s name if applicable;
(d) The claimant’s date of birth;
(e) A description of the medical services;
(f) The name of the doctor who provided the medical services;
(g) The dates of the medical services;
(h) Where the medical services were provided;
(i) The nature of the injury suffered.

The initial notice must be given within nine months of the date the incident happened or the symptoms first arose (whichever is later) or within one month of the date of consultation with a lawyer, whichever is the earlier.

Failure to give the initial notice within the required time triggers the requirement for a reasonable excuse for the delay.

ii. Response to the initial notice

The respondent must respond to the initial notice within one month after receipt and provide:-

(a) A written response advising whether any documents are held in relation to the medical services; and
(b) Providing copies of all documents held by that person about the medical services. (s.9A(8)).

iii. Delivery of Part 1 of Notice of Claim

Part 1 of a Notice of Claim can only be given after an initial notice is provided. Part 1 must be given within twelve months after the respondent complies with its obligations under s.9A(8). To this extent the nine months/one month time regime is modified.

Part 1 must be accompanied by an expert report supporting the claim (s.9A(9)(d)), however in so far as the claim relates to a failure to warn, the report is not required to comment on or address the alleged failure (s.9A(10)).

The late delivery of Part 1 of a Notice of Claim in a medical negligence claim requires a reasonable excuse for delay (s.9(6)).

B. Infant Claims

The amendments to the PIPA in relation to medical negligence claims involving children are significant. The amendments are contained at Chapter 2, Part 1, Division 1A. It is important to bear in mind that the new notice provisions in relation to children’s claims are limited to medical negligence claims. Other infant claims are not affected by the amendments, i.e. the notice requirements in respect of infant PIPA claims are suspended during the infant’s minority.

i. What claims are affected?

As stated the new infant notice provisions are limited to medical negligence claims. The provisions however have retrospective effect, i.e. unless a compliant Notice of Claim in an infant claim was delivered prior to 9 April 2003 or proceedings had been commenced prior to that date the transitional matters provision in relation to infant claims will apply. This will be dealt with post.

ii. When must notice be given?

The first thing to note is that the initial notice provisions in respect of medical negligence claims do not appear to apply in infant claims. Division 1A appears to a large extent to be almost a codification of the procedures relating to infant claims. Additionally to the extent that the provisions contained within Division 1A are inconsistent with the general notice provision sections, the latter provisions (ie Division 1A) will prevail.

Accordingly, in an infant claim, the claimant appears to have the option of delivering an initial notice.

Part 1 of the Notice of Claim must be given before the earlier of:-

(a) The date six years after the date the parents or legal guardian knew or ought to have know that the personal injury had occurred (s.20C(1)(a));
(b) The date eighteen months after the date the parents or legal guardian first consult a lawyer about the possibility of seeking damages for the personal injury (s.20C(1)(b)).

The new provisions however go further. S.20C(2) imposes an obligation upon a solicitor to provide Part 1 of the notice “as soon as practicable after being instructed by the parent or legal guardian”.

Further, by s.20C(3) failure to provide such a notice within a period as soon as practicable is unprofessional conduct or practice.

The combined impact of these provisions is significant. Accordingly, it is essential that solicitors are not complacent about providing a Notice of Claim within eighteen months of being consulted given the potential draconian impact of s.20C(3) – any delay could have significant ramifications for a practitioner.

However as noted above, the infant claim provisions of Division 1A Chapter 2 Part 1 do not appear to sit comfortably with s.9A. That section specifically refers at s.9A(5) to an initial notice being given for a child. Further, it is interesting to note the provisions of s.9A(9)(c) ie there is no reference to non compliance with s.20C(1).

Iii. Consequences Of Late Notice In Infant Claims Where No Notice Of Adverse Event

a. What is a notice of an adverse event?

A person who provides medical treatment to a child may give a parent or legal guardian a written notice of an adverse event. The Explanatory Notes have this to say about the notice of an adverse event:

“The written notice of the adverse event has no further value other than in determining the time by which the parent or legal guardian knew or ought reasonably to have known that the injury occurred.”

This notice can be accompanied by an expression of regret, an offer to remedy any harm, or both. It is interesting to note that the notice may be accompanied by an expression of regret under the CLA or an offer to remedy harm. Query however whether the offer to remedy has the same protection as an expression of regret. Accordingly, it may be arguable that an offer by a medical practitioner to take steps to remedy the harm is admissible as against the practitioner.

Note that a copy of a notice of adverse event must also be given to the Public Trustee by the medical treatment provider as soon as practicable after it is given to the parent or legal guardian (s.20G(4)). This is intended to deal with the situation where a parent or legal guardian fails to act in the best interests of the child. Just how this provision is intended to work in a practical sense (ie what pro active obligations will the Public Trustee assume) is unknown.

b. The consequences of late notice

In the absence of a notice of an adverse incident, failure to provide Part 1 of the Notice of Claim in an infant medical negligence claim enables a respondent to apply to a Court for an order that the claim not proceed further.

Upon such an application, the Court must consider the justice of the case having regard to:-

(a) The extent of injuries;
(b) The reason for the delay;
(c) Any prejudice suffered by the applicant (ie the medical provider);
(d) The nature of the parties’ conduct;
(e) Any other relevant matter.

Accordingly, the discretion on the part of the Court appears to be quite a wide one (s.20E). The Explanatory Notes state:

“In making a decision whether or not to provide such an order, the Court is to consider the justice of the case by having regard to various defined factors. These factors are designed to ensure a balance is achieved between the rights of a child who is unable to protect his or her own rights,and the need for certainty in assessing exposure to risk and in application of the law.”

In his second reading speech the Attorney General stated:

“The bill includes a provision for the early notification of claims by children injured through medical negligence. For this purpose, the act includes a requirement that where a child is injured as a result of medical negligence, then the parents of that child must give notice of the intended claim within six years of knowing the injury has occurred. If a parent does not notify the doctor of the claim within that time, then a court may order either that the claim cannot proceed or that the parent is unable to claim for any medical expenses or cost of care until that time. This amendment deals with a major concern of doctors, being that they may be sued some 21 years after retirement, without affecting the rights of a child under the Limitations of Actions Act. This provision will encourage the early notification of claims by children while ensuring appropriate avenues to protect children’s rights.”

The Attorney’s comments could prove quite useful in an application for leave to proceed with an infant claim. Given the explanatory notes, in determining its approach to the various defined factors is a Court expected to consider the insurance position of a respondent?

If the Court does permit the claim to proceed certain sanctions may be imposed and specifically, unless the Court orders otherwise, the claimant is not entitled to recover:-

(a) Medical or other expenses or legal expenses paid or incurred by the claimant’s parent or legal, guardian;
(b) Any amount for gratuitous services provided by the parent or legal guardian. (s.20F)

Iv. Consequences Of Late Notice Where Notice Of Adverse Event

In circumstances where a Notice of Claim is given out of time, and where a notice of adverse event has been given, the consequences for a claimant are significant. The onus is on the claimant to apply to the Court to enable the claim to proceed. The same factors for consideration by the Court apply as outlined above as do the same sanctions. The Explanatory Notes provide:

“Further, the new division provides specific notice requirements in relation to claims by children for injury where the parents or guardians of the child have been provided with written notice of an adverse event by a medical practitioner. … If Part 1 of the notice of claim in such cases is not provided within that time, then the claim can only continue with the leave of the court. The claimant holds responsibility for seeking the leave of the court prior to delivering Part 1 of the notice of claim. In determining an application for leave to proceed with a claim where notice of an adverse incident has been provided, the court again must have regard to the justice of the case through various defined factors designed to balance the rights of the child against the need for certainty in application of the law.”

V. Transitional Provisions Involving Children’s Claims

As stated previously, the notice provisions relation to children’s claims, (in the absence of a complying Notice of Claim or Court proceedings having been commenced prior to 9 April 2003) are retrospective in effect. If the period:

• six years from the date the parent or legal guardian knew or ought reasonably to have known that the injury had occurred; or
• eighteen months from the date of first consultation with a lawyer; had already passed prior to 9 April 2003 (and the limitation period has not expired) then 9 April 2003 is the day the parent or legal guardian is taken to have known or ought reasonably to have known that the injury had occurred.

Accordingly, for pre 9 April 2003 incidents, the six year period begins to run on 9 April 2003 (s.80(1) and (2)).

Similarly, for pre 9 April 2003 incidents, if the parent or legal guardian had consulted a lawyer about the possibility of a claim prior to 9 April 2003, the eighteen month period within which notice must be given commences to run on 9 October 2004, (i.e. 18 months after the date of commencement – s.80(3)).

It is important however to bear in mind the provisions of s.20C(2) and the requirement to give notice as soon as practicable after being instructed. It is suggested that to wait three years to give notice in circumstances where the lawyer is already acting in an infant claim is an invitation for a finding of unprofessional conduct.

I. The Response To Part 1 Of The Notice Of Claim

The requirement to respond to a Notice of Claim is outlined in s.10 of the pre-amended PIPA generally applies Part 1 of a Notice.

Note however the amendments to s.11 and specifically acknowledgment that a response by a respondent under s.10 does not breach any term or condition of the policy of insurance (s.11(2)). Note also the fact that an insurer responds to a notice on behalf of a respondent does not constitute an agreement to indemnify (s.11(3)).

The effect of s.12 remains unchanged.

J. Unresponsive Respondents

The problems associated with s.13 have now been rectified. A failure by a respondent to respond under either ss10 or 12 triggers the deeming provision in s.13. Accordingly, failure by a respondent to respond at all to a notice within the initial one month period will trigger s.13 and the notice will be deemed compliant. Note that the amended s.13 does not have retrospective effect.

K. Sections 14, 16, 18 And 20

These provisions have all been amended such that reference in the pre-amended Act to a Notice of Claim is now reference to Part 1 of a Notice of Claim. Accordingly, the provisions relating to adding respondents, the addition of contributors, the failure to give a complying Notice of Claim and when the six month post notice period is triggered are all now referable to the delivery of Part 1 of a Notice of Claim.

OTHER OBLIGATIONS OF THE PARTIES

A. Provision Of Documents By A Respondent

The obligation on the part of a respondent to provide copies of reports and other documentary material about the incident is now specifically limited to documents that are “directly relevant to a matter in issue in the claim” (s.27(1)(a)).

In relation to the provision of documentation by any party to a claim note the new s.29A. In circumstances where the total number of pages to be copied exceeds 200 the party is only obliged to offer the other person a reasonable opportunity to inspect the documents (as opposed to copying same). Of course, copies must then be supplied upon request.

In circumstances where the provision is triggered (i.e. where the relevant documents exceed 200 pages):

• if the total number of copies is less than 200 pages the copies must be supplied within one month from the date of request.
• If the total number of copies exceeds 200 pages the documents must be provided within one month after payment of the photocopying expenses calculated at 50 cents per page.

B. Compulsory Conferences

The timing for the holding of a compulsory conference and particularly the “relevant day” (s.36(3)) is calculated by reference to the delivery of a complying Part 1 of a Notice of Claim.

C. Time For Commencing Proceedings

The time for commencing proceedings in accordance with s.42 is now calculated with reference to delivery of a complying Part 1 of a Notice (s.42(2)(a)(i)).

GENERAL COMMENTARY

In so far as the amendments to the PIPA concerning the notice provisions and the obligations of the parties are concerned the main impact of such amendments relates to the change in the form of notice (i.e. Parts 1 and 2), the changed notice provisions in medical negligence claims and the changed notice provisions in respect of medical negligence claims involving children.

There appears to be some tension between s.9A and Division 1A. Certainly s.9A appears to envisage an initial notice being given on behalf of a child. Further, s.9A obliges the giving of an initial notice before Part 1 of a Notice of Claim. When a claimant ultimately delivers Part 1 of a Notice of Claim in a medical negligence claim, the claimant is not required to comply with s.9(3). The claimant’s obligations to comply with s.20C(1) are not however similarly waived. Division 1A is specifically stated to apply to medical negligence claims involving children and further, has retrospective effect.

The initial notice provisions are specifically stated only to apply to medical incidents happening on or after 9 April 2003.

Clearly therefore, if the medical negligence involves a child and the incident occurred prior to 9 April 2003 there is no requirement to deliver an initial notice.

If however the medical incident involving the child occurred on or after 9 April 2003 it seems that a claimant may deliver an initial notice however this is not mandatory. The claimant appears to have a choice to do so. However the consequences of a failure to give Part 1 of a notice in accordance with Division 1A are serious. If a claimant gives an initial notice and then complies with s.9A(9)(b) by delivering Part 1 of the Notice at the very end of 12 months (assuming some delay on the part of the solicitor), does the solicitor, in complying with the Act, invite an adverse finding under s.20C(3)?

As regards s.20C(3) who is to police this provision? It certainly has the potential to foster unharmonious relationships within the profession.

However, reasonable excuse for the delay in giving a notice will undoubtedly be the most contentious issue facing PIPA litigants over the coming weeks and months. Absent a more reasonable approach by respondents, the Courts are likely to be inundated with applications for orders for compliance or leave to proceed. When one considers that the principal objects of PIPA are to be achieved by, inter alia, providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and promoting settlement of claims at an early stage wherever possible, the obstructionist stance taken by insurers is clearly highly counter-productive. Such a stance invites an appropriate legislative response to deprive insurers of the opportunity to unnecessarily delay claims and drive up legal costs.

These questions, and many more, will undoubtedly be answered in the coming months and years.