Personal Injuries Proceedings Act 2002

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.

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.

The initial notice must state it is given under this section and contain the following information—

the claimant’s full name and address;

any other name by which the claimant is known or has been known;

if the initial notice is given by the claimant’s parent or legal guardian, the parent’s or guardian’s name;

the claimant’s date of birth;

a description of the medical services alleged to have given rise to the personal injury;

if known, the name of the doctor who provided the medical services;

the date or dates when the medical services were provided;

the place or places at which the medical services were provided;

a description of the personal injury alleged to have been suffered.

If a law practice is retained to act in relation to the claim, the initial notice must also be accompanied by—

a copy of the law practice certificate for the claim given under section 8C by the supervising principal of the law practice; and

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.

The initial notice must be given within the period ending on the earlier of the following days—

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;

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.

If the claimant is a child, the child’s parent or legal guardian may give the initial notice for the child.

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.

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—

the claimant—

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

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

the claimant—

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

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

the claimant—

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

gives the initial notice to the person as soon as practicable after the complaint is finalised under the Health Ombudsman Act 2013.

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—

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

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.

A person to whom an initial notice is given must, within 1 month after receiving the initial notice, give the claimant—

a written response advising whether any documents are held in relation to the medical services mentioned in the notice; and

copies of all documents held by the person about the medical services.

The claimant—

may give part 1 of the notice of the claim only after giving the initial notice; and

must give part 1 of the notice within 12 months after the respondent complies with subsection (8); and

is not required to comply with section 9(3); and

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—

that there was a failure to meet an appropriate standard of care in providing medical services; and

the reasons justifying the opinion; and

that as a result of the failure, the claimant suffered personal injury; and

must give the report mentioned in paragraph (d) when giving part 1 of the notice of claim.

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.

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.

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).

For subsection (4)(b), consultation by a claimant with a community legal service is to be disregarded.

In this section—