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This is intended as a brief introduction to the Act. The pre-court procedure, for example, only commenced on 8 March 2004.

The ACT Government did not move as quickly as the NSW Government in limiting access to damages. The ACT Government has gradually brought in changes adopting some of the amendments in New South Wales and also the requirement for early notification based on the Queensland Personal Injuries Proceedings Act 2002 .

NON-ECONOMIC LOSS DAMAGES

The threshold and sliding scale established by the NSW Act is not repeated. Section 99 of the ACT Act is headed "Tariffs for damages for non-economic loss".

• In deciding damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceeding.

• The parties may bring to the court's attention awards for non-economic loss in earlier decisions.

The explanatory statement by the ACT Attorney General noted that the Ipp Report (September 2002) had recommended that in assessing General damages, courts should be able to refer to decisions in earlier cases. A High Court decision of Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 had prevented Counsel from referring to earlier awards involving similar injuries. The reasoning for this was that damages should be proportionate to injuries suffered by the particular plaintiff, and not to injuries suffered by other persons.

Section 99 is, in reality, no different to how courts assess general damages. All judicial officers, by their experience, have knowledge of amounts awarded for similar types of injuries to those in the case before them.

There is currently a bill before Parliament to provide a threshold of non-economic loss where the action is against a doctor; $12,001.

DAMAGES FOR LOSS OF EARNINGS

Section 98 - The limit is three times the average weekly earnings for ACT employees. This is the same as Section 12 of the NSW Act.

There are no other provisions concerning the quantum of damages. There is nothing concerning future economic loss as with Section 13 of the NSW Act. There is no threshold for Griffith v Kerkemeyer damages.

LIABILITY

The Act has adopted a number of the Ipp Report recommendations. It must be remembered that Justice Ipp's recommendations were substantially a codification of Common law principles. His Honour considered that it would be useful to codify the Common law principles so that judges would follow the correct steps. By implication he was criticising trial judges in adopting a blasé and generalised attitude to liability.

OCCUPIER'S LIABILITY

Section 168 simply restates the common law:

An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of -

• the state of the premises; or

• things done or omitted to be done about the state of the premises.

There is then an outline of what the circumstances the court should look to in determining the duty of care.

CONTRIBUTORY NEGLIGENCE

There is no reduction for contributory negligence if the defendant has breached statutory duty; Section 102(2).

In a Compensation to Relatives action or a Nervous Shock action relating to the death of the person injured, the damages can be reduced to the extent of the contributory negligence of the person injured; Section 104.

Contributory negligence is assumed if the plaintiff was intoxicated. This presumption is only rebutted if the plaintiff proves that the intoxication did not contribute to the accident or the intoxication was not self induced; Section 95.

Damages are reduced to the extent that the court considers just and equitable.

This is not as extreme as Part 6 of the NSW Act. In Section 50 of the NSW Act there is no recovery where the injured person was intoxicated unless the court is satisfied that the injury is likely to have occurred even if the person had not been intoxicated. Even so, there is a presumption of contributory negligence of at least at 25%.

EXPERT MEDICAL EVIDENCE

The Act provides for one medical expert per medical issue, agreed to by the parties or ordered by the court; Section 84.

STATUTE OF LIMITATIONS

Limitation Act 1985 ACT.

Reduced from six years to three years from date of injury or discovery of injury.

For children under the age of 15, the parent or guardian must give notice of the injury within six years.

Applies to all causes of action that arise on or after 1 July 2003.

MAXIMUM COSTS IN SMALL CLAIMS

Where the amount recovered is $50,000 or less, the maximum professional costs to a lawyer are $10,000 or 20%, whichever is the greater; Section 181.

The professional costs do not include counsel fees on a brief to appear; Section 180.

If the amount recovered is greater than an offer of compromise, the plaintiff can claim Indemnity costs; Section 182.

PRE COURT PROCEDURE

This is the new chapter 3B which follows the Queensland Act. It applies to all causes of action (injuries) since 8 March 2004.

Notice of a claim must be given to the respondent (proposed defendant) within nine months of the injury.

Transitional

If the claimant is injured before 8 March 2004 and has not sought legal advice, the claimant has nine months from 8 March 2004 to give notice.

Written notice

Description of injury, how injury occurred, witnesses, details re medical treatment.

The claimant must authorise access to medical records by the respondent.

The claimant can add other respondents and the respondent can issue notices to contributors.

The respondent must do certain things within six months - advise if liability admitted or denied, make a fair and reasonable estimate of damages, make an offer or counter offer.

All medical reports must be exchanged.

The respondent must disclose all investigation reports, regardless of privilege. There is a query as to whether this includes surveillance.

A court can give leave to commence urgent proceedings eg if the plaintiff has a terminal medical condition.

Proceedings must be issued before the end of the limitation period, which is three years for causes of action that arise on or after 1 July 2003; s.16B Limitation Act 1985.

Patrick Thompson
29 March 2004

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