Insurers – don’t trip down the pre-action steps in South Australia – Uniform Civil Rules 2020 (SA) – Action required by claims handlers for personal injury claims – Part 2
The Uniform Civil Rules 2020 (UCR) came into effect in South Australia on 18 May 2020. The UCR are a ‘one stop shop’ for civil procedure rules in South Australia, replacing a raft of rules that governed the different Courts: Magistrates Court Rules 1992, District Court Civil Rules 2006, Supreme Court Civil Rules 2006, District Court Civil Supplementary Rules 2014 and Supreme Court Civil Supplementary Rules 2014.
Amongst other things, the UCR have changed the terminology for parties. A ‘plaintiff’ is now an ‘applicant’, and a ‘defendant’ is now a ‘respondent’.
While many procedures have been carried over from the old rules, there have been a number of significant changes. One of the most significant changes has been addition of various ‘Pre-action steps’.
The required Pre-action steps for personal injury matters are different to other types of claims.
Pre-action steps now required in personal injury matters under UCR Chapter 7:
Written Notice of Injury
- A person wishing to bring a personal injury claim (applicant) must serve on the potentially liable person (respondent) a written notice of injury within 6 months of the incident giving rise to the injury (UCR 61.1(2)).
- If the applicant is not aware that they have suffered personal injury or that the injury has caused material loss or damage, the timeframe to serve a written notice is extended until one month after the person becomes aware (UCR 61.6(3)).
- The written notice must set out the applicant’s details, details of liable parties, details of when, where and how the injury was sustained, identifying why the recipient is potentially liable and identifying any medical records relating to the injured person required from the recipient (UCR 61.1(2)).
- The requirement for a written notice does not apply if the applicant has already given notice within 6 months (or one month after they became aware of the injury or loss) of the injury under the Motor Vehicles Act 1959 or made a claim under the Return to Work Act 2014 (UCR 61.1(1)).
- The respondent must send a written response within 6 weeks. The written response must set out the respondent’s address for pre-action service, provide a copy of any requested medical records (if applicable), if the claim is a medical negligence claim and liability is denied, explain why and (for all personal injury matters) make suggestions for next steps such as obtaining expert evidence, alternative dispute resolution or an invitation to institute a proceeding (UCR 61.6(4)).
- In addition to the written notice of injury, before commencing a claim in the Court the applicant must have served on the respondent a pre-action claim (UCR 61.7(3)).
- A pre-action claim is a further written notice setting out detailed information about the applicant, the basis for the claim, providing expert reports, making an offer to settle and proposing a date, time and location for a pre-action meeting (UCR 61.7(1)).
- For personal injury matters, the pre-action claim must also set out the applicant’s date of birth and occupation, identify the negligent conduct of the respondent and why it was negligent, identify whether the applicant has returned to work and if not, whether they will be able to return and when, identify whether the applicant is continuing to receive treatment and if so, its nature, identify any other records held by other providers that are relevant and in the case of a medical negligence claim, identify the adverse effects allegedly caused by the negligent conduct and an outline of the causal link between the conduct and the injury (UCR 61.7(2)).
- The respondent is then required to provide a pre-action response (UCR 61.9(1)) within 30 days.
- A pre-action response must respond to the applicant’s claim, indicate if a counter claim will be brought and if so, comply with the requirements under UCR 61.7(1), provide any expert reports already obtained, an offer to settle the claim and respond to the proposed date, time and location for the pre-action meeting (UCR 61.9(1)).
- A pre-action meeting must be held within 21 days after the exchange of pre-action documents unless the parties otherwise agree (UCR 61.12(3)).
- A pre-action meeting should be held in person (although the parties can agree to alternative arrangements, e.g. video link or telephone conference) and must be attended by each party or a person with authority to enter into an agreement settling the dispute involving that party. (UCR 61.12(3) and (4)).
- Parties at a pre-action meeting must negotiate in good faith with a view to resolving the dispute (UCR 61.12(5)).
- If the matter is not resolved at the meeting, the parties must draw up and sign a pre-action meeting report (on the relevant form) setting out what occurred at the meeting and any agreement reached about future conduct of the matter (UCR 61.12(6)).
An applicant who initiates an action in the Court must certify on the claim whether the pre-action steps were complied with and after the filing of a defence, must file copies of any pre-action documents served together with the pre-action meeting report (UCR 61.13(4)).
If the pre-action steps are not complied with, the Court will list the proceedings for a special directions hearing to determine whether orders should be made for any pre-action steps or steps in lieu to be taken (UCR 61.14(2)).
If a party fails to comply with a pre-action step with no reasonable excuse, that party must immediately pay the non-defaulting parties’ costs of the directions hearing and costs thrown away by reason of the breach on an indemnity basis (UCR 61.14).
The pre-action steps are designed to encourage parties to resolve a dispute before commencing litigation, involve insurers at an early stage and require substantial compliance without emphasis on technical matters or minor departures from the requirements (UCR 61.1).
Action plan on receipt of a South Australian personal injury claim
- Upon receipt of a South Australian personal injury written notice, check whether it is compliant with UCR 61.6 (even if it is not, a response is still required);
- Diarise your response – a response must be provided to the applicant within 6 weeks in accordance with UCR 61.6(4);
- Upon receipt of a personal injury pre-claim written notice, check whether it complies with UCR 61.7 (even if it is not, a response is still required);
- Consider what time limits apply to the applicant commencing a claim;
- Diarise your response – a response must be provided to the applicant within 30 days of receipt of the pre-action claim in accordance with UCR 61.9;
- If a counter claim is to be brought, you also need to provide a pre-action notice (as per UCR 61.7) on the proposed respondent and any other relevant party within 30 days of receipt of the applicant’s pre-action claim;
- Diarise your pre-action meeting – that must be held between the parties within 21 days after the time for service of the last pre-action document. Put in place set systems to gain agreement to participate via phone or AV link where possible and where your claims units are outside Adelaide;
- If the matter is not able to be resolved, a pre-action meeting report must be prepared and signed by the parties; and
- Proceedings are then able to be filed with the relevant Court.
As above, the Court will list the matter for a special directions hearing if pre-action steps are not complied with, and the defaulting party can be ordered to pay the other parties’ costs of the special directions hearing and costs thrown away by reason of the breach on an indemnity basis forthwith.
Insurance claims units should educate their South Australian claims handlers in relation to these procedural changes and inform their major insureds. Please contact us if you would like any assistance in doing so.