Pre-filing essentials: New South Wales provisions for protected defendants in personal injury claims

By Seun Idowu and Rebecca Dodd

The statutory requirements for notice and other pre-filing steps differ when personal injury claims, including medical negligence actions, are brought or proposed to be brought against protected defendants, such as certain public service providers and authorities, compared to regular defendants. Protected defendants should understand these pre-filing notice provisions to benefit from the safeguards they offer.

The New South Wales (NSW) provisions

Part 2A of the Civil Liability Act NSW (2002) (CLA) outlines special provisions for personal injury claims made by current or former offenders in custody against protected defendants. These claims arise from an injury sustained while in custody, where that injury was alleged to have been caused by the negligence of the protected defendant.[1]

According to the CLA, protected defendants include:[2]

• the Crown and its servants;
• government departments and staffers (eg the State of NSW);
• public health organisations and their staff (eg public hospitals);
• persons with public official functions or acting in a public official capacity (eg persons acting on behalf of the state); and
• management and sub-management companies (eg private companies contracted by the state to perform a public function, such as the operation of a correctional facility) and their staff.

Division 1A of the CLA outlines the duties of the claimant for offender damages claims brought against protected defendants.

Under Section 26BA, protected defendants are required to receive notice of the incident that forms the basis to the claim. This notice must be provided in writing to the protected defendant, its officer or employee within six months after the relevant date for the claim. This relevant date could be the date of the incident giving rise to the claim, or the date of death.

The notice must include:

• the date the incident is said to have occurred;
• a description of the incident; and
• a statement that the incident may give rise to a claim against the protected defendant.

Section 26BB stipulates claimants must comply with any reasonable request made by a protected defendant until court proceedings commence. These requests may involve providing specific information or producing specified documents or records. The purpose of these requests is to ensure the protected defendant receives adequate information, to be:

• satisfied as to the validity of the claim and assess whether the claim or any part of the claim may be fraudulent;
• able to make an early assessment of liability; and/or
• able to make an informed offer of settlement.

The reasonableness of a request made under section 26BB will be assessed regarding this criteria:

• the amount of time the claimant needs to comply with the request;
• whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim;
• the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made;
• how onerous it will be for the claimant to comply with the request;
• whether the information is privileged;
• whether the information sought is sufficiently specified; and
• the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

An important exception to sections 26BA and 26BB arises in cases involving vulnerable offenders. These are offenders in custody who reasonably fear for their safety if they comply with section 26BA or 26BB of the CLA. In such instances, if the offender has applied to be placed in protective custody or transferred to another correctional facility due to reasonable fear, they are exempt from the obligations outlined in these sections.[3]

Vulnerable offenders are exempt from complying with the requirements outlined in either section for the duration of their status as a vulnerable offender. This exemption ends when the offender is transferred to another correctional facility or placed in protective custody, when the offender declines an offer for such transfer or placement, or when the offender’s application for such transfer or placement is rejected due to the failure to establish reasonable grounds for the application.

Section 26BD of the CLA specifies that a protected defendant against whom court proceedings for an award of damages under Part 2A  are initiated may apply to the court, within two months of receiving the statement of claim, to dismiss the proceedings if there’s been a failure to comply with section 26BA or 26BB regarding the claim in question. The court is bound to dismiss the proceedings under this section unless the claimant provides a full and satisfactory explanation for non-compliance with section 26BA, demonstrating the required notice of the incident was given within a reasonable period considering  the circumstances, and/or if the claimant presents a reasonable excuse for non-compliance with section 26BB.

Case law in NSW

Factual causation doesn’t need to be settled or pre-determined for Part 2A to be applicable. In Michael v State of New South Wales,[4]Justice Fullerton clarified  Part 2A of the CLA must be interpreted in conjunction with Part 1A. It was emphasised that an injury caused by the negligence of a protected defendant, as outlined in section 26B, must be construed as ‘allegedly caused‘, indicating the issue of factual causation, as per section 5D of the CLA,  is reserved for the court to determine.[5]

Dismissing proceedings initiated against a protected defendant due to non-compliance with section 26BA requires the court’s assessment of whether the protected defendant has suffered prejudice because of delayed notice. In Larry Dawson v State Of New South Wales,[6]Justice Sidis  confirmed when interpreting section 26BD(3)(a), a ‘reasonable period in the circumstances” is assessed by application of the Court’s discretion to determine whether a protected defendant ‘was prejudiced to the point where it could not secure a fair trial by the period that elapsed before the required notice of the incident was given‘.[7]

In the case of Itani v State of New South Wales,[8]the claimant argued that notice under section 26BA was effectively given by lodging a compliant with NSW Police and Corrective Services. Alternatively, the claimant argued since his rights didn’t crystallise until he was assessed at 15% WPI,[9]the notice requirement began from the date of this assessment.

The court determined the claimant faced an insurmountable problem due to the absence of proper notice, as mandated by sections 26BA(1) and (3). The legislative framework didn’t invite the court to consider the merits of the actual notice, merely whether late notice had been given. This stance was reinforced by the protected defendant’s reference to Dawson v New South Wales,[10]where the delay under consideration was assessed within the context of the required notice having already been given.

Judge Gibson also found that mere knowledge, whether constructive or actual, on the part of the protected defendant, doesn’t constitute notice under section 26BA(3) unless accompanied by a statement indicating the incident may give rise to a claim against the protected defendant in the written notice. Furthermore, it was determined that notice must be provided before proceedings are commenced; notice served after the commencement of proceedings cannot retrospectively fulfil the requirements, particularly considering the purpose of the ‘request for information’ provisions outlined in section 26BB. The court also affirmed notice runs from ‘the date of the incident’ under section 26A(2), rather than the date when the claimant meets or exceeds the whole person impairment threshold.

An additional fatal flaw in the claimant’s case against dismissal was the inconsistency in the dates provided for the notice, spanning a period of more than three years. The lack of a definitive, specified date prevented the court from reaching the ‘full and satisfactory’ threshold for the plaintiff’s explanation for non-compliance, drawing upon the precedent set in Dawson v New South Wales.[11]

Implications for protected defendants in NSW

Pre-commencement notice provisions play an important role in maintaining fairness in case management for protected defendants.

In Itani v State of New South Wales,[12]the court cautioned against treating applications to waive compliance as mere technicalities, emphasising the importance of adhering to strict notice requirements outlined by the CLA, especially claims for ‘offender damages’. This decision underscores that despite considerations for court efficiency, case management principles cannot prevail over clear legislative language demanding that notice be served before commencing proceedings.

When courts have demonstrated a willingness to strictly apply the CLA provisions in NSW for summary dismissal, particularly when formal notice has been given, protected defendants should promptly seek additional details of the alleged incident in all instances. This proactive approach solidifies their right to seek summary dismissal down the road.  This also promotes good case management practices by facilitating early investigations into the facts surrounding the alleged incident. Conducting these investigations while details are fresh in people’s minds and relevant documents are readily available can assist protected defendants in preparing stronger defences to civil claims that may or may not be filed later. 

Hall & Wilcox is a national full-service firm. Our team includes specialist lawyers who can assist with various medical, health, aged care, disability and community industry issues. Please contact  Seun Idowu for more information. Keep an eye on our website for updates and industry insights.

[1] Section 26B.
[2] Section 26A.
[3] Section 26BC.
[4] [2011] NSWSC 231.
[5] At [77].
[6] [2012] NSWDC 47.
[7] At [25].
[8] [2023] NSWDC 285.
[9] Section 26C of the CLA.
[10] [2012] NSWDC 47.
[11] [2012] NSWDC 47.
[12] [2023] NSWDC 285.