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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-14 Daily Xml
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MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Second Reading

Adjourned debate on the question:

That this bill be now read a second time.

which the Hon. A.M. Bressington has moved to leave out all words after 'That' and insert 'the bill be withdrawn and referred to the Legislative Review Committee for its report and recommendations.'

(Continued from 2 May 2013.)

The Hon. S.G. WADE (15:25): I rise to speak on the Motor Vehicle Accidents (Lifetime Support Scheme) Bill. The bill before us basically does three things. The bill reforms the compulsory third party scheme operated by the Motor Accident Commission. The bill sets up a lifetime care authority for people who are catastrophically injured in motor vehicle accidents, and the bill meets some of the requirements of the federal government in relation to the National Disability Insurance Scheme.

To continue the theme of three, as the Hon. Kelly Vincent highlighted, there are also three components of the government's media campaign in support of the bill. Firstly, there was the spruiking to the media of compulsory third party insurance savings on all car registration expenses—savings that, in our view, are overstated initially for no apparent reason other than public relations. Secondly, there is an attack on lawyers accusing them of unnecessarily inflating the cost of the scheme and, thirdly, there is highlighting the provision of lifetime care cover to people involved in catastrophic motor vehicle accidents.

Let's be clear that the reform proposed by this bill is not driven by the scheme itself. The Motor Accident Commission is a statutory authority which acts as South Australia's CTP insurer and is funded by registration and provides approximately $330 million a year to road crash victims. The commission and the system it supervises have worked well. According to its 2010 report, it had an annual profit of $238.5 million with net assets of $165.4 million. By 2011, it was $131 million annual profit with net assets of $238.5 million and, in 2012, the net assets were up to $397 million.

The CTP has been working well, doubly so when compared with workers compensation. The Liberal Party has approached this proposal with scepticism. In our view, if it ain't broke, don't fix it. Why would we let a party that has so poorly managed WorkCover loose on an insuring authority which is working well? The government claims that they have actuarial advice that they can assure the parliament that they will fully fund the scheme.

The dilemma for the opposition and for other members is that we do not have access to the information provided to the government and we do not have the capacity to generate the actuarial advice on our own merits. We are dependent on the information the government provided, and we are expected to trust a government which is producing historic highs in both debt and deficit in the state's finances. We are expected to trust a government which is delivering a $1.4 billion unfunded liability in relation to WorkCover.

On the one hand, the government tells us that it is its policy to fully fund WorkCover. They don't. On the other hand, the government is telling us it is their policy to fully fund the Lifetime Support Scheme. We believe the government lacks credibility. We are nervous for the future of this scheme and people with catastrophic injuries who rely on it. The changes to the CTP are linked to the introduction of an NDIS—an element of the COAG agreement in relation to setting up the trial sites for the NDIS, as the states put in place a process to deal with catastrophically injured people under the motor vehicle accident schemes.

All states are required to have the schemes in place by 1 July this year, not to be operating but to at least be in place. 'Catastrophically injured' will be taken out of the CTP scheme and put under a new entity, which I understand is modelled on the New South Wales agency. Like the CTP scheme generally, the lifetime care authority will be funded by a levy on motor vehicle registrations.

The opposition supports the scheme and the bill because we support better protection for the catastrophically injured. However, this support is not being delivered without cost, and part of the cost is being borne by people with a disability who are less severely affected than catastrophic. Somebody who is not catastrophically injured may still be very seriously injured. The government is prone to say that it does not want to over-compensate minor injury. My concern is that between catastrophic and minor, there are thousands of South Australians with moderate to severe injuries who will be under-compensated, and unnecessarily so. In other words, the reform is targeting not only minor injuries but all injuries bar the catastrophically injured.

I would now like to highlight some particular issues. First, I am concerned that the intended regulations do not deal adequately with multiple injury. I understand that the regulations require a claimant to nominate a dominant injury and then restrict the assessment on the ISV for secondary injuries even though these injuries may be significant. Secondly, even when a claimant has satisfied the threshold for general damages, the entitlement for 11 points is only $3,000. I am informed that the Queensland equivalent is substantially more. Thirdly, I am concerned that the ISV itself is problematic, the ISV being the injury scale values.

The table, I understand, was designed for the Queensland system to compensate all tort injuries, not just motor vehicle injuries. The table was also designed for the Queensland system, which does not have a threshold. I believe it is inappropriate for the table to be applied to this scheme without fit-for-purpose reassessment.

The Hon. Kelly Vincent was right to highlight the dangers of working from an injury table in percentages. It is not necessarily a method that is going to work fairly in all cases. The impact of different injuries on different workers will vary dramatically depending on the work and the circumstances of a worker. As the Hon. Kelly Vincent put it:

Assuming X equals Y does not work when looking at the way that injury and illness affects people's lives, we need to look at functionality—how things really impact on someone's day-to-day life, and work in particular.

The Hon. Kelly Vincent quite rightly highlighted the concerns that have arisen regarding this method of classification, not just in relation to this scheme but also in relation to the NDIS. Anybody who works in the disability area for any length of time will know the horrendous injustices done through people falling between the gaps between different classification regimes. People with disability do not benefit by being labelled: they need to be treated as individuals. I believe that the ISV risks are not allowing for the diversity of people's circumstances.

Again, let the people of South Australia know that this is a so-called Labor government that has not only talked about cutting entitlements to injured workers under the WorkCover legislation but is now setting about cutting entitlements to injured motorists.

Concerns have been raised with me about the complexity of the scheme and that that may well deter the provision of care by specialists. I am informed that it is already difficult to get surgeons and specialists—notably neurosurgeons—to treat CTP claimants. The scheme the government has developed is horrendously complex and I fear that practitioners may well choose not to treat in order to avoid the necessity to provide medico-legal reports. This is very concerning as a matter of good policy.

I am also concerned about the lack of time provided for the legislative stage of this process. I appreciate that the government's green and white papers have been out for some time, but I am of the view that the government has left far too little time for the consideration of this bill and that it should only be considered with the ISV and regulations available.

Even today, at 11:32, the Law Society issued a CTP reform update of the work that is still going on behind the scenes. This is a two-page update from the Law Society to its members talking about the work that has been done in terms of the development of the ISV. In fact, let me quote some of the early paragraphs, just to indicate the fact that this is not a settled bill that has been put before us; this is a work in progress and perhaps something of a movable feast. The update states in part:

During recent weeks several further meetings of the Joint CTP Executive and representatives of the Government have been held in relation to the Injury Scale Value (ISV) which the Bill introduces. Those discussions were confidential on the basis that copies of the ISV Scale had not as yet been distributed to Members of the Legislative Council.

At a meeting held yesterday, consent was provided for the Society to distribute copies of the most recent version to Members. Copies were provided to members of the Legislative Council last night with debate scheduled to continue in the Upper House today. The Joint CTP Executive considers this draft version of the ISV to be a substantial improvement over what was proposed in earlier drafts as a result of the consultation which has occurred to date.

'Substantial improvement', still referred to as a draft, still a work in progress, and here we are in the latter stages of the consideration of this bill by the parliament.

In the rush to get this bill through, the intended regulations and ISV with which they are inextricably linked, are yet being drafted. This council and this parliament will need to give the regulations and the ISV a rigorous review. I am concerned that it would have been more effective to have considered the detail of the bill in the context of the regulations and the ISV. It may yet prove necessary to come back and revise the bill as part of the parliament's consideration of the regulations and the ISV. Certainly a lot more time is required to carefully examine and refine the ISV and regulations to ensure that a better scheme results.

In closing, I would like to make some observations in relation to the involvement of the legal sector. As I said earlier, the government's campaign targeted the legal sector. In negotiations where legal sector representatives were fighting to protect the interests of people with disability, I understand they were confronted with threats of a negative campaign targeting lawyers. With South Australians with disability facing the curtailment of their rights, with lawyers under attack by his own government, the Attorney-General remains silent.

I do not reflect on the judgement of the legal sector groups that it was in the interests of their clients and the members to engage in confidential negotiations with the government. I am, however, concerned that when key stakeholders are bound to confidentiality and barred from the debate, the review by parliament is significantly impaired. I know that there is significant angst in the legal community about the deal that has been done and ongoing concern at the development of the ISV and regulations. I would like again to quote the Hon. Kelly Vincent on this point:

We all know that bashing an ambulance-chasing lawyer is bound to be generally a publicly popular move, even if some of the people doing it are former lawyers and now politicians. However, like any other profession, there are those who are good at their job in the legal profession and those who are not, those who are sincere and genuine and those who are not. Whilst the government seems very keen to repeatedly tell us that the Law Society, the Bar Association and the Lawyers Alliance have now agreed to a negotiated position on this bill, I would hardly say that there is a gushing show of appreciation for this compromise.

I know that many in legal circles are deeply concerned about the impacts that this could have on many people. They are not lawyers who are advocating for their own bank balances. These are people who genuinely care about how someone's life will be affected by a car accident. Lawyers are effectively advocates within the legal system, and they do not want to see the rights of the injured and maimed negated or removed, and nor should anyone in this chamber, I believe.

I associate myself with the remarks of the Hon. Kelly Vincent. I believe that a number of the members of the legal profession have very nobly tried to defend the rights of other South Australians. I share the concerns of the Hon. Kelly Vincent, the legal community and my fellow opposition colleagues about the way the government has gone about this bill.

The Hon. R.P. WORTLEY (15:39): I rise to offer my wholehearted support for the Motor Vehicles Accident (Lifetime Support Scheme) Bill. This bill expresses the full zeal of a reforming government, which has at its core true Labor values of social justice and a fair go for all. There are a number of reasons behind this piece of legislation. Chief among these is the fact that presently, while our current CTP insurance system insures an owner, a driver and any passengers against liability for damages with regard to death or any injury of any person, there remain people who suffer catastrophic injury as a result of motor vehicle accidents and receive no benefits. This may be because the accident and injury are the fault of the person who was injured. It may be because the accident and injury are nobody's fault, but regardless of the circumstances it is the duty of a civilised and compassionate society to make provision for people who bear terrible injuries but have no entitlement to compensation.

Furthermore, it is the case currently that the payment for such compensation in South Australia is not commensurate with other state schemes. In addition, our insurance premiums have grown incrementally to an unacceptable level. As a result, our premiums are unreasonable and undoubtedly add to the cost-of-living pressures within the community. In essence, the bill will deliver a fairer system for those injured on our roads who consequently require life-time medical and related care and support. At the same time, it will make our compulsory third-party insurance scheme more affordable.

There are a variety of definitions of catastrophic injury, but it seems to me that they all refer to serious life-altering injury. Examples of such injury include: paraplegia, quadriplegia, severe burns over a large part of the body, the loss of sight, and traumatic brain injury. These injuries affect not only the victim but his or her family and friends as well.

The reverberations of a collision as a result of a moment's inattention, of the sudden glare of sunlight in the eyes, or of a swerve on a wet road to avoid an animal or, God forbid, a child, can be many. They can continue for the lifetime of the victim and the others involved. Let us consider just one case of which I am aware. This story was told by the mother a 19-year-old nursing student, catastrophically injured as a result of an accident not captured under the terms of our CTP scheme.

The mother was advised of this profoundly life-changing event for her daughter in terms that altered the future of the whole family. This bright, popular, young woman, with all the possibilities of social and professional life ahead of her, had suffered a severe brain injury. This beautiful girl was never the same again. She was in a coma for many weeks and her family had no certainty about her brain function should she survive. As it transpired, she lived, but she now requires care 24 hours a day, seven days a week. She is subject to seizures. Occupational therapy and physiotherapy form a major part of her daily medical care plan.

While her entire family is involved in her care, along with friends and community members, her parents are middle aged and becoming less capable of performing heavy physical day-to-day tasks. Her mother has expressed the fears for her future that all parents in these circumstances share. We read about this kind of story in the newspaper or see it on television. We cannot imagine that this will ever happen to someone we love, but it is the work of a moment.

While paraplegia, quadriplegia and traumatic brain injury are words and phrases with very particular meaning, what they really mean is a life sentence for everyone involved. As others have noticed through discussion on this issue, estimates indicate that each year compensation is unavailable to some 40 per cent of catastrophically injured accident victims in South Australia. Not all these people are blameless; speed is a factor in many motor vehicle accidents, but the current situation is unacceptable and it is beholden upon us to make sure that not one victim is left without support.

If any support for this contention were necessary, the Productivity Commission has concluded that a no-fault scheme is preferable to a fault-based paradigm in these matters. The commissioner determined that:

existing fault-based insurance models for a catastrophic injury are inefficient because court decisions can be variable, future needs that are presently unthought of may arise in circumstances where a lump-sum payment may be insufficient, such payments may be poorly managed or subject to financial market fluctuations and, all of this aside, payment may be delayed to the detriment of the victim;

our adversarial legal system, with it is twin impediments of cost and delay, can be detrimental to health and rehabilitation results for victims; and

no-fault arrangements are consistent in terms of ongoing care that are able to envisage and meet changing care needs, and the coordination of care and support is more consistent over the claimant's lifetime.

It is proposed that the Motor Vehicle Accidents (Lifetime Support Scheme) will commence on 1 July 2014. The scheme will encompass two categories of claimant to be classified as 'interim' and 'permanent', thereby covering people before and until it is definitively understood whether they will be in need for life or otherwise.

The bill envisages that people who are catastrophically injured prior to the commencement of this scheme will be able to join in upon payment of an amount to be determined by the lifetime support authority, soon to be established. Furthermore, necessary and reasonable treatment, support and care will include doctors, medicines, dental therapy, rehabilitation, ambulance costs, respite carer and support services, appliances and prostheses, education and training, modifications to housing, workplace and transport, and any other treatment, support and/or care deemed necessary for a group of people or for individual persons.

This scheme bears the stamp of a government that is intent on improving and enhancing the lives of all members of the community regardless of their circumstances. It certainly has many more features that are worthy of discussion but these few remarks should serve to indicate my firm conviction that this bill is one that is reasonable, necessary and well thought out, a bill that represents the best intentions of our community, the best intentions, in consequence, of our legislature, and the best that we can achieve for those whose circumstances change for whatever reason in the very blink of an eye.

The Hon. J.S.L. DAWKINS (15:45): I move:

That the debate be now adjourned.

The council divided on the motion:

AYES (12)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. (teller) Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G.
NOES (9)
Finnigan, B.V. Franks, T.A. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 3 for the ayes.

Motion thus carried.

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