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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-04-09 Daily Xml
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MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (18:04): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill represents an historic package of reforms which are designed to deliver a better system for people who suffer injuries in motor vehicle accidents and the motoring public of South Australia.

The Bills introduces reforms to improve the affordability of the South Australian Compulsory Third Party (CTP) insurance scheme while at the same time providing better care and support for those who suffer serious injuries in vehicle accidents and as a result require lifetime treatment, care and support.

It is an important piece of social policy reform.

It is an important piece of economic policy reform.

It will deliver a fairer scheme for injured motorists.

It will deliver a more efficient way of supporting those with serious injuries.

And it will deliver a more cost effective and affordable arrangement for all South Australian motorists.

Every year, approximately 1.3 million CTP insurance policies are taken out by South Australians when they register their vehicles. These policies are required by Part 4 of the Motor Vehicles Act 1959. The insurer under our CTP insurance scheme is the Motor Accident Commission, a State Government instrumentality established by the Motor Accident Commission Act 1992. The Commission has outsourced its claims management functions to Allianz Australia Limited and currently claims are directed through Allianz.

The CTP insurance scheme is fully funded by premiums paid by motor vehicle owners and income on the investment of those premiums. The Government must balance how much vehicle owners can afford to pay and the flow on effects to the cost of goods and services against the amount of compensation payable to people who are injured in motor vehicle accidents.

A CTP insurance policy insures the owner of a registered motor vehicle and any person who drives it, or is a passenger in or on it, against their liability to pay compensation (damages) in respect of the death or bodily injury of any person caused by or arising out of the use of the vehicle. Such liability arises under the common law of torts when the death or injury is caused by the negligence of another person.

All Australian States and Territories have some special rules for motor vehicle insurance and accidents. All have Compulsory Third Party personal injury insurance schemes (CTP schemes). However these schemes vary considerably.

South Australia's fault based scheme, is most similar to the schemes that operate in Queensland, Western Australia and the ACT. Victoria and Tasmania on the other hand have no-fault schemes, while NSW has a no fault care and support scheme for those who suffer catastrophic injuries, with compensation otherwise remaining fault based. The New South Wales Government has recently announced a proposal to extend its no-fault scheme beyond those who are catastrophically injured.

The payment of compensation under our Scheme is out of step with other schemes and our premiums are unacceptably high compared with other States. Since 2000, South Australia's premiums have grown at a rate of over 5 per cent per annum, more than anywhere else. Without action, they will continue to rise significantly.

South Australia has more than double the rate of claims per vehicle as Queensland and Western Australia and our scheme pays significantly more for both economic and non-economic loss.

Last year, minor injuries accounted for around 90 per cent of claims. Statistics published in the Government's CTP Green Paper indicate that around a third of compensation payments each year (in excess of $100 million a year) goes to claimants who have had little or no time off work.

Another drain on the CTP Fund is legal costs which have risen about 50 per cent since 2005.

At the same time, the proportion of payments that are paid directly for the benefit of accident victims or their dependants has been declining—from 85 per cent in 2006-07 to below 80 per cent recently.

Our CTP insurance scheme is becoming unaffordable.

At the same time there are people who suffer terrible injuries in vehicle accidents who receive no benefit from the scheme. That is because the accident was entirely the injured person's own fault or because no one was at fault. Examples of people who would have no entitlement to compensation are a driver who swerves to avoid an animal and collides with a tree or rolls, a person whose vehicle is hit by another vehicle the driver of which had an unexpected heart attack, and a rider whose motorbike slipped on a wet road.

The mother of one accident victim is now vice-chairperson of the Brain Injury Network of South Australia which is an advocacy organisation for people with acquired brain injuries. She believes that most South Australians don't understand that they are uninsured in these circumstances and that this reform is badly needed. When her daughter was injured the physiotherapist said that she would have had this cover if her accident had happened in the right State.

She was a 25 year old woman who was travelling on a country dirt road. It is thought that dust created from a passing car contributed to her inability to negotiate a corner properly. She veered onto the other side of the road and was struck by a car coming in the other direction. She suffered catastrophic permanent brain injury and is unable to walk and talk, has little upper limb mobility, and suffers severe eating and swallowing issues. Her promising career as a teacher of Japanese in a private girls' school was cut short that day. 10 years after her accident she also developed severe epilepsy as a result of the brain injury.

She requires 24 hours care in all activities of daily living, but was not entitled to CTP compensation as the accident was deemed entirely her fault. Her family has had to build specialised living spaces and modify their home, including purchasing a spa, and her mother has given up working so that she is able to help care for her.

A young girl on P plates driving in the Riverland was startled when a bird swooped in front of her car. She over-corrected and her car flipped. On her nineteenth birthday she was brought out of an induced coma to be told she was a quadriplegic. No other vehicle was involved so there was no one for her to sue. 'It came as a huge shock to discover the insurance you pay for with car registration does not cover you in a case like this,' her mother said. 'I doubt virtually anyone who has not been involved in an accident like this would be aware they are not insured if no one else is at fault.'

Her mother has sold her home and cleaning business to become her daughter's full-time carer. They have moved to Adelaide to be closer to rehabilitation services. Her mother says people do not believe them when they explain what has happened to their lives.

It is estimated that in South Australia about 40 per cent of catastrophically injured accident victims are left without compensation from the CTP scheme each year. Some of these injuries are caused by people doing foolish things—like a young person speeding on a country road to get home late at night. Speeding is against the law, however, when that act causes an accident which leads to a serious brain injury that young person and their family are affected for the rest of their lives.

Currently, for those cases where someone is catastrophically injured and another driver is found to be wholly or partly at fault, the compensation from CTP insurance is paid to the injured person as a one-off lump sum, which is intended to cover all future needs. The compensation might not be enough to fund a lifetime of care. There are several reasons for this including that it is impossible to predict accurately a person's future needs, large sums might be mishandled or mismanaged, economic conditions affecting investment of the money might change. The amount awarded might be reduced by legal, medico-legal and other costs of litigation that are not covered by the award of party-party costs, or the amount may be reduced because of the person's contributory negligence. On the other hand, because of the difficulty of predicting the future, the amount might be too much.

The Productivity Commission has concluded that no fault schemes are superior to fault-based schemes for dealing with the care and support of those who suffer catastrophic injuries. They concluded that:

existing fault-based insurance arrangements for catastrophic injury do not meet people's care costs efficiently—court outcomes are uncertain, people's future needs are unpredictable and poorly captured by a once-and for-all lump sum, compensation is often delayed, and there is a risk that lump sums are mismanaged;

adversarial processes and delay may hamper effective recovery and health outcomes;

no-fault arrangements on the other hand provide consistent coverage across injured parties according to injury related needs and provide much more predictable and coordinated care and support over a person's lifetime.

The Commission's report into Disability Care and Support was the catalyst for the National Disability Insurance Scheme (NDIS) and the National Injury Insurance Scheme (NIIS) proposals. Last December the Council of Australian Governments signed an Intergovernmental Agreement for the first stage of the NDIS which involves launch sites in some States (including South Australia). Under this Intergovernmental Agreement all States will endeavour to agree minimum benchmarks for a scheme for no-fault lifetime care and support for people who are catastrophically injured in motor vehicle accidents. This Bill is consistent with that commitment.

The Lifetime Support Scheme

The Bill would establish a Lifetime Support Scheme that would benefit people who are catastrophically injured in motor vehicle accidents occurring in South Australia, irrespective of who was at fault. It is proposed that the Scheme will commence on 1 July 2014.

The Bill would establish a Lifetimes Support Authority to administer the Scheme. The Authority would be a government instrumentality. Its role would be to ensure that the injured people who participate in the Scheme receive the treatment, care and support they need. The Authority, or people or organisations it engages, would develop long term relationships with participants. The approach will be different from that of an insurer, whose primary business involves declining, settling or litigating claims and paying the agreed or awarded amount in a lump sum.

A person would be eligible to participate in the scheme if they suffer a bodily injury in a motor vehicle accident, the scope of which is set out in the Bill, and the injury satisfies criteria set out in the Bill and Lifetime Support Scheme Rules. These Rules will be based on the Rules for the New South Wales Lifetime Care and Support Scheme and the criteria contained in the minimum benchmarks being agreed through COAG. People who will be eligible will include those who have suffered serious spinal or brain injury, multiple amputations, severe burns or blindness. The Rules will be made by the Governor on the recommendation of the Lifetime Support Authority. They will be laid before both Houses of Parliament and be disallowable.

There will be two categories of participants in the Lifetime Support Scheme—interim and permanent. This will allow for people to receive treatment, care and support before it is known whether they will need it for life and be eligible to participate in the scheme for life.

People who have been injured catastrophically in motor vehicle accidents before the commencement of the Scheme will be able to apply to participate in the Scheme on payment of a contribution determined by the Authority.

The Authority will provide necessary and reasonable treatment, care and support of the following types: medical treatment, pharmaceuticals, dental treatment, rehabilitation, ambulance transportation, respite care, attendant care and support services, aids and appliances, prostheses, educational and vocational training, home and transport modifications, workplace modifications and such other kinds of treatment, care, support or services as are determined by the Authority either generally or for a class of people or for a particular person.

Besides eligibility criteria, the LSS Rules will provide criteria for assessing the necessary and reasonable treatment, care and support needs of the individual participant. The Government will consult with local medical and disability experts in preparing the Rules. It is intended that the scheme operate in a manner that puts the participant, so far as is possible, in the centre of the decision making process as to the support they need, and the way in which it is delivered so that their independence and dignity is maximised. The Bill makes provision for agreed self-managed budgets where appropriate.

The Bill also contains dispute resolution mechanisms for participants and potential participants regarding eligibility and assessments of treatment, care and support needs. These are set out in Part 5 of the Bill.

The new scheme will not provide financial support to participants. It would not prevent a participant from making a common law claim for damages such as non-economic loss and economic loss or for damages other than losses associated with their care, treatment and support.

The Scheme will be funded by a new levy paid on registration of a motor vehicle. The amount for a Class 1 vehicle is currently estimated to be $105 before inflation, commencing in 2014. The levy will be set to ensure that the Scheme is fully funded.

At the same time the premium payable to the CTP scheme will fall. While this is partly the result of the shift of some existing CTP Scheme liabilities to the Lifetime Support Scheme, it is also the result of the remaining provisions in this Bill which put in place tighter restrictions and thresholds to address the escalating financial pressure on the system from the impact of compensation for minor injury claims.

Compulsory Third Party Insurance Scheme

Claims for compensation under the CTP insurance scheme are fault based common law claims as modified by statute law. A person is entitled to damages (financial compensation) only if he or she can prove on the balance of probabilities that his or her injury was caused by the fault of some other person. Common law rules are used to determine whether a loss suffered is compensable. Then the amount of damages is determined according to common law principles as modified by statute.

The amount of damages is determined on the basis that the person at fault should be required to put the injured person or dependants of a person who dies in the same position, so far as is possible, as they would have been in but for the injury or death. Because this became unaffordable, some legislative modifications have been made to common law rights both in this State and in other Australian States and Territories: in South Australia by the Civil Liability Act 1936. This Bill would make some further changes for cases in which the death or injury is caused by a motor vehicle accident.

Currently the threshold for payment of damages for non-economic loss, that is, pain and suffering, loss of enjoyment of life, loss of expectation of life and disfigurement, is very low. If the person establishes that their ability to lead a normal life was significantly impaired for 7 days or medical expenses of at least the prescribed minimum are reasonably incurred they are entitled to damages for non-economic loss (assuming liability has been established) and the court is required to assign a number on a scale of 0 to 60 and calculate an amount according to an indexed scale set out in the Act. However, the Act provides little guidance about how to fix a number on the scale other than to require proportionality between the injury sustained and an injury of the gravest conceivable kind—i.e. 60 on the scale.

The amendments to be made by this Bill to the Civil Liability Act would introduce a 100 point scale for motor vehicle accident claims only. The scale is known as the Injury Scale Values (ISV) and it will align injuries within a point range of severity. Objective medical evidence will be used to place the injury within a severity point range while consideration of the differing impact of an injury on the particular individual will determine the final ISV within the range. The ISV table provides a mechanism for the court (or the respective parties pre-court) to determine the impact of an injury on an individual following a medical impairment assessment by an accredited medical expert. The ISV table uses a 100 point scale to classify injury severity. Damages for non-economic loss will be available when an injury exceeds 10 on the ISV. The amount to be awarded will be determined by a scale set out in the Bill.

The scale would be indexed according to CPI.

There will be changes also to compensation for past and future economic loss.

A person will not have to meet an injury severity point score threshold for past economic loss, but will be entitled to damages for loss or impairment of future earning capacity only if their injuries are assessed at more than 7 points on the ISV scale. It is expected that this will save a substantial amount that is currently paid out to people who have suffered minor injuries without much evidence of impairment of future earning capacity.

Assessing damages for loss or impairment of future earning capacity is notoriously difficult because it is not possible to predict what a person's future would have been if they were not injured and what it will be now that they have been injured. It is particularly difficult when the injured person is young and the predictions must be made for a very long period, and additionally difficult if the person is too young to have set a course in life.

The method of approaching this problem is basically that the court must first decide whether it has been proved on the balance of probabilities that the person's future earning capacity has been lost or impaired. If there is a residual earning capacity, the court must assess the extent of the impairment. Then an assessment must be made of what that means in terms of loss of future income. Sometimes there is evidence of possibilities or probabilities that would have either increased or decreased the persons' future earning capacity. These are also to be taken in to account in reaching a final figure, which might turn out to be too much or too little.

Assessments of damages may take into account chances that have only a remote chance of occurring, for example, something that has a 1 or 2 per cent probability of occurring. This has resulted in damages being awarded in some cases even though, at the time of assessment of damages, the person has not lost any time from work and might not lose any time in the future.

The Bill would make some changes to the way in which the quantum of these damages is assessed. The Bill is also intended to encourage a more methodical approach and greater rigour in assessing these damages.

The courts would take in to account the usual discount for vicissitudes of life, but would be required to not take in to account anything that has less than a 20 per cent chance of occurring and anything for which the court cannot evaluate the chance of it occurring. When the court has reached a figure, it will apply a discount rate that is currently 5 per cent, as is currently required, (because the injured person will be receiving these damages now in a lump sum instead of over coming years) and make any other deductions required by the Act or common law, for example for contributory negligence, and then discount the result by 20 per cent. These changes will ease the financial burden on the system while still ensuring people receive reasonable compensation for losses. The Bill also contains provisions which will encourage the courts to set out in detail how the amount for this component of an award of damages has been arrived at.

The policy intent is to ensure that awards or settlements for loss or impairment of future earning capacity must be linked to a specific rationale. It is anticipated that this will lead to some litigation once this policy is applied to offers of settlement from the insurer. The Government will carefully monitor the case law associated with these changes and if the interpretation applied does not reflect the Government's intention further amendment may be necessary.

The effect of loss or impairment of earning capacity on superannuation would be capped by limiting the amount that may be awarded to the contributions an employer would have been required to pay (currently 9 per cent), as is the case in NSW, Queensland and Tasmania.

The same approach for the assessment of pecuniary loss will be required in claims by dependants of people who die as a result of a motor vehicle accident.

There will be a change to damages for gratuitous services; that is damages for services provided on a voluntary basis by family members for which the injured person would otherwise have to pay. An injury severity score threshold of greater than 10 points will apply and these damages will be awarded only if the injured person requires the services for six or more hours a week for at least six consecutive months. There will also be limitations in relation to participants in the Lifetime Support Scheme.

Damages for loss or impairment of consortium will also be subject to a 10 point threshold.

The Bill would introduce no fault compensation for medical and ongoing care costs for children who were under the age of 16 years at the time of the accident. The RAA raised this proposal in response to the Green Paper and the Government is pleased to support it. This provision will ensure that children receive immediate support for their medical and care needs following a vehicle accident without having to determine fault or contributory negligence. This will lead to better recovery and health outcomes.

The Bill also contains provisions for a new medical assessment and accreditation process for CTP insurance claims. These are intended to reduce bias, avoid excessive numbers of costly reports, and increase quality and objectivity of reports. Regulations will be made to supplement this part of the Act which will include limiting the number of medical assessments to establish the quantum of a claim. A suitable body would be appointed by the Minister to administer a register of experts and be responsible for the training and accreditation of experts. Requests for medical reports would be randomly allocated to the next appropriately qualified and available expert on the register. Guidelines would be issued to assist experts to produce useful reports and the quality of reports would be monitored for compliance with the guidelines. If there is disagreement about any aspect of a medical assessment, either party may request a maximum of 1 further assessment by a specialist of the same discipline, each.

Motor Vehicles Act 1959

Legal fees are a significant part of Compulsory Third Party costs.

The Bill provides that no costs will be awarded if the amount of damages awarded is $25,000 or less and will be capped at the Magistrates Court scale if the award is between $25,000 and $100,000 regardless of the court in which the proceedings are issued. These limitations on costs awards will apply to both the claimant and the insurer. It is also the Government's expectation that the Motor Accident Commission should act as a model litigant in defending claims. The court will retain a discretion as to costs in exceptional circumstances and there is an exception for costs directly related to seeking the approval of the court of a settlement of the claim of a child or person under legal disability for an amount of $25,000 or less.

There will be some procedural changes in relation to making a claim. A claimant must provide details of the claim, a certificate or opinion of a medical practitioner as to the nature and probable cause of the death or injury, any police report number, any prescribed information and an authority to obtain access to information relevant to the claim. The Bill requires the insurer to establish practices and procedures designed to assist claimants to comply with these requirements.

The Motor Accident Commission Act 1992 would be amended to include among its objects encouraging early and appropriate treatment and rehabilitation of people in respect of whose injuries the Commission bears financial responsibility.

The results of the reforms will be monitored. If CTP insurance premiums exceed a prescribed percentage of State Average Weekly Earnings then the Minister would be required by the Bill to have Part 4 of the Motor Vehicles Act reviewed and the report laid before both Houses of Parliament.

The first stage of reforms will take effect from 1 July 2013 so that the reduction in CTP premiums can flow through to motorists as soon as possible. The reforms will not apply retrospectively.

It is estimated that the typical passenger vehicle (Class 1) CTP premium will fall by more than $100 in 2013-14. When the new Lifetime Support Scheme is introduced in 2014-15 it is estimated that motorists will still benefit from a net saving of over $40 before inflation.

The changes represent a major overhaul of Compulsory Third Party insurance in South Australia and a beneficial cultural change will be integral to their success.

The Government has engaged in an open consultation process regarding these reforms. In March, 2012, a Green Paper invited public debate about possible changes. More than 100 responses were received and considered. In November 2012 the Government announced its proposed reforms and released a booklet explaining them along with consultation drafts of what was then three Bills. Since that time further consultations have occurred, particularly with the legal profession who have held some reservations regarding the proposals.

As a consequence of those consultations a number of changes have been made to the proposals and these are now incorporated in this one consolidated Bill. The main changes that have been incorporated are:

the threshold for claiming damages has been changed from above 15 points on the Injury Scale Value (ISV) to above 10 points for non-economic loss, voluntary services and loss of consortium; and to above 7 points for loss or impairment of future earning capacity;

the limits on party-party costs awards have been varied;

a right for an injured person to appeal to the District Court from a decision of an expert review panel that they are ineligible to participate in the scheme has been added.

In developing these reforms, the Government has consulted widely and listened. These reforms now incorporate proposals from many groups including health practitioners, disability experts, the RAA and the Law Society, Bar Association and Australian Lawyers Alliance.

The system will be fairer and more broad-based, more affordable for motorists and financially sustainable.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Interpretation

This clause provides definitions of words and terms for the purposes of this measure.

4—Treatment, care and support needs

This clause requires the Authority to pay the reasonable expenses incurred by or on behalf of a participant in the Scheme in providing for the treatment, care and support needs of the participant as are necessary and reasonable in the circumstances. The clause lists the treatment, care and support needs covered by this obligation.

5—Application of Act

This clause provides for the application of the measure and, in particular, limits its application to motor vehicle accidents occurring in the State on or after the measure comes into operation, and in limited circumstances, to motor vehicle accidents occurring before the commencement of this clause where the person who suffered the injury is accepted into the Scheme. Subclause (3) limits the application of the measure to a participant's injuries arising wholly or predominantly related to the motor vehicle injury or other injuries covered under the LSS Rules.

6—Persons injured before commencement of Scheme can 'buy in'

This clause makes provision for a person who has suffered an injury prior to the commencement of the measure, to apply to the Authority for acceptance into the Scheme. Applicants accepted into the scheme under this clause will be required to pay a contribution, determined by the Authority after applying any principle or criteria specified in the LSS Rules, to fund the treatment, care and support needs of the person as a lifetime participant. The clause prohibits approved insurers from making applications for entry to the scheme in respect of persons with pre-commencement injuries.

Part 2—Lifetime Support Authority of South Australia

Division 1—Establishment of Authority

7—Establishment of Authority

This clause provides for the establishment of the Lifetime Support Authority of South Australia, the body that will administer the Scheme.

8—Ministerial control

This clause provides that the Authority is subject to the general control and direction of the Minister.

Division 2—Board of directors

9—Board of directors

This clause establishes a board of directors to be the governing body of the Authority.

10—Composition of board

The board is to consist of at least 3 but not more than 10 persons with such qualifications and experience as are necessary to enable the board to carry out its functions effectively, appointed by the Governor on the recommendation of the Minister.

11—Conditions of membership

12—Allowances and expenses

13—Validity of acts

14—Proceedings

Clauses 11 to 14 are standard provisions in respect of boards and their membership.

15—Delegation

This clause provides for the delegation of the board's functions.

Division 3—Functions and powers

16—Functions

This clause provides for the functions of the authority which are:

to monitor the operation of the Scheme;

to provide advice to the Minister about the administration, efficiency and effectiveness of the Scheme;

to provide support and funding for research, education and programs related to services provided to participants in the Scheme;

to disseminate information about the Scheme;

to keep the LSS Rules under review;

to be responsible for the Fund;

any other functions conferred on the Authority by or under this measure or an Act.

17—Powers

This clause provides that the Authority has all the powers of an individual to do anything necessary or convenient to be done in the exercise of its functions.

Division 4—Other matters

18—Staff and facilities

This clause makes provision for the Authority to engage staff, and to use the services, facilities or staff of a government department, agency or instrumentality.

19—Advances by Treasurer

This clause allows the Treasurer to advance money to the Authority (by way of grant or loan) from the Consolidated Account on conditions and terms determined by the Treasurer in consultation with the board.

20—Borrowing and security for loans

The Authority may not borrow money or give security for the repayment of a loan except as approved by the Treasurer.

21—Accounts and audit

The Authority must keep proper accounts of its financial affairs and its accounts and financial statements will be audited by the Auditor-General.

22—Annual report

This clause makes provision for the annual report of the Authority which must be tabled in the Parliament by the Minister.

23—Code of conduct

This clause provides that the Authority must develop and maintain a code of conduct, which is to be published in the Gazette and laid before both Houses of Parliament. The code of conduct must include—

the procedures that will be adopted by the Authority to assist people to assess whether they are eligible to be participants in the Scheme; and

the procedures that will be adopted by the Authority to assess the needs of participants in the Scheme and to ensure that participants are appropriately assisted under the Scheme; and

other steps that will be taken by the Authority to ensure that the Authority interacts with people in a constructive and supportive manner; and

a process for receiving and managing any complaints that may be made to the Authority about how the Authority has exercised a function or power under this measure; and

any other material that the Minister considers should be included in the code.

Part 3—Participation in Scheme

24—Eligibility for participation in Scheme

A person is eligible to be a participant in the Scheme if—

the person suffers a bodily injury; and

the injury is regarded as being caused by or arising out of the use of a motor vehicle; and

the relevant motor vehicle accident occurred in South Australia; and

the coverage of this measure is not excluded under this clause ; and

the injury suffered by the person satisfies the criteria specified by the LSS Rules for eligibility for the Scheme provided by this measure.

Participation in the Scheme may be as a lifetime participant or as an interim participant and a person is not eligible to be a participant in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, in respect of the future treatment, care and support needs of the participant that relate to the injury except where the person has applied to be accepted into the Scheme under clause 6.

The coverage of this measure is excluded in relation to a motor vehicle injury suffered by a participant in a road race or that is also a compensable injury under the Workers Rehabilitation and Compensation Act 1986.

25—Application to participate in scheme

This clause makes provision for how and by whom an application for a person to become a participant in the Scheme is to be made.

26—Acceptance as a participant

A person who is eligible for acceptance into the Scheme must be accepted if an application for acceptance into the Scheme is duly made. An interim participant must be accepted as a lifetime participant if the person becomes eligible for lifetime participation. A person accepted as a lifetime participant in the Scheme remains a participant for life.

The clause further provides that any period for which a person is an interim participant in the Scheme will be added to the period of 3 years applying under section 36 of the Limitation of Actions Act 1936 (and that section will be taken to have been modified accordingly).

Part 4—Benefits under scheme

Division 1—Extent of benefits

27—Assessed treatment, care and support needs

This clause requires the Authority to pay for all the necessary and reasonable expenses incurred by or on behalf of a person in relation to the assessed treatment, care and support needs of the person while the person is a participant in the Scheme. The LSS Rules may contain criteria relating to determining which treatment, care and support needs of a participant in the Scheme.

As an alternative to paying the expenses for which it is liable under this clause as and when they are incurred, the Authority may pay those expenses by the payment to the participant of an amount to cover those expenses over a fixed period pursuant to an agreement between the Authority and the participant for the payment of those expenses by the participant (and this will satisfy any liability that would otherwise arise in relation to the matters to which the agreement relates).

28—Payment not required in certain circumstances

This clause provides that the Authority is not required to make payment in relation to any of the following:

any treatment, care, support or service provided to a participant in the Scheme on a gratuitous basis;

in the case of a child—any treatment, care, support or service that would ordinarily fall within the ordinary costs of raising a child (as defined in the clause); and

any treatment, care, support or service that is required to be provided by an approved provider but is provided by a person who is not, at the time of provision, an approved provider; or

any treatment, care, support or service that is provided in contravention of the LSS Rules.

However, the Authority may elect to make a payment in relation to any treatment, care, support or service referred to in above if the Authority is of the opinion that special circumstances exist that justify such a payment.

29—Approved providers

This clause provides for the Authority to approve specified persons or persons of a specified class to provide the treatment, care, support or services under the Scheme that are to be provided by an approved provider. The LSS Rules may also make provision for or with respect to the standards of competency of approved providers. Approvals by the Authority are granted on conditions or limitations determined by the Authority and it is an offence for approved providers to breach a condition or limitation of the approval without reasonable excuse. The maximum penalty for such an offence is $10,000.

Division 2—Treatment, care and support needs assessments

30—Assessment of treatment, care and support needs

This clause provides for the Authority to make an assessment of the treatment, care and support needs of a participant in the Scheme.

31—Cooperation by participant

This clause requires a participant in the Scheme to comply with any reasonable request in connection with the assessment of the participant's treatment, care and support needs.

32—Requirements under LSS Rules

This clause authorises the LSS Rules to make provision for or with respect to the assessment of treatment, care and support needs.

Part 5—Disputes and reviews

Division 1—Disputes about non-medical matters

33—Preliminary

This clause contains definitions for the purposes of this Division.

34—Resolution of disputes

This clause sets out the procedure for resolving a dispute about a relevant determination by the Authority. An interested party may apply (in a manner and form prescribed by the LSS Rules) to a review officer to have the dispute reviewed.

35—Appeals to District Court

This clause provides an appeal right to the District Court against a determination of a review officer and sets out the appeal procedure.

Division 2—Disputes about eligibility

36—Disputes about eligibility

This clause provides that, if there is a dispute—

about whether an injury results from a motor vehicle accident or is attributable to some other condition, event, incident or factor; or

about whether an injury suffered by a person satisfies the criteria specified by the LSS Rules for eligibility for the Scheme provided by this Act; or

about the relationship between 2 or more injuries, including whether an injury is wholly or predominantly related to a motor vehicle injury; or

without limiting a preceding paragraph—about whether an injury falls within, or is excluded from, the coverage of this Act under the LSS Rules; or

about a matter prescribed by the regulations,

the dispute may be referred to an expert review panel. The panel's determination is final and binding (although that does not apply to any proceedings for judicial review). The costs of any proceedings before an expert review panel under this measure are payable by the Authority, excluding representation costs.

37—Appeals to District Court

This clause provides an appeal right to the District Court against a determination of an expert review panel and sets out the appeal procedure.

Division 3—Review of assessments

38—Review of assessments

This clause provides for a participant in the Scheme to apply to have an assessment of the Authority about treatment, care and support needs of the participant reviewed by an expert review panel. This clause lists grounds for review, as well as time frames for review. The decision of the expert review panel is final and binding (although that does not apply to proceedings for judicial review) and costs are to be payable by the Authority.

Part 6—Medical and other treatment or care costs

39—Bulk billing arrangements

This clause provides for the Authority to enter into bulk billing arrangements with the Minister for Health, service providers or others acting on their behalf for payment by the Authority of the expenses of participants in the Scheme for hospital treatment, ambulance services and other treatment expenses.

40—Payment of certain expenses not covered by bulk billing arrangements

This clause makes provision in relation to the rates at which the Authority is required to pay the expenses of hospital treatment, ambulance services, medical and dental treatment and rehabilitation services that are not covered by bulk billing arrangements.

41—Maximum fees payable for services not provided at public hospitals

This clause provides for the Minister, by notice in the Gazette, to set amounts to be paid by the Authority for certain treatment, care and support services to a participant in the Scheme provided at a hospital other than a public hospital and for which payment is required to be made to the hospital and not to the treatment or service provider .

Part 7—The Fund

Division 1—Establishment of Fund

42—Lifetime Support Scheme Fund

The Lifetime Support Scheme Fund (the LSS Fund) is established under this clause from which payments for which the Authority is liable in respect of the Scheme under this measure are to be made.

Division 2—Contributions associated with motor vehicle injuries

43—Determination by Authority of amount to be contributed to Fund

The Authority is to determine, before the beginning of each relevant period, an amount that the Authority considers is required to be contributed to the Fund—

to fund the present and likely future liabilities of the Authority under Part 4 in respect of persons who become participants in the Scheme in respect of motor vehicle injuries suffered during that period; and

to meet the payments required to be made from the Fund (other than excluded payments or payments under Part 4) during that period (to the extent that liability for any such payment has not been covered under the previous paragraph); and

to satisfy the requirement to make any payment of duty under Part 3 Division 11 of the Stamp Duties Act 1923 in relation to the relevant period; and

to make provision for such other matters as the Authority should, in all the circumstances, make provision for under this Division in connection with any liability of the Authority under this measure.

The Authority's determination in respect of a relevant period is to be made—

in accordance with a report of an independent actuary engaged by the Authority after consultation with the Treasurer to report to the Authority on the amount required to be contributed to the Fund; and

after applying any principle or requirement specified by the Minister by notice in the Gazette for the purposes of this proposed section; and

after taking into account any other payments that may be made by another body or person in connection with the operation of this measure.

The Minister will, after receiving a report of the Authority's determination, and after consultation with the Treasurer, determine an amount that should be paid to the Authority for contribution to the Fund for the relevant period.

44—LSS Fund levy

The required fund contribution for a relevant period is to be made by payment to the Authority of a levy (the LSS Fund levy) that is imposed on all persons who apply for any of the following under the Motor Vehicles Act 1959:

the registration of a motor vehicle;

an exemption from registration in respect of a motor vehicle;

a permit in respect of a motor vehicle.

The LSS Fund levy will be an amount calculated under a scheme determined by the Minister after consultation with the Treasurer and the Authority, and the amounts to be recovered will be collected by the Registrar of Motor Vehicles at the time an application referred to above is made. The Registrar will pay to the Authority the LSS Fund levies collected with the exception that the Registrar may retain such administration expenses as are determined by the Treasurer for the purposes of this proposed section.

45—Recovery of payments in respect of vehicles not insured under State law

This clause entitles the Authority to recover from the appropriate person the present value of its treatment, care and support liabilities in respect of the motor vehicle injury of a participant in the Scheme if the injury was caused by the fault of the owner or driver of the motor vehicle and, at the time of the accident, the vehicle was not insured in accordance with the requirements of Part 4 of the Motor Vehicles Act 1959. Any amount the Authority may recover is to be reduced in proportion to any contributory negligence by the participant. The clause sets out who the appropriate person will be and provides for a defence in any proceedings to recover under this proposed section and contains the proviso that the Authority is not permitted to recover the present value of its treatment, care and support liabilities in respect of injuries to a participant in the Scheme if the participant paid an amount to the Authority under clause 6 in respect of those injuries.

46—Recovery in respect of persons in default

This clause provides that if an approved insurer or the nominal defendant has a right of recovery against a person (the relevant person) under a designated section and the person who suffered a bodily injury in relation to which the right of recovery applies becomes a participant in the Scheme, the Authority may exercise the same right of recovery against the relevant person for the present value of its treatment, care and support liabilities in respect of the participant in the Scheme as the approved insurer or nominal defendant has under the designated section. Sections 116 and 127A of the Motor Vehicles Act 1959 are the designated sections.

Part 8—Miscellaneous

47—No contracting out

This clause provides that this measure will apply despite any contract to the contrary.

48—Release of information

This clause authorises the Authority to disclose and release information to parties the Authority thinks fit or to persons prescribed by the regulations. It also authorises insurers to disclose information obtained under Motor Vehicles Act 1959 in relation to potential or current participants in the Scheme.

49—Immunity

No personal liability will attach to an assessor, a review officer or a member of a panel under this measure for an act or omission by the person in good faith and in the exercise or purported exercise of powers or functions under the Act.

50—Treasurer's guarantee

This clause provides that the Treasurer will guarantee the liabilities incurred or assumed by the Authority in pursuance of this measure.

51—False or misleading information

This clause makes it an offence to provide false or misleading information under this measure, the penalty for which is $10,000.

52—Absence of participant from Australia

If a participant in the Scheme is to be absent from Australia, the participant must, at least 28 days before leaving Australia, give the Authority notice of the proposed absence in accordance with the LSS Rules. If the Authority considers such action is justified, the Authority may—

waive or reduce the period of notice that applies under this clause in relation to a particular person in a particular case;

suspend the participation of a person in the Scheme while the person is absent from Australia (whether or not notice has been given in accordance with this clause).

53—Extraterritorial operation of Act

This clause makes express provision for the operation of the legislation in relation to the following:

things situated in or outside the territorial limits of this jurisdiction;

acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;

things, acts, transactions and matters that would, apart from this measure, be governed or otherwise affected by the law of another jurisdiction.

54—Authority to act on behalf of participant

This clause provides that, without limiting any other provision, any authorisation or step that may be given or taken under this measure by a participant in the Scheme may be given or taken by a person with lawful authority to act on behalf of the participant.

55—Agreements with WorkCover Corporation

This clause allows the Authority to enter agreements with the WorkCover Corporation for the provision of treatment, care, and support needs to persons with compensable injuries whom WorkCover considers may benefit from those services.

56—LSS Rules

This clause deals with the making, varying, revoking or substitution of the LSS Rules by the Governor on the recommendation of the Authority. The Subordinate Legislation Act 1978 (other than section 10AA and Part 3A) apply to the LSS Rules.

57—Regulations

This clause makes provision for the Governor to make regulations for the purposes of the measure.

Schedule 1—Expert review panels

Schedule 1 makes provision for the establishment, constitution, procedures, functions and powers of expert review panels for the purposes of this measure.

Schedule 2—Related amendments and transitional provisions

Part 1—Related amendments

1—Amendment provisions

This clause provides that in Schedule 2, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Civil Liability Act 1936

2—Amendment of section 3—Interpretation

This clause proposes to amend the definition in the principal Act of motor accident to mean an incident in which personal injury is caused by or arises out of the use of a motor vehicle. This will better align with the Motor Vehicles Act 1959. A definition of MVA motor accident is also to be inserted and is defined as a motor accident where the motor vehicle is a motor vehicle as defined in the Motor Vehicles Act 1959. A new subsection is to be inserted to provide that, for the purposes of the principal Act, personal injury will arise from a motor accident if the personal injury is caused by or arises out of the use of a motor vehicle.

3—Amendment of section 52—Damages for non-economic loss

Current section 52 provides for compensation in respect of non-economic loss, which may include pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. This clause amends the way that awards for damages for non-economic loss are calculated for personal injury arising from an MVA motor accident. The clause inserts an injury scale value system where non-economic loss is assessed on a scale running from 0 to 100. A person may only be awarded damages for non-economic loss where the relevant injury exceeds 10 on the injury scale. The amendments also provide for the adjustment annually of indexed amounts of damages that may be awarded under this section.

4—Insertion of section 56A

56A—Additional provisions relating to motor vehicle injuries (economic loss)

New section 56A sets out the principles that apply to how a court is to determine damages for economic loss in relation to personal injury arising from an MVA motor accident.

5—Amendment of section 58—Damages in respect of gratuitous services

It is proposed to amend section 58 so that damages for gratuitous services in relation to personal injury arising from an MVA motor accident may only be awarded if the injury scale value for the injury exceeds 10. The clause makes further provision relating to persons who are participants in the Lifetime Support Scheme.

6—Insertion of sections 58A and 58B

58A—Limitations on damages for participants in lifetime support scheme

New section 58A provides that no award of damages may be made to participants in the Lifetime Support Scheme (to be established under the measure) for treatment and care needs in relation to the relevant injury, regardless of whether the treatment and care needs are included or excluded by the Scheme, and regardless of whether the person is an interim or lifetime participant in the Scheme.

58B—Additional provisions relating to death on account of a motor vehicle injury

New section 58B provides that any entitlement to damages for loss of financial support in respect of the death of a person arising from an MVA motor accident (a relevant loss of financial support claim applies subject to this new section. Under new section 58B(3), damages awarded in relation to a relevant loss of financial support claim must, after applying a discount rate (if any), and any other principle arising under the principal Act or at common law, be discounted by a further 20%.

7—Amendment of section 65—Spouse or domestic partner may claim for loss or impairment of consortium

This clause is consistent with other changes instituted by the measure. Damages in relation to loss or impairment of consortium, which is deprivation of the benefits of a family relationship due to injuries, on account of personal injury arising from an MVA motor accident may only be awarded if the injury scale value exceeds 10.

8—Insertion of Part 9 Division 13

Division 13—Regulations

76—Assessment of motor vehicle injuries

New section 76 provides for the making of regulations with respect to any claim, entitlement or award of damages in respect of personal injury arising from an MVA motor accident and for the establishment of an accreditation scheme in respect of health professionals.

77—Regulations—general provisions

New section 77 contains a general regulation making power in the usual terms.

Part 3—Amendment of Motor Accident Commission Act 1992

9—Amendment of section 14—Functions and objectives of Commission

This clause inserts as an objective and function of the Commission the encouragement of early and appropriate treatment and rehabilitation for people who suffer road accident injuries.

Part 4—Amendment of Motor Vehicles Act 1959

10—Amendment of section 5—Interpretation

This clause proposes to insert a definition of LSS Fund levy.

11—Amendment of section 20—Application for registration

Current section 20 requires that at the time of making an application for the registration of a motor vehicle, the applicant must pay to the Registrar a prescribed fee, the appropriate insurance premium and the stamp duty payable on the application. This clause requires that applicants also make payment of the appropriate LSS Fund levy.

12—Amendment of section 24—Duty to grant registration

It is proposed to amend current section 24 so that in addition to payment of the prescribed fee, insurance premium and stamp duty, as is the current situation, payment of the LSS Fund levy by an applicant for motor vehicle registration is required for the Registrar to register a motor vehicle under the principal Act.

13—Amendment of section 118B—Interpretation of certain provisions where claim made or action brought against nominal defendant

This clause is consequential.

14—Insertion of section 126A

This clause inserts a new section.

126A—Claim for compensation

New section 126A makes provision for how and by whom a claim for compensation can be made.

15—Amendment of section 127—Medical examination of claimants

These are related amendments.

16—Amendment of section 127A—Control of medical services and charges for medical services to injured persons

This proposed amendment inserts an additional subsection which provides that, in addition to the matters currently included in the current section, the Minister may, in relation to a particular case or class of case, increase a limit or charge that applies for the purposes of this section (and the prescribed limit or prescribed scale will, in that case, then be taken to be increased to the extent allowed by the instrument).

17—Insertion of sections 127B and 127C

This clause inserts two new sections.

127B—Liability of insurer to pay treatment, care and support costs

New section 127B requires the Authority to pay the reasonable expenses incurred by or on behalf of a participant in the Scheme in providing for such treatment, care and support for the participant as are necessary and reasonable in the circumstances. The clause lists the treatment, care and support needs covered by this obligation.

127C—Control of legal costs

New section 127C makes provision for the control of legal costs payable in respect of proceedings brought in respect of a claim for which a person is insured under this Part of the principal Act.

18—Insertion of section 134A

134A—Review of scheme

New section 134A makes provision for a periodical review, and report on the operation, of Part 4 of the principal Act.

Part 5—Amendment of Stamp Duties Act 1923

19—Insertion of Part 3 Division 11

This clause inserts a new Division.

Division 11—LSS Fund levy

82B—Interpretation

New section 82B inserts a number of definitions required for the purposes of the measure.

82C—Lodgement of statement and payment of duty

New section 82C requires the Authority to pay duty to the Commissioner in respect of each LSS fund levy paid to the Authority. It also requires the Authority to lodge a statement to the Commissioner with the levies received, and obligates the Authority to pay duty equivalent to 11% of the total.

Part 6—Transitional provisions

20—Civil Liability Act—transitional provisions

21—Motor Vehicles Act—transitional provisions

22—Contribution to liabilities of Authority—transitional provisions

These 3 clauses make provision for transitional arrangements following the enactment of this measure.

Debate adjourned on motion of Hon. D.W. Ridgway.

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