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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-17 Daily Xml
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Motor Vehicle Accident Injury Schemes

The Hon. J.A. DARLEY (16:23): I move:

That the Social Development Committee inquire into and report on the impact of the Lifetime Care and Support Scheme and the Compulsory Third Party Insurance Scheme on persons injured in motor vehicle accidents and any other relevant matters including, but not limited to, consideration of other schemes in operation around the country.

In 2013 this government introduced the Motor Vehicle Accidents (Lifetime Support Scheme) Bill. The bill represented a major shift in the way we deal with the rights of persons injured in motor vehicle accidents. It sought to establish a no-fault lifetime support scheme for those people catastrophically injured in motor vehicle accidents, irrespective of who was at fault. To counter the costs associated with such a scheme, the bill also sought to overhaul the existing fault-based CTP insurance scheme, including significant changes to tort law for awards of damages under that scheme.

At the time of the debate I made it clear that, whilst I supported a call for a no-fault lifetime support scheme for persons who sustained catastrophic injuries, I did not support such a measure being implemented at the expense and the diminution of a person's ability to seek appropriate compensation for at-fault accidents.

My colleague the Hon. Kelly Vincent also counselled the government against blanket use of injury tables and the catastrophic impact that failing to take an injured person's age, personal situation or employment into account would have. The honourable member was very clear in her criticism of and opposition to the government's proposal, and I am extremely grateful that she has joined me in calling for this motion.

A number of amendments were moved to try to soften the blow of the government's bill. Some of those amendments were adopted, but not nearly enough to make up for the major shortcomings of the legislation. The government did agree to a provision proposed by the Hon. Tammy Franks for a comprehensive review into the operation of the scheme after the three-year mark. That was a very welcome amendment.

The Motor Vehicle Accidents (Lifetime Support Scheme) Act commenced operation last year. Since then, the government has announced its plan to sell off and privatise the Motor Accident Commission, a decision I think most of us find absolutely astonishing. The problem is that, if the government presses ahead with this ridiculous plan, any review into the effectiveness of the changes to the act and the scheme will be rendered absolutely useless. If we wait three years for the review it is highly unlikely that the review will be effective, if the government has sold the fund and stipulated that there will be no change to the legislation, which any purchasing insurer is likely to require.

The impact of the scheme on injured persons has been tremendous, and the ability to claim damages for many injuries has either diminished or been abolished altogether. I have received some comparisons of actual case studies which I will place on the record. The first example relates to the loss of vision of one eye. For a motor vehicle accident claim under the new scheme, such an injury would have a range of 26 to 30 ISV points.

Under the old motor accident scheme, if it attracted 30 points, the non-economic loss lump sum would be $91,830. For a WorkCover claim, the injury would equate to approximately 50 per cent whole person impairment. For an injury occurring in 2013, this would result in a non-economic loss assessment of $237,599. Under the new scheme, an entitlement has been reduced by approximately 75 per cent and a person injured in a motor vehicle accident gets a mere 10 per cent of what a person injured in a work accident gets.

The second example relates to a cyclist who is knocked off his bike. The injured person has an ISV of between eight and nine points and is likely to require surgery to repair ligaments. Even with such injuries, a 9 per cent ISV does not attract an assessment for non-economic loss. If it was a WorkCover claim, assuming an 8 per cent whole person impairment for a 2013 injury, the injured person would be entitled to $18,394. Under the old motor vehicle scheme, a not unreasonable assessment for this injury would be five points, which would give a lump sum payment of $7,650.

The third example also relates to a cyclist being knocked off a bike. The cyclist has fractures to her wrist, thumb and rib, and her pre-existing osteoarthritis has been aggravated. She is assessed at ISV 11 points. Her entitlement to non-economic loss for a 2013 injury is $3,000. If she had sustained the same injuries during work, the whole person impairment would be around 10 per cent and she would be entitled to $20,243. Under the old scheme, the injured person would have an assessment of between 10 and 15 points, which would equate to a lump sum of around $21,430.

How these examples could be considered fair is anyone's guess. I am sure a person injured in a motor vehicle accident would be amazed to know that, if they are male and they happen to lose a testicle in a motor vehicle accident, that injury would not satisfy the threshold for non-economic loss, that is, for pain and suffering.

The legal profession, including law firms, the Law Society's CTP group, the SA Bar Association and the Australian Lawyers Alliance, are telling us that the scheme is so harsh and so draconian that the majority of victims involved in motor accidents are precluded from receiving compensation for pain and suffering. Contrary to what the government is telling us, we are not talking about minor injuries. We are talking about significant injuries with long-term effects.

It is not just entitlements to claims for pain and suffering that have been lost. We are being advised that potential clients with injuries are being turned away in droves because they simply do not meet any of the thresholds in the new legislation. The bottom line is, if we do not have a review now and you or anyone you know are unlucky enough to be involved in a motor vehicle accident, then you had better hope and pray that it occurs within the course of your employment so that you have any hope of being more appropriately compensated for all your injuries.

The changes to the CTP scheme are relatively new, and it is difficult to know the full extent of the impact they have on injured persons. That is why it is so important that we inquire into this issue now and assess the information that we have available before the government proceeds with its plans to privatise the MAC, especially because we are all completely in the dark when it comes to the detail around what the government is proposing.

We have not even received a clear answer as to whether the plans require either legislation or changes to regulation but, if the government is intent on pressing ahead with that proposal and we wait for another two or three years before any sort of review takes place, it will simply be too late. With that, I commend the motion to the council, and I look forward to hearing from other honourable members on this very important issue.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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