Mitchell, Emily --- "The National Injury Insurance Scheme: the details revealed" [2014] PrecedentAULA 59; (2014) 125 Precedent 18

As the roll-out of the National Disability Insurance Scheme (NDIS) continues, most practitioners are unaware of the looming prospect of a tandem scheme: the National Injury Insurance Scheme (NIIS). The gradual introduction of this no-fault system may lead to a significant erosion of common law rights to sue for injury in Australia.

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On 7 December 2012, all states, territories and the Commonwealth signed an agreement aimed at revolutionising the delivery of disability support in Australia. The Intergovernmental Agreement on the National Disability Insurance Scheme (NDIS) Launch committed to provide reasonable and necessary support to hundreds of thousands of Australians living with permanent disability. The aim was to inject much-needed funding and federal attention to a sector described by the Productivity Commission (PC) as ‘underfunded, fragmented and unfair’.^[1]

Yet, unknown to most people, the Agreement linked the implementation of the NDIS with another scheme also recommended by the PC, which received little public debate – the NIIS.

This article outlines the PC’s recommendations for designing the NIIS; the progress of the NIIS to date; and related changes to tort law that may be on the horizon; including indications that the NIIS may lead to the gradual deletion of common law rights to sue for injury.

THE PC’S RECOMMENDATIONS

The PC released its draft and final report into Disability Care and Support in 2011.^[2] While the majority of the report dealt with Australia’s disability sector, two chapters of the final report focused on the creation of the NIIS and the failures of the common law.

The PC proposed the establishment of a NIIS to provide no-fault, reasonable and necessary lifetime care and support to people who suffer a catastrophic injury.^[3] As a result, ‘common law actions for damages associated with lifetime care and support would be extinguished’.^[4] These changes would sweep across areas of personal injury, leaving no gaps across motor vehicle accidents; medical accidents; workplace accidents; and criminal injury and general accidents; whether occurring at home or in the community. The PC envisaged the NIIS as a federation of state-based schemes, primarily funded by existing insurance premium income sources.^[5] Benefits would include acute care, all medical treatment, rehabilitation, home and vehicle modifications and care costs.^[6] The NIIS would cover medical and hospital costs, while the NDIS would not.^[7] Over the lifetime of an individual, this distinction could be very important.^[8]

The PC saw the NIIS as having an important function in providing savings to support the ongoing costs of the NDIS: a proposition continually reiterated by government.^[9]

The PC further proposed an independent review in 2020 to consider expanding the NIIS to replace other heads of damages, including for pecuniary and economic loss, and general damages. The review would also consider whether the NIIS should cover the care and support needs of those who have suffered non-catastrophic, but still significant, accidental injuries (except where the only care needed could be provided by the health sector or where the injuries arose in workplaces covered by existing workplace insurance arrangements). The PC recommended that the review should also consider merging the NIIS and NDIS.^[10]

The PC’s view of the NIIS appears to be naked in its economic rationalism, asserting that individuals will not pursue litigation if care costs (‘their most important need’^[11]) can be met on a no-fault basis.^[12] This is despite the fact that the NIIS will not provide damages for economic loss and pain and suffering. The PC assumes that an NIIS will produce savings, including in legal costs due to reductions in litigation, and a reduced reliance on social welfare services,^[13] without taking into account the fact that plaintiffs would still seek compensation under the two remaining heads of damage.

THE INTERGOVERNMENTAL AGREEMENT AND THE NIIS

The Intergovernmental Agreement on the NDIS Launch, signed at COAG in December 2012, implicitly linked the NDIS and the NIIS.^[14]

Part 11 of the Agreement provides that all jurisdictions will ‘endeavour to agree minimum benchmarks to provide no-fault lifetime care and support for people who are catastrophically injured in motor vehicle accidents prior to the commencement of the NDIS launch’.^[15]

If the benchmarks were not implemented prior to or during the NDIS launch, the jurisdiction would be liable for the full cost of care and support for individuals who are in the NDIS because they are not covered by an existing or new injury insurance scheme for motor vehicle accidents.

The Agreement also notes that during the NDIS launch, NDIS supports will be provided to people in launch sites who would otherwise have been supported by an NIIS, had one been established for people catastrophically injured through workplace accidents, medical accidents and criminal and general accidents (occurring in the home or community).^[16]

All jurisdictions further agreed that they would ‘endeavour to agree minimum benchmarks to provide no-fault lifetime care and support for people who are catastrophically injured through workplace accidents, medical accidents, and criminal and general accidents (occurring in the home or community) by commencement of the NDIS full scheme’.^[17]

The final clause of Part 11 states that following commencement of the NDIS full scheme:

‘... individual jurisdictions will be responsible for 100 per cent of the cost of participants in the NDIS who are in the NDIS because they are not covered by an existing or new injury insurance scheme that meets the minimum benchmarks for motor vehicle accidents, workplace accidents, medical accidents, and criminal and general accidents (occurring in the home or community)’.^[18]

Although a new intergovernmental agreement between the Commonwealth and jurisdictions for the full scheme has yet to be reached, the Commonwealth is clearly committed to the NIIS and expects the states and territories to finance its rollout as a means of minimising cost in the Commonwealth’s NDIS full scheme.

In 2012 and 2013, all states and territories negotiated bilateral Heads of Agreement with the Commonwealth, which outline slightly more specific timelines surrounding the negotiation and implementation of nationally consistent minimum benchmarks across other areas of personal injury. These timelines differ between states.^[19] The PC foresaw that each jurisdiction would control the implementation and development of its own scheme, including ‘the level of support provided above the minimum benchmark’.^[20] Any variations will affect how consistently the care and support above these benchmarks will be delivered nationally.

The expected timeline for implementation of the NDIS varies across jurisdictions, as indicated by each jurisdiction’s bilateral agreement with the Commonwealth.^[21]

Jurisdiction	NDIS Launch	NDIS Full Scheme
ACT	July 2014	July 2019
NSW	July 2013	July 2018
NT	July 2014	July 2019
SA	July 2013	July 2018
QLD	July 2016	July 2019
VIC	July 2013	July 2019
TAS	July 2013	July 2019
WA	Two-year trial from July 2014

In March 2014, COAG’s Disability Reform Council reiterated the importance of the NIIS to disability reform across Australia, including by assisting with the financial sustainability of the NDIS over the longer term.^[22]

COAG has requested that the Council on Federal Financial Relations prioritise the work on the NIIS and report back to COAG by 1 December 2014 on minimum benchmarks for workplace accidents and medical treatment injury, and scoping work and options for general accidents.^[23]

The extent to which the federal government will pursue the PC’s recommendations regarding the common law remains unknown. However, the progress of the NIIS to date reveals that proposals to remove the ability to sue for lifetime care in cases of catastrophic injury are still very much on the table, amply illustrated by the first phase of reform: motor vehicle accidents.

MOTOR VEHICLE ACCIDENTS

Under Part 11 of the Intergovernmental Agreement, minimum benchmarks for catastrophic injury caused by motor vehicle accidents were required to be implemented by the time of the launch of the NDIS, which varies across jurisdictions (as seen above).

The development of minimum benchmarks for motor vehicle accidents took place over 12 months from March 2012. A motor vehicle sub-group of the NIIS Senior Officials, comprising Commonwealth and state and territory officials, developed the minimum standards for a federated NIIS for catastrophic injuries arising from motor vehicle accidents, which are modelled closely on the NSW scheme.^[24]

The benchmarks provided that jurisdictions should have eligibility rules which include people who suffer spinal cord injuries; traumatic brain injuries; certain amputations; certain burns and permanent traumatic blindness.^[25] A minimum level of entitlement will include reasonable and necessary support to the extent that such needs arise from the motor vehicle accident.^[26]

In April 2014, the Department of Treasury released a Consultation Regulation Impact Statement (RIS) on the NIIS and motor vehicle accidents, prepared by PriceWaterhouseCoopers.^[27] The RIS sought public consultation on three regulatory options, all of which would have different impacts on a catastrophically injured person’s ability to sue for lifetime care across jurisdictions.

The NDIS launched in NSW, Victoria, the ACT, Tasmania and South Australia (SA) in 2013. Of these jurisdictions, NSW and Victoria were held to already satisfy the motor vehicle accident benchmarks (prior to their development), via the NSW Lifetime Care and Support Scheme and Victoria’s Transport Accident Commission (TAC). The ACT essentially opted to buy into NSW’s scheme via legislation passed in April 2014; Tasmania opted to pay the full cost of individuals’ care, given that there were not sufficient numbers to justify developing a full scheme. At the time, this left SA alone facing change.

The 2013 reforms introduced in SA slashed the rights of many individuals to claim adequate compensation, or compensation at all, for injuries sustained in motor vehicle accidents. While initially justified as fiscally necessary, the cuts to South Australia’s compulsory third party (CTP) scheme did not appear to benefit the injured. In 2014, it was revealed that the provision of SA’s CTP insurance will be opened to the private sector from 1 July 2016. The changes are expected to net a surplus of $1 billion, $500 million of which will be transferred to the SA government’s Highways Fund in 2016-2017.^[28]

The minimum benchmarks therefore appear to provide an avenue for greater participation by private insurers, while also endorsing reduced payments to injured people and limiting the involvement of lawyers defending their rights.

On a national level, many people with less severe injuries may be denied current entitlements. As in SA, cuts to support for less severe injuries may be justified on the basis that additional funding for catastrophic injuries is required. For others, legal grounds to sue may be removed altogether by the introduction of new thresholds.

Victoria and NSW have already abolished smaller claims arising from motor vehicle accidents as a result of the implementation of their no-fault schemes, but not yet for injuries sustained as a result of medical negligence and general accidents.

The denial of claims of motor vehicle accident victims in SA indicates the likely impact of these reforms nationwide. SA may be a blueprint for what is to come in other jurisdictions.

WORKPLACE INJURY
Minimum benchmarks for workplace accidents are also being developed and should be completed by early 2015.^[29] They are currently being worked on behind closed doors, with no public input or consultation.

The minimum benchmarks are expected to be implemented by July 2016 in the ACT, Northern Territory, Queensland, SA and Tasmania.^[30]

The PC recommended that state and territory governments should ‘consider transferring the care and support of catastrophic workplace claims to the NIIS through a contractual arrangement with their respective workers’ compensation schemes, drawing on the successful experiences of Victoria’s Worksafe arrangements with the TAC’.^[31] The PC also recommended, again, that damages for lifetime care and support be removed, and additional premium revenue sought (approximately double) to meet the lifetime care costs of additional no-fault catastrophic claims.^[32]

The number of people catastrophically injured at work every year is low, as indicated by SafeWork Australia’s submission to the PC Inquiry. SafeWork Australia noted that, nationally, from 2005-2009, between 50 to 69 claims of catastrophic injury were accepted each year,^[33] a total of 249 claims over four years. The total direct cost of these claims was $47.5 million, comprising $27.9 million in compensation payments; $15.1 million in goods and services and $4.5 million in non-compensation.^[34]

Documents obtained by the ALA under freedom of information (FOI) laws further revealed the criteria being considered in developing the minimum benchmarks for workplace accidents. These include consideration of who is to be covered by the NIIS for workplace accidents, with the aim of ensuring that no one suffering a catastrophic workplace accident falls through the cracks due to differences in the coverage of each state and territory NIIS. Key questions being considered include determining who constitutes an ‘employee’ and a ‘contractor’; what constitutes a ‘workplace accident’; and which NIIS applies to the employee of a firm that operates in several jurisdictions.^[35] The latter could have some relevance to proposed changes to the Comcare scheme currently before Parliament.^[36]

The documents obtained also revealed that officials may also consider aligning the benchmarks with motor vehicle accident schemes, such as coverage for journey claims (which varies across workers’ compensation schemes), and coverage for industries that currently have separate workers’ compensation schemes (such as seafarers and coal mining).^[37] Other considerations include ‘determining which injuries are covered, to ensure there is objective injury-based criteria that correlates with the need for lifetime care and support’.^[38] The documents further state that ‘while spinal cord injury and traumatic brain injury would probably be covered (having regard to the draft minimum benchmarks for motor accidents), consideration needs to be given to the coverage of disease such as asbestos (arising out of employment) and to ensuring that individuals receiving long-term weekly compensation benefits who have not suffered a catastrophic injury are not automatically eligible’.^[39] Lastly, the minimum benchmarks should determine whether the benefits will be provided via service provision or a lump sum payment.^[40]

Clearly, the benchmarks previously created for motor vehicle accidents provide a strong framework on which to formulate the benchmarks for workplace accidents, and also presumably for accidents incurred in medical practice and in the community.

MEDICAL ACCIDENTS

All bilateral agreements between the Commonwealth and states and territories commit to continuing negotiations through the Standing Council on Federal Financial Relations on no-fault medical injury coverage, except for SA, which committed to ‘continue negotiations, with an aim to develop, agree, endeavour to implement nationally consistent minimum benchmarks for medical treatment by July 2018’.^[41]

The PC proposed that the NIIS should fund the care and support needs of people who are catastrophically injured during medical treatment ‘in circumstances where changes to behaviour, systems and/or protocols could lead to reductions in the number of catastrophic injuries over time’.^[42] ‘Acts of God’ would be covered by the NDIS.^[43]

The PC further proposed that an expert panel should decide the eligibility of people catastrophically injured following medical treatment to access the NIIS. Those found to be ineligible for access would be covered under the NDIS.^[44] The PC did not elaborate on the availability of external review of these decisions.

The PC proposed that medical treatment accidents would be financed from a variety of sources, including self-insurance arrangements of hospitals and the medical indemnity premiums of physicians. The PC envisioned financing would also result from savings on medical litigation costs and legal process costs; reduced reinsurance costs for medical indemnity insurers, including reduced costs associated with the NDIS funding all cases of cerebral palsy; and savings associated with medical claims that do not proceed to litigation due to the determinations of the expert panel.^[45]

Documents released under FOI laws reveal that two broad categories of injury associated with medical treatment were to be covered by the NDIS or NISS, with causation appearing to play a major role:

‘1. Injury occurring as a result of treatment which followed all accepted standards and which is an unavoidable consequence of the appropriate treatment of an illness.

The treatment “did not substantially cause the adverse outcome, and the outcome could not have been prevented”... Such an injury [would be] considered not amenable to any risk management, and unavoidable. Such an injury would not be covered by the NIIS, but the patient would receive appropriate lifetime care and support via the NDIS, with medical and hospital care required provided through Medicare and the public hospital system.

2. Injury occurring as a result of an error or treatment recognised as substandard.

This patient would receive subsequent medical care including hospitalisation as well as lifetime care and support under the NIIS.’^[46] (emphasis added)

The document also notes that ‘it may also be useful to anticipate that a finding by the expert panel that an injury arose out of the disease itself rather than failure in treatment may have some influence on any subsequent consideration of litigation to recover other costs such as economic loss and pain and suffering’.^[47] (emphasis added)

The overtaking of common law processes via an expert panel raises concerns about conflict of interest and transparency. This is especially the case given the absence of any discussion about the panellists, or any review mechanisms. The possibility that panel findings may be relied upon to repudiate claims, or be submitted as expert evidence in litigation, is equally worrying.

Remarks at a Senate estimates hearing in June 2013 appear to indicate that all jurisdictions have committed to aim to commence a medical NIIS by July 2018.^[48]

The PC identified cerebral palsy as the sole disability/injury to be treated differently, proposing that all cases associated with pregnancy or birth (which met the eligibility criteria) should receive support under the NDIS. Stating that ‘scientific evidence suggests that most cases of cerebral palsy are not accidents’^[49] and that ‘it is particularly hard’^[50] to establish causation, the PC estimated that covering cerebral palsy cases under the NDIS would save insurers approximately $60 to $100 million each year.^[51]

The PC recommended that common law rights to sue for lifetime care for cerebral palsy, where negligence can be established, should be eliminated completely, although access to damages for pecuniary and economic loss and general damages would remain.^[52] The PC noted that the provision of care and support would mean that ‘there would be less of an incentive to pursue a claim under the remaining heads of damage’.^[53] Further, ‘even for medical accidents occurring before the introduction of the NDIS and NIIS, it is likely that some of these “long tail” claims would not proceed to litigation, as care and support costs could instead be met through the NDIS’.^[54] Of note, the NDIS will not cover associated health and medical costs, as these will be covered by Medicare and the public hospital system. In the future, individuals living with cerebral palsy as the result of medical negligence could find themselves stripped of the right to sue for lifetime care, and stripped of the choice to have their care met under the higher support packages within the NIIS.

These proposals appear to have traction, as revealed by documents released under FOI laws. Document 8 cites issues raised by the different timelines applying to the NDIS and NIIS, given that the ‘NIIS will apply to new accidents only, while the NDIS, when fully operational, will cover both past and future accidents’.^[55]

‘cerebral palsy is covered by [the] NDIS, but this scheme will not be functioning until after commencement of the NIIS which will not cover any cerebral palsy. Some individuals who might be recipients of at-fault compensation will miss out on support if their right to civil action to recover costs associated with lifetime care are extinguished prior to an entitlement to such support under the NIIS.

On the other hand, if the right to recover damages in cerebral palsy cases where negligence is alleged is maintained until the NDIS fully covers such claims on a no-fault basis, then costs of recovery will increase the costs to insurers beyond those anticipated by the PC.’^[56]

Perhaps it is not surprising that cerebral palsy has been singled out for unique treatment for assumptions about causation, given that lifetime care and support costs for cerebral palsy met by insurers run into the millions of dollars. In October 2014, a boy won a $7.5 million payout from the ACT Government after claiming medical negligence at the Canberra Hospital caused his cerebral palsy.^[57]

GENERAL ACCIDENTS
States and territories have also committed to continue negotiations regarding care and support costs for people catastrophically injured in general accidents, which includes accidents occurring in the home and community, and also potentially support for victims of crime.

In documents released under FOI laws, the NIIS Advisory Group acknowledged that ‘signing a NIIS for general accidents is a significant task because, unlike motor vehicle accident schemes and work cover, no comprehensive state-based schemes can be expanded’.^[58]

THE GREATEST GOOD?

Jeremy Bentham, 18^th century legal reformer and utilitarian, fervently believed in ‘the greatest good for the greatest number’. When it comes to assessing the NIIS reform, however, the quantum of benefit available, as well as the number of people who will benefit from it, remain uncertain.

The PC estimated that the NIIS will eventually provide care and support to around 30,000 people at an annual cost of around $70,000 to $100,000 per person, with the lower estimate equating to $1.8 million over their lifetime.^[59] These high costs are attributed to the fact that the bulk of injuries from accidents are high-cost traumatic brain or spinal cord injuries.^[60]

By way of contrast, under the NDIS, the average support plan provided $34,600 per person, with 7,316 people having individualised support plans approved and in place by June 2014.^[61] The PC proposed that the NDIS would eventually extend funding support to approximately 410,000 people nationwide.^[62] The Australian government has increased this figure to 460,000 people.^[63]

Therefore, it appears that the support packages to be funded under the NIIS are more than double the care and support available under the NDIS. But while the NIIS will provide support to approximately 0.13 per cent of the Australian population; the NDIS will provide support to about 14 times more people, or 1.94 per cent of the Australian population.^[64]

QUESTIONS THAT MUST BE ASKED

Many questions remain. With the NIIS proceeding behind closed doors, with little opportunity for public comment, consultation, or any other form of transparent review, close evaluation of the NIIS has been problematic.

While the NDIS captured the national imagination, dominating the media, internet and bi-partisan electoral promises, the NIIS is slinking in, unnoticed. Few, if any, media reports have covered it.

Given its interconnection with the funding of the NDIS, the policy details of the NIIS should be subject to proper scrutiny. The still-to-be-aired details may threaten the ongoing sustainability of the NDIS, in addition to individuals’ rights. It is in the public interest that this conversation begin.

Firstly, the extent to which the federal government, and state and territory governments, intend to adopt, or scrutinise, the PC’s views regarding the common law must be clarified. Of fundamental importance is the position regarding individuals’ continued ability to choose to sue for lifetime care and support, and whether governments aim to eliminate this entirely for people who suffer a catastrophic injury.

In light of this, the quantum of long-term financial loss for individuals who are catastrophically injured must also be questioned. With lifetime care and support usually being the largest outlay in a lump sum payment, removing this head of damage would inevitably limit any interest recoverable via prudential fund management. Furthermore, the interaction of two, rather than three, heads of damage with the nationally variable discount rate may also cause huge discrepancies in the amounts recoverable across jurisdictions.

The fate of individuals who sustain injuries less severe than a ‘catastrophic’ injury must also be considered: whether those injuries are sustained at work, in the community or during the course of medical treatment. It appears that some of these people may also lose access to sue via a hollowing out of the lower injuries from schemes through the establishment of tougher thresholds. If these people are denied access to their state-based schemes, they may turn to the NDIS for support. If they are unable to meet the eligibility criteria, however, their only hope may be the Disability Support Pension. Either way, the cost of supporting these people will be transferred back to the Commonwealth: the very situation that the creation of the NIIS was intended to avoid.

This reform will also deny access to justice for people who been catastrophically injured through another’s negligence. Eliminating the ability to claim an entire head of damage (and the removal of associated liability) will undermine the belief that justice has been served. Eliminating financial liability for negligence may also weaken the incentive for wrongdoers to change their behaviour, ultimately compromising public safety.

Proposals to develop expert panels, and how these will impact upon litigation and the consideration of expert evidence, must also be considered. Furthermore, proposals to assume causation in regards to any disability should receive further scrutiny.

Lastly, insurer profits, and expected premium increases as a result of the NIIS, require close attention. The few, expensive, ‘top-tier’ payments to the catastrophically injured, previously paid by insurers, may now be knocked out. And the many ‘low-tier’ payments, also previously paid by insurers, could be ruthlessly cut out by the introduction of thresholds. Who is truly poised to gain from this reform?

The patchy coverage for people living with disability is in part the product of federalism and a previous lack of political will to adequately fund the disability sector. However, the NIIS threatens to be more than a federation of schemes providing backup to the NDIS. It may also jeopardise fundamental protections that have hitherto been immune to federalist battles, and may shake the common law to its core.

Could the NIIS be a Trojan horse threatening rights to sue for lifetime support, masquerading as disability reform? How far the reform will go, and its anticipated impacts on individuals’ rights, can only be accurately assessed and debated if governments begin to disclose information. In order to examine the NIIS and understand its implications, we need treasury departments nationwide to release adequate information and for a genuine discussion to begin.

Emily Mitchell is the Legal and Policy Officer at the Australian Lawyers Alliance. PHONE: (02) 9258 7700 EMAIL: Emily@lawyersalliance.com.au.

^[3] The ‘catastrophic injury’ test would be set by each state for its own NIIS scheme. By way of example, the NSW LTSC scheme covers severe brain injury, spinal injury such as paraplegia and quadriplegia, multiple limb amputations and severe burns.

^[7] Document 8, at 2. Document released under FOI laws, Department of Treasury, FOI Disclosure Log.

^[9] Document 7, at 4. Document released under FOI laws, Department of Treasury, FOI Disclosure Log.

^[14] Intergovernmental Agreement for the National Disability Insurance Scheme Launch, December 2012. Accessible at http://www.ndis.gov.au/node/180.

^[24] Document 9, at 3: Document released under FOI laws, Department of Treasury, FOI Disclosure Log. See above n 6 for detail.

^[27] PriceWaterhouseCoopers, National Injury Insurance Scheme: Motor Vehicle Accidents. Accessible at http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2014/National-Injury-Insurance-Scheme-Motor-Vehicle-Accidents.

^[30] NSW and Victoria were considered to satisfy the minimum standards for work cover insurance in their respective bilateral agreements with the Commonwealth.

^[33] This comprised three codes incorporating brain injury, quadriplegia involving spinal cord injury, and paraplegia involving spinal cord injury. See SafeWork Australia, Submission to the Productivity Commission’s Inquiry into the National Long-Term Disability Care and Support Scheme, at 6. Accessible at Submission No. 326, http://www.pc.gov.au/projects/inquiry/disability-support/submissions.

^[46] Document 8, Medical Treatment Injury and NIIS discussion paper, at 1. Document released under FOI laws, Department of Treasury, FOI Disclosure Log. See above n 6 for detail.

^[48] Senate Economics Legislation Committee, Proof Committee Hansard, Wednesday 5 June 2013, at 11.

^[55] Document 8, at 3. Document released under FOI laws, Department of Treasury, FOI Disclosure Log, see above n 6 for detail.

^[58] Document 10, ‘NIIS Advisory Group, Discussion note: Developing an NIIS for general accidents’, at 1. See above n 6 for detail.

^[59] Document 7, ‘COAG Senior Officials’ Working Group, Attachment A, Interactions between the NIIS and NDIS,’ at 3. See above n 6 for detail.

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