Precedent (Australian Lawyers Alliance)
LUMP SUMS UNDER THREAT
By Andrew Stone
There are those who suggest that medical negligence sits at the pinnacle of the personal injury field. As a long-time ‘crash and bash’ man, who only occasionally dabbles in medical negligence, I would not readily make any such concessions. However, I am one of the first to agree that a medical negligence claim presents some unique challenges.
Beyond the day-to-day challenges of practising in med neg, the real game changer on the horizon is the expansion of the National Injury Insurance Scheme (NIIS) to cover people who are catastrophically injured as the result of medical negligence.
By now, personal injury lawyers should be becoming well aware of the interplay between the National Disability Insurance Scheme (NDIS) and the NIIS.
The NDIS will provide nationwide coverage through a national scheme providing reasonable and necessary care and support (but not treatment) for all people living with significant disability who meet the eligibility criteria.
The NIIS is a national scheme proposed to provide no-fault lifetime care and support for people catastrophically injured in motor vehicle accidents (MVA), workplace accidents, during the course of medical treatment and in the general community.
While the NDIS will be supported by the federal government, the NIIS will be a patchwork of state and territory-based schemes, the responsibility of state and territory governments and funded through insurance premiums. The grand plan is that those funding compensation schemes (employers, motorists, doctors and hospitals, and general liability insurers) will help to defray the costs of the NDIS – by paying for those who are injured and cannot establish fault and therefore have no compensation rights to be covered by the NIIS.
Each jurisdiction was required to establish the NIIS for motor vehicle accidents (MVA) at the time of the NDIS launch in each state. The prototype for MVA schemes was the NSW Lifetime Care and Support scheme. Western Australia is currently debating the form in which it should introduce a no-fault motor accidents scheme. After WA, the last state to contemplate the form of its no-fault catastrophic compensation scheme for MVA will be Queensland.
The next phase of the NIIS will address workplace accidents, and in March the Department of Treasury released the ‘minimum benchmarks’ for coverage of people catastrophically injured in the workplace, which already intimate the elimination of lump sum commutation.
Treasury aims to release minimum benchmarks regarding medical treatment this year. We can anticipate that they will be contentious.
The Productivity Commission (PC) has recommended that all cerebral palsy cases should be covered by the NDIS, and excluded from the NIIS. The PC also proposed removing the right to sue for lifetime care costs for all relevant catastrophic injuries. Whether the federal government will pursue this recommendation in relation to medical negligence is unknown.
As the NIIS develops, the ALA will be at the forefront of efforts to protect the rights of those who can establish fault. We will highlight the virtues of lump sum compensation, in terms of providing independence and choice for those who have been the victims of the negligence of others.
The ALA has a National Committee that regularly reviews and considers our response to NDIS and NIIS developments. We can always do with more volunteers. If you are interested in participating, please contact Emily Mitchell (our Legal and Policy Officer) at ALA head office.
On a completely separate note, I was delighted to attend the sparkling ALA Queensland conference on the Gold Coast. By the time you read this, the NSW conference will have been held in the Blue Mountains.
We still have the Victorian conference coming up on 15-16 May and the National Conference in Hobart on 22-24 October.
Our conferences present a valuable opportunity to learn, mingle and generally support the ALA in its important lobbying work. Your participation and support, in the form of membership and conference fees, generate the resources that enable us to be leaders in the debate on topics as important as the NIIS.
Having met plenty of members in Queensland and New South Wales, I look forward to meeting plenty more in Victoria and in Hobart.
Andrew Stone is a barrister at Sir James Martin Chambers in Sydney. EMAIL firstname.lastname@example.org.