Hodgson, Rodney; Campbell, Jane --- "The NIIS: a threat to workers' compensation rights" [2015] PrecedentAULA 70; (2015) 131 Precedent 4

---

THE NIIS

A THREAT TO WORKERS’ COMPENSATION RIGHTS

By Jane Campbell and Rod Hodgson

The National Injury Insurance Scheme (NIIS) is intended to be a national no-fault scheme providing lifetime care and support to people who have suffered a catastrophic injury in a motor vehicle accident, workplace accident, during medical treatment or in the community, regardless of whether or not they can prove that someone else was responsible for their injuries. The compulsory third party (CTP) iterations of the NIIS have largely been dealt with in most jurisdictions; workers’ compensation is the next frontier.

A potential threat posed by the NIIS is the legislating away of an injured individual’s right to sue for their future care needs, replacing lump sum compensation with a no-fault, government-funded drip scheme. Practitioners need to be aware of the serious flaws inherent in the assumptions underpinning the scheme and the risks it poses both to the welfare of their clients and to their own profession as personal injury lawyers. It is not too late to challenge the details of this development. It will be critical for the Australian Lawyers Alliance (ALA) and, in particular, the state committees to engage with local legislators on the workers’ compensation aspects of the NIIS.

MINIMUM BENCHMARKS

The NIIS is proposed as a federated model of state-based government agencies that will determine what care services can be provided to scheme participants (what, when, how, by whom, at what cost, etc).

Central to the NIIS model is the agreement of the states and territories to ‘minimum benchmarks’ for the coverage of catastrophic injuries. If the states and territories do not provide cover that meets minimum benchmarks, penalties will apply. So far, benchmarks have only been agreed in relation to those injured in motor vehicle accidents, including those who cannot demonstrate fault on behalf of another party.

Faced with the need to expand CTP schemes to cover care for the catastrophically injured on a no-fault basis, the states and territories have responded in different ways. In South Australia, it has been estimated that more than 80 per cent of CTP common law rights have been lost as a ‘trade-off’ for the introduction of a NSW-like lifetime care and support scheme.^[1] However, the minimum benchmarks have been or will be implemented on a ‘levelling up’ basis in both ACT^[2] and Western Australia.^[3] ‘Levelling up’ means that some individuals previously without entitlements will benefit, while those with existing entitlements will retain them. Queensland has yet to announce its intentions, but will hopefully support a levelling up approach.

Minimum benchmarks will next be applied to the workers’ compensation sector, where the number of people likely to be affected is much smaller. The Productivity Commission (PC) estimated that approximately 1,000 people are catastrophically injured in Australia each year and that while approximately 50 per cent of these injuries occur in motor vehicle accidents (500 per year), approximately 8 per cent occur in the workplace (about 80 people per year nationally).^[4]

It is important to realise that, contrary to what the term implies, ‘minimum benchmarks’ do not necessarily represent the most favourable options for scheme participants. The ALA has consistently supported proposals to improve support for those injured in the workplace (and elsewhere), if it can be provided sustainably and affordably and, crucially, not at the expense of existing common law rights. It is with respect to these two important provisos that the ALA is most concerned about the implementation of the NIIS.

THE NDIS AND THE NIIS

It is not possible to discuss the NIIS without also talking about the National Disability Insurance Scheme (NDIS), as they are inextricably linked. Both were conceived by the Productivity Commission (PC) in its 2011 report, Disability Care and Support^[5], which proposed the concept of a comprehensive, national no-fault accident and injury insurance scheme. In phase one, the NDIS would provide care and support for all Australians under the age of 65 who were born with a disability or who acquired their disability due to genetic factors or illness. The NIIS would complement the NDIS by providing care and support for people who are catastrophically injured in accidents.

In phase two, from 2020, the viability of merging the schemes would be considered, involving the abolition of common law rights and creating a ‘giant NDIS’ or national no-fault scheme.^[6]

IDEOLOGICAL BASIS UNDERPINNING THE NDIS AND NIIS

Fundamental to the PC’s proposal is the removal of the common law right to lump sum compensation for future care,^[7] so that disabled and injured people receive ongoing care from a government agency, rather than pay for it themselves using their lump sum compensation.

This model resembles New Zealand’s Accident Compensation Corporation (ACC), where there are few exercisable common law rights,^[8] and the cost of negligent conduct has been shifted from the tortfeasor and their insurer to the public purse. Despite being over 40 years old, the NZ model has not been adopted elsewhere. It has a troubled financial history, having a net funding position of negative $10.3 billion as at 30 June 2010,^[9] before extensive cuts to individual benefits brought the scheme back into profit.^[10]

The PC adduced no evidence for its assertion that lump sums are problematic. Chapter 17 of its report contains a flawed critique of common law and simply states that removing lump sums will reduce legal costs.^[11] There is no analysis of the associated increase in administrative costs, let alone the impact on people who will lose the right to the autonomy, dignity, self-respect and independence of being able to exercise some degree of control over their own lives.

THE INTERGOVERNMENTAL AGREEMENT

On 7 December 2012, the Commonwealth and state and territory governments signed an Intergovernmental Agreement (IGA) to implement the NDIS.^[12] In addition, each jurisdiction negotiated and signed relevant bilateral Heads of Agreement with the Commonwealth, outlining their commitment to develop a timeframe for the roll-out of the NDIS.^[13]

The IGA forces a connection between the NDIS and the NIIS, as the timeframe for the former effectively sets the context for rolling out the latter. According to the IGA, state governments will have to repay the NDIS for services provided to people from their state who are not, by the agreed timeframe, being covered by a NIIS that meets the agreed minimum benchmarks.^[14]

TIMESCALES AND THE IGA

Under the IGA:

• minimum benchmarks for motor vehicle accidents were to be agreed and implemented in each jurisdiction prior to the commencement of the NDIS launch;

• where such benchmarks were not implemented prior to the NDIS launch (that is, between 1 July 2013 and 2016), the jurisdiction concerned 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 motor vehicle benchmarks;

• as regards the minimum benchmarks for workplace accidents, medical accidents, and criminal and general accidents in the home or community, all jurisdictions were to ‘endeavour to agree’ minimum benchmarks to provide no-fault lifetime care and support for catastrophically injured people by the commencement of the NDIS ‘full scheme’ (as opposed to trial sites, so from 2016 onwards). On commencement of the NDIS full scheme, 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 these minimum benchmarks.^[15]

Each jurisdiction individually negotiated the timing of the NDIS launch in their state, which included a gradual phase-in of different age groups. In July 2013, the NDIS began a gradual roll-out in Tasmania, Victoria, New South Wales and South Australia.^[16] In July 2014, the NDIS began in the ACT, Northern Territory and Western Australia.^[17] This process therefore imposed deadlines for the implementation of minimum benchmarks for motor vehicle accidents.

The bilateral heads of agreement further committed the states with respect to implementing minimum benchmarks. Under its agreement with the Commonwealth, for example, SA agreed to endeavour to implement nationally consistent minimum benchmarks for workplace accidents by 1 July 2016, and for medical injury by 1 July 2018, or otherwise pay for the inclusion of affected people in the NDIS.^[18]

THE MOTOR VEHICLE ACCIDENT MINIMUM BENCHMARKS

In April 2013, a few months after the IGA was signed, state and territory treasurers agreed to work with the Commonwealth Treasury to develop minimum benchmarks regarding eligibility and entitlements for individuals who were catastrophically injured in motor vehicle accidents. To date, only WA has not agreed to this,^[19] while Queensland has agreed only ‘in principle’ to the minimum benchmarks.^[20]

In April 2014, Treasury engaged PriceWaterhouseCoopers (PwC), on behalf of the Council on Federal Financial Relations, to prepare a Council of Australian Governments (COAG) Consultation Regulation Impact Statement (RIS) regarding the motor vehicle accident minimum benchmarks.^[21]

Submissions were made, including by the ALA,^[22] but they had little or no impact on the final wording of the RIS, which was released in March 2014.^[23] The benchmarks set out minimum standards of coverage in relation to:

• types of catastrophic injuries covered (spinal cord, traumatic brain injury, multiple amputations, burns and permanent traumatic blindness);

• types of accidents (registerable vehicles, public roads, moving and stationary vehicles);

• cross-jurisdictional matters; and

• entitlements (medical, dental, rehabilitation, ambulance, respite, attendant care, domestic assistance, aids and appliances, artificial members, eyes and teeth, education and vocational training, home and transport modification).^[24]

The benchmarks also defined ‘reasonable and necessary’ supports and included the requirement for consistent reporting standards.^[25] The types of coverage and injuries covered by the motor vehicle accident benchmarks are likely to be replicated in the workplace benchmarks.

Some states were not required to make changes to comply with the minimum benchmarks, as their existing schemes already complied. This was the case in NSW, with its Lifetime Care and Support Scheme (LCSS), and in Victoria with its Transport Accident Commission (TAC) scheme. Other states have taken the following action to date:

• South Australia – implemented a levy on all South Australian motor vehicle registrations from 1 July 2014 to comply.^[26] However, the SA government also introduced new legislation to significantly cut benefits, including a new 10 per cent Whole Person Impairment (WPI) threshold.^[27] This left most South Australians injured by the fault of another with only minimal recourse. Pat Boylen, ALA South Australian President, estimated that the changes would effectively exclude 4,000 claimants per year in order to cover approximately 12 additional claimants who have been catastrophically injured.^[28]

• ACT – introduced a levy on CTP insurance policies that commence on or after 1 July 2014.^[29] It negotiated with NSW for people catastrophically injured in motor vehicle accidents in the ACT to participate in NSW’s LCSS. In contrast with SA, the ACT commendably left existing common law rights intact.

• Tasmania – passed legislation amending its compensation arrangements to substantially comply with the minimum benchmarks,^[30] and agreed to reimburse the NDIS for the costs of any minor exclusions^[31] (for example, Tasmania excludes motorists committing serious traffic offences^[32]).

• Northern Territory – passed legislation to comply with the minimum benchmarks^[33] and agreed to reimburse the NDIS for the cost of any exclusions, such as unregistered vehicles.^[34]

• Western Australia – announced in May 2015 that it will introduce a complying scheme from 1 July 2016. Crucially, people who can demonstrate fault can opt out of the lifetime care and support scheme and instead receive lump sum compensation for future care.^[35]

• Queensland – has agreed in principle to the benchmarks, but has yet to finalise its position. Given that the NDIS will launch in Queensland on 1 July 2016,^[36] this position will presumably become clearer very soon.

PROGRESSING THE NIIS

The NIIS is being driven by the NIIS Senior Officials group, comprised largely of officials from Commonwealth, state and territory treasuries and compensation schemes. It was established following the release of the 2011 Productivity Commission report to progress the NIIS.^[37]

In 2013, PwC was engaged to provide qualitative analysis regarding the motor vehicle accident benchmarks and, more recently, on the minimum benchmarks for workplace accidents. The Commonwealth Treasury prepared the RIS on workplace accidents in consultation with state and territory officials.^[38]

Input was provided by the SafeWork Australia Strategic Issues Group for Workers’ Compensation, which established a temporary advisory group to undertake technical work and make recommendations on a NIIS for workplace accidents.^[39]

This group was reportedly chaired by the Commonwealth Department of Employment and comprised representatives of the Commonwealth Treasury, jurisdictional statutory workers’ compensation schemes including Comcare, Seacare and the Military Compensation Scheme, unions, employer groups and selfinsurers.^[40]

According to the authors of the RIS, its purpose was to identify the problem that governments are seeking to address; canvass policy options to address the problem; assess the costs and benefits of these options; and establish a preferred option.^[41]

Considering the number of workers catastrophically injured each year and the schemes that currently exist to provide for them, the authors noted that:

• approximately 60-70 workers are catastrophically injured each year (a number that is decreasing due to health and safety improvements^[42]);

• there are 11 main workers’ compensation schemes in Australia;

• all schemes already provide no-fault cover;

• not all schemes provide ‘lifetime care and support’ and the extent of the entitlements available also varies in different jurisdictions; and

• some jurisdictions permit lump sum commutation or capping services such as attendant care.^[43]

THE RIS AND WORKERS’ COMPENSATION

On 5 March 2015, the Commonwealth Treasury released a Consultation RIS on the NIIS and workplace accidents.^[44] The RIS suggested three options: the base case (no change); implementing minimum benchmarks; and harmonisation. Introducing minimum benchmarks (option 2) was clearly preferred, as it was anticipated that the NIIS would build upon existing accident compensation schemes in each jurisdiction, thus requiring only relatively minor changes. Under this option, the RIS suggested that restrictive time-limits and caps on services should be removed, but also that lump sum commutation should be seen as inconsistent with the minimum benchmarks, and the ability to convert future benefits into lump sum payments should be eliminated.^[45] Implementing this option would require change in Western Australia, Tasmania, the ACT, Queensland and relevant Commonwealth schemes.^[46]

The RIS ran to only 22 pages, with little critical analysis, only a few paragraphs on current arrangements in some jurisdictions, and a paucity of facts and data which were largely out of date (for example, referencing Walsh data from 2005 as cited by the PC in 2011).^[47]

Furthermore, the RIS was characterised by its uncritical acceptance and endorsement of the PC’s original 2011 recommendation: that a central component of scheme reform should be the removal of lump sum compensation. The RIS authors seem to have made it their mission to name and shame any jurisdictions which allow any opportunity for claimants to receive lump sum compensation.

A careful and considered approach to workers’ compensation scheme reform is essential, given its importance to the lives of workers and the businesses of employers and governments.

Serious scheme analysis, as part of the NIIS reforms, is what we’d like to see. It would be appropriate for governments to consider the most up-to-date data and all the critical elements of scheme architecture. The Comparative Performance Monitoring reports issued by SafeWork Australia, for example, provide trend analysis on workers’ compensation schemes in Australia and NZ, which is intended to help gauge the success of different approaches undertaken by the various workers’ compensation and work, health and safety authorities.^[48] This work should be done before the NIIS is rolled out into the workers’ compensation context.

ALA’S RESPONSE TO THE RIS ON WORKPLACE ACCIDENTS

In its April 2015 submission regarding the RIS on workplace accidents, the ALA reiterated its view that the common law rights of people who have been catastrophically injured should be preserved.^[49] This includes the option to commute income streams into a lump sum.

Key points made in the ALA submission are summarised below.

Lack of data and analysis

The proposed changes were not supported by adequate evidence. There were no up-to-date statistics on catastrophic injury, nor was there any analysis of the success or otherwise of the roll out of the LCSS in NSW or South Australia.

Incorrect identification of the problem

As with the PC report in 2011 and the motor vehicle accident RIS in 2014, the authors of the workplace accident RIS appear to have jumped to the conclusion that lump sums are inherently bad and should be eliminated, and that workers with catastrophic disabilities will be better off as part of a lifetime care scheme.

In its submission, the ALA asserted that the problem is not lump sums, per se. Lump sums can, in fact, be a major part of the solution in terms of ensuring the scheme’s sustainability and longevity, and delivering choice to participants. The ALA noted that the real problems include the application of a too-high discount rate; the imposition of harsh capping; the introduction of thresholds to limit access to common law remedies; and other legislative measures that have reduced the adequacy of payments for injured people.

Sustainability undermined

The ALA pointed out that schemes that maintain meaningful common law access (such as the TAC scheme in Victoria and the CTP and workers’ compensation schemes in Queensland) are demonstrably sustainable and provide low premiums. We highlighted the inadequate analysis to date of the architectural fundamentals that form the basis of fair and sustainable workers’ compensation schemes.

Rights and choices

The ALA emphasised the vital importance of choice and control for people with disabilities and the role that lump sums can play in freeing people from bureaucracy.

The proposed reforms will remove the certainty of lump sum compensation and condemn injured workers to the uncertainty and paternalism of a long-tail scheme – with benefits dependent upon the views of bureaucrats and the vagaries of government funding priorities.

The ALA submitted that some of its members in NSW have had clients wanting to be categorised as less than catastrophically injured simply to avoid a future in which they have no control.

Coverage

Ironically, given that the NIIS is intended to ensure that no one with catastrophic injuries falls through the gaps, the proposed reforms may result in less comprehensive and appropriate coverage. As currently formulated, the minimum benchmarks expressly exclude some people who would currently be covered by existing schemes. Why are we reducing coverage?

The ALA argued that, by focusing exclusively on catastrophically injured people, the NIIS also raises the risk of governments cutting benefits to anyone who is less than catastrophically injured. This has already happened in SA in relation to motor vehicle compensation.^[50]

ALA’S RECOMMENDATIONS

The ALA has consistently pointed out the need for more data, more analysis and more caution.

We have recommended the ‘base case’ option of making no change, other than to improve the quality of service provision within existing schemes.

We have further recommended limiting the NIIS to motor vehicle accidents and retaining the injured person’s right to choose between common law lump sum compensation and entry into a lifetime care and support scheme.

Policymakers should at least wait until the minimum benchmarks have been fully implemented in motor accidents so that their impacts and ramifications can be ascertained before rolling them out further.

IMPLEMENTING WORKPLACE ACCIDENT MINIMUM BENCHMARKS

The authors of the Consultation RIS noted that some jurisdictions would need to eliminate the ability to convert future benefits into lump sum payments and remove restrictive time limits and caps on services. In this respect, New South Wales, Victoria and the Northern Territory already meet the minimum benchmarks.

South Australia has been the first Australian jurisdiction to pass legislation designed to comply with the NIIS for lifetime care and support for catastrophically injured workers. The Return to Work Act 2015 (SA) commenced on 1 July 2015.

However, Western Australia, Tasmania, the Australian Capital Territory, Queensland and the Commonwealth would need to amend their schemes, as follows:

Commonwealth

In all three Commonwealth schemes (Comcare, Seacare and DVA) there is a weekly cap for the provision of attendant care and domestic assistance. The RIS proposes the removal of these caps.

ACT

The ACT private sector scheme allows workers to commute existing and future rights into a lump sum payment by the insurer, including for medical costs. Access to a lump sum, even at the election of the worker, does not comply with the minimum benchmarks. Therefore, any proposal to remove lump sum commutation would have a significant impact in the ACT.

Queensland

Queensland has a centrally funded short-tail workers’ compensation scheme where entitlement to weekly benefits stops when the first of the following happens:

• the incapacity that is due to the work-related injury ceases;

• the worker has received weekly payments for the incapacity for five years;

• the weekly benefits received have reached the maximum amount ($307,385 as at 1 July 2014); or:

− the worker’s injury has been assessed as stable and stationary and not likely to improve with further medical or surgical treatment; and

− an assessment of the degree of permanent impairment has been made; and

− a notice of assessment and offer of lump sum compensation has been made to the worker; and

− the worker has accepted, rejected or deferred a decision about the offer of lump sum compensation; or

− 20 business days have passed since the worker received the offer.^[51]

The practical effect of Queensland’s workers’ compensation scheme design is that the vast majority of injured workers are off the scheme within two years.

The short-tail nature of statutory compensation in Queensland is offset by the ability of injured workers to seek damages at common law for loss of future earnings, if their degree of permanent impairment is greater than 5 per cent. This threshold only existed from 15 October 2013 to 31 January 2015. ALA members estimate that during that period, the threshold extinguished over 50 per cent of all common law claims. The new Queensland government legislated on 17 September 2015 to retrospectively remove that threshold.^[52] Queensland has now returned to full access to common law for workplace injuries.

In Queensland, injured workers eligible to seek damages under the common law can claim for care and support, with certain limitations. This allows workers to receive a lump sum, rather than lifetime care and support, and is why Queensland does not comply with the minimum benchmarks. Gaining common law compensation ends the availability of statutory compensation.

It is hoped that the fundamental structure of the Queensland workers’ compensation scheme will not alter and that adherence to the NIIS minimum benchmarks will involve ‘bolting on’ lifetime care and support coverage for the less than the 10 people each year who are catastrophically injured and meet the relevant criteria.

Tasmania

Tasmania has an ‘agreement to settle’ provision which allows the worker to convert future benefits into a current lump sum payment. This extinguishes all future rights (both common law and statutory benefits), essentially buying the injured person out of the scheme. The choice to exercise this mechanism to convert payments to a lump sum is left to the worker. The Workers’ Rehabilitation and Compensation Tribunal needs to be satisfied of a number of factors to accept a settlement, namely:

• all reasonable steps have been taken for rehabilitation, retraining or return to work;

• advice has been received about the implications of accepting a settlement; and

• no duress or other inducements have been applied in settling the agreement.^[53]

Common law claims do occur in Tasmania (albeit only a small number). Any compensation paid under the Workers, Rehabilitation and Compensation Act 1988 will be accounted for, and any judgment will be reduced accordingly. However, this is only to the extent of the compensation that is paid under the Act, and the court is not restricted in the amount that can be awarded for the various heads of damage. It is conceivable that a court could award a significantly greater amount than would be available under this Act, potentially affecting lifetime care and support payments.

Additionally, care and support is linked to the provision of income replacement payments. Therefore, when an injured person passes retirement age, their income replacement ceases, and so too do their care and support payments.^[54] The current arrangements are therefore not consistent with the minimum benchmarks.

Western Australia

Western Australia has a cap on the total amount of medical benefits and vocational rehabilitation available. Additionally, attendant care, domestic assistance, home modifications and vehicle modifications are all usually provided, but are not legislatively guaranteed. More specifically:

• Medical expenses are capped at 30 per cent of a legislatively prescribed amount. Effective from 1 July 2014, the prescribed amount was $212,980, which would mean the cap for medical expenses would be $63,894.

• Expenses for repair and replacements of equipment and aids sit outside that cap (including artificial limbs and a wheelchair) and have a reasonableness limit.

• Vocational rehabilitation is capped at 7 per cent of the prescribed amount, or $14,908.^[55]

The Workers’ Compensation and Injury Management Act 1981 (WA) allows for redemption agreements where a worker agrees to receive a lump sum rather than the ongoing payment of expenses, including medical expenses. Accepting this lump sum extinguishes future rights, essentially buying the worker out of the scheme. The choice to exercise this mechanism to convert payments to a lump sum is left to the worker. Even though this is the choice of the worker, they are left to bear the risk of the adequacy of that lump sum payment, which does not comply with the minimum benchmarks.

WHAT IS THE CURRENT STATE OF PLAY?

In July 2015, the Commonwealth Treasury released a draft medical treatment injury discussion paper^[56] indicating that policy work on the NIIS is forging ahead. At the time of writing, however, no invitation or opportunity has been made for public input into this discussion paper, which borrows heavily from the NZ scheme.

It is anticipated that treasurers will agree to progress the minimum benchmarks on workplace accidents, or may even have already agreed to this measure before submissions were sought on the RIS.

We see enormous problems ahead with the NIIS. In this article we have not even touched upon the challenges involved in rolling out the NIIS into the complex and politically charged medical injury context and beyond.

Even if governments stop the rollout after imposing minimum benchmarks in the motor vehicle or workers’ compensation contexts, we see cost blowouts as inevitable. This will lead to inevitable reductions in access and increasingly restricted benefits. Bureaucracies will grow and injured people will suffer.

We believe that the full consequences of the PC’s agenda have not been fully understood by many politicians. Closer scrutiny of the experiences of pure no-fault, long-tail schemes will be instructive: they always fail the tests of fairness and sustainability.

The practical overlap between the NDIS and NIIS also requires examination. The NDIS has already experienced serious problems in the areas of cost control, funding and workforce shortages, sustainability, and the dismantling of state and territory disability services. Entrants into new NIIS schemes will be competing for the same services sought to be delivered by the NDIS; the lack of workforce planning is becoming a major issue.

WHAT CAN ALA MEMBERS DO?

ALA members must engage with the NIIS and be prepared to challenge the flaws in its underlying premise. From the time the PC first released its draft report, the ALA has challenged its positioning, its paucity of data and its flawed analysis of the reality of modern common law in Australia and other comparable jurisdictions.

Nevertheless, governments around the country continue to see the PC vision as the blueprint for the future and to implement this apocalyptic vision of a NZ-style scheme – a poorly funded and perennially bankrupt, long-tail pension scheme that transfers liability from wrongdoers and their insurers to the public purse.

We know that such schemes quickly become financially unsustainable; their participants receive increasingly inadequate care and support; and the taxpayer picks up the tab.

Members of the ALA also understand the fundamental good achieved by lump sums in terms of restoring some measure of dignity and self-determination to clients and their families.

Members in each state can play a role in shaping the policy responses to the workers’ compensation minimum benchmarks. With clever and committed advocacy, the loss of existing rights and choices is not inevitable, and we can all assist the effort to achieve a true levelling up of rights.

Jane Campbell is a lawyer and independent financial adviser specialising in personal injury at Aeran Pty Ltd. WEBSITE: www.aeran.com. EMAIL [e-mail].

Rod Hodgson is Principal at Maurice Blackburn Lawyers, Brisbane and both National Director and President of the ALA QLD branch. PHONE [phone] EMAIL [e-mail].

---

^[1] Patrick Boylen, ‘No-fault accident compensation scheme for South Australia?’, Precedent, Issue 114 January/February 2013, p26.

^[2] Section 15 (3) of the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) makes clear that a person is not eligible for the Lifetime Care and Support Scheme if they have received compensation for future treatment and care needs. Section 22 also makes it clear that the LCSS does not limit or otherwise affect the application of the Road Transport (Third-Party Insurance) Act 2008 (ACT).

^[3] WA Government 2015-16 Budget Fact Sheet, ‘No-fault catastrophic injury compulsory third party insurance scheme’ at http://www.ourstatebudget.wa.gov.au/Budget-Fact-Sheets/.

^[4] Productivity Commission (2011), Disability Care and Support Inquiry Report, available at http://www.pc.gov.au/projects/inquiry/disability-support/report, p793.

^[5] Ibid.

^[6] Ibid, pp851 and 910.

^[7] Ibid, p856.

^[8] Exemplary damages are available in the context of negligence, but only if the defendant acts intentionally or with subjective recklessness. See Couch v Attorney-General [2010] NZSC 27.

^[9] ACC, Financial Condition Report 2010 http://www.acc.co.nz/search-results/index.htm?ssUserText=financial+condition+report+2010, at p2.

^[10] Adam Bennett, ‘ACC leads good economic news at National Party convention’, NZ Herald, 25 May 2013, at http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10886118. See also ACC, Financial Condition Report 2013, which credits investment returns at 9.9% pa, at www.acc.co.nz.

^[11] Productivity Commission, see note 4 above, from p789.

^[12] Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS) Launch at http://www.ndis.gov.au/document/intergovernmental-agreement-nat.

^[13] Bilateral agreements found at https://www.coag.gov.au/node/485.

^[14] Intergovernmental Agreement for the NDIS Launch, note 12 above, Part 11, pars 112-15, p20.

^[15] Ibid.

^[16] NDIS, ‘Our sites’. Accessed at http://www.ndis.gov.au/about-us/our-sites.

^[17] Ibid.

^[18] Heads of Agreement between the Commonwealth and South Australian Governments on the National Disability Insurance Scheme – agreed 18 April 2013, at cl 39 and 40. Accessed at http://www.ndis.gov.au/document/heads-agreement-between-commonwe-2.

^[19] WA has not committed to the roll out of the NDIS. It will test the My Way model. See the Bilateral Agreement for NDIS Launch between the Commonwealth and Western Australia dated 21 March 2014 at https://www.coag.gov.au/node/485.

^[20] Heads of Agreement between the Commonwealth and Queensland Governments on the NDIS, 8 May 2013 par 40, at http://www.ndis.gov.au/sites/default/files/documents/Queensland-and-Federal-Government-Heads-of-Agreement-for-the-NDIS.docx.

^[21] National Injury Insurance Scheme: Motor Vehicle Accidents Impact Statement, 16 April 2014, at http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2014/National-Injury-Insurance-Scheme-Motor-Vehicle-Accidents.

^[22] The ALA submission dated 30 May 2014 is not on the Treasury Website but may be found at http://www.lawyersalliance.com.au/resources/2014.

^[23] Agreed Minimum Benchmarks for Motor Vehicle Accidents at http://www.treasury.gov.au/Policy-Topics/PeopleAndSociety/National-Injury-Insurance-Scheme/Benchmarks-for-motor-vehicle-accidents.

^[24] Ibid.

^[25] Ibid.

^[26] Lifetime Support Levy at https://www.sa.gov.au/topics/transport-travel-and-motoring/transport-fees/motoring-fees/lifetime-support-scheme-levy.

^[27] Motor Vehicle Accidents (Lifetime Support Scheme) Bill 2012, Civil Liability (Motor Vehicle Accidents – Third Party Insurance) Amendment Bill 2012 and the Motor Vehicles (Third Party Insurance) Amendment Bill 2012.

^[28] Boylen, see note 1 above, at p26.

^[29] Lifetime Care and Support Scheme at http://apps.treasury.act.gov.au/ltcss and http://apps.treasury.act.gov.au/ltcss/levy-in-the-act.

^[30] Motor Accidents (Liabilities and Compensation) Amendment Bill 2013. See the Second Reading Speech for more details: http://www.parliament.tas.gov.au/ParliamentSearch/isysquery/76a7c081-93d6-4077-b7bb-110f579f761f/7/doc/.

^[31] Heads of Agreement between the Commonwealth and Tasmanian Governments on the National Disability Insurance Scheme (agreed 2 May 2013) at paras 36-8 at http://www.ndis.gov.au/document/198.

^[32] Who can claim – Exclusions at http://www.maib.tas.gov.au/benefits-and-claims/who-can-claim/.

^[33] Motor Accidents (Compensation) Amendment Act 2014 NT, from 1 July 2014.

^[34] The Heads of Agreement between the Commonwealth and the Northern Territory Governments on the National Disability Insurance Scheme (agreed 11 May 2013), at paras 38-9 at http://www.ndis.gov.au/document/202.

^[35] Kate Campbell, ‘WA Budget 2015: No-fault insurance to cover catastrophic injury’, Perth Now, http://www.perthnow.com.au/news/western-australia/wa-budget-2015-no-fault-insurance-to-cover-catastrophic-injury/story-fnhocxo3-1227354646748.

^[36] NDIS, ‘NDIS in Queensland,’ http://www.ndis.gov.au/about-us/our-sites/qld.

^[37] National Injury Insurance Scheme, Workplace Accidents Consultation Regulation Impact Statement, p3 at http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2015/NIIS-Workplace-Accidents.

^[38] Ibid.

^[39] Ibid.

^[40] Ibid.

^[41] Ibid, p2.

^[42] Ibid, p4.

^[43] Ibid, p5.

^[44] NIIS, see note 37 above.

^[45] Ibid, p7.

^[46] Ibid.

^[47] Ibid, p4.

^[48] Safe Work Australia Comparative Performance Monitoring, at http://www.safeworkaustralia.gov.au/sites/swa/statistics/pages/comparativeperformancemonitoring.

^[49] ALA submission at http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2015/NIIS-Workplace-Accidents/Submissions.

^[50] Boylen, see note 1 above.

^[51] NIIS, see note 37 above, p8.

^[52] Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld).

^[53] NIIS, see note 37 above, p9.

^[54] Ibid.

^[55] Workers’ Compensation and Injury Management Act 1981 (WA), schedule 1, clause 17(1a).

^[56] Medical Treatment Injury Discussion Paper at http://www.treasury.gov.au/~/media/Treasury/Policy%20Topics/People%20and%20Society/National%20Injury%20Insurance%20Scheme/Downloads/PDF/Medical_treatment_injury_discussion_paper.ashx.