Royle, Richard --- "Editorial: Winds of change" [2016] PrecedentAULA 13; (2016) 133 Precedent 2

WINDS OF CHANGE

By Richard Royle

The nationwide roll-out of the National Disability Insurance Scheme (NDIS) commences in July this year. It is slated to bring improved services for the care of severely disabled people. This roll out will place increased pressure on an expansion of the Lifetime Care Scheme that is currently restricted to motor vehicle accidents in most States and Territories.

Government officials are now looking at an expanded National Injury Insurance Scheme (NIIS), as recommended by the Productivity Commission in 2011. Discussion papers have been prepared in relation to medical treatment injury cases in order to achieve a federated system with minimum benchmarks for coverage for such injuries. This is likely to include all those with a spinal cord injury causing permanent neurological deficits, those with multiple amputations, serious burns, blindness and brain injury. It is thought that birth defects and those who are injured over the age of 65 may not be included.

If and when this scheme is operational, one can assume that the government will be looking at other areas of catastrophic injuries currently assessed under the various Civil Liability Acts. Substantial difficulties may be faced, it may prove difficult to obtain agreement of the States, and control of such a disparate group of claims that are insured or self-insured by a variety of national and international insurance companies may prove challenging.

All this change means that lawyers will be looking at catastrophic injuries in a different way. Care claims in medical negligence cases resulting in catastrophic injury will become a thing of the past. No doubt other areas of litigation may arise, such as the review of administrative decisions in relation to membership of the scheme, etc. Judicial review of the administrative decisions of motor vehicle lifetime care decision-makers has developed as an area of practice for some lawyers. Mark Robinson SC and Jnana Gumbert provide a useful outline as to how this review mechanism may work as the NIIS is expanded.

Numerous contributors (largely from Turner Freeman Lawyers) have provided a state-by-state round up of the system of damages compensation in workers compensation, transport accidents, asbestos, medical negligence and public liability cases. It includes information about recent or proposed changes and is a helpful guide to the current state of damages legislation and its future direction.

Substantial practical assistance and up-to-date information supporting the preparation of claims has been provided in articles dealing with claims by third parties, the relevance of genetic testing in cerebral palsy cases and when and how to engage an occupational physician. Claims for vehicle modifications are often made for those who are catastrophically injured. Some of the issues facing those injured people and available technology is addressed in an article by Tom Eley.

A fascinating review of the legal concepts regarding the loss of chance in causation issues and a new look at inferential reasoning in catastrophic injury cases are well worth a read.

An analysis of applications that can be made for the exclusion of maximum costs limits and fund management claims provides further interesting reading, as these issues are all particularly relevant to those dealing with catastrophic injury claims.

The rapidly growing area of superannuation life and disability claims is particularly topical in the light of revelations of poor claims processing by insurance claims managers in this area. TPD claims are often vigorously defended and the anaylsis of these claims, including case studies, by Christiane Etienne and Renee Zakeresen will be of great assistance to practitioners in the field.

This edition provides a smorgasbord of interesting information and helpful articles targeted at those handling catastrophic injury cases....enjoy!

Richard Royle was admitted to the UK Bar in 1983 and has been practising in NSW since 1985. He specialises in tort-related matters, including international torts. EMAIL [e-mail].