Phillips, Robert --- "Motor Vehicle Accidents: the Unique Position in Tasmania" [2021] PrecedentAULA 9; (2021) 162 Precedent 34

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THE VAGARIES OF THE TASMANIAN SCHEME

By Robert Phillips

Traditionally, Tasmania and the NT are the only Australian jurisdictions that have had ‘no-fault’ compensation schemes for personal injuries arising out of motor vehicle accidents. Those schemes have been in place since the 1970s. As of 1 February 2020, the ACT also has a scheme providing for no-fault compensation for motor vehicle accidents.^[1] Other jurisdictions require some degree of fault to be established or a catastrophic injury to be suffered before compensation is available.^[2] This article will outline the unique position that exists in Tasmania.

BACKGROUND

The Tasmanian Motor Accidents Insurance Board (the Board), the statutory authority responsible for the administration of the statutory no-fault and tort-based system of compensating the victims of motor vehicle accidents, was established by the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) (the Act).

The legislation arose as a result of recommendations for the establishment of a no-fault system of compensation for motor accident victims published by the Law Reform Committee in 1972.^[3]

The recommendations drew heavily on the North American, Canadian and New Zealand experiences, particularly the experience of British Columbia.^[4] The majority view, which was supported by both the Law Society of Tasmania and the Tasmanian Bar Association, was that because the defects of the tort liability system in relation to compensation for motor accident victims were so substantial and the operation of that system was so ineffective, it should be replaced with a no-fault system in virtually all cases.^[5]

The minority view was that the total abolition of the tort system was too drastic a departure from traditional methods.

The Tasmanian Labor Government accepted the minority view and the legislation enacting the scheme came into operation on 4 December 1973.

The drafting of the legislation has received criticism. Some provisions are derived from its predecessor, the Traffic Act 1925 (Tas), without an appreciation or recognition that some of the statutory concepts had been significantly altered in the 1973 legislation.^[6]

STATUTORY SCHEME

Who is entitled to assistance?

It is important to understand that the legislation has no application to motor vehicle accidents where the claimant was injured in an accident arising out of, or in the course of, their employment; or where the defendant is the employer or a co-worker.^[7] In such cases, compensation (both statutory and at common law) is the responsibility of the workers’ compensation insurer of the employer.

Subject to that limitation, the entitlement of Tasmanians who are injured in a motor vehicle accident in their state, whether or not the motor vehicle was registered in Tasmania or elsewhere, is subject to appropriate notice provisions universally and, regardless of fault (save in the cases of intentional injury or conviction of serious offences and crimes),^[8] such persons are entitled to modest benefits to ensure that they are not significantly worse off financially as a result of being injured.

The Act provides that the Board must pay benefits prescribed by the Motor Accidents (Liabilities and Compensation) Regulations 2020 (the Regulations) if:

• a resident of Tasmania suffers personal injury resulting directly from a motor vehicle accident; and

• either the motor vehicle accident occurs in Tasmania or elsewhere in the Commonwealth; and

• the accident involves a motor vehicle registered in Tasmania.^[9]

The Act also extends the benefit of the scheme to non-residents in the event that the accident occurred in Tasmania and involves a motor vehicle registered in Tasmania.^[10]

What benefits are available?

The Regulations provide for payment of a disability benefit to injured persons. In the case of an employed person, the allowance is at the rate of 80 per cent of their average weekly earnings (subject to an upper monetary limit) while the person is wholly disabled from engaging in her/his usual employment.^[11] This benefit exists for two years.^[12] Thereafter, if the person is wholly disabled from engaging in any employment or occupation from which s/he would otherwise be reasonably suited by education, training or experience, the person is entitled to benefits for a further period of three years.^[13]

There is no lump sum compensation for permanent impairment. Housekeeping allowances and funeral expenses are payable in appropriate cases and a modest dependency payment is available to dependants in the case of a fatality.^[14]

The limitation in respect of medical expenses is $500,000 if the person has been a continuous hospital inpatient for more than four days commencing on the day of the accident, and $400,000 in any other case.^[15]

Daily care benefits

In 1991, following widespread community concern in relation to cases involving under-compensation and cases where the fruits of damages were squandered, a system of periodic payments for daily care was enacted in both the statutory and common law schemes.^[16] As a consequence, damages for gratuitous care are not available for motor vehicle accidents at common law.^[17]

The amendment provided for scheduled benefits to be available for an indefinite period (whether or not the person had an entitlement to claim damages) in cases where a person has or will need ‘treatment, therapy, nursing services, assistance, supervision, services for rehabilitation or other care’ for at least two hours a day. The statutory restrictions and limitations have no application to daily care – so long as daily care is required for at least two hours a day, it is payable as a scheduled benefit. Daily care is not paid as a lump sum. The Regulations provide that if attendant care or domestic services are provided gratuitously, disability benefits are payable in respect of the attendant care or domestic services.^[18]

In the event that a person who requires domestic care has an entitlement to damages and the court is satisfied that the person requires daily care, the court does not award damages for such care but will certify that the person requires daily care. The daily care payments are made periodically by the Board.

Disputes regarding entitlements and benefits

Entitlement to scheduled benefits or to a particular benefit is to be determined by the Board in the first instance. If a person is aggrieved by a refusal or failure of the Board to make a payment by way of a scheduled benefit, they may refer the matter to the Motor Accidents Compensation Tribunal (the Tribunal).^[19] The Tribunal was established pursuant to s12 of the Act. The Tribunal is deemed to be a commission established under s4 of the Commissions of Inquiry Act 1995 (Tas),^[20] and is not subject to the rules of evidence.^[21] The members of the Tribunal are required to be appropriately legally qualified.^[22]

Notwithstanding that the Tribunal has existed for over 45 years, it is yet to be determined if a decision of the Tribunal can result in an estoppel in respect of a claim for damages.

The Tribunal does not have jurisdiction to determine a prospective entitlement – it can only consider payments incurred.^[23] This is in contrast to the Tasmanian workers’ compensation system, where the Tribunal can determine a prospective entitlement.

In Withopf v Motor Accidents Insurance Board^[24] (Withopf), the issue as to whether a claimant or appellant bears an onus of proof was left open. In a case where neither party is subject to any burden of proof and where the Tribunal is not bound by the rules of evidence, it appears that the Tribunal is nonetheless bound to make the correct or preferable decision on the case before it in accordance with the material before it.

Following Withopf, the Regulations were amended by the addition of cl 1(4)b of pt 2 of sch 1 which provides that expenses are deemed to be unnecessarily incurred (and thus not payable) ‘if the treatment is not warranted, beneficial to the person and curative of the person’s injury’.

As Blow CJ has observed:

‘Read literally this would result in no benefits being paid to someone with a medical condition that requires treatment, but cannot be cured. Quadriplegics and amputees would be entitled to nothing. That would be an absurd result.’^[25]

His Honour also observed:

‘The legislative provisions relating to scheduled benefits are not, and never have been, a masterpiece in drafting.’^[26]

It is regrettable that in almost 50 years, the only attempts to ‘clean up’ provisions have been in circumstances where there has been a demonstrated obvious defect in the operation of the Act or Regulations.^[27]

COMMON LAW

Subject to the Civil Liability Act 2002, Tasmania has retained a common law tort-based system in respect of motor vehicle accidents.

The threshold prescribed by s27 is low and operates only to exclude trivial or inconsequential injuries.^[28]

Neither the Act nor the Civil Liability Act have any role to play in respect of motor vehicle accidents where the parties are either the worker and employer, co-workers, or worker and deemed employer. In such cases, there is a requirement for a determination by the Workers Rehabilitation and Compensation Tribunal that the proposed plaintiff has a whole person impairment of 20 per cent or more as assessed by reference to the Tasmanian Workers Compensation Guides and AMA 4.^[29]

In these cases, neither the 5 per cent discount rate nor restrictions on gratuitous care damages applies.^[30]

Payments of scheduled benefits are to be ‘taken into account’.^[31] In the event that the scheduled benefit payment exceeds the amount of damages awarded, there is no obligation on the claimant to repay the difference.^[32]

A defendant to an action involving a collision or apprehended collision is not required to make discovery unless the court orders otherwise,^[33] and in Tasmania, jury trials are not permitted in motor vehicle accident cases.^[34] The Limitation Act 1974 (Tas) prescribes a three-year time limit from the date of discoverability and a right of extension in an appropriate case for up to three years.^[35] The Tasmanian Limitation Act closely follows the NSW legislation and the jurisprudence of the NSW superior courts is extremely helpful in the interpretation of the Tasmanian provisions.^[36]

In the case of an unidentified driver, the time limit begins from the date of valid notice being given under s16 of the Act to the Board.^[37]

There is no role for the private insurance industry to play in the receipt of premiums or the administration of the Act. This is generally in stark contrast to other jurisdictions that rely on compulsory third party insurance.^[38] The Motor Accidents Insurance Board is a Tasmanian government business enterprise and is accountable to the Tasmanian Parliament. The senior staff of the Board are experienced and have a good understanding of the legislative framework in which they operate. The Board has no in-house legal practitioners and it relies on panel practitioners. The panel includes legal practitioners who have significant plaintiff experience and exposure.

TIPS FOR BRINGING A CLAIM

1. Understand the legislation and do not assume that the process in your state or territory is similar to the Tasmanian process.

2. If in doubt, talk to an experienced Tasmanian lawyer – we are usually a friendly bunch.

3. Respect your Tasmanian colleagues, particularly the Motor Accidents Insurance Board panel lawyers. They are usually far more experienced than most and often have significant experience as both barristers and solicitors.

CONCLUSION

With very few restrictions, Tasmania has a reasonably effective system of motor vehicle accident compensation, employing a statutory scheme which fits hand in glove with common law compensation.

Robert Phillips is the principal of Phillips Taglieri, Barristers and Solicitors. Robert is a former Tasmanian State President of the ALA and has held positions such as member of the Rule Committee of the Supreme Court of Tasmania, member of the Sub-Committee responsible for drafting the Rules of Court 2000, and member of the Law Reform Commission (Civil). He regularly appears as counsel in the Supreme Court of Tasmania.

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^[1] Motor Accident Injuries Act 2019 (ACT).

^[2] In relation to no-fault schemes for catastrophic injuries, the following legislation exists: Motor Accidents (Lifetime Care and Support) Act 2006 (NSW); Transport Accident Act 1986 (Vic); Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA); Motor Vehicle (Catastrophic Injuries) Act 2016 (WA); and Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT). In Queensland, there is no legislation providing for no-fault compensation in cases of catastrophic injuries. Their fault-based scheme is governed by the Motor Accident Insurance Act 1994 (Qld) and the common law.

^[3] Law Reform Committee of Tasmania, Recommendations for the Establishment of a No-fault System of Compensation for Motor Accident Victims (Report No. 31, February 1972).

^[4] Ibid, see 20–2 and 34.

^[5] Ibid, see for example, 28.

^[6] Most notably, the abolition of the concept of statutory agency which deemed the driver of the vehicle to be the statutory agent of the owner, hence the confusion created by s16 of the Act.

^[7] Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) (the Act), s14(3).

^[8] See ibid, s24 for a comprehensive statement of the exclusions.

^[9] Ibid, s23(1).

^[10] Ibid, 23(1A).

^[11] Motor Accidents (Liabilities and Compensation) Regulations 2020 (the Regulations), cl 3(5) of pt 5 of sch 1. Further, cl 3(6) deals with the situation where a person’s average weekly earnings do not exceed $400 per week.

^[12] Ibid, cl 3(4).

^[13] Ibid, cl 4(3)(b).

^[14] These amounts are as prescribed by the Regulations, above note 11, sch 1.

^[15] Ibid, cl 8 of pt 1.

^[16] Motor Accidents (Liabilities and Compensation) Amendment Act 1991 (Tas).

^[17] The Act, above note 7, s27A(2).

^[18] See, for example, Harding v Motor Accidents Insurance Board [2019] TASMACT 2.

^[19] The Act, above note 7, s28(2).

^[20] Ibid, s12(7).

^[21] Commissions of Inquiry Act 1995 (Tas), s20(1).

^[22] A judge, magistrate, the associate judge or an Australian lawyer of not less than five years’ experience: the Act, above note 7, s12(2A).

^[23] Rush v Motor Accidents Insurance Board [2020] TASMACT 1, [29]–[35].

^[24] (2005) TASSC 47.

^[25] Motor Accidents Insurance Board v Bricknell [2017] TASFC 7, [21].

^[26] Ibid.

^[27] See for example, Warner v Motor Accidents Insurance Board [2019] TASSC 6.

^[28] Where damages do not exceed a threshold of $4,000 as at 30 June 2004 but indexed.

^[29] American Medical Association, Guides to the Evaluation of Permanent Impairment, 4^th ed (18 March 2015).

^[30] See for example, Mercer v Allianz Australia Insurance Limited (No. 2) [2013] TASSC 35 and Raper v Bowden [2016] TASSC 35.

^[31] The Act, above note 7, s27.

^[32] Norris v McGeachy [2009] TASSC 110, [31].

^[33] Supreme Court Rules 2000 (Tas), r383(4)(c).

^[34] The Act, above note 7, s22(1).

^[35] See Limitation Act 1974 (Tas), s5A(3).

^[36] See for example, Baker-Morrison v State of New South Wales [2009] NSWCA 35; New South Wales v Gillett [2012] NSWCA 83; and Harris v Woolworths Ltd [2010] NSWSC 25. For the relevant Tasmanian cases, see for example, O’Neill v Rhodes [2016] TASSC 17; Rhodes v O’Neill [2017] TASFC 17; Allianz Australia Insurance Limited v Mercer [2014] TASFC 3; and Allianz Australia Insurance Limited v Mercer [2016] TASFC 2.

^[37] Johnson v Motor Accidents Insurance Board (1996) TASSC 139, [11].

^[38] See Motor Accident Injuries Act 2019 (ACT), s289; Motor Vehicle (Third Party Insurance) Act 1943 (WA), s4(1); Motor Accident Injuries Act 2017 (NSW), s2.1(1); Motor Accident Insurance Act 1994 (Qld), s20; Motor Vehicles Act 1959 (SA), s102; in Victoria, the Transport Accident Commission is responsible for the provision of compensation pursuant to the Transport Accident Act 1986 (Vic).