Options to add no-fault catastrophic injury cover

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1 Options to add no-fault catastrophic injury cover Towards an appropriate solution Submission to Insurance Commission of Western Australia Green Paper - Options to add non-fault catastrophic injury cover to Western Australia s Compulsory Third Party insurance scheme 23 December 2014

2 CONTENTS Who we are... 3 Our standing to comment... 3 Introduction... 4 Option Option Option South Australia s reform Conclusion

3 WHO WE ARE The Australian Lawyers Alliance ( ALA ) is a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual. We estimate that our 1,500 members represent up to 200,000 people each year in Australia. We promote access to justice and equality before the law for all individuals regardless of their wealth, position, gender, age, race or religious belief. The ALA started in 1994 as the Australian Plaintiff Lawyers Association, when a small group of personal injury lawyers decided to pool their knowledge and resources to secure better outcomes for their clients victims of negligence. The ALA is represented in every state and territory in Australia. More information about us is available on our website. 1 OUR STANDING TO COMMENT Members of the ALA regularly advise clients all over the country that have been caused injury or disability by the wrongdoing of another. Our members advise clients of their rights under current state based and federal schemes, including motor accident legislation, workers compensation schemes and Comcare. Our members also advise in cases of medical negligence, product liability and other areas of tort. We therefore have expert knowledge of compensation schemes across the country, and of the specific ways in which individuals rights are violated or supported by different Scheme models. We are well aware of existing methods of compensation reimbursement across the country, in order for individuals to gain access to care, as they deal with intersecting Schemes. Our members also often contribute to law reform in a range of host jurisdictions in relation to compensation, existing schemes and their practical impact on our clients. Many of our members are also legal specialists in their field. We are happy to provide further comment on a range of topics for the Committee. 3

4 INTRODUCTION The Australian Lawyers Alliance ( ALA ) welcomes the opportunity to provide a submission to the Insurance Commission of Western Australia in its consultation on the Green Paper: Options to add no-fault catastrophic injury to Western Australia s Compulsory Third Party insurance scheme. There are two crucially important observations which can be made of the Green Paper at the outset: 1. It is the Western Australian State Government s policy objective to ensure all people catastrophically injured in motor vehicle accidents in Western Australia are provided with reasonable and necessary support. The Australian Lawyers Alliance applauds this objective and welcomes also that the Government has provided in-principle support for the introduction of a no-fault catastrophic CTP insurance scheme for motor vehicle accidents. 2. Western Australia currently has, and has had for the past 17 years, the most affordable CTP insurance in Australia. The affordability of WA s CTP insurance scheme stands as a testament to the efficiencies the Insurance Commission has been delivering through its own internal administration, adequacy of compensation to accident victims and fair and timely dispute resolution methods. We note that the Western Australian Government estimates that: 92 people annually suffer a catastrophic injury as a result of a motor vehicle accident, 48 of whom are able to claim compensation under the current CTP scheme. The remaining 44 people rely on support available through Government funded services, personal accident, superannuation or income protection insurance and/or families and friends. This number is estimated to grow by approximately 4% each year based on forecast growth in the number of registered vehicles. 2 We exhort the Western Australian State Government to build on what clearly is an excellent CTP scheme and level up the access to benefits so that the so-called remaining 44 people gain inclusion. Noting that at least 92 individuals and their families (including their dependents) stand to be impacted by these changes per year, the Australian Lawyers Alliance supports Option 3 as the most viable option. We believe that Option 3 provides for 4

5 the best interests of injured people and their families and provides the best opportunity for scheme sustainability. The Australian Lawyers Alliance also believes that Option 2 is inappropriate to cater for the best interests of catastrophically injured people in Western Australia. Option 1 also fails to consider the potential role of the National Disability Insurance Scheme and the difference in the level of support that an individual may be entitled to receive. We submit that the Western Australian government should press for the release of further policy detail regarding the National Injury Insurance Scheme so that consultations surrounding reform in Western Australia are more adequately informed with up-to-date information. The Australian Lawyers Alliance also believes that the experience of CTP reform in South Australia should be considered as an example of a model not to replicate in Western Australia, and that the existing rights of Western Australians to claim compensation for non-catastrophic injuries sustained within motor vehicle accidents should not be disadvantaged. OPTION 3 Option 3 proposes to: Introduce a no-fault catastrophic CTP insurance scheme only for the estimated 44 catastrophically injured people each year that do not receive compensation from the existing scheme. An estimated 48 people each year catastrophically injured who are eligible for compensation under the existing scheme would continue to be eligible for lump sum payments. The estimated cost of this option is $101 for a family car each year. In our opinion Option 3 offers the best opportunity to balance fairness and sustainability. This option levels up the rights of the approximately 44 individuals who are currently unable to access financial support for the needs associated catastrophic injury. These individuals require access to care and support. We also support this option as it maintains the existing rights of individuals who have been injured via the fault of another party: an estimated 48 people per year. We believe that it is in the best interests of the estimated 48 individuals who are currently eligible to make a claim for damages to be able to continue to do so, and to be able to receive lump sum payments. The Australian Lawyers Alliance supports the principles of individual rights, autonomy and self-determination which underpin the current CTP system of lump 5

6 sum compensation. Lump sum payments provide the best avenue for individuals and their families to maintain control, independence and choice in the delivery of their care and support. It also provides individuals and their families with the opportunity to make long-term financial decisions in their best interests and bring closure to the traumatic event of injury. With Option 3 there exists an opportunity to deliver the Government s policy objectives and leave the current system, with all its proven affordability, undisturbed. This is the best way to ensure the sustainability of a no-fault scheme. The Australian Lawyers Alliance agrees with the proposal to limit deductions on damages within the existing scheme for contributory negligence to those heads of damages other than future care and support. In this manner the integrity of the policy objective is preserved and the scheme remains internally fair. OPTION 2 Option 2 advocates: Introduce a no-fault catastrophic CTP insurance scheme for all people catastrophically injured as a result of a motor vehicle accident (92 each year). Under this option, no lump sum payment for reasonable and necessary support will be available; instead, regular payments will be made for these services. The estimated additional cost for this option will be $109 for a family car each year. Under Option 2, all those persons who meet the eligibility criteria for catastrophic injury will have their future care and needs met under the proposed scheme. Consequently, this option proposes that those persons injured by negligent drivers will lose their existing right to claim a lump sum of damages to meet those needs. Moreover they will lose their right to manage those care arrangements as they choose and as they determine to be in their best interests. Those eligible for the scheme would keep their right to sue a negligent driver for other categories of loss such as lost earnings and pain and suffering. The Australian Lawyers Alliance believe this is a flawed model for delivering the Government s policy objective of reasonable and necessary support for all persons catastrophically injured by motor vehicle accidents in WA. The current scheme s success and affordability is, we contend, a function of: The containment of administration costs 6

7 Modest legislative adjustments to quantum recovery, and Fair and timely dispute resolution procedures within Western Australia s common law courts Removal of common law Option 2 unfairly removes the freedom of negligently injured persons to control and direct their own care needs. In our submission, common law courts play an efficient and vital role in determining what is reasonable and fair compensation for individual circumstances. Removing from the common law courts entirely, the issue of what is reasonable and fair long term compensation for the catastrophically injured removes a vital reference point for all Western Australians. Option 2 is modelled on the New South Wales, ACT and now South Australia model. All are actuarially immature, and for the cohort who can demonstrate fault, Option 2 is inconsistent with the principles of self-determination and choice so crucial for those with serious disabilities. This is explored in more detail below. Administrative burden and financial risk In addition to diminishing the existing rights of the negligently injured, Option 2 introduces risk to the affordability and efficiency of the entire scheme. This Option will introduce: Administration costs through the open-ended handling of claims and care co-ordination and management. Multiple new dispute points turning on administrative decisions effecting the lives of the scheme members Long-tailed liabilities and a growing pool of scheme members. In 2014, the NSW Lifetime Care and Support Scheme supported the entry of 172 new participants into its scheme, bringing the total number of participants to 933, spending $83.6 million on treatment, rehabilitation and care services for participants. 3 The policy objectives of this State Government are best served by making the modest addition to the current system proposed by Option 3 which then provides a 7

8 discrete additional safety net for those currently locked out. Option 2 proposes to quarantine the care needs of all those catastrophically injured and place them within a growing and administratively burdensome scheme. Faced with growing pressures on affordability future governments will have two inevitable policy levers at their disposal: 1. Further reductions to the existing rights of those non-catastrophically injured Western Australians negligently injured in motor accidents the hitherto most efficient and affordable scheme in Australia for 17 years; OR 2. Incremental erosion and restriction to the definition of what is reasonable and necessary care to deliver costs savings. It must be recognised that the provision of regular payments for reasonable and necessary support is not always in the best interests of a catastrophically injured person. For example, the regular payment for services does not provide for an injured individual to be able to make substantial long term financial decisions, such as purchasing a more suitable home with the lump sum payment, rather than making many modifications to the existing one with a drip-feed of regular payments. Such payments are also dependent upon the insurer approving a sought-after support as being reasonable and necessary and leaves the individual dependent on the insurer s approval regarding their applications for care and support. The situation often arises where an individual is seeking care that is decided by the relevant insurer to not fall within this definition. In NSW, amendments to the NSW Lifetime Care and Support Scheme Guidelines has meant that decisions about what constitutes reasonable and necessary support now largely rests with the NSW Lifetime Care and Support Authority and are not appealable on the merits to an independent arbitrator. Under the threat of fiscal unsustainability within an administered scheme, definitions of what constitutes reasonable and necessary support are also likely to be tightened over time. For example, in NSW, the NSW LTCS no longer supports payments for gratuitous care following legislative amendments passed following Daly v Thiering [2013] HCA 45. It is also questionable as to whether safety standards will be affected if parties are 8

9 unable to be sued for lump sum payments for lifetime care and support (usually the largest outlay in a lump sum). The appropriateness of removing the fiscal incentive to take reasonable care must be considered. In summary, we believe that Option 2 is inappropriate as it: Removes the existing rights of people catastrophically injured by negligent drivers and their families to sue for lifetime care and support, with the implication that injured people and their families are limited in their choice about the delivery of care and support and their long-term financial decisions; Will not improve efficiency in the conduct of legal claims, but introduces a growing administrative scheme with multiple dispute points; and Removes the role of Western Australia s common law courts for determining what is reasonable care for individuals in circumstances where there are competing interests; Raises the risk of financial affordability thereby compromising the policy objective of comprehensible reasonable and necessary care; May impact upon standards of safety. OPTION 1 Option 1 suggests a framework of: No change. Retain the existing fault based CTP scheme. An estimated 48 people each year would continue to receive lump sum payments. An estimated 44 people each year would not be entitled to any compensation under this option and would continue to rely on support available through Government funded services, personal accident, superannuation or income protection insurance and/or family and friends. We note that any individual that has been catastrophically injured within a motor vehicle accident that is not covered by WA s CTP scheme may, if satisfying the requisite eligibility criteria, be able to gain access to the National Disability Insurance Scheme. However, in these instances, the Western Australian government would likely be liable for the ongoing cost of their care for failing to implement the minimum benchmarks for motor vehicle accidents, as per the 9

10 Intergovernmental Agreement on the NDIS Launch. We note that the average care and support package proposed to be provided under the NDIS and NIIS differs greatly. The Productivity Commission 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. 4 These high costs are attributed to the fact that the bulk of injuries from accidents are high-cost traumatic brain or spinal cord injuries. 5 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 The PC proposed that the NDIS would eventually extend funding support to approximately 410,000 people nationwide. 7 The Australian government has increased this figure to 460,000 people. 8 Therefore, it appears that the support packages to be funded under the NDIS are less than half the care and support proposed to be available under the NIIS. (It important to note that 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. 9 ) Option 1 fails to consider the significant reduction in the average level of support package that an injured individual may be eligible to receive under the NDIS, should the Western Australian government commit to fund the individual s participation within the NDIS rather than implementing CTP reform. However, we emphasise that the ongoing details regarding the NIIS are unclear. We note that it is anticipated that an intergovernmental agreement on the NDIS full scheme is anticipated to be signed in years to come. Ultimately, we believe that further information must be made publicly available in order to adequately discuss the ways in which catastrophically injured people can be best supported by either scheme. The Western Australian government has been appropriately cautious on the NDIS. The design characteristics of the NDIS are far from proven as effective. Throughout 2014, a series of reports have revealed extremely serious problems in the early stages, for example in A Review of the Capabilities of the National Disability 10

11 Insurance Agency. 10 The adjustments to the NDIS which will be necessary to ensure sustainability will inform NIIS policy. Suffice at this stage to reiterate that the Australian Lawyers Alliance does not accept that removal or diminution of rights engenders better outcomes for the disabled, nor is the removal of rights consistent with the minimising of fiscal impacts on both State and Federal governments. SOUTH AUSTRALIA S REFORM We also wish to emphasise that the rights of Western Australians who have been injured at a scale far less than catastrophic injury should be maintained. In 2013, South Australia marked the first jurisdiction to experience significant CTP reform following the Commonwealth s expectation that a National Injury Insurance Scheme (NIIS) be implemented with minimum benchmarks for motor vehicle accidents. However, the South Australian government imposed cuts far greater than required by the NIIS reform, by dramatically raising thresholds; imposing extraordinarily high discount rates of 20 per cent for economic loss; reducing individuals ability to claim for gratuitous care; and controlling legal costs required to be paid by insurers. At the time, the South Australian government justified the changes as necessary 11 to fund the cost of care and support for people who had been catastrophically injured. It has since become evident that the extensive cuts to injured people s entitlements were not necessary. In the SA state budget in June 2014 it was revealed that changes are expected to net a surplus of $1 billion for the SA government; $500 million of which will be diverted to the SA government s Highways Fund in The legislative package comprised the Motor Vehicle Accidents (Lifetime Support Scheme) Bill 2012 (SA); Civil Liability (Motor Vehicle Accident Third Party Insurance) Amendment Bill 2012 (SA); and Motor Vehicles (Third Party Insurance) Amendment Bill 2012 (SA). At the time, the President of the Law Society of SA, Morry Bailes, stated that: By the state government s own admission, the expectation is that 70 to 75 per cent of road accident victims won t have access to compensation for noneconomic loss, which means they get nothing for their pain and suffering. The 11

12 new scheme also creates a threshold below which you cannot be compensated for your income loss, even if you re unable to work because of your injuries. Even for those who meet the threshold, there s an automatic 20 per cent reduction on income loss. 13 It was estimated by the Australian Lawyers Alliance that 80 per cent of current claimants would have their entitlements reduced to a claim for medical expenses only, affecting more than 4,500 victims of motor accidents. The opposition Liberal party, in leading up to the state election, committed that if elected, it would introduce the 0 to 60 point scale, abolish thresholds, change damages for non-economic loss to a similar basis as in Queensland and remove the discount on economic loss. The Labor state government would not agree to this, but would agree to an earlier review of the scheme. Ultimately, the Liberal opposition was not successful and the state Labor government was returned to power. 14 In July 2014, South Australia s Lifetime Care and Support Scheme commenced. At September 2014, the Australian Lawyers Alliance estimated that seven individuals were supported by the scheme. The fiscal unsustainability of the scheme will inevitably become more evident as the scheme matures. These changes will have a substantial impact in terms of diverting an increased number of people towards the public health system or Centrelink for essential supports that they may have previously received under the Civil Liability Act. CONCLUSION We believe that the experience of CTP reform in South Australia must be avoided at all costs, and that the rights of injured Western Australians must be guarded carefully in order to ensure that existing protections are maintained for generations to come. With changes to disability support currently in launch phase in Western Australia, it is important that both the NDIS and NIIS are financially stable. Unfortunately, with long-tail schemes, this is often not the case. Maintaining the existing rights of people to sue for reasonable and necessary support provides a bulwark against scheme unsustainability, as well as providing injured people and their families with the capacity and ability to exercise choice, independence and control over their future. 12

13 REFERENCES 1 Australian Lawyers Alliance (2012) <www.lawyersalliance.com.au> 2 Government of Western Australia, Green Paper, Options to Add No-Fault Catastrophic Injury Cover to Western Australia s Compulsory Third Party Insurance Scheme, at 5. Accessed at https://www.icwa.wa.gov.au/mvpi/greenpaper/docs/ctp_green_paper.pdf 3 NSW Lifetime Care and Support Authority, Annual Report (14 November 2014), at 2. Accessed at https://www.opengov.nsw.gov.au/publications/ Document 7, COAG Senior Officials Working Group, Attachment A, Interactions between the NIIS and NDIS, at 3. Document released under FOI laws, Department of Treasury, FOI Disclosure Log. Accessible at Information/DisclosureLog/2013/ Ibid at 5. 6 NDIS, Media release: NDIS on track and on budget, 18 August 2014, accessed at At 1 May 2014, the average package cost was $34,000, down from $40,500 at the end of December 2013, and below the funding expectation of $35,000. NDIS, Media release: Quarterly report shows participation in NDIS doubles, costs on track, 1 May Accessed at 7 Productivity Commission, above n 1, at 2. 8 PriceWaterhouseCoopers, above n 27, at 7. 9 Based on estimates of the PC s estimation of NIIS coverage; the Australian government s estimation of NDIS coverage; and estimate of the Australian population as 23,654,158, recorded by the Australian Bureau of Statistics (2014) ef7e25faaca2568a900154b63?opendocument. 10 A Review of the Capabilities of the National Disability Insurance Agency, January 2014, Mr Jeff Whalan AO, Dr Peter Acton, Dr Jeff Harmer AO. 11 White Paper, Reforms to Compulsory Third Party Insurance in South Australia, 26 November 2012 at See and Victims Rights Crashed, Worry over use of CTP funds, 24 June 2014.http://www.victimsrightscrashed.com.au/announcements/insurance-worries. 13 See Victims Rights Crashed, 14 Patrick Boylen, The effect of CTP changes on injured people: lessons from South Australia, (2014) 125 Precedent

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