South Australia s Compulsory Third Party Insurance Scheme: Comments on the 2012 Green Paper

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1 South Australia s Compulsory Third Party Insurance Scheme: Comments on the 2012 Green Paper Professor Jack McLean Centre for Automotive Safety Research University of Adelaide jack@casr.adelaide.edu.au (Brief profile in Attachment 4) This submission addresses some of the matters raised in the Green Paper. As will become apparent, the writer strongly supports a move to a no-fault insurance scheme. The opinions expressed are those of the writer and are not necessarily those of the Centre for Automotive Safety Research or the University of Adelaide. The Concept Of Fault In Road Crashes The examples presented on page 6 of the Green Paper of two crashes in which the injured driver would not be compensated under the current CTP scheme are not unusual. The concept that a driver is solely responsible for a crash, the at fault party, does not allow for other contributory factors, such as occasional deficiencies in the road and/or traffic control system which may be the cause of the crash or, more often, a contributory causal factor. These deficiencies, when they occur, are sometimes recognised as such when State or Federal funds are allocated to remedial works. Other contributory factors may be less obvious. For example, many rural roads in South Australia were designed in the late 1940s when the safe design speed was 50 mph (80 km/h). Today the speed limit on those roads is often set at 100 km/h, 20 km/h faster than the safe design speed. A simple mistake by a driver is much more likely to result in a crash at 100 km/h than at 80 km/h. There are examples that can be given of single vehicle crashes which the Centre for Automotive Safety Research (CASR) has investigated at the scene in which a driver was not responsible, and other crashes in which responsibility could have been shared, as evidenced by subsequent road works which eliminated a hazardous situation. The casualty costs incurred in a road crash have to be met by someone. At present, savings are made by abandoning those who are judged, often unfairly, to have been solely at fault. For the above reason, and other reasons which are noted below, a no-fault scheme would be preferable to the current fault-based CTP scheme. Determining fault The current fault-based CTP scheme relies on the determination of which party was at fault in a road crash. This very often involves legal proceedings which can be costly and result in lengthy delays in compensation, if any. These points are made in the Green Paper. 1

2 The costs which may be incurred in legal proceedings are obvious. The delays may not be so apparent. I have been involved as an expert witness in cases which were not presented to a court until up to seven years after the crash. Adequacy Of Compensation As mentioned in the Green Paper, an argument that has been made supporting legal representation in cases being dealt with in the current fault-based CTP scheme is that: It allows claimants the choice to sue for and seek an amount that they believe reflects their individual injuries, costs and financial losses, However, Professor Marcia Neave, in her study of the adequacy of common law damages (Reference 8 in the Green Paper) concluded that: the study throws doubt on the view that common law damages provide adequate compensation for economic loss, particularly for people with severe handicaps in the area of independence and employment. There is evidence that people with severe handicaps are often under-compensated, while a relatively small number of people with little or no continuing handicap may be overcompensated. (p.148) Her study was based on accident victims suffering relatively serious injuries (p.7) who received settlements or verdicts of $25,000 or more in (p.143) This needs to be taken into account when she concludes that a relatively small number of people with little or no continuing handicap may be overcompensated. (p.148) Minor Injuries Of Uncertain Diagnosis As noted on page 7 of the Green Paper, claims for compensation for minor injuries accounted for the majority of the CTP scheme s money. For many minor injuries there is often no objective evidence (which does not necessarily mean that there was no injury nor that the injury was asymptomatic). Whiplash associated disorders Whiplash associated disorders (WAD), which figure prominently among these minor injury claims, were the subject of a detailed multidisciplinary study by the Centre for Automotive Safety Research in The Abstract and concluding observations of this study follow as Attachment 1 to this submission. As an expert witness, I have investigated some compensation claims for WAD which were clearly spurious but I assume that is unlikely to apply to a significant proportion of cases. What is clearly indisputable is that, as stated in the Abstract to the CASR report: Whiplash associated disorders are a complex phenomenon, triggered by a mechanical event but whose prognosis is affected by many factors including clinical and psychosocial factors. 2

3 Of more immediate relevance to the matters covered by the Green Paper (eg: p.8), the authors concluded, inter alia, that: there is evidence that seeking legal assistance itself adversely affects the outcome of whiplash. (see Attachment 1) Concussion Concussion is frequently regarded as a minor injury, as attested to by football commentators who say of a player who had been carried unconscious from the ground: He wasn t hurt. It was only concussion. The first study to show that mild concussion resulted in permanent brain injury was conducted in Adelaide in a collaborative research program involving the Institute for Medical and Veterinary Research and the Road Accident Research Unit. The abstract of the paper on this study, which was published in the Lancet, describes how five cases with very mild concussion were examined after death from unrelated injuries. (see Attachment 2) The authors reported in their discussion that: All five cases showed involvement of the fomices, which are the major hippocampal projection pathways and are thought to be important in memory, which suggests that such involvement may underlie some of the persisting memory disturbances in patients after concussion. There is accumulating evidence that concussion can result in significant memory and other deficits in brain function. This poses a significant problem for any injury compensation scheme because the evidence of the severity of the injury may not become fully apparent until, for example, the concussed individual is no longer able to perform the tasks involved in his occupation or profession. In the Abbreviated Injury Scale (Green Paper note 1) concussion is commonly assigned a rating of 2, a moderate injury. That does not adequately indicate its potential long term significance. Exclusions Or Restrictions For Illegal Or Reckless Behaviour A recent study by CASR into the relative contribution of system failures and extreme behaviour by drivers in crashes in South Australia indicates that only a very small proportion of non-fatal casualty crashes can be attributable primarily to extreme behaviours, as defined in Attachment 3 to this submission. By comparison with extreme, and illegal, behaviour, the majority of cases of illegal behaviour, such as travelling just above the speed limit or misjudging a gap in a traffic stream, are not markedly different from what many, if not most, drivers would regard as normal behaviour. 3

4 Attachment 1: Whiplash Associated Disorders Anderson RWG, Gibson TJ, Cox M, Ryan GA, Gun RT (2006) Whiplash associated disorders: a comprehensive review (CASR016), Centre for Automotive Safety Research, Adelaide. ABSTRACT This report is a compendium of papers on aspects of whiplash associated disorders (WAD). The aim of the report is to provide an overview of WAD from different perspectives: epidemiological, engineering, biomechanical, biopsychosocial, and treatment. Two recent studies on WAD in South Australia are also reported. The findings from studies published up until August 2005 are included in this report. Whiplash associated disorders are a complex phenomenon, triggered by a mechanical event but whose prognosis is affected by many factors including clinical and psychosocial factors. A thorough understanding of these factors provides a basis for dealing with the prevalence of WAD in the community and reducing the incidence of WAD. General observations on whiplash arising from the study Both of these studies found no association between crash severity and outcome. Another interesting finding is that inclusion of a significant number of subjects with front-end collisions made little difference to the outcome. Front-end collisions have different dynamics to the typical whiplash, and are excluded in the definition of whiplash injury. The lack of association with the nature or severity of the crash is at odds with the general experience of physical injury, where the severity of injury varies with the quantity of energy transfer. Moreover, in contrast with our studies and studies elsewhere, a review of experimental collisions in volunteers failed to produce cases of chronic symptoms (Ferrari, 1999). The logical conclusion in that either whiplash injury is not an injury at all, or the degree of physical injury is so small that its influence on outcome is completely obscured by other factors. As shown in other studies, one such factor is the existence of an insurance system and the cultural factors arising from it. Our studies have pointed to the importance of psychosocial factors in affecting the outcome. These factors themselves may well be related to individuals expectations arising from the insurance system. A review of compensable injuries and health outcomes conducted by the Australasian Faculty of Occupational Medicine has concluded: Although most people with compensable injuries recover well, a greater percentage of these people have poorer health outcomes than do those with similar but noncompensable injuries. Among the possible causes suggested for this finding, the first was: The psychosocial environment of the injured person at the time of the injury and This includes societal attitudes towards injury and compensation. (Australasian Faculty of Occupational Medicine Royal Australasian College of Physicians, 2001). 4

5 The factor most strongly associated with prolonged disability is retention of a solicitor. This finding is not surprising given the economic dictum that individuals will act in their own financial interest. It is probable that those subjects with the severest symptoms were, for that reason, more likely to consult a lawyer. Therefore it could be argued that the apparent adverse effect of lawyers on the outcome was no more than a reflection of the fact that they saw the worst affected cases. This is difficult to confirm, as there is no objective marker of injury severity in whiplash injury, particularly in this series where we excluded subjects with neurological or radiological abnormalities. There was a strong correlation between Bodily Pain Index and likelihood of consulting a lawyer, but this does not prove that those who consulted lawyers had more severe injuries. Considering that pain is a subjective experience, the association simply means that those who feel most pain are also those most likely to consult a lawyer. Nevertheless we found that even after allowing for the initial degree of pain and disability (measured by Bodily Pain Index), consulting a lawyer significantly increased the need for still receiving treatment, reduced the likelihood of returning to work, and of settling the claim, and significantly lowered the degree of improvement in physical functioning (measured by the Neck Pain Outcome Score) after 12 months. Thus even if initial high intensity bodily pain and disability are motivating factors for consulting a lawyer, there is evidence that seeking legal assistance itself adversely affects the outcome of whiplash. Attachment 2: Long Term Effects Of Concussion Staining of amyloid precursor protein to study axonal damage in mild head injury P C Blumbergs, G Scott, J Manavis, H Wainwright, D A Simpson, A J McLean. Lancet 1994; 344: ABSTRACT The most common definition of cerebral concussion is that of a transient loss of neurological function without macroscopic or microscopic abnormality in the brain. However, some patients have persistent symptoms and subtle neuropsychological deficits, particularly affecting memory. We have studied five patients aged years who sustained mild concussive head injury and died of other causes (2-99 days post-injury). Immunostaining with an antibody to amyloid precursor protein, a marker of fast axonal transport, showed multifocal axonal injury in all five. All had axonal damage in the fornices, which are important in memory function. Attachment 3: Extreme Behaviour Wundersitz LN, Baldock MRJ (2011) The relative contribution of system failures and extreme behaviour in South Australian crashes (CASR092), Centre for Automotive Safety Research, Adelaide. ABSTRACT Within the road system, there are compliant road users who may make an error that leads to a crash, resulting in a system failure, and there are also road users who deliberately take risks and display dangerous or extreme behaviours that lead to a crash. Crashes 5

6 resulting from system failures can be addressed through improvements to road system design more readily than crashes resulting from extreme behaviours. Therefore, the classification of crash causation in terms of system failures or extreme behaviour is important for determining the extent to which a Safe System approach (i.e. improvements to road system design to serve compliant road users) is capable of reducing the number of crashes. This study examined the relative contribution of system failures and extreme behaviour in South Australian crashes as identified from information in Coroner s investigation files and databases of in-depth crash investigations conducted by CASR. The analysis of 83 fatal crashes, 272 non-fatal metropolitan injury crashes and 181 non-fatal rural crashes indicated that very few non-fatal crashes (3% metropolitan, 9% rural) involved extreme behaviour by road users and, even in fatal crashes, the majority (57%) were the result of system failures. This means that improvements to the road transport system can be expected to be much more effective in reducing crashes than concentrating on preventing extreme behaviours. Such a strategy could reduce the incidence and severity of a large proportion of crashes in South Australia. Definition of extreme behaviour (Section 2.4.3) Based on the aforementioned literature, a crash was considered to involve extreme behaviour if one of the following conditions was deemed to contribute to the crash: A BAC level of g/100ml or greater for drivers with a full licence (consistent with Category 3 drink driving penalties) and a BAC level of g/100ml or greater for motorcycle riders and drivers with a learner permit or provisional licence. Travelling at a speed that is 50% or more over the speed limit (e.g. 90km/h in a 60km/h zone). For pedestrians, reckless behaviour or a BAC level of g/100ml or greater. A combination (two or more) of the following illegal driver behaviours: travelling at a speed of 30-35% or more over the speed limit (e.g. 80km/h in a 60km/h zone), positive for a prescribed drug (THC, MDMA, Methamphetamine), a BAC level of g/100ml or greater and deliberate reckless behaviour (e.g. dangerous overtaking). Other circumstances such as driving while unlicensed or disqualified and not wearing a seat belt were also taken into consideration with some personal judgement required. Note that this set of criteria for extreme behaviour specifies very high levels of alcohol and speeding and that some crashes may involve lower levels of these behaviours that contributed to the crash but which we have not classified as extreme. In such cases (e.g. fully licensed drivers with a BAC from 0.05 to 0.15), the driver or road user is not 100% compliant or safe. Consequently, crashes involving any illegal behaviour that contributed to the crash (such as an illegal BAC or travelling over the speed limit) or to injuries sustained during the crash (e.g. failing to wear a seat belt, failing to restrain a child) were also identified and formed a separate category: illegal system failures. 6

7 While system failures and extreme behaviour are the main focus of this study, it is important to acknowledge the presence of system failures that also feature illegal road user behaviour, and hence, the range of behaviours on the continuum between the two concepts (system failure and extreme behaviour). Attachment 4: Professor Jack McLean FTSE, PhD, MSc (Harvard), ME, BE, (Adelaide) A Fellow of the Australian Academy of Technological Sciences and Engineering, Professor McLean s research areas include crash injury biomechanics, with a particular interest in brain injury. He also has extensive experience in the role of human factors in crash causation and vehicle, road, and traffic factors in both crash and injury causation. The founding Director of the Road Accident Research Unit at the University of Adelaide in 1973 (now the Centre for Automotive Safety Research where he is a Professorial Research Fellow) he is a past President of the International Council on Alcohol, Drugs and Traffic Safety and is currently a Director of the Australian Institute for Motor Sport Safety. Professor McLean has received numerous awards including an International Distinguished Career Award from the American Public Health Association and an Award for Engineering Excellence from the United States National Highway Traffic Safety Administration. 7