Reforms to Compulsory Third Party Insurance for South Australian motorists

Reforms to Compulsory Third Party Insurance for South Australian motorists

Contents How Compulsory Third Party insurance works Page 03 How South Australia s fault based system works Page 04 Why reform is needed Page 07 South Australia compared with other states Page 08 Moving to a fairer and more affordable system Page 08 Universal cover for catastrophic care Page 09 Rebalancing the system Page 09 Legal costs Page 10 Lower premiums Page 10 Who will benefit Page 13 Where to from here Page 14 Frequently asked questions Page 16 Reforms to Compulsory Third Party Insurance for South Australian motorists 01

How Compulsory Third Party Insurance works Every year, 1.3 million Compulsory Third Party (CTP) insurance policies are taken out by South Australians when they register their vehicle with the State Government. The CTP insurance scheme, run by the Motor Accident Commission, provides compensation to the injured victims of road crashes where the owner or driver of a South Australian registered vehicle is at fault. In order to be compensated, an injured person must prove that another (insured) person was at fault. To pursue compensation, a claim is lodged against an insured at-fault party. Compensation is settled by negotiation between parties based on degrees of fault, or if agreement cannot be reached, by the court. It is paid to the injured party as a one-off lump sum, which is intended to cover all future needs. At present, if there is no insured at-fault party, or the accident was totally your fault, there is no one to sue and no compensation to be awarded. In South Australia, around 40% of catastrophically injured accident victims are left without compensation from the CTP scheme each year. Most people do not realise this until it happens to them or to someone they know. The person may have brain damage or spinal injuries and require around the clock care. 20-25% of all accident victims each year are not eligible for compensation Motorists who may have no claim include drivers in single vehicle accidents as well as someone paralysed after their motorbike slips on a wet road. Similarly, a country driver who swerves to avoid a kangaroo has no one to claim against. Twenty to twenty five per cent of all accident victims each year are not eligible. At the same time, the system pays a disproportionately large amount of compensation for minor injuries like whiplash, and other minor soft tissue injuries. More than $100 million in claims each year are in this minor category. Currently, a person with a soft tissue injury, who required no ongoing medical or hospital care and whose car may not have needed repairs, may successfully make a claim for damages beyond their medical needs (i.e. pain and suffering). Reforms to Compulsory Third Party Insurance for South Australian motorists 03

How South Australia s fault based system works The following are real examples of Compulsory Third Party insurance at work. Many South Australians do not realise what it could mean to them. Case Study 1 A young girl on P plates driving in the Riverland was startled when a bird swooped in front of her car. She over-corrected and her car flipped. On her nineteenth birthday she was brought out of an induced coma to be told she was a quadriplegic. No other vehicle was involved so there was no one for her to sue. It came as a huge shock to discover the insurance you pay for with car registration does not cover you in a case like this, her mother said. I doubt virtually anyone who has not been involved in an accident like this would be aware they are not insured if no one else is at fault. Her mother has sold her home and cleaning business to become her daughter s full-time carer. They have moved to Adelaide to be closer to rehabilitation services. Her mother says people do not believe them when they explain what has happened to their lives. It is hard to explain to a family that the person in the next room with similar injuries is covered but their son or daughter is not. Dr Ruth Marshall, Director at Hampstead Rehabilitation Centre. Case Study 2 A year after a minor collision in which neither car needed repairs, one of the drivers lodged a claim for whiplash, suing the driver of the other car. She did not seek any treatment until almost two years after the accident and continued to work but said she had problems from time to time that were exacerbated at work. Her claim settled for $48,000, including $10,000 damages for pain and suffering and $25,000 for future loss of income although she continued to work. Another $4,000 was paid for voluntary services. This was compensation for her parents who helped her with household chores. 04 Reforms to Compulsory Third Party Insurance for South Australian motorists

Why reform is needed The scheme is in urgent need of an overhaul. It can be unfair, and it is becoming unaffordable. Our CTP premiums are unacceptably high compared with other states such as Victoria and Tasmania whose schemes provide better coverage. Our premiums are the third highest in Australia and the most expensive relative to average weekly earnings. Since 2000, they have grown at 5.3 per cent per annum, more than anywhere else. Without action, they will continue to rise significantly. Premium Growth (per annum) 6% 5% 4% 3% 2% 1% 0% Class 1 Premium Growth since 2000 0.9% 1.0% 3.9% 3.7% 5.3% WA QLD VIC NSW SA At the same time many people who are brain damaged, maimed, blinded or paralysed are excluded from its benefits. The denial of compensation to an accident victim who is catastrophically injured is emotionally devastating, affects their long-term health outcomes and besets society as a whole. Even those who are covered may not receive enough to fund a lifetime of care as lump sum payments cannot accurately predict future needs. Large sums risk being mishandled or mismanaged, and they may be reduced because of contributory negligence and legal costs. While some severely injured victims are left stranded, the system is over-used at the lower end. Last year, minor injuries accounted for 91 per cent of claims. Our payments are also overly generous for less significant injuries. South Australia pays substantially more than other states in compensation for economic and non-economic (pain and suffering) loss. The payment of benefits is out of step with other schemes. Cost per vehicle ($) 120 100 80 60 40 20 0 Compensation for Economic Loss Medical WA QLD SA Income Replacement Non Economic Loss Legal Investigation At the same time the proportion of money spent on legal fees is spiralling. Legal costs have risen around 50 per cent since 2005. In 2006-7, 85 per cent of payments went towards the direct benefit of the accident victim; this year it fell below 80 per cent. This means more than 20 per cent of compensation payments are absorbed in legal and associated costs. In dollar terms, that means over the past 5 years, there has been a $34 million reduction in the proportion of payments going to victims. In addition, the injured party may incur lawyer s fees (further reducing the amount going to victims) leading to a further reduction in their respective claim. Legal and Associated Costs $40m $30m $20m $10m Growth of legal and associated costs versus victim benefits since 2006/07 90.0% 85.0% 80.0% 75.0% Claimant Benefits 0 2006/07 2007/08 2008/09 2009/10 2010/11 2011/12 Legal Costs Claimant Benefits 70.0% Reforms to Compulsory Third Party Insurance for South Australian motorists 07

South Australia compared with other states It is helpful to look at how compulsory third party schemes work in other states. Queensland and Western Australia have similar schemes based on proving fault but South Australia s premiums are much higher. New South Wales has a hybrid scheme with fault-based compensation for all but catastrophically injured patients who are provided lifetime care. Victoria and Tasmania have full no fault schemes. They cover more people yet their premiums are lower. The experience in other states shows it is possible to run a full or part no fault scheme without sending costs out of control. To cover everyone injured in vehicle accidents would require a full no fault CTP scheme like Victoria. This is unachievable in the short term but could be considered as a longterm goal. The Productivity Commission has concluded that no fault insurance schemes are superior to fault-based schemes. Apart from providing broader cover, they eliminate the uncertainty of a court outcome and the cost of duelling lawyers. It is helpful to look at how CTP schemes work in other states A no fault scheme also encourages rehabilitation and recovery in a way that our scheme currently does not. Our system rewards prolonged and demonstrable incapacity by providing higher financial compensation. There is little incentive for recovery until a case has been to court, usually a matter of years. Although other states have fault based systems similar to ours, we have a very high claim rate and we pay more in compensation, including for pain and suffering. South Australia pays more than double the rate of claims per vehicle than Queensland and Western Australia and our scheme pays significantly more for both economic and non-economic loss. We need to reset our scheme towards those who need it most. The existing scheme lacks equality when dealing with people who have suffered debilitating injuries and there is no justice for people involved in single-vehicle accidents. Peter Sharley, Australian Medical Association South Australia President Moving to a fairer and more affordable system In March, 2012, a Green Paper invited public debate about possible changes. More than 100 responses were received and considered. Three options were looked at; no fault cover for the catastrophically injured with no other changes; no fault cover for the catastrophically injured with savings on minor injuries; or no fault cover for all injuries with benefit cuts. 08 Reforms to Compulsory Third Party Insurance for South Australian motorists

Universal cover for catastrophic care After consideration, the Government is introducing no fault compensation for all catastrophically injured motor vehicle accident victims. This will cover people with spinal and traumatic brain injuries, multiple amputations and severe burns. They will receive lifetime care and support, including rehabilitation, irrespective of fault. The expanded cover will be funded by a new levy commencing in 2014. The levy will be paid on top of a reduced CTP premium at the time of registration. All catastrophically injured patients will benefit from this. Their immediate medical needs will be met from the time of the accident. At present, many accident victims wait up to four years or more for compensation. The uncertainty and risks of managing for life on a lump sum will be eliminated. The scheme will not provide ongoing income support for the catastrophically injured. Victims of accidents caused by an insured motorist will continue to seek damages for economic and non-economic loss through the CTP scheme. No fault compensation covering medical and ongoing care costs will be expanded to include all children aged under 16 injured in motor vehicle accidents. Compensation for non-catastrophic injuries arising from motor vehicle accidents will remain within a fault based system managed by the Motor Accident Commission. We need a system that is fair to everyone, it s the Australian way. Dr Bill Griggs, Director of Trauma at Royal Adelaide Hospital Rebalancing the system Tighter restrictions and thresholds will ease the escalating financial pressure on the system from the impact of minor claims. Compensation for past and future economic loss will be set at 80 per cent of the claimant s loss of earnings and earnings capacity, even though industry standard for private insurance arrangements is set at only 75%. This will ease the financial burden on the system while still providing sufficient income protection for an injured person. The threshold for payment of damages for pain and suffering non-economic compensation is at present extremely low. A 100 point scale will align injuries with their severity, allowing some scope for the impact of a particular injury on an individual (such as a pianist who loses a finger as opposed to a person where the loss of a finger has a lesser impact on their life). Damages for non-economic loss will be available when an injury A 100-point scale will align injuries with their severity exceeds 15 points on this scale. Motorists whose injuries are less severe (soft tissue injuries, whiplash) will still be entitled to compensation for all medical costs, paid assistance and past loss of income associated with a vehicle collision. This threshold will also apply to damages available for voluntary services and damage to family relationships (consortium). The current system of compensating for future economic loss does not function as intended. A person with a minor injury may receive compensation for future income loss for their entire working life even though they lost no work time. In future, damages for future economic loss will be awarded only when the injury exceeds the 15 point threshold. The courts will be encouraged to evaluate the likelihood of future income losses with greater precision. Reforms to Compulsory Third Party Insurance for South Australian motorists 09

Legal costs No one will lose their right to sue or their entitlement to legal representation. There will be reduced reliance on lawyers. Legal costs will no longer be reimbursed for claims worth less than $30,000. Costs will be capped at $2,500 for claims between $30,000 and $50,000 and capped at the Magistrates Scale of Costs (the lowest scale) for claims between $50,000 and $100,000. The Motor Accident Commission will work to simplify the process of lodging and settling of claims, particularly those of a less complex nature. It will also look at a proposal to cap the amount that plaintiff lawyers can charge their clients in excess of the professional fees paid by the MAC to lawyers in settlements. Lower premiums When finalised in July 2014, the reformed scheme will deliver a net $50 saving to motorists based on current premiums. The reforms will be introduced in two stages. From July 1, 2013 the new thresholds will take effect. As a result, the Class 1 premium (private metropolitan vehicle) will fall to $402, a reduction of $110 from current levels. The universal cover for catastrophic injuries will take effect from July 1, 2014. This will allow time for capacity to be developed among service providers in order to meet the new demands. A catastrophic injury levy of $105 a year will fund the expanded scheme. It will be introduced from July 1, 2014. At that time the CTP Class 1 Premium will further reduce by $45 as it will no longer provide the coverage for catastrophically injured motorists when the new Cat Levy is in place. The net affect will be ongoing savings of around $50 for Class 1 registrations (subject to any normal annual increase required that year). The full extent of the reforms and the no-fault levy will see premiums reduced to an estimated $462, a net benefit to the typical motorist of $50 ongoing on current premiums. The present scheme draws out the getting better process and slows down people s recovery rates. Most people who are involved in a serious crash have not done anything criminal, yet they pay for their mistakes, along with their families, for the rest of their lives. Ian Stone, RAA Managing Director 10 Reforms to Compulsory Third Party Insurance for South Australian motorists

Who will benefit Most motorists have no need to call upon the scheme. Last year of the 1.3 million South Australian CTP policies, there were around 5,800 claims. For the badly injured motorist All motorists regardless of fault will be covered in the event of an accident resulting in catastrophic, permanent injury. They will be provided with lifetime medical care and rehabilitation. Catastrophically injured patients will also be able to pursue claims for such matters as pain and suffering, and economic loss through the fault based system. The result will be better outcomes for all catastrophically injured accident victims. The medical costs and care of injured children under 16 will be covered irrespective of who is at fault. For the moderately injured motorist All moderately injured road users can claim against the insured at-fault party for medical care and rehabilitation costs. Those with an injury severity of more than 15 on a scale of 100 can continue to claim damages for past and future income replacement and pain and suffering, as is the case now. Reduced premiums and fairer coverage For motorists with minor injuries Those who sustain minor injuries in an accident will still have all of their medical, care and treatment needs met, as well as any eligible past income loss due to the accident. However, those whose injuries are 15 points or less on a 100 point scale will no longer be able to claim compensation for pain and suffering (noneconomic loss), future loss of chance, or voluntary services. Such injuries often include minor whiplash, soft tissue injuries, and fractures not resulting in permanent impairment. Legal costs will not be reimbursed for minor claims. An entitlement to damages for medical, rehabilitation and economic loss will remain. For lawyers The fault based scheme remains in place for all but lifetime care costs of those with catastrophic injuries. Road users with catastrophic injuries may still pursue claims for damages including economic loss and pain and suffering through the common law scheme. Any injured motorist may still seek legal advice but a threshold has been introduced for fee recovery for more minor claims. For all South Australians Lifetime care and support will be provided to all those seriously disabled in a vehicle accident regardless of fault. Overall CTP scheme costs will be reined in, some payments for damages will be capped and as a consequence compensation at the lower end will be reduced. Typical third party insurance premiums will be reduced by $50 when the full package of reforms is introduced. The scheme will be better balanced, and more affordable. Reforms to Compulsory Third Party Insurance for South Australian motorists 13

Where to from here The Treasurer, Jack Snelling, will oversee the introduction of changes to Compulsory Third Party insurance. A draft consultation of the Bills is being made public and will be introduced into State Parliament early next year. If no changes are made to the Bills in Parliament, the first tranche of reforms will be ready for implementation on July 1, 2013, resulting in a reduction of $110 in premiums. Claims and injuries incurred before this date will be unaffected and will proceed under the old system. No aspect of the new scheme would be retrospective. The second wave of reforms introducing universal care for the catastrophically injured and the catastrophic insurance levy will be introduced, on July 1, 2014. Again, no aspect of the changes will apply in retrospect. The changes represent a major overhaul of compulsory third party insurance in South Australia and a beneficial cultural change will be integral to their success. At present, the rehabilitation and care of those who are seriously injured on our roads takes place in an environment that encourages incapacity. Consultation will continue, with implementation on 1 July, 2013 A case may go to court four years after an accident and it is in the interests of the injured party to demonstrate maximum incapacity at this point. There has been little incentive for rehabilitation. A healthier culture emphasising recovery will be encouraged. No one will lose their legal rights from these changes. Catastrophically injured patients may still pursue compensation for economic loss and pain and suffering through the CTP scheme. At the lower end, there will be a new threshold for recovering legal costs but no one will lose their right to sue. The reforms may be subject to amendment through Parliament. For details of their progress, refer to www.mac.sa.gov.au If you have questions about what you have read, please contact the Motor Accident Commission on MAC.CTPReform@sa.gov.au 14 Reforms to Compulsory Third Party Insurance for South Australian motorists

Frequently asked questions Why is the system being overhauled? Trauma surgeons and rehabilitation experts who deal with seriously injured patients know how unfair the current system can be. By moving to a no-fault scheme for catastrophically injured patients, those who need lifetime care will have it. The high proportion of compensation paid for less significant injuries when compared to the more seriously injured, is making the scheme financially unsustainable. Our scheme is expensive compared with other states, legal costs are skyrocketing and costs to motorists are growing faster than inflation. Will compensation be harder to get? No. All catastrophically injured patients will receive lifetime support and care from the time they are injured. Compensation payments to people with minor injuries (the majority of claims) will be reduced. Pain and suffering (non-economic loss) payments will be available only for more severe injuries (more than 15 points on a 100 point injury scale). Compensation for past and future economic loss will be capped at 80 per cent. Compensation for future economic loss will not be available for lesser injuries such as whiplash, minor soft tissue injuries and simple fractures (below 15 points). For serious injuries, future economic loss will be calculated on the basis of the most realistic likelihood. The system for settling smaller claims will be simplified. The system for settling smaller claims will be simplified Are the changes to the scheme compensating hoon and drink drivers? Hoon and drink drivers who are in the wrong and are catastrophically injured will be accepted into the lifetime care scheme, covering their medical care, treatment and rehabilitation for life., rather than the burden of their care falling on the tax payer through the public health system. No compensation will be paid for lost income; pain and suffering and many other expenses. Will I lose my right to sue? No. Anyone will be able to hire a lawyer and sue. The cost of going to court for minor claims will no longer be reimbursed by the scheme. Catastrophically injured patients will not have to sue for lifetime care and support but may use the fault scheme to pursue income support. Why are the rules being tightened? Minor claims have burdened the system and made it financially unsustainable. Around 40% of compensation payments (in excess of $100 million a year) go to claimants who may have little or no time off work and require little medical treatment. By introducing a threshold for non-economic loss and some categories of compensation, money is freed for those who are more seriously injured. There are penalties for drink and hoon drivers by way of reduced and/or removal of some benefits. 16 Reforms to Compulsory Third Party Insurance for South Australian motorists

Can I still claim for lost income if I am injured? Why is the legal fraternity campaigning against these reforms? Yes. Compensation will be paid at 80 per cent of past and future economic loss. Damages for future economic loss will be available when the injury is moderate or serious (more than 15 points on the 100 point scale). Can I claim for pain and suffering? Yes, if you have moderate to severe injuries (more than 15 points). What about payments for voluntary services by family and friends? Compensation for voluntary services will be available when a person is moderately or seriously injured (more than 15 points) and requires the services for six or more hours a week for six months or more. What is a catastrophically injured person and who will decide? Legal fees are a significant part of CTP costs South Australian lawyers act for 75 per cent of claims that go through the system and the scheme pays around $50 million per year for legal services. Their earnings will be reduced. Legal fees are a significant part of Compulsory Third Party costs. Legal costs will not be reimbursed for minor injuries (claims of less than $30,000). A maximum of $2,500 will be reimbursed for claims between $30,000 and $50,000 and capped at the Magistrate s Scale of Costs (the lowest scale) for claims of $50,000 to $100,000. Reducing legal costs will ease pressure on the scheme and help secure its financial future. What if I was recently injured and have begun a legal claim? Accidents occurring up until the two changeover dates will be dealt with under the old rules. The new scheme will not be retrospective. This is someone who has suffered spinal or traumatic brain injury, multiple amputations or severe burns. Doctors will make assessments using established criteria once a person s injuries are stable. There are established definitions and tools for deciding this. It is estimated that around 40 injured people will enter the lifetime care scheme each year. What about less serious injuries? Injuries that are less than catastrophic will continue to be managed through the Motor Accident Commission on a fault basis. Will I be worse off under the changes? The system will be fairer and more broad-based, more affordable for motorists and financially sustainable. Compensation rules are being tightened but those who need it most will be covered. Third party insurance premiums will be reduced for the majority of policy holders (Class 1 passenger vehicles) by an estimated $110 in 2013. From July 1, 2014, average premiums will be about $50 lower than they are now. Reforms to Compulsory Third Party Insurance for South Australian motorists 17

November 2012