Thursday, 4 April 2019

Legal profession strongly opposes proposed changes to CTP scheme

The Law Society and the Bar Association today sent a letter to all relevant MLAs of the ACT Legislative Assembly, outlining the serious problems with the Motor Accident Injuries Bill 2019, and again expressing their opposition to this unfair change. 

The text of the letter is reproduced below. 


We refer to the Motor Accident Injuries Bill 2019 (MAI bill), introduced into the ACT Legislative Assembly on 19 March 2019.

As you would be aware, the legal profession in the ACT strongly opposes the proposed changes to the compulsory third party (CTP) scheme outlined in the MAI bill. The legal profession believes that the scheme unfairly targets people injured in motor vehicle accident through no fault of their own and will result in unfair and unjust outcomes.

There are numerous areas of concern within the MAI bill.

In the first instance, it is noted that some amendments to the MAI bill have been made (as compared to the earlier exposure draft, the Motor Accident Injuries Bill 2018). We draw your attention to the following more problematic provisions as follows:

Section Provision Commentary

106

An injured person commits an offence if the person has a change in circumstances and does not notify the insurer within the prescribed period (10 business days) after the change happens.

The exposure draft required the injured person to notify the insurer as soon as possible after the change.

This provision should be contrasted to s 71(3), where there are no consequences for an insurer if the insurer wrongly ceases payments having (incorrectly) suspected (there being no requirement to act reasonably) that the information provided by a claimant was false and misleading.

It is of concern that individuals might face criminal consequences for a failure to notify a private individual of some change of circumstances perhaps through ignorance of complex provisions and with a lack of legal assistance.

123(3)

The insurer must give a draft of the recovery plan to the injured person and the injured person’s doctor and allow them a reasonable opportunity to consider the draft.

There is nothing in the bill that requires the insurer to take into account any comments made by the injured person and the injured person’s doctor when finalising the draft recovery plan.

133

WPI taken to be 10% if person was a child on the date of the accident and they are still receiving treatment and care 4 years and 6 months after the date of the accident, and they meet the requirements prescribed in regulation.

The regulations provide that the injured child must be undergoing treatment and care approved by the relevant insurer (Reg 14 refers).

Effectively therefore the insurers remain the gatekeepers and so will determine who meets this criterion.

There is nothing to stop an insurer ceasing treatment and care after 4 years and 5 months and effectively avoiding the automatic consequences.

141(4)

If the injured person refuses to have a WPI assessment, their quality of life benefits application is taken to have been fully dealt with.

This provision did not appear in the exposure draft.

149(5)

The definition of psychological injury excludes a psychological or psychiatric disorder (such as depression and anxiety as a result of ongoing pain) that results from a physical injury resulting from an accident.

Effectively this will mean that an injured person cannot combine the physical and psychological injuries they suffer from the accident.

This provision is particularly unfair when considered with the other elements of s 149 that mean:

  • if an injured person sustains a physical and a psychological injury in an accident, they are entitled to quality of life benefits for WPI from either the physical or psychological injury, but not both;
  • the injured person has to inform the insurer which kind of injury they want assessed (how is the claimant expected to make this decision?); and
  • the insurer is only liable for the costs of one WPI assessment for one kind of injury.

195

ACAT may order a party to pay the costs of the other party arising from an application for external review of an ACAT reviewable decision.

This provision will operate to deter self represented litigants from pursuing a review of a decision. As self represented litigants have no costs, they will not benefit from a costs order and will have to consider the possibility that a costs order may be made against them. In the absence of legal advice, this provision deters appeals and favours insurers.

The Society notes the Court Procedures Rules 2006 (R 3968) that provide that in workers compensation cases, the court must not award the costs of, or incidental to, an arbitration or related proceeding against someone claiming compensation honestly in the arbitration or proceeding.

Chapter 3

Introduces the concept of significant occupational impact.

Insurer must refer injured person for an SOI assessment:

  • after 4 years, 6 months from date of accident
  • where the injured person is receiving income replacement payments (or is eligible to do so?)
  • has a WPI of less than 10%.

It is very unclear how this will operate.

What does significant occupational impact mean – is it a well understood term used in other contexts?

It is not clear who pays for the assessment – left to the regulations.

219

Person may apply for a future treatment payment:

  • after 4 years, 6 months from date of accident (but not later than 5 years after the date of the accident)
  • where the injured person has been receiving continuous treatment (at least monthly) for at least 2 years, 6 months
  • was not at fault
  • has a WPI of less than 10%.

Injured person applies to the insurer for the payment.

This provision provides ample opportunity for the insurer to ensure that no-one qualifies for a future treatment payment simply by not approving treatment and care.

221

If no agreement reached on the future treatment payment, either party may apply to ACAT for a determination of the payment and an order for payment.

It is unrealistic to expect an unrepresented one-time litigant to be able to undertake this exercise.

223

ACAT may order a party to pay the costs of the other party arising from an application under s 221.

Refer note regarding s 195 above.

236

In order to make a motor accident claim, an injured person:

  • must have a WPI of at least 10%; or
  • have been a child and fulfilled certain circumstances at the time of the accident; or
  • has an injury with a significant occupational impact.

The listed thresholds remain too onerous and will mean that hundreds of not at-fault injured people are barred from accessing compensation commensurate with the harm and damage they have suffered.

In particular,

  • a 10% WPI threshold is too high and will exclude many badly injured victims;
  • the child exception can be easily circumvented by the insurers who control the approval of treatment and care; and
  • the operation of the untested SOI provisions remains unclear and uncertain.

240(2)

An uplift of no more than 20% of the amount the claimant is awarded is available (via a court award) on the scale of quality of life damages.

Given the scale of damages set out in s 240, the uplift if 20% available is grossly inadequate. The scale set out in s 240 is misleading and implies a level of damages will be available when in fact no-one will be able to qualify.

The scale set out in s 240 should be removed from the bill. Quality of life damages of up to $500,000 should be available to a claimant as determined by a Court.

281

A regulation may prescribe the legal costs and fees payable by claimants and insurers in relation to common law claims. Only the prescribed costs may be paid or recovered.

This provision should be deleted on the basis legal fees are adequately regulated under the existing provisions in the Court Procedures Rules and the Legal Profession Act.

In addition, a number of unacceptable provisions that were found in the exposure draft remain in the MAI bill, as follows:

Section Commentary
 

All of the regulations and guidelines required under the MAI bill are not available to stakeholders. The SOI assessment guideline is not available.

35

Meaning of full and satisfactory explanation. The definition is overly rigorous and seems designed to permit insurers to deny otherwise worthy claims.

56

MAI guidelines may require that the applicant provide a police accident report number or police accident report for the accident with the application.

This section mirrors the NSW provision where it has been found that this is not always possible.

It should also be noted that there is currently a significant delay in obtaining accident reports in the ACT. Reports from accidents occurring in October 2018 are just now being processed.

59

An insurer need only accept a later application for defined benefits if satisfied the applicant has a full and satisfactory explanation.

Refer above re s 35. The definition is overly rigorous.

71

Insurer can refuse to accept liability for an accident, reimburse the applicant or pay the provider where it suspects the application for defined benefits was false and misleading. Note: suspects (not even a requirement to reasonably suspect) is a very low bar.

76(b)(i)

Gross income (used for income replacement benefits) does not include superannuation.

105

Insurers are able to suspend income replacement payments if the insurer determines the injured person has failed to comply with a reasonable request to undergo a medical or other examination to assess the person’s fitness to work.

In the absence of any contrary direction, insurers could require injured people to constantly attend for medical appointments.

108

Relevant insurer must not commute income replacement benefits to a lump sum payment.

This could disadvantage injured people. It is noted that foreign nationals can commute (s 181) – so commutation can occur when it suits the administrative convenience of the insurers.

113

Treatment and care expenses do not include gratuitous care provided to the injured person by partners or family members. This is unfair.

120

The criteria the insurer will apply when determining whether treatment and care is reasonable and necessary, include inappropriate considerations including whether the insurer considers the treatment and care is cost effective and whether the insurer considers the treatment and care is appropriate for the injury.

121

Insurers are able to suspend treatment and care benefits if the insurer determines the injured person has failed to comply with a reasonable request to undergo a medical or other examination to assess the person’s needs for treatment and care.

In the absence of any contrary direction, insurers could require injured people to constantly attend for medical appointments.

139(2)

The injured person has to pay for WPI assessment if the insurer believes the injuries have stabilised but that there is no permanent impairment.

141

Where an injured person has received benefits and either has not had a WPI assessment or had a WPI assessment which says injuries have not stabilised, and it is 4 years 6 months after the date of the injury, the insurer must refer the person for a WPI assessment.

If the assessment says the injury has not stabilised the assessment must estimate the WPI level. The estimated level is taken to be the person’s WPI. It is not appropriate to base compensation on an estimated level.

149

If injured person sustains a physical and a psychological injury in an accident, they are entitled to quality of life benefits for WPI from either the physical or psychological injury, but not both.

The injured person has to inform the insurer which kind of injury they want assessed.

The insurer is liable for the costs of only one WPI assessment for one kind of injury.

This provision is impractical and unfair.

150

In carrying out a WPI assessment, the IME must only assess physical injuries (if the injured person nominated physical injuries) or psychological injuries (if the person nominates psychological injuries).

160

If the injured person does not notify the relevant insurer within 28 days, the person is taken to have accepted the offer.

It is not acceptable that silence be taken as acceptance of the offer.

161

If the injured person does not notify the relevant insurer within 28 days, the person is taken to have accepted the offer.

It is not acceptable that silence be taken as acceptance of the offer.

162

If the injured person does not notify the relevant insurer by the due date, the person is taken to have accepted the offer.

It is not acceptable that silence be taken as acceptance of the offer.

164

Quality of life benefits (defined benefits) are minimal unless the injured person has a WPI of 51% or more, meaning no-one will receive any meaningful payments.

200

Sections relating to prescribed legal costs have not changed from the initial exposure draft. Refer note to s 281 above.

236

This is the most unjust provision within the MAI bill.

The imposition of a 10% WPI threshold remains a significant, arbitrary and unfair barrier to seek common law damages. The effect of this provision will be that people injured through no fault of their own will no longer be able to claim fair compensation for their injuries.

240

Maximum quality of life payments only available at 100% WPI – this is not achievable and deceptive.

A court may award additional damages (of not more than 20%) of the amount the claimant is awarded.

243

Common law claimants cannot recover their full loss of earning for year 1 following their accident.

The policy rationale behind this decision is not clear.

246

Common law claimants cannot claim damages for gratuitous care.

429

An insurer may contact the injured person (whether or not the person has legal representation).

The circumstances in which an insurer may communicate and the matters about which an insurer may communicate will be set out in the guidelines.

466

A regulation may require lawyers and other service providers to give information to the commission.

Information may include amounts paid to applicants/claimants, costs and disbursements paid by applicants/claimants and timing of payments.

Minister may require commission to publish statistical data based on the information.

Note: there is nothing about the protection of commercial in confidence information (such as there is for the insurers – refer s 470(4), (5)).

482

Referral fee – creation of an offence.

The Society wrote to JACS in relation to claims harvesting on 7 August 2017 proposing a similar amendment to that made in NSW to prevent the practice. In the absence of any response to its initial submission, it is not clear to the Society why its proposal was deemed not suitable (as it seems to have been effective in NSW) and another, seemingly more complicated approach was preferred.

The proposed scheme will remove or significantly restrict the rights to compensation of ACT residents who are injured in a motor vehicle accident. We urge you to reconsider the proposed scheme and to protect the rights of Canberrans.


For further information contact:
Mr Steven Whybrow, President, ACT Bar Association, M 0402 09 1199
Mr Chris Donohue, President, ACT Law Society, T 02 6274 0300

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