Page 945 - Week 03 - Thursday, 10 April 2014
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scheme, some participants will improve to a point where they no longer are classified as having a catastrophic injury under the scheme. If this occurs, they will progress to become a lifetime participant. This early intervention will significantly improve the potential for such people to continue to participate in society and contribute to the workforce. After two years, an interim participant who remains eligible is accepted as a lifetime participant. The bill offers some flexibility around the need for the full two year interim participation period.
I understand that there has been some concern about the preserving of an injured person’s common law rights where they are eligible for the proposed lifetime care and support scheme. This bill includes consequential amendments to the Road Transport (Third-Party Insurance) Act 2008, which clarify the treatment, care and support costs of a participant in the lifetime care and support scheme. They will no longer be a risk covered by the compulsory third-party arrangements in the ACT.
An eligible claimant will participate in the lifetime care and support scheme to obtain these entitlements. This does not reduce the claimant’s common law rights to pursue a claim for common law damages for other heads of damage such as loss of earning capacity and non-economic loss. These entitlements under the compulsory third-party claim will remain unchanged. However, as the new scheme will provide for their reasonable and necessary treatment and care needs, such needs no longer require financial compensation through common law damages.
In this new structure of statutory arrangements, it is important to ensure that an injured party is directed to the scheme which will most appropriately address their needs. Compulsory third-party insurers to whom claims are made will be able to apply on behalf of a claimant to participate in the lifetime care and support scheme if they are eligible without needing the consent of the injured person.
This provision of the bill is in order to facilitate the referral of the injured person to the appropriate statutory scheme. The lifetime care and support scheme has been specifically designed for catastrophically injured persons. The advantage of the scheme, compared to the more generic compulsory third-party scheme, is that it will provide certainty and peace of mind that the injured person will be in fact able to receive the treatment and care that they need for life.
It removes the stress of litigation on those catastrophically injured to access these entitlements. It also removes the uncertainty under the existing compulsory third-party insurance scheme associated with the lump sum award or settlement of managing that amount to last for the rest of the catastrophically injured person’s life. In designing this new structure of statutory arrangements, as well as taking into consideration the best interests of catastrophically injured persons, it was also necessary and appropriate to avoid any duplication of costs between the new scheme and the compulsory third-party insurance scheme.
A duplication of costs would have arisen if the bill allowed an overlap in risk between the two schemes in relation to liability for treatment and care needs for those catastrophically injured in a motor vehicle accident. The overlap would have occurred if catastrophically injured persons were able to choose whether to apply for the new scheme or claim common law damages for treatment and care costs.
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