Changes to Wrongs Act do not go far enough
30th Oct 2014
Proposed Victoria State government changes to laws on personal injury compensation are good but do not go far enough to correct anomalies and inconsistencies in the legislation, the Australian Lawyers Alliance (ALA) said today.
Australian Lawyers Alliance spokesperson Geraldine Collins welcomed the proposed amendments to the Wrongs Act arising from the Victorian Competition and Efficiency Commission’s review, but said the government’s failure to take these changes far enough would mean that many Victorians who suffer physical or psychological injuries due to the negligence of others would continue to have no right to compensation.
“The proposed amendments to the Wrongs Act are welcome, but they do not go far enough,” Ms Collins said.
“The government’s proposed changes to the damages thresholds mean that many people who were previously denied compensation under the Act will now be able to receive compensation under the scheme.”
“These proposed changes are excellent and will help many people who suffered personal injuries caused as a result the negligence of others to get on with their lives,” Ms Collins said.
However Ms Collins said the proposed amendments did not go far enough, particularly in failing to add a narrative test to the Wrongs Act which determines whether a person who suffers an injury qualifies for damages.
Ms Collins said the narrative test, already used in the transport and work accident fields, has up to 25 years of established case law. It would provide an additional, more flexible option for assessing the impact of injuries in cases which currently do not meet the strict criteria for compensation under the Wrongs Act.
“Many Victorians who are injured through no fault of their own will continue to miss out on compensation because the government hasn’t had the courage to create a more just system of compensation,” Ms Collins said.
“This could be easily fixed by adopting a narrative test for the Wrongs Act. Many Victorians suffer serious injuries which simply do not meet the inflexible AMA threshold guidelines.
“Take, for example, medical misdiagnosis,” Ms Collins said. “The AMA Guides do not recognise misdiagnosis by a doctor or health professional, so despite the pain and suffering a victim would experience, they would not qualify for compensation.”
“Another example is scarring,” Ms Collins said. “A person could suffer terrible facial scarring due to an accident with acid – however no matter how bad that scarring was, because of the operation of the guides the person will not satisfy the impairment threshold and the victim could never receive compensation under the Wrongs Act.”
Ms Collins also said the amendments to the Wrongs Act appear at odds to the legislative regard for psychological injuries.
“Twelve months ago the government changed the test criteria for psychological injuries under the Transport Accident Act, which has virtually abolished any chance of satisfying the threshold for psychiatric injuries,” Ms Collins said.
“The criteria for this test is now so unattainable that virtually no-one will ever achieve it. Now we have the government announcing that its latest amendments improve access to compensation for some personal injury victims whilst ignoring the plight of others. This seems to be totally contradictory.”