Common law rights must be retained for WA victims of MVA – ALA
11th Sep 2013
“The fundamental right of Western Australians to be able to afford lifetime medical care following motor vehicle injury must be retained along side any new no-fault scheme, or the quality of life for injury victims will be eroded,” Australian Lawyers Alliance personal injury spokesman Asanka Gunasekera said today.
Mr Gunasekera was responding to calls from the WA medical profession for the WA Government to adopt a wholly no-fault state system.
“The ALA believes people injured in accidents should be able to exercise their fundamental common law right to pursue damages for the full extent of their injuries” Mr Gunasekera said.
“The no-fault scheme should be regarded as a safety net. It should provide for an injured person’s needs especially where there is no other party at fault.
In other jurisdictions, no-fault schemes have provided a drip feed system of care to those catastrophically injured. In other cases, individuals have had to push for access to essential medical services and are required to justify their needs with an excess of medical reports,” Mr Gunasekera said.
“People must remember that once legislation is adopted and common law opportunities removed they will be extremely hard, if not impossible, to resurrect,” he said.
“No-fault schemes are also open to legislative change. Once rights are restricted to certain amounts those amounts tend to be made smaller and smaller depending on the whim of Government.”
Mr Gunasekera pointed to the recent experience in South Australia where approximately 5000 people lost their right to compensation or had them drastically reduced after the state switched to a no-fault model in July.
“These 5000 people were left with little to compensate them for their losses,” he said.
Mr Gunasekera said the NSW no-fault scheme, which had been held up as a model for other jurisdictions to follow, had some serious problems.
“Scheme amendments removed any ability for people to receive support for family care. By volunteering to provide such services, household members, in effect, now become unpaid subsidisers of the NSW scheme. The amendments also gave the Scheme authority power to assess what constitutes ‘reasonably and necessary’ support or ‘excluded expenses’ – meaning that the goalposts can shift at any time,” he said.
Mr Gunasekera said treating doctors also complained of excess paperwork and slow service delivery. Additionally, the use of tender processes meant services were often provided by the cheapest and least reliable agents and rural areas had the most difficulty in accessing services that were provided.
“This is a particular concern for Western Australia,” he said.
Mr Gunasekera said the only way to ensure people’s lives weren’t negatively affected by introducing a government funded support scheme was to ensure that all the benefits of a fault based system existed along side it.
“WA’s trial of the NDIS is unique across the country – rolling out My Way and DisabilityCare at the same time. There is also an opportunity for WA to provide an effective testing ground for the rest of the country, through continuing to protect common law rights to sue,” he said.