VIC transport-injury law changes restore rights of MVA victims
15th Apr 2016
Legislation restoring compensation rights for people in Victoria who suffer serious psychological injuries as a result of motor vehicle accidents is a worthy amendment which will protect the rights of the vulnerable, the Australian Lawyers Alliance (ALA) said today.
In 2013, the previous Victorian government altered the definition of what constitutes a ‘serious injury’ for psychiatric injuries, which effectively restricted access to compensation for people with these injuries.
The 2013-era changes further tightened the ‘serious injury’ psychological test and eliminated common law rights to claim compensation for nervous damage sustained by a category of people not directly involved in a motor vehicle accident. They also enabled the Minister to modify the American Medical Association’s Guide to the Evaluation of Permanent Impairment.
ALA Victoria President Geraldine Collins said the current Victorian Labor government’s reversal of the 2013 legislation was an excellent move which would restore the separation of powers between the branches of government and enhance individual rights.
“The amendments to the laws determining compensation for people who suffered serious psychological injuries as a result of motor vehicle accidents are a great result, which will see victims receiving more support and the justice they need to rehabilitate or adjust to the realities of their lives ahead,” Ms Collins said.
“The 2013 amendments were complex, harsh and unjust, and seemed designed to save money at the expense of injured people.”
Ms Collins said that the 2013 legislation made it extremely difficult for motor-accident victims with psychological injuries to seek common law compensation.
“It was our view, as well as that of medical experts, that it was virtually impossible for anyone seeking compensation following a motor vehicle accident to satisfy the new ‘serious injury’ psychological test,” Ms Collins said.
“However, as of this week, people in Victoria who suffer serious psychological injuries in motor vehicle accidents will again be able to access justice and common law damages as they could up until 2013.”
“The Andrews Labor government has recognised that psychological injuries can be extremely debilitating and should qualify for assessment for compensation if appropriate,” Ms Collins said.
Ms Collins said the new amendments also restored the rights of third parties or bystanders who suffer nervous shock as the result of a motor vehicle accident, such as traumatised emergency services workers.
“The 2013 legislation said that a person who suffered nervous damage as the consequence of an accident could not receive common law compensation if the person causing the nervous shock was ‘at fault or predominately at fault for the accident’,” Ms Collins said.
“The new legislation has effectively restored common law rights for compensation for emergency services personnel such as paramedics, firefighters and police officers, as well as good Samaritans who assist at the scene of a serious accident.”
Ms Collins said the new amendments also removes the ability of a government to modify the American Medical Association’s Guide to the Evaluation of Permanent Impairment. She said this restores the independence of the judiciary in determining the correct method for interpreting the Guides.
“The legislative changes brought in by the previous government effectively meant the Minister could make up any rules and create any guidelines for assessing permanent impairment arising from injuries suffered in a transport accident, when it suited the government to do so,” Ms Collins said.
“The interpretation of the Guides has always been determined by the courts, and the 2013 legislation was a direct attack on the independence of the judiciary and on the doctrine of the separation of powers.”
“The 2013 legislation meant that the quasi-governmental body, the Transport Accident Commission (the TAC), could effectively override decisions of the Supreme Court.”
“The amendments by the Andrews government mean that balance has been restored to the separation of powers between the legislature and the judiciary,” Ms Collins said.