no fault accident compensation

Transcription

1 the case for trial. Similar proportions of the two offence categories resulted in a discontinuance of the prosecution a nolle prosequi after the case had been committed for trial. (Bonney Report No 2, 18). guilty pleas. While a modest increase (id 38) in guilty pleas shows up in the study group data compared with the pre-legislation group, the relevant comparative figures also highlight the fact that this increase does not represent an increase in the number of defendants pleading guilty to what would have been traditional penis/vagina rape or carnal knowledge charges. Only 31.4% of the guilty pleas entered in the study group [post 1981 sexual offences] involve penis/vagina penetration compared to 73.1% of the guilty pleas in the control group, (id 37). trial outcomes conviction rates. While the conviction rate for all sexual offence categories in the study group is similar to general conviction rates for murder and major assault, the statistics for specific study group offence categories reveal a significant deviation from the general conviction rates. For example, the conviction rate for murder trials in 1983 in NSW was 83.3%. In contrast, the conviction rate for s61d offences in the study group was 74.1% and allowing for convictions for lesser offences in this population, 68.8%. (Tables 11 and 12). acquittal rates. The Bureau s study reveals that the highest acquittal rates in the study and control groups were recorded for s61d and rape offences respectively. Further, within the latter offence populations the level of acquittal has not changed. (Study: 50.0%; Control: 47.9%). Hence the conclusion in the report that the chances of acquittal, at least so far as s61d is concerned, are much the same as when the charge was rape. (id 43). In determing acquittal levels the relevant populations consist of offences in which a not guilty plea is entered. In this regard, the levels of recorded not guilty pleas for offences committed for trial within the study and control populations has not significantly [1986] Reform 143 changed, (id 15). Again, the level of not guilty pleas within the general population of criminal offences recorded in 1982 and 1983 are decidedly lower than those in the study group and (in 1979 and 1980) those in the control group. For example, the general population of criminal defendants before higher courts in NSW in 1982 recorded a 13.5% level of not guilty pleas entered at trial. In contrast, the level of not guilty pleas entered at trial in the study group in the same year was 35.6%. summary. In its conclusion the report states that the 1981 amending legislation sought to effect changes to the levels of reporting, prosecution and conviction of sexual assault offenders. Its success along these dimensions whilst not entirely clear cut gives rise to cautious optimism, (id 68) The conclusion does not apply to the comparative results addressed above. Those results, drawn from the body of the report, indicate that as between prosecution for rape, and its statutory replacement (s61d) there has been no significant change in the levels of pre-trial lapsing, not guilty pleas, and acquittals. The Bureau s study has been described as perhaps one of the more comprehensive examinations of sexual assault legislation yet attempted. (Bonney Report No 1, 3). A third report is being prepared. It will specifically examine the application of s409b of the Crimes (Sexual Assault) Amendment Act (NSW) 1981 at the committal and trial sites of process in the pre and post-legislation populations. It is due to be published by August this year. The Bureau will make recommendations based on the findings in all three reports. no fault accident compensation I can get no remedy against this consumption of the purse: borrowing only lingers it out, but the disease is incurable Shakespeare, Henry IVy Pt 2 new scheme announced. The Victorian Government has announced a new scheme

2 [1986] Reform 144 for transport accident compensation (see [1986] Reform 80-1). The new scheme will abolish the right of an individual to bring an action at common law for negligence and introduce a no-fault compensation scheme. The effect of the scheme will be that all persons injured in transport accidents (apart from limited exceptions such as those involved in motor sports, those committing certain traffic infringements) will be entitled to make a claim for compensation regardless of who was at fault. Changes to the scheme in Victoria were foreshadowed by the Treasurer in June 1985 and since that time many submissions have been made. A major contributor to this debate has been the Law Institute of Victoria which in November 1985 submitted a detailed proposal to the Government. The Government announced its proposed scheme in a Statement entitled Transport Accident Compensation Reform in May 1986 and also circulated a Transport Accident Bill for comment. It is worth setting out briefly the background to the proposed changes and the different approaches put forward by the Government and the Law Institute. a crisis. In the Government Statement four reasons are put forward as to why the transport accident compensation scheme currently in existence in Victoria is no longer viable and why it is at the point of crisis. These are: The present system is too costly. The costs have increased 340% between and The Premiums Advisory Committee recently recommended to the government an increase in premium for an urban motor car from $ to $500. The benefits being paid are currently not directed to the areas of greatest need. Seriously injured persons unable to establish fault may be unable to receive any compensation at common law. Furthermore the growth area with respect to claims in recent years has been minor injuries. At present common law damages arising from a motor vehicle accident is paid by a public insurance body rather than by the individual who was at fault. The payment of claims is thus not restricted by the resources of the individual involved in the accident. Hence there is no deterrent to making claims. The third party insurance premiums take no account of a person s driving record. There are no financial incentives on individuals to avoid generating claims. the existing system in victoria. At present three government institutions play a role in the third-party insurance scheme. The Motor Accident Board provides an initial no-fault benefit covering payments up to a maximum of $20800 for impairment of earning capacity, together with associated hospital, medical and rehabilitation expenses. The State Insurance Office is responsible for common law litigation claims for damages for pain and suffering, permanent disability, impaired earning capacity and the need for future care and attention of the injured party. The Road Traffic Authority collects third party premiums paid at the time of vehicle registration and passes these on to the State Insurance Office. The Government proposes establishing the one organisation which will have overall management responsibility for the new scheme. This new body to be called the Transport Accident Commission will take over the functions of the Motor Accident Board together with some of those of the State Insurance Office and the Road Traffic Authority. the new benefits. With the abolition of the right to bring a common law action for damages comes a comprehensive scheme of benefits: Medical, hospital support and rehabilitation costs may be claimed. An injured claimant will be responsible for the first $250 of medical expenses. Thereafter all reasonable costs of medical, hospital, ambulance, nursing

3 and therapeutic services and funeral expenses will be payable. In limited situations there will also be available payments for home help or child care. Income adjustment benefit may be claimed. No claim can be made for income loss for the first five days after an accident. Thereafter for a period of eighteen months an injured person is entitled to an income adjustment benefit related to his or her earnings. For a complete loss of income the payment is 80% of pre-injury earnings with a floor of $196 per week and a ceiling of $400 a week with adjustments for dependants. Long term impairment benefit may be claimed. This benefit is payable after eighteen months provided the injury has stablised. If not, an interim payment may be made and adjusted later. The first 10% of impairment is not eligible for benefit. These payments are directed at permanently injured persons. The benefit has two parts: first a lump sum of up to $37500 to cover pain and suffering and other loss associated with the accident itself for the initial stages of impairment; secondly an annuity to a maximum of $87500 to cover life-cycle adjustment costs, quality of life changes and loss of the ability to provide services to others. It will vary with the age of the person who suffers the impairment as well as the degree of impairment. Loss of earnings capacity benefit may be claimed. This benefit is available to those who can demonstrate that the impairment suffered has given rise to loss of earnings capacity. There would be a floor of $9100 per annum and a ceiling of $16900 per annum for persons with complete fulltime earnings loss. This benefit is payable having regard to the loss of a capital asset arising from impairment and would not be linked to actual income. Payment of the benefit would be subject to review every five years. [1986] Reform 145 Death benefits may be claimed. The spouse of a person who dies in a transport accident will be entitled to a lump sum payment and a loss of earning capacity benefit for five years. This payment will vary with the age of the deceased: a maximum of $62500 at age 18 to 25 years declining by 1% for every year of age of the deceased over 25 years to be $31750 at aged 75 and above. The loss of earnings capacity benefit can be extended beyond five years if there are dependant children payable at the rate indicated above. funding system. The Government has opted for a ten year fully funded approach for setting premiums. The effect is that premiums will be set at a constant real level for ten years which will meet all payments made in that period and build up a fund which at the end of that period fully covers outstanding liability. Funding the new system in will come from three sources: There will be an increase in existing premiums sufficient to cover the new system from 1 July A 16% increase has been announced. Financial responsibility for motor accidents during the course of employment will come under the responsibility of workers compensation payments and hence will be transferred to WorkCare. This is an estimated savings of $12 million in a full year. From 1 January 1987 a 50% surcharge will be imposed on all traffice infringement notice fines and maximum penalties for traffic offences proceeding to court will be increased correspondingly. These are expected to generate $10 12 million in a full year. coverage of the scheme. The scheme will cover all motor traffic accidents which occur in Victoria including those involving public transport. However it will also cover Victorian residents involved in accidents outside Victoria involving a Victorian registered ve-

4 [1986] Reform 146 hide. Drivers of Victorian registered vehicles will be indemnified in respect of common law actions brought against them in respect of transport accidents in other States of Australia. ancillary features. Other features announced by the government in its statement which are part of the new scheme include: a quicker claim system: claimants will receive a decision within 28 days of lodging a claim; increased funds for accident prevention and rehabilitation; a special squad to be established up to investigate fraud and to make random checks of the system. the law institute scheme. The Law Institute of Victoria has been very active in the debate over a new transport accident scheme since the changes were first foreshadowed. In a major submission to the Government in December 1985 entitled A Motor Vehicle Accident Compensation Scheme for Victoria the Institute proposed improvements to the current scheme without changing its nature. It strongly opposed the abolition of the common law rights of motor accident victims. The Institute s proposal is summarised in the Government Statement as including: an increase in the discount rate used by courts from 3% to 5% or above; a limitation on payments to family members for providing care and attention to accident victims; the withdrawal of benefits in respect of the first five days of income loss; severe measures against fraud and a tightening of the system in respect of small claims and other expenses; an increase by about 50% in the maximum amount payable under the Motor Accident Board no fault benefit for loss of earnings. penalty loadings on licences for those drivers involved in accidents who are subsequently convicted of a breach of the traffic code and a levy on traffic offences; transfer of medical and hospital osts to the medicare system on a bulk billing basis; introduction of a narrative threshold on access to common law so that cnly persons with serious injury would be entitled to mount a common aw claim. the government's reaction. The Government accepted the first six of these proposals but rejected the Institute s key proposal, the introduction of what is called a narrative threshold. The effect of this threshold would be that an accident victim would not be able to pursue a claim for damages at comnon law unless the nature of the injury suffered by the person satisfied the description in the legislation. If there was doubt as to entitlement it would be for a judge alone to determine as a matter of law whether the injury sustained satisfied the criteria of the threshold and therefore whether the claim could proceed. The Law Institute suggested that the introduction of a threshold would remove a number of small common law claims and reduce the costs of the common law in motor accidents by over $70 million. In support of this the Institute pointed out that claims for sprains and strains increased by 49.2% in 1984 whereas total injuries increased by only 13.5%. Furthermore, sprains and strains and minor soft tissue injuries are the major growth area of injury claims received by the Motor Accidents Board. The Institute thus argued that a properly formulated threshold would remove a substantial number of claims for non-demonstrable injuries, soft tissue injuries and lacerations and abrasions, many of which presently give rise to small common law claims for damages. In reaching its conclusion the Institute did detailed research of the position in the United States before concluding that a properly formulated threshold can act as an effective constraint on costs in both the no fault and common law components of a dual scheme.

5 the threshold. The Law Institute has proposed the following threshold: A person may recover damages at common law for pain and suffering, loss of enjoyment of life, impairment of earning capacity and probable future economic losses, only if that person sustains a serious injury in a motor vehicle accident. Serious injury means a personal injury which results in death, loss of a foetus, fracture, partial or total loss of a body member organ, function or system, permanent or temporary disfigurement that subjects the injured person to mental or emotional suffering, permanent and consequential impairment of a body member, organ function or system of temporary limitation on the use of a body member, organ, function or system such that one s ability to resume a not insignificant number of one s activities is affected to a large degree over a period of not less than six months following the accident. th e view of the Victorian bar. The Victorian Bar also made a full submission to the Government. It supported the proposals put forward by the Law Institute and strongly opposes the abolition of the common law right. The Bar argued that a no-fault system would not remove the problems caused by fraudulent or exaggerated claims and would provide compensation to a significantly larger number of people. The Bar submission further argued that lump sum compensation was not more expensive than paying by a pension. the hidden agenda. Legal costs and lawyers s fees lie just below the surface of the ongoing debate about new accident compensation schemes not only in Victoria but in other States of Australia. In a recent publication of the Law Institute of Victoria the following figures were published in an attempt to dispel [1986] Reform 147 some of the myths circulating about legal costs. in the year ended 30June 1985 some 10.3% of payments were for legal costs which includes payments for medical reports, expert witnesses and government fees; if there were no legal costs and that is unlikely even in an administrative system, the reduction would be approximately $20 per vehicle, based on the 1985 figures; the legal profession s income for motor accident compensation for 1984/85 was $46.5million, though this figure includes disbursements. The Institute argues that if its threshold proposals were adopted there would be a sharp drop in the legal costs for 1987 onwards. the no-fault solution. The Government Statement on transport accident compensation and the submissions by the Law Institute agree on one point: the third party insurance scheme is in crisis and the key problem is the cost of the system. What is being sought is a way of controlling costs and at the same time providing an equitable system for injured persons. The Victorian Government has opted for the no-fault approach which carries with it the abolition of the right of an individual to bring a common law action in negligence where motor vehicles are involved. It will be interesting to see which, if any, other States follow suit. the courts and the community For either of these crimes I would wish to confine the criminal till an opportunity offered of delivering him as a prisoner to the natives of New Zealand, and let them eat him. The dread of this will operate much stronger than the fear of death. Arthur Phillip, Historical Records of New South Wales, 1787 On 21 May 1986, the Hon Sir Richard Blackburn OBE delivered the inaugural Blackburn lecture in Canberra.