What The Government Considers a “Minor” Injury is Major For Some

Barney Gask assesses the South Australian government’s White Paper, which proposes an overhaul of Compulsory Third Party compensation in South Australia.

On 26 November 2012 the Government and the Motor Accident Commission released a White Paper (download) in relation to proposed reforms to the compulsory third party legislation in South Australia. The White Paper is a follow up to the Green Paper that was released by Treasury last year. The Green Paper proposed three options of reform all of which were focused on changes that would compensate people who sustain catastrophic injuries in circumstances where the accident is their fault and who under the current legislation are unable to claim.

As anticipated the White Paper (and the draft legislation that has been posted on the SA Motor Accident Commission’s website) confirms that the Government has opted for a hybrid system, one that compensates all those who sustain catastrophic injuries, but reducing the entitlements for those who the Government deems have sustained “minor” injuries.

Unfortunately, the proposed legislation goes much further than that. The draft legislation proposes a new points system ranking pain and suffering from 1 to 100, replacing the current 0 to 60 scale. Unless an injured person reaches 15 points on the scale then they will have no entitlement to pain and suffering, future economic loss or compensation for assistance provided to them with everyday activities by relatives. They will receive past income loss, but at 80 percent, as well as their medical treatment expenses. Those who reach the 15 point threshold will receive damages for pain and suffering, but based on the draft legislation it will be less than the current entitlement. They will also receive future income replacement but a complicated test will be applied to determine what the entitlement will be.

The concern which has now been confirmed is for those who the Government has deemed have sustained “minor” injuries. The White Paper states on page 13 that minor injuries “include minor whiplash, soft tissue injuries and fractures not resulting in permanent impairment.” Amongst the documents the MAC has listed on their website is a Range of Injury Scale Values (ISV) chart. That chart refers for example to injuries including fractures with a 5 to 10 ISV (ie under the 15 point threshold) and included in that range are a number of injuries that leave a permanent impairment. Accordingly, their own scale chart does not support what the MAC and the Government are trying to convince the public of in their White Paper.

So for example, the 24 year old electrician who sustains a permanent impairment of their cervical spine and who has been assessed at 10 points on the scale, but who cannot continue with the employment for which they are experienced and trained, will get his past income but at 80 percent (and it is not clear from the draft legislation how and when that income will cease) and his medical expenses. He will get nothing for the fact that his career has been taken from him. At least under the current system he would get something.

Making matters worse, if people in this situation are not happy with how their rights are affected they have no capacity to seek legal representation from someone who has some idea of what they are entitled to.

The MAC and the government claim that this overhaul is necessary to enable them to adequately compensate the 12 or so people catastrophically injured on our roads each year who are not currently entitled to compensation. This should certainly be a priority, but under the current proposal they would achieve this by robbing an estimated 75 percent of other innocent motor accident victims of their entitlements.

We want a Compulsory Third Party system that is fair for all South Australian road users.

TGB is South Australia’s largest injury law firm. Call Barney on (08) 8212 1077.