In Brief
On 25 June 2012, the Motor Accidents and Lifetime Care & Support Schemes Legislation Amendment Act 2012 (the Act) commenced. The Act amends both the Motor Accidents (Lifetime Care and Support) Act 2006 (LTCS Act) and the Motor Accidents Compensation Act 1999 (MACA) and seeks to clarify the issues which arose following Thiering v Daly 1 (Thiering).
The amendments are significant in that they:
- clarify that the Lifetime Care & Support Authority (Authority) is solely responsible for paying the expenses of all the assessed treatment and care needs of a participant in the Lifetime Care & Support Scheme (LTCSS);
- make it clear that participation in the LTCSS abolishes a participant's right to claim damages for economic loss or treatment and care needs payable under MACA;
- confirm that there is no requirement for the LTCSS to pay gratuitous services; and
- provide that all such care and treatment is to be provided by an "approved provider", except in special circumstances.
Background
In Thiering, Mr Justice Garling was required to consider essentially 2 propositions, namely:
- Whether the right to damages for gratuitous care of a catastrophically injured individual who was an LTCSS participant, had been completely abolished; and
- If not, who (ie either the Authority or the CTP insurer) is liable for payment of those gratuitous services.
In considering those questions, Justice Garling found that s 130A of MACA did not prevent a lifetime care participant from recovering damages up to the date of settlement or judgment in the common law action for attendant care services that the Authority had not paid.
This was considered to be somewhat incongruous with the intent of the LTCSS Act which anticipated that the CTP insurer would be relieved of any liability to meet the treatment and care expenses of any participant in the LTCSS.
The Amendments
The amendments apply to any claims made in relation to past or future treatment and care needs on or after 30 May 2012. The provisions are expressed to apply even if:
- the motor accident occurred before that date; or
- the claim relates to a person who was a participant in the Scheme before that date.
Amendments to the Motor Accidents (Lifetime Care & Support) Act 2006
Section 5A updates the definition of "treatment and care needs" and allows for certain treatment and care needs to be excluded from the LTCSS. In the event that such a treatment and care need is excluded as a result of a regulation made pursuant to that provision, the LTCSS is not required to make any payment for that excluded treatment and care need.
The most significant amendments appear under Part 2A – Payments under Scheme, comprising ss 11A, 11B and 11C.
Section 11A reiterates that the Authority is required to pay all reasonable expenses incurred by or on behalf of a participant in relation to the "assessed treatment and care needs".
Those assessed treatment and care needs are defined as those which have been assessed as being "reasonable and necessary in the circumstances" and which relate to the "motor accident injury in respect of which the person is a participant".
No expenses are payable in respect of "excluded treatment and care needs" and "treatment and care needs that are not assessed treatment and care needs".
It remains the case that the LTCSS may make provision for or with respect to determining which treatment and care needs are reasonable and necessary in the circumstances.
Section 11B responds directly to the issues raised in Thiering and specifically excludes payments for:
- any treatment, care, support or service provided on a gratuitous basis; and
- any treatment, care, support or service not provided by an "approved provider".
Whilst s 11B(2) allows the Authority to exercise its discretion to make a payment if special circumstances exist so as to justify such a payment, s 4 specifically states that the section applies even if the treatment, care, support or services concerned were provided in connection with the provision of the assessed treatment and care needs of participants.
Section 11C requires that attendant care services and other forms of treatment, care, support or services (other than the services of a medical practitioner) are to be provided by an "approved provider".
The exception identified in s 11B(2) will nonetheless apply in special circumstances.
Amendments to the Motor Accidents Compensation Act 1999
Section 43A has been replaced such that the amended provision states that the obligation on insurers, which arises under Chapter 3, to pay for certain treatment and care needs, does not apply to participants in the LTCSS.
The section applies irrespective of whether:
- the treatment and care needs are assessed treatment and care needs under the LTCSS Act;
- the Authority is required to make a payment in respect of those treatment and care needs;
- the treatment, care, support or service is provided on a gratuitous basis.
Implications
The Motor Accidents & Lifetime Care & Support Schemes Legislation Amendment Act 2012 has provided clarity as to the obligations of a CTP insurer in respect of the care and treatment needs of an injured person who is a participant in the Lifetime Care & Support Scheme.
It is now clear that the LTCSS is responsible for all treatment and care needs of a participant and that a participant has no right to claim any such damages under MACA.
As to the provision of those services, the Act also confirms that the LTCSS is not required to make payments for gratuitous services and that the provision of any care, treatment, support or service is to be provided by an approved provider, save in exceptional circumstances.
Footnotes
1 [2011] NSWSC 1345
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