Last year there was a campaign by RACQ Insurance and Suncorp to alter the very successful CTP insurance scheme for motorists in Queensland to a no-fault system.
They asserted this would be a good thing because those people who had suffered catastrophic injuries through their own fault would receive benefits. You might think that it is very noble of them. Except that it is a furphy.
Severely injured persons, whether the motor vehicle accident was caused by them or not, can access assistance through the National Injury Insurance Scheme, Queensland (NIISQ). For those less severely injured but still at-fault, RACQ and Suncorp are suggesting that we should all chip in and pay for those drivers' own mistakes.
And in the case of RACQ Insurance, they spent who knows how much money defending a claim all the way to the High Court last year on the very issue of whether a severely injured person was the "at-fault driver", only to lose. If they were really concerned about providing a benefit for everyone, why did they fight that claim so hard?
Why would these insurers want to interfere with an already very successful scheme which provides common law compensation to motorists who are injured in Queensland and from which the CTP insurers derive substantial profits?
It is because they would prefer not to have to deal with lawyers acting for the injured persons and be left free be able to manipulate and coerce injured and vulnerable people without interference. The scheme that they envisage is similar to the current NSW CTP scheme.
Injured in NSW?
If you happen to be injured in NSW and are subject to NSW law, you cannot automatically make a common law claim against the negligent driver through their CTP insurer as you can in Queensland. Frighteningly, even if you are traveling in a Queensland registered vehicle and injured through another driver's fault in NSW, you are caught by NSW law.
Under NSW law, an injured person must have a whole person permanent impairment of more than 10% in order to claim certain common law damages even if they were not at fault for the accident. In other words, there is a threshold to exceed, similar to that of the disastrous changes made by the Newman government to the Queensland WorkCover scheme which were thankfully removed by the current Labor government.
The injustice of such a threshold is that whole person impairments are not a measure of a person's disability. For example, an accountant with a 2% impairment from a lower back injury may suffer little or no impediment to their income earning ability. However a builder's labourer with the same back injury may be completely unable to work.
Yet an injured builders labourer with a 2% whole person impairment of his lower back in NSW would be confined to its statutory scheme. That means that any benefits they might receive will be dictated by a state bureaucracy and the CTP insurer. Anyone who thinks that that would be a good outcome compared to being able to sue for lump-sum compensation under the common law is naïve or misguided.
The case of Shmailov v AAI Limited [2020] NSWSC 887 in the NSW Supreme Court last year is a perfect example of the bureaucratic nonsense that occurs under a system promoted by the insurers. As part of the bureaucracy in NSW, the NSW government runs a Medical Assessment Service (MAS) which determines, among other things, whether an injured person has suffered an injury with a permanent impairment above 10%.
Mr Shmailov was riding a motorcycle when he was struck by a car, hitting his head on the road and it was then struck by the front wheel of the car. He was assessed by a doctor for the MAS with a 6% impairment but then the same doctor later assessed him with a 7% impairment following a deterioration in his condition. Mr Shmailov requested a review of that second assessment which was denied so he applied for judicial review in the Supreme Court.
Another expert assessed his injury as a 15% impairment. The Court ordered that the matter be remitted to the government agency that administers the MAS for determination. The court ordered costs to be paid by the insurer, AAI, which is owned by Suncorp.
It is unclear to me as to how the insurer is connected to the MAS but it is part of the bureaucracy and must have had some role in the process in order to have the costs order made against it. But what is clear is that it is a top-heavy bureaucracy that would be a nightmare for an unrepresented claimant to navigate.
So, this poor claimant has had to endure at least one bout of bureaucracy and a Supreme Court hearing just to go back to square one and have his claim determined again. What an awful system to be caught up in? Yet that is what some of the CTP insurers in Queensland have been seeking.
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