LABOR GOVERNMENT BRINGS BACK FAIR COMPENSATION FOR VICTIMS OF TRANSPORT ACCIDENTS

Transport accident amendment bill 2013

**Article by HCA Lawyer Dino Beslagic – TAC Specialist

Background

On 16 October 2013, the Napthine Government introduced the Transport Accident Amendment Bill 2013 into Parliament. The Bill sought to introduce various amendments which would affect a wide range of transport accident victims. A number of these amendments would effectively allow the TAC to abandon countless victims.

Psychological Injuries

The most notable amendment related to persons suffering from psychiatric or psychological injuries resulting from a transport accident.

The proposed changes would only grant common law access to victims if they could prove they had 3 years of continuous treatment for symptoms of a recognised mental illness, and that the psychiatric injury had impaired their ability to work, socialise or maintain relationships.

This test would make it almost impossible for victims suffering from severe psychiatric injuries to seek compensation.

American Medical Association Guides to Evaluation of Permanent Impairment, 4th Edition 1997 (“A.M.A Guides”)

Under the Transport Accident Act 1986, persons injured in transport accidents are entitled to have their level of impairment assessed. The percentage impairment is determined according to the A.M.A guidelines. The assessments are conducted by independent and trained medical practitioners.

Injured persons who disagree with the level of impairment assessed can have that decision reviewed by VCAT. Either party can have that decision further reviewed by the Supreme Court.

The proposed amendments empowered the TAC to create a Guides Modification Document. Upon approval of the Minister, this amendment allowed the TAC to revise part or all of the A.M.A Guides. In essence, if the TAC is not satisfied with the interpretations of the A.M.A Guides by the Tribunal or the Courts, it is allowed to override its interpretations.

It is an alarming amendment which defies the system of checks and balances present in all Australian laws.

Nervous Shock

The amendments would also affect victims who suffer mental harm or nervous shock as a result of a transport accident. This may include family members of victims or persons who witness aftermaths of road accidents. The changes would prevent family members from accessing common law if the dead or injured relative committed or attempted to commit suicide, or died, or was injured by their own negligence.

Opposition to Transport Accident Amendment Bill 2013

The Bill was criticised from all corners including some of Australia’s most regarded psychiatrists.

Amongst those critics, the proposed changes were stringently opposed by the legal team at Henry Carus and Associates.

Furthermore, there were no financial justifications for such amendments either. In fact, Labor leader Daniel Andrews stated:

“The TAC made over $900 million in profits last financial year and is performing so well the Napthine Government took dividends out of the scheme. There is no basis for these cruel and mean cuts to people who pay their car registration in the belief they are insured.”

The changes were seen as a cruel and unnecessary attack on victims’ entitlements to compensation.

Transport Accident Amendment Bill 2013

However, despite this, the Napthine government passed the proposed changes without any warning or consultation whatsoever.

On 14 November 2013, the Napthine passed the Transport Accident Amendment Bill 2013, thus causing Victoria to have the harshest common law test for a psychiatric injury of any Australian jurisdiction.

The amendments were undoubtedly some of the harshest and cruellest laws ever passed by any Victorian Government.

Restore of fair compensation through Transport Accident Amendment Bill (2015)

Daniel Andrews said Labor would undo the damage if they were elected in the next State election.

Indeed, Labor was elected in the following State election and the push to reverse the before-mentioned amendments began.

On 21 October 2015, the Minister for Finance Robin Scott tabled the Transport Accident Amendment Bill 2015.

In introducing the Bill Robin Scott stated: “We made a promise to Victorians that these changes made by the previous Government would go, and that’s exactly what we’re doing.”

The changes are made retrospectively and this is important because victims affected by the Napthine Government’s amendments are not excluded from seeking compensation entitlements under Labor’s restored amendments. Injured persons who were affected by the Napthine Government’s amendments should revisit their entitlement to compensation.

Henry Carus and Associates campaigned against the Napthine Government’s amendments and welcome the restoration of just and human compensation for transport accident victims.

We are pleased to advise the Bill received Royal Assent on 19 April 2016.

If you wish to revisit your compensation entitlements or have been in a transport accident and wish to discuss your compensation entitlements, please contact Henry Carus and Associates.