Public information campaigns

The Law Council continues to work to reform Australia's personal injury laws and to stimulate public debate about the rights of injured people.

The Law Council has been involved in two successful campaigns to educate the Australian public about the real impact of ill-considered changes to personal injury laws implemented in a number of jurisdictions.

Tasmania

In 2006, the Law Council, in partnership with the Law Society of Tasmania and the Australian Lawyers Alliance, conducted a campaign in Tasmania against draconian workers compensation and personal injury laws, which resulted in a full-scale Review of the Tasmanian Workers Compensation Laws by Alan Clayton, commissioned by the re-elected Tasmanian Government. The campaign was joined by a number of unions, including the Australian Nursing Federation and the Australian Manufacturing Workers Union.

The primary message of the campaign was that the Tasmanian Government should introduce reforms to bring Tasmanian workers compensation laws into harmony with the fairer laws applying in Victoria. Fundamentally, this includes:

  1. Reducing the draconian 30% whole-person impairment threshold on workers compensation claims to 15%;
  2. Introducing a "narrative test", to enable the court to look past the technical assessment of WPI and holistically examine the actual impact of the injuries and disabilities on the plaintiff's life.

New South Wales

The Law Council also assisted a major NSW campaign in the lead up the 2007 State election, under the banner "A Fair Go For Injured People" (www.faircompensation.com.au). The Law Council joined with the Law Society of NSW, the NSW Bar Association and the Australian Lawyers Alliance to demand fair compensation for people injured in NSW through no fault of their own.

Through these campaigns, the Law Council assisted in highlighting the unfairness of the personal injury law changes in a number of jurisdictions and encouraged governments to re-think the changes. In particular, the "Fair Go For Injured People" campaign highlighted:

  • the draconian effect of 10% and 15% thresholds applying in motor accident and Workcover claims, relative to the comparatively reasonable test under the Civil Liability Act 2003 for personal injury claims (public liability);
  • inconsistency in compensation depending on where and how a person is injured;
  • harsh Motor Accidents Authority guidelines for using the AMA Guides, which preclude medical assessors from accumulating WPI assessments for concurrent physical and psychological injuries (such that, for example, an assessment of 9% WPI for physical injuries and 10% WPI for psychological injuries arising from a traffic collision will not exceed the 10% WPI threshold under the Motor Accidents Compensation Act 1999 (NSW));
  • "election" provisions under the Workers Compensation Act 1987 (NSW) that require injured workers, whose injuries result in greater than 15% WPI, to forego any entitlements to weekly benefits or reimbursement for medical expenses if they elect to sue their negligent employer for damages.

The primary messages of the "Fair Go For Injured People" campaign were:

  1. NSW personal injury laws are collectively the most draconian in Australia, have severely limited the rights of injured people in NSW and massively boosted insurers' profits. In addition, there is no reason for the present inconsistency, which means a person will be entitled to a different level of compensation depending on whether they are injured in a motor accident, workplace or (for example) in a park.
  2. The 10% and 15% WPI thresholds respectively applying to personal injury claims for injuries suffered in motor accidents and workplaces should be brought into line with the 15% of "the most extreme case" applying under the Civil Liability Act 2003, which is regarded as a fairer measure of impairment for compensation purposes. This is because "the most extreme case" enables some form of subjective assessment of the affect of the injuries, rather than focusing solely on technical observations about loss of bodily functions and range of movement;
  3. The MAA guidelines should be amended to enable medical assessors to aggregate physical and psychological injuries arising from an accident; and
  4. The "election" provisions under the Workers Compensation Act 1987 (NSW) should be removed immediately to allow people seriously injured due to their employer's negligence to claim damages without suffering the loss of their statutory entitlements.