Victorians who have significant spinal injuries after an accident are among those who will continue to miss out on compensation for their injuries, under a new Bill to be introduced by the State Government if it is re-elected.
The State Government has proposed a number of amendments to the Wrongs Act, which governs compensation claims in Victoria, following an inquiry by the Victorian Competition and Efficiency Commission (VCEC).
The Government promised to deal with some long standing inequities in the law but has failed to adopt a key VCEC recommendation that would make the law fairer for Victorians who have suffered injuries as a result of the negligence of others.
Slater and Gordon civil litigation lawyer Dina Tutungi said the Bill was a small step in the right direction, but did not go far enough in addressing imbalances in the system created by the introduction of compensation limits and thresholds in 2002 and 2003.
“We are pleased the Government has adopted a number VCEC’s recommendations which we believe are sensible and appropriate and will make the system fairer,” Ms Tutungi said.
“However, it is disappointing that VCEC’s recommendation to modify the impairment threshold for Victorians suffering spinal injuries has not been accepted,” she said.
The Wrongs Act precludes a person from making a claim for pain and suffering unless they have suffered a ‘significant injury’, which is defined as more than five per cent permanent physical impairment.
“Since 2002 a number of innocently injured Victorians have been unable to make compensation claims because they have not met this threshold.
These have included a man who underwent spinal surgery after a back injury. He was denied the right to make a claim even though he had trouble standing and sitting.
A 14 year old boy who suffered a serious de-gloving injury to his right hand requiring surgery and extensive rehabilitation did not meet this impairment threshold. He was left with severe scarring and residual limitations including for future work, recreational and sporting activities.
Further, a 45 year old police officer who sustained a serious left knee fracture did not meet the threshold. This is despite requiring surgery including the insertion of a plate and nine screws and being advised that he would eventually require a total knee replacement.
“These thresholds have enabled insurers to reap windfall profits in public liability and medical indemnity insurance, due to the dramatic reduction in the number of compensable claims and have been the subject of extensive criticism from the judiciary, legal profession, consumer groups, unions and disability rights groups,” Ms Tutungi said.
“It is important that this is rectified to ensure Victorians with significant physical injuries receive fair and proper compensation.”
Ms Tutungi also raised concerns that some Victorians injured because of negligence or the fault of another will continue to be disadvantaged when trying to claim for lost income.
Currently, a person whose earnings are reduced because of their injury, but who still earns greater than the limit set by the Wrongs Act is unable to recover any of their lost income.
The Bill allows these people to claim the difference between their pre and post injury earnings up to a limit.
“While we welcome the State Government’s acceptance of VCEC’s recommendation on lost income claims, we are concerned that these changes, if introduced, will only apply to injured Victorians who commence legal proceedings some time after the proposed new laws take effect.
“Former AFL footballer Matthew Egan, who is being represented by Slater and Gordon in a medical negligence case, will be among those who will miss out under the proposed changes.
“Under current laws, Mr Egan cannot make a lost income claim, but under the proposed changes a person in his position would be able to make a claim to recover lost income.
“However even if the proposed laws are introduced, Mr Egan will still be precluded from recovering lost income because he has already filed his claim in court.
“The Government has made a good start to improving the Wrongs Act, but it is clear more work needs to be done to ensure all injured Victorians are treated fairly and have the same access to compensation,” Ms Tutungi said.
The Government released the proposed Bill last week.