TRANSPORT ACCIDENT AMENDMENT BILL 2013

19 November 2013

Rising to speak on the Transport Accident Amendment Bill 2013, I note the Labor Party supports Mr Barber's reasoned amendment. The bill presented to this chamber can be summarised as a cowardly and socially blind reform. It is an attack on those who, for one reason or another, find themselves in an incredibly vulnerable position.
The only rationale for the bill I have heard so far lies in the budget's bottom line. This government will shamelessly cling to achieving a surplus no matter how many people it must disadvantage in the process. According to the minister, this so-called reform package will save the Napthine government around $30 million to $35 million a year. Last year the Transport Accident Commission (TAC) made a profit of $973 million, and the Napthine government received a hefty dividend from that.
No case has been made for these changes. When a government proposes reforms in relation to compensation, whether involving TAC or workers compensation, it has to put the case for the reform. Is the scheme running out of money? Are there hundreds or thousands of claims being putting in, with people abusing the system? Is the whole scheme in chaos?
That is not the case with TAC. It is a very profitable scheme. Most of the claims that will be excluded by this legislation - which in my understanding number not even 20 or 30 a year - do not even make it; they are not even successful. For the life of me, therefore, I cannot understand why, for the sake of saving $30 million or $35 million, we are going to take these rights away from these victims.
We need to understand why TAC is there in the first place. It represents a premium paid by motorists in Victoria basically to provide care for and look after people who are injured on our roads. What we are doing here is punishing some of those people.
As I said earlier, if the scheme was in disarray and losing heaps of money, and if people were abusing the system, I would get that we would need to do some reform and streamline the system, but that is not the case here. Why, then, attack the most vulnerable people?
I will go through a particular case in a minute, but first I will go through some of the amendments this legislation's clauses are will make. Clause 14, for example, relates to the modification or overriding of the American Medical Association guides.
I do not understand why we would want to take those away - why, rather than relying on the American Medical Association guides, we would instead give TAC a blank cheque in its determination to use whatever guide suits it in relation to some of these issues.
Another clause relates to reimbursement of medical report costs.
The change means that unless the Transport Accident Commission and the claimant jointly apply for a medical report, TAC will not pay for it. Some of these reports cost somewhere between $3000 and $5000. At the moment the claimant can seek a medical report, and TAC will pay for it if seeking of the report is reasonable.
If there is an argument about the word 'reasonable', the courts or other jurisdictions can deal with that, but making this change very simply means that right is taken away. The clause means that unless TAC agrees and there is a joint application for a medical report, then bad luck; you have to pay the money yourself. As I said, $3000 to $5000 is not a small amount.
Another clause relates to the issue of authority to release information; again there is further restriction there.
Clause 27 relates to what the test for compensation is. Under the proposed changes a person must demonstrate that for a continuous period of three years they (a) have had a mental illness as a result of a transport accident, (b) have not responded to treatment provided by a registered mental health professional and (c) have severely impaired relationships and social and vocational functioning.
A lot of people go through mental illness over a period of time - it could be 6 or 12 months - and then feel a bit better, so they try to get themselves back together and go back to work but during that period have the problem triggered by something again.
Mental illness is not like a physical injury. With a physical injury such as a broken arm, you can go and get it put together again and have a plaster put on or have an operation and so on, and then you are good again, but mental illness is not like that. Mental illness comes and goes.
In cases where people are feeling better so they go back to work and think everything is good and then suddenly have a recurrence, those people could miss out because the illness has not been continuous for three years. I do not know where the government is coming from.
I have a relevant example, a case of a 49-year-old cyclist. I will refer to him as Richard for the sake of legal confidentiality, but I am happy to provide the details if I need to. This case was successfully defended by Maurice Blackburn lawyers.
This cyclist was travelling downhill at 50 kilometres per hour when he collided with a car which had attempted to turn across his path. After surgery and rehabilitation for his physical injuries, which included a bladder rupture and various other injuries, he was discharged from hospital.
However, he was not able to work for an extended period of time due to psychological issues, including post-traumatic stress disorder, nightmares, heightened anxiety and low mood. Richard is now back to working four days a week. He still suffers flashbacks. Under the proposed changes Richard would not receive any support or compensation for the mental harm that he has suffered and continues to suffer.
There is an additional problem in that there are large number of individuals who for a variety of reasons are either unable or reluctant to seek appropriate mental health treatment.
The World Health Organisation has said that 400 million people worldwide are affected by mental illness and about 20 per cent reach out for treatment. Despite the work of organisations such as Beyond Blue, there is still much stigma attached to seeking mental health treatment. This will be especially true now that people will have to prove that they have been mentally ill for three years, and if they cannot prove that, they are not covered - they cannot seek compensation.
Clause 26 makes changes regarding common-law damages claims for mental injury due to injury or death, again making much higher the hurdle that people have to jump over. I see the Assistant Treasurer shaking his head. He may be able to clarify that later on, and we would be happy to hear that clarification. We are supporting Mr Barber's reasoned amendment, which calls for further consultation, so that all these issues can be clarified and we will all be happy people.
We can do exactly the same thing as we did with the WorkCover legislation last week.
Former High Court Justice Michael Kirby in his judgement on Coates v. Government Insurance Office of New South Wales said:
it is as much the direct emotional involvement of a plaintiff in an accident or perilous situation, as her or his physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage.
That is why we need to be very careful about tweaking or making changes that make it difficult for people to make claims for having sustained a mental injury as a result of witnessing or being involved in an accident.
Emergency services providers and personnel, the Emergency Services Federation, psychiatrists at the Australian Medico-Legal Group, the Law Institute of Victoria, Maurice Blackburn, Slater & Gordon, Ambulance Employees Australia, the United Firefighters Union and the Police Association have all opposed the changes that the government is pushing through this Parliament.
Each organisation has offered to collaborate with the government so as to ensure that injustice does not result from this legislation. Every request has been ignored by this government.
The bill is cowardly, cruel and callous to those who have suffered mental harm.
As I said, no case has been made for these changes apart from a projected saving of $30 million to $35 million. The government should reconsider its position. The bill is another kick in the guts to the most vulnerable Victorians. It will go on to add to the policy wasteland that is the only legacy the Napthine government will leave behind.
As I said, the government has not made a case for the legislative changes. The TAC scheme has made $973 million - it is a very profitable scheme. If the minister thinks we are just talking propaganda, he will have his chance to tell us we are wrong and he is happy to rewrite the bill to give comfort to potential victims of mental injury that if this legislation passes they will not be negatively affected.
It is very simple: the minister can stand up and say, 'No Victorian will be worse off under the proposed legislation than they would be under the current legislation'. It is a simple test, but I bet that commitment will not be made.
For these reasons, I ask members to oppose the legislation and vote against it.