I. THE RANGE OF PROPOSALS

4.1 The criticisms of the common law negligence action, which are described in the previous chapter, are not new. Academic commentators, judges and official inquiries have drawn attention. over a long period, to the inadequacies of a compensation system which relies very heavily on the common law. Their analyses have produced a continuing stream of reform proposals, ranging from relatively minor modifications to the common law negligence action to a comprehensive national compensation scheme designed to replace the common law, the workers’ compensation system and a substantial proportion of the social security system. In some cases the proposals have been stimulated by long-standing dissatisfaction with the common law. In others, inquiries have been initiated in response to a particular injustice, as in the United Kingdom and where the Pearson Royal Commission was established in 1973 after public criticism of the lack of compensation for thalidomide victims. ¹ Whatever the stimulus for reform there has been a clear and consistent trend, in Australia and elsewhere, towards modification of compensation arrangements based on the common law negligence action. While not all proposals have been implemented, many have. Indeed even a brief account of them suggests that the most surprising aspect of compensation for transport accident victims in New South Wales is how little it has changed.

4.2 This Chapter contains a description of reforms, both proposed and implemented, affecting transport accident victims. It concentrates on those made for Australian jurisdictions with some reference to important developments in New Zealand and the United Kingdom. Many similar inquiries have been conducted in Canada ² and the United States ³ but it is not possible to discuss these in depth. Consideration is given to proposals for:

• modification of the common law;
• no-fault schemes to supplement the common law;
• no-fault schemes replacing the common law;
• and comprehensive schemes.

The Chapter concludes with an account of proposals for reform of transport injury compensation in New South Wales.

II. MODIFICATION OF THE COMMON LAW

4.3 Suggestions for modification of the common law cover a variety of matters, of which the following are the most important:

• interim assessment and periodic payment of damages;
• limits on damages awards, or on components in damages awards; and
• procedural changes to the common law negligence action.

A. Interim Assessment and Periodic Payments

4.4 The common law rule requiring a once-and-for-all lump sum award has been modified by legislation in Western Australia ⁴ and South Australia. ⁵ Inquiries in Victoria, ⁶ New South Wales ⁷ and Tasmania ⁸ have examined modifications to lump sum payments and in Western Australia ⁹ the question of extending the existing power to make periodic payments has been discussed.

1. Western Australia

4.5 In Western Australia legislation has been in force since 1966 giving power in an action under the Motor Vehicle (Third Party Insurance) Act 1943 to award damages by way of either a lump sum or periodic payments or both. ¹⁰ The court may order payment of damages on a periodic basis for any length of time and the order may be terminated or varied by the court acting on its own motion or on the application of either party. ¹¹ In 1968 the Western Australia Law Reform Commission was asked

...to consider the need for legislation to provide for hearings limited to the question of liability in personal injury cases where the prognosis as to the plaintiffs condition is in doubt and the making of awards for the payment of interim damages. ¹²

The investigation expressed doubts whether the motor vehicle periodic payment legislation permitted the payment of an interim award, prior to the final assessment of damages. ¹³

4.6 The 1969 Report of the Western Australia Law Reform Commission recommended extensions to existing powers. The report suggested that the court should have power to make interim awards in all personal injury cases, ¹⁴ following a separate trial on the issue of liability. ¹⁵ Such interim awards could include “special damages” (that is, compensation for losses already incurred at the date of assessment), and periodic payments to cover estimated future loss of earnings, hospital and medical expenses and other necessary outgoings pending a further hearing. ¹⁶ The Commission recommended that the court should also have power to vary or discharge an interim award for periodic payments. ¹⁷ No legislative action has yet been taken on the recommendations. The existing power to make awards for periodic payments is infrequently exercised in Western Australia. ¹⁸

2. South Australia

4.7 Legislation on periodic payments was enacted in South Australia in 1967 when section 30b was inserted into the Supreme Court Act 1935. The court now has power, in an action for damages, to enter a declaratory judgment on the question of liability. The court may then adjourn the final assessment of damages and, in the meantime, order the defendant to make such payments on account of damages as appear just. The interim order may include an order for periodic payments to the plaintiff. Any party is entitled at any time to apply for a variation of the interim order or for a final assessment of damages. In a personal injuries action the judge must proceed to a final assessment if:

• the medical condition of the plaintiff has stabilised; or
• a period of four years has expired since the declaratory judgment (unless the judge considers there are special circumstances warranting deferment of the final assessment for a longer period).

A final assessment is in the form of a lump sum order which determines the defendants liability once-and-for-all. The South Australian courts have interpreted the section broadly so as to permit an interim assessment of damages in a wide range of circumstances. ¹⁹ Although the powers were used fairly frequently in the early years, they are now rarely used in practice ²⁰ so that their interference with the principle of once-and-for-all assessment of damages has not been significant. As far as we are aware, no study has been carried out in either Western Australia or South Australia into the reasons why little use has been made of the periodic payments in either State. It is therefore impossible to be certain about what the reasons are. It may be that limited access by choice to periodic payments is never likely to be encouraged in a system where once-and-for-all lump sum payments are so entrenched.

3. United Kingdom

4.8 A majority of the Pearson Royal Commission in the United Kingdom recommended a scheme of indexed periodic payments for future pecuniary loss in cases involving death or “serious and lasting injury”. ²¹ The scheme envisaged that the court would be required to make an order for periodic payments unless satisfied that a lump sum would be more appropriate in the circumstances. A plaintiff who received an award for periodic payments could ask the court to commute the award to a lump sum, but the court would have a discretion to approve or reject the request. ²² In cases where the injury was serious and lasting, but no pecuniary loss had been caused at the time of the trial, a declaratory judgment could be made, but only if the defendant was a public authority or was insured in respect of the plaintiff s claim. ²³ Awards for periodic payments could be reviewed in cases of change in the plaintiff s medical condition or where a declaratory judgment had been made. ²⁴

4.9 Although these recommendations of the Pearson Royal Commission have not been implemented, section 6 of the Administration of justice Act 1982 (UK) ²⁵ provides for provisional (interim) damages awards. This section, which has its origins in a report of the Law Commission, ²⁶ applies where a plaintiff in an action for personal injuries may develop some serious disease or suffer some serious deter oration in his or her condition in the future. The section provides for rules to be made to enable the court to assess damages on the assumption that the disease or deterioration will not occur, but to make a further award if either does occur.

4. New South Wales

4.10 In 1969 this Commission published a Working Paper on The Deferred Assessment of Damages for Personal Injuries and Interim Payments During the Period of Assessment. The Paper tentatively suggested the introduction of interim assessments where the plaintiff s medical condition was so uncertain that a final assessment would involve the risk of gross injustice. A final assessment was to be made after a maximum of seven years from the date of interim assessment. The proposal was not implemented.

5. Victoria

4.11 In 1959 a Royal Commission on Motor Car Third-Party Insurance was established in Victoria to explore aspects of the common law negligence action as it applied to motor vehicles, including the introduction of “periodical payment...as compensation in lieu of damages”. ²⁷ In his report in 1960, the Royal Commissioner, Dr E G Coppel, expressed reluctance to deal with this question in the limited context of compulsory third party insurance, since it raised an issue of general tort law. ²⁸ In 1968 a subcommittee of the Chief Justice’s Law Reform Committee reported on Damages by Way of Periodical Payments. A majority of the subcommittee, while conceding that it might be theoretically desirable to award periodic payments in respect of future economic loss, doubted the practicability of any such system. They considered that the volume of litigation would increase and that the courts would require an entirely new administrative machinery. Mr. (now Professor) H. Luntz dissented from the majority view, arguing that none of the difficulties were insurmountable. No legislation has been introduced in Victoria providing either for periodic payment or interim assessment of damages.

6. Tasmania

4.12 In 1980 the Law Reform Commission of Tasmania published a Working Paper on Compensation for Personal Injuries Arising out of Tort. ²⁹ The Paper suggested that in cases of serious or lasting injury the Supreme Court should have power to make a preliminary damages award and an order for periodic payments. It also made tentative recommendations about compensation payable to widows and other dependent survivors on the death of an injured person. No final report has yet been published on the proposals in the Working Paper. Another Board of Inquiry was established in March 1983 ³⁰ to explore both the operation of the no-fault scheme and various aspects of the common law, apparently as a result of increasing losses being incurred by the Motor Accidents Insurance Board. ³¹ No report of this Board of Inquiry has been publicly released to date.

7. Structured Settlements

4.13 A structured settlement is a scheme of periodic payments to an injured person, designed to provide full compensation. Any description of the operation of a structured settlement can only be general because of the wide variety of possible forms. It can, for example, be based on an annuity, a trust or a bond and stock portfolio, or any combination of these. These arrangements, which are mainly found in the United States and, to a lesser extent, Canada, are relatively uncommon elsewhere, although there are signs of their increasing use in New South Wales (paragraph 4.15). They vary in their complexity, according to the level and type of need which is to be met during the injured person’s lifetime.

4.14 A structured settlement has the same consequence as a traditional lump sum settlement for the defendant, in that it releases the party who is considered liable for the injury from future claims by the injured person or her or his spouse and dependents. It is generally negotiated and agreed to by the parties and their legal representatives, though it may require the court s approval in cases involving minors. ³² The periodic payments or instalments payable under a structured settlement are paid according to a pre-arranged schedule or “structure”. In the United States, this is designed to take account of all those elements normally considered in calculating a lump sum settlement These include past and future lost earnings, medical and rehabilitation expenses and legal fees. They are often structured, as far as possible, to minimise taxation liability and may also have some fixed indexing provision to as protect the settlement against inflation. ³³

4.15 In one recent New South Wales case, ³⁴ a settlement negotiated by the GIO provided for periodic payments for the injured persons future domestic, personal and nursing care as well as hospital, medical and related expenses. Unlike the typical American structured settlement, the ongoing liability is not subject to monetary limits but only to what can be regarded as “reasonable”. Any disagreement on medical hospital and related expenses, is to be referred to a registered medical practitioner nominated by the President of the Australian Medical Association (New South Wales Branch) or by the Secretary of the Department of Health. If structured settlements of this kind were used more generally, they would have significant cost implications and would require an administrative and dispute-resolving structure not readily available within the existing system.

B. Limits on Awards

4.16 An obvious way of limiting the escalating costs of compensating transport accident victims is to impose limits on the amount of damages that can be awarded by a court, either generally or in respect of particular losses. Another purpose of such limits may be to reorder compensation priorities, for example by directing scarce resources away from people who suffer relatively minor injuries towards accident victims sustaining severe, long-term incapacity.

4.17 One measure designed to effect a general reduction in damages awards is the alteration of the formula by which the courts assess the present value of future economic loss. Both New South Wales and Queensland have recently adopted such a measure (an increase in the discount rate) as a means of depressing damages awards in serious cases. ³⁵ An alternative is to impose an upper limit on the total amount recoverable. ³⁶ The risk inherent in measures of this kind is that they inevitably discriminate against those who are most seriously injured and who can least afford reduced financial support. Referring to the possibility of an upper limit, the Victorian Royal Commission on Motor Car Third-Party Compulsory Insurance commented that

... the effect of imposing any such limit would be that in the relatively small number of cases in which grievous injuries are sustained the victim would generally fail to recover more than a fraction of his loss, so that the maximum injustice would be done to those least able to bear it. ³⁷

4.18 An alternative to a general limit is the imposition of limits on the amounts recoverable for particular items. This approach offers the opportunity to be more selective and to avoid penalising unduly the most seriously incapacitated victims. The Pearson Report, for example, recommended that no damages should be recoverable for non-economic loss suffered during the first three months after the date of the injury, ³⁸ nor for permanent unconsciousness. ³⁹ A dissenting minority of two members recommended abolition of pain and suffering as a head of damages. ⁴⁰ The Pearson Royal Commission was equally divided on the question whether a ceiling (suggested as five times average annual industrial earnings) should be imposed on damages for non-economic loss. ⁴¹

4.19 The recommendations of the Pearson Royal Commission on non-economic loss have not been implemented in the United Kingdom. However, prior to the abolition of this remnant of the common law in the Northern Territory, a ceiling of $100,000 had been imposed on damages for non-economic loss. ⁴² A measure closely related to a monetary limit is the adoption of a legislative tariff or schedule to govern compensation for non-economic loss. This proposal was rejected by the Pearson Royal Commission, ⁴³ but has recently been supported in general terms by the Premier of New South Wales. ⁴⁴

4.20 The Pearson Report also recommended the abolition of damages for loss of expectation of life as a separate head of damage. ⁴⁵ Unlike the proposals referred to in paragraph 4.18 this recommendation has been implemented. ⁴⁶ However, given the relatively small number of claims in which such damages are available and the small amounts involved, ⁴⁷ such a measure will have little effect on the overall cost of the common law negligence acttion.

C. Procedural Changes

4.21 Since the common law has been criticised for the delays and expense inherent in the adversary system, ⁴⁸ measures designed to reduce either or both would go some way towards alleviating some deficiencies in the system. One frequent complaint is the lack of adequate control over the use of expert medical witnesses. The insistence, particularly by the defendant, on a certain (and presumably sympathetic) medical witness giving evidence can often lead to long delays. ⁴⁹ Perhaps more important is the tendency under the existing Rules of Court to postpone exchange of medical reports between plaintiff and defendant until shortly before the trial a practice which clearly discourages settlement at an earlier and therefore less expensive stage. A change in the Rules to require exchange of medical reports at an early stage would facilitate settlements. ⁵⁰

4.22 More generally any measure which reduces the number of cases which go to court will be likely to assist in reducing costs. This may be achieved by expanding the pre-trial procedures aimed at obtaining a settlement acceptable to both parties ⁵¹ or replacing court hearings with less formal and less expensive procedures such as arbitration. In its most recent proposal to the New South Wales Government, the Law Society of New South Wales advocates extension of current pre-trial hearings and expansion of the new system of arbitration of civil claims ⁵² to reduce court delays and the costs of litigation. ⁵³

4.23 One particular suggestion made to us concerned payment into court. ⁵⁴ In contrast to the practice in other States, very little use is made of this procedure in common law motor accident claims in New South Wales. If, in a case where liability was not in dispute, payment was made into court at the earliest possible stage and this was reinforced by awarding costs against a plaintiff who proceeded to trial and recovered no more than the amount paid in by the defendant, there would be a strong disincentive against wasteful litigation.

D. Other Modifications

4.24 In addition to modifications of the kind described above, Professor Chesterman identifies a large number of other possible changes such as more rigorous rules against double recovery and the elimination of damages for the “lost years”, subject to a provision for dependants. ⁵⁵ While we are not persuaded that the modification of the common law, however extensive, is the best way to proceed with reform in this area, the variety of measures and proposed measures canvassed in this context have influenced the shaping of our recommendations on particular forms of compensation under the Scheme.

III. NO-FAULT SCHEMES TO SUPPLEMENT THE COMMON LAW

4.25 The most obvious deficiency of the common law negligence action is that it fails to compensate, or seriously under compensates, a substantial proportion of transport accident victims. ⁵⁶ In an attempt to remedy this deficiency, yet preserve the common law negligence action for those who are able to prove fault inquiries in several jurisdictions have recommended that the common law should be supplemented by a scheme providing compensation for motor vehicle accident victims on a no-fault basis. Such schemes have been established in Victoria ⁵⁷ and Tasmania ⁵⁸ and have been recommended by the Pearson Report in the United Kingdom. ⁵⁹ Submissions which argued in favour of retention of the common law negligence action, including those of the Law Society of New South Wales,⁶⁰ and the Law Institute of Victoria, ⁶¹ generally supported the introduction of a Victorian-style no-fault scheme, possibly with some extension and modification.

A. Victoria

4.26 Legislative changes ⁶² in Victoria after the 1960 Royal Commission ⁶³ led to an increase in both the number and size of common law claims by motor vehicle accident victims. The consequent delays and increased costs prompted the establishment of the Delays Committee ⁶⁴ in 1969, which recommended a combined no-fault common law scheme for motor accident victims. ⁶⁵ The Arnold Report ⁶⁶ which followed in 1972, assumed that the common law should continue to operate alongside the proposed no-fault scheme. In 1973 a scheme was introduced along the lines recommended in those Reports. ⁶⁷

4.27 The scheme is administered by the Motor Accidents Board, a statutory authority separate from the State Insurance Office, which is the sole remaining compulsory third party insurer in Victoria. Recourse to the scheme is available to residents of Victoria injured or killed in Victoria, any person injured or killed elsewhere in the Commonwealth while driver or passenger in a Victorian registered vehicle, and to non-residents injured or killed in Victoria as the result of the use of a vehicle registered in Victoria or of an unidentified vehicle. ⁶⁸ Non-residents injured or killed in Victoria where no Victorian registered vehicle was involved, or elsewhere in the Commonwealth while not an occupant of a Victorian registered vehicle are not covered. ⁶⁹

4.28 The Board provides the following compensation on a no-fault basis:

• payments for loss of earning capacity based on pre-accident net (after tax) earnings to a maximum of $20,800; ⁷⁰
• eighty per cent of hospital medical and paramedical expenses for a maximum period of five years; ⁷¹
• where, for one month prior to the accident, the injured person was engaged mainly in unpaid housekeeping or child care, 80 per cent of costs incurred for household help or child care for a period of two years (within five years of the accident), to a maximum of $2,000; ⁷²
• eighty per cent of funeral and burial expenses to a maximum of $2,000; ⁷³ and
• a lump sum payment to the dependents of a deceased person calculated by reference to the amount payable to the victim if he or she had lived, subject to a maximum of $20,800; ⁷⁴

Certain classes of people, including unlicensed and unregistered drivers, people convicted of driving under the influence of alcohol or a drug, or driving with a blood alcohol level in excess of the 0.05 limit, and people injured while using the car in connection with an indictable offence are excluded from compensation for loss of earning capacity but may receive other forms of compensation. ⁷⁵

4.29 In 1979, section 25 of the Victorian Act was amended to provide that injured people should recover an amount up to $20,800 for deprivation or impairment of earning capacity. This section had previously provided for the compensation of employees for loss of earnings, and of the self-employed for reduction in the capacity to earn income by personal exertion subject to a statutory maximum. The reasons for this amendment are discussed in the following paragraph. The Act is now silent as to whether people not in paid employment at the time of the accident such as unpaid homemakers or the long-term unemployed, may claim benefits for loss of earning capacity. However, the Board does pay the benefit to totally permanently incapacitated children and students on the basis that they were likely to have become engaged in some occupation had it not been for the accident. ⁷⁶ Compensating the self-employed for loss of earning capacity can be a problem due to the poor records kept by small businesses. Long delays are often experienced before accurate assessment of the loss of income is made. In addition, loss of profits, loss of custom and retardation of the development of small businesses are not compensable. The following table shows the percentage of claimants within four employment categories who succeeded in recovering loss of earning capacity payments.

Table 4.1: Motor Accidents Board: Incoverage ^(a) Claimants in Employment Groups Who Received Lost Earning Capacity Payments ^(b)

Victoria 1979-1982 ^(c)

	Percentage of Incoverage Claimants Who Received Lost Earning Capacity Payments
Employment Group	1979	1980	1981	1982
Employed (d)	58.6	60.7	61.5	61.7
Self-Employed (d)	60.2	55.5	50.0	41.7
Unemployed (d)	11.6	14.7	16.2	16.5
Non-Earners (d)	2.5	3.7	4.3	4.0

(a) “Incoverage claimants” are those claimants whose payments from the Board are over a minimum level which varies from time to time.

(b) Incoverage claimants whose employment groups were not known were omitted from this table.

(c) Years ending 30 June 1979-30 June 1982.

(d) These classifications have been developed by the Motor Accidents Board. They have no legislative basis.

Source: Information provided by the Motor Accidents Board of Victoria.

The main reason for the small percentage of non-earners and unemployed people who received compensation for lost earning capacity in the year ended 30 June 1979 was that, prior to 18 December 1979, ⁷⁷ compensation was provided for lost earnings not lost earning capacity. Notwithstanding this change in 1979, the proportion of non-earners who receive such compensation has not increased very rapidly.

4.30 Section 25 of the Act was amended in 1979 principally to avoid the liability of people receiving earnings-related compensation to federal income tax on the payments, though it had beneficial side effects in relation to some injured non-earners. Although payments were calculated by reference to after-tax earnings, the Federal Commissioner of Taxation considered, and the Federal Court agreed, ⁷⁸ that the payments were made to replace lost earnings and were therefore taxable. The 1979 amendment expressed these payments to be for deprivation of earning capacity and the Federal Court has held that they are not liable to federal income tax. ⁷⁹ The Court noted that the Board is no longer “empowered to determine the appropriate amount of payment to be made to the injured person by a formula based on lost earning”. ⁸⁰ The Court continued

... the exercise in which the Board is required to engage by the Act is not merely one of assessing lost earnings. It is in fact an exercise in valuation. It is true to say that the amount of compensation payable to an injured person is quantified by a consideration of what the use of the lost or diminished earning capacity might be expected to produce. In some simple situations the amount of lost earnings may be a certain and ready guide to the amount of entitlement But the Board’s task is essential y to determine the compensation payable to a person having regard to the deprivation or impairment of his earning capacity by reason of the injury ... ⁸¹

The Court noted further that the Act did not require the payments to be made on a regular or periodic basis. ⁸² The Court concluded that these were not payments in partial substitution for earnings which would have been earned but for the accident. Instead

... the essential character of those payments is, in our opinion, as compensation for loss or impairment of earning capacity. The receipt of those payments is a capital receipt. ⁸³

4.31 The Victorian no-fault scheme does not provide compensation for non-economic loss such as pain and suffering or loss of enjoyment of life. However, where fault can be established, the injured person or the family of a person who is killed, may bring a common law negligence action. Damages will include both non-economic loss, and loss of earning capacity and other economic loss, assessed in accordance with the usual principles. Any damages awarded in the common law proceedings are reduced by the amounts which the plaintiff received or is entitled to receive from the Motor Accidents Board.

4.32 In 1981 the Victorian Act was further amended to impose positive duties upon the Board with respect to rehabilitation services. ⁸⁴ Thus the Board has a duty to design and promote a program to secure the early and effective medical and vocational rehabilitation of accident victims. ⁸⁵ The Board is empowered to provide rehabilitation services and to assist in obtaining employment for victims. ⁸⁶

4.33 To provide for rehabilitation the Board established, in 1981, a Rehabilitation Account ⁸⁷ in addition to its two existing accounts, the Special and General Accounts. The Special Account was established to meet the cost of benefits for those injuries and deaths which occurred in the first thirteen weeks of operation of the no-fault scheme. ⁸⁸ The General Account covers benefit payments and administrative expenses for accidents occurring on or after 14 May 1974. The table below shows benefits paid from each of the Special and General Accounts and total administrative costs.

Table 4.2: Motor Accidents Board: Benefits Paid and Administrative Costs

Victoria 1974-1982

Year Ended 30 June	Benefits Paid From		Administrative Costs
	Special Account $,000	General Account $,000	$,000	% (b)
1974	710.0	24.3	186.0	(25.3%)
1975	1,631.3	7,849.8	950.0	(10.0%)
1976	431.1	15,056.0	1,573.3	(10.2%)
1977	201.6	18,641.6	1,976.6	(10.5%)
1978	145.2	25,227.5	2,669.5	(10.5%)
1979	56.4	29,043.7	3,243.1	(11.1%)
1980	4.3	37,639.7	3,552.0	(9.4%)
1981	71.2	51,985.1	4,428.7	(8.5%)
1982	1.9	58,919.1	5.357.7	(9.1%)
1983	8.5	74,369.4	6,455.5	(8.7%)

(a) Administrative costs under the Rehabilitation Account were not recorded separately at 30 June 1983, mainly because this account did not operate until 22 December 1981. Any such costs to 30 June 1983 were included in the total administrative costs, which were divided between the Special and General Account.

(b) This figure is total administrative costs as a percentage of benefits paid under both accounts.

Source: Motor Accidents Board Annual Reports and the Actuary’s Report 17 September 1984 Appendix P.

The Board’s establishment costs were approximately $70,000. ⁸⁹ This figure is not included in the above table. It can be seen that, although the annual total administrative costs have risen gradually over the period, the proportion of such costs to benefits paid has tended to fall slightly.

4.34 In the year ending 30 June 1983 the Board accepted 46,279 claims and paid compensation totalling $48,109,073. That sum was distributed as shown in Table 4.3.

Table 4.3: Motor Accidents Board: Compensation Paid

Victoria 1982-1983

Type of Payment	Amount Paid $
Hospital	20,429,495
Medical	7,459,686
Ambulance	1,986,848
Loss of Earning Capacity	15,369,460
Other	2,863,585
TOTAL	48,109,073

Source: Motor Accidents Board, Statistics of Persons Killed or Injured in Road Accidents Occurring Year Ended 30 June 1983, p.1, table 2.

4.35 One major review of the Victorian no-fault scheme has taken place since its introduction. A Board of Inquiry conducted by Sir John Minogue was asked to examine the suitability of the dual scheme for present-day needs in Victoria, to consider the reasons for differences in premiums between the States, and to decide if another system of compensation should be adopted in Victoria. ⁹⁰ The Board’s attention was specifically drawn, among other things, to the possibility of providing a single no-fault scheme or a scheme in which a common law damages award was only available for non-economic loss.

4.36 The Minogue Report, which was presented in 1978, suggested substantial changes to both the no-fault scheme and the common law, including:

• extension of monetary benefits to retirement age and removal of the monetary ceiling; ⁹¹
• increased emphasis on rehabilitation in the no-fault system; ⁹²
• increase in the level of periodic payments from 80 per cent of lost income to 85 per cent after two years incapacity; ⁹³
• indexation of payments; ⁹⁴
• increased provision for household help for “as long as the requirement exists”; ⁹⁵
• retention of common law rights, but the injured person to elect within two years between no-fault and common law benefits; ⁹⁶
• power in the courts to award damages periodically, by lump sum or by a combination of these methods; ⁹⁷
• power in the courts to vary periodic awards as circumstances change; ⁹⁸ and
• a change in the funding base from fully funded to pay-as-you-go. ⁹⁹

Other difficult questions about compensation for the self-employed, compensation for lost economic potential and administrative arrangements were discussed. ¹⁰⁰

4.37 The Minogue Report was critical of the fault system for which it had difficulty finding “a convincing justification”.

It could perhaps at one time have been said with justification, that it was only just and proper that where injury and loss were suffered by a person, that loss should be shifted from the shoulders of the innocent victim to those of the party who had by his fault brought about the loss ... But since the introduction of compulsory third party insurance, that justification seems to have disappeared. The loss is now not shifted to the shoulders of the wrongdoer but distributed amongst premium paying motor vehicle owners if there has been fault on the part of someone in the handling or use of a motor vehicle. However, there may be a moral relic of the older philosophy in the notion that it is unfair that the innocent party should bear the loss which he suffers and it seems that it is upon that notion that the proponents of fault liability must rest their case. ¹⁰¹

Bearing in mind this fact and the proposed extensions to the no-fault scheme, the Board of Inquiry concluded that common law damages should remain for the moment, but that people should be given the election because it was

... both costly and unsatisfactory from an administrative point of view to have the two systems of compensation lasting indefinitely side by side and further it sees no reason why a claimant should be tempted to use the processes of the court to test whether he can do better by such means than under a no-fault scheme and if he fails or does not receive as much as he expected to then go back and resume payments under the no-fault scheme. ¹⁰²

Notwithstanding the detailed exposition and proposals, few of the Minogue Reports recommendations have been implemented. The notable exceptions are the proposals relating to the rehabilitation of accident victims. ¹⁰³

4.38 In a recent paper on suggested amendments to the Victorian scheme, ¹⁰⁴ the Law Institute of Victoria has made the following proposals:

• an increase in the maximum payment for loss of earning capacity (after tax) from $20,800 to $28,900 and a corresponding increase in the maximum lump sum death benefit payable to dependents; ¹⁰⁵
• indexation of periodic payments; ¹⁰⁶
• provision for extension of payments for lost earning capacity, household help and child care beyond the maximum limit, on application byway of a case stated to the Motor Accidents Tribunal; ¹⁰⁷ and
• a right to apply to the Motor Accidents Board for the continuation of payment of hospital, medical and paramedical expenses beyond the five year period. ¹⁰⁸

These proposals are referred to further in paragraph 6.8.

B. Tasmania

4.39 The Tasmanian scheme is similar to that operating in Victoria, although there are significant differences. The Tasmanian Motor Accidents Insurance Board is a statutory authority responsible for administering both the no-fault scheme and the compulsory third party motor vehicle insurance system. ¹⁰⁹ This arrangement is claimed to be more efficient than the Victorian system where compensation and insurance are administered by different organisations. ¹¹⁰ The Tasmanian scheme indemnities vehicle owners in respect of their common law liability to victims of motor accidents occurring in Tasmania, ¹¹¹ although the Board has a discretion with respect to vehicles registered outside the State. ¹¹² Medical, funeral and death benefits, and disability allowances are extended to residents of Tasmania injured or killed in the State, or elsewhere in the Commonwealth in a Tasmanian vehicle, as well as to non-residents injured or killed in Tasmania as a result of the use of a Tasmanian vehicle. ¹¹³

4.40 The benefits under the scheme include the following.

• Periodic payments made to those people wholly disabled in vehicle accidents. The disability allowance is 80 per cent of an earners average net weekly pre-accident earnings. For the first 104 weeks it is payable where an employed or self-employed person is wholly disabled from engaging in his or her usual occupation or business. Thereafter the allowance is payable while the injured person is wholly disabled from engaging in any employment or occupation for which he or she would, but for the disability, be reasonably suited. ¹¹⁴
• A housekeeping allowance of 80 per cent of replacement cost may be paid for 104 weeks where the injured person was engaged in specified housekeeping activities at the time of the accident. ¹¹⁵ Unlike the Victorian scheme, in Tasmania compensation is not payable to a child or student for the deprivation or reduction of earning capacity.
• Benefits in the event of the death of a family member include a lump sum up to $10,000 for a surviving head of household plus a further $2,000 for each dependent. In addition, periodic allowances may be paid for up to two years. ¹¹⁶
• Allowances are not indexed for inflation in contrast to the situation in Victoria. ¹¹⁷
• All medical expenses reasonably incurred up to a limit of $25,000, ¹¹⁸ and contributions to funeral expenses. ¹¹⁹

These benefits are not payable to, or in respect of, persons injured or killed as a result of intentionally causing or attempting to cause injury to themselves or others, ¹²⁰ or in the course of committing an offence of dishonesty or violence. ¹²¹ Medical benefits and the disability allowance are also withheld from drunker dangerous and unlicensed drivers. ¹²²

4.41 In 1981-82, 3,547 claims for statutory benefits were lodged with the Board. ¹²³ Statutory benefits paid in that year totalled just over $3 million. ¹²⁴ Sixty per cent of that amount was paid for medical and related expenses. ¹²⁵ The annual levy on motor vehicle owners to finance the operations of the Board is very low by Australian standards, being $63 for a private vehicle in April 1982, ¹²⁶ compared with $149 at that time for a private vehicle in the Sydney metropolitan area. In its Annual Report for 1982, however, the Board recorded a substantial loss ¹²⁷ blaming, among other things:

• claims with respect to off-road vehicles which do not have to be registered and yet are covered by the scheme; ¹²⁸
• large and rapid increases in hospital and medical expenses; ¹²⁹ and
• the economic situation which makes it difficult for partially-incapacitated people to re-enter the workforce leaving them instead, to continue to be dependent on disability allowances. ¹³⁰

Of a premium income of almost $13.5 million in 1981-82, the Board’s operating expenses took 6.3 per cent. ¹³¹ Claims paid in that year exceeded premium income by about $0.5 Million. ¹³²

IV. NO FAULT-SCHEMES REPLACING THE COMMON LAW

4.42 Most reports concerned with compensation for transport accident victims have discussed whether no-fault benefits should operate in substitution for the right to claim damages at common law. Even in jurisdictions which have adopted a no-fault scheme as a supplement to the common law negligence action official bodies have either recommended or supported in principle no-fault arrangements which replace the common law negligence action. For example, in Tasmania, a majority of the Committee whose report preceded the introduction of the dual scheme in 1973, came

... to the clear conclusion that the defects of the tort liability system in relation to compensation for motor accident victims are so substantial and the operation of that system so ineffective, that it should be almost wholly replaced in favour of a no-fault system of compensation available in virtually all cases. 133

This recommendation of the Committee, whose members included representatives of the Bar Association and the Law Society of Tasmania was not, however, accepted. Consequently the common law remedy remains in Tasmania, alongside a no-fault scheme which also differs substantially from that proposed by the Committee.

4.43 In Victoria, the Delays Committee, whose work is referred to in paragraph 4.26, was more cautious in its 1969 Report. Having set out the requirements of “an ideally satisfactory system of road accident insurance”, ¹³⁴ they stated that

... such a system would be on a completely different basis to that currently in operation based on fault with a once only settlement basis. In effect it would attempt to continually correct the changed financial situation, as assessed, of all victims of road accidents. ... At this stage it is felt that the community is probably not ready to meet the costs or implications of such a system and that some adjustment to the present fault system to overcome the hardships involved in delays in settlement would be more likely to prove acceptable at the present time. 135

The Committee did, however, anticipate that in the future a system which pays benefits to motor vehicle accident victims irrespective of fault may be gradually accepted as being in “society’s interest”. ¹³⁶ We referred in paragraph 3.77 to criticisms in the Minogue Report of the common law action.

4.44 In Australia only the Northern Territory has replaced the common law with a no-fault scheme as a remedy for victims of transport accidents. In 1979 the Bradley Report, which examined compensation for transport accident victims, rejected in principle the suggestion that common law remedies should be abrogated, arguing that common law assessment of damages was most suited to considering fully the effects of an accident in an individual. ¹³⁷ The Committee recommended retention of common law damages with the imposition of a ceiling of not less than $200,000 (the Committee preferred $300,000), limitations upon the availability of compensation for medical and other expenses, and the removal of hospital expenses from both no-fault and common law compensation. There was also to be a limit of 104 weeks on compensation for loss of income. However, the Report was not accepted by the government of the day. In tabling the Report, the Chief Minister of the Territory rejected the continuation of the common law as a means of compensating economic loss.

The government is committed to the principle that every Territorian injured in a vehicle accident should receive necessary hospital, medical and rehabilitative services, and, if earning capacity is diminished, he or she should receive regular compensation out of a common pool of contributions to relieve hardship for so long as that disability persists. I cannot, therefore, accept an arbitrary time limit to an entitlement to compensation after which those victims without a right of action are thrown onto the social services scrap heap...138

The Chief Minister also emphasised the fact that damages awards, although large, might not prove adequate to meet the needs of the claimant and noted the substantial losses incurred by third party motor vehicle insurers (related to the Territory’s sparse population and high accident rate), ¹³⁹ and the delays and expenses associated with complex court proceedings.

4.45 When it was first introduced, the Northern Territory scheme retained the common law negligence action for pain and suffering and loss of enjoyment of life, for which damages were limited to $100,000. ¹⁴⁰ However, common law rights have now been abolished and the scheme provides a lump sum for scheduled permanent disabilities up to a current maximum of $50,000. ¹⁴¹ This form of compensation had only been previously available where the accident victim was prepared to forego the residual common law right (if any) to damages for pain and suffering and loss of enjoyment of life.

4.46 The Northern Territory scheme is administered by the Territory Insurance Office. ¹⁴² Benefits provided by the scheme, in addition to the lump sum for permanent disability, include the following:

• compensation to people in employment at the time of their accident for reduced capacity to earn income at a level which is equivalent to the difference (after tax) between 85 per cent of the equivalent Territory male or female average weekly earnings and the amount the accident victim is capable of earning in employment whilst incapacitated. ¹⁴³ Such benefits commence seven days after the accident ¹⁴⁴ and continue during incapacity until age 65. ¹⁴⁵ Periodic payments in respect of incapacity are indexed on an annual basis;
• payment for the medical treatment of accident victims to a limit of $50,000 for any one accident. ¹⁴⁶ Standard hospital charges for those people who are not Commonwealth assisted patients and are not otherwise indemnified may also be paid; ¹⁴⁷
• benefits for home and vehicle modifications and also for the supply of aids and appliances to a ceiling of $20,000; ¹⁴⁸
• periodic payments for loss of earning capacity may be commuted to a lump sum by the Board ¹⁴⁹ (if each payment is very small) or at the request of the beneficiary; ¹⁵⁰
• benefits in the event of death including:
  
  (a) in the case of the death of a head of household-an income-related benefit to the dependent spouse;

  (b) in the case of the death of a dependent spouse-a modest lump sum;

  (c) in the case of the death of a child-a small weekly benefit to any dependent parent; and

  (d) in the case of the death of a person leaving dependent children-the same small weekly sum for the benefit of each dependent child, ¹⁵¹ and

• in addition, a contribution is made to funeral expenses. ¹⁵²

4.47 The benefits of the scheme extend to residents of the Territory only, provided the accident occurred in the Territory or as a result of the use of a vehicle registered in the Territory. ¹⁵³ Non-residents will be covered only if it is considered that they are likely to reside in the Territory for a period not less than six months after the date of the accident. ¹⁵⁴ No benefits under the Act will be extended to, or in respect of, people injured or killed while using a motor vehicle in the course of committing an indictable offence, resisting arrest, or inflicting injury on him or herself, or another. ¹⁵⁵ Compensation for loss of earning capacity and lump sum compensation for permanent disability are withheld from drunken, reckless, dangerous and unlicensed drivers. ¹⁵⁶

V. COMPREHENSIVE NO-FAULT SCHEMES

4.48 There have been two major reports proposing the establishment of a comprehensive no-fault system of compensation-one in New Zealand and one in Australia. The proposals were comprehensive in the sense of providing compensation to all accident victims regardless of the cause of their injuries. In the Australian proposals such compensation was also to be extended to those who suffered incapacity through illness. Both the New Zealand Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand, and the Australian National Committee of Inquiry into Rehabilitation and Compensation were chaired by Justice A O Woodhouse of New Zealand and shared a common underlying philosophy.

• Community responsibility for all people suffering disability by reason of accident.
• Comprehensive entitlement, requiring equal treatment for equal claims, whatever the cause of the incapacity.
• Complete rehabilitation, so that every injured person recovers the maximum state of health, vocational utility and social well-being at the earliest time.
• Real compensation providing income-related benefits during the period of incapacity and the opportunity for incapacitated persons to maintain living standards.
• Administrative efficiency allowing the economic collection and distribution of funds. ¹⁵⁷

A. New Zealand

4.49 The New Zealand Woodhouse Report was presented to Parliament in 1967. The terms of reference of the Royal Commission, which had been established in 1966, related specifically to industrial injuries, ¹⁵⁸ but the Report went much further. By contrast with the narrow interpretation later applied by the Pearson Royal Commission in the United Kingdom to its much wider terms of reference, ¹⁵⁹ the members of the New Zealand Royal Commission stated that

... we have found it essential to examine the social implications of all the hazards which face the workforce, whether at work or during the remaining hours of the day. Only by doing this have we been able to make recommendations which we believe can be handled comfortably by the country in terms of cost, and which will provide a coordinated and sensible answer to a series of interrelated and complex problems. 160

This led the New Zealand Royal Commission to recommend a comprehensive no-fault scheme of accident compensation which would provide earnings-related compensation to all accident victims. All members of the community would be covered, twenty-four hours a day, seven days a week. The right to claim common law damages for negligence was to be removed, since the new scheme provided compensation to accident victims independently of the need to prove fault. The workers’ compensation system was to be dismantled. Injured workers would receive greater benefits under the comprehensive scheme (workers’ compensation payments at the time were low by Australian standards).

4.50 The main recommendations of the New Zealand Woodhouse Report were:

• an integrated program of safety, rehabilitation and compensation;
• abolition of the common law remedy;
• periodic earnings-related compensation for earners at a level of 80 per cent of previous net income within the upper limit prescribed;
• for non-earners, periodic flat-rate compensation and a lower limit to compensation equivalent to single persons’ sickness benefit;
• compensation for permanent disability, by additional periodic payment;
• small lump sums for minor permanent disabilities;
• automatic adjustment of periodic compensation at two-year intervals in accordance with the Consumer Price Index;
• payment of all medical fees and provision of free hospital care under the national health services;
• provision of rehabilitation expenses and attendant care as needed; and
• provision for dependent survivors where a person is killed. ¹⁶¹

When the scheme was finally implemented after wide scrutiny by a number of committees, organisations and individuals, it was considerably different in detail from the Royal Commission’s proposals, though in its 1974 form it retained most of the philosophical essence of what the Report called its “single purpose” of providing:

24-hour insurance for every member of the work force, and for the housewives who sustain them. 162

4.51 The first step towards implementation of the Report was its examination by an Interdepartmental Committee of Public Servants which presented two reports, in 1968 and 1969. ¹⁶³ Secondly, a White Paper was published in October 1969 covering

... the form in which the scheme envisaged by the Royal Commission would operate, if adopted, and dealing with variants or alternatives which might be preferred, and especially the question of cost. 164

At the same time, a ten-member Parliamentary Select Committee, under the chairmanship of Mr G F Gair, was formed to “consider and report” on the New Zealand Woodhouse proposals and the subsequent White Paper. The Gair Committee Report, tabled in November 1970, ¹⁶⁵ favoured a more limited scheme than that proposed by the New Zealand Royal Commission. It recommended a scheme covering all earners 24 hours per day and all people injured in motor vehicle accidents, ¹⁶⁶ whether earners or not. Common law remedies were to be retained for all non-earners injured in non-motor vehicle accidents. ¹⁶⁷ Legislation based upon this Report was introduced in December 1971, ¹⁶⁸ and was again referred to a special Parliamentary Select Committee, chaired by Mr A A C McLachlan. ¹⁶⁹ This committee recommended many amendments during its nine months of consideration and the Bill in final form was presented to and passed by Parliament in October 1972. Before the Accident Compensation Act 1972 (NZ) commenced on 1 April 1974, the new Labor Government enacted substantial amendments. ¹⁷⁰ The amendments included some cover for non-earners, but stopped short of implementing the New Zealand Royal Commission recommendation of periodic payments for non-earners. ¹⁷¹ Injured non-earners were, and are still limited to lump sum benefits for non-economic loss and medical and rehabilitation expenses. ¹⁷²

4.52 A Committee to examine the extension of the scheme to incapacity arising from illness was established in 1975, but following another change of government at the end of 1975, the Committee was disbanded in early 1977. ¹⁷³ It was decided in 1979 to set up a Government Cabinet/Caucus Committee to review the operation of the Accident Compensation Act since 1974. The Committee was chaired by Mr D F Quigley and it reported in October 1980. ¹⁷⁴Having reaffirmed the acceptance of the no-fault concept and the New Zealand Royal Commission’s five basic principles ¹⁷⁵ it recommended, among other things:

• the establishment of an Accident Compensation Corporation in substitution for the existing Accident Compensation Commission; ¹⁷⁶
• the abolition of lump sums for minor permanent disabilities of less than 15 per cent; ¹⁷⁷
• an increase in the maximum lump sum for permanent disabilities from $7,000 to $17,000; ¹⁷⁸
• the abolition of lump sum compensation for pain and suffering; ¹⁷⁹
• the introduction of exclusions from compensation where a person is injured in the commission of a crime, for which he or she is convicted and imprisoned; ¹⁸⁰
• the introduction of a two-week waiting period for periodic compensation following a non-work accident; ¹⁸¹ and
• the gradual movement from a fully funded to a pay-as-you-go scheme. ¹⁸²

4.53 Some of the recommendations of the Quigley Committee have been implemented and were incorporated into the new consolidated and reorganised Accident Compensation Act 1982. ¹⁸³ For example, a threshold of 5 per cent disability has been introduced for the lump sum for permanent impairment, ¹⁸⁴ and its size has been increased to $17,000, ¹⁸⁵ but the pain and suffering award of up to $10,000 remains. ¹⁸⁶ The Commission has become a Corporation, ¹⁸⁷ and an exclusion covering those injured in the course of criminal conduct, for which they are convicted and imprisoned, has been introduced where it “would be repugnant to justice” for the compensation to be paid. ¹⁸⁸ The new Act also incorporates other changes to methods of assessments administration and benefits. ¹⁸⁹

B. Australia

4.54 After the election of a Labor Government in 1972, justice Woodhouse was asked to chair the National Committee of Inquiry into Rehabilitation and Compensation for personal injury in Australia. ¹⁹⁰ The original terms of reference received in 1973 ¹⁹¹ did not include compensation for sickness, but were extended in 1974 to cover this area. ¹⁹² The three-volume Australian Woodhouse Report was tabled in July 1974, ¹⁹³ and the National Compensation Bill 1974 194 was introduced to the House of Representatives in October 1974. ¹⁹⁴ The report and subsequent Bill embodied the five principles noted earlier, and was designed to be “universal and comprehensive”, providing coverage to all members of the community at all times regardless of the cause of incapacity or disability. It acted upon the premise that

... needs of men and women are not mitigated by the chance visitation of sickness rather than injury. A man hit by disease is no more able to resolve his problems than his neighbour hit by a car. In terms of equity, therefore, and as a matter of logic, there should be equal treatment for equal losses. 195

In this regard, it was a considerably wider proposal than its New Zealand counterpart.

4.55 The main features of the scheme were similar to that proposed in New Zealand, although they differed in detail:

• the common law negligence action was to be abolished;
• earners were to receive earnings-related compensation at a level of 85 per cent of gross earnings;
• benefits were to be taxable;
• weekly benefit limits (in 1974 dollars) were to be $50 minimum to $500 maximum;
• benefits were to be adjusted automatically in line with the Consumer Price Index, with an additional 1 per cent per annum increase to take account of increases in living standards;
• health care costs were to be met through Medibank;
• compensation by periodic payments for permanent partial incapacity was to be related to degree of impairments; ¹⁹⁶ and
• compensation was to be provided to surviving dependents on the death of an injured person. ¹⁹⁷

4.56 The Bill introduced in October 1974 was in similar terms to the Committee’s draft legislation, although the intention was that only the accidental injury component of the scheme would come into force immediately. The Bill was passed by the House of Representatives, in which the Government had a majority, but was referred by the Senate to the Standing Committee on Constitutional and Legal Affairs. The Committee reported in July 1975 that the bill should be withdrawn and redrafted. ¹⁹⁸ It was critical of several aspects of the 1974 Bill notably the lack of information as to the financing of the scheme, the dubious constitutionality of some key provisions and the effect of the proposal on the insurance industry. The Senate Committee specifically recommended that the proposals relating to sickness be reconsidered with respect to cost and economic practicability and that the operation of the scheme be delayed sufficiently to enable the important constitutional issues to be resolved by the High Court.

4.57 The Senate Committee’s Report prompted a reconsideration of the legislation and a revised proposal was developed relating only to incapacity and death caused by injury. At the time of the Labor Governments dismissal from office in November 1975, the revised Bill was ready to be introduced into Parliament Cost estimates and financing proposals for the revised scheme were tabled in the Senate by the then Minister of Repatriation and Compensation in October 1975. ¹⁹⁹ In February 1977 the then Leader of the Opposition (the former Prime Minister Mr E G Whitlam QC) introduced a Private Membef s Bill which, in substance reproduced the legislation which had been awaiting introduction into Parliament in November 1975. ²⁰⁰ The Private Member’s Bill was not supported by the Government and therefore was not enacted.

4.58 Following the defeat of the Whitlam Bill, little progress occurred or seemed likely to occur at a Commonwealth level in relation to any comprehensive accident compensation reform initiative until early 1983, when another labor Government was elected. The platform of the new Labor Government recognises the difficulties which would be encountered in attempting to introduce a national scheme. The platform continues:

It seems apparent that the common law fault principle cannot be eliminated in all fields overnight. Accordingly, Labor will adopt a step-by-step approach in which the three major problem areas-motor accidents, industrial accidents, and ‘other accidents’ (including criminal sporting and domestic injuries)-are tackled successively rather than all at once. Labor’s ultimate objective is to have an integrated Commonwealth-State nationwide scheme which ensures speedy compensation at reasonable levels for all persons injured in any kind of accident ... As presently contemplated, the proposed Commonwealth-State model will involve successive adoption of the following steps: (i) no-fault motor accident compensation scheme to be introduced, accompanied by abolition of common law claims arising from such accidents; (ii) increase workers’ compensation benefits under existing statutory system to match bench-marks set by motor accident scheme; (iii) extend workers’ compensation to 24-hour-a-day cover for earners, with abolition of common law claims; (iv) 24-hour-a-day cover for non-earner non-road accident victims. 201

VI. PROPOSALS IN NEW SOUTH WALES

4.59 In Chapter 2 the principles and practices governing compensation for transport accident victims in New South Wales were outlined. Unlike other Australian jurisdictions, there has been relatively little interference with the common law negligence action, either by way of statutory modification to the manner in which compensation is assessed and paid (as has occurred in South Australia and Western Australia) or through supplementary no-fault schemes (as in Victoria and Tasmania). We have referred already to changes that have occurred in New South Wales (paragraphs 2.25-2.35) or have been recommended, such as the proposal by this Commission in its 1969 Working Paper on Deferred Assessment of Damages for Personal Injuries that the courts have power to defer the assessment of damages in appropriate cases (paragraph 4.10). This section briefly outlines proposals for change in New South Wales, not all of which have been made public, from the time of the publication of the Working Paper in 1969 to the making of the reference to this Commission.

4.60 After completion of the 1969 Working Paper this Commission continued work on the topic of assessment of damages until October 1972, when a consultative committee, under the chairmanship of the then Justice C L D Meares who was Chairman of the commission at that time, was established to consider no-fault compensation for motor vehicle accident victims. The committee was constituted to advise the Commission

... on the feasibility of establishing a scheme, funded by insurance, under which compensation would be payable, regardless of fault, in respect of the death of or bodily injury to a person caused by or arising out of the use of a motor vehicle. 202

Specific questions referred to the committee were:

1. The nature, extent and limits, if any, of compensation to be provided. 2. In what cases, if any, the right to compensation under the scheme should be excluded. 3. Before what courts or tribunals and by what methods any dispute as to the right to or measure of compensation payable under the scheme should be determined. 4. By what methods of insurance the scheme should be funded. 5. An estimate of the premiums which may be payable in order to establish the financial viability of the scheme. 6. The relationship between rights to damages in tort and right to or payment of compensation under the scheme. 203

4.61 The committee was disbanded in January 1973 when its work was superseded by the establishment of the Australian Woodhouse Committee, the membership of which included Justice Meares. After the Australian Woodhouse Committee reported in 1974, the New South Wales Government sought advice on the constitutionality of the draft National Compensation Bill which was under consideration by the Australian Government The Bill was also discussed by an interdepartmental committee established in 1974 by the New South Wales Government. This committee expressed grave concern at the ramifications for the New South Wales insurance industry if the draft Bill were to be passed unamended. ²⁰⁴

4.62 Early in 1975, the General Manager of the GIO wrote to this Commission which was then working on a reference on court procedures, proposing simplified procedures in motor vehicle accident cases. ²⁰⁵ Under the procedures, which were designed to curtail escalating costs and delays, the injured person was to claim directly against the third party insurer. The GIO proposed that there should be a period of three months after a claim was made against the GIO during which period no action would lie at common law. This was designed to discourage motor vehicle accident victims from automatically instructing solicitors, since no legal costs incurred in that period would be payable by the GIO and any court action would be limited to the difference between the amount claimed and the amount paid on the claim by the insurer. Thus, where the insurer was prepared to accept liability fora reasonable sum, legal action would serve little or no purpose. In the first instance an action was to be heard by a court officer such as a Master, Registrar or Adjudicator, with an incentive to accept the decision of that officer in the form of a fixed lump sum for costs. A sanction of costs would be imposed if the adjudicator s decision was not accepted and the case went to a court hearing. ²⁰⁶

4.63 Later that year the Attorney General was asked to consider, as a matter of urgency, the practicality of the GIO proposal. ²⁰⁷ The following points were made in a departmental memorandum in response to the proposal

• All States had rejected the recommendation of the Australian Woodhouse Committee to abolish common law actions.
• The GIO proposal while similar in some respects to the approach of the Australian Woodhouse Committee’s inquiry, did not involve abolition of fault liability.
• The GIO proposal could be regarded as a useful transition to the national scheme in that it would allow for “tapering off” of common law actions.
• Alternatively, if the national scheme did not go ahead, the GIO proposal could be regarded as a “mini-Woodhouse” for New South Wales(although this seems to have been a somewhat overstated description).

Accordingly, the Attorney General instructed his department to prepare draft amending legislation. ²⁰⁸ However, this action was pre-empted by the defeat of the then Liberal Government at the elections in March 1976.

4.64 During the 1976 election campaign as a result of which it gained government the Labor Party promised that third party motor vehicle premiums would be “pegged”. ²⁰⁹ In 1977 the Motor Vehicles (Third Party Insurance) Act, 1942, was amended to introduce a formula for calculating the adjustment of premiums each year by reference to the Consumer Price Index (all Groups Index) for Sydney, published by the Australian Statistician. ²¹⁰

4.65 In October 1976 the New South Wales Labor Council made submissions to the Attorney General on the proposed National Compensation Scheme and the continuing role of the State in relation to compensation. The Council stated that the benefits conferred by the National Scheme should be in addition to, and neither in substitution for, nor less than, already existing rights and entitlements. The Council called for the New South Wales Government to give consideration to the feasibility of establishing its own scheme with appropriate priorities for accident prevention and rehabilitation. ²¹¹ The approach from the Labor Council revived the Attorney Generals interest in a no-fault scheme for New South Wales and it was suggested that a State inquiry should be established. However, no public inquiry was set up.

4.66 In the 1978 State election campaign the Government foreshadowed proposals for a no-fault scheme for motor vehicle accident victims where no common law remedy was available. ²¹² Compensation levels were to be similar to those available under the Sporting Injuries Compensation Scheme. ²¹³ Further proposals for a no-fault scheme were submitted to the Minister of Transport by the GIO in 1979. ²¹⁴ Under the scheme, benefits would be paid in respect of death or injury to a person caused by or arising out of the use of a motor vehicle on a public street without the need for the claimant to establish fault on the part of another. The recommended benefits were equivalent to the lump sum payments, but not the periodic earnings-related benefits, available under the Workers’ Compensation Act, 1926. Reasonable medical, hospital and related expenses would also be paid. Those with a right to claim workers’ compensation benefits were to be excluded and people who had an action at common law were to retain this right. Lump sums paid under the scheme would be repaid out of a later common law award or settlement The scheme was to be financed from third party premiums. ²¹⁵ An Interdepartmental Committee was formed comprising representatives of the Department of Motor Transport the GIO, the Department of the Attorney General and of Justice, the Public Transport Commission and the Ministry of Transport, to consider the scheme proposed by the GIO.

4.67 The interdepartmental Committee held its first meeting on 12 September 1979 and its second meeting on 14 November 1979. Arising out of these meetings, a Cabinet Minute was prepared and submitted by the Minister for Transport proposing legislation for a no-fault compensation scheme for death or injury arising out of a motor vehicle, but confined to those who could not obtain compensation under the existing law. The proposals broadly adopted the GIO’s suggestions. That Minute was considered by Cabinet on 26 February 1980 when it was deferred. It was finally withdrawn on 13 January 1981.

4.68 From December 1979 to April 1981, the GIO continued to express concern at the escalation of third party claims, particularly through court decisions which appeared to increase damages awards in respect of future economic loss. In August 1981, a four member committee was established, with the approval of the Premier and the Treasurer, to advise on

• the desirability of legislating “as an interim measure” to provide that in calculating damages for future economic loss a discount rate of five per cent should be applied; and
• the whole question of lump sum verdicts, ways of limiting the effect of recent decisions and alternative schemes to compensate persons sustaining personal injury in circumstances giving rise to actions at Common Law. ²¹⁶

The Committee made two brief Reports, in September 1981 and in October 1981.

4.69 The first Report considered the escalation of insurance claims, especially in third party and workers’ compensation cases. After considering the Barrell Insurance Case, ²¹⁷ which had been decided a short time earlier, the committee recommended that a discount rate of 5 per cent be adopted in New South Wales. On 10 November 1981, Cabinet approved the preparation of legislation to give effect to this proposal. However, on 16 August 1981 the High Court handed down its judgment in Todorovic v. Waller ²¹⁸ which provided for a discount rate of 3 per cent-in personal injury cases. Drafting of the legislation was then deferred.

4.70 TheCommittee’ssecondReportnotedthebasiccommonlawprinciplethataplaintiff in an action for personal injuries must receive damages in the form of a lump sum paid on a once-and-for-all basis. The Committee referred to the main deficiencies associated with the common law principle concerning the assessment of future economic loss, and questioned the ability of the community to afford payments of the magnitude awarded by New South Wales courts in 1981. The Report rejected a no-fault scheme as a solution to the problems identified, on the ground that such a scheme was likely to prove too expensive, although no costing was attempted in the Report. Instead the Committee discussed the means by which the common law negligence action could be modified, specifically in relation to cases involving serious incapacity or disability. The Committee renewed the recommendation for a 5 per cent discount rate. It also recommended that the court should be empowered to order the defendant to pay the plaintiffs future medical and related expenses as and when these expenses arose, rather than pay them in a single lump sum.

4.71 On 10 November 1981, shortly after receiving the committee’s second Report Cabinet authorised the giving of a reference to the New South Wales Law Reform Commission to inquire into accident compensation, and on 12 November, the current reference was formally given to the Commission. We have referred already to the legislative action taken independently of the work of the Commission during the course of this reference. ²¹⁹ One of the most significant changes is the raising of the discount rate to 5 per cent, a measure advocated in the first and second reports of the 1981 committee (paragraphs 4.69-4.70).

VII. SUMMARY

4.72 This Chapter describes the most important responses to the acknowledged deficiencies of the common law negligence action. A number of examples can be found of modifications to the common law rules of assessment Interim awards and periodic payments, instead of the once-and-for-all lump sum, have been provided for by statute in Western Australia and South Australia and have been recommended elsewhere. The once-and-for-all lump sum has begun to be circumvented by the use of structured settlements. Other modifications to common law damages which have been suggested include limiting or abolishing particular heads of damage, such as pain and suffering. Another shortcoming of the common law is unnecessary delay in the conduct of proceedings. A number of improvements in this regard have been suggested, ranging from more efficient use of medical evidence to the expansion of informal pre-trial procedures to reduce the number of cases reaching court.

4.73 No modification of the common law negligence action can over come its most serious deficiency, namely, its failure to compensate a substantial number of transport accident victims. This can only be remedied by supplementing the common law action, or replacing it altogether, with a no-fault system of compensation. The former solution has been adopted in Victoria and Tasmania where all motor accident victims are entitled to limited no-fault benefits. To obtain additional compensation the accident victim must rely on the common law negligence action and thus must be able to establish fault In the Northern Territory, a no-fault scheme for motor vehicle accident victims has now replaced the common law. A comprehensive no-fault scheme for all accident victims has operated in New Zealand since 1974 and a similar scheme was recommended for Australia by the Australian Woodhouse Committee of Inquiry in 1974. The National Compensation Bill 1975, which adopted these recommendations, providing a universal and comprehensive coverage for all forms of incapacity and disability caused by accidental injury, was not enacted after the change of government in November 1975.

4.74 Except for legislative modifications to particular heads of damage, no significant reform of the common law negligence action as it applies to transport accidents has occurred in New South Wales. This Commission produced a Working Paper on deferred assessment in 1969 and during the 1970 as the GIO put forward a proposal for simplified procedures. A no-fault scheme was foreshadowed by the Government in 1978 and a limited scheme was drafted, but the proposal was abandoned in 1981. In the meantime, the GIO initiated further consideration of measures to reduce the cost of motor vehicle third party insurance. Some of these measures, such as increase in the discount rate designed to reduce the level of damages in serious cases, have been introduced since the receipt of the current reference by the Commission.

1. Pearson Report, vol.1, para.2.

2. See eg. Report of the Royal Commission on Automobile Insurance (British Columbia 1968): Ontario Law Reform Commission, Report on Motor Vehicle Accident Compensation (1973), Report of the Committee of Inquiry on Automobile Insurance (Quebec 1974).

3. See eg. New York State Insurance Department, Automobile Insurance... For Whose Benefit? (1970); US Department of Transportation, Automobile Insurance and Compensation Study: Economic Consequences of Automobile Accident Injuries (1970).

4. See paras.4.5-4.6.

5. See para.4.7.

6. Report of the Royal Commission on Motor Car Third-Party Compulsory Insurance (1960): see also Report of the Victorian Chief Justice’s Law Reform Committee Subcommittee, Damages by Way of Periodical Payments (1968).

7. New South Wales Law Reform Commission. Deferred Assessment of Damages for Personal Injuries and Interim Payments During the Period of Postponement of Assessment (1969).

8. Law Reform Commission of Tasmania, Compensation for Personal Injuries Arising out of Tort (1980).

9. Western Australia Law Reform Committee, Project No. 5-Damages in Personal Injury Claims-Report (1969).

10. In 1966 the relevant powers were conferred on the Third Party Tribunal. In 1972 the Tribunal was abolished and the powers transferred to the courts.

11. See Motor Vehicle (Third Party Insurance) Act 1943-1976 (WA), s.16(4).

12. See note 9 above, para 1.

13. Id., para.7.

14. Id., para.18.

15. Id., para.29.

16. Id., para.36.

17. Id., paras.49-50.

18. Justice A K Sangster, Compensation to Road Traffic Victims-A Paper Proposing Abolition of Common Law Liability and Dealing with Other Matters (1983), annexure L, p.5.

19. See eg. Nathan and James v. Vos [1970] SASR 455; Grabkowski v. Maichrowski (1978) 19 SASR 290.

20. Letter to this Commission from the Law Reform Committee of South Australia, dated 2 February 1982.

21. Pearson Report, vol.1, ch.14; and p.375, recommendations 40-42. At the courts discretion, periodic payments could be extended to cases where the injuries were not serious and lasting: recommendation 43.

22. Id., recommendation 44.

23. Id., recommendations 45-46.

24. Id., recommendation 48.

25. Section 6 is not yet in force.

26. Law Commission, Report on Personal Injury Litigation-Assessment of Damages (Law Com. 56 1973), p.66, recommendations 239-243.

27. Royal Commission Report, see note 6 above, p.4.

28. Id., p.40.

29. The Working Paper was prepared by R.W. Baker, Q.C.

30. Board of Inquiry into the operation of the Third Party/No Fault Insurance Premiums Scheme in Tasmania. The Chairman is Mr C Brettingham-Moore.

31. The Board incurred a $22 million dollar loss in the financial year ended 30 June 1982, following a $10 million dollar loss in the previous year. See Motor Accidents Insurance Board, Annual Report for Year Ended 30 June 1982, revenue statement.

32. In the United States, most settlements involving minors require court approval. See eg. D Moore, “The Use of Annuities in the Settlement of Personal Injury Cases” (1982) Insurance Counsel Journal 50, at p.55.

33. For some examination of different types of settlements, designed with this and other purposes in mind, see eg. E McGinn, “Structuring Settlements-Old Concept: New Approach” (1982) 18 Trial 58; C Krause, “ Structured Settlements for Tort Victims” (1980) 66 American Bar Association Journal 1527; F McKellar, “Structured Settlements-A Current Review” [1979-81] Advocates Quarterly 389, and E. Veitch, “Cosmetic Reform: Periodic Payments and Structured Settlements” (1982) 7 University of Tasmania Law Review 136.

34. Archer v. Richards, 28 June 1984, terms of settlement lodged in Supreme Court of New South Wales. Common Law Division.

35. See para.2.32.

36. Royal Commission Report, note 6 above, p.4.

37. Id., p.24.

38. Pearson Report. vol.1, p.373, recommendation 9.

39. Id., p.373, recommendation 11.

40. Id., paras.373-381, 448-464.

41. Id., p.373, recommendation 10. See also paras.390-392.

42. Motor Accidents (Compensation) Act 1979 (NT), s.39(1).

43. Pearson Report, vol.1, paras. 377-379.

44. Australian Financial Review, 5 December 1983, p.12.

45. Pearson Report, vol.1, ch.12 and p.372, recommendation 6.

46. Administration of Justice Act 1982 (UK), s.1 which came into effect on 1 January 1983.

47. See para. 11.30.

48. See paras. 3.84-3.89.

49. J C S Burchett, QC, Common Law Proceedings in Respect of Personal Injury-Consideration of Procedural Problems (unpublished Commission document), p.19.

50. Letter from I.M. Dunn, 28 June 1983, p.4.

51. See note 49 above, pp.28-30. See also Law Society of New South Wales, “Transport Injury Compensation Scheme” (April 1984), para.3.6.4.

52. For a discussion of the system see “Compulsory Arbitration of Civil Claims up to $10,000” (1983) 21 Law Society Journal 234.

53. See Law Society of New South Wales, note 51 above, paras. 3.6.3-3.6.4.

54. See note 50 above, pp.5-8.

55. M R Chesterman, Accident Compensation-Proposals to Modify the Common Law (New South Wales Law Reform Commission-CP 2 1983).

56. See paras.3.17-3.28.

57. Motor Accidents Act 1973 (Vic.).

58. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.).

59. Pearson Report, vol. 1, chs. 11, 18.

60. Submission W28. See also Law Society of New South Wales, note 51 above.

61. Submission W48.

62. Removal of limits on amounts recoverable by passengers and abolition of common law inter spousal immunity rule (see paras.2.7, 2.10 above).

63. Royal Commission on Motor Car Third-Party Compulsory Insurance 1960.

64. Report to the Chief Secretary on Delays in the Settlement of Third Party Insurance Claims (1969).

65. Id., para. 13.

66. Report of Committee to Investigate Compensation of Road Accident Victims Irrespective of Fault (1972).

67. Motor Accidents Act 1973 (Vic.).

68. Id., s.13(2).

69. Id., s.13(3)(e).

70. Id., s.25.

71. Id., s.30(1). As a result of agreements negotiated with the service providers, the total amount charged is usually paid in practice.

72. Id., s.30(1)(g).

73. Id., s.30(2) (a).

74. Id., ss.26, 27.

75. Id., s.16. The specific exclusion in s.16(1)(a)(ii) for drivers with blood alcohol levels over 0.05 was inserted by the Motor Accidents(Amendment)Act 1981 (Vic.), subject to the following qualification. Section 16(3) says that the Board must make payments if the person excluded by s.16(1)(a)(ii) can show that the level of blood alcohol “did not contribute in any way to the accident”.

76. Section 25(4)(b) of the Motor Accidents Act 1973 (Vic.), is used to justify these payments.

77. Id., s.25, as amended by Motor Accidents (Amendment) Act 1979 (Vic.).

78. Tinkler v. Federal Commissioner of Taxation (1979) 29 ALR. 663.

79. Federal Commissioner of Taxation v. Slaven (1984) 15 ALR 242.

80. Id., p.251.

81. Id., pp.251-252.

82. Id., p.252.

83. Id., p.25 3.

84. Motor Accidents Act 1973 (Vic.), part VA, inserted by Motor Accidents (Amendment) Act 1981 (Vic.).

85. Motor Accidents Act 1973 (Vic.), s.57A(1).

86. Id., s.57A(2).

87. Id., s.61A, inserted by Motor Accidents (Amendment) Act 1981 (Vic.).

88. Motor Accicfents Act 1973 (Vic.), s.61.

89. Figure obtained from Mr. A.E. Scotland, Secretary to the Victorian Motor Accidents Board.

90. Minogue Report, pp.1-2.

91. Id., paras.8.31, 9.25.

92. Id., ch.7.

93. Id., paras.8.31, 9.26-9.27.

94. Id., paras.9.23-9.24.

95. Id., para.9.49.

96. Id., paras.9.61-9.63.

97. Id., para.6.22.

98. Ibid.

99. Id., para.10.18.

100. Id., paras.9.10-9.20, 9.38-9.41 and chs.3,11.

101. Id., para.8.27: see generally, ch.8.

102. Id., para 9.6 1.

103. See para.4.32.

104. Law Institute of Victoria, “Paper on Suggested Amendments to the Motor Accidents Act 1973” (December 1983).

105. Id., paras.2.2.7, 2.3.1.

106. Id., para.2.2.8.

107. Id., paras.2.2.9, 2.5.5.

108. Id., para.2.5.2.

109. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), ss.4(1), 14(1) and 30(1).

110. See para.4.27.

111. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), s.14(1).

112. Id., s.19 and schedule 2, para.2(1).

113. Id., s.23.

114. Id., schedule 1, part V, paras.2, 2A.

115. Id., schedule 1, part V, para.3.

116. Id., schedule 1, part IV.

117. See para.4.28.

118. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), schedule 1, part II, para.1(1).

119. Id., schedule 1, part III.

120. Id., s.24(1) (a).

121. Id., s.24(1) (f).

122. Id., s.24(2).

123. See note 31 above, table 3.

124. Id., table 4.

125. Id., table 5.

126. Motor Accidents (Liabilities and Compensation) (Premiums) Order 1981-1982 (Tas.), schedule 1.

127. See note 31 above, revenue statement.

128. Id., p.7.

129. Id., p. 5.

130. Ibid.

131. Id., revenue statement.

132. Ibid.

133. Report of the Law Reform Committee of Tasmania, Recommendations for the Establishment of a No-Fault System of Compensation for Motor Accident Victims (1972), para.109.

134. See note 64 above, para.6.

135. Id., para.12.

136. Ibid.

137. Bradley Report, pp.59, 66-67.

138. See the Chief Minister’s Speech on tabling the Bradley Report; Northern Territory Parliamentary Debates, 17 May 1979, p.1293.

139. See Appendix A, table A.22, which shows that the Northern Territory rate of traffic deaths of 8.4 per 100 million vehicle kilometres is by far the highest in Australia.

140. Motor Accidents (Compensation) Act 1979 (NT), ss.5(2), 17 and 39(1).

141. Motor Accidents (Compensation) Rates of Benefit Regulations 1984 (NT), reg.3.

142. Motor Accidents (Compensation) Act 1979 (NT), s.6.

143. Id., s.13.

144. Id., s.11.

145. Id., s.13(5).

146. Id., s.18(5) and see Motor Accidents (Compensation) Rates of Benefit Regulations 1984 (NT), reg.4.

147. Motor Accidents (Compensation) Act 1979 (NT), s.18(4).

148. Id.. s.19.

149. Id., s.15.

150. Id., s.16.

151. Id., ss.22-25 and see Motor Accidents (Compensation) Rates of Benefit Regulations 1984 (NT), regs.5-8.

152. Motor Accidents (Compensation) Act-1979 (NT), s.26 and see Motor Accidents (Compensation) Rates of Benefit Regulations 1984 (NT), reg.9.

153. Motor Accidents (Compensation) Act 1979 (NT), s.7.

154. Id., s.8.

155. Id., s.10 (a).

156. Id., s.9.

157. New Zealand Woodhouse Report, paras.55-63-, Australian Woodhouse Report, vol.1, paras.254-258.

158. New Zealand Woodhouse Report, pp.11-12.

159. Pearson Report, vol.1, paras.3, 239 and 274. J.G. Fleming, “The Pearson Report: Its Strategy” (1979) 42 Modern Law Review 249, at p.253; D Allen, D Bourn and J Holyoak (eds.), Accident Compensation after Pearson (1979), esp. chs.3,6 and 7.

160. New Zealand Woodhouse Report, para.34.

161. Id., part 9.

162. Ibid.

163. GWR Palmer, Compensation for Incapacity (1979) pp.64, 74-76.

164. Personal Injury-A Commentary on the Report of the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (1969), p.5. See also note 163 above, pp.76-78. One of the principal authors of the White Paper was Mr GWR Palmer.

165. Report of Select Committee on Compensation for Personal Injury in New Zealand (1970). The Chairman was Mr G F Gair.

166. Id., p.30.

167. Id., pp.21, 22 and 50.

168. Accident Compensation Bill 1971 (NZ).

169. See note 163 above, pp.97-102.

170. Id., pp.104-109.

171. New Zealand Woodhouse Report, para.300.

172. Periodic compensation for loss of earning capacity is available only to earners since it is assessed by a comparison between what the earner would have been earning in his or her pre-accident employment had the accident not happened, and what he or she is now capable of earning: Accident Compensation Act 1982 (NZ), s.60.

173. See note 163 above, p.65.

174. Government Cabinet/Caucus Committee Report, The New Zealand Accident Compensation Scheme: A Review (1980).

175. Id., p. 3.

176. Id., pp.7-9.

177. Id., pp.16-18.

178. Ibid.

179. Ibid.

180. Id., pp.13-14.

181. Id., pp.14-15.

182. Id., pp.9-11.

183. Accident Compensation Act 1982 (NZ), which was assented to on 17 December 1982 and commenced on a April 1983.

184. Id., s.78(6).

185. Id., s.78.

186. Id., s.79.

187. Id., part 1.

188. Id., s.92.

189. For example, the Corporation is no longer required to maintain separate statutory funds (Earners’, Motor Vehicles and Supplementary) for accident compensation payments. For a summary of other changes, see J L Fahy, Accident Compensation Coverage (7th ed. 1983), pp.13-14. In addition to these legislative changes, there have been a number of policy changes in areas such as periodic increases in benefit levels and partial incapacity.

190. See note 163 above, pp.131-142.

191. Australian Woodhouse Report, vol.3, p.l.

192. Id., p. 3.

193. Id. Volume 1. contains the general reasoning, recommendations of the Committee mainly in relation to compensation and a draft Bill. Volume 2 contains detailed recommendations in relation to safety and rehabilitation Volume 3, entitled “Compendium” provides, among other things, background details, statistical information and costing material.

194. Id., vol.1, part 11.

195. Id., para.3.

196. Id. This proposal was discussed in detail in paras.389-401. The “media method” caused considerable controversy, but it was a sincere attempt to grapple with what is acknowledged as “the most complicated and most difficult issue in personal lady’: see G W R Palmer, note 160 above, p.215: see also pp.214-236, esp. 230-236. See also ch.11 below.

197. The Australian Woodhouse Report attempted to provide death benefits on a basis which took account of the changing status of women in society. See vol.1, paras.357-361. See also ch.51-58 in National Compensation Bill 1974 (Cth).

198. Senate Standing Committee on Constitutional and Legal Affairs, Report on the Clauses of the National Compensation Bill 1974 (1975), para.1.23.

199. Commonwealth Parliamentary Debates, Senate, 28 October 1975, p.1496.

200. National Rehabilitation and Compensation Bill 1977 (Cth); Commonwealth Parliamentary Debates, House of Representatives, 24 February 1977, p.425.

201. Australian Labor Party, “Law and Justice Policy”, launched by Senator G Evans, 23 February 1981, para.9.

202. New South Wales Law Reform Commission Consultative Committee on Motor Vehicle Accident Compensation internal document M, draft advertisement dated 30 October 1972.

203. Id., internal document XYZ, summary of proceedings, appendix A, dated 9 February 1973.

204. Report of the interdepartmental Committee, The Implications for the State of the Woodhouse Report (1974). pp.1-4.

205. Letter from Mr R M Porter, General Manager, GIO of New South Wales, to Judge Loveday, Commissioner, New South Wales Law Reform Commission dated 14 February 1975.

206. Ibid.

207. Submission to the Attorney General from the Under Secretary of Justice, undated.

208. Id., appended comments by the Attorney General, dated 10 October 1975.

209. The Hon N K Wran, QC, MP, “Australian Labor Party Policy Statement”. 12 April 1976, p.8.

210. Motor Vehicles (Third Party Insurance) Amendment Act 1977, schedule 1. cl.6.

211. Letter from Mr J. Ducker, MLC, Secretary, Labor Council of New South Wiles, to the Hon F J Walker, QC, MP, Attorney General, dated 6 October 1976.

212. The Hon N K Wran. QC, MP, “NSW Elections ‘78 Policy Speech”, p.17.

213. Id., p. 18.

214. Letter from Mr K Beckton, General Manager, GIO, to Ministry of Transport, dated 25 June 1979.

215. Ibid.

216. Compensation for Future Medical and Related Expenses in Personal Injury Cases. Unpublished Background Paper prepared by the Chairman, p.6.

217. Pennant Hills Restaurants Pty. Ltd. v. Barrell Insurances Pty. Ltd. (1981) 145 CLR 625.

218. (1981) 56 ALJR 59.

219. See paras.2.32 and 3.97.