I. COMPENSATION FOR LOSS OF EARNING CAPACITY
A. Earners
1. General
Compensation for Loss of Earning Capacity
Recommendation 1:
Earners (as defined in Recommendation 3), who are incapacitated as the result of transport accidents should receive compensation in respect of their loss (including impairment) of earning capacity.
(Paragraph 7.2)
Recommendation 2:
In general the earning capacity of an earner should be determined by reference to the amount that fairly and reasonably represents his or her normal weekly earnings at the date of the accident.
(Paragraph 7.3)
Definition of Earner
Recommendation 3:
(1) A person who is incapacitated as the result of a transport accident should be regarded as an earner if he or she was in full-time or part-time employment (whether as an employed or self-employed person):
(a) at any time during the eight weeks preceding the date of the accident;
(b) over a period or periods totalling it least 13 weeks during the 52 weeks preceding the date of the accident; or
(c) over a period or periods totalling at least 26 weeks during the 104 weeks preceding the date of the accident.
(2) Notwithstanding paragraph (1), a person who has left the workforce permanently at the date of the accident should not be regarded as an earner.
(Paragraphs 7.5-7.10)
Recommendation 4:
A person incapacitated in a transport accident should be regarded as an earner if, at the date of the accident, he or she had made firm arrangements (whether or not contractually enforceable) to undertake employment with a particular employer or to commence business at a particular time and place.
(Paragraph 7.12)
Recommendation 5:
A person incapacitated in a transport accident should be regarded as an earner if he or she, having been incapacitated for a period of not less than six months, would, in the opinion of the Corporation, have undertaken employment before the expiration of 104 weeks from the date of the accident.
(Paragraph 7.14)
2. Assessment of Earning Capacity: Employees Definition of Earnings
Recommendation 6:
(1) The earnings of an employee should include income derived from personal exertion in his or her capacity as an employee. This should include allowances provided by the employer to the employee which are not provided for the purpose of meeting expenses associated with employment.
(2) Earnings should be limited to benefits received in the form of monetary payments, except for:
(a) the value of living accommodation board and lodging or food provided by the employer without charge or at a reduced charge;
(b) the value of a car (including running expenses) provided by the employer to the extent that the car is used by the employee for private purposes.
(Paragraphs 7.17-7.22)
Normal Weekly Earnings
Recommendation 7:
In calculating the normal weekly earnings of an employee or her work history and other relevant factors. In particular, the Corporation should take into account one of the following:
(a) the earnings of the employee for the week preceding the accidents;
(b) the average weekly earnings the employee during the eight weeks preceding the accident;
(c) the average weekly earnings of the employee during the 52 weeks preceding the accident; or
(d) the average weekly earnings of the employee during the 104 weeks preceding the accident.
The Corporation should take into account the shortest applicable earnings period unless to do so would cause under or overcompensation.
(Paragraphs 7.23-7.25)
Recommendation 8:
Where a person is regarded as an earner because of events which would have occurred after the date of the accident the Corporation should determine an amount that fairly represents that person’s earning capacity as from the date he or she would have taken up employment.
(Paragraph 7.26)
Adjustment to Normal Weekly Earnings
Recommendation 9:
(1) Where the Corporation is satisfied, by reason of any of the matters referred to in clause (2), that the employee’s normal weekly earnings are substantially more, or substantially less, than the employee’s earning capacity would have been during the period of incapacity but for the accident, it should use a different measure to assess earning capacity.
(2) The relevant matters are:
(a) the seasonal nature of the employee’s employment;
(b) firm arrangements made by the employee at the date of the accident to re-enter or leave the workforce, accept different responsibilities or new or different employment, or vary the hours of paid employment; and
(c) the employee’s contractual entitlement to significant wage or salary variations (apart from indexation adjustments) arising out of his or her employment at the date of the accident
(3) Where the Corporation is so satisfied, it should determine the claimant s weekly earning capacity during the period of incapacity (or any relevant part of it), taking account of the matters in clause (2). This amount should be used in assessing compensation for loss of earning capacity in place of normal weekly earnings.
(4) This Recommendation is subject to Recommendation 25.
(Paragraphs 7.27-7.32)
3. Assessment of Earning Capacity: Self-Employed People
Basis of Assessment
Recommendation 10:
Subject to Recommendation 15, the Corporation should have power to assess compensation in respect of the loss of earning capacity sustained by a self-employed person on one or more of the following bases:
(a) the difference between that person’s earning capacity at the date of the accident (generally measured by normal weekly earnings) and his or her earning capacity (if any) during the period of incapacity;
(b) the cost of providing services to replace that person in his or her business, trade or profession during the period of incapacity; or
(c) the earnings that person could have derived as an employee exercising similar skills and responsibilities to those exercised in his or her business, trade or profession.
(Paragraphs 7.37-7.38)
The Earnings Approach
Recommendation 11:
The earnings of a self-employed person should include income derived by that person for his or her own benefit, as the result of personal exertion By “income” is meant net income after expenses but before income tax.
(Paragraph 7.40)
Recommendation 12:
In calculating the normal weekly earnings of a self-employed person at the date of the accident, the Corporation should have regard to that person’s earnings before that date, his or her work history and other relevant factors. In particular, the Corporation should take into account the more appropriate of the following:
(a) the average weekly earnings of the self-employed person during the 52 weeks preceding the accident, or any part of that period; or
(b) the average weekly earnings of the self-employed person during any or all of the four completed financial years immediately preceding the date of the accident.
(Paragraph 7.41)
Recommendation 13:
(1) Where the Corporation is satisfied that, by reason of any of the matters referred to in clause (2), the self-employed person’s normal weekly earnings are significantly more, or significantly less, than that person’s earning capacity would have been during the period of incapacity but for the accident, it should use a different measure to assess earning capacity.
(2) The relevant matters are:
(a) the seasonal nature of the self-employed person’s employment;
(b) firm arrangements made by the self-employed person to re-enter or leave the workforce, undertake new or different employment or vary the hours of employment; and
(c) contractual arrangements in force at the date of the accident which would have led to significant variations in earnings.
(3) Where the Corporation is so satisfied, it should determine the claimants weekly earning capacity during the period of incapacity (or any part of it) taking account of the matters in paragraph (2). This should be used, to the extent appropriate, in assessing compensation for loss of earning capacity in place of normal weekly earnings.
(Paragraph 7.42)
The Replacement Services Approach
Recommendation 14:
Where the replacement services approach is considered appropriate, the Corporation should pay 80 per cent of the remuneration (including incidental costs of employment) provided to a person performing services to replace those of the incapacitated person in his or her business, trade or profession.
(Paragraphs 7.44-7.46)
Recommendation 15:
Where a self-employed person is incapacitated for a period which does not or, at the date of assessment, is not likely to exceed 13 weeks, the Corporation should use the replacement services approach to the assessment of compensation, unless there are good reasons for choosing another approach.
(Paragraph 7.47)
The Equivalent Employee Approach
Recommendation 16:
When the equivalent employee approach is considered appropriate, the Corporation should pay 80 per cent of the wage or salary the incapacitated person could reasonably have expected to earn as an employee performing work similar to that he or she performed as a self-employed person.
(Paragraph 7.48)
Earnings Both as Employed and Self-Employed Person
Recommendation 17:
Where a person incapacitated in a transport accident derived earnings within a period of two years preceding the accident both as an employee and as a self-employed person, the Corporation should assess his or her normal weekly earnings or earning capacity by such means, consistent with earlier Recommendations, as are appropriate.
(Paragraph 7.49)
4. Long-Term Incapacity: The Floor
Recommendation 18:
An earner who sustains long-term incapacity as the result of a transport accident should be deemed to have an earning capacity no less than the “notional earning capacity attributed to non-earners (see Recommendation 3 1). Notional earning capacity for a person who has attained the age of 21 should be set at 50 per cent of AWE (approximately $210 at June 1984). “Long term incapacity” means incapacity which continues for a period or periods totalling at least 104 weeks.
(Paragraphs 7.50-7.51)
B. Post-Accident Earning Capacity: Earners
1. The General Rule
Recommendation 19:
In general:
(a) where an injured person is employed, whether on a full-time or part-time basis, his or her post-accident earning capacity is equivalent to the earnings derived from that employment; and
(b) where an injured person is not employed, his or her post-accident earning capacity is nil.
(Paragraphs 7.52-7.58)
2. Exceptions
Recommendation 20:
The general rule Should not apply if the Corporation is satisfied:
(a) that the person is capable of undertaking employment of a kind for which he or she can reasonably be expected to apply or which is otherwise reasonably available taking into account:
(i) the nature and extent of the disability caused by the transport accident;
(ii) his or her level of education, training and language skills;
(iii) his or her work experience;
(iv) his or her place of residence; and
(v) other relevant factors, and
(b) that the person is capable of competing in the labour market for this kind of employment at no significant disadvantage by reason of the disability, when compared with non-disabled members of the Community.
In Such a case. the Corporation should determine the post-accident earning capacity of the Injured person taking account of earnings that could be derived from the employment reasonably available to him or her.
(Paragraph 7.60)
Recommendation 21:
The general rule should not apply if the Corporation is satisfied that the injured person has, without sufficient reason:
(a) refused an offer of suitable employment;
(b) made himself or herself unavailable for vocational training, rehabilitation or assessment of employment prospects;
(c) failed to take reasonable steps to secure suitable employment; or
(d) given up suitable employment.
(Paragraph 7.62)
3. Notice Required
Recommendation 22:
If the Corporation assesses the injured persons post-accident earning capacity at a higher amount than suggested by the general rule, notice of the assessment should be given to the person. Unless there are special circumstances the assessment should not take effect until the expiration of a period of eight weeks (but this Recommendation should not apply where the injured person has wholly recovered from his or her disability).
(Paragraph 7.63)
C. Potential for Advancement
1. Eligibility to Claim
Recommendation 23:
(1) An earner who has sustained long-term incapacity as the result of a transport accident should be eligible to apply for compensation to be assessed on the basis of potential for advancement.
(2) Potential for advancement means the earnings the person could reasonably have been expected to earn over the likely period of incapacity had the accident not occurred.
(Paragraphs 7.64-7.70)
Recommendation 24:
(1) An incapacitated earner should be eligible to apply for assessment on the basis of potential for advancement if and only if he or she:
(a) has been incapacitated for a period or periods exceeding 104 weeks, but not exceeding 156 weeks;
(b) has a disability, arising from the transport accident, which is likely to have a continuing effect on his or her earning capacity; and
(c) has participated as far as is reasonably practicable in vocational training or rehabilitation programs provided by or through the Corporation.
(2) The Corporation should have power, in special circumstances, to accept an application after the expiration of 156 weeks.
(Paragraphs 7.71-7.72)
Recommendation 25:
The Corporation should assess compensation on the basis of potential for advancement if and only if the compensation so assessed is significantly greater than that which otherwise would have been awarded.
(Paragraph 7.73)
2. Assessment of Potential for Advancement
Recommendation 26:
Subject to Recommendation 27, in assessing compensation on the basis of potential for advancement, the Corporation should take into account:
(a) the person’s age, education, training, skills, abilities and work history as at the date of the accident;
(b) the likelihood that, had the accident not occurred, the person would have undertaken training or education which would have increased his or her earning capacity;
(c) the prospects for promotion or other forms of career, business or professional advancement-whether in the same or different employment as that undertaken by the person at the date of the accident;
(d) the likelihood that, had the accident not occurred, the person would have varied the nature of his or her employment or the extent of his or her involvement in the workforce, whether temporarily or permanently; and
(e) other factors suggesting that had the accident not occurred, the person’s earnings or earning capacity would have increased or decreased materially, whether temporarily or permanently.
(Paragraph 7.74)
Recommendation 27:
In assessing compensation on the basis of potential for advancement the Corporation should take account of factors or events affecting earning capacity only if they are likely to have an effect or to occur within 10 years of the date of the accident.
(Paragraph 7.76)
Recommendation 28:
Where the Corporation assesses compensation on the basis of potential for advancement it should specify the incapacitated earner’s likely earnings as from the date of the application for
(a) the remainder of the calendar year in which the application is made;
(b) each succeeding calendar year for the expected period of incapacity, and should assess compensation accordingly.
(Paragraph 7.77)
D. Non-Earners
1. Definition of Non-Earner
Recommendation 29:
A non-earner is a person who sustains incapacity in a transport accident and is not within the definition of “earner” in Recommendations 3-4.
(Paragraph 7.80)
2. Compensation for Loss of Earning Capacity
Recommendation 30:
Non-earners who sustain long-term incapacity as the result of a transport accident should receive compensation in respect of their loss of earning capacity. “Long-term incapacity” means incapacity which continues for a period or periods totalling at least 104 weeks. Compensation should be available only in respect of the period of incapacity in excess of 104 weeks.
(Paragraphs 7.81-7.86)
3. Assessment of Compensation
Notional Earning Capacity
Recommendation 31:
(1) In general compensation for a non-earner’s long-term loss of earning capacity should be ascertained by reference to that person’s “notional earning capacity”. The notional earning capacity of a non-earner who has attained the age of 21 should be set at 50 per cent of AWE (approximately $210 at June 1984).
(2) Where the non-earner has not attained the age of 21, his or her notional earning capacity should be set as follows:
(Paragraphs 7.87-7.90)
Potential for Advancement
Recommendation 32:
A non-earner ho has sustained long-term incapacity should be eligible to apply for compensation for loss of earning capacity on the basis of potential for advancement. Such an application should attract, as nearly as possible, the same principles as those governing a similar application by an earner.
(Recommendations 23-28).
(Paragraph 7.91)
Post-Accident Earning Capacity
Recommendation 33:
In assessing the post accident earning capacity of a non-earner the same approach should be taken as with earners (Recommendations 19-22).
(Paragraph 7.94)
4. Short-Term Incapacity
Recommendation 34:
Non-earners who are incapacitated as the result of a transport accident fora period of less than 104 weeks should be entitled to all benefits under the Scheme other than compensation for loss of earning capacity.
(Paragraph 7.95-7.98)
E. The Form and Payment of Compensation
1. Periodic Payments
Recommendation 35:
Compensation for loss of earning capacity whether to earners or non-earners, should be paid on a periodic basis, preferably fortnightly in arrears.
(Paragraphs 8.2-8.3)
2. Redemptions
Recommendation 36:
In general, redemption of periodic compensation for loss of earning capacity or other loss should not be permitted.
(Paragraphs 8.4-8.10)
Recommendation 37:
(1) The Corporation should have power. with the consent of the injured person to redeem its liability to pay periodic compensation for loss of earning capacity to an injured person where the amounts involved are so low that the cost of providing compensation unnecessarily burdens the administration of the Scheme.
(2) Where Such a redemption takes place and subsequently the injured person’s capacity for work is significantly reduced (whether from a deterioration in physical condition or otherwise), the Corporation should be required, on application, to resume appropriate periodic compensation, making allowances for the lump sum already paid.
(Paragraph 8.12)
3. Gross Earnings
Recommendation 38:
Compensation for loss of earning capacity should be assessed by reference to the pre-tax earnings of the incapacitated person.
(Paragraphs 8.13-8.17)
4. Proportion of Loss Compensated
Recommendation 39:
Subject to Recommendation 40, a person who is totally incapacitated for work as a result of a transport accident should, for the period of incapacity, receive 80 per cent of the loss of earning capacity sustained.
(Paragraphs 8.18-8.22)
Recommendation 40:
The Corporation should develop a program under which a person incapacitated in a transport accident who resumes employment for a substantial part of the working week, should receive compensation for a proportion of the loss of earning capacity sustained higher than 80 per cent.
(Paragraphs 8.23-8.24)
5. The Ceiling
Recommendation 41:
There should be a limit on the compensation payable to earners in respect of loss of earning capacity. The maximum earning capacity by reference to which compensation should be assessed should be 150 per cent of AWE ($630 at June 1984). Thus the maximum compensation actually payable should be 120 per cent of AWE ($504 at June 1984).
(Paragraphs 8.25-8.30)
Recommendation 42:
The Corporation should investigate the practicability of providing tup-up insurance for people with an earning capacity in excess of the maximum in respect of which compensation is payable.
Recommendation 43:
Where a person suffers a partial loss of earning capacity, irrespective of the amount of the person’s residual capacity, he of she should be compensated for the loss sustained, subject to the overall limit on compensation payable in respect of loss of earning capacity referred to in Recommendation 41.
(Paragraphs 8.32-8.34)
6. Indexation of Compensation
Recommendation 44:
The legislation should embody the principle of automatic indexation. Accordingly. periodic compensation for loss of earning capacity should be indexed and adjusted at six-monthly intervals by reference to changes in AWE. In assessing the extent of loss of earning capacity the Corporation should make appropriate adjustments to pre-accident earnings or other standards used in the assessment to take account of movements in AWE.
(Paragraphs 8.35-8.37)
7. Assignability of Benefits
Recommendation 45:
Compensation for loss of earning capacity and other benefits under the Scheme should not be capable of assignment by the person entitled to the compensation or other benefits.
(Paragraph 8.38)
F. Commencement and Termination of Benefits
1. Commencement of Benefits
Recommendation 46:
Compensation for loss of earning capacity should not commence until an injured person under the age of 16 attains that age unless, at the date of the accident the person wis under that age but was in full-time employment.
(Paragraphs 8.39-8.40)
Recommendation 47:
Compensation for the earner’s loss of earning capacity should not be paid in respect of the first five working days from the date of the accident or the first incapacity caused by the accident (whichever period expires later). The waiting period should apply only once in respect of an incapacity arising from a transport accident.
(Paragraphs 8.41-8.44)
Recommendation 48:
Where a person, although classified as an earlier, has not been in employment at any time during the eight weeks preceding the accident. compensation for the earner’s loss of earning capacity should not be paid in respect of the first four weeks from the date of the accident or from the date of the first incapacity caused by the accident (whichever period expires later).
(Paragraph 8.45)
Recommendation 49:
Where a person is deemed to be an earner by reason of Recommendation 4 (arrangements to enter the work force after the date of the accident) compensation for loss of earning capacity should commence from the date on which that person, but for the accident, would have commenced employment.
(Paragraph 8.46)
2. Termination of Benefits
General
Recommendation 50:
Compensation for loss of earning capacity should cease on:
(Paragraph 8.47)
Age
Recommendation 51:
(1) Compensation for loss of earning capacity should in general continue until the incapacitated person attains the age of 65.
(2) Where the incapacitated person is an earner and has attained the age of 61 but not 70, when the incapacity commences, compensation for loss of earning capacity should continue for a period of four years from the commencement of the incapacity, provided that compensation should not continue beyond the age of 72.
(3) Where the incapacitated person is an earner and has attained the age of 70 when the incapacity commences, compensation should continue for a period of two years from the commencement of the incapacity.
(4) Notwithstanding paragraphs (2) and (3), where an earner who has attained the age of 61 is injured, compensation for loss of earning capacity should not be paid or continue beyond the age of 65 or beyond the age at which he or she would have left the workforce permanently had the accident not occurred (,whichever is later).
(Paragraphs 8.48-8.51)
G. Assessment of Permanent Incapacity
Recommendation 52:
Where a person has sustained a permanent disability in a transport accident and:
(a) his or her medical condition has stabilised;
(b) all practicable steps have been taken towards his or her rehabilitation;
(c) he or she has suffered a loss of earning capacity which is likely to continue indefinitely; and
(d) the extent of the loss is unlikely to vary substantially, taking into account reasonably foreseeable changes in economic conditions and employment opportunities,
the Corporation should have power, with the consent or at the request of that person, to make an assessment of his or her permanent loss of earning capacity. Such an assessment should be made in accordance with earlier Recommendations and should take account of any assessment of compensation on the basis of potential for advancement.
(Paragraphs 8.52-8.58)
Recommendation 53:
Subject to Recommendation 54 an assessment of permanent incapacity should be final and not liable to variation.
(Paragraph 8.59)
Recommendation 54:
If at any time after an assessment of permanent incapacity has been made, the earning capacity of the disabled person is substantially reduced by reason of:
and the reduction in earning capacity arises out of the disability caused by the transport accident, the Corporation should set aside the assessment The Corporation should have power to make a fresh assessment of permanent incapacity if the conditions specified in Recommendation 52 are satisfied.
(Paragraph 8.60)
II. REHABILITATION
A. Role of the Accident Compensation Corporation
1. The Right to Rehabilitation
Recommendation 55:
Transport accident victims should be granted a right by legislation to rehabilitation.
(Paragraph 9.25)
2. Ensuring the Provision of Rehabilitation Services
Recommendation 56:
Wherever practicable, the Corporation should coordinate and administer the provision of rehabilitation services through existing agencies rather than establish its own services.
(Paragraphs 9.26-9.27)
Recommendation 57:
The Corporation should have broad powers to ensure the provision of rehabilitation services and other support services, including the power:
- to make financial and other arrangements with both government and private service providers to provide rehabilitation or support services to transport accident victims;
- to monitor contracted service providers to ensure satisfactory standards of service; and
- to provide, where necessary, services or assistance directly to transport accident victims.
(Paragraphs 9.28-9.3 1)
3. A Rehabilitation Section
Recommendation 58:
The Corporation should create a Rehabilitation Section to administer its rehabilitation functions.
(Paragraph 9.32)
B. Medical and Functional Rehabilitation
1. The Aim
Recommendation 59:
The Corporation should be under a duty to provide rehabilitation services as soon as possible after the occurrence of the injury in a transport accident.
(Paragraphs 9.35-9.36)
Recommendation 60:
The Corporation should be responsible for meeting the costs of rehabilitation services retired for transport accident victims, subject to the general arrangements made with regard to hospital and medical costs.
(Paragraphs 9.37-9.39)
Recommendation 61:
The Corporation should pav necessary travelling and accommodation expenses incurred by a claimant in obtaining rehabilitation treatment.
(Paragraph 9.40)
2. Problems Requiring Attention
Medical Training
Recommendation 62:
The Corporation should have powers to encourage and sponsor the development of rehabilitation training programs for medical practitioners and other health care professionals.
(Paragraph 9.42-9.43)
Shortage of Rehabilitation Specialists
Recommendation 63:
The Corporation should have power to support training and research in rehabilitation and to make grants to institutions and individuals for these purposes. The Corporation should also have power to support dissemination of information concerning rehabilitation to health professionals, other groups and members of the community.
(Paragraph 9.44-9.47)
Centralised Services
Recommendation 64:
The goal of decentralisation of rehabilitation facilities should, so far as practicable, be pursued by the Corporation.
(Paragraphs 9.49-9.50)
C. Medical Equipment and Mechanical Aids
1. Medical Equipment and Pharmaceutical Supplies
Recommendation 65:
The Corporation should bear the cost of necessary pharmaceutical supplies, and necessary prosthetic, orthotic and other corrective medical equipment, the need for which arises from disability suffered in a transport accident.
(Paragraph 9.52)
2. Aids and Appliances
Recommendation 66:
The Corporation should bear the cost of providing necessary aids and appliances and of altering existing equipment used by disabled transport accident victims.
(Paragraph 9.53)
Recommendation 67:
The Corporation should establish borrowing pools of equipment which can be used by disabled transport accident victims.
(Paragraph 9.54)
Recommendation 68:
The Corporation should provide replacement aids and equipment as often as is necessary and reasonable.
(Paragraph 9.55)
3. Research
Recommendation 69:
The Corporation should have power to make grants for research into the needs of transport accident victims. It should also have power to establish and develop research facilities in coordination with agencies already working in this field.
(Paragraph 9.56)
D. Workforce Rehabilitation
1. Training and Retraining
Recommendation 70:
The Corporation should make available vocational training programs for people disabled in transport accidents and for the dependent spouses of people killed in such accidents. The Corporation should meet the costs of such programs and should formulate guidelines for admission designed to maximise the opportunites for successful vocational training.
(Paragraphs 9.58-9.59)
2. Alterations to Workplace
Recommendation 71:
The Corporation should provide reasonable workplace modifications, where an employer employs or continues to employ a disabled transport accident victim and where modifications are necessary to enable the disabled transport accident victim to work in or gain access to the workplace.
(Paragraph 9.60)
Recommendation 72:
In deciding what workplace modifications are reasonable, the Corporation should have regard to:
(a) the cost of the modifications;
(b) the benefit of the modifications to the employer and other workers or customers and any contribution to the cost by the employer; and
(c) the likely duration of employment of the disabled transport accident victim.
(Paragraph 9.60)
3. Liability to Pay Workers’ Compensation
Recommendation 73:
The Corporation should have power, fora specified period, to contribute to the cost of workers’ compensation insurance incurred by the employer who has provided or continued employment for a person disabled in a transport accident
(Paragraphs 9.62-9.64)
4. Placement Programs
Recommendation 74:
The Corporation should promote the placement of disabled transport accident victims in employment.
(Paragraphs 9.65-9.66)
Recommendation 75:
The Corporation should have power to develop schemes providing financial incentives, for specified periods, to employers who engage or maintain disabled transport accident victims in employment.
(Paragraph 9.67)
5. Return to Work and Compensation Entitlement
Recommendation 76:
The Corporation should have power to approve the entry into or resumption of employment by a disabled transport accident victim on the basis that, if the employment does not continue beyond a specified period, that person should be entitled to compensation for loss of earning capacity without making a fresh application.
(Paragraph 9.69)
6. Business Loans
Recommendation 77:
The Corporation should provide financial counselling if requested by any person who is entitled to or has received compensation under the Scheme.
(Paragraphs 9.70-9.72)
Recommendation 78:
The Corporation’s powers in relation to a person incapacitated in a transport accident should include:
(a) continuing compensation for loss of earning capacity for a specified period during which the person commences and conducts a business venture;
(b) guaranteeing loans made to that person for business purposes; and
(c) making loans, on such terms as are appropriate, to enable that person to commence or continue a business.
(Paragraph 9.73)
E. Social Rehabilitation
Recommendation 79:
Rehabilitation programs for people disabled in transport accidents should include training for independent living, social rehabilitation and leisure counselling.
(Paragraphs 9.74-9.76)
III. SUPPORT SERVICES AND INDEPENDENT LIVING
A. Household Services
Recommendation 80:
Subject to Recommendations 81-82, a person:
(a) who suffers a disability (whether temporary or permanent) as the result of a transport accident;
(b) who, before the accident, performed substantial household services for himself or herself and/or his or her household family members; and
(c) whose capacity to perform household services has been significantly impaired by reason of the disability;
should be entitled to replacement household services, to the extent necessary for the maintenance and preservation of the household of which he or she is a member.
(Paragraphs 10.2-10.4)
Recommendation 81:
(1) In assessing the extent to which household services are necessary for the maintenance and preservation of the household, the Corporation should have regard to:
(a) the household services provided by the disabled person before the accident and the extent to which he or she can provide such services after the accident;
(b) the number of household family members, their ages and need for household services;
(c) the household services that other family members or other family members could reasonably be expected to provide after the accident; and
(d) any special factors affecting the need of the disabled person and other household family members for household services.
(2) In determining what is reasonable for the purposes of paragraph (1)(c). the Corporation should take into account:
(a) the household services provided by the other household family members or other family members before the accident;
(b) the need to avoid substantial disruption to the employment or daily lives of those household family members; and
(c) other relevant circumstances.
(Paragraph 10.5)
Recommendation 82:
In assessing the extent to which household services are to be provided after the expiration of four weeks from the date of the accident, the Corporation should have regard to the following additional criteria:
(a) the compensation and other benefits provided to the disabled person or other household family members arising out of the transport accident;
(b) the earnings and other income of the spouse of the disabled person, (being a member of the household); and
(c) the resources, financial or otherwise, available to household family members to meet the need for household services.
(Paragraph 10.6)
Recommendation 83:
(1) In general, replacement of household services should be provided through existing government or private agencies. but the cost should be met by the Scheme.
(2) The Corporation should have power when requested and where it considers it appropriate to do so, to engage a member of the disabled person’s household or family to provide household services.
(Paragraphs 10.7-10.10)
B. Attendant Care
Recommendation 84:
(1) Subject to Recommendation 85, a person who:
should be entitled to receive attendant care services from the Corporation.
(2) “Attendant care services” means the services (other than medical or nursing care) required to provide for the essential regular personal care of the disabled person.
(Paragraph 10.11-10.14)
Recommendation 85:
(1) In assessing the need for attendant care services the Corporation should have regard to:
(a) the nature of the person’s disability and its effect on that person’s ability to provide for his or her personal care;
(b) the medical and nursing services received by the disabled person, to the extent they provide for his or her personal care;
(c) the wishes of the disabled person specifically his or her desire to five outside an institutional environment, to the extent that it is reasonable to attempt to meet those wishes;
(d) the extent to which attendant services are required to enable the disabled person to undertake or continue employment;
(e) any assessment made by a rehabilitation assessment team at the request of the Corporation; and
(f) the standards developed or applied by government or public agencies in Australia in determining the needs of disabled people for attendant care services.
(2) The Corporation should also take into account the attendant care services that other family members could reasonably be expected to provide to the disabled person. In determining what is reasonable the Corporation should take into account, with necessary modifications, the criteria specified in Recommendation 81(2).
(Paragraphs 10.15-10.18)
Recommendation 86:
Recommendation 83 should apply to attendant care services.
(Paragraphs 10.19-10.22)
C. Emergency Family Support
Recommendation 87:
Where it is necessary for the spouse, parent or child of a person injured in a transport accident to attend that person continuously, whether in hospital or elsewhere, the Corporation should compensate the Spouse. parent or child for the loss of earnings Caused his or her attendance. Compensation should be paid as if the spouse, parent or child had been incapacitated by an injury sustained in a transport accident, but should be payable for a maximum period of four weeks.
(Paragraphs 10.27-10.28)
Recommendation 88:
The Corporation should reimburse expenses necessarily incurred in respect of travel and accommodation within Australia I)v the spouse, parent or child of a person in injured in a transport accident for the purpose of providing care and support to that person. The Corporation should meet expenses incurred during a period of four weeks from the date of the accident, but should have power in exceptional cases to extend that period where the continuous presence of the spouse, parent or child is necessary for the recovery or well-being of the injured person.
(Paragraph 10.29)
D. Accommodation
1. Home Ownership
Recommendation 89:
The Corporation should have power to make loans to disabled transport victims, who have or would have difficulty in borrowing money from conventional sources, for the purpose of financing the purchase of a home.
(Paragraphs 10.37-10.40)
Recommendation 90:
The Corporation should have power to negotiate arrangements with the Housing Commission of New South Wales and other public authorities for the provision of housing to disabled transport accident victims.
(Paragraph 10.40)
2. Home Modifications
Recommendation 91:
(1) A person who has suffered long-term physical disability, of a kind which severely impairs his or her mobility or ability to live independently within a home or residence, should be entitled to the reasonable cost of necessary modifications to his or her home or residence.
(2) In determining whether modifications are necessary the Corporation should take into account whether modifications are necessary if they are required to enable the disabled person to:
(a) gain access to;
(b) enjoy reasonable freedom of movement within; or
(c) live independently within the home or residence.
(Paragraphs 10.41-10.44)
Recommendation 92:
The cost of modifications should be met only in relation to a home or residence in which the disabled person intends to live for a long period. However, it should not be a condition of the Corporation meeting the cost of modifications that the disabled person is the owner or tenant of the premises.
(Paragraph 10.45)
Recommendation 93:
The Corporation should have power in special circumstances. to meet the reasonable cost of necessary modifications to the home or residence of a disabled person on a second or subsequent occasion.
(Paragraph 10.46)
Recommendation 94:
Where the Corporation meets the cost of modifications which add substantially to the value of the home or residence (whether or not owned by the disabled person), it should have power to impose a condition requiring repayment of the increase in the value on the sale of the premises or in the death of the disabled person. The Corporation should also have power to waive any such requirement.
(Paragraph 10.48)
3. Institutional Accommodation
Recommendation 95:
The Corporation should meet the reasonable cost of a disabled person who is required. by reason of his or her disability, to live in an institution.
(Paragraph 10.50)
Recommendation 96:
The Corporation should prescribe a modest amount to represent the costs of the “board and lodging” element of institutional accommodation. Unless there are special circumstances this sum should be deducted from the amounts paid to the institution in respect of care and accommodation and the disabled person should pay an equivalent amount to this institution from his or her compensation for loss of earning capacity.
(Paragraph 10.52)
Recommendation 97:
The Corporation should have power to establish hostels for seriously disabled people and to contribute to the cost of new hostels.
(Paragraph 10.53)
E. Mobility
1. Vehicle Modification
Recommendation 98:
The Corporation should meet the cost of necessary modifications to a vehicle owned or regularly used by the disabled person or a member of his or her family.
(Paragraphs 10.57-10.60)
Recommendation 99:
The Corporation should have power to contribute to the cost of purchasing a motor vehicle where such a contribution is required to avoid financial hardship to the disabled person. The Corporation should have power to impose a condition requiring repayment of such contribution on the resale of the motor vehicle or on the death of the disabled person, provided that such repayment should not exceed the price obtained on resale or value on death.
(Paragraph 10.61)
2. Mobility Allowance
Recommendation 100:
The Corporation should pay a mobility allowance, equivalent to 5 per cent of AWE ($21 at June 1984 , to people who are unable to use public transport unassisted because of a disability arising out of a transport accident and who incur expenses in travelling by reason of their disability. The allowance should not be payable in respect of disability during the six months following the accident, unless the circumstances are exceptional.
(Paragraphs 10.62-10.64)
IV. COMPENSATION FOR PERMANENT DISABILITY
A. General
Recommendation 101:
Where a person suffers a permanent physical or mental disability as the result of a transport accident, he or she should receive compensation for that disability.
(Paragraphs 11.1-11.5)
Recommendation 102:
The compensation for permanent disability should be paid in a lump sum, the amount of which should be related directly to the degree of disability.
(Paragraph 11.5)
B. Compensation for Permanent Disability
1. The Meaning of Disability
Recommendation 103:
The degree of permanent disability should be measured in accordance with the “Whole Person Approach” used in the Australian adaptation of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
(Paragraphs 11.9-11.10)
2. The Scope of Permanent Disability
Recommendation 104:
In general the degree of permanent disability should be assessed 12 months after the date of accident However, the Corporation should have power to assess the degree of disability at an earlier time where it is satisfied that the disability is stable and permanent.
(Paragraphs 11.11-11.16)
Recommendation 105:
The Corporation should have power to make interim payments, where a disability is permanent but the final extent of the disability cannot finally be assessed.
(Paragraph 11.17)
Recommendation 106:
Where compensation has been assessed in respect of permanent disability but the person’s degree of permanent disability subsequently increases, the Corporation should increase the compensation to take account of the increased degree of disability.
(Paragraph 11.18)
C. Detailed Proposals
1. The Amount of Compensation
Recommendation 107:
The maximum compensation for permanent disability should be 208 times the value of AWE at the date of payment (approximately $87.360 at June 1984).
(Paragraphs 11.43-11.44)
2. Thresholds
A. Minimum Level of Disability
Recommendation 108:
Where the assessed degree of permanent disability is 4 per cent or less, no compensation for permanent disability should be payable.
(Paragraphs 11.45-11.47)
Total Disability
Recommendation 109:
A person who reaches an assessed level of permanent disability of 90 per cent should be entitled to the maximum level of compensation for permanent disability.
(Paragraph 11.48)
3. Variations Because of Age
Recommendation 110:
In assessing compensation for permanent disability, adjustment should be made to take account of the person’s age. The adjustment should take the following form:
Age of Victim at date of Accident | Percentage of Assessed Compensation Payable |
| |
0-25 years | 100 per cent |
26-64 years | 99-61 per cent (reducing on a uniform sliding scale of 1 percent per year of age) |
65 years and above | 60 per cent |
(Paragraph 11.49)
4. The Deceased or Unconscious Victim
The Deceased Victim
Recommendation 111:
No compensation for permanent disability should be paid where an injured person dies before assessment of the degree of disability or payment of the sum due.
(Paragraphs 11.51-11.52)
The Unconscious Victim
Recommendation 112:
Where a person is permanently unconscious or otherwise totally and permanently unaware of his or her disability, compensation for permanent disability should only be payable where that person has a dependent spouse and/or children.
(Paragraphs 11.53-1.56)
5. Duty to Mitigate
Recommendation 113:
In assessing the degree of permanent disability, the Corporation should have regard to any unreasonable refusal by an injured person to participate in a rehabilitation program or to undergo medical treatment where these may have reduced the degree of permanent disability.
V. COMPENSATION IN RESPECT OF DEATH
A. Introduction
l. The Need for Provision of Death Benefits
Recommendation 114:
Compensation in respect of death should be provided to the spouse, children and other dependent family members of people killed in transport accidents, provided that the death is caused by or arises out of a transport accident.
(Paragraphs 12.1-12.8)
2. Eligible Claimants and Recommended Benefits
Dependant
Recommendation 115:
A dependent should be defined as a person who, at the date of the accident resulting in the deceased’s death was dependent upon, or interdependent with, the deceased.
(Paragraphs 12.17-12.18)
Spouse
Recommendation 116:
“Spouse” should include a de facto partner of the deceased who is living with the deceased, at the date of death. A de facto relationship is one between a man and a woman who, although not married to each other, late together as husband and wife on a bona fide domestic basis.
(Paragraph 12.21)
Child
Recommendation 117:
“Child” should be defined to include a child in relation to whom the deceased stood in loco parentis.
(Paragraph 12.24)
Recommendation 118:
For the purpose of a child’s eligibility to benefits on the death of a parent “child” should mean a child who has not attained the age of 16 years or, where the child is a full-time student or physically or mentally handicapped, 21 years, at the date of death. The term should not, however, include a child who is married or is living in a de facto relationship.
(Paragraph 12.25)
Recommendation 119:
Where the child who is eligible as a child member of the deceased’s household at the date of death, dependence of that child on the deceased should be conlusively presumed.
(Paragraph 12.26)
Other Family Member
Recommendation 120:
“Member of the family” should mean “spouse, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, grand-daughter, step-son, step-daughter, brother, sister, half-brother, half-sister”.
(Paragraph 12.28)
B. Lump Sum Payment
1. General
Recommendation 121:
Subject to the recommendations concerning apportionment of the lump sum, the dependent spouse, children and other dependent members of the family of the deceased should be eligible to claim a lump sum payment to a maximum of 130 times AWE (approximately $54,600 at June 1984). This should be so whether the deceased was an earner or non-earner.
(Paragraphs 12.30-12.32)
2. Surviving Spouse and/or Children
Recommendation 122:
Where the deceased is survived by a dependent spouse and/or children, but no other family dependents, the survivors should be entitled to claim the maximum lump sum. If there is more than one claimant, the Corporation should apportion the lump sum among them having regard to the degree of dependence.
(Paragraph 12.33)
3. Surviving Spouse and/or Children and Other Dependent Family Members
Recommendation 123:
Where the deceased is survived by a dependent spouse and/or children and one or more other members of the deceased’s family who were dependent on the deceased, those other members of the family should be entitled to claim a share of the lump sum. The share should be determined by the Corporation taking into account the degree of dependence, but should not exceed one-third of the lump sum unless the circumstances are exceptional.
(Paragraph 12.35)
4. Surviving Dependent Family Members Other Than Spouse and/or Children
Recommendation 124:
Where the deceased is survived by neither a spouse nor children but one or more dependent family members, those dependents should be entitled to claim the whole or part of the lump sum depending on the degree of dependence. Where there is more than one such dependent, each dependants share should be determined by the Corporation, taking into account their relative degrees of dependence.
(Paragraph 12.36)
C. Periodic Compensation for Children
Recommendation 125:
A child of the deceased who was dependent on the deceased should be entitled to periodic compensation at the rate of 8 per cent of AWE ($33.60 at June 1984). This Recommendation applies whether the deceased was an earner or non-earner.
(Paragraph 12.37)
Recommendation 126:
Periodic compensation to the child should continue until he or she:
(a) attains the age of 16 years. or in the case of a full-time student, or a mentally or physically handicapped child, 21 years;
(b) marries or enters a de facto relationship; or
(c) becomes self-supporting.
(Paragraph 12.38)
Recommendation 127:
The entitlement of a child to periodic compensation should not be affected by his or her earnings from part-time employment.
(Paragraph 12.40)
Recommendation 128:
Periodic compensation to a child should continue. notwithstanding the marriage or entry into a de facto relationship by the surviving parent who his the care and control of the child.
(Paragraph 12.41)
D. Additional Compensation for the Spouse of an Earner
1. Spouse of Earner with Child-Care Responsibilities
Recommendation 129:
Where the deceased was an earner and the Surviving Spouse:
(a) was a dependent of the deceased; and
(b) his the care and control of a child,
that Spouse should be entitled to claim compensation by way of periodic payments in his or her own right for the loss of support regardless of his or her earnings.
(Paragraph 12.44)
Recommendation 130:
Periodic benefits to a surviving spouse should be paid by instalments at the rate of 50 per cent of the net (after tax) earning capacity of the deceased up to a maximum of 75 per cent of the after tax equivalent of AWE for a period of five years from the date of the deceased’s death or until the youngest child in the claimant s care and control attains 16, whichever occurs earlier.
(Paragraph 12.47)
2. Surviving Spouse of an Earner with Long-Term Child-Care Responsibilities
Recommendation 131:
If, after five years from the death of the deceased the surviving spouse:
(a) has the care and control of a child;
(b) has a combined and unused income and earning capacity less than 50 per cent of the earnings of the deceased (as indexed) or 50 per cent of AWE, whichever is less;
periodic compensation should be paid to that spouse. The compensation should supplement the combined income and unused earning capacity (if any) of the spouse to bring it to 50 per cent of the earnings of the deceased, subject to a maximum of 50 per cent of the AWE ($210 at June 1984).
(Paragraph 12.48)
Recommendation 132:
Additional compensation after the first five years could cease when the youngest child in the care and control of the spouse attains 16 years or where the spouse ceases permanently to have the care and control of a child, whichever is the earlier.
(Paragraph 12.49)
3. Surviving Spouse of an Earner where the Earning Capacity of the Spouse is Impaired for Reasons other than Child-Care Responsibilities
Recommendation 133:
Where a surviving spouse was dependent on the deceased earner and the earning capacity and/or income of the surviving spouse is substantially impaired due to:
(a) poor health (including mental and physical disability), where the condition was evident at the date of death or within six months of the date;
(b) the fact that he or she is over 50 years of age and lacks relevant work skills; or
(c) the need to care for an aged or impaired member of his or her family or of the deceased’s family, where such care was undertaken at the date of the death of the deceased,
periodic compensation should be paid to that spouse.
(Paragraph 12.50)
Recommendation 134:
The compensation paid should supplement the combined income and earning capacity (if any) of the surviving spouse to bring him or her to 50 percent of the earnings of the deceased, subject to a maximum of 50 per cent of AWE ($210 at June 1984). We further recommend that this compensation should cease at the expiration of five years from the date of the deceased’s death or the cessation of the impairment of his or her earning capacity whichever is the earlier. Where the impairment temporarily ceases, compensation should be suspended but should resume if the impairment returns within the five year period.
(Paragraph 12.51)
4. Assessment of Earning Capacity
Recommendation 135:
In assessing the earning capacity of a surviving Spouse. the Corporation should apply the principles with any necessary modifications, applied to the assessment of the post-earning capacity of an injured person.
(Paragraph 12.53)
E. Replacement Household Services
Recommendation 136:
Subject to the assessment of need, dependent family members of a person:
(a) who is killed in a transport accident; and
(b) who, before the accident performed substantial household services for members of his or her household;
should be entitled to replacement services, to the extent necessary for the maintenance and preservation of the household of which the deceased was a member.
(Paragraph 12.54)
Recommendation 137:
In assessing the extent to which replacement household services are necessary, the Corporation should have regard to:
(a) the household services provided by the deceased before the accident;
(b) the number of defendants, their ages, and need for household services;
(c) the household services that other family members could reasonably be expected to provide after the death of the person;
(d) any new relationship formed by a surviving spouse of the deceased; and
(e) any special factors affecting the need of the dependents for household services.
in determining what is reasonable for the purposes of paragraph (c), the same criteria should apply as in the case of a disabled service provider.
(Paragraph 12.55)
Recommendation 138:
In assessing the extent to which replacement household services are necessary after the expiration of four weeks from the date of death, the corporation should have regard to the following additional criteria:
(a) the compensation and other benefits provided to household family members arising out of the transport accident;
(b) the earnings and other income of the spouse of the deceased; and
(c) the resources, financial or otherwise, available to household family members to meet the need for household services.
Except in cases of special hardship, replacement household services should not be provided after two years from the date of death.
(Paragraph 12.56)
Recommendation 139:
Where it would cause special hardship to terminate the provision of household services at the expiration of-two years, the Corporation should have power to continue such services for a further period not exceeding three years.
(Paragraph 12.57)
F. Limits of Benefits
1. General Limits
Time Between Accident and Death
Recommendation 140:
Where death caused by or arising out of a transport accident occurs:
(Paragraphs 12.58-12.59)
Deaths in Rapid Succession
Recommendation 141:
A person otherwise eligible to claim compensation for the death of another person should not be entitled to such compensation unless he or she survives the deceased for a period of not less than 30 days.
(Paragraph 12.60)
2. Limits on Periodic Payments to Spouse and Children
Recommendation 142:
Where compensation by way of periodic benefits is paid to a surviving spouse with the care and control of children during the first five years after the death of an earner-spouse, total weekly payments to spouse and children should not exceed 65 per cent of the earnings of the deceased, subject also to a ceiling on the earnings of the deceased of 150 per cent of AWE ($630 at June 1984).
(Paragraph 12.62)
Recommendation 143:
Where compensation by way of periodic benefits is paid to a surviving spouse:
(a) with the care and control of children during a period after five years from the death of an earner-spouse; or
(b) in other cases where the earning capacity of the surviving spouse has been substantially impaired during the first five years after the death of an earner-spouse,
total weekly payments to spouse and children should not exceed 65 percent of the earnings of the deceased or 65 per cent of AWE, whichever is the lesser.
(Paragraph 12.63)
Recommendation 144:
The Corporation should have the power to determine how any reduction in the compensation that otherwise would have been payable should be apportioned between the spouse and children.
(Paragraph 12.64)
Recommendation 145:
Where periodic compensation is payable to children only, the total weekly compensation paid to all dependent children should not exceed 32 per cent of AWE.
(Paragraph 12.65)
3. Death of Spouse or Child
Recommendation 146:
Periodic compensation payable to a spouse or child should cease on the death of that spouse or child.
(Paragraph 12.66)
4. Remarriage of Spouse
Recommendation 147:
Compensation by way of periodic benefit to a surviving spouse should cease on the remarriage of the spouse.
(Paragraph 12.67)
Recommendation 148:
When a surviving spouse who is receiving periodic compensation remarries within four years of the deceased’s death, or up to one year before his or her youngest child attains 16, he or she should receive a lump sum payment equivalent to one years instalments of compensation. If the remarriage occurs in the fifth year after the death or within one year of the youngest child attaining 16, the spouse should receive a lump sum payment equivalent to the remaining compensation which would have been paid by way of periodic benefit had the marriage not occurred.
(Paragraph 12.68)
G. Funeral Expenses
Recommendation 149:
The reasonable funeral expenses of people killed in transport accidents should be met by the Corporation.
(Paragraph 12.69)
H. Solatium
Recommendation 150:
No compensation should be paid as consolation for grief and bereavement (solatium) to a surviving spouse, children or other dependents of the deceased.
(Paragraph 12.71)
1. Administrative Matters
1. Interim Payments
Recommendation 151:
The Corporation should have power to make interim payments pending determination of claims (including claims for apportionment of a lump sum).
(Paragraph 12.72)
2. Establishing Eligibility
Recommendation 152:
The Corporation should develop procedures to ensure discovery of the identity of all persons eligible to claim the lump sum.
(Paragraph 12.73)
VI. MEDICAL, HOSPITAL AND RELATED SERVICES
A. General Principle
Recommendation 153:
Necessary and reasonable medical, hospital and related services should be provided to all people injured in transport accidents.
(Paragraph 13.4)
B. Hospital and Medical Services
1. Provision of Services
Recommendation 154:
Transport accident victims should be entitled to receive hospital and medical services through the general health care system on the same basis as other sick and disabled members of the community.
(Paragraphs 13.57-13.58)
Recommendation 155:
The application of general health care arrangements to transport accident victims should be the subject of negotiations between the State and the Commonwealth.
(Paragraph 13.60)
2. Cost
Recommendation 156:
The cost implications of extending general health care arrangements to transport accident victims should be the subject of negotiations between the State and the Commonwealth.
(Paragraph 13.68)
C. Ancillary Services and Home Nursing
Recommendation 157:
Where ancillary services are not available through Medicare, the Corporation should arrange the provision of ancillary services and home nursing reasonably required by transport accident victims.
(Paragraphs 13.69-13.70)
D. Nursing Home and Institutional Care
Recommendation 158:
The cost of providing nursing home accommodation to transport accident victims should be the subject of negotiations between the State and the Commonwealth.
(Paragraph 13.71)
VII. SCOPE OF THE SCHEME
A. Preliminary
1. Definitions
Recommendation 159:
A “ transport accident” should be defined as one caused by or arising out of the use of:
(a) a motor vehicle, except a motor vehicle being used for the purpose of organized motor sport, provided that where the accident occurs otherwise than on a public street the motor vehicle is registered under the law of New South Wales;
(b) an omnibus, taxi-cab, railway train water taxi, water ferry or other form of public transport, whether the accident occurs on land or water or on private or public property; and
(c) any other class of vehicle or form of transport included in the Scheme from time to time.
(Paragraphs 14.3-14.14)
2. Commonwealth Vehicles
Recommendation 160:
Motor vehicles and any forms of public transport owned or operated by the Commonwealth in New South Wales should be included in the Scheme.
(Paragraph 14.15)
B. Death or Bodily Injury
1. General
Recommendation 161:
The Scheme should apply to death or bodily injury caused by or arising out of a transport accident.
(Paragraph 14.16)
2. Pre-natal Injury
Recommendation 162:
Pre-natal injury should be included in the definition of bodily injury.
(Paragraph 14.17)
3. Nervous Shock
Recommendation 163:
Injury or incapacity resulting from nervous shock should be included in the definition of bodily injury.
(Paragraphs 14.18-14.19)
4. Artificial Members and Aids
Recommendation 164:
Bodily injury should be defined to include damage to artificial members, eyes or teeth, crutches or other artificial aids or spectacle glasses.
(Paragraph 14.20)
C. Problems of Causation
1. Pre-Accident Conditions
Recommendation 165:
In determining whether an incapacity or disability was caused by or arose out of a transport accident, no regard should be had to any latent condition existing at the time of the accident, but not then productive of disability or incapacity. This should be so notwithstanding that the latent condition would or may have resulted in or contributed to a later disability or incapacity.
(Paragraphs 14.27-14.32)
2. Post-Accident Aggravation of Injury
Recommendation 166:
A person entitled to benefits under the Scheme should not have those benefits reduced or terminated by reason of an event, not caused by or arising out of the transport accident, which causes further disability or incapacity to that person or which would have resulted in the same disability or incapacity. In such circumstances benefits should continue at the same level and for the same period as if the event had not occurred.
(Paragraphs 14.34-14.39)
D. Coverage of the Scheme
1. Geographical Scope
Recommendation 167:
The Scheme should apply to, and only to, death or bodily injury suffered by:
(a) a resident of New South Wales, whose death was, or injuries were, caused by or arose out of a transport accident in New South Wales;
(b) a person not resident in New South Wales (but resident in Australia) whose death was, or injuries were, caused by or arose out of a transport accident in New South Wales, provided that a motor vehicle or other form of transport involved in the accident, was registered or required to be registered in New South Wales, or was operated by the Urban Transit Authority of New South Wales or State Rail Authority of New South Wales.
(c) a person not resident in New South Wales (but resident in Australia) whose death was, or injuries were, caused by or arose out of a motor vehicle accident in New South Wales in which the identity of the motor vehicle which caused the accident cannot be established; and
(d) a person resident of New South Wales, whose death was, or injuries were, caused by or arose out of a transport accident occurring in Australia but outside New South Wales, provided that a motor vehicle or other form of transport involved in the accident was registered, or required to be registered in New South Wales, or was operated by the Urban Transit Authority of New South Wales or State Rail Authority of New South Wales.
Further, a motor vehicle or other form of transport capable of registration in New South Wales, which is registered in another State or Territory, should be deemed to be registered in New South Wales for the purposes of the Scheme on payment of such levy as is prescribed.
(Paragraphs 14.40-14.49)
2. Residents and Non-Residents
Definition of Resident
Recommendation 168:
A person should be regarded as resident in Australia, or in any State or Territory of Australia, where that person had at the time of the transport accident his or her principal place of residence there, or intended, within six months of that accident, to establish his or her principal place of residence there.
(Paragraph 14.50)
Australian Citizens
Recommendation 169:
An Australian citizen who is killed or injured in a transport accident in New South Wales and whose principal place of residence at that date is outside. Australia should be deemed to be resident in the State or Territory in which he or she had his or her last principal place of residence in Australia.
(Paragraph 14.51)
Overseas Residents
Recommendation 170:
Benefits under the Scheme, other than those payable in respect of death. should not be payable or provided to persons not resident in Australia at the date of the accident.
(Paragraphs 14.52-14.53)
Beneficiary Takes Up Residence Overseas Recommendation 171:
(1) If a person who is injured in a transport accident and is entitled to continuing compensation or benefits under the Scheme takes up residence outside Australia after the date of the accident:
(a) the Corporation should continue to pay compensation for loss of earning capacity to the extent it considers appropriate having regard to the circumstances of the person, the general levels of earnings in the country of residence or proposed residence and the opportunities to verify the extent of the person’s continuing incapacity, provided that if there has been an assessment of permanent incapacity, compensation should be paid in accordance with the assessment;
(b) the Corporation should continue to meet the cost of rehabilitation services to the extent it considers appropriate, having regard to the needs and circumstances of the person, the comparative cost of the services, the person’s eligibility for benefits in the country of residence or proposed residence and the opportunities to verify the persons continuing need for such services; and
(c) the provision of homemaker and attendant care services and other continuing benefits and allowances should be terminated.
(2) Needs-based periodic compensation in respect of death, payable pursuant to Recommendations 131 and 133, should not be available to a surviving spouse who is not resident in Australia.
(Paragraphs 14.55-14.56)
E. Abolition of Other Rights to Compensation
Recommendation 172:
Subject to the special provisions made with regard to work-related injuries, all rights, whether under common law or statute, to compensation for death or bodily injury caused by or arising out of a transport accident should be abolished, except for compensation payable or benefits provided under this Scheme.
(Paragraphs 14.57-14.67)
F. Indemnification of New South Wales Owner/Driver
Recommendation 173:
The owner and/or driver of a motor vehicle or other form of transport which is registered in New South Wales should be indemnified by the Corporation for any liability, for death or bodily injury, arising under the law of any other State or Territory.
(Paragraph 14.68)
G. Work- Related Accidents
I. Workers’ Compensation System
Recommendation 174:
Notwithstanding the abolition generally of rights to compensation (other than rights under the Scheme) for death or injury caused by or arising out of a transport accident, rights to compensation under the Workers’ Compensation Act, 1926, and any similar rights under an industrial agreement, award or statutory scheme under a law in force in New South Wales, should not be affected, except to the extent specifically provided in this Scheme.
(Paragraphs 14.69-14.79)
Recommendation 175:
The cost of meeting claims by workers arising out of transport accidents occurring in the course of employment or on the way to or from work should be met by employers and their insurers on the one hand, and by the Corporation on the other, in roughly the proportion such claims are currently divulged between the workers’ compensation system and the compulsory third party insurance system. This recommendation should be implemented by negotiated agreements between the Corporation and employers and insurers, using past guide. The agreements should provide for block payments or adjustments experience pursuant to an appropriate formula.
(Paragraph 14.80)
2. Common Law Actions and Work-Related Accidents
Recommendation 176:
The action for damages at common law or under the Compensation to Relatives Act, 1897 against an employer should not be abolished where death or injury to a workers arose out of or in the course of his or her employment notwithstanding that it was caused by or arose out of a transport accident.
(Paragraphs 14.81-14.83)
H. Double Compensation
1. Election and Alternative Sources of Compensation
Recommendation 177:
Where a person is entitled to benefits under the Scheme in respect of death or bodily injury and is also entitled to compensation or damages under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory in respect of the same death or bodily injury, such person should be given a period of three months from the date of the accident or from the onset of symptoms (whichever is later) to elect between the Scheme and other source of compensation. Such an election should be permitted within the three month period whether or not any other claim for compensation is made during that time, except that if an amount by way of a lump sum in redemption of entitlement to periodic payments or in final settlement of the claim (but not a payment under section 16 of the Workers’ Compensation Act 1926, or any similar payment) has been recovered in respect of the death or injury, no claim under the Scheme should be permitted.
(Paragraphs 14.84-14.89)
Recommendation 178:
The Corporation should have power to extend the period of three months, where undue hardship to the claimant would otherwise be caused. In particular, if a claim or proceedings other than a claim under the Scheme is concluded by a bona fide determination that the claimant has no right to compensation and no compensation has been received by the claimant the period of three months should be extended to permit a claim to be made under the Scheme.
(Paragraph 14.90)
2. Avoiding Double Compensation
General Principles
Recommendation 179:
Where a person, who elects to claim under the Scheme, has already been paid or has recovered compensation under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory in respect of the same death or bodily injury for which the claim is made, such compensation should be set-off against benefits otherwise payable or available under the Scheme.
(Paragraph 14.92)
Recommendation 180:
Where a person elects to claim benefits under the Scheme and the compensation previously paid or provided under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory is greater than that available under the Scheme to the date of election, appropriate adjustments should be made to future benefits under the Scheme until the excess is absorbed.
(Paragraph 14.93)
Special Provision for Work- Related Injury
Recommendation 181:
Notwithstanding the general provisions for set-off, compensation or damages received prior to lodgement of a claim under the Scheme under the Workers’ Compensation Act, 1926, or similar legislation in force in New South Wales for loss of earnings:
(a) for the first five working days of incapacity; and
(b) for any other period, to the extent that such compensation exceeds the amount payable under the Scheme for loss of earning capacity in equivalent circumstances,
should not be set off against benefits otherwise payable or available under the Scheme.
(Paragraph 14.94)
Forfeiture and Assignment of Rights
Recommendation 182:
Once a person has made a claim under the Scheme that person:
(a) should not be permitted to enforce any other entitlement to, or accept payment of, compensation in respect of the same death or bodily injury for which the claim is made; and
(b) should be disqualified from further entitlement to benefits under the Scheme and liable to repay benefits under the Scheme if the other entitlement is enforced or payment accepted in breach of this prohibition.
(Paragraph 14.95)
Recommendation 183:
Where a claimant is entitled to compensation otherwise than under the Scheme in respect of death or bodily injury for which compensation is payable under the Scheme, any such entitlement should, to the extent possible, be assigned by operation of law to the Corporation.
(Paragraph 14.96)
Recommendation 184:
The Corporation should have the power to enter into arrangements with any body exercising similar functions in any other State or Territory, for the purpose of recoupment or exchange of benefits or for any other form of co-operation necessary for the efficient administration of the Scheme.
(Paragraph 14.97)
3. Collateral Benefits
Recommendation 185:
A claimant who is entitled to sick pay or holiday pay in respect of a period of incapacity should be able to elect whether to take such pay or claim compensation for loss of earning capacity for that period. If the claimant elects to take such pay, the amount received should be set-off against the compensation otherwise payable for loss of earning capacity, except that there should be no set off:
(a) for the first five working days of incapacity; or
(b) for any other period, to the extent that the sick pay or holiday pay exceeds the compensation under the Scheme for loss of earning capacity for that period.
(Paragraphs 14.98-14.102)
Recommendation 186:
Benefits available to a claimant under the Scheme should not be reduced or otherwise affected by the payment of, or entitlement to ex gratia payments, accident insurance payments, retirement pensions, superannuation and similar benefits, or pensions or benefits under Commonwealth legislation.
(Paragraph 14.104)
I. Exclusion
1. Self-Inflicted Injury
Recommendation 187:
Benefits under the Scheme should not be available in respect of intentionally self-inflicted death or bodily injury.
(Paragraphs 14.106-14.116)
2. Crimes of Violence
Recommendation 188:
Benefits should not be available under the Scheme in respect of bodily injury or death sustained by a person in furtherance of or incidental to the commission of a crime involving an intention to inflict serious violence or substantial damage to property, for which he or she is convicted or against whom the offence is proven.
(Paragraph 14.117)
3. Driving Offences
Recommendation 189:
There should be no further exclusions from the Scheme on public policy grounds. However, consideration should be given to revising sentencing procedures to empower or require judges and magistrates to take into account entitlements to benefits under the Scheme when sentencing for offences related to transport accidents and to establish mechanisms for the enforcement of penalties against entitlements under the Scheme.
(Paragraphs 14.118-14.122)
4. Imprisonment
Recommendation 190:
All benefits under the Scheme should be suspended while a person otherwise eligible for benefits is imprisoned pursuant to conviction or sentence for any crime.
(Paragraph 14.123)
VIII. ADMINISTRATION OF THE SCHEME
A. Principles of Administration
Recommendation 191:
The administration of the Transport Accidents Scheme should be founded upon five basic principles:
- entitlement;
- independence;
- flexibility;
- high quality decision-making; and
- speed in decision-making and in providing compensation.
(Paragraphs 15.6-15.13)
B. Administrative Functions
Recommendation 192:
The body administering the Scheme should be responsible for the following general functions:
- promotion of the Scheme, dissemination of information concerning entitlements and assistance to people claiming or entitled to benefits;
- policy formulation for the purposes of administration and advice to government;
- assessment of claims and of continuing entitlement to benefits, payment of monetary compensation and the provision of other benefits;
- coordination of the delivery of services to transport accident victims;
- research; and
- promotion of accident prevention and safety.
(Paragraphs 15.14-15.26)
C. The Accident Compensation Corporation
Recommendation 193:
The legislation establishing the Transport Accidents Scheme should create a new authority to be known as the Accident Compensation Corporation of New South Wales. The Corporation should be responsible for the administration of the Scheme.
(Paragraphs 15.27-15.38)
D. Structure of the Accident Compensation Corporation
1. Accountability
Recommendation 194:
The Corporation should be required to submit a report on its activities to Parliament annually and its accounts should be audited by the Auditor General.
(Paragraph 15.40)
Recommendation 195:
The Corporation should not be subject to Ministerial direction or control in the administration of the Scheme.
(Paragraph 15.41)
2. Management
Recommendation 196:
The overall policy formulation and management of the Corporation should be the responsibility of a Board consisting predominantly of part-time members.
(Paragraph 15.42)
Recommendation 197:
The day-to-day administration of the Scheme, subject to the direction of the Board, should be the responsibility of the Corporation’s full-time Chief Executive. The Chief Executive should be a member of the Board and should be known as Managing Director.
(Paragraph 15.44)
3. Staff Structure
Recommendation 198:
The staff of the Corporation should not be subject to the Public Service Act, 1979. The Corporation should be empowered specifically to engage consultants on a part-time, casual or sessional basis.
(Paragraphs 15.45-15.46)
Recommendation 199:
Careful attention should be paid to selecting and training the staff. especially assessing officers who will be responsible for deciding claims.
(Paragraph 15.48)
4. Decentralisation
Recommendation 200:
To the maximum extent practicable, the administration of the Scheme, including the assessment and determination of claims, should be decentralised. For this purpose the Corporation should be empowered to establish regional offices.
(Paragraphs 15.49-15.50)
Recommendation 201:
The Corporation should be empowered to establish appropriate agency arrangements, but these should not extend to the determination and assessment of claims.
(Paragraph 15.51)
5. Investment of Funds
Recommendation 202:
The GIO should be responsible for the investment and management of the funds generated by the Transport Accidents Scheme, to the extent that they are not required by the Corporation to meet its liabilities.
(Paragraphs 15.52-15.53)
E. Policy Review
Recommendation 203:
The legislation should establish an independent body to be known as the Accident Compensation Policy Review Committee. The Committee should be under a duty to report annually to Parliament on t he operations of the Scheme and should be empowered to recommend changes to legislation and to the practices of the Corporation. The Committee should be empowered to require the Corporation to provide information relating to the Scheme and to the processing and determination of individual claims.
(Paragraphs 15.56-15.60)
Recommendation 204:
The Minister should have power to require the Corporation to respond in writing to a report of the Policy Review Committee within a specified period.
(Paragraph 15.61)
IX. DECISION-MAKING: ASSESSMENT AND APPEAL
A. Decision-Making within the Corporation
1. Powers of the Corporation
Recommendation 205:
The Corporation should have power to assess and investigate claims for compensation under the Scheme, including the continuing entitlement of claimants to compensation and the extent of that entitlement. The Corporation should have power to require claimants and employers, or former employers, of claimants to provide information reasonably required to assess claims.
(Paragraphs 16.9-16.13)
2. Advice and Assistance to Claimants
Recommendation 206:
The Corporation should provide assistance to accident victims and their families in preparing claims, presenting supporting material and maintaining continuing entitlement to compensation. In addition, the Corporation should provide funds to enable organisations to engage claimant representatives. These representatives should provide advice and assistance to claimants, and should act on behalf of claimants seeking review of Corporation decisions.
(Paragraph 16.14)
3. Assessing Officers
Recommendation 207:
The assessment of each claim and of a person’s continuing entitlement to compensation should be the responsibility of a single assessing officer. This officer should coordinate the collection of the information required for the purposes of assessment and should also co-ordinate the provision of services to claimants. The Corporation should ensure that assessing officers have authority to make the necessary investigations and decisions in relation to claims and continuing entitlements.
(Paragraphs 16.16-16.19)
4. Medical Assessment
Recommendation 208:
The Corporation should have power to require a claimant to undergo reasonable medical examination by a doctor (or panel of doctors) nominated by the Corporation. The Corporation should take the resulting report into account in reaching a decision but, if the decision is unfavourable, should make the report available to the claimant.
(Paragraphs 16.20-16.22)
5. Claims Manual
Recommendation 209:
The Corporation should prepare and publish a detailed claims manual.
(Paragraphs 16.23-16.24)
6. Interim Assessment
Recommendation 210:
The Corporation should have power to make an interim assessment of compensation under the Scheme and to act on such an assessment. Where the interim assessment results in the claimant being under-compensated or over-compensated, the Corporation should make the necessary adjustments to remedy the position. However, the Corporation should have power to waive the requirement that the claimant refund over-compensation if he or she has acted in good faith has complied with the reasonable requests of the Corporation, and would suffer hardship if the requirement were to be enforced.
(Paragraphs 16.25-16.26)
7. Notification of Adverse Decisions
Recommendation 211:
Where the Corporation has made what it considers to be an adverse decision on a claim, the claimant should be notified to that effect within 14 days of the making of the decision, by a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
(Paragraph 16.27)
8. Time Limits
Recommendation 212:
A claim for compensation under the Scheme should be lodged within one year of the date of the accident or the onset of symptoms, whichever is later. A claim outside this period should be entertained if the claimant has a reasonable excuse for failing to lodge the claim within the period. However, no claim should be entertained if made more than three years from the date of the accident or of the onset of symptoms, whichever is later.
(Paragraph 16.28)
9. Secrecy and Protection from Defamation
Recommendation 213:
The governing legislation should impose secrecy requirements on the Corporation concerning information supplied in relation to individual claims and should extend appropriate protection against defamation to officers of the Corporation, medical practitioners and others required to supply such information.
(Paragraph 16.29)
B. The First Stage: Compensation Review Panels
1. General
The Appeal
Recommendation 214:
A person aggrieved by a decision of the Corporation or by its failure to make a decision within a reasonable period, should be entitled to appeal to an independent Compensation Review Panel.
(Paragraphs 16.30-16.39)
Limitation Period
Recommendation 215:
An appeal to a Compensation Review Panel should be lodged within 56 days of the claimant or other aggrieved person being notified by the Corporation of an adverse decision. The Panel should have power to extend the period when there are good reasons for doing so.
(Paragraph 16.40)
Parties
Recommendation 216:
The Corporation should not be a party to proceedings before a Compensation Review Panel.
(Paragraph 16.41)
2. Decision-Making Powers of the Panels
Recommendation 217:
Compensation Review Panels should have power to reverse, affirm or vary the decision under review, to substitute their own decision or to remit the matter to the Corporation with or without directions. The Panels should have all the powers and discretions conferred on the Corporation and should not be bound by the policies of the Corporation.
(Paragraph 16.42)
3. Constitution of the Panels
Recommendation 218:
Each Compensation Review Panel should be constituted by three members appointed by the Minister. The Chairperson should be legally qualified, while the other two members should be people with skills or expertise in other relevant disciplines.
(Paragraph 16.43)
Recommendation 219:
Officers of the Corporation should not be members of Compensation Review Panels.
(Paragraph 16.44)
4. Procedures
Informality and the Rules of Evidence
Recommendation 220:
Proceedings before Compensation Review Panels should be conducted with as little formality and technicality, and with as much expedition as fairness to the appellant, the requirements of the legislation and a proper consideration of the subject under review permit. Other than this requirement, the procedures of the Panels should be within their discretion. Furthermore, the Panels should not be bound by the rules of evidence, but should be empowered to inform themselves on any matter in such manner as they think appropriate.
(Paragraph 16.45)
The Corporation’s File
Recommendation 221:
Within 14 days of an appeal being lodged, the Corporation should forward the file to the Compensation Review Panel. Unless there are special circumstances, a copy of the file should be made available to the appellant Sensitive medical information should be forwarded to a medical practitioner nominated by the appellant.
(Paragraph 16.47)
Public Hearings
Recommendation 222:
Proceedings before a Compensation Review Panel should be open to the public unless a Panel, on the request of the appellant, orders otherwise.
(Paragraph 16.48)
Powers of the Compensation Review Panels
Recommendation 223:
The Compensation Review Panels should have power:
(a) to stay or qualify the suspension reduction or cancellation of compensation and to order the Corporation to accede, wholly or in part, to a claim pending determination of an appeal;
(b) to require the Corporation to provide information relevant to an appeal and to invite the Corporation to present argument or material to the Panels; and
(c) to require an appellant to submit to reasonable examination by a nominated doctor or panel of doctors, or by other nominated professional persons.
(Paragraph 16.49)
Representation
Recommendation 224:
In proceedings before a Compensation Review Panel an appellant should be entitled to be represented by a person of his or her choice, whether or not legally qualified.
(Paragraphs 16.50-16.52)
Expenses
Recommendation 225:
An appellant should not be liable to meet the costs of the Corporation relating to proceedings before a Compensation Review Panel. A successful appellant should ordinarily be reimbursed for the reasonable expenses of the appeal. The Panels should have power in exceptional circumstances to order the Corporation to reimburse the expenses of an unsuccessful appellant.
(Paragraph 16.54)
Costs
Recommendation 226:
Where a legally represented appellant succeeds, he or she should be awarded costs in accordance with a modest fixed scale which recognises the informal and expeditious nature of proceedings before the Compensation Review Panels. In exceptional circumstances, the Panels should be able to award such costs to an unsuccessful appellant.
(Paragraph 16.55)
Reasons for Decision
Recommendation 227:
Compensation Review Panels should be required to give decisions in writing and to provide statements of their findings on material facts and reasons for their decisions. A statement should be reduced to writing within 14 days of a request to that effect by an appellant or by the Corporation.
(Paragraph 16.56)
C. The Second Stage: Accident Compensation Appeal Tribunal
1. The Appeal
Recommendation 228:
An appeal from the decision of a Compensation Review Panel should lie to the Accident Compensation Appeal Tribunal. Both an appellant in proceedings before the Panel and the Corporation should have the right to appeal. The Corporation should be a party to the proceedings before the Tribunal. An appeal should be instituted within three months of the Panels decision unless the Tribunal extends the time for appeal.
(Paragraphs 16.57-16.59)
2. Powers of the Accident Compensation Appeal Tribunal
Recommendation 229:
The Accident Compensation Appeal Tribunal should have power to reverse, affirm or vary the decision under review, to substitute its own decision or to remit the matter to the Corporation. The Tribunal should have all the powers and discretions conferred on the Corporation and should not be bound by the policies of the Corporation.
(Paragraphs 16.60-16.62)
3. Constitution of the Tribunal
Recommendation 230:
The Accident Compensation Appeal Tribunal should generally be constituted by a Judge of the status of a District Court Judge, sitting with two non-judicial members. In cases raising issues of law only, the Tribunal should be constituted by a Judge sitting alone.
(Paragraphs 16.63-16.64)
Recommendation 231:
Non-judicial members should be selected from a panel of people with skills or expertise in relevant disciplines. They should serve on a part-time or full-time basis for terms of up to seven years and should be eligible for re-appointment. The non-judicial members should have the same vote as the judicial member, except that questions of law should be decided in accordance with the opinion of the judicial member.
(Paragraph 16.65)
4. Procedures of the Tribunal
Informality
Recommendation 232:
Proceedings before the Accident Compensation Appeal Tribunal should be conducted with as little formality and technicality, and with as much expedition, as fairness to the parties, the requirements of the legislation and a proper consideration of the matters before it permit. Other than this requirement the procedures of the Tribunal should be within its discretion.
(Paragraphs 16.66-16.67)
Rules of Evidence
Recommendation 233:
The Accident Compensation Appeal Tribunal should not be bound by the rules of evidence but should be empowered to inform itself on any matter in such manner as it thinks appropriate.
(Paragraph 16.70)
Recommendation 234:
Evidence of statements made orally to a Compensation Review Panel should not be admissible in proceedings before the Accident Compensation Appeal Tribunal, unless the parties consent.
(Paragraph 16.72)
5. Proceedings Before the Tribunal
Open Hearings
Recommendation 235:
Proceedings before the Accident Compensation Appeal Tribunal should be open to members of the public unless the Tribunal orders otherwise.
(Paragraph 16.74)
Suspension of Decision Appealed From
Recommendation 236:
The Accident Compensation Appeal Tribunal should have all the powers of the Compensation Review Panels to prevent a party suffering hardship pending determination of the appeal and in obtaining information required to dispose of the appeal.
(Paragraph 16.75)
Representation
Recommendation 237:
A party to proceedings before the Accident Compensation Appeal Tribunal should be entitled to be represented by any person whether or not legally qualified.
(Paragraph 16.76)
Witnesses
Recommendation 238:
The Accident Compensation Appeal Tribunal should have power to summon witnesses, take evidence on oath and require the production of documents.
(Paragraph 16.77)
Costs
Recommendation 239:
The Accident Compensation Appeal Tribunal should have power to award costs, but an award of costs should not be made in favour of the Corporation unless the circumstances are exceptional. In exceptional circumstances the Tribunal should be able to award costs in favour of an unsuccessful appellant. Costs of legal representation should be awarded in accordance with a scale approved by the Tribunal.
(Paragraph 16.78)
Reasons for Decision
Recommendation 240:
The Accident Compensation Appeal Tribunal should be required to give its decision in writing and to give a statement of the reasons for the decision. At the request of a party the reasons should be reduced to writing within 14 days.
(Paragraph 16.79)
The Forum
Recommendation 241:
Ideally, the role and functions of the Accident Compensation Appeal Tribunal should be performed by a general Administrative Appeals Tribunal established under State law.
(Paragraphs 16.80-16.81)
Recommendation 242:
By a majority, pending the establishment of a general Administrative Appeals Tribunal under State law, the Accident Compensation Appeal Tribunal should be created as a separate body. Membership of the Tribunal should include a small group of Judges of District Court status, serving full-time. Nominated judges of the District Court or Compensation Court should be eligible to serve as members on a part-time basis. In accordance with Recommendation 231, membership will include non-lawyers.
(Paragraph 16.86)
D. Further Appeal
Recommendation 243:
An appeal should be available on issues of law from the Accident Compensation Appeal Tribunal to the Court of Appeal of the Supreme Court of New South Wales, and that the Tribunal should itself have the power to refer a question of law to the Supreme Court.
(Paragraph 16.87)
X. FINANCIAL ASPECTS
A. Funding of Scheme
Recommendation 244:
The Scheme should be funded on a pay-as-you-go basis, with reasonable reserves set aside to guard against disaster or unexpected contingencies.
(Paragraphs 17.23-17.25)
B. Major Revenue Sources
1. Contributions from Motor Vehicle Owners
Recommendation 245:
The primary source of funding for the Scheme should be contributions payable on registration of motor vehicles and of other forms of privately owned transport, using where appropriate the same procedures as now apply to the payment of compulsory third party motor vehicle premiums.
(Paragraph 17.28)
2. Contributions from Public Transport Authorities
Recommendation 246:
The State Rail Authority and Urban Transit Authority should be required to make an annual contribution to the Scheme assessed by reference to the cost of meeting claims arising out of accidents in which each Authority is involved.
(Paragraph 17.31)
3. Levy on Driving Licences
Recommendation 247:
The Scheme should be financed, in part by levies on the issue or renewal of drivers licences.
(Paragraphs 17.32-17.33)
4. Review of Revenue Sources
Recommendation 248:
The Corporation should keep the question of revenue for the Scheme under close review and make any proposals it considers appropriate in annual reports or reports to the Minister. Contributions to the Scheme should be set by the Government, after receiving advice from the Corporation.
(Paragraph 17.37)
C. Risk Factors, Safety and Funding
1. Vehicle Risk Classifications
Recommendation 249:
Contributions to the Scheme from motor vehicle owners should be assessed taking into account the risk of accidental death and injury associated with the use of particular classes of vehicles.
(Paragraphs 17.41-17.44)
2. Driver Risk Ratings
Recommendation 250:
Levies on the issue or renewal of licences should include penalty loadings to take account of driving offences committed by the licence holders or poor accident records.
(Paragraphs 17.45-17.46)
D. Other Funding Sources
Recommendation 251:
The State should enter into negotiation with the Commonwealth with a view to securing the Commonwealth’s agreement to meet an appropriate proportion of the cost of providing medical and hospital services to transport accident victims through the Medicare system.
(Paragraphs 17.54-17.57)
E. Transitional Arrangements
Recommendation 252:
The Scheme should apply to death or bodily injury caused by or arising out of a transport accident which occurs on or after the date on which the governing legislation comes into effect.
