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Where am I now? Lawlink > Law Reform Commission > Publications > Report 43 (1984) - Accident Compensation: A Transport Accidents Scheme for New South Wales
Report 43 (1984) - Accident Compensation: A Transport Accidents Scheme for New South Wales Table of Contents
Terms of Reference and Participants Accident Compensation Reference Publications
I. Background to the Report A. Terms of Reference B. Publications 1. Issues Paper 2. Working Paper C. Research Program 1. Case Studies 2. Other No-Fault Compensation Schemes 3. Modification of the Common Law 4. Health Care and Rehabilitation 5. Workers' Compensation 6. Aspects of the Transport Accidents Scheme D. Public Consultations 1. Preliminary Discussions 2. Submissions 3. Meetings and Seminars 4. Interstate and Overseas Contacts 5. Consultative Committees 6. Rehabilitation A. Motor Vehicle Accidents 1. The Magnitude of the Problem 2. Failure to Compensate Motor Vehicle Accident Victims 3. Community Concern 4. No-Fault Motor Vehicle Accident Compensation Schemes 5. Cost Pressures 6. Funding Source B. Public Transport Accidents III. Structure of this Report A. Background B. Existing Compensation Systems C. General Principles D. A Comparison E. A Transport Accidents Scheme for New South Wales: Detailed Proposals F. Scope of the Scheme G. Administration and Decision-Making H. The Cost of the Scheme I. The Scheme in Context CHAPTER 2. THE COMPENSATION SYSTEM I. Introduction II. Historical Background A. The Common Law 1. Negligence as a Basis for Compensation 2. Restrictions on the Common Law Negligence Action B. Expanded Compensation Arrangements 1. The Negligence Action 2. Statutory Compensation Schemes 3. The Action for Breach of Statutory Duty C. Distribution of Losses 1. Spreading the Risk 2. Compulsory Insurance A. The Common Law Negligence Action 1. Liability 2. Damages 3. Wrongful Death Claims 4. Loss of Consortium 5. Summary B. Workers' Compensation C. Limited Statutory Schemes 1. Criminal Injuries Compensation 2. Sporting Injuries D. The Social Security System 1. Invalid Pensions 2. Sickness Benefits 3. Unemployment Benefits and Sheltered Employment Allowances 4. Services and Fringe Benefits for Social Security Recipients 5. Commonwealth Rehabilitation Service 6. Summary
CHAPTER 3. THE COMMON LAW NEGLIGENCE ACTION I. Introduction II. A Critique of the Common Law A. Arguments in Support 1. The Fault Principle 2. Deterrence 3. Lump Sum Awards 4. Individual Assessment and Full Compensation 5. The Decision-Making Process B. Arguments Against 1. The Fault Principle 2. Other Inadequacies of the Fault Principle 3. Once-and-For-All Assessment 4. Difficulties in Assessing Non-Economic Loss 5. Effects of the Common Law on Rehabilitation 6. Delays 7. Burden on the Court System 8. Legal and Administrative Costs 9. Judicial Independence 10. Increasing Cost of Motor Vehicle Third Party Insurance 11. Incidental Costs to the Community C. The Need for Reform III. Summary
CHAPTER 4. PROPOSALS FOR REFORM I. The Range of Proposals II. Modification of the Common Law A. Interim Assessment and Periodic Payments 1. Western Australia 2. South Australia 3. United Kingdom 4. New South Wales 5. Victoria 6. Tasmania 7. Structured Settlements B. Limits on Awards C. Procedural Changes D. Other Modifications III. No-Fault Schemes to Supplement the Common Law A. Victoria B. Tasmania IV. No-Fault Schemes Replacing the Common Law V. Comprehensive No-Fault Schemes A. New Zealand B. Australia VI. Proposals in New South Wales VII. Summary
I. Introduction A. Losses B. Safety C. Rehabilitation II. Influences on Policy Making A. A State Inquiry B. The Established System C. Cost III. Comprehensive Entitlement IV. The Assessment of Compensation A. The Models B. The Welfare Model 1. Characteristics 2. Advantages 3. Disadvantages C. The Disability Model 1. Characteristics 2. Advantages 3. Disadvantages D. The Restitution Model 1. Characteristics 2. Advantages 3. Disadvantages E. The Approach 1. Background 2. The Restitution Model 3. The Disability Model 4. The Welfare Model A. Money or Services B. Lump Sums or Periodic Payments VI. Administration and Decision-Making A. Administration B. Dispute Resolution VII. Summary
CHAPTER 6. THE CHOICE: PURE NO-FAULT OR A DUAL SCHEME? I. Introduction A. The Common Law B. Proposals for a Dual Scheme II. A Comparison: No-Fault and a Dual Scheme A. Abolition of Fault as a Criterion for Compensation B. Full Compensation 1. The No-Fault Scheme 2. The Dual Model C. Individual Assessment D. Form of Compensation E. Independent judicial Review F. Delays G. Rehabilitation H. Costs 1. Administrative Expenses 2. Overall Costs
CHAPTER 7. COMPENSATION FOR LOSS OF EARNING CAPACITY - I I. Introduction II. Earners A. General Principles 1. The Yardstick 2. Measurement of Loss 3. Definition of Earner B. Assessment of Earning Capacity- Employees 1. Definition of Earnings 2. Assessment of Earnings C. Assessment of Earning Capacity. Self-Employed People 1. The Problem 2. The Basis for Assessment of Loss 3. The Earnings Approach 4. The Replacement Services Approach 5. The Equivalent Employee Approach 6. Earnings both as an Employed and Self-Employed Person D. Long-Term Incapacity: The Floor III. Post-Accident Earning Capacity A. The Issue B. The Suggested Approach C. Notice IV. Potential for Advancement A. Eligibility to Claim B. Assessment of Potential for Advancement 1. The Criteria 2. Limits on Speculation A. Definition B. Compensation for Loss of Earning Capacity C. Assessment of Compensation 1. Notional Earning Capacity 2. Potential for Advancement 3. Post-Accident Earning Capacity D. Short-Term Incapacity VI. Summary
CHAPTER 8. COMPENSATION FOR LOSS OF EARNING CAPACITY - II I. The Form and Payment of Compensation A. Periodic Payments B. Redemptions C. Gross Earnings D. Proportion of Loss Compensated E. The Ceiling F. Indexation of Compensation G. Assignability of Benefits II. Commencement and Termination of Benefits A. Commencement of Benefits B. Waiting Periods 1. The First Five Days 2. “Earners” Not in Workforce C. Termination of Benefits 1. General 2. Age Limits IV. Summary
I. Introduction II. Emergence of Rehabilitation A. Australia 1. Charities 2. The Commonwealth Government 3. The State Hospital System 4. The Workers' Compensation System 5. The Australian Woodhouse Committee 6. The Victorian No-Fault System B. New Zealand C. International Developments D. Anti-Discrimination Legislation III. Role of the Accident Compensation Corporation A. The Right to Rehabilitation B. Ensuring the Provision of Rehabilitation Services C. A Rehabilitation Section IV. Medical and Functional Rehabilitation A. The Aim B. Problems Requiring Attention 1. Medical Treatment 2. Shortage of Rehabilitation Specialists 3. Centralised Services A. Medical Equipment and Pharmaceutical Supplies B. Aids and Appliances C. Research VI. Workforce Rehabilitation A. Training and Retraining B. Alteration to Workplace C. Liability to Pay Workers' Compensation D. Placement Programs E. Return to Work and Compensation Entitlement F. Business Loans VII. Social Rehabilitation VIII. Summary
CHAPTER 10. SUPPORT SERVICES AND INDEPENDENT LIVING I. Introduction II. Household Services A. Introduction B. Scope of Household Services C. Provision of Services D. Possible Limits III. Attendant Care A. Introduction B. Assessment of Need C. Provision of Services D. Family Members IV. Emergency Family Support V. Accommodation A. Introduction B. Home Ownership C. Home Modifications D. Institutional Accommodation VI. Mobility A. Introduction B. Vehicle Modifications C. Mobility Allowance VII. Summary
CHAPTER 11. COMPENSATION FOR PERMANENT DISABILITY I. Introduction II. The Concept of Permanent Disability A. The Meaning of Permanent Disability B. The Scope of Permanent Disability III. Comparisons with Existing Compensation Systems A. The Common Law 1. Pain and Suffering 2. Loss of Amenities and Enjoyment of Life 3. Loss of Expectation of Life 4. Once-and-For-All Assessment 5. Why not the Common Law Approach B. The New South Wales Workers' Compensation System C. The New Zealand Accident Compensation Act 1. Compensation for Permanent Impairment 2. Compensation for Pain and Suffering A. The Form of Compensation B. The Amount of Compensation C. Thresholds 1. A Minimum Level of Disability 2. Total Disability D. Variations Because of Age E. The Deceased or Unconscious Victim 1. The Deceased Victim 2. The Unconscious Victim F. Duty to Mitigate G. Assessment V. Summary
CHAPTER 12. COMPENSATION ON DEATH I. Introduction A. The Need for Death Benefits B. Other Compensation Systems 1. Common Law 2. Workers' Compensation 3. No-Fault Schemes C. Form of Compensation - Working Paper Proposals Reconsidered D. Eligible Claimants 1. Material Dependence 2. Family Membership 3. Eligibility Summarised A. Surviving Spouse and/or Children B. Surviving Spouse and/or Children and Other Dependent Family Members C. Surviving Dependent Family Members Other than Spouse and/or Children III. Periodic Compensation for Children IV. Additional Compensation for the Spouse of an Earner A. Spouse of Earner with Child-Care Responsibilities B. Surviving Spouse of an Earner with Long-Term Child-Care Responsibilities C. Surviving Spouse of an Earner where the Earning Capacity of the Spouse is Impaired for Reasons other than Child-Care Responsibilities D. Assessment of Earning Capacity V. Replacement Household Services VI. Limits of Benefits A. General Limits 1. Time Between Accident and Death 2. Deaths in Rapid Succession 3. Deaths of Both Parents B. Limits on Periodic Payments to Spouse and Children C. Death Of Spouse or Child D. Remarriage Of Spouse VII. Funeral Expenses VIII. Solatium IX. Administrative Matters A. Interim Payouts B. Establishing Eligibility X. Summary
CHAPTER 13. MEDICAL, HOSPITAL AND RELATED SERVICES I. Introduction II. A Necessary Balance A. The Experience in Other No-Fault Schemes B. The Experience of the General Health Care System C. Lessons for the Transport Accidents Scheme III. Existing Health Care Arrangements A. The Community Generally 1. Medical Costs 2. Hospital Costs 3. Ancillary Services 4. Convalescent Care 5. Home Nursing Care 6. Institutional Care B. The Compensable Accident Victim 1. Medical Costs 2. Hospital Costs 3. Other Services A. Introduction B. Medical and Hospital Funds 1. Provision of Services 2. The Cost C. Ancillary Services and Home Nursing D. Nursing Home and Institutional Care V. Summary
CHAPTER 14. SCOPE OF THE SCHEME I. Introduction II. Transport Accidents A. Forms of Transport 1. Motor Vehicles 2. Public Transport 3. Other Forms of Transport 4. Motor Sports B. Transport Accident Defined C. Commonwealth Vehicles III. Death or Bodily Injury A. Pre-natal injury B. Nervous Shock C. Artificial Members and Aids IV. Problems of Causation A. Death or Bodily Injury “Caused by or Arising out of the Use of a Motor Vehicle or Other Forms of Transport B. Pre-Accident Condition 1. The Causal Connection 2. Existing Disability or Incapacity 3. Latent Disability or Incapacity 4. Susceptibility to Injury C. Post-Accident Aggravation of Injury 1. Consequences of the Transport Accident 2. Independent Events A. Geographical Scope 1. Other Schemes 2. Our Approach 3. Limits on Coverage 4. Recommendations B. Residents and Non-Residents 1. Definition of Resident 2. Overseas Resident 3. Beneficiary under the Scheme takes up Residence Overseas A. Introduction B. Defective Products C. Occupiers' Liability D. Conclusion VII. Indemnification of New South Wales Owner/Driver VIII. Work-Related Accidents A. The Workers' Compensation System 1. Journey Transport Accidents 2. Course of Employment Transport Accidents 3. The Cost of Course of Employment and Journey Claims 4. Recommendations B. Common Law Actions and Work- Related Accidents IX. Double Compensation A. Election and Alternative Source of Compensation B. Avoiding Double Compensation 1. Set-Offs 2. Forfeiture and Assignment of Rights C. Collateral Benefits 1. The Existing System 2. Proposals for the Scheme A. Exclusions under Existing Schemes 1. New Zealand 2. Victoria 3. Tasmania 4. Northern Territory B. Matters of Principle 1. The Policy Choice 2. What is Excluded? C. Proposals 1. Self-Inflicted Injury 2. Crimes of Violence 3. Driving Offences 4. Imprisonment
CHAPTER 15. ADMINISTRATION OF THE SCHEME I. Introduction II. Principles of Administration III. Administrative Functions A. Promotion Of the Scheme and Assistance to Claimants B. Policy Formulation C. Assessment of Entitlements and the Provision of Benefits D. Coordination E. Research F. Accident Prevention and Safety G. Conclusion IV. The Accident Compensation Corporation A. The Options B. An Independent Statutory Authority V. Structure of the Accident Compensation Corporation A. Accountability B. Management C. Staff Structure D. Decentralisation E. Investment of Funds F. Liablilty to Taxation VI. Policy Review VII. Summary
CHAPTER 16. DECISION-MAKING: ASSESSMENT AND APPEAL I. Introduction II. Decision-Making Within the Corporation A. The Claims Process B. Assessment of Continuing Entitlement to Compensation C. Powers D. Advice to Claimants E. Assessing officers F. Medical Assessment G. The Claims Manual H. Interim Assessment I. Adverse Decisions J. Time Limit K. Secrecy and Protection from Defamation III. The Appeal Structure A. Introduction B. A Two-Tiered System IV. The First Stage: Compensation Review Panels A. The Appeal B. Decision-Making Powers C. Constitution of the Panels D. Procedures 1. Informality and the Rules of Evidence 2. The File 3. Open Hearings E. Powers F. Representation G. Witnesses H. Expenses and Costs I. Reasons for Decision V. The Second Stage - The Accident Compensation Appeal Tribunal A. The Appeal B. Decision-Making Powers C. Constitution of the Tribunal D. Procedures of the Tribunal 1. Informality 2. Rules of Evidence 3. Preliminary Conferences 4. Open Hearings E. Powers F. Representation G. Witnesses H. Expenses and Costs I. Reasons for Decision J. Placement of the Tribunal VI. Further Appeal VII. Other Review VIII. Summary
I. Introduction II. Cost Estimates A. Data and Assumptions B. Costing Alternatives 1. Pay-As-You-Go Scheme 2. Fully Funded Scheme 3. The Existing System 4. Dual Scheme - Limited No-Fault/Common Law 5. Interstate Aspects of the Scheme 6. A Comparison IV. Major Revenue Sources A. Contributions from Motor Vehicle Owners B. Contributions from Public Transport Authorities C. Levy on Drivers' Licences D. Fines for Motoring Offence E. Motor Fuel Tax F. Review of Revenue Sources V. Risk Factors, Safety and Funding A. Introduction B. Vehicle Risk Classification C. Driver Risk Ratings D. Public Transport Authorities VI. Other Funding Sources A. Course of Employment and Journey Accidents B. Interstate Accidents C. The Commonwealth 1. Commonwealth Vehicles and Employees 2. Commonwealth Financial Assistance VIII. Summary
CHAPTER 18. THE SCHEME IN CONTEXT I. Introduction II. The Drawbacks of a Limited Scheme III. From Transport Accidents to a Comprehensive Scheme
APPENDICES A. THE NEW SOUTH WALES COMMUNITY AND TRANSPORT ACCIDENT VICTIMS - SOME STATISTICS B. SUBMISSIONS RECEIVED PRIOR TO RELEASE OF WORKING PAPER I IN MAY 1983 C. SUBMISSIONS RECEIVED FOLLOWING RELEASE OF WORKING PAPER I E. MEETINGS AND SEMINARS ATTENDED IN THE COURSE OF THE REFERENCE F. RESPONSES TO THE COMMISSION'S WORK
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