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David and Goliath battles loom for injured accident victims

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Imagine being seriously injured while crossing the street or driving to work.

Imagine ambulances, hospital admissions, time off work, reconstructive surgery, and a long and gruelling road to recovery which requires expensive therapy and more time off work.

Now imagine that new rules to Compulsory Third Party Insurance about to be introduced into the ACT mean you will no longer be able to seek the support of a lawyer to claim compensation amid all your pain and suffering. Instead, you must summon the strength to go into battle for every dollar with the insurance giants themselves.

Sounds stressful, doesn’t it?

But it is the tip of the iceberg of a new legal framework which will seriously erode the rights of innocent accident victims – seeing an estimated 91 per cent of them paid less than they would under existing laws, according to the ACT’s legal fraternity.

As the Legislative Assembly next month begins debating the controversial changes, the ACT Law Society and personal injury lawyers across the city are bracing for the fallout.

They are not the only ones who have pointed to flaws in the proposed system.

Unions ACT has taken the unusual step of condemning the ALP over the scheme which it says significantly erodes the rights of workers to fair compensation and support, saying the clauses relating to injured victims being assessed by medical examiners from insurance companies – and not their own doctors – is particularly troubling.

In The Canberra Times last month, Unions ACT secretary Alex White said the changes would negatively impact on workers’ recovery, wellbeing and income.

Maliganis Edwards Johnson (MEJ) partner Craig Edwards said he was astounded the Government was pushing through the legislation despite a groundswell of opposition and criticism.

But he feared that ordinary members of the public had not considered how these changes could impact on them as few people ever bargained on sustaining serious injuries in a motor vehicle accident.

Having spent 36 years as a personal injuries lawyer, Craig said his current caseload of accident victims were highly alarmed at what was in store.

“I’d say 99 per cent are in total opposition to the Government’s changes. But these people make up only 1-2 per cent of the population. The rest of the population, and this is the great strength of the government’s position, have no involvement in any personal injury, catastrophe or issue. So for them, these changes are out of sight and out of mind.

“The average person says, I won’t be injured. My kids won’t be injured. It’s not going to happen to us. And of course, when it does, it might be too late.”

But while only a small proportion of Canberrans are likely to ever suffer an accident, Craig noted all ACT taxpayers would have to make up the shortfall when insurers reduced or rejected claims. “Victims will have to resort to Medicare and Centrelink if their injury means they can no longer work or pay off their homes. And this will be felt right across the community.”

Of the 400 pages of legislation, some of the most glaring problems, according to the legal fraternity, include the cost provisions which effectively exclude lawyers from being hired by victims to represent them in insurance claims.

“I would think that everybody benefits from getting professional legal advice,” said Craig. “Then they can make their decisions. I would have acted for about 3000 claimants over my career. But I have also probably advised the same number not to proceed with claims.”

Injured accident victims will, as a matter of course, have to represent themselves directly in negotiations with the insurance giants of NRMA, GIO, AAMI and APIA.

Another of the most serious flaws was the concept of a Whole Person Impairment which limits an injury to being a percentage of impairment which is either physical or psychological – but not both.

“It is an absurdity to suggest that someone cannot suffer a serious physical injury and a psychological injury at the same time – and frankly when we are trying to recognise the impact of mental health issue in the community this should not be allowed,” said Craig.

ACT Law Society CEO Dianne O’Hara said the Greens will play a pivotal role in helping the Government push the legislation through. While the Greens had achieved some minor amendments to some elements of the bill, these did not go nearly far enough.

“We don’t think these amendments should be any measure of comfort for Canberra motorists and we are urging anyone who has any concerns about this legislation and the way it has been handled by the Government to make their feelings known to Greens MLAs directly. We understand this is highly complex legislation, but if the Greens are not prepared to deal with it now, what confidence can you have that they will do it in three years’ time when they say they can review the legislation for unforeseen negative consequences?”

MEJ’s NSW partner firm BPC Lawyers in Sydney said a number of recently injured NSW motorists were experiencing first-hand the wind-back of former protections following a reduction of personal injury benefits introduced across the state in 2017.

BPC personal injury lawyer Mark Nelson said “I see people every day whose lives have been impacted by motor accidents. Most never expected to ever be injured in a motor accident. They are often annoyed and disappointed to learn how their injury compensation rights have changed, for the worse, if their injuries occurred after legislative changes were brought in NSW in late 2017…They can only receive compensation for future wage loss and money for pain and suffering if they meet restrictive medical definitions. They are no longer able to be compensated for assistance provided by family members domestically. Most of the people I see are upset to learn that they cannot ever finalise their claims by agreeing upon a final settlement with the insurance company. Rather, they face a lifetime of dealing with insurers about getting covered for medical bills in circumstances where there is statutorily restricted access to legal assistance.”

Mark said the ACT’s proposals would be even more restrictive than in NSW.

Anyone concerned about the proposed changes to ACT CTPI can contact the Law Society of the ACT www.actlawsociety.asn.au  6274 0300, or make a representation to their MLA or the ACT Greens.

This is a sponsored post from Maliganis Edwards Johnson. You can read our Sponsored Post Policy here.

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