Judie Stephens




15 June 1999

Dear Member of MAA Board,

Thank you for taking the time to consider the new Motor Accidents Compensation Bill 1999 from a plaintiff’s perspective.

Before you read further, I wish to point out that I recognise the new law will not be retrospective, and the submission I make today is to protect those who will have accidents in the future and who want guarantees that the green slip premium paid will present rehabilitation, medical and care solutions as promised.

The CTP policyholders’ major concern is that the MAA must be required to give full and accurate accountability and transparency of the Scheme. It seems inconsistent to further cut benefits to the injured, since the S.79 amendments means there are many less claims, particularly over the last 12 months. What is actually happening? How much money has been put aside in reserves and how much has been paid out?

I am therefore referring only to the catastrophically injured, which is 0.1% of those who make claims. As the Hon. J. J. Della Bosca (Special Minister of State, and Assistant Treasurer) mentioned on page 5 of the second reading of this Bill on 3 June, this represents 170 people per year in New South Wales.

The anticipated change in this Bill gave me the opportunity of looking closely at the new Bill and expressing my concerns.

Before I do, however, I would like to thank the Minister for his vision to protect New South Wales motorists and appropriately reduce the cost of green slips. Also my thanks to Mr Peter O’Donell of the NRMA and Jane Ferguson for rewriting the old Section 81 (now new Section

140) Structured Settlements.

The Structured Settlement old legislation was not rewritten to provide for the anticipated amendments which will be legislated by the Federal Government in the near future. The Structure Settlements Group, the Motor Accidents Authority, the NSW Government and myself have endorsed these changes. Thanks to David Bowen, Michelle Gardiner and Ellis of the MAA for listening to me, and to Steve Mark, the Legal Services Commissioner, who – like me – believes in less litigation and more resolution and rehabilitation. (I was delighted to listen to Steve Mark at the APLA seminar earlier this year.)

I believe the Minister will meet with me this week as he will with the insurance General Managers and other interested parties (refer timetable for the Bill).

As mentioned above, my concerns with the new Bill are now as follows:

âPlease refer Chapter 5 “Award of Damages”:

Part 5.2 Damages for Economic Loss

122(2) “In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased person’s net weekly earnings would (but for the injury or death) have exceeded $1,200.”

QUESTION: Is this annually CPI-linked?

125 “Damages for economic loss – maximum amount for provision of certain attendant care services”

I understand this is the current legislation and my concern is that, several paragraphs further down the page (refer (4)(a) attendant services may not exceed 40 hours or the amount paid per week not in excess of the average weekly total earnings.

QUESTION: According to Michelle Gardiner, this is relevant only to family and friends who provide attendant care. Is this correct?

If not, what provisions are made for 24-hour care – or is that covered by common law?

QUESTION: Why is attendant care under the heading “Economic Loss”? The relevant head of damage is future care.

QUESTION: Clause 125(4)(a) appears to have the effect of restricting attendant care severely (to less than 40 hours per week maximum). Is this correct?

QUESTION: Re Clause 122(2), as attendant care is under the heading “Economic Loss”, does this impose a $1,200 per week cap on attendant care?

Please advise that 24-hour care has not been restricted and will not be denied to future catastrophically injured claimants.

âPart 8.2 Motor Accidents Council (page 119):

I was shocked and in despair when I read the Motor Accidents Council membership.

I understand that this yet-to-be-formed Council is to advise the Authority and make lifelong medical, rehabilitation and care decisions for claimants.

Please refer to Section 205 (page 119) of the Bill (“Membership and Procedure of Council”).

CONCERN: Of the 17 members, only 3 are health practitioners. I would have thought there only needs to be one representative from the insurance industry and one from a legal background. The other 15 should be health and rehabilitation practitioners, e.g. a psychologist, brain injury expert, back injury expert, medical specialist, occupational therapist, speech therapist, physiotherapist, vocational rehabilitation specialist, social worker. In addition, there should be a past plaintiff, an educator, conflict resolution expert, a budgetary expert, a person appointed by the Minister with such consumer organisations as the Minister considers appropriate and – of course – the General Manager of the Authority. This would total 17 members and would provide an expert holistic approach to ensure that each victim’s situation is truly considered by experts and not dictated to by insurers. It is the duty of the insurer to collect premiums and pay for what is fair and reasonable to ensure the needs are realistically met; it is not their duty to make lifelong decisions which really belong to the appropriate medical and rehabilitation experts.

QUESTION: Would you kindly explain the rationale behind your original decision?

An idea for the future….

Perhaps one of the MAA projects should be to complete a study of the lifelong and tragic effects a serious car accident has on the structure of family. This would assist the Council in making realistic and compassionate decisions.

In the meantime, I would like to applaud you for the restructure of the Board to include members who have a great understanding of disability.

I would appreciate a reply within 24 hours as I am meeting with the Minister and others this week.

In closing, I would like to invite all the members of the MAA Board and interested family members to our home “Kurrumin” on Tuesday 29 June or Tuesday 13 July at 3.30pm to meet our family and learn first hand how important it is to have funds to ensure Jackson and others like him have optimum opportunity for recovery, quality of life, and age-appropriate lifestyle. (Of course I realise this week is very busy because the Bill goes to the Upper House with my and other amendments on 21 June 1999.)

I look forward to having my questions answered during the course of this week. I also very much look forward to you meeting Jackson in our home later this month.

Yours sincerely

Judie Stephens

P.S. Why the hurry to push through the legislation over the next couple of weeks? Surely something as important as the well being and livelihood of those injured in accidents should be carefully deliberated with all relevant parties, including those people I mentioned that must be on the MAA Council.

c.c. (e-mailed prior to the meeting)….

·The Hon. J. J. Della Bosca, Special Minister for State, and Assistant Treasurer

· Mr Steve Mark, Legal Services Commissioner

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