In 2014, the ACT government enacted important legislation called the “Lifetime Care and Support (Catastrophic Injuries) Act 2014”. This legislation established a framework whereby those who were the subject of catastrophic injuries, such as brain damage or severe spinal injury, would be provided with lifetime support in relation to paid care and treatment expenses.

Unfortunately, the legislation as enacted, has led to a serious injustice in some circumstances where care has been provided, as is almost always the case, by family or friends and not on a paid basis.

The legislation also provided that, where such an injured person subsequently brought a common law action seeking damages for such injury and losses, those heads of damage dealing with treatment and care would be excluded. The rationale was that the injured person would be catered for under the Lifetime Care and Support Scheme and therefore there was no basis for allowing damages for such loss.

The issue was highlighted in the High Court decision of Daly v Thiering [2013] HCA 45. That decision related to the operation of the New South Wales Motor Accident Compensation Act 1999 as it interacted with similar lifetime care and support legislation in New South Wales. Mr Thiering had suffered a catastrophic injury as a result of a motor vehicle accident and claimed damages. The insurance company responding to the claim denied that there was any liability to pay damages for what is known as gratuitous care which comprises care and assistance provided by family or friends on a free-of-charge basis. In that case, the insurer relied upon a section in the New South Wales Act which was in the following terms:

“No damages may be awarded to a person who was a participant in the Scheme under the Motor Accident (Lifetime Care and Support) Act 2006 for economic loss in respect of the treatment and care needs (within the meaning of that Act) of the participant that relate to the motor accident injury in respect of which the person is a participant in that scheme and that are provided for or are to be provided for while the person is a participant on that scheme,”

Mr Thiering had received significant care on a free-of-charge basis from his wife and once the Lifetime Care and Support Authority in New South Wales came to consider Mr Thiering’s care needs, they concluded that they were only required to pay reasonable expenses incurred by or on behalf of the injured person and nothing for the gratuitous care provided by Mrs Thiering.

At common law, it is possible for an injured person to make a claim for such services on the quite valid basis that, if the services were not provided on a gratuitous basis by family or friends, it would almost certainly be necessary for commercial assistance to be provided to satisfy such needs. In the High Court case, the High Court held that the provisions of the legislation applied to payment of compensation to satisfy the injured person’s complete care needs and therefore any care needs met gratuitously by family members and that, in the circumstances, the relevant section excluded damages for such assistance. That, of course, ignored the fact that the relevant authority was refusing to pay any compensation for the gratuitous care provided by Mrs Thiering.

The legislation enacted by the ACT government is even more stark. Section 156D of the Road Transport (Third Party Insurance) Act 2008 contains a similar provision to the New South Wales Act but is even more specific in confirming that the exclusion applies whether or not the care or other support is provided without charge on a gratuitous basis.

What does this mean?

The Law Society and other legal bodies have lobbied the ACT government about the injustice created. In reality, it leads to a potential windfall for relevant insurers who no longer have to pay compensation for a head of damage which remains uncompensated. The losers are clearly the family members and friends who seek to support and help their injured relative or friend, often giving up significant time to do so.

This situation has probably escaped close attention since 2014 because there are only a small number of people who qualify for membership of the Scheme because of their catastrophic injuries. We remain of the view that it is an issue that needs to be considered again and, hopefully, amended.

How can we help?

Should you have any questions arising out of potential compensation claims, we recommend that you contact our Personal Injury team on 02 628 8000 or by email.