On 26 May 2016, the Queensland Parliament passed legislation enabling the partial rollout of the National Injury Insurance Scheme (NIIS). It represents the first tangible stage of the State Government’s commitment to the NIIS.
What are the parameters of the Queensland scheme?
The scheme, in its present form, provides no-fault, lifetime coverage for the necessary and reasonable cost of treatment, care and support for those who sustain serious personal injury in motor vehicle accidents in this State.
The scheme applies to serious personal injuries sustained on or after 1 July 2016, including spinal cord injuries (principally paraplegia and quadriplegia), traumatic brain injuries, multiple limb amputations, severe burns and permanent traumatic blindness.
While the scheme is broad, it does have limitations:
- It does not cover all motor vehicle accidents. The vehicle must be a prescribed vehicle (generally one for which a CTP insurance policy is in place). In some cases, the accident must occur on a road or in a public place.
- There are some exclusions in relation to the costs of treatment, care and support, including where it is provided without charge or by an unregistered provider.
- Benefits end when eligibility criteria are no longer met.
- Benefits end if an injured person has been awarded damages (or enters a binding settlement) in relation to the person’s treatment, care and support needs as a result of the injury.
- An injured person is not entitled to benefits if, before the motor vehicle accident, the person suffered from another injury and the new injury does not permanently increase the extent of any disability experienced by the person before the motor vehicle accident.
Retention of common law rights
The scheme allows eligible participants to receive benefits while retaining the ability to access damages through existing Compulsory Third Party (CTP) in appropriate cases.
Before the introduction of the scheme, only those who could prove fault were entitled to claim damages, including treatment, care and support needs, for their serious injuries. However, at fault drivers will now be able to access the scheme where eligibility criteria are met.
At fault drivers continue to hold no common law right to access damages, but can opt into the new scheme.
Interplay between CTP and NIIS
The NIIS and CTP will operate as a hybrid model, allowing those who are not eligible to claim for treatment, care and support under CTP to do so under the NIIS.
However, for those seriously injured motorists that can prove fault, the NIIS provides an alternative avenue for the provision of lifelong care and equipment. The injured person can elect to receive their treatment, care and support through the NIIS scheme over their lifetime, or to ‘opt out’ and pursue treatment, care and support as a lump sum in their damages claim under CTP. Should they elect to enter the NIIS, they lose the right to claim treatment, care and support in their damages claim under CTP.
Those without catastrophic injuries who can show fault remain eligible to receive reasonable rehabilitation under the existing Motor Accident Insurance Act provisions.
The scheme will be funded by an annual levy payable per vehicle. The levy will commence on 1 October 2016 to allow CTP insurers, the National Injury Insurance Agency and the Department of Transport and Main Roads to make the necessary arrangements before it is introduced.
Under the funding arrangements, the National Injury Insurance Agency, Queensland will (in some cases) contribute towards the CTP insurer’s liability to pay damages for treatment, care and support.
The Government also plans to undertake a review of CTP in time for the 2017-2018 premiums to be set.
At this stage, the NIIS Act only applies to serious personal injuries arising from motor accidents. However, a working group has already been established with a view to broadening it to cover workplace accidents, medical accidents and public liability incidents.