10 June 2019

QLD Compo Law Discriminates Against Aged

Mark O’Connor, Charlie Young
Mark O'Connor
Charlie Young

Queensland’s tough compensation laws effectively discriminate against elderly abuse victims, making it virtually impossible for them to pursue claims for injuries arising out of assaults or poor care and neglect in nursing homes.

That’s the view of prominent Brisbane injury compensation law specialist Mark O’Connor who says current Queensland laws need an urgent overhaul to give the elderly redress for a growing crime wave against them.

Recent media reports state some elderly Queenslanders are so traumatised by attacks and burglaries they are resorting to desperate measures — with one victim couple- tied up and robbed in their own home- claiming they now sleep next to a loaded shotgun.

Mark O’Connor, a Director with Bennett & Philp Lawyers, says legislative changes to the compensation system introduced by the Queensland government in 2002/2003 significantly reduced compensation awards for personal injury and impairment for most injured persons including the elderly.

They introduced thresholds which effectively have to be exceeded to make an injured person’s claim against their attacker financially viable.

“An elderly person attacked and injured can bring a civil claim against their attacker but the legislation effectively discriminates against the victim. The payouts are small unless you are terribly injured because the law was changed to favour insurers. If you suffer broken bones you’d be lucky to get more than $20,000 in judgment against your attacker.

It’s worse for elderly victims because there’s no loss of earnings to recover so to reach the thresholds and recover legal costs they’d need to recover over $75,000 and in most cases that’s just not likely so the victims get nothing,” he says.

Mark says the legislation is weighted- unfairly- against a victim who does not suffer an income loss due to an assault injury.

As well as a civil claim, a victim could seek victim of crime compensation damages from the state government but again the payouts are meagre.

The law not only favours offenders who attack the elderly, it also benefits nursing homes where patients suffer poor care or negligence.

“The legal restrictions mean victims would likely recover little of their legal costs from the responsible nursing home. Their legal costs would have to be paid from their damages. Sadly it is often not cost-effective for them to pursue a claim no matter how appalling the neglect or abuse which has caused an injury,” he said.

“It is virtually impossible for old people to pursue a claim which is financially viable because they most often do not have potential damages awards which will reach the legal costs threshold. Often there needs to be a claim for loss of earnings for an injured person to exceed the cost threshold and for obvious reasons this will not apply to old people. It would be very rare to get a claim over the $75,000 threshold.”

The issue of elder abuse, especially of elderly in nursing homes, has drawn ongoing media attention.

Mark says one of the beneficial effects of the common law system is that it acts as a disincentive to bad behaviour – if someone is sued enough they will stop engaging in the behaviour which is leading to the lawsuits.

But in Queensland the proprietors of nursing homes know it is unlikely they are going to get sued.”

“The combination of the inability to recover costs means that many old people are cut out of the system and effectively can’t claim compensation for physical injuries received in nursing homes or elsewhere,” he says.

Mark wants a reform to allow old people who are subjected to horrendous abuse in nursing homes and who bring a civil claim to be exempt from the costs restrictions.

He says any focus on elder abuse is welcomed but we now need changes to Queensland’s laws to protect our vulnerable elderly.

“There’s no financial pressure on our common law system to do right by the elderly because their cases can’t get up because it’s not financially viable to pursue them.

“We need a system where our aged are properly recompensed for their mistreatment, not just shunted aside to keep the insurance industry happy,” he says.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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