The National Injury Insurance Scheme (Queensland) Act commenced operation a little over 3 years ago.
The purpose of the act is “to ensure that persons who suffer particular serious injury as a result of a motor vehicle accident in Queensland receive necessary and reasonable treatment, care and support, regardless of fault” (‘NIISQ” scheme).
Eligibility criteria for participating in the scheme is set out in an accompanying regulation and covers:
- traumatic brain injury
- spinal cord injuries
- permanent injury to the brachial plexus
- high level or multiple limb amputations
- severe burns; and
- permanent blindness caused by trauma.
The types of treatment care and support covered include medical and pharmaceutical treatment, dental treatment, respite care, attendant care and support services, aids and appliances, prostheses and home and transport modifications.
The act also established a National Injury Insurance Agency, Queensland (‘NIIAQ’) to administer the scheme. To receive NIISQ care and support the injured person must be a participant.
An eligible person will initially be accepted into the scheme as an interim participant and NIISQ will pay for necessary and reasonable treatment care and support for the first 2 years. Towards the end of that time the eligible person will be assessed to determine whether they are eligible to become a lifetime participant.
As at 30 September 2019 there were 199 participants in the scheme (137 interim participants and 62 lifetime participants)
The scheme predominantly acts as a safety net for eligible people who suffer the prescribed serious injury in a motor vehicle accident but who otherwise cannot establish fault and therefore who cannot separately bring a common law damages claim. An example would be a driver that swerves off the road to avoid an animal and who suffers the prescribed injury.
The scheme also applies to eligible people who have damages claims under the fault-based CTP scheme, so there can be an overlap between NIISQ scheme participation and a CTP damages claim in respect of treatment, care and support needs. A person isn’t eligible to participate in the scheme if they have already been awarded damages under a final judgement or binding settlement that covers the person’s treatment care and support needs as a result of the injury.
Take a hypothetical situation in which a motor vehicle accident occurs on a bend on an unmarked country road where both drivers suffer a serious injury, only one of which meets the eligibility criteria, and where both drivers are adamant they were on the correct side of the road and the other driver was entirely at fault.
Only the driver with the eligible injury could make an application under the NIISQ scheme but both have potentially significant CTP claims including for ongoing treatment care and support needs.
Significant questions arise regarding the interaction of a NIISQ claim and a CTP claim:
- Should the eligible driver lodge a NIISQ claim?
- If so when should the application be made?
- Can the eligible driver lodge a NIISQ claim before lodging a CTP claim?
- Do different time frames apply whether or not there is also a CTP claim?
- Do details of the CTP claim or pending CTP claim have to be provided with a NIISQ claim?
- How does the decision about whether or not to lodge a NIISQ claim impact on rehabilitation treatment otherwise available as part of the CTP claim process?
- Can the eligible driver opt out of a NIISQ claim at a later date and seek damages for treatment care and support needs?
- Does the eligible person have to provide notice to the CTP insurer and/or NIIAQ to preserve their entitlement to seek damages at a later date (a preservation notice)?
- What is the timeframe for providing a preservation notice?
- Does a preservation notice effect ongoing treatment, care and support provided under the NIISQ scheme before finalisation of the CTP claim?
- Are there restrictions on the amount of damages that an eligible person can recover in a CTP claim where treatment care and support needs arose whilst the person was a participant in the NIISQ scheme?
- To what extent do liability/contributory negligence issues impact on the decision about whether to lodge a NIISQ claim?
- To what extent do liability/contributory negligence issues impact on eligibility to opt out at a later date?
- In what circumstances is NIIAQ liable to make a contribution towards the CTP insurer’s claim liability for treatment care and support damages?
- Does care and support damages include gratuitous care?
- Can an eligible person seek to re-enter the scheme after opting out?
It is readily apparent, even in the simple fact situation above that the interaction between the NIISQ scheme and a CTP claim is complicated, and it is essential to obtain legal advice to ensure the best outcome.
Bennett & Philp’s catastrophic injury team can guide Claimant’s through the maze of the NIISQ scheme.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted). Home