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Legislative Assembly for the ACT: 2003 Week 6 Hansard (18 June) . . Page.. 2005 ..


: Let us spend a little time on the Injuries Compensation Framework Bill. The intent of the bill is to implement a regulatory framework for public liability in the ACT, imposing obligations on injured parties, insurers, business operators and legal practitioners. The problem is that the bill does not bring together the various existing common law and tort laws that regulate public liability.

Again as to intent, the bill will in effect establish a no-fault system-similar to that in workers compensation, of dealing with public liability claims, with the focus shifting to the rehabilitation of injuries rather than monetary restitution. The problem is that changing the focus to rehabilitation will not help solve the insurance dilemma because the cost of establishing a no-fault system would need to be met by the business operators of the ACT.

It establishes a right of action for a whole range of activities which are presently not compensable through common law systems. For example, this would provide compensation for a whole range of new situations, such as injuries sustained in an under-12s rugby match, or a ruckus at a remand centre.

It creates new and onerous obligations for business operators to take insurance in relation to injuries which might occur on a property. The nexus between cause and liability has been broken. For example, if a person were prescribed the wrong medication by a doctor, purchased it from a chemist and then took it while sitting in a cafe, the cafe owner is liable under this bill. A second example is that of a doctor who has to give bad news to a client about a medical condition. He or she might be liable for the anguish occasioned by the news.

The possible impost on business operators is not costed. This is because the bill encompasses so many new types of claims. Whether based on negligence or not, they may quickly outstrip the cost of negligence-based policies.

The proposed scheme ignores both market realities and the insurance crisis itself. The number of capital underwriters for liability insurance of various types is at an all-time low. The number of providers of professional indemnity insurance, as I mentioned, has shrunk from 37 to two.

In the present climate, there is the probability that developing a mandatory new one-off product, for a jurisdiction representing less than 2 per cent of the national market, is fraught with difficulties. In isolation, the scheme would be grossly unattractive and create a markedly difficult pricing environment for insurers, because it leads to differing outcomes from prevailing systems under common law.

For example, if two people purchase bottled drinks and both drinks have a defect, in the unpleasant form of a snail in them, the person who opened the bottle on the premises would be able to claim compensation, on the basis of damage in the form of nervous shock, against the business owner, but the person who walked off the premises before suffering damage would not have an action against the business owner.

I do not know where this one comes in, but the intent of clause 55 excludes those suffering HIV/AIDS from eligibility for compensation. I do not know whether that is in our workers compensation bill or not-I doubt it. This discriminates against people.

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