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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3014 ..

MR STEFANIAK (continuing):

disfigurement. It is one of the components in a damages action which is awarded to a successful plaintiff.

There are a lot of arguments over whether you need caps or not. The Law Society- when they saw me they saw everyone else-actually suggested an interesting thing which I'll mention here. Apparently Tasmania has a system of doing something for the catastrophically injured-a combination of something with insurance and Commonwealth funding. If you took those out of the insurance equation, your premiums would drop. That's an interesting idea.

They don't particularly like the idea of a cap, because they think the actual cap is really for those at the very high end. Nevertheless, a cap seems necessary in terms of this particular legislation. We accept that. My cap is actually based on what is the highest award in the ACT, as told to me by the Law Society of the ACT, for non-economic loss. I understand the caps in other jurisdictions, including the Victorian jurisdiction, are similar. I did have discussions with government officers, but they went with this. The maximum amount in a recent case in the ACT for non-economic loss was $300,000; hence the figure of this particular cap.

As is the case, I know, in several other jurisdictions at least, subsection 2 of 38AA enables regulations to be made to ensure indexation of the actual cap. Obviously it would go up with the cost of living, which I think is a fair thing.

Mr Speaker, I commend this particular amendment to the Assembly. We will be going down the track, I think in the September sittings, according to the attorney, of some further amendments to this particular legislation, and I would commend to you this cap which is specific to the ACT and does not apply to other jurisdictions.

MS DUNDAS (12.18): This amendment isn't as troubling as amendment No 1 from Mr Stefaniak, but it is still quite disturbing. I have trouble seeing how it will serve any great purpose for our justice system. Mr Stefaniak informs us that $300,000 is the maximum amount awarded to a plaintiff for non-economic loss by an ACT court. I understand that Mr Stefaniak is concerned about escalating damages awards, but I believe that appropriate damages should be considered on a case-by-case basis.

It may be that an ACT court has not yet seen the worst possible example of human suffering, and a higher damages award may be appropriate. I do not believe that capping payouts is desirable or necessary. This is another measure-and I was also concerned to hear in the media the other day that Mr Stanhope thinks that this is an idea he will pursue-that is purely to satisfy insurers at the expense of justice. So I cannot support it.

MRS CROSS (12.19): I would like to echo the sentiments of Ms Dundas, so I will not be supporting this amendment. I'd like to know which magic formula was used, other than probably looking at a list of claims and picking the biggest one. It does not take into account, as Ms Dundas said, the fact that there could be a more serious case in the future. I find it a great concern that we're applying this mechanism to address what may be a more serious issue in the future, and this certainly is not going to address the insurance crisis.

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