Legislative Assembly for the ACT: 2008 Week 09 Hansard (Thursday, 21 August 2008) . . Page.. 3499 ..
has the potential to put a significant strain on the scheme. I am told from specialists in the field that there were no problems with the nominal defendant revisions and the Road Transport (General) Act 1999 and the question has been raised as to why they had to be changed. If changes are to be suggested to the 2008 act, there is a strong body of opinion that the old provision should be retained.
I also want to address the issue of cost. Obviously the lack of regulations has impeded this issue. The commencement date will obviously now be changed, but again I would reiterate that in assessing costs we note that general damages are to be excluded. Whilst this is obviously designed to eliminate smaller claims, it can also serve to disadvantage many plaintiffs. For example, if plaintiffs suffer multiple injuries such as fractures and bruising in an accident they could be hospitalised for several days, have a few weeks off work and they could access domestic assistance for a short period.
In such circumstances, the bulk of the claim will be general damages and if an award of, say, $80,000 is made, $50,000 will be for general damages and the rest for loss of earnings and care. In such circumstances, section 155 will operate in many cases to impose very harsh cost restrictions on the plaintiff to the extent that they may not recover any costs. The other problem is that it will mean there is no incentive for a plaintiff to rehabilitate. Why would they, in fact, want to return to work to their pre-accident capacity if it means that their compensation rights are limited?
The last thing I would like to say on this particular matter relates to mandatory final offers. It has been pointed out to me that there is another gap. If the Chief Minister can address this, that will be great. It appears that this part of the act has the potential to create some ludicrous results and does not provide any incentive for the parties to exchange mandatory final offers. For example, if there is a failure to comply with the time limit, the court must add the two offers together and divide by two.
What I do not understand is what there is to stop a plaintiff serving a ridiculously high offer, say $2 million, for a claim that may, in fact, be worth $50,000. The court has no discretion. These are some of the issues that I hope the officials will take into account as they go through this process. I hope Mr Stefaniak’s amendment is accepted by the government because I think 1 October is too tight a time line, given the climate in which we are operating.
I foreshadow that I will be certainly supporting that amendment. I still think that the provisions that Mr Stefaniak has included in here, and that I was howled down about when I raised that concern previously, are sensible. I hope that the Chief Minister might come to see that point of view.
MR STEFANIAK (Ginninderra) (5.35), in reply: I thank members for their comments. I hope the government might be persuaded by the further argument here which I think makes sense, but if it is not, at least we are getting a little way along the road.
Mr Mulcahy made some very valid points in terms of some of the problems with the whole scheme and the regulations. Clearly, there have been some big issues here. Last Friday I attended a meeting of the plaintiff lawyers association, or the Lawyers Alliance as they call themselves now. There were probably about 40 or 50 lawyers