Balkin and Davis pp. 393 - 400

A Summary.

Alternative Sources of Compensation for Personal Injuries

This chapter mainly discusses the alternative methods available for losses suffered as a result of personal injury other than relying upon the law of torts. Apparently, the philosophy behind our legislation is that those who have suffered an injury deserve at least some financial support from the State. There are certain hindrances when it comes to the law of negligence at common law, such as:

  • the need to prove that another was at fault for the injury
  • the possibility that the plaintiff was contributory negligent which would result in a diminution in damages
  • damages are payable only in a lump sum.

Statutory Schemes however:

  • remove the need to prove fault
  • are not affected by contributory negligence
  • provide payments periodically.

Social Security

The Social Security Act 1991 (Cth) provides the most comprehensive scheme for providing a bare minimum of financial support. It is said to be comprehensive as it provides assistance for any person who is unable, temporarily or permanently, to earn a living, regardless of the cause of incapacity.
While the legislation provides for a wide variety of pensions, benefits and allowances, the principal ones are:

  • Disability Support Pension
  • Sickness Allowance
  • Widowed Person Allowance

Disability Support Pension
May be claimed by an Australian resident who has a continuing inability to work or is permanently blind; is over 16 years of age and less than 65. To be regarded as having a 'continuing inability to work' a person has a physical, intellectual or psychiatric impairment of whatever aetiology (which according to the other great 'Wiki' means 'causation' or 'origination') which is of 20% or more under the Impairment Tables scheduled to the Act. It also prevents them from doing his or her usual work for at least two years.
B&D then continues to mention how much the pension is, but I seriously doubt that is important for studying purposes… But, the pension may be increased if the rent payable is greater than a statutorily fixed sum. Likewise, it is also subject to reduction on a graduated scale depending on the pensioner's income from other sources or the net worth of his or her assets, excluding the value of the home. Jeez, they're pedantic

Sickness Allowance

Payable to an Australian resident aged 21-65 and is temporarily incapacitated for work by reason of sickness or accident. Condition: that the incapacity has caused a loss of salary or wages.
Again, B&D feels the need to detail amounts received, but I highly doubt that Hinchy expects us to 'appreciate' this. Though, the benefit may be increased if the beneficiary has dependent children and if rent payable for accommodation exceeds a certain amount. Reductions can also be made depending upon the combined income of the beneficiary and his/her spouse (including de facto).

Widowed Person

  • Australian resident
  • Only may claim if he/she remains single
  • May either be a legal marriage or a de facto union, but must be terminated by death.
  • Allowances are similar to that of a disability support pension and are also subject to reductions.

Important that the Commonwealth Government does not subsidise those who provide the funds for the compensation of road, industrial and other accident victims - no overlapping!

Workers' Compensation

Bit of 19th century history:
English persons injured at work would find it difficult to succeed in an action against their employer in negligence, as they were most likely met with an action of any of the three defences of volenti non fit injuria, contributory negligence, or common employment. To remedy this situation, because the British Parliament loves to be awesome, they passed an Act (Workmen's Compensation Act 1897) which allowed an injured employee to recover compensation without the need to prove fault on the part of anyone else.

And because Australia loves to follow English Law, this legislation was adopted as a model for similar statutes passed by our States. There are 10 statutes in force, in this field, in Australia.

Persons covered by the legislation are generally, those who are regularly employed under a contract of service (so not an independent contractor) and those undergoing apprenticeship. South Australia excludes the self employed.
Employees can also recover compensation from diseases contracted as a result of the employment or where the aggravation or acceleration of a disease results from the employment. For it to be compensable, it must have arisen, in the phrase (used by all states 'cept Tassie) 'out of or in the course of the employment', however temporal links extend to travelling to and from the place of employment.

Here's something interesting: All statutes, except for Southern and Western Australia, prohibits recovery for self-inflicted injuries. Really?

12.10 on page 396 lists a massive list of benefits payable under the legislation; you may peruse to your hearts content. General pattern regarding the periodical payments for incapacity to work is to provide compo for an initial period, usually between 6 - 12 months, of the amount of what the employee was earning pre-accident, and then reduce it proportionally.

The statute makes varying provisions as to the right of employees to take an action at common law. In Qld the worker must satisfy a variety of conditions listed in s 237. The legislation also seeks to ensure that an injured employee does not gain a double benefit, and provides that damages awarded in a common law action shall be reduced by the amount of compo paid or payable under the respective statues. All statutes permit the employee to take action against a third party, but seek to prevent the recovery of damages for a los already compensated under legislation. Simply, no double dipping.

Criminal Injuries Compensation

This is a piece of legislation providing for the compensation, from government funds, of those who have suffered personal injury as the result of a crime or the dependents of a person killed by another's criminal act.

New Zealand was the first country, in the Commonwealth, to introduce this. In Australia, victims of a crime are able to make an application for compensation in proceedings separate from the criminal trial.

Reason: a criminal offender would often be unable personally to satisfy a civil judgement given against him or her, and any relevant insurance does not cover one's criminal acts.

Essence: a victim has suffered person injury as the result of the commission by another of a crime or that dependents of a victim of crime have suffered financial loss because of the killing of the victim. However, this core provision has been extended. An example of this extension is that in all jurisdictions, apart from SA and WA, compo may be recovered by those who are injured in the course of preventing the commission of an offence or assisting in the arrest of an offender.
In all jurisdictions, a claimant can recover compensation even though the offender has not been found, or not prosecuted.

  • If a person murders another and then commits suicide, the dependents of the victim may recover recompense for their financial loss.
  • Or if the offender is not found liable due to age.

For legislation purposes, injury refers to actual bodily harm AND mental disorder, nervous shock and pregnancy. It is not necessary that the injury was a reasonably foreseeable consequence of the commission of the offence. Whattttttt?! I never thought this would ever happen! All that is required is a causal connection between the criminal act and the injury. In Qld though, you cannot recover for the nervous shock suffered by hearing of the death or injury of a close relative, even though no physical violence is done to the claimant.

  • The claimant's damages are generally assessed as they would be in an action in tort
  • If in the event this amount exceeds the maximum amount of $75,000, then it is reduced to that sum
  • Dependents or close relative of the victim are entitled to recover for the financial harm suffered, if the victim of the offence was killed
  • The amount of compo may, in all jurisdictions, be reduced, or denied altogether, if the behaviour of the victim directly or indirectly contributed to the injury
  • Qld states that the failure on the part of the victim to promptly report the crime or assist the police in apprehending the offender has no effect on eligibility

The statutory schemes seeks to ensure that they provide remedies of last resort. In all jurisdictions, apart from good ol' Qld, an award of compo is reduced by the amount of compo that the victim has received or most likely will receive from other sources, like workers' compo etc. Once compo has been paid, the government has the right to seek reimbursement of that money from the offender or from any amounts received by the victim as compo from other sources.