All Australian states and territories have no fault workers compensation schemes. This means that a person injured at work receives compensation for loss of income and to meet medical expenses regardless of fault. The worker doesn’t have to prove anyone was negligent and the worker is entitled to compensation even if they contributed to their own injury. The trade-off for this scheme is that everyone gets compensation, but they get less than they would under a fault based or common law scheme.
Some states, including Victoria, have also introduced no fault compensation for motor vehicle accidents whilst other jurisdictions, notably the Australian Capital Territory, retain a more traditional common law system. Less people get compensated but what they may recover is more generous and more likely to cover all their losses. The ACT has recently undergo an interesting experiment in law reform, empanelling a citizen’s jury to review the motor accidents compensation scheme and make recommendations for reform – For discussion of the process and the outcomes see
- Geoff Atkins, ‘ACT CTP Scheme Reform: An Experiment in Democracy’, Digital Actuaries, November 27, 2017.
- Katie Burgess, ‘CTP citizens’ jurors grateful to be heard’, Canberra Times(Online) 15 March 2018.
- Katie Burgess, ‘CTP citizens’ jury: Stakeholders endorse big change for new compulsory third party insurance model’, Canberra Times (Online) 20 March 2018.
- Ian Bushnell, ‘Citizens Jury’s no-fault verdict will mean cheaper CTP premiums’, Riot ACT, 27 March 2018.
- Elise Scott, ‘Canberra’s first citizens jury on compulsory third party insurance selects most radical option’ ABC News (Online) 29 Mar 2018.
The process and the outcome have not been without critics, see:
- Arthur Marusevich, ‘ACT CTP reform: The pilot jury and its unpopular verdict’ Lawyers Weekly (Online) 10 April 2018.
- Tom McIlroy ‘Law Council and ACT Bar Association question Andrew Barr’s citizens’ jury’, The Canberra Times (Online) 10 October 2017.
- ACT Bar Association and ACT Law Society Media Release: ACT CTP – Cheaper premiums come at a cost,
- Ken Archer, President’s Message, ACT Bar Association Bulletin, May 2018.
Some jurisdictions, like New South Wales, retain some common law rights. Readers may recall debates during the late 1990’s about an ‘insurance crisis’ and how much common law damages were costing the community. Without giving references the material I’ve read has all said that the issue was not the quantum of damages but the management of insurance companies that was the problem. Whatever the truth of the matter the insurers and the tabloid press were able to talk up the ‘problem’ and that led to law reform that severely restricted common law rights. Legislation was passed to both to limit who can claim and how much they can recover.
In Quick v Ambulance Victoria & Anor  VCC 1075 (12 June 2018), Mr Quick, a paramedic employed by Ambulance Victoria came face to face with the restrictions in Victoria. Under the Accident Compensation Act 1985 (Vic) the applicant had to get leave from the court to bring an action for common law damages. In order to bring a common law claim for loss of earning capacity Mr Quick had to prove that he had suffered at least a 40% loss of earning capacity. The rationale for a rule such as this is to limit common law claims to only ‘serious’ injuries.
Mr Quick had two distinct mechanisms of injury. First he developed ongoing neck and shoulder pain from the use of the computers provided to paramedics to enter patient treatment records. His injuries were first reported in 2010 and he had ongoing treatment, including surgery, and time off work. Then on 24 December 2015 Mr Quick was assaulted – he was ‘was punched in the right eye while sitting in an ambulance’. The impact of this assault was to aggravate his neck and shoulder injuries. He continued to have ongoing treatment including more surgery and more time off work. The problem for the court was trying to determine how much loss was caused by the occupational use of the tablet computers and how much was due to the assault.
Mr Quick had continued to work as a paramedic since symptoms had first developed albeit he had time off and had been given some modified duties. Before the assault it was admitted he was earning about 60% of the income of a full time paramedic, but after the assault he could no longer work. The court was satisfied that because of the assault “he has a permanent loss of earning capacity of 40 per cent or more” and was therefore permitted to bring a common law claim with respect to the assault.
With respect to the injuries caused by the occupational use of the tablet computers, that was more complex. Whilst he had those injuries he had continued to work as a paramedic and there was no reason to think, but for the assault, he would have continued in that role. At - Bourke J said:
Taking into account all the evidence, I am not satisfied that the tablet injury is a cause of the plaintiff’s loss of earning capacity as at the date of hearing.
As counsel for the plaintiff conceded, if this application had been heard before the assault, it would have failed and it could not have been established the plaintiff suffered the requisite 40 per cent loss.
The plaintiff was working full time, albeit on modified duties, until the time of the assault. As he deposed in some detail, it was the assault that significantly changed his neck condition, resulting in an inability to work to the present and interfering with a range of other activities to a significant degree.
Accordingly Mr Quick is entitled to bring a common law claim with respect to the assault but not with respect to the injuries caused by the occupational use of the tablet computer.
That is just the start
That is just the start of the matter. This case only gives Mr Quick permission to bring the common law claim. It doesn’t prove that claim. Now he will have to bring the action and prove that someone, presumably Ambulance Victoria was negligent in the way it managed the risk of assault. Further common law damages will be limited to those damages caused by the assault given that he had an underlying or pre-existing condition. Proving fault and the value of the damage caused by the assault will both be time consuming and difficult. Just because leave to proceed has been granted it doesn’t mean the common law proceedings will be successful.
The rule of law
Many people may say that this is outrageous and perhaps it is. Here is a paramedic who has been injured at work in egregious circumstances and he’s being put through these hurdles by Ambulance Victoria, the Victorian WorkCover Authority and the County Court of Victoria. That is however a fundamental principle of the rule of law.
It is parliament that passed the laws that restrict access to common law claims and it is parliament that passed the law that requires court approval before common law proceedings can be filed. The relevant insurer for Ambulance Victoria (ie WorkCover Authority) is obligated in order to properly perform its role, to apply that law and to resist applications where the claimant does not meet the ‘serious injury’ threshold. It is the role of the County Court to apply the law as written by Parliament. It was not open to any of those agencies to, for example, ignore the provisions of the Accident Compensation Act 1985 (Vic) and pay compensation that was not provided for in that Act.
If readers are outraged that a paramedic who has been assaulted at work, or anyone, has to go through these hurdles to get compensation for their loss of income and career that should be taken up with the legislative arm of government ie with the elected members of Parliament.