In a report on ABC Radio National’s PM program (‘Volunteers struggling to cope with post-traumatic stress as bushfires rage on’ ABC PM (Online) 26 December 2019) we are told ‘A leading trauma expert is calling for a national compensation scheme for injured volunteers and their families.’

The story is about PTSD in volunteer firefighters.  The expert is Sandy McFarlane, professor of psychiatry and director, Centre for Traumatic Stress Studies, Adelaide University. According to the journalist, Meghna Bali (from 4m:51s to 5m:05s):

He’s also calling for a national compensation scheme for injured volunteers or the families of those who’ve died on the job. He says state governments have progressively tried to absolve themselves of long-term compensation by quashing claims in court.

Recognising that there are limits on what can be reported in a 5 minute story I do wonder why a national scheme would be either appropriate or better than that currently available to volunteers?

Each state and territory provides workers type insurance for volunteers who are volunteering for the state agencies.  Presumably if there was a commonwealth scheme it would be akin to, or run by ComCare, as provided for in the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Any insurer whether its ComCare, iCare (in NSW) or any of the other statutory or private insurer is charged with ensuring compensation is paid out in accordance with the governing legislation.  The legislation is never going to say ‘pay compensation to the applicant for whatever the applicant claims and in whatever amount the applicant says is reasonable’. The system may be tortious, slow, abusive and damaging (and it is all those things) but claims are tested and insurers take steps to ensure that the evidence supports their claim and that claimants are not exaggerating their symptoms (hence such things as covert observations and other activities that do in fact harm rather than help applicants; see for example WorkSafe Victoria 2.8.3 Surveillance guidelines for Agents (2019)).

Calling for a national compensation scheme is not going to change that. ComCare will seek to protect its revenue and insurance pool as will any other insurer.  It’s also wrong to put the blame at the foot of state governments.  Whilst they are indeed responsible for the letter of the law and act as self-insurers, it is the insurer that decides how to manage claims – what to settle and what to defend.  State (and commonwealth) governments do not get involved in the day to day decision making.

Although it’s not workers compensation it’s interesting to note the outcome from the class action arising out of the Queensland floods of 2011. The NSW Supreme Court has found that the State of Queensland and two authorities, SEQWater and Sunwater were negligent in their dam operations at the time.  The State of Queensland has ruled out an appeal but the other defendants, although owned by Queensland have not.  In a news report (Matt Wordsworth, ‘Queensland 2011 floods class action payout held up as water authorities move to appeal decision’ ABC News (Online) 20 December 2019) we are told:

Both Sunwater and Seqwater said they would each lodge a “notice of intention to appeal” with the New South Wales Supreme Court, but also said they hadn’t made a final decision on whether to launch an appeal…

The Queensland Government had already opted not to appeal the decision.

In a statement, shareholding ministers Treasurer Jackie Trad and Natural Resources Minister Dr Anthony Lynham said the water authorities had independent boards and each had its own insurance policy to consider.

“The relevant insurance companies now have a legal right to determine their next steps,” they said.

“If a Ministerial Direction to Seqwater or Sunwater to not appeal the court decision could be given, it would not bind their insurers and it may compromise their insurance policies.”

They have called upon the insurers of Seqwater and Sunwater to rule out an appeal.

It’s a similar issue in workers compensation even where states are self-insured.  It is up to the insurer to determine the legal rights (and wrongs) and make decisions on that basis.

Discussion

I have every sympathy for those suffering from injury but fault based schemes, and even no fault schemes like Workers Compensation, are coupled with appalling processes (see ‘WorkCover system failing long-term injured workers, Victorian Ombudsman finds in WorkSafe report’ ABC News (Online) (3 Dec 2019)).  The normal stereotype of personal injuries lawyers are unethical ambulance chasers (think Lionel Hutz from the Simpsons assisted by Dr Nick Riviera), but the reality is that they are there to assist people through a complex scheme. Without legal assistance many more people would be ejected without anything and ‘no win no pay’ cost agreements are a form of professional provided legal aid (noting that in Australia, lawyers cannot charge a percentage of the verdict).

I again note that there is little room in a 5 minute story and the quoted expert is an expert in psychiatry not law or insurance, but even so it is hard to see why he or anyone would think a national scheme would make any difference to the outcomes.  There is no reason to think that ComCare would be a better or more generous insurer than the various agencies managing state volunteer insurance schemes. Nor is there any reason put forward as to why the national government should in effect, insure state volunteers.

Since 2002 and the introduction of Civil Liability legislation governments have increasingly sought to restrict compensation benefits. This has been in response to public outcry over what are seen as over generous payments or people ‘bludging on compo’.  Next time there is a ‘moral panic’ about compensation and people suing for injuries remember that making it harder to sue and reducing the amounts paid will affect everyone, including those not at all at fault and volunteers.   (For related discussions, see NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015); NSW workers compensation and when is a volunteer a paramedic? (July 31, 2015) and generally all the posts that appear here https://emergencylaw.wordpress.com/category/volunteer-compensation/).

Moving to a federal scheme won’t change that.  Even a scheme like the NDIS is followed by court cases where people challenge decision makers who have rejected claims and who sometimes win, and sometimes lose (Dan Conifer, ‘NDIS reviews leave people with disabilities waiting up to nine months for an outcome‘ ABC News (Online) (16 May 2018)).  No system, not even New Zealand’s universal Accident Compensation scheme will avoid that – see for example decisions of the New Zealand Accident Compensation Appeal Authority and then New Zealand Accident Compensation Appeals

Conclusion

The current fires are seeing many calls for the national government to do ‘something’ (see What is a ‘national emergency’? (December 25, 2019)) but it is unclear, in most cases, what that something should be, or why it would be better or more efficient or more effective for the ‘something’ to come from the Federal government. There is no reason to think a national compensation scheme would produce any different result to the current state based schemes.