Automobile accident compensation in Australia : analysis of a theory for the diversity amongst the state schemes
- Publication Type:
- Thesis
- Issue Date:
- 2002
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There are different notions of justice that support different reasons for compensating
people injured in automobile accidents. The' traditional' method of compensating such
persons is the tort system, which involves accident victim proving that fault of some
other person caused their injury. This system is not a compensation scheme per se, but
a means of shifting losses in accordance with community expectations. This system was
criticised during the 20th-century for its inequity, expense and delay. Alternative
compensation systems developed which supplement or replace tort as a means of access
to compensation. These are divided into 'hybrid' systems - add-on, threshold and
choice no-fault - and 'pure' no-fault. There are numerous arguments for and against
each system and no one scheme has emerged as the system of choice internationally. In
Australia, which is a Federation of states and territories, each jurisdiction has a separate
scheme. The majority are fault based but with variations in benefit structures. There is
also an add-on no-fault system in Tasmania, a threshold no-fault system in Victoria and
a pure no-fault scheme covering residents of the Northern Territory. This pattern of
diversity could be expected because of reluctance to embrace change when alternatives
are not universally viewed as superior. Chapman and Trebilcock argue that the
diversity signifies political instability that is not seen in other areas of law such as
workplace injuries, products liability and medical malpractice. They hypothesise that
because appreciation of facts surrounding automobile accidents and core values within
communities across a Federation such as Australia should be similar, the probable
reason for diversity is the existence of majority voting cycles and sequence dependent
outcomes. A critical analysis of Chapman and Trebilcock's reasoning shows that their
basic premise is faulty. An examination of the evidence from the structure of each
Australian scheme, and the scheme reviews and debates on points of change during the
period from 1970 to date, demonstrates that in relation to Australian automobile
accident compensation schemes, Chapman and Trebilcock's theory is probably wrong,
and the diversity is a result of rational democratic political processes.
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