Abstract:
This article argues that the policy manifested in Ch 5 of the National Disability Insurance Scheme Act 2013 (Cth), which provides for recoupment by the agency administering the scheme of benefits paid under the scheme, is misconceived. It contends that it is expensive and wasteful to permit beneficiaries under the scheme to recover from other sources compensation for needs that can be met under the scheme. It shows that the justification advanced for a separate National Injury Insurance Scheme is false. In presenting these arguments, the article summarises the history leading to the enactment of the Act; analyses the general relationship between benefits from different sources in the context of claims for damages; considers the varying policy of the Commonwealth in this regard over a range of specific programs; and describes the mechanisms employed when the Commonwealth’s schemes and others, such as state workers’ compensation and no-fault motor accident schemes, do attempt to recover their own expenditure from other compensation payers. It disputes the view of economists that allowing recovery creates incentives for increased safety by encouraging precautions and deterring unsafe conduct by providing a meta-survey of the surveys of the empirical evidence on this question, looking particularly at motor accidents, injuries in the workplace, product liability and iatrogenic harm. It also refers to some recent decisions of the High Court of Australia which appear to have removed even the theoretical incentives provided by tort law.
Luntz, Harold, Compensation Recovery and the National Disability Insurance Scheme (July 8, 2013). Torts Law Journal, Vol. 20, No. 3, 2013; U of Melbourne Legal Studies Research Paper No. 645. Available at SSRN:
First posted 2013-07-10 06:22:42
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