If you have suffered serious or catastrophic injuries in a motor vehicle accident in Queensland after 1 July 2016, then you may be able to make a claim under the National Injury Insurance Scheme Queensland (NIISQ) even if you were at fault for the accident.
The NIISQ only applies to motor vehicle accidents in Queensland. However, all other Australian States and Territories have their own schemes. The information contained in this blog relates to Queensland law.
The NIISQ scheme only applies to serious personal injury defined to include:-
- Permanent spinal cord injuries;
- Traumatic brain injuries;
- Multiple or high level amputations;
- Permanent injury to the brachial plexus;
- Severe burns;
- Permanent blindness caused by trauma.
An Application Form – Interim Participant should be sent to the NIISQ Agency as soon as possible and within one year from the date of accident. If the application is made after that date, then the Agency must decide whether or not to accept the application and must consider whether it would be fair and reasonable to accept the application having regard to whether the person is likely to be eligible to participate in the scheme, whether a claim has been made or can be made for the serious injury and the nature and severity of the person’s injury.
If the application is accepted, then NIISQ may pay for the necessary and reasonable treatment, care and support for eligible serious personal injuries for up to two years. Towards the end of those years, the participant will be assessed to determine whether NIISQ will offer the person, participation in the scheme for the rest of their life.
If you do not agree with a decision made by the NIISQ Agency concerning a person’s eligibility or necessary and reasonable treatment, care and support, then you can request an internal review of the decision which must be made within 28 days on the prescribed form.
If you are not satisfied with the internal review decision, then an application must be made within 28 days of receiving the internal review decision on the prescribed form. The Medical Assessment Tribunal will review decisions that are medical in nature, such as whether your injury meets the medical matters in the eligibility criteria. The Queensland Civil and Administrative Tribunal reviews decisions that are non-medical in nature, such as whether the circumstances of your accident meet the legal definition of a motor vehicle accident.
Is this different to a CTP personal injury claim?
The schemes are different in terms of the benefits to the participant and are different in how they operate. Under a CTP personal injury claim, an eligible person may recover compensation for various heads of damages, including but not limited to general damages for pain and suffering, past and future loss of income, past and future loss of superannuation which they would not be entitled to receive under NIISQ. They may also be able to recover past and future out of pocket expenses for treatment and past and future care and assistance.
Can I still make a CTP claim if I am accepted as a NIISQ participant?
Yes, you can also make a CTP claim provided you were not 100% at fault for the accident. If you were partially at fault for the accident, you can still also make a CTP claim but your compensation in your CTP claim would be reduced to the extent that you contributed to your injuries.
If you are accepted as a Lifetime Participant to NIISQ, you can choose to remain as a participant of NIISQ and have the treatment, care and support component excluded from your CTP claim.
If you elect to opt out of NIISQ and take a lump sum payment for treatment, care and support in your CTP claim, then you will no longer receive treatment, care and support through NIISQ even if you were accepted as a Lifetime Participant. There cannot be any double dipping.
A person who is confirmed as a Lifetime Participant of NIISQ and who also has a valid CTP claim can provide a Preservation Notice to the CTP insurer and the NISSQ Agency to indicate an intention to pursue a lump sum for damages for future treatment, care and support.
The Preservation Notice should be given:-
- within 14 days of being accepted as a lifetime participant of NIISQ, if you start your CTP claim before you become a Lifetime Participant of NIISQ; or
- within 14 days after the CTP insurer provides a written acknowledgement of your CTP claim, if you start your CTP claim after you have become a Lifetime Participant of NIISQ.
The Preservation Notice may be given after the 14 day periods described above. However, the insurer and the NIISQ Agency must agree to the Preservation Notice being given after the 14 day period and for a claim that is the subject of a proceeding before a court – the court orders that the notice be given.
If the NISSQ Agency considers the participant is a person under a legal disability, the agency must apply to the Court for an order sanctioning a Preservation Notice. The court can decide whether or not to sanction the notice and can make any order the court considers appropriate.
The issuing of a Preservation Notice entitles the participant to make an election at a later date as to whether the participant wishes to receive treatment, care and support damages in a lump sum as part of the CTP claim or in the alternative, remain as a participant in the Scheme.
The NIISQ Agency then becomes liable to contribute to the insurer’s damages for future treatment, care and support. The Agency stops becoming liable if the Court or the parties reach agreement, that the participant has contributed to his injuries to the extent of 50% or more. In that circumstance, the participant will not be permitted to claim damages at common law for such future treatment, care and support but instead would be restricted to receiving future treatment, care and support from NIISQ. However, the participant would still be entitled to pursue a CTP claim for other heads of damage that they are entitled to, such as general damages for pain and suffering, past and future loss of income, past and future loss of superannuation which they would not be entitled to receive under NIISQ.
The National Injury Insurance Scheme (Queensland) Act 2016 does make provision for a participant to apply to re-enter NIISQ at least 5 years after receiving a payout of their treatment, care and support. However, it can only be made in the circumstances prescribed by regulation. At this stage, no regulation currently exists to permit this re-entry process.
If your CTP claim has been finalised and you have not previously been accepted as a participant in NIISQ, then you can seek to buy into NIISQ. You would have to meet eligibility criteria to participate in NIISQ. The NIISQ Agency would need to accept you as a participant in NIISQ for a period agreed between the NIISQ Agency and yourself and you must pay the NIISQ Agency a contribution towards your treatment, care and support needs in relation to the serious personal injury. The amount required to be paid is to be prescribed by legislation. At this stage, no regulation currently exists to permit this buy-in process.
Remaining as a Lifetime Participant can be beneficial in that the future care, treatment and support is provided by NIISQ. However, the participant does not have control as to how that future care, treatment and support is spent. Applications for funding approval need to be made to NIISQ for approval for the care, treatment and support. NIISQ may decline an application and whilst there are rights of review, this process can be expensive and can result in delay and the proposed funding may still be declined. In contrast if a lump sum amount is recovered in a settlement or judgment under the CTP scheme, then the participant has greater control as to how and when that money is spent.
What is best for a particular claimant will depend on the circumstances of each case.
Time Limits apply
In addition to the time limits discussed above, other strict time limits apply to NISSQ claims and CTP claims.
TPD (Total and Permanent Disablement) Claim
In addition to making a CTP and NIISQ claim, a person who has suffered serious or catastrophic injuries may also be able to make an income protection or TPD claim on the insurance attached to their superannuation fund/s.
To request information about our available legal services, or to discuss your personal circumstances with one of our experienced lawyers, please do not hesitate to contact Turner Freeman Lawyers on 13 43 63.