Compensation - And Luck !

It is a well known maxim that " Nothing is certain when it comes to the law "  and that is true because in every case it is how the law is interpreted that decides the outcome !   Good and bad luck is dispensed in equal measure as a case before the court clearly shows.

In 2004 an accident happened on the Great Western Highway near Mount Druitt.  An out of control van slammed into a car, resulting in lifelong injuries to a two year old boy passenger in the car. The sixty-three year old male driver of the van died at the scene.   It seemed a clear case of compensation for the boys injuries to be claimed under the third person green slip provisions.

The coroner's enquiry established that the van driver suffered a heart attack and was unconscious when his vehicle veered into the path of the car.  As a consequence, the claim of negligence was dismissed - and the insurance company was able to reject the compensation claim.   It is not possible that a dead person can be guilty of negligence.

This 2014 finding left the victim stranded in financial no-mans-land.  He will require expensive care for the rest of his life and yet the expected compensation will not be forthcoming on a mere technicality.   This case resulted in a law change to remove that anomaly, but it was not made retrospective.   Once again the matter of luck intrudes on a result.

The insurer later made a goodwill offer to settle for $ 1.2 million, far less than the $5 million claimed and needed to deliver lifelong care.  That was rejected because it was feared that accepting such a lesser amount might negatively influence the injured boys access to help from the National Disability Insurance Scheme ( NDIS ) which requires claimants to access all possible avenues of compensation from the courts before acceptance.

The courts are notoriously reluctant to make law changes retrospective.  To do so opens a vast treasure trove of distant liabilities that can have disastrous financial results.  Unfortunately, delivering a sharp cut off implementation often leaves legitimate claims stranded.

Insurance companies owe an obligation to their shareholders to safeguard the funds in their care and should they increase that goodwill offer from $ 1.2 million to $ 5 million many who have lost similar compensation claims will come beating at their door demanding similar terms.

This injured boy and his family face a diabolical situation.  By no fault of theirs the law has let them down and their son has an uncertain future.   Should they elect to go back to court and fight that decision they may be wiped out with legal costs if the verdict goes against them.   Even if they win in a lower court, it is likely that on principle this will be appealed to a higher court because such a ruling will open a costly can of worms for the entire insurance industry.

Their only hope is that the publicity this has generated may induce someone in the legal profession to act pro bono on their behalf - on the basis that such prominence helps to establish a rising legal star in the public arena.