ALA suggests negligent tortfeasors should escape liability under NDIS

The Australian Lawyers Alliance (ALA) has claimed that the amendment to the National Disability Insurance Scheme (NDIS) legislation concerning compensation for people whose disability was the result of medical or employer negligence is “completely inconsistent with the right to choose,” is “coercive” and “could pressure disabled individuals into legal action.”

The controversy is in regard to sections 104 and 105 of the NDIS. Under s 105, if the person who is or wishes to be a participant in the taxpayer funded insurance scheme does not take reasonable action as articulated in s 104 to claim damages, an amendment to s 105 entitles the CEO of the National Disability Insurance Scheme Agency (Agency CEO) to take action on the person's behalf.

Under the legislation, the Agency CEO is not obliged, but is merely entitled to decide to require a person to make a claim for compensation in respect of their injury, and only if it reasonable to do so, having regard to a number of factors, specifically:

• the disability of the participant or prospective participant;

• the circumstances which gave rise to the entitlement or possible entitlement to compensation; 

• any impediments the participant or prospective participant may face in recovering compensation;

• any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation; and

• the financial circumstances of the participant or prospective participant.

Similarly, under the amendment, the Agency CEO is merely entitled to initiate proceedings against the party who is or may be liable to pay compensation. Any amount obtained as a result of a claim made by the CEO will be paid to the injured person, after deducting an amount of any NDIS benefits already paid to, or for the benefit of, the participant and any costs incidental to the claim.

The amendments are available in our LawOne service.

For more discussions on the amendments, see Lawyers Weekly.

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