Sue first, lose it later
The compensation clawback: made to sue, then made to pay it back
One of the least understood parts of the NDIS is its compensation machinery, and this Bill leans on it harder. If a disabled person has any personal-injury claim available to them, the NDIA can require them to chase it before or during their time on the scheme, then recover the money the NDIS has already spent.
What "compensation" actually covers
It is far broader than a car accident. Under the NDIS Act the definition of "compensation" is source-neutral: any personal-injury payment made wholly or partly for the kind of supports the NDIS funds. That includes medical negligence, birth injury (including cerebral palsy), public liability, and civil settlements for abuse. So a person can be pushed to sue a doctor, a hospital or a clinician for the care they should simply be given.
The result on a hospital ward is corrosive. A Bill that is supposed to be about care instead pushes disabled patients into litigation against the doctors and nurses treating them, then takes back the support anyway. It damages the therapeutic relationship and leaves the person worse off on both counts.
Before no-fault disability and injury schemes, families could be forced to sue their own relative, or accuse a friend of negligence, simply to unlock insurance money for lifelong care. If they could not prove fault, the disabled person could be left with nothing. The other options were litigation against the doctor or hospital who treated them. No-fault cover was meant to end all of that. This Bill drags it back.
A five-year-old had to claim against his own father
"Justin" was five when the car his father was driving left the road, struck a barbecue and hit a tree. He suffered a catastrophic brain injury and needs lifelong care, home and vehicle modifications, and equipment.
To get compensation, a claim had to be brought against the compulsory third-party insurer of his father's car. That meant alleging his father had fallen asleep at the wheel. The insurer argued it was an unforeseeable epileptic seizure instead. Forensic evidence eventually backed the falling-asleep account and the claim settled out of court.
In plain terms, the family had to legally blame the father to unlock the insurance money their disabled child needed. The money comes from the insurer, not the parent's own pocket, but the parent still has to be named as the negligent driver.
A footballer had to sue his mate, and lost
Warrick Proudlove was left permanently disabled and needing full-time care after the car he was a passenger in hit a horse near Mt Barker in WA in 2011. At the time WA had no no-fault catastrophic-injury scheme.
His family's only route to compensation was to sue the driver, his mate, and prove negligence. They lost at trial, leaving Warrick reliant on family and fundraising for his care. That kind of case helped drive WA's no-fault Catastrophic Injuries Support scheme, which started in 2016.
Source: PerthNow.