Automobile accident compensation in Australia : analysis of a theory for the diversity amongst the state schemes

University of Technology, Sydney. Faculty of Law.There are different notions of justice that support different reasons for compensating people injured in automobile accidents. The' traditional' method of compensating such persons is the tort system, which involves accident victim proving that fault of some other person caused their injury. This system is not a compensation scheme per se, but a means of shifting losses in accordance with community expectations. This system was criticised during the 20th-century for its inequity, expense and delay. Alternative compensation systems developed which supplement or replace tort as a means of access to compensation. These are divided into 'hybrid' systems - add-on, threshold and choice no-fault - and 'pure' no-fault. There are numerous arguments for and against each system and no one scheme has emerged as the system of choice internationally. In Australia, which is a Federation of states and territories, each jurisdiction has a separate scheme. The majority are fault based but with variations in benefit structures. There is also an add-on no-fault system in Tasmania, a threshold no-fault system in Victoria and a pure no-fault scheme covering residents of the Northern Territory. This pattern of diversity could be expected because of reluctance to embrace change when alternatives are not universally viewed as superior. Chapman and Trebilcock argue that the diversity signifies political instability that is not seen in other areas of law such as workplace injuries, products liability and medical malpractice. They hypothesise that because appreciation of facts surrounding automobile accidents and core values within communities across a Federation such as Australia should be similar, the probable reason for diversity is the existence of majority voting cycles and sequence dependent outcomes. A critical analysis of Chapman and Trebilcock's reasoning shows that their basic premise is faulty. An examination of the evidence from the structure of each Australian scheme, and the scheme reviews and debates on points of change during the period from 1970 to date, demonstrates that in relation to Australian automobile accident compensation schemes, Chapman and Trebilcock's theory is probably wrong, and the diversity is a result of rational democratic political processes