NT motor vehicle accident survivors say Territory’s compensation scheme is retraumatising them

The NT is the only jurisdiction in Australia where crash survivors who receive support under the scheme are then unable to take the other driver to court. It’s not the only problem with the scheme, survivors say.

Marine contractor Nafea Soliman says he has received just two weeks of income support, despite his injury occurring almost five months ago. Picture: Alex Treacy

The Northern Territory’s no-fault Motor Accidents Compensation Scheme is retraumatising crash survivors who claim it’s forcing them into a Hobson’s choice between having medical bills paid upfront and being able to take the other driver to court to seek compensation.

Sydneysiders Joshua Clements and Elysse Lloyd, survivors of the fatal Hermannsberg tour bus crash in 2022, and Alawa marine contractor Nafea Soliman, who was pinned between two vehicles at the Francis Bay Mooring Basin, don’t know each other.

The circumstances of their accidents, and the injuries they suffered, are not alike.

But the husband-and-wife duo and Mr Soliman do share a common thread: their lives have been altered irrevocably; they feel as though TIO, the scheme’s claims manager, is failing them; and they want the choice of being able to seek compensation in court, but can’t.

The Motor Accidents Compensation Scheme (MACS) was established in 1979 to provide compensation to those involved in motor vehicle accidents, regardless of fault, according to the MACS website.

It covers medical bills and rehabilitation services; provides lump sum payments in case of death; lifetime support for catastrophic injuries such as spinal, brain and amputations; and weekly income support payments during recovery.

All Territorians who are registered motor vehicle owners pay for the scheme as part of their annual registration renewal.

While all Australian jurisdictions have some form of MACS, the Territory’s is unique in that it extinguishes survivors’ right to pursue damages in a civil court of law.

Marine contractor Nafea Soliman says he has received just two weeks of income support, despite his injury occurring almost five months ago. Picture: Alex Treacy

Such a policy decision was taken because, at the time of introduction, there was a “crisis” in the NTs former compulsory third party insurance scheme.

“A combination of common law damages payouts and high accident rates meant the CTP insurers were incurring large losses raising the risk of market failure,” the scheme’s website states.

“In the 40 years that it has been in operation, it has proven to be an equitable, affordable and sustainable safety-net to people injured on Territory roads,” it goes on to say.

Yet for Mr Soliman and Mr Clements, they say their experience with the Motor Accidents Compensation Commission (which administers the scheme) and TIO has been anything but equitable.

On March 18 this year, maritime contractor Nafea Soliman, a well-regarded sole trader, was pinned between his work utility and a LandCruiser after the latter vehicle reversed unexpectedly.

Nafea Soliman on the ground after being crushed between two vehicles. Picture: Contributed

“Suddenly I was hit by something,” Mr Soliman said.

“I collapsed down. I couldn’t feel my leg.

“Two people sitting on a boat came over to get him [the driver] to move.

“He came down, looked at me then went to sit next to his car.”

Mr Soliman said a subsequent MRI revealed a damaged disc in his back.

“It’s very hard. I have no strength for lifting,” he said.

Yet despite the accident occurring five months ago, Mr Soliman said he had only received two weeks of income support payments from TIO, worth a little over $2000 total, up until recently.

He formerly turned over about $12,000–$16,000 a month in his job.

Bruising to Nafea Soliman's stomach after becoming crushed between two vehicles. Picture: Contributed

“I have a mortgage, car insurance, $9000 a month of expenses,” Mr Soliman said.

“I can’t cover my payments. I am behind my bank for my mortgage.”

The delay, according to Mr Soliman’s friend and client, Brad Irvine, was because the injured contractor had been working a small amount of hours each week in line with his work plan.

However, under the scheme, this reduces the amount of weekly income support he is entitled to – which, before deductions, is set at 85 per cent of the average weekly wage in the NT, about $1100 a week in practice.

The invoices Mr Soliman provided for the four jobs he completed post-injury resulted in a Kafkaesque chain of correspondence with TI – and delayed payments – as the insurer figured out how much to dock his meagre income support.

Mr Irvine said his friend’s situation was untenable.

“He’s got financial commitments that the bank wouldn’t have given him unless he could prove he was a bankable operator,” Mr Irvine said.

He said that in light of the scheme’s war chest – it made a profit of $106.8m in the 2022–23 financial year – income support payments should be raised for people in Mr Soliman’s position, especially as his injured friend is precluded from seeking any civil redress.

“This section [preventing common law claims] simply needs to be deleted,” Mr Irvine said.

Police did not find the driver that pinned Mr Soliman to be at fault.

Joshua Clements, who alongside his partner Elysse Lloyd suffered life-changing injuries in the fatal tour bus crash at Hermannsberg in June 2022, said his experience with the scheme had been nothing short of nightmarish, leaving he and his partner feeling at times suicidal.

Joshua Clements and Elysse Lloyd in Central Australia before they were involved in a life-altering crash. Picture: Supplied

“The crash has had a catastrophic effect on our lives, with both of us losing our employment, both having multiple surgeries,” he said.

“I [had] spinal fusion surgery in late May due to the injuries from the crash, which as mentioned broke several bones in my spine. We both have PTSD and panic attacks from the crash.”

The pair said they feel as though TIO has fought them every step of the way, with two episodes standing out.

The first was a refusal to commit to paying for Mr Clements’ spinal fusion surgery, which he said had been recommended by one of Australia’s top doctors, Dr Kirsty Hamilton, until after the fact.

“It put a lot of mental pressure on us,” Mr Clements said.

“It would’ve been clear to any doctor that for a 35-year-old guy who was on a long hike the day of the accident, played soccer, golf, yoga, had a PT, worked full-time, there is just no way I would need a spinal fusion without that crash.”

He said he was forced to borrow money from friends and family to pay for the surgery, with no certainty as to whether it would ultimately be paid for by the insurer, which it eventually was.

The scene of a tour bus crash near Hermannsburg in Central Australia. Picture: Daniel Sumpton

For Ms Lloyd, the episode that stuck worst in her craw was when TIO allegedly contacted her physiotherapist to suggest Ms Lloyd scale back to one appointment a week and instead go to the gym.

“With every single issue you have, there’s some hurdle you need to jump over,” Ms Lloyd said.

Mr Clements agreed.

“It’s the stereotypical American system of, we’re going to say ‘no, no,’ it’s only if you fight us, and a lot of people will give up,” he said.

The experiences of Mr Soliman, Mr Clements and Ms Lloyd are emblematic of declining satisfaction in the scheme, according to its most recent annual report.

That report said that in 2022–23, overall satisfaction in MACS’ claim management process declined from 7.3 to 6.7.

“We are working with our claims manager, TIO to focus on the necessary actions to improve this,” the report stated.

TIO declined to comment when contacted by the NT News.

MACS Commissioner Will Oliver defended the scheme, saying it remained an important safety net for Territorians.

“The MAC Scheme was established [to provide] people with fair rates of compensation and to keep premiums affordable,” he said.

“The MAC contribution (premiums) would increase if underwritten by private insurers because unlike [the commission], they charge a profit margin.”

Any budget surpluses were invested into an investment fund that further dampened the cost of premiums, Mr Oliver added.