Motor Accidents (Liabilities and Compensation) Amendment Act 1997

Motor Accidents (Liabilities and Compensation) Amendment Act 1997

An Act to amend the Motor Accidents (Liabilities and Compensation) Act 1973

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Motor Accidents (Liabilities and Compensation) Amendment Act 1997 .

2.   Commencement

(1)  This Act commences on 1 December 1997.

(2)  is taken to have commenced on 1 December 1997 if it receives Royal Assent after that day.

3.   Principal Act

In this Act, the Motor Accidents (Liabilities and Compensation) Act 1973 is referred to as the Principal Act.

4.   Section 2 amended (Interpretation)

(1)  Section 2(1) of the Principal Act is amended as follows:

(a) by omitting the definition of "accident";

(b) by inserting the following definition after the definition of "Board":

caused by a motor vehicle has the meaning assigned by subsection (4) ;

(c) by inserting after the definition of "medical benefit" the following definition:

motor accident means an occurrence where a person suffers personal injury caused by a motor vehicle;

(d) by inserting after the definition of "participating insurer" the following definition:

personal injury means death or physical or mental injury including –

(a) prenatal injury; and

(b) nervous shock; and

(c) damage to a pair of prescription spectacles, prescription contact lens, denture, hearing aid, crutch, wheelchair, artificial limb, prosthetic device or prescribed item;

police officer means –

(a) in respect of a personal injury suffered in Tasmania –

(i) any person employed in the police force, within the meaning of the Police Regulation Act 1898 ; and

(ii) the Commissioner of Police; and

(b) in respect of a personal injury suffered in another State or a Territory of the Commonwealth, any person who holds a position in that State or Territory which corresponds with a position referred to in paragraph (a) ;

(e) by omitting "death of, or bodily injury to, any other person caused by or arising out of the use of" from the definition of "third party liability" and substituting "personal injury to any other person caused by".

(2)  Section 2 of the Principal Act is amended as follows:

(f) by omitting "death or bodily", twice occurring, from subsection (2) and substituting "personal";

(g) by inserting after subsection (3) the following subsection:

(4)  A person, whether or not in or on any motor vehicle, suffers personal injury caused by a motor vehicle if the personal injury is a direct result of –

(a) a collision, or action taken to avoid a collision, with that motor vehicle, whether the motor vehicle is stationary or moving; or

(b) that motor vehicle moving out of control; or

(c) the driving of that motor vehicle.

5.    Section 3A inserted

After section 3 of the Principal Act , the following section is inserted in Part I:

3A.   Objects of Act

The objects of this Act are –

(a) to provide for the payment of compensation in respect of personal injury resulting from a motor accident; and

(b) to allow the contribution of funds to any or all of the following programs:

(i) programs designed to reduce the incidence of motor accidents in Tasmania;

(ii) programs designed to enable better and more effective care and treatment of persons who suffer personal injury as the result of a motor accident.

6.    Section 11 repealed

Section 11 of the Principal Act is repealed.

7.   Section 13B amended (Purposes of Foundation)

Section 13B(1) of the Principal Act is amended as follows:

(a) by omitting "vehicle", twice occurring, from paragraph (a);

(b) by omitting "death and bodily" from paragraph (a) and substituting "personal";

(c) by omitting "vehicle", wherever occurring, from paragraphs (b), (d), (e) and (f).

8.   Part III heading amended

The heading to Part III of the Principal Act is amended by omitting "DEATH OR BODILY INJURY ARISING FROM" and substituting "PERSONAL INJURY CAUSED BY".

9.   Section 14 amended (General liability of Board in respect of motor accidents)

Section 14 of the Principal Act is amended as follows:

(a) by omitting "death of, or bodily injury to, any person caused by or arising out of the use of" from subsection (1) and substituting "personal injury to a person caused by a motor accident involving";

(b) by omitting "death or bodily", twice occurring, from subsection (2) and substituting "personal";

(c) by inserting after subsection (2) the following subsection:

(2A)  Subsection (1) does not apply where the motor accident which resulted in the personal injury has not been reported to a police officer unless the Board determines that in the circumstances the failure to so report the motor accident should be excused.

(d) by omitting "death of, or bodily injury to," from subsection (4)(a) and substituting "personal injury to";

(e) by omitting "resulting from an accident" from subsection (4)(a) and substituting "caused by a motor accident";

(f) by omitting "like" from subsection (4A);

(g) by inserting after subsection (4A) the following subsections:

(4B)  If –

(a) both an indemnifiable person and a non-indemnifiable person are liable in respect of the personal injury that gave rise to the Board's obligation to indemnify the indemnifiable person; and

(b) the liability of either or both of those persons arises otherwise than as the result of a tort –

the Board has, in respect of any payments it is liable to make in or towards the indemnity, the same rights of contribution or indemnity against the non-indemnifiable person as the indemnifiable person would have had under the Tortfeasors and Contributory Negligence Act 1954 had the liability of both the indemnifiable person and the non-indemnifiable person arisen as a result of a tort.

(4C)  The Board may exercise the rights referred to in subsection (4B) by taking proceedings to recover contribution in its own name or the name of the indemnifiable person.

(4D)  In subsections (4B) and (4C)  –

indemnifiable person means a person the Board is bound to indemnify under this section;

non-indemnifiable person means a person the Board is not bound to indemnify under this section.

10.   Section 16 amended (Special provisions as to unidentified vehicles, &c.)

Section 16(2) of the Principal Act is amended by inserting "motor" before "accident", twice occurring.

11.   Section 18 amended (Recovery by Board from owner or driver in certain cases)

Section 18 of the Principal Act is amended as follows:

(a) by inserting "motor" in subsection (1) before "accident";

(b) by omitting from subsection (1) all the words after "those payments" and substituting "from –

(a) the owner if the liability was incurred by the owner; or

(b) the person by whom the liability was incurred if that person was not the owner; or

(c) the owner of the motor vehicle if the liability was incurred by another person.

(c) by inserting the following subsection after subsection (1):

(1A)  Subsection (1)(c) does not apply if the owner of the motor vehicle shows that the other person who was using the motor vehicle at the time of the motor accident did so without the consent or acquiescence of the owner.

(d) by inserting "motor" in subsection (2) before "accident";

(e) by omitting "manslaughter;" from subsection (3)(a) and substituting "manslaughter; or";

(f) by omitting "driving;" from subsection (3)(ab) and substituting "driving; or";

(g) by omitting "Act 1970," from subsection (3)(c) and substituting "Act 1970; or";

(h) by inserting the following paragraph in subsection (3) after paragaph (c):

(d) in another State or a Territory of the Commonwealth of an offence which is substantially the same as an offence referred to in paragraph (a) , (ab) , (b) or (c)  –

(i) by inserting "motor" in subsection (3) before "accident";

(j) by omitting subsections (3A) and (4) and substituting the following subsection:

(4)  A person from whom a sum is recoverable under this section in respect of that person's liability to another person has the same rights of contribution or indemnity in relation to that sum as that person would have had if –

(a) section 14(4A) did not apply; and

(b) that sum were damages to which section 3 of the Tortfeasors and Contributory Negligence Act 1954 applied.

12.   Section 21 amended (Duties of registered owner, &c.)

Section 21 of the Principal Act is amended as follows:

(a) by omitting "an accident", twice occurring, from subsection (1) and substituting "a motor accident";

(b) by inserting "motor" in subsection (1) before "accident", third, fourth and fifth occurring;

(c) by inserting "motor" in subsection (2) before "accident";

(d) by omitting "an accident" from subsection (3) and substituting "a motor accident";

(e) by inserting "motor" in subsection (3) before "accident", second occurring.

13.    Section 22 amended (Actions for damages in respect of third party liabilities)

Section 22 of the Principal Act is amended as follows:

(a) by inserting "motor" in subsection (1) before "accident";

(b) by omitting "death of, or bodily injury to," from subsection (2)(a) and substituting "personal injury to";

(c) by omitting "an accident" from subsection (2)(a) and substituting "a motor accident";

(d) by omitting subsection (3) and substituting the following subsections:

(3)  If –

(a) personal injury, other than death, is caused by a motor vehicle; and

(b) the person suffering that personal injury, in contravention of the Traffic (General and Local) Regulations 1956 , was not wearing a seat belt –

the court must reduce that portion of the damages that is attributable to the failure to wear a seat belt and would otherwise be awarded.

(4)  The amount by which that portion of the damages attributable to the failure to wear a seat belt is to be reduced under subsection (3) is 15% or a higher percentage that the court considers just and equitable having regard to the extent to which the proper use of a seat belt would have lessened the severity of the injury.

14.    Section 23 amended (Liability to pay scheduled benefits)

Section 23 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  The Board must pay the benefits prescribed by the regulations if –

(a) a resident of this State suffers personal injury as the result of a motor accident occuring in this State; or

(b) a person suffers personal injury as the result of a motor accident occurring in this State and caused by a motor vehicle registered in this State; or

(c) a resident of this State suffers personal injury caused by a motor vehicle registered in this State and as the result of a motor accident occurring in another State or a Territory of the Commonwealth.

(b) by inserting after subsection (2) the following subsection:

(2A)  Subsection (1) does not apply where the motor accident which resulted in the personal injury has not been reported to a police officer unless the Board determines that in the circumstances the failure to so report the motor accident should be excused.

(c) by omitting subsection (4) and substituting the following subsection:

(4)  The regulations may prescribe in relation to a person who suffers personal injury as a result of a motor accident –

(a) the medical benefits payable to that person, the forms of treatment for which medical benefits are payable and the limit (except in respect of a person requiring daily care) on the amount of medical benefits payable; and

(b) the funeral benefits payable to that person's personal representative and the limit on the amount of funeral benefits payable; and

(c) the death benefits payable to dependants of that person and the limit on the amount of death benefits payable; and

(d) the disability benefits payable to that person and the manner of determining the limit on the amount of disability benefits payable.

15.   Section 24 amended (Exclusions from scheduled benefits)

Section 24 of the Principal Act is amended as follows:

(a) by omitting "death of, or bodily injury to", five times occurring, from subsection (1) and substituting "personal injury to";

(b) by omitting "death or bodily", three times occurring, from subsection (1) and substituting "personal";

(c) by inserting "motor" in subsection (1)(b) before "accidents";

(d) by omitting "or arose out of the use of" from subsection (1)(d);

(e) by inserting the following paragraph in subsection (1) after paragraph (d):

(e) Where that personal injury was caused by the use of a motor vehicle –

(i) that is a trail bike, farm bike or beach buggy; and

(ii) in respect of which a premium has not been paid –

and that person was the owner or driver of that motor vehicle;

(f) by omitting "purpose." from subsection (1)(f) and substituting "purpose;";

(g) by inserting in subsection (1) after paragraph (f) the following paragraph:

(g) Where, in respect of a motor accident –

(i) the personal injury to that person is caused by a motor vehicle, other than a trailer of a kind prescribed for the purposes of section 29(1AA) ; and

(ii) at the time of the motor accident a premium for the use of that motor vehicle had not been paid or a premium for the use of that motor vehicle in the circumstances or under the conditions in which the motor vehicle was being used had not been paid; and

(iii) at the time of the motor accident that person –

(A) was the driver of the motor vehicle and knew or ought to have known that such a premium had not been paid; or

(B) was the owner of the motor vehicle.

(h) by omitting "bodily" from subsection (2) and substituting "personal";

(i) by omitting "an accident" from subsection (2) and substituting "a motor accident";

(j) by inserting "motor" in subsection (2) before "accident", second and third occurring;

(k) by omitting "manslaughter;" from subsection (2)(a)(i) and substituting "manslaughter; or";

(l) by omitting "driving;" from subsection (2)(a)(iA) and substituting "driving; or";

(m) by omitting "Act 1970," from subsection (2)(a)(iii) and substituting "Act 1970; or";

(n) by inserting the following subparagraph in subsection (2)(a) after subparagraph (iii):

(iv) in another State or a Territory of the Commonwealth of an offence that is substantially the same as an offence referred to in subparagraph (i) , (ia) , (ii) or (iii)  –

(o) by omitting "bodily" from subsection (4) and substituting "personal";

(p) by omitting "an accident" from subsection (4) and substituting "a motor accident";

(q) by inserting "motor" in subsection (5) before "accident".

16.   Section 27 amended (Scheduled benefits in relation to liability for damages)

Section 27 of the Principal Act is amended as follows:

(a) by omitting "death or bodily", twice occurring, in subsection (1) and substituting "personal";

(b) by omitting "death and bodily" from subsection (3)(a) and substituting "personal";

(c) by omitting "death or bodily injury –" from subsection (3)(b) and substituting "personal injury; or";

(d) by inserting in subsection (3) after paragraph (b) the following paragraph:

(c) a person has agreed to accept an amount in satisfaction of a claim in respect of personal injury –

(e) by omitting "that death or bodily" from subsection (3) and substituting "that personal";

(f) by inserting "or agreement" in subsection (3) after "judgment", second occurring.

17.   Sections 28B and 28C inserted

After section 28A of the Principal Act, the following sections are inserted:

28B.   Recovery by Board of scheduled benefits

(1)  In this section,

scheduled benefits includes payments by the Board in respect of its legal costs which are properly and reasonably incurred and which relate to, or are incidental to, the payment of the scheduled benefits including, but not limited to –

(a) a reference of any matter to the Tribunal; and

(b) any legal proceedings relating to the payment of the scheduled benefits.

(2)  The Board may recover from the person who owned a motor vehicle at the time that motor vehicle was involved in a motor accident resulting in personal injury scheduled benefits paid to that person or any other person in respect of that personal injury if –

(a) that motor vehicle is not a trailer of a kind prescribed for the purposes of section 29(1AA) ; and

(b) at the time of the motor accident a premium for the use of that motor vehicle had not been paid or a premium for the use of that motor vehicle in the circumstances or under the conditions in which the motor accident occurred had not been paid.

(3)  Subsection (2) does not apply if it is shown that the motor vehicle was being used without the owner's consent or acquiescence.

(4)  The Board may recover from a person who, at the time a motor vehicle was involved in a motor accident resulting in personal injury, was using but was not the owner of that motor vehicle scheduled benefits paid to that person or any other person in respect of that personal injury if –

(a) that person did not have the consent or acquiescence of the owner to so use that motor vehicle; and

(b) the person did not have reasonable grounds for believing that the person had the consent or acquiescence of the owner to so use that motor vehicle.

(5)  The Board may recover from the driver of a motor vehicle who caused a motor accident scheduled benefits paid to that driver or any other person in respect of personal injury resulting from that motor accident if that driver is convicted in respect of that motor accident –

(a) of manslaughter; or

(b) of causing death by dangerous driving; or

(c) of an offence under section 32(1) of the Traffic Act 1925 ; or

(d) of an offence under section 4 of the Road Safety (Alcohol and Drugs) Act 1970 ; or

(e) in another State or a Territory of the Commonwealth of an offence that is substantially the same as an offence referred to in paragraph (a) , (b) , (c) or (d) .

(6)  The Board may recover from the driver of a motor vehicle who caused a motor accident scheduled benefits paid to that driver or any other person in respect of personal injury resulting from that motor accident if the driver intended to cause that motor accident.

28C.   Recovery by Board from non-indemnifiable person of scheduled benefits

(1)  In this section –

fault has the same meaning as in the Tortfeasors and Contributory Negligence Act 1954 ;

indemnifiable person means a person who is entitled to be indemnified by the Board in respect of a liability;

non-indemnifiable person means a person who is not entitled to be indemnified by the Board in respect of a liability;

scheduled benefits includes payments by the Board in respect of its legal costs which are properly and reasonably incurred and which relate to, or are incidental to, the payment of the scheduled benefits including, but not limited to –

(a) a reference of any matter to the Tribunal; and

(b) any legal proceedings relating to the payment of the scheduled benefits.

(2)  The Board may recover from a non-indemnifiable person a scheduled benefit paid to any other person in respect of personal injury if the circumstances of the motor accident which resulted in the personal injury also created a liability in the non-indemnifiable person to pay damages.

(3)  The Board has, in respect of scheduled benefits paid in respect of personal injury, the same rights of contribution and indemnity against a non-indemnifiable person as would have vested in an indemnifiable person by the Tortfeasors and Contributory Negligence Act 1954 if –

(a) the circumstances of the motor accident which resulted in the personal injury also created liability in both the non-indemnifiable person and the indemnifiable person to pay damages; and

(b) the scheduled benefits had been damages paid by the indemnifiable person towards meeting the liability; and

(c) the liability had arisen as the result of a tort.

(4)  If under section 4 of the Tortfeasors and Contributory Negligence Act 1954 a person is given a right to reduced damages in respect of a personal injury, the amount recoverable by the Board under subsection (2) or (3) in respect of that personal injury is reduced in the same proportion.

(5)  If –

(a) the circumstances of a motor accident which resulted in personal injury to a person also create, otherwise than in tort, a liability in another person to pay damages in respect of that injury; and

(b) section 4 of the Tortfeasors and Contributory Negligence Act 1954 would have applied so as to reduce the damages payable had that liability arisen in tort –

the amount recoverable by the Board under subsection (2) or (3) in respect of that personal injury is reduced in the same proportion.

18.    Section 30 amended

Section 30 of the Principal Act is amended by omitting subsections (2) , (2A) , (3) , (4) , (5) and (6) and substituting the following subsections:

(2)  The Board must set the premiums payable for the use of a motor vehicle.

(3)  The premiums may be set by reference to one or more of the following matters:

(a) the type or class of the motor vehicle;

(b) the conditions to be complied with in relation to the use of the motor vehicle.

(4)  The conditions referred to in subsection (3) may include one or more of the following conditions:

(a) whether the motor vehicle is let for hire, or intended to be let for hire, whether with or without a driver and whether only in Tasmania or in Tasmania and another jurisdiction that is prescribed as a jurisdiction to which section 20 applies;

(b) any other purposes for which, or circumstances in which, the motor vehicle is used or intended to be used;

(c) any other circumstances pertaining to, or affecting, the motor vehicle, its owner or the person by whom it is used;

(d) any other conditions to be complied with in relation to the use of the motor vehicle.

19.   Section 32 amended (Effect of payment of premiums)

Section 32 of the Principal Act is amended as follows:

(a) by omitting "as prescribed," from subsection (2) and substituting "in the manner prescribed,";

(b) by omitting "may, as prescribed," from subsection (3) and substituting "calculated as determined by the Board may, in the manner prescribed,".

20.   Section 33A inserted

Before section 34 of the Principal Act, the following section is inserted in Part VI:

33A.   Determining whether to recover amount paid by Board

In determining whether to exercise a right under Part III or IV to recover from a person an amount paid under that Part, the Board may take into account one or more of the following:

(a) whether a failure to pay any premium at all in respect of a motor vehicle or the correct premium for use of a motor vehicle in the circumstances or conditions in which a motor accident occurred was due to reasonable mistake or any other reasonable cause;

(b) whether the payment of that amount by that person would be likely to impose substantial hardship on that person or a dependant of that person;

(c) any other matter the Board considers relevant.

21.    Section 34 amended (Regulations)

Section 34 of the Principal Act is amended by inserting after subsection (2) the following subsection:

(3)  The regulations may authorise any matter to be from time to time determined, applied or regulated by the Board.

22.    Motor Accidents (Liabilities and Compensation) Regulations 1980 amended

The Motor Accidents (Liabilities and Compensation) Regulations 1980 are amended as follows:

(a) by rescinding regulations 6, 7 and 8;

(b) by omitting "regulation 7 or 8" from regulation 9 and substituting "an arrangement with the Board";

(c) by omitting clause 2 of Part III of Schedule 2 and substituting the following clause:

2.   Limitation on funeral benefits

(1)  The maximum amount payable under clause 1 of this Part is $3 300.

(2)  Despite subclause (1), a further amount not exceeding $2 000 is payable in respect of expenses reasonably incurred and incidental to the burial or cremation of a person who died as a result of a motor accident if the Board considers it just in all the circumstances for that further amount to be paid.

[Second reading presentation speech made in:

House of Assembly on 15 OCTOBER 1997

Legislative Council on 12 NOVEMBER 1997]