Motor Accidents (Liabilities and Compensation) Amendment Act 2002

Motor Accidents (Liabilities and Compensation) Amendment Act 2002

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 2002 .

2.   Commencement

This Act commences on a day to be proclaimed.

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)

Section 2 of the Principal Act is amended as follows:

(a) by inserting the following definition before the definition of appointed day in subsection (1) :

adult average weekly earnings means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading "AVERAGE WEEKLY EARNINGS, Australia: Original" in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time;

(b) by omitting the definition of caused by a motor vehicle from subsection (1) ;

(c) by omitting the definition of daily care from subsection (1) and substituting the following definitions:

daily care means treatment, therapy, nursing services, assistance, supervision, services for rehabilitation or other care;

death benefits means death benefits referred to in the regulations;

(d) by inserting the following definition after the definition of disability allowance in subsection (1) :

disability benefits means disability benefits referred to in the regulations;

(e) by inserting the following definition after the definition of function in subsection (1) :

funeral benefits means funeral benefits referred to in the regulations;

(f) by omitting the definitions of medical benefit and motor accident from subsection (1) and substituting the following definitions:

medical benefits means medical benefits referred to in the regulations;

motor accident means an accident directly involving a motor vehicle;

(g) by inserting the following definition after the definition of motor vehicle race in subsection (1) :

offer of compromise means an offer of compromise within the meaning of the Supreme Court Rules 2000 ;

(h) by omitting the definitions of participating insurer and personal injury from subsection (1) and substituting the following definitions:

permitted out-of-State vehicle means a motor vehicle that –

(a) is registered elsewhere than in this State or in respect of which a permit issued elsewhere than in this State is in force; and

(b) may lawfully be driven or used on a public street in this State without being registered under the Vehicle and Traffic Act 1999 ;

personal injury means death or physical or mental injury and includes –

(a) prenatal injury; and

(b) nervous shock; and

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

(i) by inserting the following definition after the definition of registered operator in subsection (1) :

Registrar means the Registrar of Motor Vehicles appointed or employed under section 5 of the Vehicle and Traffic Act 1999 ;

(j) by omitting the definition of the regulations from subsection (1) and substituting the following definition:

regulations means regulations made and in force under this Act;

(k) by omitting the definition of third party liability from subsection (1) and substituting the following definition:

third party liability means a liability incurred by a person as the owner or user of a motor vehicle in respect of any personal injury to another person resulting directly from a motor accident;

(l) by omitting subsection (4) and substituting the following subsections:

(4)  For the purposes of this Act, a person suffers personal injury from a motor accident if the injury results directly from –

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

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

(c) the driving of a motor vehicle.

(5)  For the purposes of this Act, a person requires daily care if, as a result of having suffered personal injury resulting directly from a motor accident, the person requires, or is likely to require, daily care for at least 2 hours a day for an indefinite period, commencing not later than one year after the date of the accident.

5.    Part II, Division I: Heading amended

Division I of Part II of the Principal Act is amended by omitting "The Motor Accidents Insurance Board and participating insurers" from the heading to that Division and substituting "The Motor Accidents Insurance Board".

6.    Section 12 amended (The Motor Accidents Compensation Tribunal)

Section 12(2A) of the Principal Act is amended by omitting "a commissioner of a court of requests" and substituting "Master of the Supreme Court".

7.    Part III: Heading amended

Part III of the Principal Act is amended by omitting "LIABILITIES IN RESPECT OF PERSONAL INJURY CAUSED BY MOTOR ACCIDENTS" from the heading to that Part and substituting "LIABILITIES IN RESPECT OF PERSONAL INJURY RESULTING DIRECTLY FROM MOTOR ACCIDENTS".

8.    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 from subsection (1) "caused by" and substituting "resulting directly from";

(b) by omitting from subsection (4)(a) "caused by" and substituting "resulting directly from".

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

Section 18(3) of the Principal Act is amended by omitting paragraph (b) and substituting the following paragraph:

(b) of an offence under section 32(1) or (2A) of the Traffic Act 1925 ; or

10.    Section 19 amended (Special provisions as to motor vehicles registered outside State)

Section 19 of the Principal Act is amended by omitting subsection (2) .

11.    Section 21 amended (Duties of registered operator, &c.)

Section 21 of the Principal Act is amended by omitting subsections (1) , (2) and (3) and substituting the following subsections:

(1)  As soon as practicable after a motor accident, or as soon as practicable after a motor accident comes to his or her knowledge, the registered operator or the driver of any motor vehicle involved in the accident is to notify the Board of –

(a) the fact of the accident; and

(b) the time and place at which it occurred; and

(c) full particulars of the circumstances of the accident, so far as they are known to, or can be ascertained by, the registered operator or driver; and

(d) the name and address of any person killed or injured in the accident, and of any witness to the accident, so far as is known to the registered operator or driver.

(2)  In any proceedings for an offence under subsection (1) , a certificate –

(a) purporting to be signed by an employee of the Board authorised by the Board to sign it; and

(b) certifying that, in respect of a specified motor accident, the Board was not given notice of the matters referred to in subsection (1) by a specified date by the person against whom the proceedings were commenced –

is admissible under this Act and, unless the contrary is proved, is evidence of the matters so certified.

(3)  Upon a claim being made to any person in respect of a third party liability arising from a motor accident alleged to have been incurred by the person as owner or user of a motor vehicle involved in the accident, that person is to give notice of that claim to the Board, together with such particulars of the accident as the Board may require.

12.    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 in subsection (1) "for personal injury" after "damages";

(b) by omitting paragraph (a) from subsection (2) and substituting the following paragraph:

(a) personal injury to any person resulting directly from a motor accident; and

(c) by omitting subsections (3) and (4) and substituting the following subsections:

(3)  If –

(a) personal injury, other than death, results directly from a motor accident; and

(b) the person suffering that personal injury –

(i) in contravention of the Traffic (Road Rules) Regulations 1999 , was not wearing a seatbelt at the time when the injury was suffered; and

(ii) was not less than 16 years old at that time; and

(iii) is entitled to damages in respect of the personal injury –

the court must reduce those damages as provided in subsection (4) .

(4)  The amount by which the damages are to be reduced under subsection (3) is 15% or such higher percentage as the court considers just and equitable, having regard to the extent to which the proper use of a seatbelt would have lessened the severity of the personal injury.

(5)  Where a person is entitled to damages in respect of loss of earning capacity, the court must not award those damages on the basis that the person was, or may have been capable of, earning income at greater than 4.25 times the adult average weekly earnings as last published by the Australian Bureau of Statistics before damages are awarded.

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

Section 23 of the Principal Act is amended as follows:

(a) by omitting subsections (1) and (2) and substituting the following subsections:

(1)  The Board must pay the benefits prescribed by the regulations if a person who is a resident of this State suffers personal injury resulting directly from a motor accident and –

(a) the motor accident occurs in this State; or

(b) the motor accident occurs in another State or a Territory of the Commonwealth and involves a motor vehicle registered in this State.

(1A)  The Board must pay the benefits prescribed by the regulations if a person who is not a resident of this State suffers personal injury resulting directly from a motor accident and –

(a) the motor accident occurs in this State; and

(b) the motor accident involves a motor vehicle registered in this State.

(2)  For the purposes of subsections (1) and (1A) , a person is a resident of the State only if his or her ordinary place of residence is in the State.

(b) by omitting from subsection (2A) " Subsection (1) does" and substituting " Subsections (1) and (1A) do";

(c) by inserting in subsection (2A) "as soon as practicable" after "reported";

(d) by inserting the following subsection after subsection (2A) :

(2B)  For the purposes of subsections (1) and (1A) , a motor accident involves a motor vehicle registered in this State if –

(a) the motor vehicle is registered under the Vehicle and Traffic Act 1999 ; and

(b) the personal injury results directly from –

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

(ii) the motor vehicle moving out of control; or

(iii) the driving of the motor vehicle.

(e) by omitting from subsection (3) " subsection (1) " and substituting " subsection (1) or (1A) ";

(f) by omitting from subsection (4) "as a result of" and substituting "which results directly from";

(g) by omitting from subsection (4)(a) ", the forms of treatment for which medical benefits are payable";

(h) by omitting paragraph (d) from subsection (4) and substituting the following paragraphs:

(d) the disability allowance payable to that person and the limit on the amount of disability allowance payable; and

(e) the disability benefits payable to that person and the limit (except in respect of a person requiring daily care) on the amount of medical benefits payable.

(i) by inserting the following subsection after subsection (6) :

(7)  The regulations may provide limits on the periods within which –

(a) a claim for scheduled benefits may be lodged with the Board; or

(b) entitlements to scheduled benefits accrue.

14.    Section 24 amended (Exclusions from scheduled benefits)

Section 24 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "No scheduled benefits are" and substituting "Notwithstanding section 23 , scheduled benefits are not";

(b) by omitting from subsection (1)(a) "resulted" and substituting "results";

(c) by inserting in subsection (1)(a) "or herself" after "himself";

(d) by omitting from subsection (1)(b) "employment resulting from motor accidents" and substituting "or her employment";

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

(ba) where compensation is payable in respect of the personal injury under –

(i) any law of the Commonwealth, or of any other State or a Territory of the Commonwealth, relating to the payment of compensation in respect of personal injury resulting directly from motor accidents; or

(ii) any policy of insurance required by any such law;

(f) by omitting from subsection (1)(d) "was caused by a motor vehicle" and substituting "results from a motor accident occurring";

(g) by omitting from subsection (1)(e) "that personal injury was caused by" and substituting "the motor accident results directly from";

(h) by omitting from subsection (1)(e) "that person" and substituting "the injured person";

(i) by omitting from subsection (1)(f) "personal injury to that person was caused by, or arose out of," and substituting "motor accident results from";

(j) by omitting from subsection (1)(f) "that" second occurring and substituting "the injured";

(k) by omitting paragraph (g) from subsection (1) and substituting the following paragraph:

(g) where the motor accident results from the use of a motor vehicle other than a trailer of a kind prescribed for the purposes of section 29(1AA) and –

(i) at the time of the motor accident a premium for the use of the 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

(ii) at the time of the motor accident the injured 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.

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

(1A)  Paragraph (g) of subsection (1) does not apply to a resident of this State if, at the time of the motor accident, the motor vehicle referred to in that paragraph was a permitted out-of-State vehicle in respect of which a third party insurance policy was then in force.

(m) by omitting from subsection (2) "No medical or disability benefits are" and substituting "A medical benefit, disability benefit or disability allowance is not";

(n) by omitting from subsection (2) "arising" first occurring and substituting "resulting directly";

(o) by omitting subparagraph (ii) from subsection (2)(a) and substituting the following subparagraph:

(ii) of an offence under section 32(1) or (2A) of the Traffic Act 1925 ; or

(p) by omitting subsections (4) , (5) and (6) and substituting the following subsections:

(4)  Subject to subsection (4A) , if personal injury, other than death, results directly from a motor accident and the person suffering the injury is convicted in respect of the driving of a motor vehicle involved in the accident of an offence against section 6(1) , section 14(1A) , section 14(2) or section 14(5) of the Road Safety (Alcohol and Drugs) Act 1970 , any disability allowance payable to that person is to be calculated in accordance with the table below.

Section of Road Safety (Alcohol and Drugs) Act 1970	Concentration of alcohol in blood (grams per 100 millilitres of blood)	Proportion of disability allowance otherwise payable
Section 6(1)	(a) 0.05 or more but less than 0.12	Two thirds
	(b) 0.12 or more but less than 0.24	One third
	(c) 0.24 or more	Nil
Section 14(1A)		Nil
Section 14(2)		Nil
Section 14(5)		Nil

(4A)  Subsection (4) does not apply in respect of a person who is convicted of an offence against section 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 if the person satisfies the Board that the alcohol did not contribute in any way to the accident.

(5)  The Board may suspend the payment of a disability allowance until any relevant court proceedings under the Road Safety (Alcohol and Drugs) Act 1970 have been finalised.

15.    Sections 27A and 27B substituted

Sections 27A and 27B of the Principal Act are repealed and the following sections are substituted:

27A.   People requiring daily care

(1)  This section applies where a liability has been incurred for the payment of damages to a person in respect of personal injury resulting directly from a motor accident.

(2)  If a court is satisfied, at the time of giving judgment in respect of a liability referred to in subsection (1) , that the person to whom any damages are to be paid requires daily care as a result of suffering the personal injury giving rise to the damages, the court –

(a) as part of its judgment, is to certify that the person requires daily care; and

(b) is not to include in the damages any amount in respect of the daily care which that person requires as a result of the personal injury after the date of the judgment as will be recoverable by that person under subsection (4) as medical benefits or disability benefits.

(3)  If –

(a) a person makes a payment into court or an offer of compromise in respect of a claim arising from a liability referred to in subsection (1) ; and

(b) the person making the payment or the offer of compromise gives notice to the person making the claim that the payment or offer is made on the basis that, because of the personal injury giving rise to the claim, the person making the claim requires daily care; and

(c) the person making the claim accepts the payment or offer –

the person making the claim is taken, for the purposes of this Act, to require daily care.

(4)  Subject to subsections (5) and (6) , if –

(a) a court certifies in accordance with subsection (2)(a) that a person requires daily care; or

(b) a person accepts a payment into court or an offer of compromise in accordance with subsection (3)(c)  –

the Board is to pay that person medical benefits or disability benefits for so long as the person needs those benefits because of the personal injury giving rise to the liability referred to in subsection (1) .

(5)  If –

(a) a court awards damages to a person who requires daily care; and

(b) those damages include an allowance in respect of the future cost of any item or service –

no medical benefits or disability benefits are payable in respect of the cost of that item or service after the date of the judgment awarding the damages.

(6)  If a person who requires daily care and who would otherwise be entitled to medical benefits or disability benefits, accepts a payment into court, or an offer of compromise, which is expressed to include an allowance in respect of the future cost of any item or service, no medical benefits or disability benefits are payable in respect of that item or service after the day of acceptance of the payment or offer.

27B.   Board may require examination

(1)  In this section –

consultant means a person who is –

(a) normally resident in a State or Territory of the Commonwealth and is entitled in accordance with the laws of that State or Territory to practise as a medical practitioner, a dentist, a neuro-psychologist, an occupational therapist, a physiotherapist or a psychologist in that State or Territory; or

(b) trained or skilled in the rehabilitation of injured people; or

(c) employed, engaged or retained by the Board in the capacity of care manager or rehabilitation provider;

examination means –

(a) an examination of an injured person by a consultant; or

(b) an examination of any accommodation or facilities used by or available to an injured person;

rehabilitation program means a program prepared by a consultant at the request of the Board to assist the rehabilitation of a person who has suffered personal injury.

(2)  This section applies where –

(a) a person has suffered personal injury; and

(b) the personal injury has resulted in, or may result in, the Board being required to pay scheduled benefits.

(3)  The Board may require an examination of a person to whom this section applies to be carried out if –

(a) the Board has requested a rehabilitation program in respect of the person, or is deciding whether or not to request such a program; or

(b) the right to, or amount of any, scheduled benefits or damages payable in respect of an injury referred to in subsection (2) depends on a determination by the Board, a decision of the Tribunal or a judgment by a court.

(4)  If the Board has required an examination to be carried out and –

(a) the injured person unreasonably refuses or fails to be examined by a consultant in accordance with the requirement; or

(b) a person caring for the injured person unreasonably refuses or fails to give a consultant reasonable access to the injured person to carry out an examination in accordance with the requirement; or

(c) access to any accommodation or facilities required to be examined in accordance with the requirement is unreasonably refused or not given –

the Board is not required to pay scheduled benefits in respect of the injured person, and proceedings in any court relating to the personal injury to the injured person may be stayed on the application of the Board for so long as the refusal or failure continues.

(5)  If an injured person unreasonably refuses or fails to comply, whether wholly or partly, with a rehabilitation program prepared for, or in respect of, that person, the Board is not required to pay scheduled benefits in respect of that person and proceedings in any court relating to the personal injury to that person may be stayed on the application of the Board for so long as the refusal or failure continues.

16.    Section 28B amended (Recovery by Board of scheduled benefits)

Section 28B of the Principal Act is amended as follows:

(a) by omitting from subsection (2)(a) "is" and substituting "was";

(b) by inserting the following paragraph after paragraph (a) in subsection (2) :

(ab) that motor vehicle was not a permitted out-of-State vehicle in respect of which a third party insurance policy was then in force; and

(c) by omitting subsections (5) and (6) and substituting the following subsections:

(5)  If a person is convicted in respect of a motor accident –

(a) of manslaughter; or

(b) of causing death by dangerous driving; or

(c) of causing grievous bodily harm by dangerous driving; or

(d) of an offence under section 32(1) or (2A) of the Traffic Act 1925 ; or

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

(f) 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) , (d) or (e)  –

the Board may recover from that person scheduled benefits paid to that person or any other person in respect of personal injury resulting directly from that accident.

(6)  If a person intentionally causes a motor accident, the Board may recover from that person scheduled benefits paid to that person or any other person in respect of personal injury resulting directly from that motor accident.

17.    Section 33 amended (Payment of premiums)

Section 33 of the Principal Act is amended as follows:

(a) by omitting from subsection (4) "There shall be recorded as prescribed" and substituting "The Registrar is to record";

(b) by omitting from subsection (7) "of Motor Vehicles".

18.    Section 33A amended (Determining whether to recover amount paid by Board)

Section 33A(a) of the Principal Act is amended by inserting "resulting in personal injury" after "accident".

19.    Section 35 amended (Consequential amendments)

Section 35(3) of the Principal Act is amended as follows:

(a) by omitting "an" and substituting "a motor";

(b) by inserting "resulting in personal injury" after "such accident".

20.   Validation

For the removal of any doubt, the Motor Accidents (Liabilities and Compensation) Regulations 2000 are declared to be valid from the day on which they were made.

[Second reading presentation speech made in:

House of Assembly on 20 MARCH 2002

Legislative Council on 30 MAY 2002]