Motor Accidents (Liabilities and Compensation) Regulations 2000

Motor Accidents (Liabilities and Compensation) Regulations 2000

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Motor Accidents (Liabilities and Compensation) Act 1973 .

1 May 2000

G. S. M. GREEN

Governor

By His Excellency's Command,

P. A. LENNON

Minister for Infrastructure, Energy and Resources

1.   Short title

These regulations may be cited as the Motor Accidents (Liabilities and Compensation) Regulations 2000 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Interpretation

In these regulations –

Act means the Motor Accidents (Liabilities and Compensation) Act 1973 ;

Certificate of Premium Paid means a certificate issued by the Registrar on receipt of a premium paid in respect of a motor vehicle specified in that certificate;

Commission means the Transport Commission incorporated under the Transport Act 1981 ;

Registrar means the Registrar of Motor Vehicles appointed under the Traffic (Miscellaneous) Regulations 1968 .

4.   Certificate of Premium Paid

(1)  A person may apply to the Registrar for a Certificate of Premium Paid.

(2)  An application is to be –

(a) in a form approved by the Board; and

(b) accompanied by the premium payable under section 30 of the Act.

(3)  On receipt of an application, the Registrar is to –

(a) issue a Certificate of Premium Paid to the applicant; and

(b) record the particulars required to be recorded under section 33(4) of the Act.

5.   Period Certificate of Premium Paid remains in force

A Certificate of Premium Paid remains in force –

(a) in the case of a registered motor vehicle, for the same period for which the registration in respect of that vehicle remains in force; or

(b) in the case of an unregistered motor vehicle, for 12 months commencing –

(i) on the date of payment of the first premium; or

(ii) where a premium is paid within 28 days of the expiration of the immediately preceding period for which that certificate was in force, on the expiration of that preceding period; or

(iii) where a premium is paid more than 28 days after the expiration of that preceding period, on the date of payment of the premium.

6.   Commission to remit amounts to Board

The Commission, when required by the Board to do so, is to remit to the Board an amount equal to all premiums received by it on behalf of the Board, after deducting an amount equal to any refund made under an agreement with the Board.

7.   Prescribed jurisdictions

For the purposes of section 20(1) of the Act, the following are prescribed jurisdictions:

(a) Victoria;

(b) New South Wales;

(c) Queensland;

(d) South Australia;

(e) Western Australia;

(f) Australian Capital Territory;

(g) Northern Territory.

8.   Scheduled benefits

The benefits payable by the Board under section 23(1) of the Act and the provisions in accordance with which those benefits are payable are specified in Schedule 1 .

9.   Prescribed trailer

For the purposes of section 29(1AA) of the Act, a trailer, other than a caravan, which has an unladen mass of not more than half a tonne is a trailer of a prescribed kind.

10.   Recording payment of premiums

The particulars referred to in section 33(4) of the Act may be recorded on an electronic data processing device.

11.   Premium classification to be recorded

For the purposes of section 33(4)(e) of the Act, the category of a motor vehicle, within the meaning of the Government Prices Oversight (MAIB Premiums) Order 1997 , is a particular required to be recorded.

12.   Commission to provide particulars

The Commission is to provide the Board with the particulars recorded under section 33(4) of the Act.

13.   Extract of records as evidence

An extract of the records made or kept under section 33(4) of the Act and certified under regulation 14 is evidence of the facts contained in that extract.

14.   Certification of extract of records

For the purposes of regulation 13 , an extract of the records may be certified by –

(a) the chief executive officer of the Board; or

(b) an officer of the Board authorised by the Board for that purpose; or

(c) the officer in charge of the motor registry, if any, at which the premium was paid.

15.   Rescission

The Motor Accidents (Liabilities and Compensation) Regulations 1980 are rescinded.

SCHEDULE 1 - Scheduled benefits

Regulation 8

PART 1 - Persons to whom death benefits are payable

1.   Interpretation

In this Schedule –

assessable income has the same meaning as in the Income Tax Assessment Act 1936 of the Commonwealth;

child of a person includes a child adopted by that person but does not include a child of that person who has been adopted by any other person;

child of a marriage or de facto relationship means a child referred to in clause 2 of Part 1 ;

de facto relationship means the relationship between 2 persons who are the de facto spouses of each other;

de facto spouse means a person who –

(a) has cohabited with another person of the opposite sex as the spouse of that other person although not legally married to that other person for at least 3 years immediately before the time of an accident; and

(b) at the time of the accident, was wholly, mainly or partly dependent on that other person for financial support;

dependant, in relation to a person who is injured or dies, means a person who would, but for that injury or death, be wholly, mainly or partly dependent on that person for financial support;

dependent child, in relation to a person, means a child of that person (other than a child who has a spouse) who –

(a) is under 16 years of age; or

(b) has attained 16 years of age but is less than 25 years of age and is a full-time student –

and would, but for the death or injury of that person, be wholly, mainly or partly dependent on that person for financial support;

dependent parent means a dependent parent within the meaning of clause 5 of Part 1 ;

registered means registered under a relevant law of this State;

single person means a person who, at the time of the accident, was not in a subsisting marriage or de facto relationship.

2.   Child of a marriage or de facto relationship

(1) A person is a child of a marriage or de facto relationship if the person is –

(a) a child of both parties to the marriage or de facto relationship; or

(b) a child of either party to the marriage or de facto relationship and is accepted as a child of the marriage or de facto relationship by the other party.

(2) Unless the contrary is shown, a child of either party to a marriage or de facto relationship is accepted by the other party to the marriage or de facto relationship if the child is a member of the parties' household.

3.   Paternity

(1) A person is the father of another person if –

(a) the person has acknowledged, in writing or by a course of conduct, that he is the father of the child; or

(b) a court in this State or elsewhere has made an order or other determination in relation to the maintenance or custody of the child on a determination that the person is the father of the child; or

(c) the person has been declared under the Status of Children Act 1974 to be the father.

(2) A person is to be taken as having no surviving father if no person is ascertained as being his or her father in accordance with subclause (1) .

4.   Unborn child

If a woman was pregnant at the time of an accident, a child born from that pregnancy is to be treated as if the child –

(a) had been born immediately before the accident; and

(b) had been dependent on both parents, or whichever parent as was then living, for financial support at the time of the accident.

5.   Dependent parent

A person is a dependent parent of another person if the person –

(a) is a parent of the other person; and

(b) ordinarily resides with the other person in the same premises; and

(c) is principally dependent on the other person for financial support.

6.   Survivorship

(1) A person survives another person only if the person is living at the end of a period of 30 days beginning on the day on which the other person dies.

(2) A child born after the death of a person survives that person only if the child is living at the end of a period of 30 days beginning on the day on which the child is born.

7.   Person treated as de facto spouse

(1) A person may apply to the Board to be treated as a de facto spouse of another person if the person would have been the de facto spouse of that other person had they been cohabiting for 3 years.

(2) The Board may determine that an applicant is to be treated as the de facto spouse of another person if the Board is satisfied that, taking into account the circumstances of the case, it is proper to do so.

PART 2 - Medical Benefits

1.   Medical benefits

(1) Subject to this Part, where a person suffers bodily injury as a result of an accident, all the expenses reasonably incurred by the person or on his or her behalf for the provision of the treatment and equipment required by him or her within the Commonwealth as a result of the injury are payable.

(2) Subject to this Part, where as a result of suffering bodily injury in an accident a person requires daily care, the reasonable value of all treatment and equipment reasonably required and gratuitously provided to him or her within the Commonwealth as a result of the injury is payable in addition to the benefits payable under subclause (1) .

(3) Where any sums are paid, or required to be paid, under a law of the Commonwealth in respect of the provision of any treatment or equipment referred to in subclause (1) from which any expenses referred to in that subsection are, or may be, met, the amount payable under that subclause in respect of the provision of that treatment or equipment is to be reduced by the amount of those sums.

(4) In relation to a person who has suffered bodily injury, the treatment and equipment referred to in this clause includes the following:

(a) medical or surgical treatment by, or under the supervision of, a registered medical practitioner;

(b) therapeutic treatment obtained at the direction of a registered medical practitioner;

(c) psychological services provided by, or under the supervision of, a registered psychologist;

(d) dental treatment by, or under the supervision of, a registered dentist;

(e) therapeutic treatment by, or under the supervision of, a registered –

(i) physiotherapist; or

(ii) osteopath; or

(iii) naturopath; or

(iv) masseur; or

(v) chiropractor;

(f) an examination, test or analysis carried out on, or in relation to, an injured person at the request or direction of a registered medical practitioner, registered dentist or registered psychologist and the provision of a report in respect of such an examination, test or analysis;

(g) the supply, replacement or repair of –

(i) an artificial limb; or

(ii) a medical or surgical aid or appliance or any similar aid or appliance;

(h) the reasonable cost of necessary alterations to –

(i) the building in which the person resides or proposes to reside; or

(ii) the person's motor vehicle;

(i) treatment and maintenance as a patient at a hospital;

(j) the reasonable cost of road accident rescue services and ambulance services;

(k) nursing care, rehabilitation services and the provision of medicine, medical supplies, surgical supplies and any apparatus associated with such care or services, whether in hospital or otherwise;

(l) reasonable expenses incurred in travelling for the purposes of obtaining treatment from a registered person provided that the distance travelled is greater than 20 kilometres one way.

(5) For the purposes of this clause, the expense of providing treatment for any person is taken to have been unreasonably incurred to the extent to which it exceeds the expense that would have been incurred if that treatment had been provided in the most economical manner practicable in the circumstances.

2.   Limitation of amount of medical benefits

Except in respect of medical benefits payable to a person requiring daily care, the total amount payable under this Part in respect of the injuries received by a person as a result of any one accident, together with any amount referred to in clause 1(2) of this Part paid, or payable, in respect of those injuries, must not exceed $200 000.

3.   Need for daily care to arise within 12 months of accident

For the purposes of this Part, a person does not require daily care unless the person's need for such care arises within 12 months after the date of the relevant accident.

PART 3 - Funeral benefits

1.   Funeral benefits

Where a person dies as a result of an accident, all expenses reasonably incurred in the burial or cremation of the body are payable, other than expenses incurred in the provision or erection of any gravestone.

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.

PART 4 - Death benefits

1.   Benefits on death of person with dependants

(1) Where a person dies as the result of an accident and is survived by one or more dependants, a lump sum is payable by way of death benefits.

(2) Subject to this Part, the lump sum is a sum of $41 000.

(3) If the deceased is survived by any dependent children –

(a) less than 9 years of age, the lump sum is to be increased by $10 000 in respect of each such dependent child; or

(b) who have attained 9 years of age but are less than 18 years of age, the lump sum is to be increased by $5 000 in respect of each such dependent child; or

(c) who have attained 18 years of age but are less than 25 years of age, the lump sum is to be increased by $2 000 in respect of each such dependent child.

(4) The death benefits payable under this clause are –

(a) payable to the dependants of the deceased; and

(b) to be apportioned between the dependants as the Board considers appropriate having regard to the degree of dependency of each dependant; and

(c) in the case of benefits payable to a dependent child under 18 years of age, to be paid to the Public Trustee on behalf of that child.

2.   Effect of disability allowance

Where a person is entitled to receive payments by way of disability allowance in respect of injuries received as a result of an accident, any lump sum otherwise payable by way of death benefits in respect of that person's death as a result of that accident is to be reduced by the amount of those payments.

PART 5 - Disability allowances

1.   Types of disability allowances

(1) In accordance with this Part, periodical allowances are payable to any person injured as a result of an accident.

(2) A disability allowance may be –

(a) an employed person's allowance; or

(b) a self-employed person's allowance; or

(c) a housekeeping allowance.

(3) Notwithstanding anything in this Part, a person is not entitled to both an employed person's allowance and a self-employed person's allowance.

2.   Employed person's allowance

(1) For the purposes of this clause, "the prescribed period" means a period of 156 weeks beginning at the expiration of the period referred to in subclause (4)(a) .

(2) An injured person is entitled to an employed person's allowance if, at the time of the accident –

(a) the injured person was engaged in an employment or occupation for remuneration or profit; or

(b) the injured person was travelling directly from his or her place of residence to the place at which, upon arrival at the end of the journey in the course of which the accident occurred, he or she was to take up an employment or occupation for remuneration or profit; or

(c) the injured person –

(i) was, on the day of the accident, at least 15 years old or exempt from the requirement to attend school under the law of the State; and

(ii) had been engaged in an employment or occupation for remuneration or profit for a total period of not less than 26 weeks in the 12 months immediately preceding the day of the accident; and

(iii) was actively seeking employment through all avenues reasonably available to him or her, or was certified by a medical practitioner as unfit for work due to injury or illness.

(3) For the purposes of subclause (1) , a person engaged in an employment or occupation is to be treated as continuing to be so engaged notwithstanding the person's temporary absence, with leave of his or her employer or otherwise, or the person's temporary standing down from employment by his or her employer.

(4) An employed person's allowance is payable –

(a) for such periods, falling within the period of 104 weeks beginning on the day of the accident, during which the injured person is wholly disabled from engaging in his or her usual employment or occupation as a consequence of the injury; and

(b) for such other periods, falling within the prescribed period, during which the injured person is, by reason of the injury, wholly disabled from engaging in any employment or occupation for which he or she would otherwise be reasonably suited by education, training, experience or ability.

(5) If the average weekly earnings of the injured person exceed $50 a week, the employed person's allowance is to be an allowance at the rate of 80% of his or her average weekly earnings.

(6) Where, at the time of the accident, the injured person was not a dependant of any other person and his or her average weekly earnings do not exceed $50 a week, the employed person's allowance is to be an allowance at the rate of $40 a week.

(7) If the injured person was, at the time of the accident, a dependant of any person and his or her average weekly earnings do not exceed $50 a week, the employed person's allowance is to be an allowance at the rate of the lesser of the following:

(a) $40 a week;

(b) his or her average weekly earnings.

(8) Where, in respect of any period in respect of which an employed person's allowance would, apart from this subclause, be payable to a person, that person receives remuneration or profit from any employment or occupation –

(a) the amount of that allowance is to be reduced by the amount of that remuneration or profit; and

(b) if the amount of that remuneration or profit exceeds the amount of the allowance, the allowance is not payable in respect of that period.

3.   Self-employed persons allowance

(1) For the purposes of this clause –

business includes any profession, trade, employment, vocation or calling, but does not include an occupation as an employee;

prescribed period means a period of 156 weeks beginning at the expiration of the period referred to in subclause (3)(a) .

(2) An injured person is entitled to a self-employed person's allowance if –

(a) at the time of the accident he or she was carrying on a business for profit; and

(b) he or she is disabled from conducting that business as a result of the injury and to ensure that the business is carried on during the period in which he or she is so disabled arrangements are made for another person to receive remuneration, gratuity or reward to conduct that business.

(3) A self-employed person's allowance is payable –

(a) for such periods, falling within the period of 104 weeks beginning on the day of the accident, during which the injured person is wholly disabled from conducting his or her business as a result of the injury and arrangements are made for another person to receive remuneration, gratuity or reward to conduct that business; and

(b) for such other periods, falling within the prescribed period, during which the injured person is, by reason of the injury, wholly disabled from engaging in any employment or occupation for which he or she would otherwise be reasonably suited by education, training, experience or ability.

(4) A self-employed person's allowance is an allowance at the rate of 80% of any remuneration, gratuity or reward paid to a person to carry on a self-employed person's business.

4.   Housekeeping allowance

(1) An injured person is entitled to a housekeeping allowance if at the time of the accident the person normally carried out household duties.

(2) A housekeeping allowance is payable for any period within 26 weeks after the day of the accident during which the person is wholly disabled, by reason of the injury, from carrying out his or her normal household duties.

(3) Subject to this clause, a housekeeping allowance payable to an injured person is to be a maximum of $150 a week.

(4) Where an injured person who is entitled to a housekeeping allowance employed another person to carry out household duties before the date on which the person was injured, the injured person is entitled to recover only the cost of those duties that are additional to those carried out by the housekeeper before that date.

5.   General limitations on disability allowances

(1) A disability allowance is not payable for –

(a) the period of 7 days beginning on the day of the accident; or

(b) any period while the injured person is outside the Commonwealth.

(2) A disability allowance is not payable unless, within the period of 20 days beginning on the day of the accident, the injured person –

(a) in the case of an employed person's allowance or a self-employed person's allowance, is wholly disabled, as a result of the injury, from engaging in his or her usual employment or occupation; or

(b) in the case of a housekeeping allowance, is wholly disabled, as a result of the injury, from carrying out ordinary household duties.

6.   Computation of average weekly earnings

(1) In relation to the payment of a disability allowance, an injured person's average weekly earnings are determined as follows:

(a) if the person was continuously engaged in an employment or occupation during the period of 12 months immediately preceding the day of the accident, the person's average weekly earnings over that period;

(b) if the person was continuously engaged in an employment or occupation immediately preceding the day of the accident for a period of one week or more and less than 12 months, the person's average weekly earnings over that period;

(c) if the person was engaged in an employment or occupation immediately preceding the day of the accident for a period of less than one week, the average weekly earnings of a person engaged in the same, or as close as possible to the same, employment or occupation;

(d) if the person was travelling to the place at which he or she was to take up his or her employment or occupation for the first time, the average weekly earnings of a person employed in the same, or as close as possible to the same, employment or occupation;

(e) if the person was entitled to an employed person's allowance under clause 2(2)(c) of this Part, the person's average weekly earnings for those weeks in respect of which the person derived earnings in the 12 months immediately preceding the day of the accident.

(2) For the purposes of this clause, the earnings of a person in respect of any period are taken to be –

(a) the remuneration he or she receives in any employment during that period; and

(b) the profits he or she receives in respect of the carrying on by him or her, either alone or in conjunction with any other person, of any business or undertaking during that period.

7.   Interpretation

(1) For the purposes of this Part –

(a) the holding of an office of profit is taken to constitute an employment; and

(b) in relation to any such office, a reference in this Part to anything done by an employer is to be construed as including a reference to anything done in relation to that office by a person having authority in relation to that office to exercise the powers ordinarily exercisable by a person in relation to other persons in that person's employment.

(2) In this Part, a reference to remuneration is to be construed as a reference to emoluments of any kind.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 10 May 2000

These regulations are administered in the Department of Infrastructure, Energy and Resources.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations make provision in respect of –

(a) the payment of premiums; and

(b) claims for scheduled benefits; and

(c) the calculation of scheduled benefits.