New South Wales: Motor Accident Injuries Act 2017 (NSW)

Motor Accident Injuries Act 2017 No 10 An Act to establish a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents; and for other purposes. Part 1 Preliminary Division 1.1 Introductory 1.1 Name of Act This Act is the Motor Accident Injuries Act 2017. 1.2 Commencement This Act commences on a day or days to be appointed by proclamation. 1.3 Objects of Act (cf ss 5 and 6 MACA) (1) This Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents. (2) For that purpose, the objects of this Act are as follows— (a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities, (b) to provide early and ongoing financial support for persons injured in motor accidents, (c) to continue to make third-party bodily insurance compulsory for all owners of motor vehicles registered in New South Wales, (d) to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses, (e) to promote competition and innovation in the setting of premiums for third-party policies, and to provide the Authority with a role to ensure the sustainability and affordability of the compulsory third-party insurance scheme and fair market practices, (f) to deter fraud in connection with compulsory third-party insurance, (g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, (h) to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme. (3) It must be acknowledged in the application and administration of this Act— (a) that participants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict access to non-economic loss compensation to serious injuries, and (c) that— (i) the premium pool from which each insurer pays motor accident claims consists at any given time of a finite amount of money, and (ii) the setting of appropriate premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iii) that stability and predictability require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability. (4) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (5) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned. Division 1.2 Interpretation 1.4 Definitions (cf ss 3 and 7 MACA) (1) In this Act— attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services. Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. claim means a claim for statutory benefits or a claim for damages. claimant means a person who makes or is entitled to make a claim. commencement of this Act means the commencement of the majority of the provisions of this Act. Commission means the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020. Commission rules has the same meaning as in the Personal Injury Commission Act 2020. damages means damages (within the meaning of the Civil Liability Act 2002) in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but does not include statutory benefits. driver means a person driving a motor vehicle, and includes— (a) a person riding and operating a motor cycle, and (b) a person for the time being in charge of a motor vehicle. employment includes self-employment. fault means negligence or any other tort. function includes a power, authority or duty, and exercise a function includes perform a duty. hire vehicle has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. hospital means a public hospital (within the meaning of the Health Services Act 1997), or a private health facility licensed under the Private Health Facilities Act 2007. injured person means a person who has suffered an injury in respect of which this Act applies as provided by Division 1.3. injury means personal or bodily injury and includes— (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. Insurance Industry Deed means an agreement, as in force for the time being, between the Minister on behalf of the State, the Authority, licensed insurers and other persons (if any) with respect to the third-party insurance scheme and the Nominal Defendant scheme under this Act that is designated by the agreement as the Insurance Industry Deed for the purposes of this Act. insured motor vehicle means a motor vehicle in relation to which a third-party policy is in force. insured person means a person insured under a third-party policy. insurer of a motor vehicle means the insurer who insures the owner or driver of the motor vehicle against liability in respect of the death of or injury to a person, whether or not under a third-party policy, and includes— (a) the Nominal Defendant, and (b) where a claim is handled on behalf of an insurer by another insurer, the other insurer, and (c) an interstate insurer, being an entity (including an authority or instrumentality of the Commonwealth or of another State or a Territory) that under a law of the Commonwealth, another State or a Territory indemnifies the owner or driver of a motor vehicle against liability in respect of the death of or injury to a person, and (d) a self-insurer under Division 9.3. licensed insurer means an insurer that is the holder of a licence granted under Division 9.1 and in force. medical assessor means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act. merit reviewer means a person appointed under the Personal Injury Commission Act 2020 as a merit reviewer for the purposes of this Act. motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during— (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. Motor Accident Guidelines means the Motor Accident Guidelines issued by the Authority under Division 10.2 and in force. motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport Act 2013. Nominal Defendant means the Nominal Defendant referred to in section 2.27. Note— Section 2.27 appoints the Authority as the Nominal Defendant for the purposes of this Act. Nominal Defendant's Fund means the fund by that name established under Division 2.4. non-economic loss means— (a) pain and suffering, and (b) loss of amenities of life, and (c) loss of expectation of life, and (d) disfigurement. owner of a motor vehicle—see section 1.5. passenger service has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. person under legal incapacity includes the following persons— (a) a child who is less than 18 years of age, (b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007, (c) a person under guardianship within the meaning of the Guardianship Act 1987, (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, (e) an incommunicate person, being a person with a physical or mental disability that prevents the person from receiving communications, or expressing the person's will, in relation to the person's property or affairs. President means the President of the Commission. provider of a passenger service or booking service has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. registration means— (a) registration of a motor vehicle under the Road Transport Act 2013 or the Recreation Vehicles Act 1983, or (b) the issue of an unregistered vehicle permit under the Road Transport Act 2013 for an unregistered motor vehicle, or (c) registration in New South Wales of a motor vehicle under the Interstate Road Transport Act 1985 of the Commonwealth. rehabilitation of an injured person, means the process of enabling or attempting to enable the person to attain and maintain— (a) the maximum level of independent living, and (b) full physical, mental, social and vocational ability, and (c) full inclusion and participation in all aspects of life. relevant insurer in relation to the payment of statutory benefits—see section 3.2. road means a road or road related area (within the meaning of section 4 (1) of the Road Transport Act 2013), but does not include an area to which the whole of that Act does not apply because of an instrument under that Act. SIRA Fund—see Division 10.4. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. statutory benefits means statutory benefits payable under Part 3. taxi has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. third-party policy means a policy of insurance under this Act. threshold injury—see section 1.6. trader's plate means a trader's plate within the meaning of the Road Transport Act 2013. trailer means a trailer within the meaning of the Road Transport Act 2013. Note— The Road Transport Act 2013 defines "trailer" to mean generally a vehicle that is built to be towed, or is towed, by a motor vehicle and that is not capable of being propelled without being towed by a motor vehicle, but does not include a motor vehicle that is being towed. treatment and care means the following— (a) medical treatment (including pharmaceuticals), (b) dental treatment, (c) rehabilitation, (d) ambulance transportation, (e) respite care, (f) attendant care services, (g) aids and appliances, (h) prostheses, (i) education and vocational training, (j) home and transport modification, (k) workplace and educational facility modifications, (l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition, but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition. use or operation of a motor vehicle includes— (a) the maintenance or parking of the vehicle, or (b) in the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or (c) in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck. Note— As a result of the above definition, a third-party policy for a motor vehicle extends to cover the matters mentioned in the definition. Workers Compensation Acts means the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes in the text of this Act do not form part of this Act. 1.5 Meaning of "owner" of a motor vehicle (cf s 4 MACA) (1) For the purposes of this Act— (a) in the case of a motor vehicle that is registered, the owner is— (i) each registered operator of the vehicle within the meaning of the Road Transport Act 2013, unless the operator has sold or ceased to have possession of the vehicle, and (ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and (iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle—any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (b) in the case of a motor vehicle that is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (c) in the case of a motor vehicle to which a trader's plate is fixed, the owner is the trader to whom the trader's plate is issued. (2) For the purposes of this section, a person is taken not to have ceased to have possession or, as the case may be, not to have acquired possession of a motor vehicle where a change of possession occurs by way of— (a) any hiring (not being a hiring under a hire-purchase agreement) or lending of the vehicle for a period not exceeding 3 months, or (b) the passing of the possession of the vehicle to a bailee for the purpose of sale or disposal or for the purpose of alteration, repair, renovation, garaging, storing or other like purpose not involving the use or operation of the motor vehicle for the benefit of the bailee. (3) In the application of any provision of this Act to and in respect of a motor vehicle to which a trader's plate is fixed (whether or not with the authority of the trader), a reference in any such provision to the owner is to be read as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle is to be read as a reference to the third-party policy in relation to motor vehicles to which the trader's plate is fixed (whether or not with the authority of the trader). 1.6 Meaning of "threshold injury" (1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. (3) (Repealed) (4) The regulations may— (a) exclude a specified injury from being a threshold injury for the purposes of this Act, or (b) include a specified injury as a threshold injury for the purposes of this Act. (5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act. (6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor. Note— The rules of the Commission make provision for these matters. 1.7 Determination of threshold degree of permanent impairment of injured person who suffers both physical and psychological/psychiatric injuries (1) This section applies for the purposes of a determination under this Act of whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10% (the impairment threshold). (2) If an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident— (a) the degree of permanent impairment that results from the physical injury is to be assessed separately from the degree of permanent impairment that results from the psychological or psychiatric injury (and accordingly those separate degrees of injury are not to be added together for the purposes of the impairment threshold), and (b) the injured person is taken to have a degree of permanent impairment greater than the impairment threshold if either the degree of impairment caused by physical injuries or the degree of impairment caused by psychological or psychiatric injuries is greater than 10%. Note— If there is more than one physical injury those injuries will still be assessed together as one injury, but separately from any psychological or psychiatric injury. Similarly, if there is more than one psychological or psychiatric injury those psychological or psychiatric injuries will be assessed together as one injury, but separately from any physical injury. Division 1.3 Application 1.8 Application of Act to motor accidents occurring after commencement of Act This Act does not apply to or in respect of a motor accident occurring before the commencement of this Act. 1.9 General restrictions on application of Act (cf s 3A MACA) (1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during— (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents. 1.10 Restrictions on application of Act—accident must be insured or work accident (cf s 3B MACA) (1) The application of this Act in respect of death or injury that results from the use or operation of a motor vehicle is limited to death or injury that— (a) results from a motor accident for which the vehicle has motor accident insurance cover, or (b) gives rise to a work injury claim, other than a work injury claim in respect of the death of or injury to a coal miner (as defined in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987). (2) For the purposes of this Act, a motor vehicle has motor accident insurance cover for a motor accident if and only if— (a) at the time of the motor accident the motor vehicle was subject to coverage under a third-party policy, or (b) at the time of the motor accident the motor vehicle was subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, or (c) at the time of the motor accident, the motor vehicle was owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or (d) there is a right of action against the Nominal Defendant in respect of the motor accident or there would be a right of action against the Nominal Defendant in respect of the motor accident if the motor accident had been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. (3) For the purposes of this Act, death or injury gives rise to a work injury claim if it is— (a) the death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker's employer), or (b) an injury to a worker caused by the negligence or other tort of the worker's employer, with expressions used in this subsection having the same meanings as they have in Part 5 of the Workers Compensation Act 1987. 1.10A Liability of Nominal Defendant The provisions of this Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages, subject to— (a) necessary modifications, and (b) modifications prescribed by the regulations. 1.11 Application of Part 6 (Motor accident claims), Part 7 (Dispute resolution) and Division 10.3 (Bulk billing arrangements) (1) Parts 6 and 7 and Division 10.3 apply to and in respect of a claim or injury whether or not there is a third-party policy in respect of liability for the claim or injury. (2) This section is subject to section 1.10. Part 2 Third-party insurance Division 2.1 Compulsory insurance 2.1 Offence of using uninsured motor vehicle on road (cf s 8 MACA) (1) A person who— (a) uses a motor vehicle that is not an insured motor vehicle on a road, or (b) causes or permits another person to use such a motor vehicle on a road, is guilty of an offence. Maximum penalty—50 penalty units. (2) It is a defence to proceedings for an offence against this section if the defendant establishes that at the time the motor vehicle was used on the road the defendant had reasonable grounds for believing and did in fact believe that the motor vehicle was an insured motor vehicle. 2.2 Exception from compulsory insurance (cf s 9 MACA) This Division does not apply to a motor vehicle that is used on a road if— (a) the motor vehicle may lawfully be used on the road although not registered, or (b) the motor vehicle is a trailer, or (c) the motor vehicle is a vehicle of a kind, and is used in the circumstances (if any), prescribed by the regulations. Division 2.2 Insurance policies 2.3 Third-party policies (cf s10 MACA) A third-party policy under this Act is a policy that is in the following terms— Third-party Policy The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle— (a) if the motor vehicle is not one to which paragraph (b) applies—in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or (b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport Act 2013—in the use or operation of the vehicle on any road in any part of the Commonwealth. In this policy, words and expressions have the same meanings as in the Motor Accident Injuries Act 2017. 2.4 Treatment of certain vehicles for purposes of third-party policy (cf s 10A MACA) (1) A motor vehicle that is— (a) subject to conditional registration under the Road Transport Act 2013, and (b) designed principally for use otherwise than on a road, and (c) a motor vehicle, or a motor vehicle of a class, prescribed by the regulations for the purposes of this section, is taken, for the purposes of a third-party policy under this Act, to be subject to an unregistered vehicle permit and not to conditional registration. (2) However, a regulation made for the purposes of this section does not affect a third-party policy under this Act that is in force in respect of any particular vehicle at the time that the regulation is made. 2.5 Issue of certificate of insurance (cf s 11 MACA) (1) If a licensed insurer accepts a premium for the insurance under a third-party policy of a motor vehicle, the licensed insurer must immediately issue a certificate of insurance to the owner of the vehicle. (2) If a licensed insurer accepts a premium for the insurance under a third-party policy of motor vehicles to which a trader's plate is or is to be fixed, the licensed insurer must immediately issue a certificate of insurance to the trader. (3) A licensed insurer who issues such a certificate is taken to have issued a third-party policy for the motor vehicle or motor vehicles to which the certificate relates. (4) If 2 or more licensed insurers issue certificates of insurance which (but for this subsection) would be capable of having effect at the same time in respect of the same motor vehicle, a third-party policy is taken to have been issued only by the licensed insurer recorded by TfNSW in connection with the registration or renewal of registration of the motor vehicle or issue of a trader's plate as being the insurer. 2.6 Evidence of insurance in respect of motor vehicle (cf s 12 MACA) (1) TfNSW must not register or renew the registration of a motor vehicle or issue a trader's plate unless— (a) the applicant produces a certificate of insurance issued by a licensed insurer in relation to the motor vehicle or trader's plate, or (b) TfNSW is satisfied that there is evidence, of a type approved by the Authority, of the existence of a third-party policy in relation to the motor vehicle or trader's plate. (2) This section does not apply to a trailer. 2.7 Commencement and duration of third-party policy (cf s 13 MACA) (1) A third-party policy taken to have been issued for a motor vehicle has effect for the period for which the licensed insurer who is taken to have issued the policy is on risk in accordance with this section. (2) In this section— new insurer means the licensed insurer whose insurance is later in time. old insurer means the licensed insurer whose insurance is earlier in time. period of grace means the period of 14 days after the registration, or renewal of registration, of a motor vehicle expires. period of registration means the period, not exceeding one year, for which the registration or renewal of registration of a motor vehicle is effected, but if, within that period, the registration or renewal of registration is cancelled or surrendered, it means the period for which the registration or renewal of registration is actually in force. (3) The old insurer and the new insurer may be the same licensed insurer or different licensed insurers. (4) In the case of the registration (but not the renewal of registration) of a motor vehicle, the licensed insurer is on risk for the period of registration of the motor vehicle. (5) If registration is renewed before the previous period of registration expires, the old insurer is on risk until the previous period of registration expires and the new insurer comes on risk immediately after the previous period of registration expires. (6) If registration is renewed during the period of grace, the old insurer is on risk until 12 midnight on the day registration is renewed and the new insurer comes on risk immediately after 12 midnight and is on risk for the balance of the period of registration of the motor vehicle effected by the renewal of registration. (7) If registration is renewed after the period of grace expires, the new insurer comes on risk at the time the renewal of registration is effected. The motor vehicle is not an insured motor vehicle from the expiry of the previous period of registration until the time the renewal of registration is effected. (8) There is no period of grace following the cancellation or surrender of the registration (whether registration or a renewal of registration) of a motor vehicle. (9) A licensed insurer ceases to be on risk on the cancellation of a third-party policy under section 2.8, subject to section 2.8 (11). (10) A licensed insurer is on risk in respect of a motor vehicle under a third-party policy relating to a motor vehicle to which a trader's plate is fixed— (a) only during the period for which the policy is issued, and (b) only during the period for which the trader's plate is issued, and (c) only while a trader's plate is fixed to the vehicle. (11) A licensed insurer is on risk in respect of a light rail vehicle under a third-party policy relating to the vehicle only during the period for which the policy is issued. 2.8 Cancellation of third-party policies (cf s 14 MACA) (1) A licensed insurer has no power to cancel a third-party policy. (2) A third-party policy may only be cancelled in accordance with this section. (3) A third-party policy is cancelled on the cancellation of the registration of the motor vehicle to which it relates, except where the registration is cancelled under Division 3 of Part 4 of the Fines Act 1996. (4) If the whole or any part of the premium payable in respect of a third-party policy is paid by cheque or by credit or debit card, and the cheque is not met on due presentation or the card transaction is not duly honoured or is fraudulent, the licensed insurer may request TfNSW to suspend the registration of the motor vehicle to which the policy relates for a period of 14 days. (5) If the insured person under a third-party policy avoided paying the correct premium for the third-party policy because of a false statement made by or on behalf of the insured person in connection with the issue of the policy, the licensed insurer may request TfNSW to suspend the registration of the motor vehicle to which the policy relates for a period of 14 days. (6) A licensed insurer is not to request TfNSW to suspend the registration of a motor vehicle except with the approval of the Authority or in the circumstances authorised by the regulations, and is not to make such a request unless the amount outstanding remains unpaid. (7) Before requesting TfNSW to suspend the registration of a motor vehicle, the licensed insurer must notify the owner of the motor vehicle that the insurer intends to request TfNSW to suspend the registration and that the registration and third-party policy may be cancelled at the expiration of the suspension period if the amount outstanding has not been paid before the expiration of the period. (8) TfNSW must comply with a request by a licensed insurer under this section to suspend the registration of a motor vehicle. (9) If the amount outstanding remains unpaid, the licensed insurer may request TfNSW before the end of the suspension period to cancel the registration of the motor vehicle at the expiration of the suspension period. A licensed insurer is not to request TfNSW to cancel the registration of a motor vehicle except with the approval of the Authority or in the circumstances authorised by the regulations. (10) TfNSW must comply with a request by a licensed insurer under this section to cancel the registration of a motor vehicle. (11) If the registration of a motor vehicle is cancelled, otherwise than under Division 3 of Part 4 of the Fines Act 1996 or subsection (10), but restored before the date for renewal of the registration, the third-party policy cancelled is taken to have remained in force during the period of cancellation. 2.9 Risks not insured under third-party policies (cf s 15 MACA) A third-party policy does not extend to insure the owner or driver of a motor vehicle against— (a) a liability to pay compensation under the Workers Compensation Acts (or any corresponding law of another State or a Territory of the Commonwealth) to a worker employed by the owner or driver, or (b) a liability which may be incurred by the owner or driver under an agreement unless the liability is one which would have arisen in the absence of the agreement. 2.10 Exclusion of acts of terrorism from insurance coverage (cf s 15A MACA) (1) A third-party policy does not extend to insure the owner or driver of a motor vehicle against a liability that is attributable to an act that, having regard to the nature of the act and the context in which the act was done, it is reasonable to characterise as an act of terrorism. (2) Any lawful activity or any industrial action cannot be characterised as an act of terrorism for the purposes of this section. An act can only be so characterised if it— (a) causes or threatens to cause death, personal injury or damage to property, and (b) is designed to influence a government or to intimidate the public or a section of the public, and (c) is carried out for the purpose of advancing a political, religious, ideological, ethnic or similar cause. (3) This section is repealed on a date to be appointed by proclamation for the purposes of this section. 2.11 Indemnification of insured persons (cf s 16 MACA) A licensed insurer is, despite any other law, liable to indemnify the insured persons under a third-party policy of the insurer in respect of any liability which the policy purports to cover. 2.12 Liability of licensed insurers and insured persons where correct insurance premiums not paid (cf s 17 MACA) (1) The fact that the correct insurance premium has not been paid in respect of a third-party policy does not affect the validity or operation of the policy. (2) A licensed insurer to whom an incorrect insurance premium has been paid may recover any balance outstanding of the premium from the person liable to pay it as a debt in a court of competent jurisdiction. (3) If— (a) an insured person under a third-party policy incurs a liability against which he or she is insured under the policy, and (b) the insured person avoided paying the correct premium for the third-party policy by making a statement in connection with the issue of the policy that the insured person knew was false, the licensed insurer may recover from the insured person as a debt in a court of competent jurisdiction— (c) where the money paid and the costs incurred by the licensed insurer in respect of the liability do not exceed $5,000—the amount of the money paid and costs incurred, and (d) where the money paid and costs incurred by the licensed insurer exceed $5,000—$5,000. (4) The licensed insurer is not entitled to recover an amount under subsection (3) if the licensed insurer has recovered that amount in the exercise of any other right of recovery under this Division. 2.13 Right to recover higher premium resulting from change (cf s 19 (2) MACA) If, as a consequence of the change in ownership of a motor vehicle, a change in use of a motor vehicle, a change in the place at which the motor vehicle is usually garaged or any other change, a higher premium would be payable in relation to the vehicle than the premium paid or payable under the third-party policy in force in relation to the vehicle before the change occurred, the licensed insurer may recover the appropriate difference from the owner as a debt in a court of competent jurisdiction. 2.14 Effect of change of ownership of motor vehicle or trader's business (cf s 18 MACA) (1) While a third-party policy is in force in relation to a motor vehicle, the third-party policy enures in favour of the owner for the time being of the vehicle (and any driver of the vehicle) despite any change in the ownership of the vehicle. (2) While a third-party policy is in force in relation to a motor vehicle to which a trader's plate issued in respect of any business is fixed, the third-party policy enures in favour of the person who for the time being is carrying on the business (and any driver of any such vehicle) despite any change in the ownership of the business. 2.15 Notice of change of registered particulars relating to motor vehicles (cf s 19 (1) MACA) TfNSW is required to notify the licensed insurer under a third-party policy in force in relation to a motor vehicle of any change in any registered particulars relating to the motor vehicle that is notified to TfNSW. 2.16 Right of insurer against unauthorised driver of motor vehicle (cf s 20 MACA) If— (a) a person uses or operates a motor vehicle without the authority of the owner or without reasonable grounds for believing that he or she had the authority of the owner, and (b) a licensed insurer pays any money or incurs any costs (under a third-party policy or under Part 3) in respect of a motor accident arising from that use or operation, the insurer may recover the money so paid and the costs so incurred from the person as a debt in a court of competent jurisdiction. 2.17 Extension of indemnity to insured person's estate (cf s 22 MACA) (1) A third-party policy, to the extent of the insurance effected by that policy— (a) extends, if the insured person is dead, to indemnify the insured person's estate against— (i) liability arising under any cause of action which, by virtue of section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, survives against the insured person's estate, and (ii) liability arising by operation of section 2 (4) of that Act, and (b) extends to indemnify the insured person or, if the insured person is dead, to indemnify the insured person's estate against— (i) liability arising where the insured person or, as the case may be, the insured person's estate has in any proceedings been joined as an alternative defendant, and (ii) liability arising where the insured person or, as the case may be, the insured person's estate has served or has been served with a notice in writing under section 3 (1) of the Law Reform (Miscellaneous Provisions) Act 1946, and (iii) liability arising where the insured person or, as the case may be, the insured person's estate claims contribution from some other person as a joint tortfeasor or has a claim made against the insured person or the insured person's estate, as the case may be, as a joint tortfeasor. (2) In subsection (1), insured person means a person who is insured or indemnified against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle under— (a) a third-party policy, or (b) a policy of insurance complying with the provisions of any law in force in any part of the Commonwealth (other than this State) which requires the owner or driver of a motor vehicle to be insured against any such liability, or (c) the provisions of any other law in force in any part of the Commonwealth (other than this State) which indemnify the owner or driver of a motor vehicle against any such liability. 2.18 Entry of judgment against licensed insurer (cf s 23 MACA) (1) If a judgment obtained in any court relating to liability in respect of the death of or injury to a person caused by the fault of the owner or driver of an insured motor vehicle in the use or operation of the vehicle is not satisfied in full within 30 days after the judgment is entered, the court must, on the application of the judgment creditor, direct that the judgment be entered against the licensed insurer of the vehicle. (2) If execution on the judgment is stayed pending appeal, the time during which execution is stayed is to be excluded in calculating the 30-day period. (3) Notice of intention to make the application is to be served on the licensed insurer at least 7 days before the hearing of the application. (4) If the court directs that the judgment be entered against the licensed insurer, the judgment may be enforced as a judgment against the licensed insurer to the extent to which it was not satisfied at the time it was so entered. Division 2.3 Insurance premiums 2.19 Authority guidelines for the determination of premiums (cf ss 24 and 27A MACA) (1) The Motor Accident Guidelines may provide for the determination of insurance premiums for third-party policies. (2) Motor Accident Guidelines may (without limiting the generality of subsection (1))— (a) specify the manner in which premiums are to be determined, and (b) require licensed insurers to specify how they have determined premiums, and (c) specify the factors to be taken into account in determining premiums (including in determining the reasonable cost of claims and claims settlement expenses), and (d) specify the maximum or minimum (or both) rate of estimated investment earnings, superimposed inflation, claims frequency, acquisition expenses, agents' commission or other expenses or assumptions used in the determination of premiums, and (e) exclude, from being taken into account in the determination of premiums, acquisition expenses not directly relevant to the acquisition of third-party insurance business or other expenses of the insurer, and (f) specify the nature of the additional information and reports that the Authority may require licensed insurers to furnish with the premiums they file or to justify premiums they have filed (including with respect to estimated investment earnings, superimposed inflation, claims frequency, the verification of assumptions, estimated profit, capital allocation to third-party insurance business and other relevant matters), and (g) provide for a refund of part of the premium paid for a third-party policy during or after the period for which the policy is issued by reference to digital information recorded about the safe driving of the motor vehicle during that period or to other factors. (3) The Motor Accident Guidelines may only specify maximum rates of assumptions used in the determination of premiums if the Authority is satisfied that they are reasonable and will result in insurers having sufficient premium income to meet their liabilities in relation to third-party policies and to make a reasonable profit. (4) The cost of claims for the purpose of determining insurance premiums for third-party policies must take account of the effect of any exclusion or restriction on claims under this Act (including under section 3.32). 2.20 Third-party premiums (cf s 25 MACA) (1) A licensed insurer must not charge an insurance premium for a third-party policy, except in accordance with this Division. (2) The licensed insurer must file with the Authority a premium or set of premiums it proposes to charge. (3) Two or more licensed insurers can jointly file a premium or set of premiums that they propose to charge. (4) The licensed insurer may, on and from the proposed commencement date for the premium, charge a premium that has not been rejected by the Authority within the period allowed under this section for rejecting a premium. Except as provided by section 2.22, the licensed insurer must not charge any other premium on and from that proposed commencement date. (5) The proposed commencement date for a premium is the date specified in a filed premium as the date on and from which the proposed premium will be charged. The proposed commencement date cannot be earlier than the end of the period allowed for rejecting a premium but can be changed (with notice to the Authority) to accommodate a change in the period allowed for rejecting a premium. (6) The period allowed for rejecting a premium is (subject to subsection (7)) the period nominated by the insurer when filing the premium, being a period of not less than 6 weeks or such shorter period as the Authority may allow in a particular case. (7) Time does not run in relation to the period allowed for rejecting the premium of a licensed insurer from the day on which the Authority requests any further information from the insurer, because the insurer has failed to comply with its obligations under this Act or the Motor Accident Guidelines in relation to the filing of the premium, until the day on which the insurer complies with that request for further information. (8) A premium may only be rejected as provided by this section or section 2.22. 2.21 Filing of premiums (cf s 26 MACA) (1) A licensed insurer must file its premiums with the Authority on such occasions or with such frequency as is required by the Motor Accident Guidelines and may (subject to any limitations specified in those Guidelines as to the frequency with which premiums may be filed) file its premiums with the Authority at such other times as the insurer considers appropriate. (2) A licensed insurer must also file its premiums with the Authority whenever required to do so by the Authority by notice in writing to the insurer. The notice must allow a period of at least 8 weeks after the notice is served for premiums to be filed. (3) An insurer files its premiums by filing with the Authority a full set of the insurance premiums it proposes to charge for third-party policies that are taken to have been issued by it together with such additional information, including actuarial reports, as the Authority may reasonably require. (4) Two or more licensed insurers can jointly file a premium or set of premiums under this section. (5) An insurer must pay to the Authority such fees as may be required by the Motor Accident Guidelines to be paid by insurers in connection with the filing of premiums by insurers. (6) It is a condition of a licence granted under this Act that the insurer must comply with this section. 2.22 Rejection of premiums by Authority (cf s 27 MACA) (1) The Authority may reject an insurance premium filed with it under this Division if it is of the opinion that— (a) the premium is, having regard to actuarial advice and to other relevant financial information available to the Authority, excessive or inadequate, or (b) the premium does not conform to the relevant provisions of the Motor Accident Guidelines. (2) Written notice of the Authority's rejection of a premium, and the reasons for the rejection, must be given to the licensed insurer. (3) If the Authority rejects a premium of a licensed insurer, the licensed insurer may request the Authority to reconsider the rejection. (4) Pending its reconsideration, the Authority may request an actuary to determine a provisional premium. (5) A provisional premium so determined has effect, pending the Authority's reconsideration, as if it were an insurance premium which may lawfully be charged by the licensed insurer concerned. (6) If the Authority has not withdrawn its rejection of a premium within 4 weeks after a request to reconsider the rejection, the matter is to be arbitrated under this section. The following provisions have effect— (a) The Commercial Arbitration Act 2010 applies to an arbitration under this section, subject to this Act and the regulations. The Authority and the licensed insurer concerned may by agreement appoint a person to act as arbitrator in connection with the matter. Failing agreement within 7 days, paragraphs (b) and (c) apply. (b) The Independent Pricing and Regulatory Tribunal (established by the Independent Pricing and Regulatory Tribunal Act 1992) may act as arbitrator to hear and determine such a matter. (c) Alternatively, that Tribunal may appoint a person to act as arbitrator in connection with the matter. The person is to be appointed from a panel constituted by the Minister and consisting of persons who have appropriate knowledge and understanding of economics, general insurance and the interests of consumers. (d) The regulations may make provision for or with respect to the arbitration of matters under this section. (7) The arbitrator may determine the premium that may be charged by the licensed insurer. (8) The Authority or an arbitrator is not bound by any provisions of the Motor Accident Guidelines referred to in section 2.19 (2) (c) or (d) that the Authority or arbitrator considers would be unreasonable to be applied in the particular circumstances of the case. 2.23 Insurers to disclose profit margins (cf s 28 MACA) (1) A licensed insurer is required to disclose to the Authority the profit margin on which a premium is based and the actuarial basis for calculating that profit margin. (2) The Authority is to assess that profit margin, and the actuarial basis for its calculation, and to include a report on that assessment in its annual report. 2.24 Risk equalisation (cf s 29 MACA) (1) The purpose of this section is to achieve an appropriate balance between the premium income of an insurer and the risk profile of the third-party policies issued by the insurer. (2) The regulations may impose any one or more of the following arrangements on licensed insurers— (a) an arrangement for allocating high risk or low risk third-party policies among insurers, (b) an arrangement for the adjustment of premiums collected in respect of third-party policies and for the allocation and transfer of those premiums among insurers, (c) an arrangement for the adjustment of the costs of claims for motor accidents covered by high risk or low risk third-party policies and for the allocation and transfer of those costs among insurers. An allocation of premiums or costs is to be made generally in accordance with the market share of each insurer or in any other appropriate manner. (3) Any such arrangement may require insurers to provide information to the Authority about third-party policies or claims, to re-imburse the Authority for the costs of administering the arrangement and to take other measures to give effect to the obligations and liabilities of insurers under the arrangement. (4) It is a condition of an insurer's licence under this Act that the insurer must comply with any such arrangement. (5) The regulations may authorise any matter arising under any such arrangement to be determined in accordance with the Motor Accident Guidelines. (6) For the purposes of this section, high risk or low risk third-party policies are policies of a kind that the Authority determines incur a higher or lower disproportionate share of liability for the total cost of claims for motor accidents. (7) An arrangement under section 29 of the Motor Accidents Compensation Act 1999 that is in force on the commencement of this section is (subject to the regulations) taken to be an arrangement under this section. Any such arrangement may be varied by the regulations or by the agreement of the parties to which it applies. 2.25 Adjustment of premiums and Fund levies in case of excess profits or excess losses (1) A review by the Authority of premium income of licensed insurers to determine whether premiums and Fund levies under Division 10.4 should be adjusted to avoid or minimise excess profits or excess losses— (a) may be undertaken, with the approval of the Board of the Authority, if the average realised underwriting profits of insurers for 1 or more years are substantially greater or less than the average filed profits of insurers, and (b) must be undertaken if the average realised profits of insurers for 1 or more years are greater than the average filed profits of insurers by 2% or more of the average filed premiums, and (c) must be undertaken if, for at least 2 years in a row, the average realised profits of insurers are less than the average filed profits of insurers by 5% or more of the average filed premiums. (2) The Motor Accident Guidelines may, following such a review, make special arrangements for the adjustment of premiums and Fund levies under Division 10.4 to avoid or minimise excess profits or excess losses, including an appropriate refund of premiums previously paid by policy holders or an appropriate reduction or increase in future premiums payable by policy holders. Note— Motor Accident Guidelines with respect to insurance premium matters may only be made with the approval of the Board of the Authority—see section 10.3. (2A) The Motor Accident Guidelines may include provision for the adjustment of premiums and Fund levies under Division 10.4 for the purposes of this clause to take into account innovations implemented by insurers to promote the objects of this Act. (3) If, as a result of the exercise of a function under this section, the Authority determines that premiums and Fund levies under Division 10.4 should be adjusted to avoid or minimise excess profits, the Authority must take action to make adjustments to avoid or minimise those excess profits. (4) The Authority may, following any adjustment referred to in subsection (2) of premiums and Fund levies under Division 10.4 to avoid or minimise excess losses, direct payments from the Motor Accidents Operational Fund under that Division to insurers corresponding to any increase in Fund levies otherwise payable. (5) The Authority must, following any adjustment referred to in subsection (2) of premiums and Fund levies under Division 10.4 to avoid or minimise excess profits, direct insurers to make payments to the Motor Accidents Operational Fund under that Division corresponding to any reduction in Fund levies otherwise payable. (6) An amount payable to or from the Motor Accidents Operational Fund under subsection (4) or (5) is not recoverable from or payable to policy holders. (7) The Motor Accident Guidelines may provide for an adjustment under this section to be made in relation to previous, current or future periods. (8) It is a condition of an insurer's licence under this Act that the insurer must comply with the requirements of any special arrangement under this section. (9) In this section— excess loss means a shortfall in underwriting profit of an insurer below the filed profit of the insurer. excess profit means underwriting profit of an insurer in excess of the filed profit of the insurer. filed premium means a premium filed with the Authority under this Division (and not rejected by the Authority). filed profit means estimated underwriting profit on which filed premiums are based. 2.26 Special provisions relating to taxis and hire vehicles and other vehicles (1) The Motor Accident Guidelines relating to the determination of insurance premiums for third-party policies may provide for the payment of premiums of third-party policies. (2) Without limiting subsection (1), the guidelines may— (a) provide for part of the premium to be paid before the issue of a third-party policy and the remainder of the premium to be paid during the period for which the policy is issued, and (b) provide for refunds by licensed insurers of part of the premium paid for a third-party policy for taxis or hire vehicles during or after the period for which the policy is issued, and (c) impose requirements on providers of passenger services or booking services relating to taxis, hire vehicles or other classes of vehicles, or on other persons conducting a business relating to the vehicles or on licensed insurers, concerning the following— (i) terms for the payment of premiums, including reporting requirements and timeframes, (ii) invoicing arrangements for the payment of premiums, (iii) arrangements concerning the payment of GST for premiums. (3) A determination under subsection (1)— (a) may be made in relation to taxis or hire vehicles or in relation to other classes of vehicles, and (b) for guidelines for the purposes of subsection (2)(a) and (b)— (i) may provide for the basis on which the remainder of the premium is to be paid, or a part of the premium refunded, including by reference to the safe driving of vehicles, number of trips undertaken by the vehicles, distance travelled by the vehicles, other activity in which the vehicles are engaged or other factors, and (ii) may authorise the remainder of the premium to be paid on behalf of the persons to whom the third-party policies are issued, including by the providers of passenger services or booking services relating to taxis or hire vehicles, or by other persons conducting a business relating to the vehicles. (4) Section 2.8 (Cancellation of third-party policies) extends to the cancellation of a third-party policy if a payment required to be made during the period for which the policy is issued has not been duly paid. (5) The Authority may, by written notice served on a person conducting a business relating to vehicles, including the provider of a passenger service or a booking service, require the person to do 1 or more of the following— (a) provide to the Authority, within the time and in the way specified in the notice, information the Authority reasonably requires for the purpose of determining the guidelines for insurance premiums for third-party policies for taxis, hire vehicles or other classes of vehicles, (b) provide to the Authority or a licensed insurer, within the time and in the way specified in the notice, information the Authority or licensed insurer reasonably requires to determine premiums for third-party policies for taxis, hire vehicles or other classes of vehicles, (c) pay, within the time and in the way specified in the notice, premiums for third-party policies for taxis, hire vehicles or other classes of vehicles. (6) A person to whom a notice is given under this section must not— (a) fail to comply with the notice, or (b) provide information to the Authority or an insurer the person knows is false or misleading in a material particular. Maximum penalty— (a) for a failure to comply with a requirement under subsection (5)(a)—100 penalty units, or (b) for other contraventions—500 penalty units. (7) In this section— GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. Division 2.4 Uninsured or unidentified motor vehicles 2.27 Nominal Defendant (cf s 32 MACA) (1) The Authority is, for the purposes of this Act, the Nominal Defendant. (2) Any action or proceeding by or against the Nominal Defendant is to be taken in the name of the "Nominal Defendant". Note— See section 1.10A for the application of this Division to statutory benefits. 2.28 (Repealed) 2.29 Claim against Nominal Defendant where vehicle not insured (cf s 33 MACA) (1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant. (2) Any such action may be brought despite the fact that the owner or driver of the motor vehicle is dead or cannot be found or is the spouse of the person whose death or to whom injury has been caused. (3) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle. (4) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land. (5) There is no right of action against the Nominal Defendant under this section— (a) if the motor vehicle is owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or (b) if there is a right of action under section 2.32 in respect of the death or injury, or (c) if, at the time the motor accident resulting in the death or injury occurred, the motor vehicle was registered under the law of a place other than New South Wales or under a law of the Commonwealth and the motor vehicle was covered under a policy of compulsory third-party personal injury insurance or was subject to coverage under a compulsory motor vehicle accident compensation scheme of that place or of the Commonwealth, or (d) if the regulations provide that in the circumstances specified in the regulations there is no right of action against the Nominal Defendant. (6) For the purposes of this section, and any regulations made for the purposes of this section— motor vehicle means a motor vehicle— (a) that is exempt from registration, or (b) that is not exempt from registration, is required to be registered to enable its lawful use or operation on a road in New South Wales and— (i) was at the time of manufacture capable of registration, or (ii) was at the time of manufacture, with m