New South Wales: Motor Accidents Act 1988 (NSW)

Motor Accidents Act 1988 No 102 An Act relating to the recovery of damages, and compulsory insurance against liability, for the death of or injury to persons as a consequence of motor accidents; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Motor Accidents Act 1988. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2AA Motor Accidents Compensation Act 1999 and Motor Accident Injuries Act 2017 (1) The Motor Accidents Compensation Act 1999 makes provision with respect to motor accidents occurring after the commencement of that Act (but before the commencement of the Motor Accident Injuries Act 2017). Note— See sections 34B, 39AA, 41 (1) and 69 (1A) which limit the provisions of the Act relating to claims, court proceedings and the award of damages to motor accidents occurring before the commencement of the Motor Accidents Compensation Act 1999. (2) The Motor Accident Injuries Act 2017 makes provision with respect to motor accidents occurring after the commencement of that Act. 2A Objects of Act (1) The objects of this Act are: (a) to repeal the Transport Accidents Compensation Act 1987 and thereby to abolish the scheme for compensating victims of transport accidents (TransCover) established under that Act, and (b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and (c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and (ii) to introduce a stricter procedure for the making and assessment of claims for damages, and (iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability, and (iv) to give full weight to the need to identify fraudulent claims, deter their lodgment and prosecute those responsible for them, and (v) to encourage recovery from injury and early and effective rehabilitation, where appropriate, as a key feature of the scheme, and (vi) to encourage the speedy, efficient and effective provision of benefits balanced by the need to investigate claims properly and the need to encourage an early return to employment. Note— This statement of objects is based on the introduction to the outline of Option 3 in the TransCover Review, published in Motor Accidents: The Act and Background Papers by the Attorney General's Department, 1989, p 101. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act 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 (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 the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded 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 (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law. 2B Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the object of this Act or the provision is to be preferred to a construction that would not promote that object. (2) 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 object of this Act or of the provision concerned. 3 Definitions (1) In this Act: Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. death means death caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the death is a result of and is caused 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) such use or operation by a defect in the vehicle. deceased person means a person whose death is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the death is a result of and is caused 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) such use or operation by a defect in the vehicle. 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. excluded area means a road or road related area within the meaning of the Road Transport (Vehicle Registration) Act 1997 that is the subject of a declaration made under section 15 (1) (b) of the Road Transport (General) Act 2005 relating to all of the provisions of the Road Transport (Vehicle Registration) Act 1997. fault means negligence or any other tort. GIO means the Government Insurance Office of New South Wales constituted under the Government Insurance Act 1927. Industry Deed means the agreement, as in force for the time being, executed under section 3A. injured person means a person who suffers injury which is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. 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. licensed insurer means an insurer who is the holder of a licence granted under Part 7.1 of the Motor Accidents Compensation Act 1999 and in force. motor accident means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person. motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines motor vehicle to mean a vehicle that is built to be propelled by a motor that forms part of the vehicle. Nominal Defendant means the Nominal Defendant within the meaning of the Motor Accidents Compensation Act 1999. owner, in relation to a motor vehicle, means a person who is the owner of the vehicle by virtue of subsections (3)–(5). registration means: (a) registration of a motor vehicle under the Road Transport (Vehicle Registration) Act 1997, the Transport Act 1930 or the Recreation Vehicles Act 1983, or (b) the issue of an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 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. road means a road within the meaning of the Road Transport (Vehicle Registration) Act 1997 (other than an excluded area). road related area means an area (other than an excluded area): (a) referred to in paragraph (a), (b), (c), (d) or (e) of the definition of road related area in section 4 of the Road Transport (Vehicle Registration) Act 1997, or (b) referred to in paragraph (f) of that definition that has been declared under section 15 (1) (a) of the Road Transport (General) Act 2005 to be an area to which the Road Transport (Vehicle Registration) Act 1997 applies. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. 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. third-party policy means a policy of insurance under this Act. trader's plate means a trader's plate within the meaning of the Road Transport (Vehicle Registration) Act 1997. trailer means a trailer within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines trailer to mean a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle that is being towed. vehicle means a vehicle within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines vehicle to mean any description of vehicle on wheels (including a light rail vehicle) but not including other vehicles used on railways or tramways. 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) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) 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 (Vehicle Registration) Act 1997, 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 which 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. (4) For the purposes of subsection (3), a person shall be 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 of the motor vehicle for the benefit of the bailee. (5) 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 shall be read as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle shall 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). (6) In this Act, a reference to the use or operation of a motor vehicle includes a reference to the maintenance or parking of the vehicle. (6A) A reference in this Act to an Act that formed part of the road transport legislation (within the meaning of the Road Transport (General) Act 2005) immediately before the repeal or renaming of that Act by the Road Transport Legislation (Repeal and Amendment) Act 2013 is to be read as a reference to that Act as in force immediately before its repeal or renaming. (7) Notes in the text of this Act do not form part of this Act. 3A Execution etc of certain agreement (1) The execution by the Attorney General, for and on behalf of Her Majesty in right of the State of New South Wales, and by the Authority, of an agreement substantially in accordance with the form contained in Schedule 5 is authorised by this section. (2) The Attorney General and the Authority may exercise the functions conferred on them, respectively, under the agreement. (3) In exercising any function under this Act, the Attorney General (or the Minister, if the Minister is not the Attorney General) and the Authority shall have regard to and shall comply with the provisions of the agreement. (4) The provisions of the agreement, any arrangements entered into in accordance with the provisions of the agreement and the giving of effect to the provisions of the agreement are approved by this Act. (5) The agreement may be amended from time to time by agreement in writing between the parties to it, and the agreement as so amended becomes the agreement in force for the purposes of this section. 3B Special provision for trailers A reference in this Act to the use or operation of a motor vehicle extends, in the case of a motor vehicle that is not a trailer, to include 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. Note— The purpose of this section is to extend a motor vehicle's third-party insurance policy so that it will cover a trailer being towed by the vehicle or a trailer that has run out of control while being towed. 3C Special provision for tow trucks A reference in this Act to the use or operation of a motor vehicle extends, in the case of a motor vehicle that is a tow truck, to the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck. 3D Parts 4, 5 and 6 not to apply to coal miner work injury claim resulting from uninsured off-road accident (1) Parts 4, 5 and 6 do not apply in respect of the death of or injury to a coal miner caused by a motor accident if: (a) the motor accident did not arise from the use or operation of a motor vehicle on a road or road related area, and (b) there is no motor accident insurer on risk in respect of the motor accident, and (c) the death or injury gives rise to a work injury claim. (2) For the purposes of subsection (1) (b), there is no motor accident insurer on risk in respect of a motor accident if: (a) at the time of the motor accident the motor vehicle was not subject to coverage under a third-party policy and was not 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, and (b) there is no right of action against the Nominal Defendant in respect of the motor accident. (3) For the purposes of subsection (1) (c), death or injury gives rise to a work injury claim if it is: (a) a 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. (4) Expressions used in subsection (3) (a) and (b) have the same meanings as they have in Part 5 of the Workers Compensation Act 1987. (5) In this section: coal miner has the same meaning as in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987. 4 Act to bind Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 Restoration of common law rights 5 Repeal of the Transport Accidents Compensation Act 1987 No 101 The Transport Accidents Compensation Act 1987 is repealed. 6 Restoration of common law rights The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or in respect of the death of or bodily injury to a person caused by or arising out of a transport accident (within the meaning of the Transport Accidents Compensation Act 1987) occurring on or after 1 July 1987 shall be as if the Transport Accidents Compensation Act 1987 had not been passed and the common law and the enacted law (except that Act) shall have effect accordingly. 7 Application of Part 6 (Awarding of damages) from 1 July 1987 On the commencement of this Part, Part 6 shall be taken to have applied, during the period from and including 1 July 1987 to that commencement, to a transport accident within the meaning of the Transport Accidents Compensation Act 1987 occurring on or after 1 July 1987. Part 3 8–34 (Repealed) Part 4 Rehabilitation 34A Objects—Part 4 The objects of this Part are: (a) to encourage and support recovery from injury and the use of early and appropriate rehabilitation for people injured in motor accidents so that they can return, as far as possible, to their pre-accident lifestyle, and (b) to place obligations on insurers and claimants in order to encourage and facilitate that process, and (c) to recognise the importance of rehabilitation in achieving greater cost efficiencies in injury management, and (d) to stress that rehabilitation must not be ignored or attempted in a perfunctory way in order to maximise a claim for damages. 34B Application of Part This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999. Note— The application of this Part in respect of coal miner work injury matters is limited by section 3D. 35 Definitions In this Part: claim and claimant have the same meanings as in Part 5. rehabilitation, in relation to an injured person, means the process of restoring or attempting to restore the person, through the combined and co-ordinated use of medical, social, educational and vocational measures, to the maximum level of function of which the person is capable or which the person wishes to achieve and includes placement in employment and all forms of social rehabilitation such as family counselling, leisure counselling and training for independent living. 36 (Repealed) 37 Provision of rehabilitation services (1)–(3) (Repealed) (4) If: (a) a person is assessed to be suitable for rehabilitation, and (b) the licensed insurer or Nominal Defendant agrees to provide the appropriate rehabilitation services, and (c) the person fails to accept the provision of those services, the person's failure shall be taken into account for the purposes of section 39. (5) A licensed insurer has no responsibility for the rehabilitation of an injured person whose claim has been settled or in relation to whom a judgment has been entered except as provided by the terms of any order referred to in section 81. 38 Rehabilitation services to be provided promptly (1) In the provision of rehabilitation services, a licensed insurer and the Nominal Defendant shall, as far as practicable, ensure that those services are provided to an injured person as soon as possible after an admission of liability is made by the licensed insurer or Nominal Defendant. (1A) If rehabilitation services are provided to an injured person before an admission of liability is made by the licensed insurer or Nominal Defendant, the provision of those services shall not be taken to be an admission of liability. (2) It is a condition of an insurer's licence that the insurer must comply with this section. 39 Mitigation of damages (1) An injured person is under a duty to mitigate his or her damages, and, therefore, in assessing damages in respect of a claim, consideration is to be given to the steps taken by the injured person and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. (1A) Those steps include the following: (a) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the matters referred to in paragraphs (b)–(d), (b) undergoing medical treatment, (c) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program), (d) pursuing alternative employment opportunities. (2) In any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant. (3) In any such proceedings, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person. Part 4A Payments to hospitals etc 39AA Application of Part This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999. 39A Definitions (1) In this Part: ambulance vehicle means a vehicle which is fitted or equipped or constructed for use for the conveyance of sick or injured persons and which is controlled by the Health Administration Corporation constituted by the Health Administration Act 1982. hospital means a public hospital, or a private health facility licensed under the Private Health Facilities Act 2007, and includes a hospital or institution in the nature of a hospital conducted by or on behalf of the State. massage treatment means massage provided by a person who carries on the profession of masseur and includes any ancillary treatment provided by the person, but does not include any massage or treatment provided: (a) to a patient in a public hospital, unless the patient has been classified as a private or intermediate patient, or (b) to any patient in a hospital by a person who is a paid employee of the hospital and who, in the course of that person's employment at the hospital, normally works for at least 30 hours per week. masseur means a person by whom massage treatment is provided. medical treatment does not include treatment provided: (a) to a patient in a public hospital, unless the patient has been classified as a private patient, (b) to any patient in a hospital by a resident medical officer of such hospital. nursing includes treatment by a registered nurse. public hospital means: (a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown, or (b) a statutory health corporation or affiliated health organisation within the meaning of that Act. (2) Where, at a public hospital, a person receives, as an out-patient, treatments of different kinds or at different places, each treatment shall, for the purposes of section 39B (1) (b), be counted as a separate treatment. 39B Payments in respect of certain matters (1) When the death of or injury to any person is caused by a motor accident and payment is made (whether or not with an admission of liability) by a licensed insurer or the Nominal Defendant in respect of the death or injury, then: (a) if the person received, in respect of the injury or the injury which caused the person's death, treatment at a public hospital as an in-patient, the licensed insurer or the Nominal Defendant shall pay to the proper officer for each day or part of a day of the treatment of the person, an amount estimated by the Minister for Health and published in the Gazette, as the daily average cost to that hospital of the hospital treatment of in-patients, and (b) if the person received, in respect of any such injury, treatment at a public hospital as an out-patient, the licensed insurer or the Nominal Defendant shall pay to the proper officer in respect of each separate treatment of the person, an amount estimated by the Minister for Health and published in the Gazette, as the average cost to the hospital, for each separate treatment, of the hospital treatment of out-patients, and (c) if the person received, in respect of any such injury, treatment (whether as an in-patient or as an out-patient) at a hospital other than a public hospital, the licensed insurer or the Nominal Defendant shall pay to the proper officer an amount calculated in accordance with a scale to be prescribed by the regulations, but not exceeding the maximum amount (if any) so prescribed, and (d) if the person, as a consequence of any such injury, was conveyed in any ambulance vehicle, the licensed insurer shall pay to the proper officer an amount calculated in accordance with a scale to be prescribed by the regulations, but not exceeding the maximum amount (if any) so prescribed, and (e) if the person received, in respect of any such injury, reasonably necessary medical treatment by a legally qualified medical practitioner, or reasonably necessary massage treatment by a masseur, or reasonably necessary dental treatment (otherwise than as hospital treatment) by a registered dentist, or reasonably necessary nursing (otherwise than as hospital treatment) by a registered nurse, the licensed insurer shall pay to the medical practitioner, masseur, dentist or nurse, as the case may be, such amount as is reasonably appropriate to the treatment or nursing provided, having regard to the customary charge made in the community for the treatment or nursing. (2) Any amount payable under this section by a licensed insurer or the Nominal Defendant may, on notice being given in accordance with section 39E, be recovered as a debt from it by the proper officer, medical practitioner, masseur, dentist, or nurse to whom, under the terms of this section, the amount is payable. (3) The estimated costs referred to in subsection (1) (a) and (b) shall, in respect of any public hospital, be based, wherever practicable, on the costs incurred by that hospital for the year which ended on 30 June next preceding any date on which it is proposed to publish the costs, pursuant to either of those paragraphs, in respect of that hospital. (4) The Minister shall not publish an amount estimated under subsection (1) (a) or (b) and a scale shall not be prescribed under subsection (1) (c) or (d) while a bulk billing agreement of the type referred to in the Industry Deed has been entered into and remains in force and relates to those amounts. (5) In this section, proper officer means the officer or person generally or specially authorised by law or by the person or body governing or controlling the hospital or the ambulance vehicle, as the case may be, to receive any amount payable under subsection (1) (a), (b), (c) or (d). 39C Right of action against insured person by hospital etc (1) Where liability at law is incurred in respect of the death of or injury to a person caused by a motor accident, a person referred to in section 39B (1) (a)–(e) to whom a licensed insurer or the Nominal Defendant may be required to make a payment under that section, may, in the name of the injured or dead person and on notice being given in accordance with section 39E, recover the amount of the payment by way of damages: (a) from the person who, at the time of the occurrence out of which the liability arose, was the owner of the motor vehicle, or (b) where at the time of the occurrence some other person was driving the vehicle, from the owner and the driver jointly or from either of them severally, or (c) in the case of an uninsured or unidentified motor vehicle, from the Nominal Defendant. (2) No action under this section for the recovery of any amount shall be commenced: (a) in any case where the licensed insurer or the Nominal Defendant has made a payment (whether or not with an admission of liability) in respect of the death or injury, or (b) in any case where, in respect of the death or injury, proceedings have been taken for compensation under the Workers Compensation Acts, or for the recovery of damages, and those proceedings have not been dismissed or discontinued, or (c) in any case, at least until 6 months after the occurrence out of which the death or injury arose. (3) Where: (a) action has been taken under this section, and (b) before the action has been completed proceedings are commenced by any other person in respect of the death or injury for compensation under the Workers Compensation Acts or for the recovery of damages, the action shall be stayed pending completion of the proceedings. (4) If: (a) as a result of the proceedings compensation is paid, or (b) payment is made under section 39B, the action shall abate. (5) Any payment by a licensed insurer or the Nominal Defendant in settlement of any claim made or in satisfaction of any judgment recovered under this section shall be made direct to the claimant. 39D Payments by licensed insurer or Nominal Defendant Any payment by a licensed insurer or the Nominal Defendant in accordance with this Part in respect of treatment, conveyance or nursing shall, to the extent of the payment, but subject to section 39 of the Motor Accidents Compensation Act 1999, be a discharge of the liability of any person in respect of the treatment, conveyance or nursing. 39E Notice of claims Notice of a claim under this Part shall be given in writing: (a) in the case of a notice given to a licensed insurer, as soon as practicable after the person entitled to make the claim becomes aware of the identity of the licensed insurer, but not in any case later than 30 days after the person giving the notice could, with reasonable diligence, have ascertained the identity, and (b) in the case of a notice given to the Nominal Defendant, as soon as practicable after the person entitled to make the claim becomes aware of the fact that the motor vehicle was an uninsured vehicle or that the identity of the vehicle could not be established, but not in any case later than 30 days after the person giving the notice could, with reasonable diligence, have ascertained that fact. Part 5 Claims and court proceedings to enforce claims Division 1 Preliminary 40 Definitions (1) In this Part: claim means a claim for 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 in the use or operation of the vehicle. claimant means a person who makes or is entitled to make a claim. insurer, in relation to a person, means the insurer who insures the person against the person's liability for damages in respect of a claim, whether or not under a third-party policy, and includes (except in section 43) the Nominal Defendant and, where a claim is handled on behalf of an insurer by another insurer, the other insurer. third-party insurer means an insurer under a third-party policy. (2) In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. Note— The requirement for "a full and satisfactory explanation" is made in sections 42 (4), 43A (2), (4), (6) (a) and (7) and 52 (4B). 40A Objects—Part 5 The objects of this Part are: (a) to ensure that claims are quickly brought to the attention of insurers: (i) to enable early investigation and assessment of claims, and (ii) to enable the early identification of the nature and severity of the injuries sustained in the motor accident and of the likely treatment and rehabilitation needs of the injured person, and (iii) so that insurers can readily predict claim frequency and hence make appropriate provision for the calculation of premiums, and (iv) to enable accident victims to receive prompt treatment and rehabilitation and prompt payment of lost earnings where liability is clear, and (b) to promote negotiation between the parties and, by means of alternate dispute resolution, to ensure that the resolution of disputed claims by the courts is kept to a minimum, and (c) to underscore the need to deter and prevent the making of fraudulent and exaggerated claims. 41 Application of Part (1) This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999. (2) This Part applies to and in respect of a claim whether or not there is a third-party policy in respect of the claim. Note— The application of this Part in respect of coal miner work injury matters is limited by section 3D. Division 2 Claims and other matters preliminary to court proceedings 42 Accident must be reported within 28 days (1) It is the duty of a person who is entitled to make a claim to ensure that a written report of the motor accident concerned is made to a member of the NSW Police Force (whether under the regulations made under the Road Transport (Safety and Traffic Management) Act 1999 or otherwise) within 28 days after the date of the accident. (2) (Repealed) (3) If, because of injuries received in a motor accident, a person is unable to make a written report of the accident within the 28-day period, the written report may be made within 28 days after the date on which the person might reasonably be expected to have been able to make the written report. (4) If a person commences proceedings in respect of a claim without having complied with the duty under this section, the person must provide a full and satisfactory explanation to the court for the non-compliance. (5) If the court is satisfied that sufficient cause existed to justify the delay in making the written report and that a written report of the accident was made within such period as the court considers reasonable, having regard to the duty under this section, the court may allow the proceedings to continue. 42A Authority's access to police information (1) At the written request of the Authority with respect to a motor accident specified by it, the Commissioner of Police must provide a statement to the Authority in relation to the following matters if information as to those matters is held by a member of the NSW Police Force: (a) the registration numbers of all motor vehicles involved in the accident, (b) the names of all persons killed or injured in the accident, (c) the names of the hospitals to which the injured persons were taken, (d) the vehicle or vehicles most likely to have been at fault in the accident. (2) The Authority is authorised to give a copy of a statement provided to it under this section to the next of kin of a person killed in the accident or a person injured in the accident (or to an appropriate representative of either such person), or to an insurer. (3) A statement or copy of a statement provided to or by the Authority under this section is not admissible in legal proceedings concerning a claim made under this Act. 43 Time for and notice of making of claims (1) The object of this section is to promote the early making of claims to enable the insurer: (a) to commence investigations while evidence relating to a claim is available, and (b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant's recovery, and (c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums. (2) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (3) (Repealed) (4) A claim is made by giving notice of the claim to the person against whom the claim is made and, if that person's insurer is a third-party insurer, to the insurer. (5) The requirement under subsection (4) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if: (a) that person is dead, or (b) that person cannot be given notice. 43A Late making of claims (1) The objects of this section are: (a) to ensure that the issue of the lateness of a claim is dealt with as soon as possible after receipt of the claim, and (b) to ensure that any delay caused to the consideration of the substantive claim by the lateness issue is kept to a minimum, and (c) to ensure that the lateness issue is either resolved or made a mutually apparent substantive issue at an early date. (2) A claim may be made more than 6 months after the relevant date for the claim under section 43 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third-party insurer concerned (if there is one) or to the Nominal Defendant. (3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (4) A late claim may not be made more than 12 months after the relevant date for the claim under section 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. (5) Subsection (4) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (6) This subsection applies if the late claim is made against the Nominal Defendant or a person who is insured by a third-party insurer. A reference in this subsection to an insurer includes a reference to the Nominal Defendant. (a) If, within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay. (b) If, within 2 months after receiving an explanation for delay in the making of a late claim, the insurer does not reject the explanation, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay. (c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on: (i) the ground of delay, or (ii) in the case of a late claim that is made more than 12 months after the relevant date for the claim under section 43, the ground of the amount of damages, or both, only within 2 months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may only apply to have the proceedings dismissed on the ground of delay if the insurer (or the person) has not lost the right to challenge the claim on the ground of delay. (7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively or in addition in the case of a late claim that is made more than 12 months after the relevant date for the claim under section 43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. Note— The combined effect of sections 43 and 43A is as follows: A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made between 6 months and 12 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided. A claim cannot be made after 12 months unless a full and satisfactory explanation for the delay is provided AND the damages of all kinds that would be awarded were the claim to succeed are at least 10% of the maximum damages that could be awarded for non-economic loss (see sections 79 and 79A) as at the date of the accident. 44 Form of notice of claim (1) A notice of a claim under section 43 (4) must: (a) be in the form approved by the Authority, and (b) set out or be accompanied by such particulars and information as may be required by that form. (1A) A notice of claim given to an insurer may, if approved by the Authority, require the claimant to do either or both of the following: (a) furnish a medical certificate relating to the claim signed by a medical practitioner, (b) authorise the insurer to obtain information and documents relevant to the claim from persons specified in the authorisation. (2) The Authority may approve different forms according to the persons to whom the notice is to be given. (3) A notice of a claim given to a third-party insurer must be verified by statutory declaration. 44A Other approved forms (1) The Authority may approve forms (other than the form for a notice of claim) for use by insurers for the purposes of this Part. (2) Approved forms may include, but are not limited to, a certificate of earnings and a rehabilitation plan. 44B Challenging claims for failure to comply with sec 44 or 44A (1) If, within 2 months after receiving notice of a claim under section 43 (4), the insurer does not reject the claim for non-compliance with section 44, the insurer loses the right to challenge the claim on the ground of non-compliance with that section. (2) If court proceedings are commenced in respect of a claim, an insurer who has not lost the right to challenge for non-compliance with section 44 may apply to have the proceedings dismissed on the ground of the relevant non-compliance only within 2 months after the statement of claim is served on the defendant and received by the insurer. (3) A court may not dismiss proceedings if the relevant non-compliance is technical and of no significance. (4) In this section, a reference to an insurer includes, in the case of a third-party insurer, a reference to the person against whom the claim is made. 45 Duty of insurer to try to resolve claim etc (1) It is the duty of an insurer to endeavour to resolve a claim, by settlement or otherwise, as expeditiously as possible. (2) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of: (a) hospital, medical and pharmaceutical expenses, and (b) rehabilitation expenses, subject to Part 4, and (c) respite care in respect of a claimant who is seriously injured and in need of constant care over a long term, as incurred. (2A) The duty of an insurer under subsection (2) to make payments applies only to the extent to which those payments: (a) are reasonable and necessary, and (b) are properly verified, and (c) relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates. (3) It is a condition of a third-party insurer's licence that the insurer must comply with this section. (4) A payment made under this section to or on behalf of a claimant before the claimant obtains judgment for damages against the defendant is, to the extent of its amount, a defence to proceedings by the claimant against the defendant for damages. Note— Section 45 places obligations on insurers to act as expeditiously as possible, and to make certain payments of an interim nature once liability has been admitted or determined. The obligations are consistent with the insurer's obligations regarding the rehabilitation of the claimant under sections 37 and 38. Failure to observe the obligations in individual cases exposes the insurer to an award of interest under section 73. Continual failure to observe the obligations places an insurer's licence at risk (section 45 (3)). In order to meet its obligations, the insurer must have sufficient information to enable it to properly investigate and assess the claim, and make an appropriate offer of settlement. This requires early notice of the claim under section 43, and the provision of full particulars of the claim under section 48. 46 Insured not to admit liability etc (1) A person shall not, without the consent in writing of the person's insurer: (a) enter upon, or incur any expense in, any litigation, or (b) make any offer or promise of payment or settlement, or (c) make any payment or settlement, or (d) make any admission of liability, in respect of a claim, but this section shall not prevent any person from truthfully answering any question reasonably asked of the person by a member of the NSW Police Force. (2) An offer, promise or admission made in contravention of this section is of no effect. (3) (Repealed) 47 Power of insurer to act for insured (1) When a claim is made against a person, the person's insurer may: (a) conduct and control negotiations in respect of the claim, and (b) conduct, or take over the conduct of, any legal proceedings in respect of the claim and may conduct those proceedings in the name and on behalf of the person, and (c) at any stage of those negotiations or proceedings, compromise or settle the claim, and (d) exercise any function conferred by this Part on the person in respect of the claim. (2) The person against whom the claim is made shall sign all such warrants, authorities and other documents as may be necessary to give effect to this section. (3) If the person fails to do so or is absent or cannot be found, the insurer may sign the warrants, authorities or other documents on behalf of the person. (4) Nothing said or done by an insurer under this section in connection with the settlement of a claim or the conduct of proceedings in respect of a claim shall be regarded as an admission of liability in respect of or in any way prejudice any other claim, action or proceeding arising out of the same occurrence. 47A Power of insurer to intervene in legal proceedings An insurer may apply to the court to be joined as a party to legal proceedings brought against a defendant who is insured under a third-party policy with the insurer in order to argue that in the circumstances of the case it has no obligation under the policy to indemnify the defendant. Division 3 Duties of co-operation 48 Duty of claimant to co-operate with other party (1) The object of this section is to maximise communication between the parties so that sound and timely information is available and disputes are minimised. (1A) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person's insurer for the purpose of giving the person and the insurer sufficient information: (a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and (b) to be able to make an early assessment of liability, and (c) to be able to make an informed offer of settlement. (2) In particular, the claimant must comply with any reasonable request by the other party or the other party's insurer: (a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or (b) to provide a photograph of and evidence as to the identity of the claimant. (2A) The reasonableness of a request may be assessed having regard to criteria including the following: (a) the amount of time the claimant needs to comply with the request, (b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim, (c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made, (d) how onerous it will be for the claimant to comply with the request, (e) whether the information is privileged, (f) whether the information sought is sufficiently specified, (g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request. (3) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues. 49 Medical etc examination of claimant (1) A claimant must comply with any request by the person against whom the claim is made or the person's insurer: (a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer (not being an examination that is unreasonable, unnecessarily repetitious or dangerous), or (b) to undergo an assessment to determine functional and vocational capacity by an assessor nominated by that person or insurer and approved by the Authority, or (c) to undergo a rehabilitation assessment in accordance with the guidelines referred to in section 37 (1). (2) If the claimant fails without reasonable excuse to comply with such a request, court proceedings cannot be commenced or continued in respect of the claim while the failure continues. (3) An examination or assessment under this section is at the cost of the person who requests it. 50 Duty of owner and driver to co-operate with insurer (1) A person who at the time of the motor accident to which a claim relates was the owner or driver of the motor vehicle concerned shall co-operate fully with the vehicle owner's insurer in respect of the claim. (2) In particular, the owner or driver of any vehicle involved in a motor accident shall: (a) within 28 days after the accident, give written notice of the accident to the vehicle owner's insurer, unless the owner or driver had no reason to suspect that the accident could have given rise to a claim against the owner or driver, and (b) within 28 days after the receipt of: (i) any claim made against the owner or driver, or (ii) any written notice received from any claimant that the claimant intends to make a claim against the owner or driver, give notice of the claim or intention to make the claim to the vehicle owner's insurer. (3) The owner or driver of a vehicle at the time of the motor accident to which a claim relates shall furnish such information as the insurer may reasonably request in connection with the claim. Maximum penalty: 20 penalty units. 50A Provision of information to facilitate settlement of claim before commencing court proceedings Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of: (a) the injuries sustained by the claimant in the motor accident, and (b) all disabilities and impairments arising from those injuries, and (c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and (d) any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages. Division 4 Court proceedings on claims 51 Forum for court proceedings Proceedings in respect of a claim may be taken in any court of competent jurisdiction. 52 Time limitations on commencement of court proceedings (1) The objects of this section are: (a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and (b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if: (i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and (ii) the claim is likely to result in an award of substantial damages, or in the circumstances described in subsection (4A). (1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until: (a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person's insurer, or (b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or (c) if the other person's insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant's response to the offer is communicated to the other person's insurer, whichever is the later or latest. (1B) Subsection (1A) (c) applies only to the first offer made by the other person's insurer and not to any subsequent offer. (2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs: (a) the insurer denies all liability in respect of the claim, (b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted, (c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. (3) (Repealed) (4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person, the date of death, except with the leave of the court in which the proceedings are to be taken. (4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed. (4B) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. (4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim. 53 Presumption of agency (1) For the purposes of: (a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and (b) the third-party policy, if the vehicle concerned is an insured motor vehicle, any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) shall be taken to be the agent of the owner acting within the scope of the agent's authority in relation to the vehicle. (2) Nothing in this section shall be taken to imply any ratification by the owner of the motor vehicle of the acts of the person driving the motor vehicle. (3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also: (a) where the owner or driver is dead, with respect to proceedings against the owner or driver's estate pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and (b) where the owner or driver is dead or cannot be served with process, with respect to: (i) proceedings against the person's insurer under section 54 or the Nominal Defendant, and (ii) proceedings in which the owner or driver, the owner or driver's estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1946, or as a party to proceedings for recovery of contribution by or against a joint tort-feasor pursuant to Part 3 of that Act. 54 Proceedings against insurer if insured dead or unable to be served (1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant and a person claiming contribution or indemnity between joint tortfeasors may: (a) take proceedings in respect of the claim against the person's insurer, and (b) recover in those proceedings an amount for which the claimant or the person claiming contribution or indemnity could have obtained a judgement against the insured person. (2) The fact that a person cannot be served with process shall not be regarded as having been proved unless it is established that all reasonable inquiries have been made in an effort to effect service. 55 Proof of inability to serve process etc The fact that a person cannot be served with process or given notice of a claim may be proved orally or by the affidavit of the person who endeavoured to effect service. 56 (Repealed) Division 5 57–64 (Repealed) Division 6 Miscellaneous 64A Licensed insurers to deter fraudulent claims A licensed insurer shall take all such steps as may be reasonable to deter and prevent the making of fraudulent claims. 65 False claims A person who makes a statement knowing that it is false or misleading in a material particular: (a) in a report under section 42 (report of motor accident), or (b) in a notice of a claim given to a person or an insurer for the purposes of section 43, or (c) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident, is guilty of an offence. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. 66 Remedy available where claim fraudulent (1) This section applies to a claimant if it is established that, for the purpose of obtaining a financial benefit, the claimant did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading. (2) If this section applies to a claimant: (a) a person who has a liability in respect of a payment, settlement, compromise or judgment relating to the claim is relieved from t