New South Wales: Motor Accidents Compensation Act 1999 (NSW)

Motor Accidents Compensation Act 1999 No 41 An Act to establish a new scheme of compulsory third-party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents; to amend the Motor Accidents Act 1988 and other Acts; and for other purposes. Chapter 1 Preliminary Part 1.1 Interpretation and application 1 Name of Act This Act is the Motor Accidents Compensation Act 1999. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (cf ss 3, 3B, 3C, 68 MAA) 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 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. 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. credit card includes a debit card. 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. exercise a function includes perform a duty. fault means negligence or any other tort. function includes a power, authority or duty. 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. 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. licensed insurer means an insurer that is the holder of a licence granted under Part 7.1 and in force. market share, in relation to an insurer, means, at any particular time, the proportion determined under section 172 by the Authority in relation to the insurer and applicable at that time. medical assessor—see Part 3.4. 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 Accidents Medical Guidelines means guidelines issued by the Authority under Part 3.1 and in force. Motor Accidents Operational Fund means the Motor Accidents Operational Fund established under Part 8.4. motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport Act 2013. Note— The Road Transport Act 2013 defines a motor vehicle to mean a vehicle (within the meaning of that Act) that is built to be propelled by a motor that forms part of the vehicle. Nominal Defendant means the Nominal Defendant referred to in section 32. Note— Section 32 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 Part 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 4. President means the President of the Commission. 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 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. 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. 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. TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. third-party insurer means an insurer under a third-party policy. 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 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 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. 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. 3AA Motor Accident Injuries Act 2017 (1) Subject to subsection (2), this Act does not apply to or in respect of a motor accident occurring after the commencement of the Motor Accident Injuries Act 2017. (2) Chapter 5 (Award of damages) of this Act applies to an award of damages as provided for by section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988 whether or not the accident concerned occurred before the commencement of the Motor Accident Injuries Act 2017. 3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and 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. Note— Part 1.2 (No-fault claims—children and blameless accidents) extends the operation of this Act for certain limited purposes to motor accidents that have not in fact been caused by the fault of the owner or driver of the motor vehicle. Part 1.2 achieves this result by deeming such accidents to have been caused by the fault of the owner or driver of the motor vehicle in the use or the operation of the vehicle provided that— (a) the vehicle was involved in the accident and had motor accident insurance cover for the accident, and (b) the accident was not caused by the fault of any other person or the accident resulted in the death of or injury to a child. The early payment scheme provided for under Part 3.2 extends to all injured persons injured in a motor accident (including at fault drivers, pedestrians and other road users). The bulk billing arrangements provided for under section 54 extend to any person injured in a motor accident (even if the motor accident was caused, partly or wholly, by the fault of that person). (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. 3B Restrictions on application of claims provisions—accident must be insured or work accident (1) The application of Chapters 3–6 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) is caused by 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). Note— Part 1.2 (No-fault claims—children and blameless accidents) extends the operation of this Act for certain limited purposes to motor accidents that have not in fact been caused by the fault of the owner or driver of the motor vehicle. Part 1.2 achieves this result by deeming such accidents to have been caused by the fault of the owner or driver of the motor vehicle in the use or the operation of the vehicle provided that— (a) the vehicle was involved in the accident and had motor accident insurance cover for the accident, and (b) the accident was not caused by the fault of any other person or the accident resulted in the death of or injury to a child. (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 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 (b) 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 (c) 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. 4 Meaning of "owner" of motor vehicle (cf s 3 (3)–(5) MAA) (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). 5 Objects of Act (cf s 2A MAA; Sch 1 [1] of Act No 132 of 1998) (1) The objects of this Act are as follows— (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (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, 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. 5A (Repealed) 6 Interpretation and application of Act by reference to objects (cf s 2B MAA) (1) 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. (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 objects of this Act or of the provision concerned. 7 Notes (cf s 3 (7) MAA) Notes in the text of this Act do not form part of this Act. Part 1.2 No-fault claims—children and blameless accidents Division 1 Recovery for blameless accidents 7A Definition of "blameless motor accident" In this Division— blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person. 7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. Note— Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident. (2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle. 7C Presumption that motor accident is blameless In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. 7D Accident must occur in New South Wales after commencement This Division applies only in respect of motor accidents that occur in the State after the commencement of this Division. 7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if— (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event. 7F Contributory negligence This Division does not prevent the reduction of damages by reason of the contributory negligence of the deceased or injured person. Note— The contributory negligence of a deceased or injured child does not reduce damages of the kind to which the special entitlement to damages conferred by Division 2 applies. See section 7P. 7G Recovery of contribution from person actually at fault A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury. 7H No recovery by Nominal Defendant unless owner or driver actually at fault The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. 7I Other entitlements not affected This Division does not affect any entitlement to damages apart from this Division. Division 2 No-fault recovery by children 7J Damages for children where driver not at fault (1) If the death of or injury to a child results from a motor accident not caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, the death or injury is, for the purposes of the special entitlement to recover damages conferred by this Division, deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident. Note— Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident. (2) If more than one motor vehicle involved in the motor accident has motor accident insurance cover for the accident, the death or injury is (for the purposes of that special entitlement) deemed to have been caused by the fault of the owner or driver of each such motor vehicle in the use or operation of the vehicle. (3) The special entitlement to recover damages conferred by this Division is an entitlement to recover damages for the following in respect of the death of or injury to the child— (a) hospital, medical and pharmaceutical expenses, (b) rehabilitation expenses, (c) respite care expenses, (d) attendant care services expenses, (e) funeral or cremation expenses. (4) The special entitlement to recover damages for funeral or cremation expenses is an entitlement to recover those damages under the Compensation to Relatives Act 1897, but this Division confers no other entitlement to recover damages under that Act. (5) The motor accident must occur in the State after the commencement of this Division and the child must be a resident of the State at the time of the motor accident. (6) In this Division— child means a person who is under 16 years of age at the time of the motor accident. 7K Claims where child at fault (1) This Division applies even if the death of or injury to the child was caused by the fault of the child, except as provided by this section. (2) A court is not to award damages pursuant to this Division in respect of the death of or injury to a child if the court is satisfied that— (a) the death of or injury to the child occurred at the time of, or following, conduct of the child that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death or injury or to the risk of death or injury. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section operates whether or not the child whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned. (5) There is to be no reduction of the damages provided for by this Division by reason of the contributory negligence of the deceased or injured person, except as provided by this section. 7L Special provision where child and driver at fault In a case in which this Division would confer a special entitlement to recover damages in respect of the death of or injury to a child but for the fact that the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, a liability for damages of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (even though this Division does not confer that special entitlement in the case). Note— The special entitlement to damages conferred by this Division is only applicable where the owner/driver is not at fault. Where the owner/driver is at fault, this section prevents a reduction in special entitlement type damages that would otherwise result from the contributory negligence of the child. 7M Recovery of contribution from person actually at fault A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury. 7N No recovery by Nominal Defendant unless owner or driver actually at fault The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. 7O Other entitlements not affected This Division does not affect any entitlement to damages apart from this Division. 7P Relationship with Division 1 (1) This Division does not apply in a case to which Division 1 (Recovery for blameless accidents) applies, subject to subsection (2). (2) In a case in which this Division would confer a special entitlement to recover damages in respect of the death of or injury to a child but for the fact that the case is one to which Division 1 applies, a liability for damages arising under that Division of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (despite section 7F). Chapter 2 Third-party insurance Part 2.1 Compulsory insurance 8 Offence of using uninsured motor vehicle on road (cf s 8 (1) and (2) MAA) (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. 9 Exception from compulsory insurance (cf s 8 (3) MAA) This Part 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. Part 2.2 Insurance policies 10 Third-party policies (cf s 9 and Sch 1 MAA) (1) 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 Accidents Compensation Act 1999. (2) A policy does not cease to be a third-party policy under this Act merely because the policy refers to an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 instead of an unregistered vehicle permit under the Road Transport Act 2013 (as specified in paragraph (b) of the policy set out in subsection (1)). 10A Treatment of certain vehicles for purposes of third-party policy (1) A motor vehicle that is— (a) subject to a 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 a conditional registration. (2) However, a regulation made for the purposes of this section does not affect a third-party policy of insurance under this Act that is in force in respect of any particular vehicle at the time that the regulation is made. This subsection is subject to subsection (3). (3) The first regulation made for the purposes of this section may provide that subsection (1) applies, from the commencement of the regulation, to a vehicle referred to in subsection (1) (a)–(c) that became subject to a conditional registration on or after 20 May 2002 and before the commencement of the regulation. 11 Issue of certificate of insurance (cf s 10 MAA) (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. 12 Evidence of insurance in respect of motor vehicle (cf s 11 MAA) (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. 13 Commencement and duration of third-party policy (cf s 12 MAA) (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 14, subject to section 14 (7). (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. 14 Cancellation of third-party policies (cf s 13 MAA) (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 credit card, and the cheque is not met on due presentation or the credit 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. (4A) If the insured person under a third-party policy deliberately 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 request TfNSW to suspend the registration of the motor vehicle to which the policy relates for a period of 14 days. (4B) A licensed insurer is not to request TfNSW to suspend the registration of a motor vehicle except with the prior approval in writing of the Authority and is not to make such a request unless the amount outstanding remains unpaid. (5) 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. (6) TfNSW must comply with a request by a licensed insurer under this section to suspend the registration of a motor vehicle. (6A) 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 prior approval in writing of the Authority. (6B) TfNSW must comply with a request by a licensed insurer under this section to cancel the registration of a motor vehicle. (6C) The Authority may establish guidelines that provide for the circumstances in which the Authority will or will not give its approval to the making of a request for the suspension or cancellation of the registration of a motor vehicle. (7) If the registration of a motor vehicle is cancelled, otherwise than under Division 3 of Part 4 of the Fines Act 1996 or subsection (6), 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. (8) Despite anything in the Fines Act 1996, the regulations may make provision for or with respect to— (a) the cancellation of a third-party policy in respect of a motor vehicle whose registration is cancelled under Division 3 of Part 4 of that Act, where— (i) the whole or any part of the premium payable in respect of the third-party policy is paid by cheque or credit card, and (ii) the cheque is not met on due presentation or the credit card transaction is not duly honoured or is fraudulent, and (b) the restoration (whether prospectively or during any past period of cancellation) of any third-party policy so cancelled. 15 Risks not insured under third-party policies (cf s 16 MAA) 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. 15A Exclusion of acts of terrorism from insurance coverage (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 applies to an act of terrorism that occurs on or after 1 January 2002 and before such date as may be appointed by proclamation for the purposes of this section. (4) This section does not affect any claim that is paid in full before the date of assent to the Motor Accidents Compensation Amendment (Terrorism) Act 2002. 16 Indemnification of insured persons (cf s 17 MAA) 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. 17 Liability of licensed insurers and insured persons where correct insurance premiums not paid (cf s 18 MAA) (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 deliberately 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 $2000—the amount of the money paid and costs incurred, and (d) where the money paid and costs incurred by the licensed insurer exceed $2000—$2000. (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 Part. 18 Effect of change of ownership of motor vehicle or trader's business (cf s 19 MAA) (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. 19 Notice of change of registered particulars and other information relating to motor vehicles (cf s 19A MAA) (1) TfNSW is required to notify the licensed insurer under a third-party policy in force in relation to a motor vehicle and, if requested to do so by the Authority, the Authority, of any change in any registered particulars relating to the motor vehicle which is notified to TfNSW. (2) If, as a consequence of the change in ownership 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. 20 Right of insurer against unauthorised driver of motor vehicle (cf s 22 MAA) 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) 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. 21 Recovery of an excess in certain cases (cf s 23 MAA) (1) If an insured person incurs a liability against which he or she is insured under a third-party policy and the liability arises out of a motor accident which was to the extent of more than 25% the fault of the insured person, the licensed insurer may recover from the insured person as a debt in a court of competent jurisdiction— (a) where the money paid and costs incurred by the licensed insurer in respect of the liability do not exceed $500—the amount of the money paid and costs incurred, or (b) where the money paid and costs incurred by the licensed insurer exceed $500—$500. (2) The licensed insurer is not entitled to recover an amount under this section if the licensed insurer exercises any other right of recovery against the insured person under section 20. 22 Extension of indemnity to insured person's estate (cf s 24 MAA) (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. 23 Entry of judgment against licensed insurer (cf s 25 MAA) (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. Part 2.3 Insurance premiums 24 Authority guidelines for the determination of premiums (cf s 14A MAA) (1) The Authority may issue to licensed insurers guidelines for the determination of insurance premiums for third-party policies (Motor Accidents Premiums Determination Guidelines). (2) Motor Accidents Premiums Determination Guidelines may (without limiting the generality of subsection (1))— (a) specify the manner in which premiums are to be determined and the factors to be taken into account in determining premiums, and (b) require licensed insurers to specify how they have determined premiums, and (c) 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, the verification of assumptions, estimated profit, capital allocation to third-party insurance business and other relevant matters). (3) The Authority may amend, revoke or replace Motor Accidents Premiums Determination Guidelines. (4) Motor Accidents Premiums Determination Guidelines may only be issued, amended, revoked or replaced with the approval of the Board of the Authority. (5) Motor Accidents Premiums Determination Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time. (6) It is a condition of a licence granted under Part 7.1 that the licensed insurer must comply with Motor Accidents Premiums Determination Guidelines. 25 Third-party premiums (cf s 15 MAA) (1) A licensed insurer must not charge an insurance premium for a third-party policy, except in accordance with this Part. (2) The licensed insurer must file with the Authority a premium or set of premiums it proposes to charge. (3) The licensed insurer may charge a premium which has not, within 6 weeks after it is filed, been rejected by the Authority and, except as provided by section 27, must not charge any other premium. 26 Filing of full sets of premiums (cf s 15A MAA) (1) A licensed insurer must, at least once each year or such longer period as the Authority may allow, file with the Authority a full set of the insurance premiums it proposes to charge for third-party policies which are taken to have been issued by it together with such additional information, including actuarial reports, as the Authority may reasonably require. (2) The Authority may, by notice in writing, require a licensed insurer to file a full set of premiums with it on or before such date as is specified in the notice, being a date which is not earlier than 4 weeks after the date of the notice together with such additional information, including actuarial reports, as the Authority may reasonably require. (3) It is a condition of a licence granted under Part 7.1 that the licensed insurer must comply with this section and any notice given to it under this section. 27 Rejection of premiums by Authority (cf s 15B MAA) (1) The Authority may only reject an insurance premium filed with it under this Part if it is of the opinion that— (a) the premium will not fully fund the present and likely future liability under this Act of the licensed insurer concerned, or (b) the premium is, having regard to actuarial advice and to other relevant financial information available to the Authority, excessive, or (c) the premium does not conform to Motor Accidents Premiums Determination Guidelines in force under this Part, or (d) the premium has been determined in a manner that contravenes section 30 (Maximum commission payable to insurers' agents). (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, being a premium that in the arbitrator's opinion is sufficient to fully fund the present and likely future liability of the licensed insurer under this Act. (8) For the purposes of this section, a premium will fully fund a liability referred to in this section if the premium is sufficient— (a) to pay all acquisition and policy administration expenses of the licensed insurer concerned, and (b) to provide a sum of money that together with anticipated investment income is equal to the best estimate of the cost of claims plus claim settlement expenses (in inflated dollars) at the assumed date of settlement, and (c) to provide a profit margin in excess of all claims, costs and expenses that represents an adequate return on capital invested and compensation for the risk taken, and (d) to provide for such other matters as a prudent insurer should, in all the circumstances, make provision for. 27A Effect of Lifetime Care and Support Scheme payments A determination of the cost of claims and settlement expenses for the purposes of this Part must take account of the effect on the cost of claims of section 141A (No damages relating to treatment and care needs for Lifetime Care and Support Scheme participants). 28 Insurers to disclose profit margins (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. 29 Premium risk adjustment (1) The Authority may enter into any one or more of the following arrangements with licensed insurers (whether by means of the Insurance Industry Deed or otherwise)— (a) an arrangement for allocating high risk third-party policies among insurers, (b) an arrangement for the pooling of premiums collected from the issue of third-party policies and for the allocation of the premiums among insurers, (c) an arrangement for the pooling of the costs of claims for motor accidents covered by high risk third-party policies and for the allocation of those costs among insurers. Any such allocation may be made among insurers generally in accordance with the market share of each insurer or in any other appropriate manner. (2) The regulations may make provision for giving effect to any such arrangement. (3) High risk third-party policies are policies of a kind that the Authority determines incur a disproportionate share of liability for the total cost of claims for motor accidents. (4) The Authority may, with the approval of the Minister, make such an arrangement a condition of the licence of each insurer if the Minister is satisfied that licensed insurers, or any of them, have refused to enter into the arrangement with the Authority and the arrangement is appropriate having regard to the objects of this Act. 30 Maximum commission payable to insurers' agents (1) For the purposes of calculating the amount of insurance premiums under this Part, the acquisition and policy administration expenses of a licensed insurer may not include, as the amount of commission or other remuneration payable to the insurer's agent or agents for the issue of third-party policies by the insurer, an amount that exceeds 5% (or such other percentage as may be prescribed by the regulations) of the premium payable for policies. (2) If more than one insurer's agent acts in respect of a third-party policy, the maximum amount of commission or other remuneration under this section is the total amount payable to all those agents. (3) In this section— commission or other remuneration does not include payment for business expenses incurred by an insurer's agent. insurer's agent means any insurance broker or commission agent acting for or on behalf of a licensed insurer in connection with the issue of third-party policies by the insurer. Part 2.4 Uninsured or unidentified motor vehicles 31 Application of Part This Part applies to and in respect of a motor accident occurring before or after the commencement of this Act. 32 Nominal Defendant (cf s 26 MAA) (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". 33 Claim against Nominal Defendant where vehicle not insured (cf s 27 MAA) (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. (3A) 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. (4) 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 35 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. (5) 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 minor adjustments, capable of registration, or (iii) was previously capable of registration but is no longer capable of registration because it has fallen into disrepair. 34 Claim against Nominal Defendant where vehicle not identified (cf s 28 MAA) (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 in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant. (1AA) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned. (1A) 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 Nom