Motor Accident Injuries Act 2017 (NSW)

Motor Accident Injuries Act 2017 No 10 An Act to establish a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents; and for other purposes. Part 1 Preliminary Division 1.1 Introductory 1.1 Name of Act This Act is the Motor Accident Injuries Act 2017. 1.2 Commencement This Act commences on a day or days to be appointed by proclamation. 1.3 Objects of Act (cf ss 5 and 6 MACA) (1) This Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents. (2) For that purpose, the objects of this Act are as follows— (a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities, (b) to provide early and ongoing financial support for persons injured in motor accidents, (c) to continue to make third-party bodily insurance compulsory for all owners of motor vehicles registered in New South Wales, (d) to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses, (e) to promote competition and innovation in the setting of premiums for third-party policies, and to provide the Authority with a role to ensure the sustainability and affordability of the compulsory third-party insurance scheme and fair market practices, (f) to deter fraud in connection with compulsory third-party insurance, (g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, (h) to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme. (3) It must be acknowledged in the application and administration of this Act— (a) that participants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict access to non-economic loss compensation to serious injuries, and (c) that— (i) the premium pool from which each insurer pays motor accident claims consists at any given time of a finite amount of money, and (ii) the setting of appropriate premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iii) that stability and predictability require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability. (4) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (5) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned. Division 1.2 Interpretation 1.4 Definitions (cf ss 3 and 7 MACA) (1) In this Act— attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services. Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. claim means a claim for statutory benefits or a claim for damages. claimant means a person who makes or is entitled to make a claim. commencement of this Act means the commencement of the majority of the provisions of this Act. Commission means the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020. Commission rules has the same meaning as in the Personal Injury Commission Act 2020. damages means damages (within the meaning of the Civil Liability Act 2002) in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but does not include statutory benefits. driver means a person driving a motor vehicle, and includes— (a) a person riding and operating a motor cycle, and (b) a person for the time being in charge of a motor vehicle. employment includes self-employment. fault means negligence or any other tort. function includes a power, authority or duty, and exercise a function includes perform a duty. hire vehicle has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. hospital means a public hospital (within the meaning of the Health Services Act 1997), or a private health facility licensed under the Private Health Facilities Act 2007. injured person means a person who has suffered an injury in respect of which this Act applies as provided by Division 1.3. injury means personal or bodily injury and includes— (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. Insurance Industry Deed means an agreement, as in force for the time being, between the Minister on behalf of the State, the Authority, licensed insurers and other persons (if any) with respect to the third-party insurance scheme and the Nominal Defendant scheme under this Act that is designated by the agreement as the Insurance Industry Deed for the purposes of this Act. insured motor vehicle means a motor vehicle in relation to which a third-party policy is in force. insured person means a person insured under a third-party policy. insurer of a motor vehicle means the insurer who insures the owner or driver of the motor vehicle against liability in respect of the death of or injury to a person, whether or not under a third-party policy, and includes— (a) the Nominal Defendant, and (b) where a claim is handled on behalf of an insurer by another insurer, the other insurer, and (c) an interstate insurer, being an entity (including an authority or instrumentality of the Commonwealth or of another State or a Territory) that under a law of the Commonwealth, another State or a Territory indemnifies the owner or driver of a motor vehicle against liability in respect of the death of or injury to a person, and (d) a self-insurer under Division 9.3. licensed insurer means an insurer that is the holder of a licence granted under Division 9.1 and in force. medical assessor means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act. merit reviewer means a person appointed under the Personal Injury Commission Act 2020 as a merit reviewer for the purposes of this Act. motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during— (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. Motor Accident Guidelines means the Motor Accident Guidelines issued by the Authority under Division 10.2 and in force. motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport Act 2013. Nominal Defendant means the Nominal Defendant referred to in section 2.27. Note— Section 2.27 appoints the Authority as the Nominal Defendant for the purposes of this Act. Nominal Defendant's Fund means the fund by that name established under Division 2.4. non-economic loss means— (a) pain and suffering, and (b) loss of amenities of life, and (c) loss of expectation of life, and (d) disfigurement. owner of a motor vehicle—see section 1.5. passenger service has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. person under legal incapacity includes the following persons— (a) a child who is less than 18 years of age, (b) an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007, (c) a person under guardianship within the meaning of the Guardianship Act 1987, (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, (e) an incommunicate person, being a person with a physical or mental disability that prevents the person from receiving communications, or expressing the person's will, in relation to the person's property or affairs. President means the President of the Commission. provider of a passenger service or booking service has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. registration means— (a) registration of a motor vehicle under the Road Transport Act 2013 or the Recreation Vehicles Act 1983, or (b) the issue of an unregistered vehicle permit under the Road Transport Act 2013 for an unregistered motor vehicle, or (c) registration in New South Wales of a motor vehicle under the Interstate Road Transport Act 1985 of the Commonwealth. rehabilitation of an injured person, means the process of enabling or attempting to enable the person to attain and maintain— (a) the maximum level of independent living, and (b) full physical, mental, social and vocational ability, and (c) full inclusion and participation in all aspects of life. relevant insurer in relation to the payment of statutory benefits—see section 3.2. road means a road or road related area (within the meaning of section 4 (1) of the Road Transport Act 2013), but does not include an area to which the whole of that Act does not apply because of an instrument under that Act. SIRA Fund—see Division 10.4. spouse means— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. statutory benefits means statutory benefits payable under Part 3. taxi has the same meaning as in the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. third-party policy means a policy of insurance under this Act. threshold injury—see section 1.6. trader's plate means a trader's plate within the meaning of the Road Transport Act 2013. trailer means a trailer within the meaning of the Road Transport Act 2013. Note— The Road Transport Act 2013 defines "trailer" to mean generally a vehicle that is built to be towed, or is towed, by a motor vehicle and that is not capable of being propelled without being towed by a motor vehicle, but does not include a motor vehicle that is being towed. treatment and care means the following— (a) medical treatment (including pharmaceuticals), (b) dental treatment, (c) rehabilitation, (d) ambulance transportation, (e) respite care, (f) attendant care services, (g) aids and appliances, (h) prostheses, (i) education and vocational training, (j) home and transport modification, (k) workplace and educational facility modifications, (l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition, but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition. use or operation of a motor vehicle includes— (a) the maintenance or parking of the vehicle, or (b) in the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or (c) in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck. Note— As a result of the above definition, a third-party policy for a motor vehicle extends to cover the matters mentioned in the definition. Workers Compensation Acts means the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes in the text of this Act do not form part of this Act. 1.5 Meaning of "owner" of a motor vehicle (cf s 4 MACA) (1) For the purposes of this Act— (a) in the case of a motor vehicle that is registered, the owner is— (i) each registered operator of the vehicle within the meaning of the Road Transport Act 2013, unless the operator has sold or ceased to have possession of the vehicle, and (ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and (iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle—any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (b) in the case of a motor vehicle that is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (c) in the case of a motor vehicle to which a trader's plate is fixed, the owner is the trader to whom the trader's plate is issued. (2) For the purposes of this section, a person is taken not to have ceased to have possession or, as the case may be, not to have acquired possession of a motor vehicle where a change of possession occurs by way of— (a) any hiring (not being a hiring under a hire-purchase agreement) or lending of the vehicle for a period not exceeding 3 months, or (b) the passing of the possession of the vehicle to a bailee for the purpose of sale or disposal or for the purpose of alteration, repair, renovation, garaging, storing or other like purpose not involving the use or operation of the motor vehicle for the benefit of the bailee. (3) In the application of any provision of this Act to and in respect of a motor vehicle to which a trader's plate is fixed (whether or not with the authority of the trader), a reference in any such provision to the owner is to be read as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle is to be read as a reference to the third-party policy in relation to motor vehicles to which the trader's plate is fixed (whether or not with the authority of the trader). 1.6 Meaning of "threshold injury" (1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. (3) (Repealed) (4) The regulations may— (a) exclude a specified injury from being a threshold injury for the purposes of this Act, or (b) include a specified injury as a threshold injury for the purposes of this Act. (5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act. (6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor. Note— The rules of the Commission make provision for these matters. 1.7 Determination of threshold degree of permanent impairment of injured person who suffers both physical and psychological/psychiatric injuries (1) This section applies for the purposes of a determination under this Act of whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10% (the impairment threshold). (2) If an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident— (a) the degree of permanent impairment that results from the physical injury is to be assessed separately from the degree of permanent impairment that results from the psychological or psychiatric injury (and accordingly those separate degrees of injury are not to be added together for the purposes of the impairment threshold), and (b) the injured person is taken to have a degree of permanent impairment greater than the impairment threshold if either the degree of impairment caused by physical injuries or the degree of impairment caused by psychological or psychiatric injuries is greater than 10%. Note— If there is more than one physical injury those injuries will still be assessed together as one injury, but separately from any psychological or psychiatric injury. Similarly, if there is more than one psychological or psychiatric injury those psychological or psychiatric injuries will be assessed together as one injury, but separately from any physical injury. Division 1.3 Application 1.8 Application of Act to motor accidents occurring after commencement of Act This Act does not apply to or in respect of a motor accident occurring before the commencement of this Act. 1.9 General restrictions on application of Act (cf s 3A MACA) (1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during— (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents. 1.10 Restrictions on application of Act—accident must be insured or work accident (cf s 3B MACA) (1) The application of this Act in respect of death or injury that results from the use or operation of a motor vehicle is limited to death or injury that— (a) results from a motor accident for which the vehicle has motor accident insurance cover, or (b) gives rise to a work injury claim, other than a work injury claim in respect of the death of or injury to a coal miner (as defined in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987). (2) For the purposes of this Act, a motor vehicle has motor accident insurance cover for a motor accident if and only if— (a) at the time of the motor accident the motor vehicle was subject to coverage under a third-party policy, or (b) at the time of the motor accident the motor vehicle was subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, or (c) at the time of the motor accident, the motor vehicle was owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or (d) there is a right of action against the Nominal Defendant in respect of the motor accident or there would be a right of action against the Nominal Defendant in respect of the motor accident if the motor accident had been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. (3) For the purposes of this Act, death or injury gives rise to a work injury claim if it is— (a) the death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker's employer), or (b) an injury to a worker caused by the negligence or other tort of the worker's employer, with expressions used in this subsection having the same meanings as they have in Part 5 of the Workers Compensation Act 1987. 1.10A Liability of Nominal Defendant The provisions of this Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages, subject to— (a) necessary modifications, and (b) modifications prescribed by the regulations. 1.11 Application of Part 6 (Motor accident claims), Part 7 (Dispute resolution) and Division 10.3 (Bulk billing arrangements) (1) Parts 6 and 7 and Division 10.3 apply to and in respect of a claim or injury whether or not there is a third-party policy in respect of liability for the claim or injury. (2) This section is subject to section 1.10. Part 2 Third-party insurance Division 2.1 Compulsory insurance 2.1 Offence of using uninsured motor vehicle on road (cf s 8 MACA) (1) A person who— (a) uses a motor vehicle that is not an insured motor vehicle on a road, or (b) causes or permits another person to use such a motor vehicle on a road, is guilty of an offence. Maximum penalty—50 penalty units. (2) It is a defence to proceedings for an offence against this section if the defendant establishes that at the time the motor vehicle was used on the road the defendant had reasonable grounds for believing and did in fact believe that the motor vehicle was an insured motor vehicle. 2.2 Exception from compulsory insurance (cf s 9 MACA) This Division does not apply to a motor vehicle that is used on a road if— (a) the motor vehicle may lawfully be used on the road although not registered, or (b) the motor vehicle is a trailer, or (c) the motor vehicle is a vehicle of a kind, and is used in the circumstances (if any), prescribed by the regulations. Division 2.2 Insurance policies 2.3 Third-party policies (cf s10 MACA) A third-party policy under this Act is a policy that is in the following terms— Third-party Policy The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle— (a) if the motor vehicle is not one to which paragraph (b) applies—in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or (b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport Act 2013—in the use or operation of the vehicle on any road in any part of the Commonwealth. In this policy, words and expressions have the same meanings as in the Motor Accident Injuries Act 2017. 2.4 Treatment of certain vehicles for purposes of third-party policy (cf s 10A MACA) (1) A motor vehicle that is— (a) subject to conditional registration under the Road Transport Act 2013, and (b) designed principally for use otherwise than on a road, and (c) a motor vehicle, or a motor vehicle of a class, prescribed by the regulations for the purposes of this section, is taken, for the purposes of a third-party policy under this Act, to be subject to an unregistered vehicle permit and not to conditional registration. (2) However, a regulation made for the purposes of this section does not affect a third-party policy under this Act that is in force in respect of any particular vehicle at the time that the regulation is made. 2.5 Issue of certificate of insurance (cf s 11 MACA) (1) If a licensed insurer accepts a premium for the insurance under a third-party policy of a motor vehicle, the licensed insurer must immediately issue a certificate of insurance to the owner of the vehicle. (2) If a licensed insurer accepts a premium for the insurance under a third-party policy of motor vehicles to which a trader's plate is or is to be fixed, the licensed insurer must immediately issue a certificate of insurance to the trader. (3) A licensed insurer who issues such a certificate is taken to have issued a third-party policy for the motor vehicle or motor vehicles to which the certificate relates. (4) If 2 or more licensed insurers issue certificates of insurance which (but for this subsection) would be capable of having effect at the same time in respect of the same motor vehicle, a third-party policy is taken to have been issued only by the licensed insurer recorded by TfNSW in connection with the registration or renewal of registration of the motor vehicle or issue of a trader's plate as being the insurer. 2.6 Evidence of insurance in respect of motor vehicle (cf s 12 MACA) (1) TfNSW must not register or renew the registration of a motor vehicle or issue a trader's plate unless— (a) the applicant produces a certificate of insurance issued by a licensed insurer in relation to the motor vehicle or trader's plate, or (b) TfNSW is satisfied that there is evidence, of a type approved by the Authority, of the existence of a third-party policy in relation to the motor vehicle or trader's plate. (2) This section does not apply to a trailer. 2.7 Commencement and duration of third-party policy (cf s 13 MACA) (1) A third-party policy taken to have been issued for a motor vehicle has effect for the period for which the licensed insurer who is taken to have issued the policy is on risk in accordance with this section. (2) In this section— new insurer means the licensed insurer whose insurance is later in time. old insurer means the licensed insurer whose insurance is earlier in time. period of grace means the period of 14 days after the registration, or renewal of registration, of a motor vehicle expires. period of registration means the period, not exceeding one year, for which the registration or renewal of registration of a motor vehicle is effected, but if, within that period, the registration or renewal of registration is cancelled or surrendered, it means the period for which the registration or renewal of registration is actually in force. (3) The old insurer and the new insurer may be the same licensed insurer or different licensed insurers. (4) In the case of the registration (but not the renewal of registration) of a motor vehicle, the licensed insurer is on risk for the period of registration of the motor vehicle. (5) If registration is renewed before the previous period of registration expires, the old insurer is on risk until the previous period of registration expires and the new insurer comes on risk immediately after the previous period of registration expires. (6) If registration is renewed during the period of grace, the old insurer is on risk until 12 midnight on the day registration is renewed and the new insurer comes on risk immediately after 12 midnight and is on risk for the balance of the period of registration of the motor vehicle effected by the renewal of registration. (7) If registration is renewed after the period of grace expires, the new insurer comes on risk at the time the renewal of registration is effected. The motor vehicle is not an insured motor vehicle from the expiry of the previous period of registration until the time the renewal of registration is effected. (8) There is no period of grace following the cancellation or surrender of the registration (whether registration or a renewal of registration) of a motor vehicle. (9) A licensed insurer ceases to be on risk on the cancellation of a third-party policy under section 2.8, subject to section 2.8 (11). (10) A licensed insurer is on risk in respect of a motor vehicle under a third-party policy relating to a motor vehicle to which a trader's plate is fixed— (a) only during the period for which the policy is issued, and (b) only during the period for which the trader's plate is issued, and (c) only while a trader's plate is fixed to the vehicle. (11) A licensed insurer is on risk in respect of a light rail vehicle under a third-party policy relating to the vehicle only during the period for which the policy is issued. 2.8 Cancellation of third-party policies (cf s 14 MACA) (1) A licensed insurer has no power to cancel a third-party policy. (2) A third-party policy may only be cancelled in accordance with this section. (3) A third-party policy is cancelled on the cancellation of the registration of the motor vehicle to which it relates, except where the registration is cancelled under Division 3 of Part 4 of the Fines Act 1996. (4) If the whole or any part of the premium payable in respect of a third-party policy is paid by cheque or by credit or debit card, and the cheque is not met on due presentation or the card transaction is not duly honoured or is fraudulent, the licensed insurer may request TfNSW to suspend the registration of the motor vehicle to which the policy relates for a period of 14 days. (5) If the insured person under a third-party policy avoided paying the correct premium for the third-party policy because of a false statement made by