Motor Accidents Act 1988 (NSW)

Motor Accidents Act 1988 No 102 An Act relating to the recovery of damages, and compulsory insurance against liability, for the death of or injury to persons as a consequence of motor accidents; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Motor Accidents Act 1988. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2AA Motor Accidents Compensation Act 1999 and Motor Accident Injuries Act 2017 (1) The Motor Accidents Compensation Act 1999 makes provision with respect to motor accidents occurring after the commencement of that Act (but before the commencement of the Motor Accident Injuries Act 2017). Note— See sections 34B, 39AA, 41 (1) and 69 (1A) which limit the provisions of the Act relating to claims, court proceedings and the award of damages to motor accidents occurring before the commencement of the Motor Accidents Compensation Act 1999. (2) The Motor Accident Injuries Act 2017 makes provision with respect to motor accidents occurring after the commencement of that Act. 2A Objects of Act (1) The objects of this Act are: (a) to repeal the Transport Accidents Compensation Act 1987 and thereby to abolish the scheme for compensating victims of transport accidents (TransCover) established under that Act, and (b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and (c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and (ii) to introduce a stricter procedure for the making and assessment of claims for damages, and (iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability, and (iv) to give full weight to the need to identify fraudulent claims, deter their lodgment and prosecute those responsible for them, and (v) to encourage recovery from injury and early and effective rehabilitation, where appropriate, as a key feature of the scheme, and (vi) to encourage the speedy, efficient and effective provision of benefits balanced by the need to investigate claims properly and the need to encourage an early return to employment. Note— This statement of objects is based on the introduction to the outline of Option 3 in the TransCover Review, published in Motor Accidents: The Act and Background Papers by the Attorney General's Department, 1989, p 101. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law. 2B Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the object of this Act or the provision is to be preferred to a construction that would not promote that object. (2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the object of this Act or of the provision concerned. 3 Definitions (1) In this Act: Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. death means death caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the death is a result of and is caused during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) such use or operation by a defect in the vehicle. deceased person means a person whose death is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the death is a result of and is caused during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) such use or operation by a defect in the vehicle. driver means a person driving a motor vehicle, and includes: (a) a person riding and operating a motor cycle, and (b) a person for the time being in charge of a motor vehicle. excluded area means a road or road related area within the meaning of the Road Transport (Vehicle Registration) Act 1997 that is the subject of a declaration made under section 15 (1) (b) of the Road Transport (General) Act 2005 relating to all of the provisions of the Road Transport (Vehicle Registration) Act 1997. fault means negligence or any other tort. GIO means the Government Insurance Office of New South Wales constituted under the Government Insurance Act 1927. Industry Deed means the agreement, as in force for the time being, executed under section 3A. injured person means a person who suffers injury which is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. insured motor vehicle means a motor vehicle in relation to which a third-party policy is in force. insured person means a person insured under a third-party policy. licensed insurer means an insurer who is the holder of a licence granted under Part 7.1 of the Motor Accidents Compensation Act 1999 and in force. motor accident means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person. motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines motor vehicle to mean a vehicle that is built to be propelled by a motor that forms part of the vehicle. Nominal Defendant means the Nominal Defendant within the meaning of the Motor Accidents Compensation Act 1999. owner, in relation to a motor vehicle, means a person who is the owner of the vehicle by virtue of subsections (3)–(5). registration means: (a) registration of a motor vehicle under the Road Transport (Vehicle Registration) Act 1997, the Transport Act 1930 or the Recreation Vehicles Act 1983, or (b) the issue of an unregistered vehicle permit under the Road Transport (Vehicle Registration) Act 1997 for an unregistered motor vehicle, or (c) registration in New South Wales of a motor vehicle under the Interstate Road Transport Act 1985 of the Commonwealth. road means a road within the meaning of the Road Transport (Vehicle Registration) Act 1997 (other than an excluded area). road related area means an area (other than an excluded area): (a) referred to in paragraph (a), (b), (c), (d) or (e) of the definition of road related area in section 4 of the Road Transport (Vehicle Registration) Act 1997, or (b) referred to in paragraph (f) of that definition that has been declared under section 15 (1) (a) of the Road Transport (General) Act 2005 to be an area to which the Road Transport (Vehicle Registration) Act 1997 applies. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. spouse means: (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. third-party policy means a policy of insurance under this Act. trader's plate means a trader's plate within the meaning of the Road Transport (Vehicle Registration) Act 1997. trailer means a trailer within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines trailer to mean a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle that is being towed. vehicle means a vehicle within the meaning of the Road Transport (General) Act 2005. Note— The Road Transport (General) Act 2005 defines vehicle to mean any description of vehicle on wheels (including a light rail vehicle) but not including other vehicles used on railways or tramways. Workers Compensation Acts means the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act: (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) For the purposes of this Act: (a) in the case of a motor vehicle that is registered, the owner is: (i) each registered operator of the vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997, unless the operator has sold or ceased to have possession of the vehicle, and (ii) each person who, although not a registered operator of the vehicle, is a sole or joint owner of the vehicle, unless that person has sold or ceased to have possession of the vehicle, and (iii) if any such registered operator or owner has sold or ceased to have possession of the vehicle—any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (b) in the case of a motor vehicle which is unregistered, the owner is any person who solely or jointly or in common with any other person is entitled to the immediate possession of the vehicle, or (c) in the case of a motor vehicle to which a trader's plate is fixed, the owner is the trader to whom the trader's plate is issued. (4) For the purposes of subsection (3), a person shall be taken not to have ceased to have possession or, as the case may be, not to have acquired possession of a motor vehicle where a change of possession occurs by way of: (a) any hiring (not being a hiring under a hire-purchase agreement) or lending of the vehicle for a period not exceeding 3 months, or (b) the passing of the possession of the vehicle to a bailee for the purpose of sale or disposal or for the purpose of alteration, repair, renovation, garaging, storing or other like purpose not involving the use of the motor vehicle for the benefit of the bailee. (5) In the application of any provision of this Act to and in respect of a motor vehicle to which a trader's plate is fixed (whether or not with the authority of the trader), a reference in any such provision to the owner shall be read as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle shall be read as a reference to the third-party policy in relation to motor vehicles to which the trader's plate is fixed (whether or not with the authority of the trader). (6) In this Act, a reference to the use or operation of a motor vehicle includes a reference to the maintenance or parking of the vehicle. (6A) A reference in this Act to an Act that formed part of the road transport legislation (within the meaning of the Road Transport (General) Act 2005) immediately before the repeal or renaming of that Act by the Road Transport Legislation (Repeal and Amendment) Act 2013 is to be read as a reference to that Act as in force immediately before its repeal or renaming. (7) Notes in the text of this Act do not form part of this Act. 3A Execution etc of certain agreement (1) The execution by the Attorney General, for and on behalf of Her Majesty in right of the State of New South Wales, and by the Authority, of an agreement substantially in accordance with the form contained in Schedule 5 is authorised by this section. (2) The Attorney General and the Authority may exercise the functions conferred on them, respectively, under the agreement. (3) In exercising any function under this Act, the Attorney General (or the Minister, if the Minister is not the Attorney General) and the Authority shall have regard to and shall comply with the provisions of the agreement. (4) The provisions of the agreement, any arrangements entered into in accordance with the provisions of the agreement and the giving of effect to the provisions of the agreement are approved by this Act. (5) The agreement may be amended from time to time by agreement in writing between the parties to it, and the agreement as so amended becomes the agreement in force for the purposes of this section. 3B Special provision for trailers A reference in this Act to the use or operation of a motor vehicle extends, in the case of a motor vehicle that is not a trailer, to include the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it. Note— The purpose of this section is to extend a motor vehicle's third-party insurance policy so that it will cover a trailer being towed by the vehicle or a trailer that has run out of control while being towed. 3C Special provision for tow trucks A reference in this Act to the use or operation of a motor vehicle extends, in the case of a motor vehicle that is a tow truck, to the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck. 3D Parts 4, 5 and 6 not to apply to coal miner work injury claim resulting from uninsured off-road accident (1) Parts 4, 5 and 6 do not apply in respect of the death of or injury to a coal miner caused by a motor accident if: (a) the motor accident did not arise from the use or operation of a motor vehicle on a road or road related area, and (b) there is no motor accident insurer on risk in respect of the motor accident, and (c) the death or injury gives rise to a work injury claim. (2) For the purposes of subsection (1) (b), there is no motor accident insurer on risk in respect of a motor accident if: (a) at the time of the motor accident the motor vehicle was not subject to coverage under a third-party policy and was not subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, and (b) there is no right of action against the Nominal Defendant in respect of the motor accident. (3) For the purposes of subsection (1) (c), death or injury gives rise to a work injury claim if it is: (a) a death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker's employer), or (b) an injury to a worker caused by the negligence or other tort of the worker's employer. (4) Expressions used in subsection (3) (a) and (b) have the same meanings as they have in Part 5 of the Workers Compensation Act 1987. (5) In this section: coal miner has the same meaning as in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987. 4 Act to bind Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 Restoration of common law rights 5 Repeal of the Transport Accidents Compensation Act 1987 No 101 The Transport Accidents Compensation Act 1987 is repealed. 6 Restoration of common law rights The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or in respect of the death of or bodily injury to a person caused by or arising out of a transport accident (within the meaning of the Transport Accidents Compensation Act 1987) occurring on or after 1 July 1987 shall be as if the Transport Accidents Compensation Act 1987 had not been passed and the common law and the enacted law (except that Act) shall have effect accordingly. 7 Application of Part 6 (Awarding of damages) from 1 July 1987 On the commencement of this Part, Part 6 shall be taken to have applied, during the period from and including 1 July 1987 to that commencement, to a transport accident within the meaning of the Transport Accidents Compensation Act 1987 occurring on or after 1 July 1987. Part 3 8–34 (Repealed) Part 4 Rehabilitation 34A Objects—Part 4 The objects of this Part are: (a) to encourage and support recovery from injury and the use of early and appropriate rehabilitation for people injured in motor accidents so that they can return, as far as possible, to their pre-accident lifestyle, and (b) to place obligations on insurers and claimants in order to encourage and facilitate that process, and (c) to recognise the importance of rehabilitation in achieving greater cost efficiencies in injury management, and (d) to stress that rehabilitation must not be ignored or attempted in a perfunctory way in order to maximise a claim for damages. 34B Application of Part This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999. Note— The application of this Part in respect of coal miner work injury matters is limited by section 3D. 35 Definitions In this Part: claim and claimant have the same meanings as in Part 5. rehabilitation, in relation to an injured person, means the process of restoring or attempting to restore the person, through the combined and co-ordinated use of medical, social, educational and vocational measures, to the maximum level of function of which the person is capable or which the person wishes to achieve and includes placement in employment and all forms of social rehabilitation such as family counselling, leisure counselling and training for independent living. 36 (Repealed) 37 Provision of rehabilitation services (1)–(3) (Repealed) (4) If: (a) a person is assessed to be suitable for rehabilitation, and (b) the licensed insurer or Nominal Defendant agrees to provide the appropriate rehabilitation services, and (c) the person fails to accept the provision of those services, the person's failure shall be taken into account for the purposes of section 39. (5) A licensed insurer has no responsibility for the rehabilitation of an injured person whose claim has been settled or in relation to whom a judgment has been entered except as provided by the terms of any order referred to in section 81. 38 Rehabilitation services to be provided promptly (1) In the provision of rehabilitation services, a licensed insurer and the Nominal Defendant shall, as far as practicable, ensure that those services are provided to an injured person as soon as possible after an admission of liability is made by the licensed insurer or Nominal Defendant. (1A) If rehabilitation services are provided to an injured person before an admission of liability is made by the licensed insurer or Nominal Defendant, the provision of those services shall not be taken to be an admission of liability. (2) It is a condition of an insurer's licence that the insurer must comply with this section. 39 Mitigation of damages (1) An injured person is under a duty to mitigate his or her damages, and, therefore, in assessing damages in respect of a claim, consideration is to be given to the steps taken by the injured person and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. (1A) Those steps include the following: (a) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the matters referred to in paragraphs (b)–(d), (b) undergoing medical treatment, (c) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program), (d) pursuing alternative employment opportunities. (2) In any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant. (3) In any such proceedings, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person. Part 4A Payments to hospitals etc 39AA Application of Part This Part does not apply to or in respect of motor accidents occurring after the commencement of the Motor Accidents Compensation Act 1999. 39A Definitions (1) In this Part: ambulance vehicle means a vehicle which is fitted or equipped or constructed for use for the conveyance of sick or injured persons and which is controlled by the Health Administration Corporation constituted by the Health Administration Act 1982. hospital means a public hospital, or a private health facility licensed under the Private Health Facilities Act 2007, and includes a hospital or institution in the nature of a hospital conducted by or on behalf of the State. massage treatment means massage provided by a person who carries on the profession of masseur and includes any ancillary treatment provided by the person, but does not include any massage or treatment provided: (a) to a patient in a public hospital, unless the patient has been classified as a private or intermediate patient, or (b) to any patient in a hospital by a person who is a paid employee of the hospital and who, in the course of that person's employment at the hospital, normally works for at least 30 hours per week. masseur means a person by whom massage treatment is provided. medical treatment does not include treatment provided: (a) to a patient in a public hospital, unless the patient has been classified as a private patient, (b) to any patient in a hospital by a resident medical officer of such hospital. nursing includes treatment by a registered nurse. public hospital means: (a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown, or (b) a statutory health corporation or affiliated health organisation within the meaning of that Act. (2) Where, at a public hospital, a person receives, as an out-patient, treatments of different kinds or at different places, each treatment shall, for the purposes of section 39B (1) (b), be counted as a separate treatment. 39B Payments in respect of certain matters (1) When the death of or injury to any person is caused by a motor accident and payment is made (whether or not with an admission of liability) by a licensed insurer or the Nominal Defendant in respect of the death or injury, then: (a) if the person received, in respect of the injury or the injury which caused the person's death, treatment at a public hospital as an in-patient, the licensed insurer or the Nominal Defendant shall pay to the proper officer for each day or part of a day of the treatment of the person, an amount estimated by the Minister for Health and published in the Gazette, as the daily average cost to that hospital of the hospital treatment of in-patients, and (b) if the person received, in respect of any such injury, treatment at a public hospital as an out-patient, the licensed insurer or the Nominal Defendant shall pay to the proper officer in respect of each separate treatment of the person, an amount estimated by the Minister for Health and published in the Gazette, as the average cost to the hospital, for each separate treatment, of the hospital treatment of out-patients, and (c) if the person received, in respect of any such injury, treatment (whether as an in-patient or as an out-patient) at a hospital other than a public hospital, the licensed insurer or the Nominal Defendant shall pay to the proper officer an amount calculated in accordance with a scale to be prescribed by the regulations, but not exceeding the maximum amount (if any) so prescribed, and (d) if the person, as a consequence of any such injury, was conveyed in any ambulance vehicle, the licensed insurer shall pay to the proper officer an amount calculated in accordance with a scale to be prescribed by the regulations, but not exceeding the maximum amount (if any) so prescribed, and (e) if the person received, in respect of any such injury, reasonably necessary medical treatment by a legally qualified medical practitioner, or reasonably necessary massage treatment by a masseur, or reasonably necessary dental treatment (otherwise than as hospital treatment) by a registered dentist, or reasonably necessary nursing (otherwise than as hospital treatment) by a registered nurse, the licensed insurer shall pay to the medical practitioner, masseur, dentist or nurse, as the case may be, such amount as is reasonably appropriate to the treatment or nursing provided, having regard to the customary charge made in the community for the treatment or nursing. (2) Any amount payable under this section by a licensed insurer or the Nominal Defendant may, on notice being given in accordance with section 39E, be recovered as a debt from it by the proper officer, medical practitioner, masseur, dentist, or nurse to whom, under the terms of this section, the amount is payable. (3) The estimated costs referred to in subsection (1) (a) and (b) shall, in respect of any public hospital, be based, wherever practicable, on the costs incurred by that hospital for the year which ended on 30 June next preceding any date on which it is proposed to publish the costs, pursuant to either of those paragraphs, in respect of that hospital. (4) The Minister shall not publish an amount estimated under subsection (1) (a) or (b) and a scale shall not be prescribed under subsection (1) (c) or (d) while a bulk billing agreement of the type referred to in the Industry Deed has been entered into and remains in force and relates to those amounts. (5) In this section, proper officer means the officer or person generally or specially authorised by law or by the person or body governing or controlling the hospital or the ambulance vehicle, as the case may be, to receive any amount payable under subsection (1) (a), (b), (c) or (d). 39C Right of action against insured person by hospital etc (1) Where liability at law is incurred in respect of the death of or injury to a person caused by a motor accident, a person referred to in section 39B (1) (a)–(e) to whom a licensed insurer or the Nominal Defendant may be required to make a payment under that section, may, in the name of the injured or dead person and on notice being given in accordance with section 39E, recover the amount of the payment by way of damages: (a) from the person who, at the time of the occurrence out of which the liability arose, was the owner of the motor vehicle, or (b) where at the time of the occurrence some other person was driving the vehicle, from the owner and the driver jointly or from either of them severally, or (c) in the case of an uninsured or unidentified motor vehicle, from the Nominal Defendant. (2) No action under this section for the recovery of any amount shall be commenced: (a) in any case where the licensed insurer or the Nominal Defendant has made a payment (whether or not with an admission of liability) in respect of the death or injury, or (b) in any case where, in respect of the death or injury, proceedings have been taken for compensation under the Workers Compensation Acts, or for the recovery of damages, and those proceedings have not been dismissed or discontinued, or (c) in any case, at least until 6 months after the occurrence out of which the death or injury arose. (3) Where: (a) action has been taken under this section, and (b) before the action has been completed proceedings are commenced by any other person in respect of the death or injury for compensation under the Workers Compensation Acts or for the recovery of damages, the action shall be stayed pending completion of the proceedings. (4) If: (a) as a result of the proceedings compensation is paid, or (b) payment is made under section 39B, the action shall abate. (5) Any payment by a licensed insurer or the Nominal Defendant in settlement of any claim made or in satisfaction of any judgment recovered under this section shall be made direct to the claimant. 39D Payments by licensed insurer or Nominal Defendant Any payment by a licensed insurer or the Nominal Defendant in accordance with this Part in respect of treatment, conveyance or nursing shall, to the extent of the payment, but subject to section 39 of the Motor Accidents Compensation Act 1999, be a discharge of the liability of any person in respect of the treatment, conveyance or nursing. 39E Notice of claims Notice of a claim under this Part shall be given in writing: (a) in the case of a notice given to a licensed insurer, as soon as practicable after the person entitled to make the claim becomes aware of the identity of the licensed insurer, but not in any case later than 30 days after the person giving the notice could, with reasonable diligence, have ascertained the identity, and (b) in the case of a