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 premiu