Motor Accidents (Liabilities and Compensation) Act 1973 (Tas)

Motor Accidents (Liabilities and Compensation) Act 1973 An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes, and to amend the Traffic Act 1925 and certain other enactments [Royal Assent 4 December 1973] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title and commencement (1) This Act may be cited as the Motor Accidents (Liabilities and Compensation) Act 1973 . (2) This Act shall come into force on a date to be fixed by proclamation. 2. Interpretation (1) In this Act unless the contrary intention appears – act of terrorism has the meaning given by section 2A ; adult average weekly earnings means the dollar figure for full-time adult ordinary time earnings for persons set out under the heading "AVERAGE WEEKLY EARNINGS, Australia: Original" in catalogue number 6302.0 published by the Australian Bureau of Statistics, as amended from time to time; appointed day means 1st December 1974; beach means any land (whether above or below high-water mark) which forms, or forms part of, the beach or shore of the sea or any tidal waters; Board means the Motor Accidents Insurance Board; Commonwealth pension means any periodical payment made under any Act of the Commonwealth the entitlement to which arises by reason of the death of any person or by reason of the age or disability of any person; daily care means treatment, therapy, nursing services, assistance, supervision, services for rehabilitation or other care; death benefits means death benefits referred to in the regulations; disability allowance means a disability allowance referred to in the regulations; disability benefits means disability benefits referred to in the regulations; Foundation means the Injury Prevention and Management Foundation established under section 13A ; function includes duty; funeral benefits means funeral benefits referred to in the regulations; interstate motor vehicle means a motor vehicle that – (a) is normally used by a resident of another State or a Territory in that State or Territory; and (b) is required under a law of that State or Territory to be registered; interstate premium means a premium, levy or other payment – (a) that is required to be made under the law of another State or a Territory in respect of the use of an interstate motor vehicle in that State or Territory; and (b) that substantially corresponds, in its effect, to a premium under this Act; jurisdiction means any State or Territory of the Commonwealth, or any country or other jurisdiction outside the Commonwealth; medical benefits means medical benefits referred to in the regulations; motor accident means an accident directly involving a motor vehicle; motor vehicle means a motor vehicle or a trailer as defined in the Vehicle and Traffic Act 1999 ; motor vehicle race has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act 1935 ; offer of compromise means an offer of compromise within the meaning of the Supreme Court Rules 2000 ; owner of a motor vehicle means – (a) any person who owns or has property in the vehicle; and (b) any person who is the registered operator of the vehicle; permitted out-of-State vehicle means a motor vehicle that – (a) is registered elsewhere than in this State or in respect of which a permit issued elsewhere than in this State is in force; and (b) may lawfully be driven or used on a public street in this State without being registered under the Vehicle and Traffic Act 1999 ; personal injury means death or physical or mental injury and includes – (a) prenatal injury; and (b) nervous shock; and (c) damage to prescription spectacles, a prescription contact lens, denture, hearing aid, crutch, wheelchair, artificial limb, prosthetic device or prescribed item; police officer means – (a) in respect of a personal injury suffered in Tasmania, a police officer in this State; and (b) in respect of a personal injury suffered in another State or a Territory of the Commonwealth, a police officer in that State or Territory; premium means a premium payable under section 30 ; public street has the same meaning as it has for the purposes of the Traffic Act 1925 ; registered, when used in relation to a motor vehicle means – (a) registered under the Vehicle and Traffic Act 1999 ; and (b) registered under a law of any jurisdiction outside the State requiring the registration of motor vehicles; registered operator of a motor vehicle means the person registered under the Vehicle and Traffic Act 1999 or a corresponding law of another State or a Territory as the registered operator of the motor vehicle; Registrar means the Registrar of Motor Vehicles appointed or employed under section 5 of the Vehicle and Traffic Act 1999 ; regulations means regulations made and in force under this Act; resident of another State or a Territory has the meaning given by section 2B(2) ; resident of this State has the meaning given by section 2B(1) ; scheduled benefits means the benefits specified in the regulations; third party insurance policy means a policy of insurance indemnifying a person in respect of third party liabilities incurred by him; third party liability means a liability incurred by a person as the owner or user of a motor vehicle in respect of any personal injury to another person resulting directly from a motor accident; Tribunal means the Tasmanian Civil and Administrative Tribunal. (2) References in this Act to the damages payable to any person in respect of a personal injury shall be construed as including any damages payable for the benefit of that person in respect of that personal injury. (3) For the purposes of this Act a person shall be regarded as taking part in the motor vehicle race while – (a) he is engaged in conducting, or assisting in conducting, the race; (b) he is in charge of, or in, a motor vehicle competing or taking part in the race; or (c) he is assisting, or employed to assist, any person regarded as taking part in the race by virtue of paragraph (a) or paragraph (b) , in connection with the race or any motor vehicle competing or taking part therein, and any motor vehicle driven by or in charge of any person taking part in a motor vehicle race shall be deemed to be taking part in that race. (4) For the purposes of this Act, a person suffers personal injury from a motor accident if the injury results directly from – (a) a collision, or action taken to avoid a collision, with a motor vehicle, whether the motor vehicle is stationary or moving; or (b) a motor vehicle moving out of control; or (c) the driving of a motor vehicle. (5) For the purposes of this Act, a person requires daily care if, as a result of having suffered personal injury resulting directly from a motor accident, the person requires, or is likely to require, daily care for at least 2 hours a day for an indefinite period, commencing not later than one year after the date of the accident. 2A. Meaning of "act of terrorism" (1) For the purposes of this Act, an "act of terrorism" is an act done, or threat made, by a person – (a) for an ethnic, ideological, political, religious or similar purpose; and (b) with the intention to – (i) cause personal injury or damage to property; and (ii) influence a government or put the public, or a section of the public, in fear. (2) In determining whether an act or threat is an act of terrorism, it does not matter whether the person is acting alone or with others or in connection with an organisation or government. (3) In determining whether an act is done or a threat is made for a purpose, or with an intention, referred to in subsection (1) , regard may be had to the nature of the act or threat and the context in which the act was done or the threat was made. 2B. Meaning of resident (1) A person is a resident of this State only if his or her ordinary place of residence is in this State. (2) A person is a resident of another State or a Territory only if his or her ordinary place of residence is in that other State or that Territory. 3. Application to the Crown This Act binds the Crown and applies accordingly to any motor vehicle of which the Crown is the owner or user, and to any motor vehicle used on its behalf. 3A. Objects of Act The objects of this Act are – (a) to provide for the payment of compensation in respect of personal injury resulting from a motor accident; and (b) to allow the contribution of funds to any or all of the following programs: (i) programs designed to reduce the incidence of motor accidents in Tasmania; (ii) programs designed to enable better and more effective care and treatment of persons who suffer personal injury as the result of a motor accident. PART II - Administrative and Financial Provisions Division I - The Motor Accidents Insurance Board 4. The Motor Accidents Insurance Board (1) There shall be established a board to be known as the Motor Accidents Insurance Board. (2) . . . . . . . . (3) . . . . . . . . (4) . . . . . . . . (5) . . . . . . . . (6) . . . . . . . . (7) . . . . . . . . (7A) . . . . . . . . (7B) . . . . . . . . (8) . . . . . . . . 5. Power of Board to reinsure The Board may enter into contracts or arrangements for the reinsurance of its liabilities under this Act. 6. . . . . . . . . 7. . . . . . . . . 7A. . . . . . . . . 7B. Disclosure of information (1) Subject to this section, a person who is or has been a member of the Board or an employee of the Board shall not, directly or indirectly, disclose to any other person information obtained by him in the exercise of any powers conferred, or duties imposed, on him by this Act, or by virtue of his employment under, or for the purposes of, this Act. Penalty: Fine not exceeding 10 penalty units. (2) Subsection (1) does not operate to prevent the disclosure of information where that disclosure – (a) was made in connection with the administration or execution of this Act; (ab) was made in reporting, for the purposes of investigating a possible offence – (i) a suspected unroadworthy vehicle; or (ii) a suspected fraudulent activity discovered during the administration or execution of this Act; (b) was ordered by a court, or by any other body or person authorized by law to examine witnesses, in the course of, and for the purpose of, the hearing or determination by that court, body, or person of any matter or thing; or (c) relates to a person, and was made with the approval in writing of that person. (3) A person who, having as an employee of the Board obtained or received any information in the course of, or for the purpose of, a claim under this Act, takes advantage of knowledge obtained from that information to benefit himself or any other person is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units or to imprisonment for a term not exceeding 6 months, or both. (4) In this section – (a) a reference to information includes a reference to the contents of a record; and (b) a reference to the disclosure of information includes a reference to the delivery or giving to a person of that record or a copy of it or any part of it. 8. . . . . . . . . 9. . . . . . . . . 9A. . . . . . . . . 9B. . . . . . . . . 10. . . . . . . . . 10A. . . . . . . . . Division II - - . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 12A. . . . . . . . . 13. . . . . . . . . PART IIA - Injury Prevention and Management Foundation 13A. Injury Prevention and Management Foundation The Board may establish and maintain an account to be known as the Injury Prevention and Management Foundation. 13B. Purposes of Foundation (1) The money held in the Foundation may be applied at the discretion of the Board for any of the following purposes: (a) to promote and advance road safety, the prevention of motor accidents and the prevention of personal injury as a result of motor accidents; (b) to conduct or support public awareness programmes in respect of the treatment of motor accident victims; (c) to advance and support medical and technical research; (d) to promote and advance techniques for the treatment of motor accident victims at the scene of the accident, during transportation to a hospital or other medical facility and after arrival at a hospital or other medical facility; (e) to educate and support the carers of motor accident victims; (f) to support organizations that care for motor accident victims; (g) to provide for the administration of the Foundation. (2) In applying the Foundation for a purpose specified in subsection (1) , the Board may do any of the following: (a) conduct or participate in a programme relating to that purpose; (b) provide financial support to persons and organizations by way of grants, loans, sponsorship or other financial accommodation. 13C. Funds of Foundation The funds of the Foundation consist of – (a) all money paid into the Foundation under section 13D (4) ; and (b) all money donated to the Board by any person or organization for the purposes of the Foundation. 13D. Determination of percentage of premiums payable into Foundation (1) In this section, prescribed percentage means the percentage determined by the Board under subsection (2) (b) (i) . (2) In respect of each financial year, the Board must determine – (a) whether a percentage of the total of the premiums paid to the Board during that financial year is to be paid into the Foundation; and (b) if such a percentage is to be paid into the Foundation – (i) what that percentage is to be; and (ii) the manner in which, and the times at which, that percentage is to be paid into the Foundation. (3) In determining a prescribed percentage, the Board must determine a percentage that is not greater than 1%. (4) If the Board has determined that a prescribed percentage is to be paid into the Foundation in respect of a financial year, the Board must pay the prescribed percentage into the Foundation in the manner, and at the times, determined under subsection (2) (b) (ii) . (5) Notwithstanding that this section commenced after 30 June 1993, the Board may, within 6 months after the commencement of this section, make determinations under subsection (2) in respect of the financial year that ended on that day. 13E. Delegation The Board may, in writing, delegate any of the functions or powers, other than this power of delegation, conferred on it under this Part to a person that the Board considers suitable. PART III - Liabilities in respect of personal injury resulting directly from motor accidents 14. General liability of Board in respect of motor accidents (1) By virtue of this Act, but subject to and in accordance with the provisions thereof, the Board is bound to indemnify an owner or user of a motor vehicle, or his legal personal representatives, in respect of any liability (not being a contractual liability) incurred by him in respect of the personal injury to a person resulting directly from a motor accident involving that motor vehicle in this State on or after the appointed day. (2) Where a person has incurred, in respect of a personal injury, a liability to which subsection (1) extends that subsection shall be deemed also to extend to any liability of that person to indemnify, or make contribution to, any other person in respect of any damages or compensation required to be paid by that other person in respect of that personal injury. (2A) Subsection (1) does not apply where the motor accident which resulted in the personal injury has not been reported to a police officer unless the Board determines that in the circumstances the failure to so report the motor accident should be excused. (3) Subsection (1) does not apply to any liability in respect of which – (a) a policy of insurance is required to be maintained under section 97 (1) of the Workers Rehabilitation and Compensation Act 1988 ; or (b) a policy of insurance would be required to be maintained by an employer under section 97 (1) of the Workers Rehabilitation and Compensation Act 1988 but for the fact that the employer is a self-insurer within the meaning of that Act; or (c) a policy of insurance would be required to be maintained by an employer under section 97 (1) of the Workers Rehabilitation and Compensation Act 1988 but for the fact that the employer is the Crown or an Agency or public statutory body referred to in section 97 (9) of that Act . (3A) Subsection (1) does not apply to any liability in relation to the contraction by a person of an asbestos-related disease, within the meaning of the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 , if the person is entitled to compensation under that Act in relation to the contraction by the person of that disease. (4) Subsection (1) does not apply to – (a) any liability in respect of the personal injury to a person taking part in a motor vehicle race resulting directly from a motor accident involving a motor vehicle taking part in that race; and (b) any liability in respect of which an insurance policy has been taken out for the purposes of section 49 of the Police Offences Act 1935 ; and (c) any liability in respect of the personal injury to a person resulting directly from a motor accident involving a motor vehicle that at the time of the accident was being used for the actual doing of an act, or making of a threat, that is an act of terrorism. (4A) Where the Board is under this section bound to indemnify a person in respect of a liability, it has, to the exclusion of that person, the rights of contribution or indemnity in respect of that liability as were vested in that person. (4B) If – (a) both an indemnifiable person and a non-indemnifiable person are liable in respect of the personal injury that gave rise to the Board's obligation to indemnify the indemnifiable person; and (b) the liability of either or both of those persons arises otherwise than as the result of a tort – the Board has, in respect of any payments it is liable to make in or towards the indemnity, the same rights of contribution or indemnity against the non-indemnifiable person as the indemnifiable person would have had under the Wrongs Act 1954 had the liability of both the indemnifiable person and the non-indemnifiable person arisen as a result of a tort. (4C) The Board may exercise the rights referred to in subsection (4B) by taking proceedings to recover contribution in its own name or the name of the indemnifiable person. (4D) In subsections (4B) and (4C) – indemnifiable person means a person the Board is bound to indemnify under this section; non-indemnifiable person means a person the Board is not bound to indemnify under this section. (5) For the purposes of this Part a liability to pay damages includes any liability to pay costs in connection with any proceedings taken in respect of the recovery thereof. (6) For the purposes of this Part, the Board is not bound to pay exemplary or punitive damages claimed against – (a) an indemnifiable person; or (b) the Board. 15. Discharge of obligations of the Board (1) All moneys required to be paid by the Board under this Part in respect of a liability incurred by any person shall be applied by the Board in or towards the discharge of that liability in accordance with an agreement, or a determination of a competent tribunal, made in relation thereto. (2) Where judgment has been obtained for payment of any sum for which the Board is bound under this Part to indemnify the person against whom the judgment was obtained and that judgment is not satisfied in full within one month after it is entered, the court in which the judgment was obtained may, on the application of the judgment creditor, direct that that judgment be entered against the Board for the like sum. (3) No application shall be heard under subsection (2) unless at least 7 days previously a notice of intention to make the application has been served on the Board. (4) Where the execution of the judgment referred to in subsection (2) is stayed by order of a court, the time during which it is so stayed shall be excluded in calculating the period of one month referred to in that subsection. (5) A judgment entered against the Board under subsection (2) may only be enforced to the extent that the judgment in relation to which it was entered remains unsatisfied. 16. Special provisions as to unidentified vehicles, &c. (1) Where it is alleged that some person has, as an owner or user of a motor vehicle, incurred a liability in respect of which he would be entitled to be indemnified by the Board under this Part but – (a) the identity of the motor vehicle cannot be established; or (b) that person has died or cannot, after reasonable inquiry and search, be found– the like proceedings may be taken against the Board in respect of that liability, and the like judgment obtained against the Board, as could have been taken or had against that person. (2) No action lies against the Board under this section unless notice of intention to make a claim, together with a short statement of the grounds thereof, is given to the Board within the period of 3 months following the occurrence of the motor accident as a consequence of which the liability in respect of which the action is brought is alleged to have arisen or within such further time as the court may, on application made not later than 9 months after the occurrence of the motor accident, allow. (2A) Notwithstanding subsection (2) , an application referred to in that subsection may be made after the expiration of the period of 9 months referred to in that subsection if the court is satisfied that the granting of the application is just and reasonable in the circumstances. (3) In an action under this section, the inquiry and search for the person by whom the liability is alleged to have been incurred may be proved orally or by the affidavit of the person who made the inquiry and search. 17. Negotiations and settlements affecting liability of Board (1) The Board may take over any negotiations in respect of a liability in respect of which the Board is bound to indemnify any person under this Part, and may take charge of any legal proceedings in respect thereof taken against that person and, at any stage of those negotiations or proceedings, may pay, compromise, or settle any claim in relation thereto. (2) The person referred to in subsection (1) shall sign and execute all such warrants, authorities, and documents as may be necessary to give effect to the provisions of that subsection and, in default of his so doing, the court in which any proceedings against that person are pending may order that the same may be signed or executed by the Board on behalf of that person. (3) No agreement or settlement entered into, or offer or promise thereof made, by a person in respect of a liability in respect of which the Board is bound to indemnify him under this Part is of any force or effect unless it has been approved by the Board. (4) In exercising its powers under this section in respect of any liability the Board shall be deemed to be acting with the consent and authority of the person whom it is bound to indemnify in respect of that liability, and neither the Board nor any of its servants or agents are liable in defamation in respect of any admission or statement made in good faith in the exercise of those powers. 18. Recovery by Board from owner or driver in certain cases (1) Where the Board has made payments in or towards the discharge of its obligations under this Part in respect of a liability incurred by a person as an owner or user of a motor vehicle, not being a trailer of a kind prescribed under section 29 (1AA) , and no premium had been paid for the use of the motor vehicle at the time of the motor accident giving rise to the liability, or a premium had not been paid for its use in the circumstances or under the conditions in which it was being used at that time, the Board may recover the amount of those payments from – (a) the owner if the liability was incurred by the owner; or (b) the person by whom the liability was incurred if that person was not the owner; or (c) the owner of the motor vehicle if the liability was incurred by another person. (1A) Subsection (1)(c) does not apply if the owner of the motor vehicle shows that the other person who was using the motor vehicle at the time of the motor accident did so without the consent or acquiescence of the owner. (2) Where the Board has made payments in or towards the discharge of its obligations under this Part in respect of a liability incurred by a person as a person using a motor vehicle and at the time of the motor accident giving rise to the liability that person was using that motor vehicle without the authority or acquiescence of the owner thereof or without reasonable grounds for believing he had that authority or acquiescence the Board may recover the amount of those payments from that person. (3) Where the Board has made payments in or towards the discharge of its obligations under this Part in respect of a liability incurred by a person as an owner or user of a motor vehicle and that person is convicted – (a) of murder or manslaughter; or (ab) of causing death by dangerous driving; or (ac) of causing grievous bodily harm by dangerous driving; or (ad) of dangerous driving; or (b) of an offence under section 32(1) of the Traffic Act 1925 ; or (c) of an offence under section 4 of the Road Safety (Alcohol and Drugs) Act 1970 ; or (d) in another State or a Territory of the Commonwealth of an offence which is substantially the same as an offence referred to in paragraph (a) , (ab) , (ac) , (ad), (b) or (c) – arising out of his use of that motor vehicle at the time of the motor accident giving rise to the liability the Board may recover the amount of those payments from that person. (3A) . . . . . . . . (4) A person from whom a sum is recoverable under this section in respect of that person's liability to another person has the same rights of contribution or indemnity in relation to that sum as that person would have had if – (a) section 14(4A) did not apply; and (b) that sum were damages to which the Wrongs Act 1954 applied. (5) Notwithstanding anything in the foregoing provisions of this section, where, in respect of any liability to which this section applies, the Board has recovered any sum by way of contribution or indemnity the amount otherwise recoverable by the Board under this section from the person by whom the liability was incurred is reduced by the amount so recovered by way of contribution or indemnity, and the rights of contribution or indemnity referred to in subsection (4) shall be deemed to have been discharged to the extent that they have been discharged by payments to the Board pursuant to section 14 (4A) . 19. Special provisions as to motor vehicles registered outside State (1) The provisions of Schedule 2 have effect in relation to the liabilities incurred by a person as an owner or user of a permitted out-of-State vehicle in respect of which a third party insurance policy is in force; and, in relation to those liabilities, this Part has effect subject to the provisions of that Schedule. (1A) For the purposes of subsection (1) , an owner includes a person registered in another jurisdiction as the registered owner or registered operator of the permitted out-of-State vehicle. (2) . . . . . . . . 20. Liability of Board in respect of use of motor vehicles outside the State (1) Subject to this section, and except as may otherwise be prescribed, the payment and acceptance of a premium that, under Part V , affords cover for any period in respect of a motor vehicle registered in this State has effect as a compulsory third party insurance policy in force during that period in respect of that vehicle while it is being used in any jurisdiction outside the State that is prescribed as a jurisdiction to which this section applies. (2) In relation to the use of a motor vehicle in a jurisdiction to which this section applies the compulsory third party insurance policy referred to in subsection (1) is the third party insurance policy required to be entered into under the laws of that jurisdiction in respect of that motor vehicle while it is being used on public roads or streets in that jurisdiction. (3) A third party insurance policy referred to in subsection (1) shall be deemed to contain, and to be subject to, such terms and conditions (including conditions as to the avoidance of liabilities under, or the cancellation of, the policy) as may be prescribed, but, notwithstanding anything in the foregoing provisions of this subsection, the policy has effect subject to, and in accordance with, the laws of the jurisdiction referred to in that subsection in which the motor vehicle is being used. 21. Duties of registered operator, &c. (1) As soon as practicable after a motor accident, or as soon as practicable after a motor accident comes to his or her knowledge, the registered operator or the driver of any motor vehicle involved in the accident must notify the Board of – (a) the fact of the accident; and (b) the time and place at which it occurred; and (c) full particulars of the circumstances of the accident, so far as they are known to, or can be ascertained by, the registered operator or driver; and (d) the name and address of any person killed or injured in the accident, and of any witness to the accident, so far as is known to the registered operator or driver. (2) In any proceedings for an offence under subsection (1) , a certificate – (a) purporting to be signed by an employee of the Board authorised by the Board to sign it; and (b) certifying that, in respect of a specified motor accident, the Board was not given notice of the matters referred to in subsection