Motor Vehicles (Third Party Insurance) Act 1942 (NSW)

Motor Vehicles (Third Party Insurance) Act 1942 No 15 An Act to require that owners and drivers of motor vehicles shall be insured against liability in respect of the death of or bodily injury to persons caused by or arising out of the use of motor vehicles; to make certain provisions with respect to the discharge of any such liability; to amend the Transport Act 1930, the Compensation to Relatives Act 1897 and certain other Acts; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act This Act may be cited as the Motor Vehicles (Third Party Insurance) Act 1942. 2 Commencement (1) This Part shall commence on the day upon which the assent of His Majesty to this Act is signified. (2) Subject to subsection (1) this Act shall commence upon such date or dates as may be appointed and notified pursuant to subsection (3). (3) The Governor may, from time to time, appoint and notify by proclamation published in the Gazette the date upon which any Part or provision of this Act specified in the proclamation shall commence and may appoint and notify different dates for different Parts or provisions (whether contained in the same Part or section or in different Parts or sections) and the Part or provision so specified shall commence accordingly. 3 Application of Act This Act applies to and in respect of: (a) the registration or renewal of registration of a motor vehicle effected or required to be effected before 1 July 1987, (b) the issue of a trader's plate before 1 July 1987, (c) the use of a motor vehicle before 1 July 1987, and (d) the death of or bodily injury to a person arising out of the use, before 1 July 1987, of a motor vehicle. 4 (Repealed) 5 Interpretation (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: Bodily injury includes, in relation to a person, damage to the person's crutches, artificial members, eyes or teeth, other artificial aids or spectacle glasses. Commissioner means the Commissioner for Motor Transport. Driver includes the rider of a motor cycle and any person for the time being in charge of any motor vehicle, and driving has a corresponding meaning. Government Insurance Office means the Government Insurance Office of New South Wales established under the Government Insurance Act 1927. Insured motor vehicle means a motor vehicle in relation to which there is in force at all material times a third-party policy. Motor vehicle means any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, or by any means other than human or animal power, and includes a trailer, but does not include any vehicle used on a railway or tramway or any vehicle which is owned by the Commonwealth or by any person or body of persons representing the Commonwealth. Owner when used with reference to a motor vehicle means: (a) in a case where a trader's plate is affixed to the motor vehicle—the trader to whom such trader's plate is in issue, (b) in any other case: (i) where the motor vehicle is registered—the person in whose name the motor vehicle is registered except where such person has sold or ceased to have possession of the motor vehicle within the meaning of section 21, (ii) where the motor vehicle is unregistered, or where the motor vehicle is registered but the person in whose name the motor vehicle is registered has sold or ceased to have possession of the motor vehicle within the meaning of section 21—any person who solely or jointly or in common with any other person is entitled to the immediate possession of the motor vehicle. Public street means: (a) any street, road, lane, thoroughfare, footpath, or place open to or used by the public, and includes any place at the time open to or used by the public on the payment of money or otherwise, or (b) a recreation vehicle area within the meaning of the Recreation Vehicles Act 1983. Registered means: (a) registered under the Motor Traffic Act 1909, the Transport Act 1930 or the Recreation Vehicles Act 1983, or (b) registered in New South Wales under the Interstate Road Transport Act 1985 of the Commonwealth. Regulations means regulations made under this Act. Transport Accidents Compensation Fund means the Fund established under section 15 of the Transport Accidents Compensation Act 1987 and continued in accordance with Part 10 of the Motor Accidents Act 1988. Third-party policy means a policy of insurance which complies with the requirements of this Act. This Act includes the regulations. Trader's plate means a special number plate issued to a manufacturer or repairer of or dealer in motor vehicles in accordance with the regulations under the Motor Traffic Act 1909. Uninsured motor vehicle means: (a) a motor vehicle (not being a motor vehicle in respect of which persons are exempted by or under this Act from the provisions of section 7 (1)) which is not an insured motor vehicle, or (b) a motor vehicle which, under section 10 (6), is deemed to be an uninsured motor vehicle. (2) In the application of any provision of this Act to and in respect of a motor vehicle to which a trader's plate is affixed, a reference in such provision to the owner shall be construed as a reference to the trader, and a reference to the third-party policy in relation to that motor vehicle shall be construed as a reference to the third-party policy in relation to motor vehicles to which the trader's plate is affixed. (3) Where in any provision of this Act reference is made to the issue of a third-party policy such reference shall extend to and include the issue of a renewal of the third-party policy. (4) (Repealed) 6 Administration (1) Subject to the control of the Minister this Act shall be administered in the Department of Motor Transport by the Commissioner. (2) (Repealed) 6A Scheme (1) The provisions of this Act relating to third-party policies shall constitute a scheme to be known as the "Department of Motor Transport Third Party Insurance Scheme". (2) The Government Insurance Office shall be the manager of the Department of Motor Transport Third Party Insurance Scheme. Part 2 Third parties Division 1 Insurance 7 Uninsured motor vehicle not to be driven on a public street (1) Any person who uses or causes, permits or suffers any other person to use an uninsured motor vehicle upon a public street shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding 5 penalty units. (2), (3) (Repealed) (4) It shall be a sufficient defence in any proceedings for a contravention of subsection (1) if the defendant proves to the satisfaction of the court that at the time the vehicle was used upon the public street the defendant had reasonable grounds for believing and did in fact believe that the motor vehicle was an insured motor vehicle. 8 Conditions relative to registration of motor vehicles, issue of traders' plates etc (1) Registration or renewal of registration of a motor vehicle shall not be granted unless and until there is lodged with the Commissioner: (a) (Repealed) (b) the appropriate amount of insurance premium in respect of the insurance under a third-party policy with the Government Insurance Office of the motor vehicle for a period commencing on the date of commencement and terminating on the date of expiration of the registration or renewal of registration. (2) A trader's plate shall not be issued (except under the circumstances mentioned in subsection (3)) unless and until there is lodged with the Commissioner: (a) (Repealed) (b) the appropriate amount of insurance premium in respect of the insurance under a third-party policy with the Government Insurance Office of motor vehicles to which such trader's plate is affixed at any time whilst it is in issue. (3) Where a third-party policy in relation to motor vehicles to which a trader's plate is affixed is expressed to terminate upon a certain date and before such date the Commissioner issues in lieu of such trader's plate and for a period expiring upon such date, another trader's plate, such third-party policy shall enure in relation to motor vehicles to which such other trader's plate is affixed. 9 Issue of third-party policy (1) (Repealed) (2) Upon lodgment under section 8 (1) (b) of the appropriate amount of insurance premium, the Government Insurance Office shall be deemed to have been nominated as the insurer of the motor vehicle in respect of which such amount was lodged and to have issued a third-party policy, duly stamped within the meaning of the Stamp Duties Act 1920, in relation to such motor vehicle. (2A) For the purposes of this Act, a policy referred to in subsection (2) shall be deemed to be expressed: (a) to commence on the date of commencement of the registration or renewal of registration or the date of lodgment of the amount referred to in that subsection, whichever is the later, and (b) to terminate on the date of expiration of the registration or renewal of registration. (3) Upon lodgment under section 8 (2) (b) of the appropriate amount of insurance premium, the Government Insurance Office shall be deemed to have been nominated as the insurer of motor vehicles to which the trader's plate, specified in the receipt for payment of such amount, is affixed and to have issued a third-party policy, duly stamped within the meaning of the Stamp Duties Act 1920, in relation to such motor vehicles. (3A) For the purposes of this Act, a policy referred to in subsection (3) shall be deemed to be expressed: (a) to commence on the date of commencement shown in such receipt or the date of lodgment of the amount referred to in that subsection whichever is the later, and (b) to terminate on the date of expiration shown in such receipt. (4) Where a third-party policy is deemed to be issued pursuant to subsection (2) or (3) it shall not, for the purposes of this or any other Act, be necessary for the Government Insurance Office to make out, execute or issue a third-party policy. (5) The Commissioner shall, at such times as may be agreed upon by the Commissioner and the Government Insurance Office, pay any amount of insurance premium lodged with the Commissioner in accordance with section 8 (1) (b) or (2) (b) to the Government Insurance Office. (6) (Repealed) 10 Third-party policy (1) In order to comply with the requirements of this Act a policy of insurance: (a) must be issued by the Government Insurance Office, and (b) (i) where such policy is issued in relation to a particular motor vehicle must insure the owner of the motor vehicle mentioned in the policy and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally, against all liability incurred by that owner and that person jointly or by either of them severally, in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle in New South Wales and in such other parts (if any) of the Commonwealth of Australia as may be prescribed, or (ii) where such policy is issued in relation to motor vehicles to which a trader's plate is affixed must insure the trader to whom the trader's plate mentioned in the policy is in issue and any other person who at any time drives a motor vehicle to which such trader's plate is affixed (whether the vehicle is so driven or the trader's plate is so affixed with or without the authority of the trader) jointly and each of them severally, against all liability incurred by that trader and that person jointly or by either of them severally, in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle to which the trader's plate is so affixed, in New South Wales and in such other parts (if any) of the Commonwealth of Australia as may be prescribed, and (c) must be in the prescribed form. (2) A third-party policy shall not extend to insure the owner or driver of the motor vehicle against: (a) a liability to pay compensation under the Workers' Compensation Act 1926 to a worker employed by the owner or driver, as the case may be, (b) a liability which may be incurred by the owner or driver, as the case may be, under an agreement unless the liability is one which would have arisen in the absence of such agreement. (3) A policy of insurance which complies with the matters referred to in subsection (1) (a) and (b) shall not be prevented from being a third-party policy merely by reason of the fact that it contains any term, condition or warranty not contained in the prescribed form, but any such term, condition or warranty shall be void and of no effect. (4) Where the death of or bodily injury to any person is caused by or arises out of the use of an insured motor vehicle whilst a trader's plate is affixed to such motor vehicle, the third-party policy in relation to motor vehicles to which such trader's plate is affixed shall (to the exclusion of the third-party policy in relation to the particular motor vehicle) be the policy under which, in respect of such death or bodily injury, any person whom such policy purports to insure is insured. (5) A third-party policy issued by the Government Insurance Office in relation to a motor vehicle or in relation to motor vehicles to which a trader's plate is affixed shall commence on the date on which it is expressed to commence and, unless it is sooner cancelled pursuant to this Act, shall continue in force: (a) in a case where the Government Insurance Office notifies the Commissioner, at least 30 days before the date on which the policy is expressed to terminate, that it will not renew the policy—until such date, (b) in a case, not provided for in paragraph (a), where another third-party policy issued by the Government Insurance Office in relation to that motor vehicle or in relation to motor vehicles to which that trader's plate is affixed commences during the period of 15 days next following the date on which such first-mentioned policy is expressed to terminate—until such commencement, (c) in any other case—until 15 days after the date on which it is expressed to terminate or the last day of the month in which that date occurs, whichever is the later. (6) Where the Government Insurance Office issues a renewal of a third-party policy in relation to a motor vehicle for a period expressed to terminate upon the date of expiration of a renewal of the registration of the motor vehicle: (a) the insurance premium shall be payable as if such renewal of the policy were expressed to commence from the date of commencement of the renewal of registration whether or not the renewal of the policy is so expressed, (b) the Government Insurance Office shall not be liable under the renewal of the policy in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle during the period (if any) between the date from which the renewal of the policy is expressed to commence and the date of payment of the amount of insurance premium in respect of the renewal of the policy. (6A) While the Government Insurance Office is exempted under subsection (6) (b) from liability in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle, and no third-party policy is in force in relation to the motor vehicle whether by reason of the operation of subsection (5) or otherwise, such motor vehicle shall, for the purposes of this Act, be deemed to be an uninsured motor vehicle. (7) Notwithstanding anything in any enactment other than this Act or any rule of law the Government Insurance Office in issuing a third-party policy shall, in respect of any liability in respect of the death of or bodily injury to any person which the third-party policy purports to cover in the case of the owner of the insured motor vehicle or any other person, be liable to indemnify such owner or person. (8) Every third-party policy shall to the extent of the insurance effected by that policy: (a) extend and as from the commencement of the Law Reform (Miscellaneous Provisions) Act 1944 be deemed to have extended, in any case where the insured person is dead, to indemnify the insured person's estate against: (i) liability arising under any cause of action which, by virtue of section 2 of that Act survives against the insured person's estate, (ii) liability arising by operation of section 2 (4) of that Act, (b) extend and as from the commencement of the Law Reform (Miscellaneous Provisions) Act 1946, be deemed to have extended to indemnify the insured person or in any case where the insured person is dead, to indemnify the insured person's estate against: (i) liability arising where the insured person or, as the case may be, the insured person's estate has in any proceedings been joined as an alternative defendant, (ii) liability arising where the insured person or, as the case may be, the insured person's estate has served or has been served with a notice in writing under section 3 (1) of that Act, (iii) liability arising where the insured person or, as the case may be, the insured person's estate claims contribution from some other person as a joint tort-feasor or has a claim made against the insured person or the insured person's estate, as the case may be, as a joint tort-feasor. (9) In subsection (8), insured person means a person who is insured against liability in respect of the death of or bodily injury to any other person caused by or arising out of the use of a motor vehicle under: (a) a third-party policy, or (b) a policy of insurance complying with the provisions of any statute which is in force in any prescribed part of the Commonwealth of Australia (other than this State) and which requires the owner or driver of a motor vehicle to be insured against liability in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle. 11 (Repealed) 12 Cancellation of third-party policy (1) (a) A third-party policy may be cancelled by the Government Insurance Office if another third-party policy is in force in relation to the same motor vehicle or in relation to motor vehicles to which the same trader's plate is affixed, and such other policy is expressed to terminate not earlier than the date upon which the first-mentioned policy was expressed to terminate. (b) Where the Government Insurance Office cancels a third-party policy under this subsection it shall forthwith notify the Commissioner of the fact. (2) Where the registration of an insured motor vehicle is cancelled by the Commissioner, or a trader's plate is delivered to the Commissioner, before the date on which the third-party policy is expressed to terminate, the Government Insurance Office shall, upon application by the owner of the motor vehicle or the trader, as the case may be, but subject to any conditions which may be prescribed by the regulations, cancel such policy. (3) Where the Commissioner refuses the renewal of or cancels the registration of an insured motor vehicle on the ground that the vehicle or its parts or equipment is not in a thoroughly serviceable condition or does not comply with requirements prescribed by or under the Motor Traffic Act 1909 or the Recreation Vehicles Act 1983, the Commissioner shall forthwith give to the Government Insurance Office a notice in writing of such cancellation or refusal. (4) (a) In any case not provided for in subsection (1) or subsection (2), a third-party policy may be cancelled by the Government Insurance Office after a notice specifying a date, not being earlier than 30 days after service of the notice, upon which the Government Insurance Office proposes to cancel such policy has been served on the Commissioner and (except where the owner of the motor vehicle or the trader has applied to the Government Insurance Office for cancellation of the policy) on the owner of the motor vehicle or the trader, as the case may be. (b) Where an appeal is lodged on or before the date specified in the notice, the third-party policy shall not be cancelled unless and until the proposed cancellation is confirmed by the court or the appeal is for any reason dismissed. (c) Where the Government Insurance Office cancels a third-party policy under this subsection it shall forthwith notify the Commissioner of the fact. (5) Whilst the registration of a motor vehicle is current or a trader's plate is in issue the Government Insurance Office shall not (whether upon application by the owner of the motor vehicle or the trader, or otherwise) cancel the third-party policy except: (a) under the circumstances and subject to the conditions prescribed by or under this section, or (b) under such other circumstances and subject to such conditions as may be prescribed by the regulations. (6) The cancellation of any third-party policy shall not exempt the Government Insurance Office from any liability, whether under the policy or under this Act, accrued or incurred before such cancellation. 13 Appeal against refusal to issue or against cancellation of policy (1) Where the Government Insurance Office refuses to issue to any person a third-party policy or gives notice of intention to cancel a third-party policy issued to any person there shall be a right of appeal to the District Court or the Local Court. (2) Any such appeal shall be in the nature of a rehearing and where made to the District Court shall be made in accordance with rules of court and when made to the Local Court shall be made in accordance with regulations made in that behalf. (3) On any such appeal the court may make such order as it thinks fit, having regard to the merits of the case and the public welfare. (3A) Without prejudice to the generality of the power conferred by subsection (3) the court may direct that the third-party policy be issued upon payment of a premium at the amount specified in the order or that the notice of intended cancellation of a policy be withdrawn upon payment of an additional amount to be specified in the order by way of premium. (4) (a) If any party to any such appeal made to the District Court is dissatisfied with the ruling, order, direction or decision of the District Court in point of law or upon the admission or rejection of evidence such party may appeal from the same to the Supreme Court. (b) If any party to any such appeal made to the Local Court is dissatisfied with the determination or order of the Local Court such party may appeal from the same under and in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001, and the provisions of that Part shall, mutatis mutandis, apply to and in respect of such appeal as if the same were an appeal from a determination or order of a justice or justices. 14 Making of claims—identified motor vehicles (1) Every claim for damages in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle, the identity of which is established and which, at the time the circumstances resulting in the death or bodily injury occurred, was: (a) in the case of an insured motor vehicle, being used in any place, whether within New South Wales or otherwise, or (b) in the case of an uninsured motor vehicle, being used on any public street in New South Wales, being a claim which, but for this section, could be made against the owner or driver of the motor vehicle, shall be made against the Government Insurance Office and any proceedings to enforce any such claim for damages shall be taken against the Government Insurance Office and not against the owner or driver of the motor vehicle. (2) A claim referred to in subsection (1) may be made and proceedings so referred to may be taken notwithstanding that the owner or driver of the motor vehicle is dead or cannot be found or is the spouse of the person whose death or to whom bodily injury has been caused. (3) In respect of a claim referred to in subsection (1), the Government Insurance Office shall, except as provided by section 14D, be liable as if it were the owner or driver of the motor vehicle in relation to which the claim is made. (4) Where, in relation to the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle, a claim lies against an insurer, otherwise than under a third-party policy, nothing in this section or section 14D limits or otherwise affects the making of any such claim or prevents the recovery of any contribution by the Government Insurance Office as the insurer under the third-party policy from any other insurer. (5) Nothing in this section affects the liability of a driver referred to in section 17. (6) Subsection (1) (as inserted by the Motor Vehicles (Third Party Insurance) Amendment Act 1984) does not apply, and is taken never to have applied, to a claim for damages in respect of the death of or bodily injury to an employee if: (a) the death or injury arises out of or in the course of the employment of the employee, and (b) the claim is made by or in relation to the employee and against the employer (in the capacity of employer). Subsection (4) extends to a claim to which this subsection applies. (7) Subsection (6) (and the amendment made to section 35A by the Motor Vehicles (Third Party Insurance) Amendment Act 1993): (a) do not affect the order made by the Court of Appeal in Nikolovsky v GIO and Anor of 11 September 1992 or any other order of a court made before the commencement of subsection (6), and (b) do not prevent the continuation of any pending proceedings, namely, proceedings brought (but not finally disposed of) before the commencement of subsection (6). Proceedings against the employer (as referred to in subsection (6)) may be brought instead of, or in addition to, any such pending proceedings against the Government Insurance Office, despite any restriction in the Limitation Act 1969. 14A Making of claims—unidentified motor vehicles (1) Where the death of or bodily injury to any person is caused by or arises out of the use of a motor vehicle upon a public street in New South Wales but the identity of the motor vehicle cannot after due inquiry and search be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or bodily injury may enforce against the Government Insurance Office the claim which the secondmentioned person could have enforced against the owner or driver of the motor vehicle. (2) The inquiry and search referred to in subsection (1) may be proved orally or by the affidavit of the person who made the inquiry and search. 14B Exclusion of certain claims Nothing in section 14 or 14A entitles a person to make a claim for damages in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle which, at the time the circumstances resulting in the death or bodily injury occurred, was registered pursuant to the law of a place other than New South Wales unless the motor vehicle was so registered under the Interstate Road Transport Act 1985 of the Commonwealth and there was in force in respect of that vehicle a third-party policy issued by the Government Insurance Office. 14C Service of documents on the GIO A document required or authorised by this Act or any other law to be delivered to or served upon the Government Insurance Office in respect of a claim under section 14 or 14A shall be sufficiently delivered or served if delivered to, or sent by post in a prepaid letter addressed to, the Government Insurance Office at an address prescribed for the purposes of this section. 14D Payment of claims The Government Insurance Office shall not be personally liable to pay any amount payable in satisfaction of any claim made under section 14 or 14A, any judgment recovered against it or the amount of any costs or expenses incurred by it in relation to any such claim or to the proceedings in which the judgment was obtained, but every such amount shall be paid by the Government Insurance Office out of the Transport Accidents Compensation Fund. 14E Joint hearing of certain proceedings (1) Where 2 or more proceedings have been commenced against the Government Insurance Office by persons who would, but for section 14, be parties to the same proceedings or could, but for section 14, be joined as parties to the same proceedings, a court before which those proceedings or any of those proceedings have been commenced shall, on the application of the Government Insurance Office, order that those proceedings be heard at the same time. (2) Where proceedings referred to in subsection (1) have been commenced in different courts, the court to which an application under that subsection is made shall, when making an order under subsection (1), order that the proceedings not commenced in that court be transferred to it. (3) Where, in relation to proceedings which have been transferred from the District Court of New South Wales to the Supreme Court of New South Wales in accordance with an order under subsection (2): (a) an order for costs is made against the plaintiff, the plaintiff shall pay those costs assessed as if those proceedings had been conducted in the District Court, or (b) an order for costs is made against the Government Insurance Office, the Government Insurance Office shall pay those costs assessed: (i) in accordance with the rules of the Supreme Court, or (ii) as if those proceedings had been conducted in the District Court, whichever assessment is the higher. (4) Notwithstanding subsections (1) and (2), a court, in relation to an application under subsection (1), may refuse to make an order referred to in those subsections, or may make any other order, if the court is of the opinion that, in the interests of justice, it is desirable to do so. 15, 16 (Repealed) 17 Right of Government Insurance Office against unauthorised drivers Where the death of or bodily injury to any person is caused by or arises out of the use of an insured motor vehicle and that motor vehicle was at the time of the occurrence out of which such death or injury arose driven by a person without the authority of the owner or without reasonable grounds for believing that the driver had the authority of the owner, then: (a) such driver shall not be entitled to recover from the Government Insurance Office any sum on account of any moneys (including costs) paid or payable by such driver in respect of the driver's liability in respect of such death or bodily injury, but any amount necessary to satisfy such liability shall be paid by the Government Insurance Office to the person to whom the liability was incurred, and (b) any sum properly paid by the Government Insurance Office in or towards the discharge of the liability of any person in respect of such death or bodily injury shall be recoverable by the Government Insurance Office from such driver. 18 Government Insurance Office may take over proceedings etc (1) The Government Insurance Office: (a) may undertake the settlement of any claim against any person in respect of a liability against which that person is insured under the th