Sporting Injuries Insurance Act 1978 (NSW)

Sporting Injuries Insurance Act 1978 No 141 An Act to establish a scheme for the payment of benefits in respect of deaths and certain injuries suffered by persons participating in certain sporting or recreational activities; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Sporting Injuries Insurance Act 1978. 2 Commencement (1) Section 1, Part 2, Part 6 (other than section 36), Schedule 2 and this section shall commence on the date of assent to this Act. (2) Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 Notes Notes included in this Act do not form part of this Act. 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— authorised activity, in relation to a prescribed organisation, means an activity of a kind that is— (a) specified in relation to the organisation in the rules, or (b) pursuant to the rules, deemed to be an authorised activity in relation to the organisation. Authority means the Sporting Injuries Compensation Authority constituted under this Act. chief executive means the chief executive of the Authority appointed under this Act. compensable injury means an injury in respect of which an amount of money is prescribed in Schedule 1. Court means the District Court of New South Wales established under the District Court Act 1973. Department means the Office of Sport. enrolled participant, in relation to the Department, means a person who, in accordance with the rules or a determination made under the rules, is to be treated as an enrolled participant of the Department for the purposes of this Act. enrolled student participant, in relation to a school, means a person who, in accordance with the rules or a determination made under the rules, is to be treated as an enrolled student participant of the school for the purposes of this Act. function includes power, authority and duty. Fund means the Sporting Injuries Fund established under section 11 (1). injury means personal injury arising out of or in the course of an authorised activity of a prescribed organisation, and includes a disease— (a) contracted in the course of any such activity, and (b) to which the activity was a contributing factor, but does not include the aggravation, acceleration, exacerbation of, or deterioration resulting from, a disease. medical panel means a medical panel appointed under section 6 (4). perform, in relation to a function that is a power or an authority, means exercise the power or authority and, in relation to a duty, means discharge the duty. prescribed organisation means a sporting organisation, a school or the Department. referee means a person who is a referee under section 6 (1) or (2). registered participant, in relation to a sporting organisation, means a person who, in accordance with the rules or a determination made under the rules, is to be treated as a registered participant of the organisation for the purposes of this Act. regulations means regulations made under this Act. rules means rules made under this Act. school means a government school or a registered non-government school under the Education Act 1990. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. sexual organs means genitals and, in the case of a woman, includes breasts. sporting organisation means an individual, a body corporate or an unincorporated association declared under section 5 (1) to be a sporting organisation for the purposes of this Act. Supplementary Fund means the Supplementary Sporting Injuries Fund established under section 11A (1). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) A reference in this Act to an authorised activity— (a) in relation to a sporting organisation, does not include a reference to an activity of a kind that is not, or is not carried on in connection with, or is not related to, a sporting or athletic activity in respect of which the organisation is for the time being declared under section 5, and (b) in relation to the Department, does not include a reference to an activity for the participation in which no fee is payable to the Department. (1B) Where an authorised activity of a sporting organisation is also an authorised activity of a school or of the Department, a person— (a) who is participating in the activity as a registered participant of the organisation, and (b) who, if this subsection had not been enacted, would also be participating in the activity as an enrolled student participant of the school, as an enrolled participant of the Department, or as both, shall, for the purposes of this Act, be deemed not to be an enrolled student participant of the school or an enrolled participant of the Department while participating in the activity. (2) A reference in this Act to the due day for payment of a premium is a reference to the day specified under section 17 (1) (a) (v) in a notice served under section 17 (1) on a sporting organisation and requiring payment of the premium. (3) Where a sporting organisation changes its name, any reference in— (a) an order made under section 5 (1), (b) a rule, or (c) a notice served on the organisation in accordance with section 34, to the former name of the organisation shall be read and construed as a reference to the name as changed by the organisation, but nothing in this subsection affects an entitlement to a benefit under this Act that would have arisen if this subsection had not been enacted. 5 Declaration of sporting organisations (1) An individual, a body corporate or an unincorporated association, who or which is concerned, directly or indirectly, in the regulation and conduct of any sporting or athletic activity or activities, may be declared, by an order made— (a) by the Minister, or (b) with the consent of the Minister, by the chief executive, to be a sporting organisation in respect of that activity or those activities. (2) Orders made under subsection (1) may declare more than one individual, body corporate or unincorporated association, or any 2 or more of any of them, to be sporting organisations in respect of the same sporting or athletic activity. (3) An order made under subsection (1) has effect when it is made and shall be published in the Gazette not later than 30 days after it has been made. 5A Insurance exemption for sporting organisations (1) The Authority may grant a sporting organisation an insurance exemption if satisfied that the organisation will have adequate private insurance for the period for which the exemption will be in force. (2) An insurance exemption operates as follows— (a) a premium is not payable under Part 4 by the sporting organisation in respect of the period for which the exemption is in force, (b) no benefits are payable under this Act in respect of an injury suffered by a registered participant of the sporting organisation, or in respect of the death of a person as a consequence of an injury suffered by the person as such a registered participant, during the period for which the exemption is in force, (c) the exemption does not affect the operation of paragraph (d) of the definition of worker in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of a registered participant of the organisation. (3) A sporting organisation has adequate private insurance for the period for which an insurance exemption will be in force if— (a) a policy of insurance provides for payment of benefits, or indemnification of the sporting organisation in connection with a liability to pay benefits, in respect of an injury suffered by a registered participant of the sporting organisation, or in respect of the death of a person as a consequence of an injury suffered by the person as such a registered participant, during the period for which the exemption will be in force, and (b) those benefits are of no lesser amount than the benefits that would be payable under this Act in respect of the injury or death, and (c) the insurer under the policy of insurance is a body corporate that is authorised to carry on insurance business under the Insurance Act 1973 of the Commonwealth. (4) An insurance exemption may be granted for a period of up to 12 months and may be granted by way of renewal or further renewal for a further period or further periods of up to 12 months. (5) On each occasion of the grant or renewal of an insurance exemption, there is payable by the sporting organisation a levy of 10% of the amount that the Authority determines to be the amount that would otherwise be determined for and payable by the organisation as premium under Part 4 in respect of the period for which the insurance exemption will be in force. (6) The levy is due and payable as required by a notice sent to the sporting organisation by the Authority. If the levy is not paid as required by the notice, the insurance exemption is of no effect while the levy remains unpaid. (7) A levy payable under this section is payable to the Authority for payment into the Fund. (8) The Authority must cancel an insurance exemption by notice in writing to the sporting organisation if the Authority is satisfied that the organisation does not or will not have adequate private insurance for any period for which the exemption is in force. (9) The Authority may cancel an insurance exemption by notice in writing to the sporting organisation for any other reason that the Authority considers sufficient. The Authority must first give the sporting organisation a reasonable opportunity to make written submissions to the Authority on the matter. 6 Appointment of referees and medical panels (1) A medical assessor under the Workplace Injury Management and Workers Compensation Act 1998 is taken to be a referee for the purposes of this Act and for that purpose has and may exercise all the functions of a medical assessor under that Act. (2) The Minister may appoint as referees for the purposes of this Act persons who the Minister considers are qualified to assess a person's loss of mental capacity. (3) A person may be appointed under subsection (2) whether or not the person is a legally qualified medical practitioner. (4) The chief executive may appoint 2 or more referees as a medical panel for the purposes of this Act. (5) Referees shall be entitled to such remuneration from the Fund as the Minister considers fit in respect of anything done pursuant to this Act by them. Part 2 Constitution and functions of Authority 7 Constitution of Authority (1) There is constituted by this Act a body corporate with the corporate name of the Sporting Injuries Compensation Authority. (2) The Authority is a NSW Government agency. Note— See section 13A of the Interpretation Act 1987. 7A Ministerial control The Authority is subject to the control and direction of the Minister in the exercise of its functions, except in relation to the contents of any advice, report or recommendation given to the Minister. 8 Authority's functions The Authority shall— (a) compile and maintain such statistics with respect to the incidence of injuries resulting from sporting or athletic activities as the Authority considers would assist it in the performance of the functions given to it by or under this or any other Act, (b) co-operate with organisations concerned in the regulation and conduct of sporting or athletic activities, the Department and the Department of Education for the purpose of initiating, developing, encouraging and implementing such policies as are likely to eliminate or reduce the incidence of injuries resulting from sporting or athletic activities, (c) when requested by the Minister to do so, examine and report to the Minister on the desirability of extending the scheme provided by this Act, and (d) perform such other functions as are given to it by or under this or any other Act. 9 Chief executive of Authority (1) The Minister is to appoint a person as the chief executive of the Authority. Note— Schedule 4A contains provisions relating to the chief executive of the Authority. (2) The affairs of the Authority are to be managed and controlled by the chief executive. (3) Any act, matter or thing done in the name of, or on behalf of, the Authority by the chief executive is taken to have been done by the Authority. 10 Delegation (1) The Authority may delegate to an authorised person any of the functions of the Authority (other than this power of delegation). (2) In this section— authorised person means any of the following— (a) a member of staff of Insurance and Care NSW, (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. Part 3 Financial provisions 11 Establishment of Sporting Injuries Fund (1) The Authority shall establish, administer and control a fund, to be called the "Sporting Injuries Fund". (2) The Fund comprises the following— (a) all money paid to the Authority under section 5A or Part 4, (b) all other assets of the Authority, including gifts made to it and investments made by it under section 12 with respect to money forming part of the Fund. (3) There shall be paid from the Fund— (a) the costs of administering this Act in so far as those costs relate to registered participants and sporting organisations, including the cost of meeting any claims made by or with respect to registered participants for benefits under this Act, (a1) to the Minister administering the District Court Act 1973, such of the costs of operation of the District Court relating to the determination of applications under section 29, being costs incurred after 30 June 2005, as the Minister administering the District Court Act 1973 and the Minister administering this Act agree are to be paid from the Fund, (a2) all payments required to meet expenditure incurred by or on behalf of a NSW Government agency in providing services (including staff and facilities) for or in connection with the insurance scheme established under this Act, (a3) all payments (approved by the Minister administering Part 3 of the State Insurance and Care Governance Act 2015) required to meet expenditure incurred by the State Insurance Regulatory Authority in exercising functions in connection with the insurance scheme established under this Act, (b) any money required to repay any borrowing by the Authority under this Act for the purposes of the Fund, (c) such grants for clinical and research work and other activities associated with the prevention and treatment of injuries that result from sporting or athletic activities as the Authority, with the approval of the Minister, may make, and (d) (Repealed) (4) (Repealed) 11A Establishment of Supplementary Sporting Injuries Fund (1) The Self Insurance Corporation shall establish, administer and control a fund, to be called the "Supplementary Sporting Injuries Fund". (2) The Supplementary Fund shall be comprised of— (a) (Repealed) (b) all money paid to the Self Insurance Corporation from the Treasury pursuant to notices served under section 11B (2), (c) all money recovered by the Self Insurance Corporation pursuant to section 35A, (d) gifts made to the Self Insurance Corporation for the purposes of the Supplementary Fund, and (e) investments made by the Self Insurance Corporation under section 12 with respect to money forming part of the Supplementary Fund. (3) There is to be paid from the Supplementary Fund the costs of administering this Act in so far as those costs relate to enrolled student participants of schools and enrolled participants of the Department, including the cost of meeting any claims made by or with respect to enrolled student participants and enrolled participants for benefits under this Act. (4) The Self Insurance Corporation is to ensure that the money in the Supplementary Fund is sufficient to meet the liabilities that are or may be required to be met from time to time by the Supplementary Fund. (5), (6) (Repealed) 11B Recoupment to Supplementary Fund (1) In this section, quarter means any of the following successive periods of 3 months— (a) January, February and March, (b) April, May and June, (c) July, August and September, (d) October, November and December. (2) Forthwith after the conclusion of each quarter, the Self Insurance Corporation shall serve on the Secretary and Comptroller of Accounts, the Treasury, a notice requiring payment to the Self Insurance Corporation of the amount, if any, required to be specified in the notice in relation to the quarter by subsection (3). (3) The amount required to be specified in a notice served under subsection (2) in relation to a quarter is the sum of— (a) the total of the amounts of all benefits paid by the Self Insurance Corporation out of the Supplementary Fund during the quarter, other than any such amount included in a notice served under subsection (2) in relation to a preceding quarter, (b) the total of the amounts of all benefits determined by the Self Insurance Corporation in the quarter to which the notice relates to be payable by the Self Insurance Corporation after the expiration of the quarter to which the notice relates, and (c) the costs, estimated by the Self Insurance Corporation, of administering the Supplementary Fund during the quarter to which the notice relates in so far as those costs relate to enrolled student participants of schools and enrolled participants of the Department, reduced by the amounts, if any, recovered by the Self Insurance Corporation pursuant to section 35A during the quarter to which the notice relates. 12 Investment (1) The Authority may invest money in the Fund that is not immediately required for the Fund— (a) if the Authority is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Authority is permitted to invest money under that Part, or (b) if the Authority is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer. (2) The Self Insurance Corporation may invest money in the Supplementary Fund that is not immediately required for the Supplementary Fund— (a) if the Self Insurance Corporation is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Self Insurance Corporation is permitted to invest money under that Part, or (b) if the Self Insurance Corporation is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister administering the NSW Self Insurance Corporation Act 2004 with the concurrence of the Treasurer. 13–15 (Repealed) Part 4 Premiums 16 Determination of premiums (1) The Authority shall, from time to time, determine premiums for each sporting organisation. (2) The Authority shall, under subsection (1), determine premiums for a sporting organisation which to it seem equitable, taking into account— (a) the nature of the organisation's authorised activities or authorised activity in relation to which each of the premiums is being determined, (b) the period with respect to which each of the premiums will be required to be paid, (c) any adjustment which it considers should be made by reason of— (i) the amounts of the previous premiums, if any, paid by the organisation, and (ii) any amount that has been paid pursuant to, or that is, or in the opinion of the Authority will be, required to be paid by, an adjustment notice served on the organisation under section 18A (2), and (d) such other criteria as the Authority considers appropriate. (2A) Any determination with respect to premiums for payment to the Sporting Injuries Fund has no effect unless it is approved by the State Insurance Regulatory Authority. (3) The Authority may determine a uniform amount to be paid in respect of every person it estimates will participate as a registered participant in the authorised activities of a sporting organisation during a particular period and determine the premium for the sporting organisation in respect of that period as the total of the amounts to be paid by all of those persons or calculate the premium in any other manner it considers appropriate. (4) Notwithstanding subsections (2) and (3), the Authority shall, when discharging its duty under subsection (1), so determine premiums that those premiums and the income of the Fund are sufficient to meet the liabilities that are or may be required to be met from time to time by the Fund. 17 Notice to pay premium (1) Where the Authority has determined a premium for a sporting organisation, it shall serve on the organisation a notice— (a) setting forth— (i) the name of the sporting organisation, (ii) the amount of the premium and particulars of the calculation pursuant to which the premium was determined, (iii) the authorised activity or authorised activities of the organisation to which the premium relates, (iv) the period with respect to which the premium is payable, and (v) the day on or before which the premium should be paid, being a day occurring not less than 21 days after the date on which the notice is served and occurring before the expiration of the period specified in the notice pursuant to subparagraph (iv), and (b) requiring the organisation to pay the premium to the Authority on or before the due day for payment of the premium at the place specified in the notice. (2) Where, after the Authority has served a notice on a sporting organisation under subsection (1) specifying the due day for payment of a premium determined for the organisation, the Authority considers that the premium should be reduced for any reason, the Authority may, before that due day, serve on the organisation a notice under this subsection specifying that the premium required to be paid by the former notice shall be the reduced premium specified in the notice served under this subsection, instead of the premium specified in the former notice. (3) A notice served under subsection (2) on a sporting organisation shall have effect according to its tenor. 18 Failure of organisation to pay premiums (1) Where any premium required by a notice served on a sporting organisation under section 17 (1) to be paid to the Authority on or before the due day for payment of the premium has not been paid to the Authority on or before 30 June next following that due day, then, while it is unpaid, paragraph (d) of the definition of worker in section 4 (1) of the Workplace Injury Management and Workers Compensation Act 1998, as in force for the time being, does not apply and shall be deemed not to have applied to or in respect of any person who, but for that paragraph, would be a worker within the meaning of that Act while he or she is, or was at any time during the year commencing with 1 July immediately preceding that 30 June and ending with that 30 June, participating in any authorised activity of the organisation or doing anything that, although not such an authorised activity, is or was done in connection with, or related to, such an authorised activity, and the organisation shall be deemed to be, or to have been, his or her employer at that time, as the case may require. (2) Where any premium required by a notice served on a sporting organisation under section 17 (1) to be paid to the Authority on or before the due day for payment of the premium is unpaid, a person who suffers an injury while participating in an authorised activity of the organisation during the period specified in the notice as the period with respect to which the premium is payable is not, for the purposes of section 19 (1) or (2) or 27 (1), a registered participant of the organisation until the premium is paid but, if the premium is paid before the end of that period, whether before, on or after that due day, any person who would, if this subsection had not been enacted, have been a registered participant of the organisation at a time occurring during that period but before payment of the amount shall, for the purposes of sections 19 (1) and (2) and 27 (1), be treated as if he or she had been a registered participant of the organisation at that time. 18A Adjustment of certain premiums (1) In this section— adjustment notice means a notice served on a sporting organisation under subsection (2). prescribed variable means— (a) the number of— (i) registered participants, (ii) teams or crews of registered participants, (iii) vehicles ridden or driven by registered participants, or (iv) vessels driven or sailed by registered participants, who or which will participate in authorised activities of sporting organisations, or (b) any other variable prescribed by the regulations for the purposes of this definition. (2) If, after the due day for payment of a premium specified in a notice served on a sporting organisation under section 17 (1), the Authority has reasonable grounds to believe that the premium is less than it would have been if an estimate of the quantity of a prescribed variable— (a) used in the calculation pursuant to which the premium was determined, and (b) specified in that notice pursuant to section 17 (1) (a) (ii), had been accurate, the Authority may serve on the organisation a notice requiring it to pay the difference to the Authority. (3) An adjustment notice shall set forth— (a) particulars of the notice served under section 17 (1) specifying the premium to which the adjustment notice relates, (b) particulars of the manner in which the amount required to be paid by the adjustment notice is calculated, and (c) the day on or before which that amount is payable, being a day occurring not less than 10 days after the date on which the notice is served. (4) If the amount required to be paid by an adjustment notice is not paid on or before the day specified in the notice under subsection (3) (c) or within such further period as the Authority, by instrument in writing, may allow, the amount required by that notice to be paid by the sporting organisation thereupon becomes a debt recoverable, in any court of competent jurisdiction, by the Authority from the organisation or, where the organisation is— (a) a body corporate—from any person who was, when that notice was served on the body corporate, a director, within the meaning of the Corporations Act 2001 of the Commonwealth, of the body corporate, or (b) an unincorporated association—from any person who was, when that notice was served on the unincorporated association, a member of the governing body of that association. (5) Where, as a consequence of proceedings brought by the Authority under subsection (4) in respect of an unincorporated association, judgment for an amount is given by a court against a member of the governing body of the association, the court may make such orders as it thinks fit for recovery of the amount, or any part thereof, out of any money held by the member or by any person on behalf of, or in trust for, the association or its members or for the sale of any such property and for the recovery of the amount, or any part thereof, out of the proceeds of the sale. (6) Where a debt referred to in subsection (4) is recovered— (a) wholly or partly from the sporting organisation or under subsection (5), the liability imposed on any person under subsection (4) (a) or (b) is correspondingly reduced, or (b) from a person referred to in subsection (4) (a) or (b), that person is entitled to recover in any court of competent jurisdiction, as contribution from each of the other directors of the body corporate or members of the governing body of the unincorporated association, as the case may be, an amount equal to the dividend obtained by dividing the amount recovered by the number, at the time the adjustment notice was served, of directors of that body corporate or of members of the governing body of that association, as the case may be. 18B Repayments in certain cases Where an individual, a body corporate or an unincorporated association (in this section referred to as the former organisation) ceases to be a sporting organisation for the purposes of this Act— (a) during a period specified under section 17 (1) (a) (iv) in a notice served on the former organisation under section 17 (1) or after the expiration of the period so specified in the last notice so served, and (b) after payment to the Authority of the premium required to be paid by the notice or the last notice, as the case may be, the Authority may, if it considers it would be equitable to do so, repay from the Fund to the former organisation, if the former organisation continues to exist, an amount not exceeding the premium specified in that notice or that last notice. Part 5 Benefits 19 Applicants for benefits (1) A person who— (a) when the person is a registered participant of a sporting organisation, suffers a compensable injury, whether within or outside New South Wales, while participating in an authorised activity of the organisation, (b) when the person is an enrolled student participant of a school, suffers a compensable injury, whether within or outside New South Wales, while participating in an authorised activity of the school, or (c) when the person is an enrolled participant of the Department, suffers a compensable injury, whether within or outside New South Wales, while participating in an authorised activity of the Department, may apply to the Authority for a benefit under this Act. (2) Where a person dies as a consequence of an injury suffered by the person, whether within or outside New South Wales— (a) while participating in an authorised activity of a sporting organisation as a registered participant of the organisation, (b) while participating in an authorised activity of a school as an enrolled student participant of the school, or (c) while participating in an authorised activity of the Department as an enrolled participant of the Department, the legal personal representative of that person may apply to the Authority for a benefit under this Act. (3) This section has effect subject to sections 18 (2) and 20. 20 Certain applications prohibited (1) An application may not be made under section 19 unless— (a) before the application is made, notice of the injury to which it relates was given in accordance with the rules, or (b) the Authority considers that notice of the injury was not so given as a consequence of ignorance, mistake, absence from New South Wales, the nature of the injury to which the application relates or