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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Motor Vehicle Accidents (Lifetime Support Scheme)
Bill 2013
A BILL FOR
An Act to provide a scheme for the lifetime treatment, care and support of
persons catastrophically injured in motor vehicle accidents; to make related
amendments to the Civil
Liability Act 1936, the Motor
Accident Commission Act 1992, the Motor
Vehicles Act 1959, and the Stamp
Duties Act 1923; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Treatment, care and support
needs
5Application of
Act
6Persons injured before
commencement of Scheme can "buy in"
Part 2—Lifetime Support Authority of
South Australia
Division 1—Establishment of
Authority
7Establishment of
Authority
8Ministerial
control
Division 2—Board of
directors
9Board of directors
10Composition of
board
11Conditions of membership
12Allowances and
expenses
13Validity of acts
14Proceedings
15Delegation
Division 3—Functions and
powers
16Functions
17Powers
Division 4—Other
matters
18Staff and facilities
19Advances by
Treasurer
20Borrowing and security for loans
21Accounts and
audit
22Annual report
23Code of conduct
Part 3—Participation in
Scheme
24Eligibility for
participation in Scheme
25Application to participate in
Scheme
26Acceptance as a
participant
Division 1—Extent
of benefits
27Assessed treatment, care
and support needs
28Payment not required in certain
circumstances
29Approved
providers
Division 2—Treatment, care and
support needs assessments
30Assessment of
treatment, care and support needs
31Cooperation by participant
32Requirements
under LSS Rules
Division 1—Disputes about non-medical
matters
33Preliminary
34Resolution of disputes
35Appeals to
District Court
Division 2—Disputes about
eligibility
36Disputes about eligibility
37Appeals to
District Court
Division 3—Review of
assessments
38Review of assessments
Part 6—Medical and other treatment or
care costs
39Bulk billing arrangements
40Payment of
certain expenses not covered by bulk billing arrangements
41Maximum
fees payable for services not provided at public hospitals
Division 1—Establishment of
Fund
42Lifetime Support Scheme Fund
Division 2—Contributions associated
with motor vehicle injuries
43Determination by Authority
of amount to be contributed to Fund
44LSS Fund levy
45Recovery of payments in respect of
vehicles not insured under State law
46Recovery in respect of persons in
default
Part 8—Miscellaneous
47No contracting
out
48Release of information
49Immunity
50Treasurer's
guarantee
51False or misleading information
52Absence of
participant from Australia
53Extraterritorial operation of Act
54Authority to
act on behalf of participant
55Agreements with WorkCover
Corporation
56LSS Rules
57Regulations
Schedule 1—Expert
review panels
1Interpretation
2Establishment
3Constitution
4Validity of acts
5Procedures
6Powers and procedures on a
referral
7Admissibility
8Support staff and
facilities
Schedule 2—Related amendments and
transitional provisions
Part 1—Related
amendments
1Amendment provisions
Part 2—Amendment of
Civil Liability Act 1936
2Amendment of section
3—Interpretation
3Amendment of section 52—Damages for
non-economic loss
4Insertion of section
56A
56AAdditional
provisions relating to motor vehicle injuries (economic loss)
5Amendment of
section 58—Damages in respect of gratuitous services
6Insertion of
sections 58A and 58B
58ALimitations on damages for participants in
lifetime support scheme
58BAdditional provisions relating to death on account
of a motor vehicle injury
7Amendment of section 65—Spouse or
domestic partner may claim for loss or impairment of consortium
8Insertion of
Part 9 Division 13
Division
13—Regulations
76Assessment of motor vehicle
injuries
77Regulations—general
provisions
Part 3—Amendment of
Motor Accident Commission Act 1992
9Amendment of
section 14—Functions and objectives of Commission
Part 4—Amendment of
Motor Vehicles Act 1959
10Amendment of section
5—Interpretation
11Amendment of section 20—Application for
registration
12Amendment of section 24—Duty to grant
registration
13Amendment of section
118B—Interpretation of certain provisions where claim made or action
brought against nominal defendant
14Insertion of section
126A
126AClaim for
compensation
15Amendment of section 127—Medical
examination of claimants
16Amendment of section 127A—Control of
medical services and charges for medical services to injured persons
17Insertion of
sections 127B and 127C
127BLiability of insurer to pay treatment, care and
support costs
127CControl of legal
costs
18Insertion of section
134A
134AReview of
scheme
Part 5—Amendment of
Stamp Duties Act 1923
19Insertion of Part 3
Division 11
Division 11—LSS Fund
levy
82BInterpretation
82CLodgment of statement and payment of
duty
Part 6—Transitional
provisions
20Civil Liability Act—transitional
provisions
21Motor Vehicles Act—transitional
provisions
22Contribution to liabilities of
Authority—transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Motor Vehicle Accidents (Lifetime Support
Scheme) Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
approved insurer means an approved insurer under Part 4
of the
Motor
Vehicles Act 1959;
approved provider—see
section 29;
assessed treatment, care and support needs are treatment,
care and support needs that apply under
section 27(2);
attendant care and support services means services that aim
to provide assistance to people with everyday tasks and includes (for example)
personal assistance, nursing, home maintenance and domestic services;
Authority means the Lifetime Support Authority of South
Australia established by this Act;
board means the board of directors of the
Authority;
child means a person under the age of 18 years;
District Court means the Administrative and Disciplinary
Division of the District Court;
eligible person means a person who is eligible to be a
participant in the Scheme under
section 24;
excluded treatment, care and support needs—see
section 4(2);
expert review panel means an expert review panel constituted
under
Schedule 1;
Fund means the Lifetime Support Scheme Fund established under
Part 7;
health professional means a registered health practitioner
under the Health Practitioner Regulation National Law (other than a
student);
insurer means an insurer in respect of a liability that may
be incurred in respect of a motor vehicle injury (including an insurer under a
law of a place other than South Australia or under a law of the
Commonwealth);
LSS Rules means the rules made by the Governor under
section 56;
medical practitioner means a person registered under the
Health
Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
Minister for Health means the Minister responsible for the
administration of the
Health
Care Act 2008;
motor vehicle accident means the incident caused by or
arising out of the use of a motor vehicle that results in a motor vehicle
injury;
motor vehicle injury means a bodily injury to a person caused
by or arising out of the use of a motor vehicle;
participant in the Scheme or participant means
a person accepted under this Act as a participant in the Scheme (either as a
lifetime participant or as an interim participant);
private hospital means a private hospital within the meaning
of the
Health
Care Act 2008;
public hospital means a hospital incorporated under the Health
Care Act 2008;
relevant motor vehicle accident means the motor vehicle
accident that results in the motor vehicle injury that is relevant for the
purposes of the application of this Act in relation to a particular
person;
Scheme means the Scheme under this Act for the lifetime
treatment, care and support of certain persons injured in motor vehicle
accidents;
third-party policy means the policy of insurance that applies
under Part 4 of the
Motor
Vehicles Act 1959;
treatment, care and support needs—see
section 4;
treatment, care and support needs assessment means an
assessment under
Part 4.
(2) Other words and
expressions used in this Act have the meaning assigned to them in
section 5, or Part 4, of the Motor
Vehicles Act 1959, unless the context otherwise requires or the
LSS Rules provide otherwise.
(3) Without limiting
subsection (2),
section 99(3), (3a) and (4) of the Motor
Vehicles Act 1959 will apply in relation to this Act in order to
determine whether a bodily injury is to be regarded as being caused by or
arising out of the use of a motor vehicle.
(4)
Subsection (3)
applies subject to any provision made by the LSS Rules.
4—Treatment,
care and support needs
(1) For the
purposes of this Act, the treatment, care and support needs of a
participant in the Scheme are the participant's needs for or in connection with
any of the following:
(a) medical treatment (including pharmaceuticals);
(b) dental treatment;
(c) rehabilitation;
(d) ambulance transportation;
(e) respite care;
(f) attendant care and support services;
(g) aids and appliances;
(h) prostheses;
(i) education and vocational training;
(j) home and transport modification;
(k) workplace modification;
(l) such other kinds of treatment, care, support or services as may be
prescribed by the regulations for the purposes of this subsection;
(m) such other
kinds of treatment, care, support or services as may be determined by the
Authority (either generally, for specified classes of cases, or for a particular
person).
(2) Despite
subsection (1),
but subject to
subsection (1)(m),
the treatment, care and support needs of a participant do not include any
treatment, care, support or services declared by the LSS Rules to be
excluded treatment, care and support needs.
(1) This Act applies to and in relation to—
(a) motor vehicle injuries that result from a motor vehicle accident
occurring on or after the commencement of this section; and
(b) motor vehicle injuries that result from a motor vehicle accident
occurring before the commencement of this section where the person who suffered
the injury is accepted into the Scheme under
section 6.
(2) This Act may apply to and in relation to a motor vehicle injury
whether or not the injury was caused (wholly or in part) by the fault of the
owner or driver of the motor vehicle in the use or operation of the motor
vehicle or of any other person, or whether or not the injury can be attributable
to the act or omission of any particular person, and so applies even if the
injured person was at fault (whether as owner or driver of the vehicle or
otherwise).
(3) In addition, if a person becomes a participant in the Scheme, this Act
applies to and in relation to—
(a) any injury that is wholly or predominantly related to the motor
vehicle injury that gave rise to the person's participation in the Scheme;
and
(b) any other injury that, under the LSS Rules, will be covered as
part of the person's participation in the Scheme; and
(c) without limiting paragraphs (a) and (b) (or any other provisions of
this Act), any treatment, care and support needs, or any expenses, that under
the LSS Rules will be covered as part of the person's participation in the
Scheme.
6—Persons
injured before commencement of Scheme can "buy in"
(1) A person who has
suffered a motor vehicle injury that results from a motor vehicle accident
occurring before the commencement of
section 5 (a
pre-commencement injury) may be accepted into the Scheme as a
lifetime participant in the Scheme if—
(a) the person makes an application to the Authority in a manner and form
determined by the Authority; and
(b) the person provides such information as the Authority may require as
part of its assessment of the application; and
(c) the Authority determines that it will accept the person into the
Scheme under this section; and
(d) the person pays to the Authority, for payment into the Fund, a
contribution determined by the Authority.
(2) In connection with the operation of
subsection (1)—
(a) acceptance into the Scheme will be for the purpose of providing
treatment, care, support and services in relation to the assessed treatment,
care and support needs of the person; and
(b) the contribution to be paid into the Fund will be an amount that the
Authority determines as the amount required to fund the treatment, care and
support needs of the person as a lifetime participant in the Scheme in respect
of the injury after applying any principle or criteria specified in the
LSS Rules.
(3) An application made for a person to become a participant in the Scheme
in respect of a pre-commencement injury cannot be made by an insurer.
(4) The LSS Rules may make provision for or with respect to any
matter that may be convenient in connection with this section (including as to
the provision of any information or report that may be relevant in the
circumstances).
Part 2—Lifetime
Support Authority of South Australia
Division 1—Establishment
of Authority
(1) The Lifetime Support Authority of South Australia is
established.
(2) The Authority is a body corporate.
(3) The Authority is an instrumentality of the Crown and holds its
property on behalf of the Crown.
The Authority is subject to the general control and direction of the
Minister.
(1) The Authority is to have a board of directors.
(2) The board is the governing body of the Authority and anything done by
the board in the administration of the Authority is taken to be an act of the
Authority.
(1) The board consists of at least 3 but not more than 10 persons
appointed by the Governor on the recommendation of the Minister.
(2) A person appointed as a member of the board must have such
qualifications or experience as are, in the Minister's opinion, necessary to
enable the board to carry out its functions effectively.
(3) The Governor will appoint 1 member of the board to chair its
meetings.
(4) The Governor may appoint a suitable person to be the deputy of a
member of the board and to act as a member of the board during any period of
absence of the member.
(1) A member of the board is appointed on conditions determined by the
Governor and for a term, not exceeding 3 years, specified in the instrument
of appointment and, at the expiration of a term of appointment, is eligible for
reappointment.
(2) The Governor may
remove a member of the board from office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for mental or physical incapacity to carry out duties of office
satisfactorily; or
(c) for misconduct; or
(d) for neglect of duty.
(3) The office of a member of the board becomes vacant if the
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an indictable offence; or
(e) is sentenced to imprisonment for an offence; or
(f) becomes bankrupt or applies to take the benefit of a law for the
relief of insolvent debtors; or
(g) is removed from office under
subsection (2).
(4) On the office of a member of the board becoming vacant, a person must
be appointed, in accordance with this Act, to the vacant office.
(1) A member of the board is entitled to fees, allowances and expenses
approved by the Governor.
(2) The fees, allowances and expenses are payable out of the Lifetime
Support Scheme Fund.
An act or proceeding of the board is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
(1) Three members of the board constitute a quorum of the board and no
business may be transacted at a meeting of the board unless a quorum is
present.
(2) The member appointed to chair meetings of the board will preside at
meetings of the board or, in the absence of that member, a member chosen to
preside by those present.
(3) A decision carried by a majority of the votes cast by members at a
meeting is a decision of the board.
(4) Each member present at a meeting of the board has 1 vote on any
question arising for decision and, if the votes are equal, the member presiding
at the meeting may exercise a casting vote.
(5) A telephone or video conference between members of the board
constituted in accordance with procedures determined by the board will, for the
purposes of this section, be taken to be a meeting of the board at which the
participating members are present.
(6) A resolution of the board—
(a) of which prior notice was given to all members of the board in
accordance with procedures determined by the board; and
(b) in which a majority of the members of the board expressed their
concurrence in writing,
will be taken to be a decision of the board made at a meeting of the
board.
(7) The board must have accurate minutes kept of its
proceedings.
(8) Subject to this section, the board may determine its own
procedures.
(1) The board may delegate any of its functions or powers.
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be made—
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or
position; and
(b) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(c) is revocable at will and does not derogate from the power of the board
to act in any matter.
Division 3—Functions
and powers
The Authority has the following functions:
(a) to monitor the operation of the Scheme;
(b) to provide advice to the Minister about the administration, efficiency
and effectiveness of the Scheme;
(c) to provide support and funding for—
(i) programs that will provide high-quality services to participants in
the Scheme; and
(ii) research and education in connection with services provided to
participants in the Scheme;
(d) to disseminate information about the Scheme;
(e) to keep the LSS Rules under review;
(f) to be responsible for the Fund;
(g) other functions conferred on the Authority by or under this or any
other Act.
The Authority has all the powers of an individual and, in particular,
may—
(a) enter into any form of contract or arrangement; and
(b) engage experts and consultants; and
(c) acquire, hold, deal with or dispose of real or personal property;
and
(d) establish and operate ADI accounts and invest money; and
(e) do anything necessary or convenient to be done in the exercise of its
functions.
(1) The Authority may engage persons to be members of its staff on terms
and conditions determined by the Authority.
(2) The Authority may—
(a) by arrangement with the appropriate authority, make use of the
services, facilities or staff of a government department, agency or
instrumentality; or
(b) with the approval of the Minister, make use of the services,
facilities or staff of any other entity.
(1) The Treasurer may
advance money to the Authority (by way of grant or loan) on terms and conditions
determined by the Treasurer in consultation with the board.
(2) An amount advanced to the Authority under
subsection (1) will
be paid out of the Consolidated Account which is appropriated by this section to
the necessary extent.
20—Borrowing
and security for loans
Except as approved by the Treasurer, the Authority may not borrow money or
give security for the repayment of a loan.
(1) The board must cause proper accounts to be kept of the Authority's
financial affairs.
(2) The Auditor-General may at any time, and must in respect of each
financial year, audit the accounts and financial statements of the
Authority.
(1) The board must, on or before 30 September in each year, deliver
to the Minister a report on the operations of the Authority during the preceding
financial year.
(2) The report must contain the audited accounts and financial statements
for the financial year.
(3) The Minister must cause a copy of the report to be laid before both
Houses of Parliament within 12 sitting days after his or her receipt of the
report.
(1) The Authority must develop and maintain a code of conduct that sets
out—
(a) the procedures that will be adopted by the Authority to assist people
to assess whether they are eligible to be participants in the Scheme;
and
(b) the procedures that will be adopted by the Authority to assess the
needs of participants in the Scheme and to ensure that participants are
appropriately assisted under the Scheme; and
(c) other steps that will be taken by the Authority to ensure that the
Authority interacts with people in a constructive and supportive
manner.
(2) The code must also include—
(a) a process for receiving and managing any complaints that may be made
to the Authority about how the Authority has exercised a function or power under
this Act; and
(b) any other material that the Minister considers should be included in
the code.
(3) The Authority may amend or replace the code.
(4) The code (including any amendment or replacement) is to be published
in the Gazette.
(5) The Minister must, within 12 sitting days after the publication of the
code, or of any amendment or replacement, cause a copy of the code or the
amendment (as the case requires) to be laid before both Houses of
Parliament.
Part 3—Participation
in Scheme
24—Eligibility
for participation in Scheme
(1) A person is
eligible to be a participant in the Scheme if—
(a) the person suffers
a bodily injury; and
(b) the injury was
caused by or arose out of the use of a motor vehicle; and
(c) the relevant motor
vehicle accident occurred in South Australia; and
(d) the coverage of
this Act is not excluded under
subsection (5);
and
(e) the injury suffered by the person satisfies the criteria specified by
the LSS Rules for eligibility for the Scheme provided by this
Act.
(2) Participation in the Scheme may be as a lifetime participant or as an
interim participant and, for that purpose, the LSS Rules are to establish
criteria for eligibility for lifetime participation and criteria for eligibility
for interim participation in the Scheme.
(3) A person is not
eligible to be a participant in the Scheme in relation to an injury if the
person has been awarded damages, pursuant to a final judgment entered by a court
or a binding settlement, in respect of the future treatment, care and support
needs of the person that relate to the injury.
(4)
Subsection (3) does not
apply to a person who has applied to be accepted into the Scheme under
section 6.
(5) For the purposes of
subsection (1), the
coverage of this Act is excluded in relation to—
(a) a motor vehicle injury suffered by a participant in a road race;
or
(b) a motor vehicle
injury that is also a compensable injury under the Workers
Rehabilitation and Compensation Act 1986.
25—Application
to participate in Scheme
(1) An application for
an eligible person to become a participant in the Scheme in respect of motor
vehicle injury—
(a) is to be made to the Authority; and
(i) the person (or a person with lawful authority to act on his or her
behalf); or
(ii) an insurer under a
policy of insurance in respect of a motor vehicle involved in the relevant motor
vehicle accident; or
(2) An application under
subsection (1)(b)(ii)
or
(iii) does not require
the consent of the eligible person.
(3) An application—
(a) must be made in a manner and form determined by the Authority;
and
(b) must be accompanied by any information required by the
Authority.
(4) The Authority may,
on receipt of an application under this section, require the applicant or, if
the applicant is an insurer or the nominal defendant, the person to whom the
application relates (or a person with lawful authority to act on his or her
behalf)—
(a) to provide such information as the Authority may require as part of
its assessment of the application; and
(b) to provide such consents or other authorisations as the Authority may
require in order to obtain information that the Authority may require as part of
its assessment of the application.
(5) The information required under
subsection (4) may
include—
(a) the provision of a report that is to be prepared in view of the
application;
(b) the provision of any other report or document that may be relevant in
the circumstances.
(6) The LSS Rules may make provision for or with respect to
applications to become a participant in the Scheme, including provision for or
with respect to—
(a) the making and determination of applications, including the period
within which an application must be made; and
(b) requiring an insurer or the nominal defendant to pay the costs of any
assessment or report required by the LSS Rules in connection with an
application; and
(c) imposing restrictions on the time within which an application can be
made or requiring the deferring of the making of an application until an injury
has stabilised.
(7) The LSS Rules must at least permit an initial application to
become a participant in the Scheme to be made within 3 years from the date
of the relevant motor vehicle accident (or within a longer period specified by
the LSS Rules).
26—Acceptance
as a participant
(1) A person becomes a participant in the Scheme if the Authority is
satisfied that the person is eligible to be a participant and accepts the person
in writing as a participant in the Scheme.
(2) The Authority must accept a person as a participant in the Scheme if
the Authority is satisfied—
(a) that the person is eligible to be a participant; and
(b) that application for the person to be a participant has been duly
made.
(3) A person will be accepted as—
(a) a lifetime participant; or
(b) an interim participant,
according to the person's eligibility.
(4) A person accepted as an interim participant must be accepted as a
lifetime participant if the Authority becomes satisfied during the person's
interim participation in the Scheme that the person is eligible for lifetime
participation in the Scheme.
(5) A person accepted as a lifetime participant in the Scheme remains a
participant for life.
(6) Subject to
subsection (7), a
decision as to whether an interim participant should be accepted as a lifetime
participant should be made at an appropriate time after the person's injury has
stabilised, as determined in accordance with the LSS Rules.
(7) The LSS Rules
may provide that a person will cease to be an interim participant if he or she
has not been accepted as a lifetime participant within a period determined under
the LSS Rules.
(8) The expiration of a period of interim participation in the Scheme does
not prevent subsequent acceptance of the person as a lifetime participant in the
Scheme.
(9) If a person who is an interim participant is accepted as a lifetime
participant, the person ceases to be an interim participant on that acceptance
and then remains a participant for life.
(10) The LSS Rules must provide that any period for which a person is an
interim participant in the Scheme will be added to the period for which an
application may be made to become a lifetime participant.
(11) Any period for which a person is an interim participant in the Scheme
will be added to the period of 3 years applying under section 36 of
the Limitation
of Actions Act 1936 (and that section will be taken to have
been modified accordingly).
27—Assessed
treatment, care and support needs
(1) The Authority
is to pay for all the necessary and reasonable expenses incurred by or on behalf
of a person in relation to the assessed treatment, care and support needs of the
person while the person is a participant in the Scheme.
(2) The assessed
treatment, care and support needs of a person who is a participant in the Scheme
are those treatment, care and support needs assessed by the Authority, in its
treatment, care and support needs assessment, to be treatment, care and support
needs that—
(a) are necessary and reasonable in the circumstances; and
(b) relate to the injury or injuries to which this Act applies.
(3) The Authority
is not liable for any expenses in respect of—
(a) excluded treatment, care and support needs; or
(b) treatment, care and support needs that are not assessed treatment,
care and support needs; or
(c) treatment, care and support needs excluded from the operation of this
section by the LSS Rules.
(4) Without limiting
subsection (3),
subsections (1)
and
(2) operate subject
to—
(a) any criteria set out in the LSS Rules that make provision for or
with respect to determining which treatment, care and support needs of a
participant in the Scheme—
(i) are necessary and reasonable in the circumstances; and
(ii) relate to the injury or injuries to which this Act applies;
and
(b) any monetary or other limits placed on the provision of particular
treatment, care and support needs to a participant in the Scheme set out in the
LSS Rules; and
(c) any provision made by the LSS Rules as to how expenses are to be
paid or covered.
(5) As an alternative to paying the expenses for which it is liable under
this section as and when they are incurred, the Authority may pay those expenses
by the payment to the participant of an amount to cover those expenses over a
fixed period pursuant to an agreement between the Authority and the participant
for the payment of those expenses by the participant (and this will satisfy any
liability that would otherwise arise in relation to the matters to which the
agreement relates).
28—Payment
not required in certain circumstances
(1) The Authority
is not required to make a payment in relation to any of the following:
(a) any treatment, care, support or service provided to a participant in
the Scheme on a gratuitous basis (that is, anything provided to a participant
for which the participant has not paid and is not liable to pay);
(b) in the case of a child—any treatment, care, support or service
that would ordinarily fall within the ordinary costs of raising a
child;
(c) any treatment,
care, support or service that is required to be provided by an approved provider
but is provided by a person who is not, at the time of provision, an approved
provider;
(d) any treatment, care, support or service that is provided in
contravention of the LSS Rules.
(2) However, the
Authority may elect to make a payment in relation to any treatment, care,
support or service referred to in
subsection (1)
if the Authority considers that such a payment is justified in the
circumstances.
(3) The LSS Rules may make provision for or with respect to
determining whether a payment is justified under
subsection (2).
(4)
Subsection (1)(c)
does not apply in relation to services provided—
(a) by a medical practitioner; or
(b) by a person acting in circumstances allowed under the
LSS Rules.
(5) To avoid doubt,
subsection (1)
applies even if the treatment, care, support or services concerned are provided
in connection with the assessed treatment, care and support needs of a
participant in the Scheme.
(6) The Authority is not required to pay for any treatment, care, support
or service provided to a person while the person's participation in the Scheme
is suspended.
(7) In this section—
ordinary costs of raising a child include all costs
associated with the child's care, upbringing, education and advancement in life
other than costs reasonably incurred because the child has suffered the injury
or injuries to which this Act applies.
(1) The Authority may approve—
(a) specified persons; or
(b) persons of a specified class,
to provide the treatment, care, support or services under the Scheme that
are identified under the LSS Rules as treatment, care, support or services
that are to be provided by an approved provider.
(2) The
LSS Rules may also make provision for or with respect to—
(a) the standards of competency of approved providers; and
(b) the matters that relate to applications for approval under this
section.
(3) An approval may be granted on conditions or limitations determined by
the Authority.
(4) An approved provider must not, without reasonable excuse, contravene
or fail to comply with a condition or limitation of the approval.
Maximum penalty: $10 000.
(5) The Authority may, in accordance with the
LSS Rules—
(a) vary a condition of approval;
(b) revoke an approval.
(6) A condition of approval may be varied by the addition, substitution or
deletion of 1 or more conditions.
Division 2—Treatment,
care and support needs assessments
30—Assessment
of treatment, care and support needs
(1) The Authority is to make an assessment of the treatment, care and
support needs of a participant in the Scheme (as required from time to
time).
(2) The assessment must relate to those treatment, care and support needs
that—
(a) are necessary and reasonable in the circumstances; and
(b) relate to the injury or injuries to which this Act applies.
(3) The Authority is to certify in writing as to its assessment of the
treatment, care and support needs of the participant, including its reasons for
any finding on which the assessment is based, and is to give a copy of the
certificate to the participant.
(4) The Authority may appoint or engage health professionals and other
suitably qualified persons to act as assessors for the purposes of this Part
(and a decision by an assessor acting under this section will be taken to be a
decision of the Authority).
A participant in the Scheme must comply with any reasonable request made by
the Authority or an assessor in connection with an assessment of the treatment,
care and support needs of the participant, including a request to undergo a
medical examination or other examination by a health professional or other
suitably qualified person.
32—Requirements
under LSS Rules
(1) The LSS Rules may make provision for or with respect to the
assessment of the treatment, care and support needs of a participant in the
Scheme.
(2) In particular, the LSS Rules may make provision for or with
respect to the following:
(a) the procedures to be followed in connection with such an
assessment;
(b) the intervals at which such assessments are to be carried out and the
review of assessments from time to time as occasion requires;
(c) the methods and criteria to be used to determine the treatment, care
and support needs of participants;
(d) the information to be provided by participants in connection with
assessments;
(e) the suspension of the participation of a person in the Scheme if the
person fails to comply with a requirement specified by the LSS Rules in
connection with an assessment of the treatment, care and support needs of the
person (including to undergo a medical examination or other examination by a
health professional or other suitably qualified person).
(3) An assessment of the treatment, care and support needs of a
participant in the Scheme is to be carried out in accordance with the
LSS Rules.
Division 1—Disputes
about non-medical matters
(1) In this Division—
relevant determination means—
(a) a threshold determination; or
(b) a determination prescribed by the regulations for the purposes of this
definition;
threshold determination means a determination by the
Authority as to any of the following:
(a) whether a person is eligible to be a participant in the Scheme under
section 24(1)(a);
(b) whether an incident that results in bodily injury is an incident that
was caused by or arose out of the use of a motor vehicle;
(c) whether a person is eligible to be a participant in the Scheme under
section 24(1)(c) or
(d);
(d) whether an application by a person to become a participant in the
Scheme has been made within a relevant period specified by the
LSS Rules.
(2) The following are interested parties in relation to a
relevant determination:
(a) in relation to a threshold determination—
(i) the person to whom an application under this Act relates;
and
(ii) an insurer or the nominal defendant;
(b) in relation to any other determination—the person to whom the
determination relates.
(1) If there is a dispute about a relevant determination, an interested
party in relation to the determination may apply at first instance to have the
dispute reviewed by a review officer.
(2) An application
must be made in a manner and form prescribed by the LSS Rules.
(3) Notice of an application must be given to any other interested party
in relation to the determination and any such interested party may, on
application made in accordance with the LSS Rules, become a party to the
dispute.
(4) For the purposes of
a review by a review officer, the review officer—
(a) may adopt such procedures as the review officer thinks fit;
and
(b) is not bound by the rules of evidence but may inform himself or
herself in any way that the review officer considers appropriate.
(5) Without limiting
subsection (4), a
review officer may require a person to appear before the review officer at a
specified time and place to answer questions or to produce material (or
both).
(6) A person must not, without reasonable excuse, fail to comply with a
requirement under
subsection (5).
Maximum penalty: $5 000.
(7) At the completion of the review proceedings, the review officer
may—
(a) confirm or vary the determination to which the proceedings relate;
or
(b) revoke the determination to which the proceedings relate and
substitute another determination.
(8) The outcome of the review must be incorporated into a written
determination setting out the review officer's reasons for his or her
determination.
(9) The costs of
any proceedings before a review officer under this section are payable by the
Authority.
(10) The costs to which
subsection (9)
applies—
(a) include the necessary costs and expenses of travel and accommodation
incurred by the person to whom the application under this Act relates, and by a
carer of such a person (which may include a parent) in order to accompany and
support the person, in attending before a review officer; but
(b) do not include—
(i) any costs associated with being represented before a review officer;
or
(ii) any costs excluded from the operation of
subsection (9)
by the regulations.
(11) For the purposes of this section, the Authority must assign or
appoint persons to act as review officers (who may, but need not, be members of
the staff of the Authority).
(1) An appeal lies
to the District Court against a determination of a review officer under this
Division.
(2) An appeal under this section may be instituted by a party to the
dispute to which the determination relates.
(3) The appeal must be instituted within 28 days of the date of the
determination appealed against.
Division 2—Disputes
about eligibility
(1) If there is a dispute—
(a) about whether an injury results from a motor vehicle accident or is
attributable to some other condition, event, incident or factor; or
(b) about whether an injury suffered by a person satisfies the criteria
specified by the LSS Rules for eligibility for the Scheme provided by this
Act; or
(c) about the relationship between 2 or more injuries, including whether
an injury is wholly or predominantly related to a motor vehicle injury;
or
(d) without limiting a preceding paragraph—about whether an injury
falls within, or is excluded from, the coverage of this Act under the LSS Rules;
or
(e) about a matter prescribed by the regulations,
the dispute may be referred to an expert review panel.
(2) The dispute may be
referred—
(a) by the Authority; or
(b) by notice to the
Authority given—
(i) by or on behalf of an injured person; or
(ii) by an insurer or the nominal defendant.
(3) A notice under
subsection (2)(b)
must comply with any requirement prescribed by the LSS Rules.
(4) The expert review panel to which a dispute is referred for
determination is to determine the dispute and give a certificate as to its
determination setting out the reasons for its determination.
(5) The costs of
any proceedings before an expert review panel under this section are payable by
the Authority.
(6) The costs to which
subsection (5)
applies—
(a) include the necessary costs and expenses of travel and accommodation
incurred by the injured person, and by a carer of the injured person (which may
include a parent) in order to accompany and support the person, in attending
before an expert review panel (or a member of an expert review panel);
but
(b) do not include—
(i) any costs associated with being represented before an expert review
panel; or
(ii) any costs excluded from the operation of
subsection (5)
by the regulations.
(1) Subject to
subsection (2), an
appeal lies to the District Court against a determination of an expert review
panel under this Division that a person is ineligible or otherwise does not
qualify to participate in the Scheme.
(2) An appeal under
this section may only be instituted by or on behalf of the person to whom the
determination relates.
(3) The appeal must be instituted within 28 days of the date of the
determination appealed against.
Division 3—Review
of assessments
(1) A participant in the Scheme may apply to have an assessment of the
Authority about the treatment, care and support needs of the participant under
Part 4 reviewed by an expert review panel.
(2) An application must be made in a manner and form prescribed by the LSS
Rules.
(3) The application must be made within 28 days after the participant is
given notice of the assessment of the participant's treatment, care and support
needs (unless an extension of time is allowed under the LSS Rules).
(4) On a review, the expert review panel may—
(a) confirm or vary the assessment; or
(b) revoke the assessment and substitute its own assessment.
(5) The expert review panel must give a certificate as to the outcome of
the review setting out the reasons for any decision or assessment made by the
expert review panel under this section.
(6) The Authority must, to such extent (if any) as may be necessary,
revise its assessment of the treatment, care and support needs of the
participant to give effect to the outcome of a review by an expert review
panel.
(7) A decision or
assessment of an expert review panel under this section is final and binding for
the purposes of this Act and any proceedings under this Act.
(8)
Subsection (7) does not
apply in relation to any proceedings for judicial review and does not prevent or
restrict a court from exercising any judicial power or from determining a matter
according to law.
(9) An expert review panel undertaking a review under this section must
act consistently with, and apply, any relevant provision of the
LSS Rules.
(10) The costs of
any proceedings before an expert review panel under this section are payable by
the Authority.
(11) The costs to which
subsection (10)
applies—
(a) include the necessary costs and expenses of travel and accommodation
incurred by the participant, and by a carer of the participant (which may
include a parent) in order to accompany and support the participant, in
attending before an expert review panel (or a member of an expert review panel);
but
(b) do not include—
(i) any costs associated with being represented before an expert review
panel; or
(ii) any costs excluded from the operation of
subsection (10)
by the regulations.
Part 6—Medical
and other treatment or care costs
(1) Bulk billing arrangements may be entered into by the Authority with
respect to—
(a) the payment of expenses incurred in connection with the treatment of
participants in the Scheme at public hospitals; or
(b) the payment of expenses incurred in transporting participants in the
Scheme by ambulance; or
(c) the payment of other treatment expenses incurred by participants in
the Scheme.
(2) A bulk billing arrangement is an arrangement with the Minister for
Health, service providers or others acting on their behalf for the payment by
the Authority of any such expenses of participants in the Scheme at the rate
provided by the arrangement.
(3) For the purposes of this section, the treatment or transport of
participants in the Scheme includes the treatment or transport of persons
classified as participants in the Scheme in accordance with a bulk billing
arrangement.
40—Payment
of certain expenses not covered by bulk billing
arrangements
(a) payment for the treatment of participants in the Scheme at public
hospitals; and
(b) payment for conveying participants in the Scheme by ambulance;
and
(c) payment for any medical or dental treatment of, or rehabilitation
services provided to, participants in the Scheme,
in any case where payment for the expenses concerned has not been made, and
is not required to be made, in accordance with a bulk billing arrangement under
this Part.
(2) The rate at which
such a payment is required to be made by the Authority under this Act is as
follows:
(a) in the case of
treatment at public hospitals—at the rate determined by the Minister for
Health by order published in the Gazette;
(b) in any case in
which a maximum rate is fixed under
section 41—at
the maximum rate so fixed;
(c) in the case to which a rate referred to in
paragraph (a) or
(b) does not
apply—at the rate reasonably appropriate to the treatment or service
having regard to the customary charge made in the community for the treatment or
service.
(3) If the Authority does not make a payment under
subsection (2), the
person or body that provided the treatment or service to which the payment
relates may recover the payment from the Authority as a debt in a court of
competent jurisdiction.
41—Maximum
fees payable for services not provided at public hospitals
(1) This section applies to—
(a) the fee payable for any medical treatment of a participant in the
Scheme; and
(b) the fee payable for any dental treatment of a participant in the
Scheme; and
(c) the fee payable for any rehabilitation service provided to a
participant in the Scheme; and
(d) the fees payable for any attendant care and support services provided
to a participant in the Scheme; and
(e) the fees payable for any other services identified by the Minister for
the purposes of this section by notice published in the Gazette—
(i) on the recommendation of the Authority; and
(ii) after consultation with the Minister for Health,
but does not apply to any such treatment or service that is provided at a
public hospital (whether to an in-patient or out-patient) and for which any
payment is required to be made to the hospital and not to the treatment or
service provider.
(2) This section also applies to the fee payable to a private hospital for
any treatment at the hospital.
(3) The Minister may,
by notice published in the Gazette—
(a) on the recommendation of the Authority; and
(b) after consultation with the Minister for Health,
fix the maximum amount for which the Authority is liable in respect of any
claim for fees to which this section applies.
(4) Any such fees may (but need not) be fixed by reference to fees
recommended by a professional association recognised by the Minister for the
purposes of this section or by reference to any other scale of fees.
(5) A payment by the Authority in respect of a service provided in
connection with the treatment, care and support needs of a participant in the
Scheme is to be made consistently with any notice published under
subsection (3).
Division 1—Establishment
of Fund
42—Lifetime
Support Scheme Fund
(1) The Authority must establish and maintain a fund entitled the
Lifetime Support Scheme Fund.
(2) The Fund will consist of—
(a) the levies paid to the Authority under this Part; and
(b) any income and accretions produced by the investment of money from the
Fund; and
(c) any money advanced to the Authority for the purposes of the Fund;
and
(d) other money received by the Authority under, or in connection with,
this Act; and
(e) other money required to be paid into the Fund by or under this or any
other Act.
(3) The Fund is to be applied towards—
(a) all payments required to be made by the Authority for the purposes of
Part 4;
and
(b) the costs incurred by the Authority in performing its functions under
this Act; and
(c) the costs of the
system of assessment, dispute resolution or review under this Act; and
(d) without limiting
paragraph (c), a
contribution to the costs associated with the establishment and operation of
expert review panels, determined by the Minister from time to time after
consultation with the Authority; and
(e) the duty imposed under Part 3 Division 11 of the Stamp
Duties Act 1923; and
(f) any other costs or liabilities prescribed by the regulations for the
purposes of this subsection; and
(g) all other money required or authorised by or under this or any other
Act to be paid from the Fund.
(4) The Authority may invest money that is not immediately required for
the purposes of the Fund as the Authority thinks fit.
(5) The Treasurer may,
until there are sufficient funds in the Fund to meet the liabilities of the
Fund, or at any other time considered appropriate by the Treasurer, lend money
(from time to time) to the Authority on such terms and conditions as the
Treasurer may determine.
(6) The Treasurer may charge a fee of such amount as the Treasurer thinks
fit in respect of any loan made to the Authority under
subsection (5).
Division 2—Contributions
associated with motor vehicle injuries
43—Determination
by Authority of amount to be contributed to Fund
(1) The Authority is to
determine, before the beginning of each relevant period, an amount that the
Authority considers is required to be contributed to the Fund—
(a) to fund the present
and likely future liabilities of the Authority under
Part 4
in respect of persons who become participants in the Scheme in respect of motor
vehicle injuries suffered during that period; and
(b) to meet the payments required to be made from the Fund (other than
excluded payments or payments under
Part 4) during that
period (to the extent that liability for any such payment has not been covered
under
paragraph (a));
and
(c) to satisfy the requirement to make any payment of duty under
Part 3 Division 11 of the Stamp
Duties Act 1923 in relation to the relevant period; and
(d) to make provision for such other matters as the Authority should, in
all the circumstances, make provision for under this Division in connection with
any liability of the Authority under this Act (including so as to make provision
for any past liability that would otherwise be unfunded).
(2) The Authority's determination in respect of a relevant period is to be
made—
(a) in accordance with a report of an independent actuary engaged by the
Authority after consultation with the Treasurer to report to the Authority on
the amount required to be contributed to the Fund as referred to in
subsection (1);
and
(b) after applying any principle or requirement specified by the Minister
by notice in the Gazette for the purposes of this section; and
(c) after taking into account any other payments that may be made by
another body or person in connection with the operation of this Act.
(3) The Authority must,
once it has made a determination under this section, embody the terms of that
determination in a report furnished to the Minister before the beginning of the
relevant period.
(4) The Minister must,
on receipt of a report under
subsection (3) and
after taking into account such matters (including matters not covered by the
report) as the Minister thinks fit, after consultation with the Treasurer,
determine an amount that should be paid to the Authority for contribution to the
Fund for the relevant period (the required fund
contribution).
(5) If the Minister, in acting under
subsection (4),
makes a determination that is inconsistent with the determination embodied in
the Authority's report under
subsection (3), the
Authority must include a report on the matter in its annual report.
(6) In this section—
excluded payments means any payments—
(a) that relate to a person who is a participant in the Scheme under
section 6;
or
(b) that relate to any other matter (if any) prescribed by the regulations
for the purposes of this definition;
relevant period means a financial year or such other period
as the Authority determines from time to time, after consultation with the
Minister, to be a relevant period for the purposes of this section.
(7) Relevant periods can be determined so as to overlap but there must be
no gap between successive relevant periods and each relevant period must be no
longer than 12 months.
(1) The required fund
contribution for a relevant period is to be made by the payment to the Authority
of a levy (the LSS Fund levy) that is imposed on all persons
who apply for any of the following under the
Motor
Vehicles Act 1959:
(a) the registration of a motor vehicle;
(b) an exemption from registration in respect of a motor
vehicle;
(c) a permit in respect of a motor vehicle.
(2) The LSS Fund
levy payable by a person is to be an amount calculated under a scheme determined
by the Minister after consultation with the Treasurer and the Authority, and the
total of all LSS Fund levies with respect to a relevant period must aim to
be an amount that will result in the required fund contribution for the relevant
period being contributed to the Fund.
(3) Without limiting
subsection (2), a
scheme under this section may provide for a differentiation that applies
according to any classification or criteria determined by the
Minister.
(4) The amounts to be recovered under this section will be payable at the
time of any application that falls within the ambit of
subsection (1) and
will be collected by the Registrar at the time that any such application is
made.
(5) The Registrar must, subject to
subsection (6), pay
to the Authority the LSS Fund levies collected by the Registrar under this
section.
(6) The Registrar will
retain out of the amount to be paid to the Authority such administration
expenses as are determined by the Treasurer for the purposes of this
section.
45—Recovery
of payments in respect of vehicles not insured under State
law
(1) The Authority is entitled to recover from the appropriate person as a
debt due to the Authority the present value of its treatment, care and support
liabilities in respect of the motor vehicle injury of a participant in the
Scheme if—
(a) the injury was caused by the fault of the owner or driver of a motor
vehicle in the use or operation of the vehicle; and
(b) at the time of a motor vehicle accident the motor vehicle was not
insured in accordance with the requirements of Part 4 of the Motor
Vehicles Act 1959.
(2) If the participant suffered the motor vehicle injury as a result of
the participant's contributory negligence, the amount that the Authority is
entitled to recover under this section is to be reduced in proportion to the
participant's share in the responsibility for the injury.
(3) If the participant suffered the motor vehicle injury as a result
partly of the fault of a person (other than the owner or driver of a motor
vehicle), the Authority is entitled to recover from that person as a debt due to
the Authority such proportion of the present value of its treatment, care and
support liabilities in respect of the injury as corresponds to the person's
share in the responsibility for the injury.
(4) The present value of the Authority's treatment, care and support
liabilities in respect of a motor vehicle injury is the sum of the following
amounts:
(a) amounts already paid by the Authority under
Part 4
in respect of the treatment, care and support needs associated with the injury;
and
(b) the present value of the amounts that the Authority estimates will be
payable by the Authority in the future under
Part 4 in respect of
the treatment, care and support needs associated with the injury.
(5) The appropriate person from whom the Authority may
recover is the person who at the time of the motor vehicle accident was the
owner of the motor vehicle or, if at that time some other person was driving the
motor vehicle, the owner and the driver jointly or either of them
severally.
(6) It is a sufficient defence in any proceedings to recover under this
section against the owner (whether severally or jointly with the driver) of a
motor vehicle if the owner establishes to the satisfaction of the court that, at
the time of the occurrence, some other person was driving the motor vehicle
without the owner's authority.
(7) It is a sufficient defence in any proceedings to recover under this
section against the driver of a motor vehicle (whether severally or jointly with
the owner) if the driver establishes to the satisfaction of the court that, at
the time of the occurrence, the driver was driving the motor vehicle with the
authority of the owner (or had reasonable grounds for believing and did in fact
believe that the driver had such authority) and that the driver had reasonable
grounds to believe and did in fact believe that the motor vehicle was insured in
accordance with the requirements of Part 4 of the Motor
Vehicles Act 1959.
(8) The Authority is not entitled to recover under this section from the
owner or driver of a motor vehicle that, at the relevant time, was not required
to be registered or was exempt from registration or, if required to be
registered, was not required to be insured under the Motor
Vehicles Act 1959.
(9) The certificate of the Authority as to the present value of the
Authority's treatment, care and support liabilities in respect of an injury is
evidence of the matters certified for the purposes of any proceedings in
connection with this section.
(10) This section does not permit the Authority to recover the present
value of its treatment, care and support liabilities in respect of injuries to a
participant in the Scheme if the participant paid an amount to the Authority
under
section 6 in respect
of those injuries.
46—Recovery
in respect of persons in default
(1) If—
(a) an approved insurer or the nominal defendant has a right of recovery
against a person (the relevant person) under a designated section;
and
(b) the person who suffered a bodily injury in relation to which the right
of recovery applies becomes a participant in the Scheme,
then the Authority may exercise the same right of recovery against the
relevant person for the present value of its treatment, care and support
liabilities in respect of the participant in the Scheme as the approved insurer
or nominal defendant has under the designated section.
(2) The present value of the Authority's treatment, care and support
liabilities in respect of a participant in the Scheme is the sum
of—
(a) amounts already paid by the Authority under
Part 4
in respect of the treatment, care and support needs of the participant;
and
(b) the present value of the amounts that the Authority estimates will be
payable by the Authority in the future under
Part 4 in respect of
the treatment, care and support needs of the participant.
(3) The certificate of the Authority as to the present value of the
Authority's treatment, care and support liabilities in respect of an injury is
evidence of the matters certified for the purposes of any proceedings in
connection with this section.
(4) For the purposes of this section, a designated section will apply in
relation to a right of recovery by the Authority—
(a) as if a reference to an insurer or the nominal defendant (as the case
may require) were a reference to the Authority; and
(b) subject to such other modifications or exclusions as may be prescribed
by regulation made under this section.
(5) In this section—
designated section means—
(a) section 116; or
(b) section 124A,
of the Motor
Vehicles Act 1959.
This Act applies despite any contract to the contrary.
(1) The Authority is authorised to disclose or release—
(a) information concerning the treatment, care and support needs of
participants (including the expenses that are paid or payable by the Authority
under the Scheme in relation to those needs) to such persons, and subject to
such conditions, as the Authority thinks fit; and
(b) other information under an authorisation (if any) prescribed by the
regulations.
(2) An insurer is authorised to disclose or release to the Authority
information that it has obtained under the Motor
Vehicles Act 1959 in relation to a person who may become, or who
has become, a participant in the Scheme.
(1) A matter or thing
done or omitted to be done by an assessor, a review officer or a member of an
expert review panel under this Act in the performance or exercise of a function
or power under this Act does not, if the matter or thing was done or omitted in
good faith, subject the assessor, review officer or member of the panel
personally to any action, liability, claim or demand.
(2) Any liability that would attach to a person were it not for the
operation of
subsection (1)
attaches instead to the Crown.
(1) Liabilities
incurred or assumed by the Authority in pursuance of this Act are guaranteed by
the Treasurer.
(2) A liability of the Treasurer under a guarantee arising by virtue of
subsection (1) will
be satisfied out of the Consolidated Account which is appropriated by this
section to the necessary extent.
(3) The Treasurer may, from time to time, after consultation with the
board, fix charges to be paid by the Authority in respect of the guarantee
provided under this section and determine the times and manner of their
payment.
51—False
or misleading information
A person must not—
(a) provide to the Authority or any other person who is performing or
exercising a function or power under this Act information that the person knows
is false or misleading in a material particular; or
(b) refuse or fail to include in information provided to a person who is
performing or exercising a function or power under this Act other information
without which the information provided is, to the knowledge of the person, false
or misleading in a material particular.
Maximum penalty: $10 000.
52—Absence
of participant from Australia
(1) If a participant in
the Scheme is to be absent from Australia, the participant must, at least
28 days before leaving Australia, give the Authority notice of the proposed
absence in accordance with the LSS Rules.
(2) The Authority may, if the Authority considers that action under this
subsection is justified—
(a) waive or reduce the period that applies under
subsection (1) in
relation to a particular person in a particular case;
(b) suspend the participation of a person in the Scheme while the person
is absent from Australia (whether or not notice has been given in accordance
with this section).
53—Extraterritorial
operation of Act
It is the intention of Parliament that the operation of this Act is to
include, as far as possible, operation in relation to the following:
(a) things situated in or outside the territorial limits of this
jurisdiction;
(b) acts, transactions and matters done, entered into or occurring in or
outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done,
entered into or occurring) that would, apart from this Act, be governed or
otherwise affected by the law of another jurisdiction.
54—Authority
to act on behalf of participant
Without limiting any other provision or law, any authorisation or step that
may be given or taken under this Act by a participant in the Scheme may be given
or taken by a person with lawful authority to act on behalf of the
participant.
55—Agreements
with WorkCover Corporation
(1) The Authority may enter into an agreement with the WorkCover
Corporation for the provision of services to persons—
(a) who have suffered compensable injuries under the Workers
Rehabilitation and Compensation Act 1986; and
(b) who, in the opinion of the WorkCover Corporation, would benefit from
participating in certain aspects of the Scheme relating to treatment, care and
support needs.
(2) If a person is the subject of an agreement under this
section—
(a) no other eligibility requirements under this Act will apply in
relation to the person (and, if relevant,
section 24(5)(b)
will not apply); and
(b) the person is eligible to receive such services under this Act as are
contemplated by the agreement; and
(c) the WorkCover Corporation must pay to the Authority, for payment into
the Fund, a contribution agreed between the Authority and the WorkCover
Corporation; and
(d) the Authority is authorised to make payments out of the Fund in order
to give effect to any provision of the agreement; and
(e) any payments made from the Fund in respect of the person will be taken
to be excluded payments for the purposes of
section 43.
(3) The WorkCover Corporation is authorised to disclose to the Authority
information that is within the ambit of section 112(2) of the Workers
Rehabilitation and Compensation Act 1986 for purposes associated
with the operation of this section or so that the Authority may provide services
to a person under this section in an effective manner.
(4) In this section—
WorkCover Corporation means the WorkCover Corporation of
South Australia under the
WorkCover
Corporation Act 1994.
(1) The Governor may, on the recommendation of the Authority, make rules
(LSS Rules) for or with respect to any matter that by this
Act is required or permitted to be subject to those rules.
(2) The Governor may, on the recommendation of the Authority, vary, revoke
or substitute LSS Rules.
(3) The LSS Rules may—
(a) refer to or incorporate, wholly or partially and with or without
modification, a document prepared or published by a specified body, either as in
force at the time the rules are made or as in force from time to time;
and
(b) be of general or limited application; and
(c) make different provision according to the persons or circumstances to
which they are expressed to apply; and
(d) provide that a matter is to be determined according to the discretion
of the Minister or the Authority.
(4) Section 10AA and Part 3A of the Subordinate
Legislation Act 1978 do not apply to the LSS Rules.
(5) The LSS Rules (including any variation, revocation or
substitution) will come into operation on the day on which they are made or from
such later date or time as is specified in the LSS Rules.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting
the generality of
subsection (1), the
regulations may—
(a) require the keeping of records, statistics or other information;
and
(b) require the provision of reports, statements, documents or other forms
of information to the Authority; and
(c) require the giving of notice to the Authority at specified intervals,
or on the occurrence of any specified event; and
(d) specify any procedure associated with any process under this Act;
and
(e) impose penalties, not exceeding $10 000, for a contravention of,
or failure to comply with, a regulation; and
(f) prescribe saving or
transitional provisions in connection with the enactment or operation of this
Act.
(3) A regulation may—
(a) refer to or incorporate, wholly or partially and with or without
modification, a document prepared or published by a specified body, either as in
force at the time the regulation is made or as in force from time to time;
and
(b) be of general or limited application; and
(c) make different provision according to the persons or circumstances to
which it is expressed to apply; and
(d) provide that a matter is to be determined according to the discretion
of the Minister or the Authority.
(4) A provision of
a regulation made under
subsection (2)(f)
may, if the regulation so provides, take effect from the commencement of this
Act or from a later day.
(5) To the extent to which a provision takes effect under
subsection (4)
from a day earlier than the day of the regulation's publication in the Gazette,
the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
Schedule 1—Expert
review panels
In this Schedule—
medical expert means—
(a) a health professional; or
(b) a person who is within a class brought within the ambit of this
definition by the regulations;
referred question means any question that constitutes a
matter in dispute or a matter subject to review before an expert review
panel;
relevant person means the person who is the subject of
proceedings before an expert review panel.
(1) There will be such expert review panels as are necessary for the
purposes of this Act.
(2) For the purpose
of constituting expert review panels, there is to be a list of medical experts
appointed by the Minister.
(3) A person appointed under
subclause (2)
will be appointed on terms and conditions, and for a term (not exceeding
3 years), determined by the Minister and, on the expiration of a term of
office, is eligible for re-appointment.
(4) The office of a person appointed under
subclause (2)
becomes vacant if the person—
(a) resigns by written notice addressed to the Minister; or
(b) is removed from office by the Minister for—
(i) breach of, or non-compliance with, a condition of appointment;
or
(ii) mental or physical incapacity to carry out duties of office
satisfactorily; or
(iii) misconduct; or
(iv) neglect of duty; or
(v) incompetence; or
(c) completes a term of office and is not re-appointed; or
(d) in the case of a person who has been a health
professional—ceases to be registered under the Health
Practitioner Regulation National Law; or
(e) is convicted of an indictable offence or of an offence which, if
committed in South Australia, would be an indictable offence; or
(f) is sentenced to imprisonment for an offence.
(5) From the list of medical experts under
subclause (2),
the Minister must appoint (on terms and conditions determined by the
Minister)—
(a) a Convenor; and
(b) a Deputy Convenor.
(6) The Deputy Convenor may, subject to the direction of the Convenor,
exercise the functions and powers conferred on the Convenor by or under this
Schedule.
(7) The Deputy Convenor has, and may exercise, the functions and powers
conferred on the Convenor by or under this Schedule while the office of the
Convenor is vacant.
(1) An expert review panel is to consist of the number of members, not
exceeding 3, as is determined by the Convenor in each particular case.
(2) If a medical expert has been engaged to treat or examine, or to
furnish a report in relation to, a person (other than as a member of an expert
review panel), the medical expert is not to sit as a member of an expert review
panel examining the person.
(3) The Convenor must appoint a presiding member for each expert review
panel constituted by more than 1 person, who will have general responsibility
for managing the operations of the panel in a particular case.
An act or proceeding of an expert review panel is not invalid by reason
only of a vacancy in its membership or a defect in the appointment of a
member.
(1) An expert review panel is not bound by the rules of evidence but may
inform itself in any way it considers appropriate.
(2) An expert review panel may act informally and without regard to
technicalities or legal forms.
(3) An expert review panel may engage consultants and seek expert advice
as it considers necessary in any particular case.
(4) The Convenor may give directions as to the arrangement of the business
of the expert review panels.
(5) The Minister may for the purposes of—
(a) ensuring procedural fairness in the procedures of the expert review
panels; and
(b) facilitating the proper administration of the expert review
panels,
issue guidelines as to the procedures of expert review panels.
(6) The Convenor may give directions as to the procedures of the expert
review panels but may not give directions inconsistent with any guidelines
issued by the Minister.
(7) In the case of an expert review panel constituted by 3 members,
an act or decision of a majority of the members of the panel constitutes an act
or decision of the panel.
(8) In the case of an expert review panel constituted by
2 members—
(a) an act or decision of both members of the panel constitutes an act or
decision of the panel; and
(b) if the members cannot agree on a matter, a medical expert appointed by
the Convenor will determine the matter as if he or she constituted the expert
review panel.
(9) Subject to this clause and the other provisions of this Schedule, an
expert review panel may determine its own procedures.
6—Powers
and procedures on a referral
(1) An expert review panel may ask a relevant person—
(a) to meet with the panel and answer questions; and
(b) to supply copies of all documents in the possession of the person
which relate to the question referred to the panel; and
(c) to submit to an examination by the panel or by a member of the
panel.
(2) A person or body referring a question to an expert review panel must
submit a document to the panel specifying—
(a) the injury or alleged injury to, or in respect of, which the referred
question relates; and
(b) the facts or questions of fact relevant to the referred question which
the person or body is satisfied have been agreed and those facts or questions
that are in dispute.
(3) A person or body referring a question to an expert review panel must
submit copies of all documents relating to the referred question in the
possession of that person or body to the panel.
(4) If an expert review panel requests and the relevant person consents, a
medical expert who has provided a service to a relevant person in relation to
the relevant injury must—
(a) meet with the panel and answer questions; and
(b) supply relevant documents to the panel.
(5) Any attendance of a person before an expert review panel must be in
private, unless the panel considers that it is necessary for another person to
be present.
(6) Information given to an expert review panel cannot be used in
subsequent proceedings unless—
(a) the proceedings are before a court; or
(b) the relevant person consents to the use of the information.
An opinion, certificate, report or other document furnished by an expert
review panel is admissible in evidence in any proceedings before a
court.
8—Support
staff and facilities
(1) The Minister
must ensure that there are such administrative and ancillary staff as are
necessary for the proper functioning of the expert review panels.
(2) The expert review panels may—
(a) under an arrangement established by the Minister and the appropriate
authority, make use of the services, facilities or staff of a government
department, agency or instrumentality; or
(b) with the approval of the Minister, make use of the services,
facilities or staff of any other entity.
Schedule 2—Related
amendments and transitional provisions
Part 1—Related amendments
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Civil Liability
Act 1936
2—Amendment
of section 3—Interpretation
(1) Section 3—definition of motor
accident—before "arises out of" insert:
is caused by or
(2) Section 3—after the definition of motor vehicle
insert:
MVA motor accident means a motor accident where the motor
vehicle is a motor vehicle as defined in the
Motor
Vehicles Act 1959;
(3) Section 3—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) For the purposes of this Act, personal injury will arise from a motor
accident if the personal injury is caused by or arises out of the use of a motor
vehicle.
3—Amendment
of section 52—Damages for non-economic loss
(1) Section 52(2)—after "If damages are to be awarded for
non-economic loss" insert:
, other than in relation to personal injury arising from an MVA motor
accident"
(2) Section 52—after subsection (2) insert:
(3) Subject to
subsection (4), if damages are to be awarded for non-economic loss in
relation to personal injury arising from an MVA motor accident, they must be
assessed as follows:
(a) the injured
person's total non-economic loss is to be assigned a numerical value (an
injury scale value) on a scale running from 0 to 100 (the
scale reflecting 100 gradations of non-economic loss, from a case in which
the non-economic loss is not severe enough to justify any award of damages to a
case in which the injured person suffers non-economic loss of the gravest
conceivable kind);
(b) in assessing the injury scale value, the court must apply any rules
prescribed by the regulations;
(c) the damages for non-economic loss are to be calculated as
follows:
(i) if the injury scale value is assessed as 31 or less but more than 10
(see
subsection (4))—by
adding to $2 000 (indexed) an amount calculated by multiplying the number
by which the injury scale value exceeds 10 by $1 000 (indexed);
(ii) if the injury scale value is assessed as 45 or less but more than
31—by adding to $23 000 (indexed) an amount calculated by multiplying
the number by which the injury scale value exceeds 31 by $3 000
(indexed);
(iii) if the injury scale value is assessed as 66 or less but more than
45—by adding to $65 000 (indexed) an amount calculated by multiplying
the number by which the injury scale value exceeds 45 by $5 000
(indexed);
(iv) if the injury scale value is assessed as 78 or less but more than
66—by adding to $170 000 (indexed) an amount calculated by
multiplying the number by which the injury scale value exceeds 66 by
$10 000 (indexed);
(v) if the injury scale value is assessed as 79 or
more—$300 000 (indexed).
(4) A person who
suffers personal injury arising from an MVA motor accident may only be awarded
damages for non-economic loss if the injury scale value that applies under
subsection (3)(a)
in relation to the injury exceeds 10.
(5) An amount
applying under
subsection (3)
(and followed by the word "(indexed)") is to be adjusted on 1 July of each
year, beginning on 1 July 2014, by multiplying the stated amount by a
proportion obtained by dividing the Consumer Price Index for the March quarter
of that year by the Consumer Price Index for the March quarter 2013 (with
the amount so adjusted being calculated to the nearest multiple of
$10).
(6) In connection with the operation of
subsection (5),
the amount to be applied with respect to a particular injury is the amount
applying under
subsection (3)
at the time of occurrence of that injury.
After section 56 insert:
56A—Additional provisions relating to motor vehicle
injuries (economic loss)
(1) Any entitlement to damages for economic loss in relation to personal
injury arising from an MVA motor accident applies subject to the provisions of
this section.
(2) A person who suffers personal injury arising from an MVA motor
accident may only be awarded damages for loss or impairment of future earning
capacity if the injury scale value that applies under the regulations in
relation to the injury exceeds 7.
(3) In assessing
damages for loss or impairment of future earning capacity in relation to
personal injury arising from an MVA motor accident (other than with respect to a
discount that would, apart from this section, be made for the usual vicissitudes
of life)—
(a) a court must not take into account—
(i) any inference as to a circumstance in respect of which the court is
unable to evaluate the chance of it occurring; or
(ii) any inference as to a circumstance that the court evaluates as having
less than a 20% chance of occurring; and
(b) an award of damages must be arrived at by taking into account the
several circumstances on which a court may rely, the chance of each occurring,
and the combination of those chances; and
(c) a court must, when making an award of damages, state—
(i) the circumstances that have been taken into account for the purposes
of the award; and
(ii) the inferences that the court has drawn from those circumstances;
and
(iii) the court's evaluation of the chances of each circumstance relied on
occurring; and
(iv) its determination of the resultant award of damages.
(4) Damages awarded for any form of loss or impairment of earning capacity
(whether past or future) in relation to personal injury arising from an MVA
motor accident must, after applying a discount rate (if any), and any other
principle arising under this Act or at common law, including so as to take into
account any actual or presumed contributory negligence, be discounted by a
further 20%.
(5) The maximum amount
of damages that may be awarded to an employed person for loss in relation to
personal injury arising from an MVA motor accident due to the loss of employer
superannuation contributions is the relevant percentage of damages payable for
the loss or impairment of the earning capacity on which the entitlement to those
contributions is based.
(6) In
subsection (5)—
relevant percentage means the percentage of earnings that is
the minimum percentage required by law to be paid as employer superannuation
contributions.
(7) The maximum amount
of damages that may be awarded to a self-employed person for economic loss in
relation to personal injury arising from an MVA motor accident due to the loss
of superannuation contributions made by or on behalf of the person is the
relevant percentage of damages payable for the loss or impairment of the earning
capacity on which the entitlement to those contributions is based.
(8) In
subsection (7)—
relevant percentage means the percentage of earnings that is
the minimum percentage required by law to be paid as employer superannuation
contributions for the benefit of an employee who earns the same amount as the
self-employed person.
5—Amendment
of section 58—Damages in respect of gratuitous
services
Section 58—after subsection (3) insert:
(4) Despite the preceding subsections, in a case involving an injured
person who has suffered personal injury arising from an MVA motor
accident—
(a) damages referred to in subsection (1) are not to be awarded
unless—
(i) the injury scale value that applies under the regulations in relation
to the injury exceeds 10; and
(ii) the services are provided or to be provided—
(A) for at least 6 hours per week; and
(B) for a period of at least 6 consecutive months; and
(b) any hourly rate used for the purposes of determining any damages
awarded to allow for the recompense of gratuitous services of a parent, spouse,
domestic partner or child is not to exceed a rate prescribed by the regulations
for the purposes of this paragraph.
(5) Furthermore, in a
case involving a person who is a participant in the Scheme under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013, subsection (1)
operates subject to the qualification that damages are not to be awarded for the
recompense of gratuitous services of a parent, spouse, domestic partner or child
of the participant in respect of any assessed treatment, care and support needs,
as defined or determined under that Act (whether being past or future needs),
that relate to the motor vehicle injury (as defined by that Act) in respect of
which the person is a participant in that Scheme.
(6) A reference in
subsection (5) to a
person who is a participant in the Scheme under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken to
include a reference to a person who has been an interim participant in that
Scheme (and who has received any treatment, care and support needs under that
Act).
6—Insertion
of sections 58A and 58B
After section 58 insert:
58A—Limitations on damages for participants in
lifetime support scheme
(1) No damages may
be awarded to a person who is a participant in the Scheme under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013 in respect of any
of the treatment, care and support needs of the person, or any excluded
treatment, care and support needs, as defined or determined under that Act
(whether being past or future needs), that relate to the motor vehicle injury
(as defined by that Act) in respect of which the person is a participant in that
Scheme and that arise (or will arise) during the period in respect of which the
person is a participant in the Scheme.
(2)
Subsection (1)
applies—
(a) whether or not the treatment, care and support needs are assessed
treatment, care and support needs under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013; and
(b) whether or not the Lifetime Support Authority is required to make a
payment in respect of the treatment, care and support needs concerned;
and
(c) whether or not any treatment, care, support or service is provided on
a gratuitous basis.
(3) A reference in
subsection (1)
to a person who is a participant in the Scheme under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013 will be taken
to include a reference to a person who has been an interim participant in that
Scheme (and who has received any treatment, care and support needs under that
Act).
58B—Additional provisions relating to death on
account of a motor vehicle injury
(1) Any entitlement to damages for loss of financial support in respect of
the death of a person arising from an MVA motor accident (a relevant loss
of financial support claim) applies subject to the provisions of this
section.
(2) In making an
award in relation to a relevant loss of financial support claim that will
provide for the future (other than with respect to a discount that would, apart
from this section, be made for the usual vicissitudes of life)—
(a) a court must not take into account—
(i) any inference as to a circumstance in respect of which the court is
unable to evaluate the chance of it occurring; or
(ii) any inference as to a circumstance that the court evaluates as having
less than a 20% chance of occurring; and
(b) an award of
damages must be arrived at by taking into account the several circumstances on
which a court may rely, and the combination of those chances; and
(c) a court must, when making an award of damages, state—
(i) the circumstances that have been taken into account for the purposes
of the award; and
(ii) the inferences that the court has drawn from those circumstances;
and
(iii) the court's evaluation of the chances of each circumstance
occurring; and
(iv) its determination of the resultant award of damages.
(3) Damages awarded in relation to a relevant loss of financial support
claim must, after applying a discount rate (if any), and any other principle
arising under this Act or at common law, including so as to take into account
any actual or presumed contributory negligence, be discounted by a further
20%.
7—Amendment
of section 65—Spouse or domestic partner may claim for loss or impairment
of consortium
Section 65—after its present contents (now to be designated as
subsection (1)) insert:
(2) Damages for the loss or impairment of consortium suffered by the
spouse or domestic partner of an injured person on account of personal injury
arising from an MVA motor accident will not be awarded unless the injury scale
value that applies under the regulations in relation to the injury
exceeds 10.
8—Insertion
of Part 9 Division 13
After section 75 insert:
Division 13—Regulations
76—Assessment of motor vehicle
injuries
(1) The regulations
may, in relation to any claim, entitlement or award of damages in respect of
personal injury arising from an MVA motor accident—
(a) require that an examination or assessment be undertaken by an
accredited health professional (see
subsection (2))
in order to obtain advice and evidence in relation to any relevant matter;
and
(b) specify procedures to be followed in connection with any examination
or assessment, including as to the determination or selection of the accredited
health professional who is to undertake the examination or assessment;
and
(c) specify the maximum number of examinations or assessments that may be
made in a particular case; and
(d) prescribe rules that are to be applied with respect to the
determination of any injury scale value under this Act; and
(e) without limiting a preceding paragraph, make provision for the
provision of advice or evidence about diagnosis, causation, prognosis, future
requirements for treatment, care or support, or other matters that are relevant
to any assessment of damages or liability in respect of the injury;
and
(f) make provision for the preparation and furnishing of reports and other
information or material, including as to the procedures or processes associated
with requesting any report, document or other material, the form of any report,
document or other material, and the persons to whom any report, document or
other material is to be provided or made available; and
(g) provide for any other matter that may be relevant to assessing or
determining a claim or entitlement, or making an award of damages.
(2) The designated
Minister may establish an accreditation scheme with respect to health
professionals in connection with regulations under this section.
(3) The accreditation scheme—
(a) may provide for a term or a period of accreditation, and for the
suspension or cancellation of accreditation on specified grounds; and
(b) may specify terms or conditions of accreditation; and
(c) may provide for any aspect of the scheme to be administered or managed
by a person or body specified by the designated Minister; and
(d) may provide that a person holding an accreditation, registration or
other form of authorisation or status under another scheme recognised by the
designated Minister will be taken to hold an accreditation under this section;
and
(e) may be amended or substituted by the designated Minister from time to
time.
(4) For the purposes of the rules that are to apply for the purpose of
assessing any injury scale value under a designated section (being rules that
determine a substantive matter rather than prescribe a procedural matter), the
relevant regulations are the regulations applying at the time of the occurrence
of the relevant injury.
(5) If a person fails to comply with a requirement prescribed under
subsection (1) in
respect of a claim or proceedings made or commenced by the
person—
(a) in the case of a claim—a person or body to which the claim has
been made may decline to consider or deal with the claim while the failure
continues; and
(b) the person is not entitled, until he or she complies with the
requirement, to commence proceedings or to continue proceedings that have been
commenced in respect of the personal injury.
(6) In addition, the regulations may—
(a) require an insurer or the nominal defendant under Part 4 of the
Motor
Vehicles Act 1959 to pay for the costs of examinations and
assessments, and for the preparation and furnishing of reports, documents or
other material, in prescribed circumstances (subject to any limits specified in
the regulations); and
(b) limit the liability of an insurer or the nominal defendant under
Part 4 of the Motor
Vehicles Act 1959 to pay for the costs of examinations and
assessments, and for the preparation and furnishing of reports, documents or
other material, in connection with a claim (and any such regulation may provide
that prescribed costs (if any) be borne by a claimant and will have effect
according to its terms and despite a liability that would otherwise arise under
Part 4 of the Motor
Vehicles Act 1959 or any other Act or law); and
(c) require an insurer or the nominal defendant under Part 4 of the Motor
Vehicles Act 1959 to make a contribution (determined in accordance
with the regulations) towards the costs of the accreditation scheme established
by the Minister under this section (including so that the scheme is fully-funded
through the making of those contributions).
(7) Nothing in this section is intended to prevent or restrict a court
from exercising any judicial power or from determining a matter according to
law.
(8) In this section—
designated Minister means the Minister from time to time
designated by the Governor by proclamation to be the designated Minister for the
purposes of this section;
designated section means any of the following
sections:
(a) section 52;
(b) section 56A;
(c) section 58;
(d) section 65;
health professional means—
(a) a registered health practitioner under the Health Practitioner
Regulation National Law (other than a student); or
(b) a person who is within a class brought within the ambit of this
definition by the regulations.
77—Regulations—general
provisions
(1) Without limiting
section 76, the Governor
may make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) A regulation under this Act may—
(a) refer to or incorporate, wholly or partially and with or without
modification, a document prepared or published by a specified body, either as in
force at the time the regulation is made or as in force from time to time;
and
(b) be of general or limited application; and
(c) make different provision according to the persons or circumstances to
which it is expressed to apply; and
(d) provide that a matter is to be determined according to the discretion
of a prescribed person or body.
Part 3—Amendment of Motor Accident
Commission Act 1992
9—Amendment
of section 14—Functions and objectives of
Commission
Section 14(3)—after paragraph (c) insert:
and
(d) to encourage early and appropriate treatment and rehabilitation for
people who suffer road accident injuries in respect of which the Commission
bears financial responsibility under the policies of compulsory third party
insurance referred to in subsection (1).
Part 4—Amendment of Motor Vehicles
Act 1959
10—Amendment
of section 5—Interpretation
Section 5(1)—after the definition of licence
insert:
LSS Fund levy means the LSS Fund levy under
Part 7 of the
Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013;
11—Amendment
of section 20—Application for registration
Section 20(2)—after paragraph (b) insert:
(ba) the appropriate LSS Fund levy; and
12—Amendment
of section 24—Duty to grant registration
Section 24(1)—after "the appropriate insurance premium"
insert:
, the appropriate LSS Fund levy
13—Amendment
of section 118B—Interpretation of certain provisions where claim made or
action brought against nominal defendant
(1) Section 118B(1)(b)—after "the policy of insurance"
insert:
or the other provisions of this Part
(2) Section 118B(2)—after paragraph (d) insert:
(da) section 126A;
(3) Section 118B(2)(e)—delete "and 127A" and
substitute:
, 127A, 127B and 127C
After section 126 insert:
126A—Claim for compensation
(1) A person who
seeks to make a claim for damages or other compensation in relation to the death
of, or bodily injury to, a person for which insurance is provided under this
Part must furnish the insurer or the nominal defendant (as the case may be) with
a notice of claim that complies with the requirements of
subsection (2).
(2) A notice under
subsection (1)—
(a) must be provided at a time or within a period prescribed by the
regulations; and
(b) must be furnished in a manner and form approved by the Minister;
and
(c) must set out or be
accompanied by—
(i) a statement setting out details of the claim; and
(ii) a certificate or opinion as to the nature and probable cause of the
death or injury (as the case requires) provided by a medical practitioner;
and
(iii) the relevant police report number for any report provided to a
police officer under the Road
Traffic Act 1961 in connection with the relevant accident;
and
(iv) such other report or other information in relation to the accident or
the claim as may be prescribed by the regulations; and
(d) must be accompanied by a statement (in a form prescribed by the
regulations) authorising the insurer or the nominal defendant to have access to
records and other sources of information relevant to the claim.
(3) Any material or information required under
subsection (2)(c)
must comply with any requirements prescribed by the regulations.
(4) An insurer and the nominal defendant must establish practices and
procedures designed to assist claimants to comply with the requirements of the
preceding subsections.
(5) If a person fails
to comply with a preceding subsection—
(a) the insurer or the nominal defendant (as the case may be) may decline
to consider or deal with the claim while the failure continues; and
(b) the person is not entitled, until he or she complies with the relevant
requirements, to commence proceedings or to continue proceedings that have been
commenced in respect of the death or injury.
(6)
Subsection (5) operates
subject to any provision made by the regulations about qualifying or restricting
the effect of failing to comply with the requirements of this section.
(7) In this section—
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student).
15—Amendment
of section 127—Medical examination of claimants
(1) Section 127(2)(a)—delete paragraph (a)
(2) Section 127(3), (4) and (5)—delete
subsections (3), (4) and (5)
(3) Section 127(8)—delete subsection (8)
16—Amendment
of section 127A—Control of medical services and charges for medical
services to injured persons
Section 127A—after subsection (3) insert:
(3a) In addition, the Minister may, by instrument in writing, in relation
to a particular case or class of case, increase a limit or charge that applies
for the purposes of this section (and the prescribed limit or prescribed scale
will, in that case, then be taken to be increased to the extent allowed by the
instrument).
17—Insertion
of sections 127B and 127C
After section 127A insert:
127B—Liability of insurer to pay treatment, care
and support costs
(1) In this section—
treatment, care and support needs of a person are the
person's needs for or in connection with any of the following:
(a) medical treatment (including pharmaceuticals);
(b) dental treatment;
(c) rehabilitation;
(d) ambulance transportation;
(e) aids and appliances;
(f) prostheses;
(g) such other kinds of treatment, care, support or services as may be
prescribed by the regulations.
(2) Subject to this section, if—
(a) a person who has not attained the age of 16 years suffers bodily
injury caused by or arising out of the use of a motor vehicle; and
(b) the incident to which the bodily injury is attributable occurs in
South Australia,
then the insurer is liable to pay all the necessary and reasonable expenses
with respect to the treatment, care and support needs of the person (including
after he or she attains the age of 16 years) that are attributable to that
bodily injury.
(3) This section applies whether or not a liability at common law exists
against the owner of the relevant motor vehicle or other person on account of
the occurrence of the bodily injury (but any award of damages must take into
account the extent to which an entitlement arises under this section).
(4) This section does not apply in relation to a participant in the Scheme
under the Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013.
(5) Section 127A will apply to any services under this section
insofar as they are prescribed services under that section.
127C—Control of legal costs
(1) Subject to
subsection (3), a
court before which proceedings are brought in respect of a claim for which a
person is insured under this Part must comply with the following provisions as
to costs in relation to the claimant:
(a) if the total amount
recovered in respect of the claim does not exceed $25 000—the court
must not award in favour of the claimant costs as between party and party unless
the court is of the opinion that there are exceptional circumstances justifying
the award of such costs;
(b) if the total amount recovered in respect of the claim exceeds
$25 000 but does not exceed $100 000—the court must not award in
favour of the claimant costs in respect of the proceedings in excess of the
costs applying under the designated scale unless the court is satisfied that
there are exceptional circumstances justifying the award of additional
costs.
(2) A court before
which proceedings are brought in respect of a claim for which a person is
insured under this Part must comply with the following provisions as to costs in
relation to the insurer:
(a) if the total
amount claimed does not exceed $25 000—the court must not award in
favour of the insurer costs as between party and party unless the court is of
the opinion that there are exceptional circumstances justifying the award of
such costs;
(b) if the total amount claimed exceeds $25 000 but does not exceed
$100 000—the court must not award in favour of the insurer costs in
respect of the proceedings in excess of the costs applying under the designated
scale unless the court is satisfied that there are exceptional circumstances
justifying the award of additional costs.
(3) If proceedings are
brought before a court in order to obtain approval of a compromise or settlement
that relates to a person who is under a legal disability,
subsection (1)(a)
does not apply so as to prevent an award of costs as between party and party
insofar as the costs are directly related to obtaining that approval.
(4) In this section—
designated scale means the scale of costs that apply in
relation to civil proceedings in the Magistrates Court of South Australia (even
if the claim against the insurer is for an amount that exceeds the
jurisdictional limit of that court), subject to any modifications made by the
regulations for the purposes of this section.
After section 134 insert:
134A—Review of scheme
(1) The Minister
must cause a review of this Part to be undertaken if the Class 1 premium
imposed in respect of insurance under this Part exceeds, in relation to a
particular financial year, the prescribed percentage of State average weekly
earnings that is current at 1 July of that financial year.
(2) The Minister must ensure—
(a) that the review is completed within 6 months after the end of the
financial year that applies under
subsection (1);
and
(b) that the results of the review are set out in a written report
furnished to the Minister.
(3) The Minister must cause a copy of a report furnished to the Minister
under this section to be laid before both Houses of Parliament within
6 sitting days after receiving the report.
(4) If a review is undertaken under this section, this section will then
not apply in relation to the next 2 financial years immediately following
the financial year in which the review is completed.
(5) In this section—
Class 1 premium means a premium payable under this Part
in respect of passenger cars garaged within Metropolitan Adelaide identified,
from time to time, by the Minister for the purposes of this definition by notice
in the Gazette;
State average weekly earnings means the amount determined in
accordance with the regulations by reference to publications of the Australian
Statistician.
Part 5—Amendment of Stamp Duties
Act 1923
19—Insertion
of Part 3 Division 11
After section 82A insert:
Division 11—LSS Fund levy
82B—Interpretation
In this Division—
Authority means the Lifetime Support Authority of South
Australia established under the
Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013;
LSS Fund levy means the LSS Fund levy under
Part 7 of the
Motor
Vehicle Accidents (Lifetime Support Scheme) Act 2013.
82C—Lodgment of statement and payment of
duty
The Authority is liable under this section to pay duty in respect of each
LSS Fund levy paid to the Authority and must, under a scheme established by
the Treasurer for the purposes of this Division (at intervals determined under
that scheme)—
(a) lodge with the Commissioner a statement in an approved form setting
out the total of all such levies received by the Authority during a preceding
period specified under the scheme; and
(b) pay to the Commissioner duty equivalent to 11% of that
amount.
Part 6—Transitional
provisions
20—Civil
Liability Act—transitional provisions
(1) In this clause—
principal Act means the Civil
Liability Act 1936.
(2) An amendment
made by this Act—
(a) that amends section 52, 58 or 65 of the principal Act;
or
(b) that inserts section 56A, 58A or 58B into the principal
Act,
does not affect a cause of action, right or liability that arose before the
commencement of the amendment.
(3) Section 58A
of the principal Act (as inserted by this Act) applies in relation to a person
who is a participant in the Scheme under this Act in respect of a motor vehicle
injury that results from an MVA motor accident (as defined by the principal Act)
occurring on or after the commencement of
section 5 of this
Act.
(4)
Subclauses (2) and
(3) do not derogate
from the operation section 105 of the Motor
Vehicles Act 1959.
21—Motor
Vehicles Act—transitional provisions
(1) In this clause—
principal Act means the Motor
Vehicles Act 1959.
(2) Section 126A of the principal Act (as inserted by this Act)
applies to any claim made after the commencement of that section (including a
claim in relation to a death or bodily injury that results from an accident that
occurred before that commencement).
(3) Section 127B of the principal Act (as inserted by this Act)
applies in relation to a death or bodily injury that results from an accident
occurring on or after the commencement of that section.
(4) Section 127C of the principal Act (as inserted by this Act)
applies in relation to a claim in respect of a death or a bodily injury that
results from an accident occurring on or after the commencement of that
section.
22—Contribution
to liabilities of Authority—transitional provisions
(1) The Treasurer may,
after consultation with MAC and the Authority, determine an amount that (in the
opinion of the Treasurer) represents the amount derived by MAC from premiums in
respect of policies of insurance under Part 4 of the Motor
Vehicles Act 1959 in respect of any treatment, care and support
needs of persons who become participants in the Scheme under this Act after the
commencement of the Scheme and the commencement of section 58A of the Civil
Liability Act 1936 (as inserted by this Act), including so as to
provide an amount with respect to unexpended risk reserves held by MAC that are
attributable to road accidents for which provision is made but for which
liability does not eventually arise.
(2) The Treasurer may make a determination under
subclause (1)—
(a) in respect of past and future premiums payable under Part 4 of the
Motor
Vehicles Act 1959 (applying such estimates as the Treasurer thinks
fit); and
(b) on the basis of—
(i) estimates with respect to reductions in the liability and financial
requirements of MAC in the future; and
(ii) estimates with respect to the liabilities and financial requirements
of the Authority under this Act in the future,
and after taking into account such other matters as the Treasurer thinks
fit.
(3) An amount determined by the Treasurer under
subclause (1) will
be payable by MAC (from out of the Compulsory Third Party Fund established under
Part 4 of the Motor
Accident Commission Act 1992) to the Authority (for payment into
the Lifetime Support Scheme Fund established under
Part 7 of this
Act) at a time determined by the Treasurer after consultation with MAC and the
Authority.
(4) This clause operates despite any provision in the Motor
Accident Commission Act 1992 about payments into or out of the
Compulsory Third Party Fund.
(5) In this clause—
MAC means the Motor Accident Commission.