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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Motor Vehicles (Third Party Insurance) Amendment
Bill 2010
A BILL FOR
An Act to amend the Motor
Vehicles Act 1959; and to make related amendments to the Civil
Liability Act 1936.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Motor Vehicles
Act 1959
4Amendment of section
99—Interpretation
5Amendment of section 116—Claim against
nominal defendant where vehicle uninsured
6Amendment of section
118B—Interpretation of certain provisions where claim made or action
brought against nominal defendant
7Amendment of section 124—Duty to
cooperate with insurer
8Insertion of section
124AA
124AALimitation of
liability in respect of foreign awards
9Amendment of section
124A—Recovery by insurer
10Amendment of section 124AB—Recovery of
excess in certain cases
11Amendment of section 127—Medical
examination of claimants
12Insertion of section
127AB
127ABCertain
requirements in respect of claims
13Amendment of Schedule
4—Policy of insurance
Schedule 1—Related amendments and
transitional provisions
Part 1—Amendment of
Civil Liability Act 1936
1Amendment of section
52—Damages for non-economic loss
Part 2—Transitional
provisions
2Transitional provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Motor Vehicles (Third Party Insurance)
Amendment Act 2010.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Motor Vehicles
Act 1959
4—Amendment
of section 99—Interpretation
(1) Section 99(1)—after the definition of GST law
insert:
heavy vehicle driver fatigue scheme means a scheme for the
management of fatigue in drivers of regulated heavy vehicles—
(a) established by regulations made under the Road
Traffic Act 1961; or
(b) established under the law of another State or a Territory;
or
(c) brought within the ambit of this definition by the
regulations;
(2) Section 99(1)—after the definition of participant
insert:
parties in the chain of responsibility—a person is a
party in the chain of responsibility in relation to a regulated heavy vehicle if
the person falls within the chain of responsibility in relation to the vehicle
as specified by regulations made for the purposes of this definition;
(3) Section 99(1)—after the definition of policy of
insurance insert:
regulated heavy vehicle has the same meaning as in
section 110AA of the
Road
Traffic Act 1961;
relevant offence against a heavy vehicle driver fatigue
scheme means an offence against such a scheme consisting of driving whilst
fatigued or exceeding the allowable work time for a driver or failing to have
the required rest time for a driver;
(4) Section 99(3)—delete "as arising" and substitute:
arising
(5) Section 99(3)—after "only if it is a" insert:
direct
(6) Section 99—after subsection (3) insert:
Examples—
Examples of situations that would not be expected to fall within the ambit
of subsection (3) include—
(a) death or bodily injury caused by or arising out of the displacement of
goods while a motor vehicle is being loaded or unloaded;
(b) death or bodily injury caused by or arising out of the unintended
movement of a motor vehicle while the vehicle is being displayed, serviced,
repaired, restored or equipped.
(7) Section 99(3a)—delete "as arising" and substitute:
arising
(8) Section 99(4)—delete "as arising" and substitute:
arising
5—Amendment
of section 116—Claim against nominal defendant where vehicle
uninsured
(1) Section 116(7)(c)(iii)—delete ".15 grams" and
substitute:
.1 grams
(2) Section 116—after subsection (7) insert:
(a) a sum is properly paid by the nominal defendant to satisfy a claim
made or judgment obtained in respect of death or bodily injury caused by or
arising out of the use of an uninsured motor vehicle; and
(b) the driver of the uninsured vehicle was wholly or partly liable for
the death or bodily injury; and
(c) the driver of the
uninsured vehicle—
(i) committed an offence against section 43 of the Road
Traffic Act 1961; or
(ii) if the uninsured vehicle was a regulated heavy
vehicle—committed a relevant offence against a heavy vehicle driver
fatigue scheme,
the nominal defendant may, by action in a court of competent jurisdiction,
recover that sum, or such part of that sum as the court thinks just and
reasonable in the circumstances, together with costs from the driver or a person
liable in respect of the acts or omissions of the driver.
(3) Section 116(7a)—after paragraph (b) insert:
or
(c) whether the driver of the uninsured vehicle—
(i) committed an offence against section 43 of the Road
Traffic Act 1961; or
(ii) committed a relevant offence against a heavy vehicle driver fatigue
scheme,
(4) Section 116(7a)—delete "subsection (7)" and
substitute:
this section
(5) Section 116—after subsection (7a) insert:
(7ab) If the nominal
defendant does not rely on subsection (7a)(c), the question of whether a
person has—
(a) committed an offence against section 43 of the Road
Traffic Act 1961; or
(b) committed a relevant offence against a heavy vehicle driver fatigue
scheme,
is to be determined on the balance of probabilities.
(a) a sum is properly paid by the nominal defendant to satisfy a claim
made or judgment obtained in respect of death or bodily injury caused by or
arising out of the use of an uninsured regulated heavy vehicle; and
(b) the driver of the regulated heavy vehicle—
(i) was wholly or partly liable for the death or bodily injury;
and
(ii) committed a relevant offence against a heavy vehicle driver fatigue
scheme; and
(c) a party in the chain of responsibility in relation to the regulated
heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly
concerned in, or a party to, the commission of the offence,
the nominal defendant may, by action in a court of competent jurisdiction,
recover from the party so much of the sum paid or costs incurred by the nominal
defendant as the court thinks just and reasonable in the
circumstances.
(7ad) For the purposes of
subsection (7ac),
the question of whether a party in the chain of responsibility in relation to a
regulated heavy vehicle has aided, abetted, counselled, procured or induced, or
been knowingly concerned in, or a party to, the commission of a relevant offence
against a heavy vehicle driver fatigue scheme is to be determined on the balance
of probabilities.
(7ae) If an accident caused by, or arising out of the use of, an uninsured
regulated heavy vehicle results in the death of, or bodily injury to, a person,
a party in the chain of responsibility in relation to the vehicle must not
persuade or attempt to persuade the driver of the vehicle to contravene or fail
to comply with an obligation owed by the driver to the nominal defendant under
this Part.
Maximum penalty: $10 000.
(6) Section 116(7d)—after paragraph (b) insert:
or
(c) committed an offence against section 43 of the Road
Traffic Act 1961; or
(d) committed a relevant offence against a heavy vehicle driver fatigue
scheme.
6—Amendment
of section 118B—Interpretation of certain provisions where claim made or
action brought against nominal defendant
(1) Section 118B(2)(b) and (c)—delete paragraphs (b) and (c) and
substitute:
(b) sections 124 and 124AA;
(2) Section 118B(2)(e)—delete "and 127A" and substitute:
, 127A and 127AB
7—Amendment
of section 124—Duty to cooperate with insurer
(1) Section 124(1)—after paragraph (c) insert:
(ca) the name, date of birth and address of the driver of the motor
vehicle at the time of the accident; and
(2) Section 124(3a), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $5 000.
(3) Section 124(6a)—delete "upon an insured person"
After section 124 insert:
124AA—Limitation of liability in respect of foreign
awards
(1) This section applies in relation to actions brought before a court of
another country or state (except a state or territory of the
Commonwealth).
(2) Any limitation on
liability for damages for death or bodily injury arising out of the use of a
motor vehicle that is relevant to the operation of this Part and the degree of
liability under the policy of insurance under Schedule 4 (including, but
not limited to, the Civil
Liability Act 1936) is a substantive law of the State and is
intended to apply in relation to any action that arises out of the occurrence of
the death or bodily injury—
(a) irrespective of where the death or bodily injury occurred;
and
(b) despite the fact that the court before which the action is brought
would not (but for this subsection) apply, or take into account, the law of this
State.
(a) an action is brought in respect of death or bodily injury arising out
of the use of an insured motor vehicle in a court that is not a court of the
State; and
(b) despite
subsection (2),
the court awards an amount to a person that is in excess of the amount (if any)
that would have been awarded in a similar action before a court of the State;
and
(c) the insurer is liable to pay the amount awarded,
the following provisions apply:
(d) the insurer is
entitled to recover the excess from, or set off the excess against any
payment to be made to, the person to whom the amount is awarded (the
judgment creditor);
(e) the insured person's liability to the judgment creditor is fully
discharged on payment by the insurer to the judgment creditor
of—
(i) the amount awarded; or
(ii) the amount awarded less the amount of the excess.
(4) In the course of proceedings under
subsection (3)(d),
a court may—
(a) receive in evidence any transcript of evidence in proceedings before
the court by which the amount was awarded and draw any conclusion of fact from
the evidence it considers proper; or
(b) adopt any of the court's findings of fact.
9—Amendment
of section 124A—Recovery by insurer
(1) Section 124A(1)(b)—delete ".15 grams" and substitute:
.1 grams
(2) Section 124A(1a)—after paragraph (b) insert:
or
(c) whether the insured person—
(i) committed an offence against section 43 of the Road
Traffic Act 1961; or
(ii) committed a relevant offence against a heavy vehicle driver fatigue
scheme,
(3) Section 124A(1a)—delete "subsection (1)" and
substitute:
this section
(4) Section 124A(1a)—redesignate subsection (1a) as amended by
this section as subsection (2a) and relocate the subsection so that it
follows subsection (2)
(5) Section 124A(2)—before paragraph (a) insert:
(aa) contravened or failed to comply with a term of the policy of
insurance by committing—
(i) an offence against section 43 of the Road
Traffic Act 1961; or
(ii) a relevant offence against a heavy vehicle driver fatigue scheme;
or
(6) Section 124A(2)(a)—delete "a term" and substitute:
any other term
(7) Section 124A—before subsection (3) insert:
(2b) If the insurer
does not rely on subsection (2a)(c), the question of whether a person
has—
(a) committed an offence against section 43 of the Road
Traffic Act 1961; or
(b) committed a relevant offence against a heavy vehicle driver fatigue
scheme, or has aided, abetted, counselled, procured or induced, or been
knowingly concerned in, or a party to, the commission of such an
offence,
is to be determined on the balance of probabilities.
(8) Section 124A—after subsection (3) insert:
(a) a sum is properly paid by the insurer to satisfy a claim made or
judgment obtained in respect of death or bodily injury caused by or arising out
of the use of an insured regulated heavy vehicle; and
(b) the driver of the regulated heavy vehicle—
(i) was wholly or partly liable for the death or bodily injury;
and
(ii) has, to the prejudice of the insurer, contravened or failed to comply
with a term of the policy of insurance by committing a relevant offence against
a heavy vehicle driver fatigue scheme; and
(c) a party in the chain of responsibility in relation to the regulated
heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly
concerned in, or a party to, the commission of the offence,
the insurer may, by action in a court of competent jurisdiction, recover
from the party so much of the sum paid or costs incurred by the insurer as the
court thinks just and reasonable in the circumstances.
(5) For the purposes of
subsection (4),
the question of whether a party in the chain of responsibility in relation to a
regulated heavy vehicle aided, abetted, counselled, procured or induced, or was
knowingly concerned in, or a party to, the commission of a relevant offence
against a heavy vehicle driver fatigue scheme is to be determined on the balance
of probabilities.
(6) If the death of, or bodily injury to, a person is caused by or arises
out of the use of an insured regulated heavy vehicle, a party in the chain of
responsibility in relation to the vehicle must not persuade or attempt to
persuade the driver of the vehicle to contravene or fail to comply with an
obligation owed by the driver to the insurer under this Part.
Maximum penalty: $10 000.
10—Amendment
of section 124AB—Recovery of excess in certain cases
(1) Section 124AB(1)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) if the money paid and costs incurred by the insurer in respect of the
liability do not exceed the prescribed amount—
(i) the amount of that money paid and costs incurred; or
(ii) if the amount to be recovered from the insured person is received
within 1 month following a first request for payment—95% of the
amount of that money paid and costs incurred; and
(b) if the money paid and costs incurred by the insurer exceed the
prescribed amount—
(i) the prescribed amount; or
(ii) if the amount to be recovered from the insured person is received
within 1 month following a first request for payment—95% of the
prescribed amount.
(2) Section 124AB—after subsection (2) insert:
(3) For the purposes
of this section, the prescribed amount is $460.
(4) The amount
prescribed by
subsection (3)
will be indexed so that it is adjusted on 1 January of each year, beginning
on 1 January 2012, by multiplying the stated amount by a proportion
obtained by dividing the CPI for the September quarter of the immediately
preceding year by the CPI for the September quarter 2010 (with the amount so
adjusted being rounded up to the nearest multiple of $10).
(5) A reference in this section to the prescribed amount in connection
with costs incurred and money paid by the insurer in respect of a liability
arising out of an accident is a reference to the prescribed amount for the year
in which the accident occurred (having regard to any adjustment made to the
prescribed amount as required under
subsection (4)).
11—Amendment
of section 127—Medical examination of claimants
Section 127(5)(c)—delete "or compensation" and substitute:
, compensation, interest or costs
After section 127A insert:
127AB—Certain requirements in respect of
claims
(1) A person claiming damages or other compensation in respect of death or
bodily injury caused by or arising out of the use of a motor vehicle must
cooperate fully in respect of his or her claim with the insurer for the purpose
of giving the insurer sufficient information—
(a) to be satisfied as to the validity of the claim and, in particular, to
assess whether the claim or any part of the claim may be fraudulent;
and
(b) to be able to make an early and informed assessment of liability;
and
(c) to be able to make an informed offer of settlement (if
appropriate).
(2) In particular, the claimant must comply with any reasonable request by
the insurer to furnish information or to produce specified documents or
records.
(3) The insurer may require a claimant to verify by statutory declaration
any information, document or record furnished or produced to the
insurer.
(4) If a claimant fails to comply with this section—
(a) the claimant is not entitled, until he or she complies with this
section, to commence proceedings or to continue proceedings that have been
commenced in respect of the injury or death; and
(b) the claimant is not entitled to damages, compensation, interest or
costs for any period during which the failure continues.
(5) A person must not furnish information, or produce a document or
record, under this section that is, to his or her knowledge, false or misleading
in a material particular.
Maximum penalty: $50 000 or imprisonment for 1 year.
13—Amendment
of Schedule 4—Policy of insurance
(1) Schedule 4 clause 1—delete ", or arising out of the use of," and
substitute:
or arising out of the use of
(2) Schedule 4 clause 2(c)—delete ".15 grams" and
substitute:
.1 grams
(3) Schedule 4 clause 2—after paragraph (f) insert:
or
(g) if the person is the driver of the vehicle when it is involved in an
accident in which a person is killed or injured—commit an offence against
section 43 of the Road
Traffic Act 1961; or
(h) if the vehicle is a regulated heavy vehicle—commit a relevant
offence against a heavy vehicle driver fatigue scheme.
Schedule 1—Related
amendments and transitional provisions
Part 1—Amendment of Civil Liability
Act 1936
1—Amendment
of section 52—Damages for non-economic loss
(1) Section 52(2)(a)—delete "equal gradations of non-economic loss"
and substitute:
equal gradations that are strictly applied according to the severity of the
non-economic loss
(2) Section 52(2)(a)—after "conceivable kind" insert:
and so as to provide, at this point (insofar as reasonably practicable),
strict proportionality against that standard between injured persons according
to the extent of non-economic loss that has been suffered
(3) Section 52(2)—after paragraph (a) insert:
Example—
Suppose A claims damages for personal injury. An assessment of A's injury
results in the conclusion that the level of non-economic loss represents
one fifth of the gravest loss conceivable. The numerical value to be
assigned to A's non-economic loss should be 12.
Part 2—Transitional
provisions
(1) Subject to this clause, an amendment made to the Motor
Vehicles Act 1959 by this Act does not affect a cause of action,
right or liability that arose before the commencement of the
amendment.
(2) Section 124AA(3)
of the Motor
Vehicles Act 1959, inserted by
section 8 of
this Act, applies in relation to any action commenced after the day on which the
Bill for this Act was first introduced in the Parliament.
(3) Section 127AB of the Motor
Vehicles Act 1959 (the relevant section), inserted by
section 12 of this
Act, applies to a claimant irrespective of whether his or her claim was made
before or after the commencement of the relevant section.
(4) The amendments to the Civil
Liability Act 1936 effected by
clause 1 of
this Schedule require the relevant proportionality to be reflected in awards of
damages made after the commencement of that clause.