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)
authorise an insurer or the nominal defendant under Part 4 of the
Motor Vehicles Act 1959 to require a claimant to submit to an assessment
or examination of a prescribed kind; and
(b)
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
(c)
specify procedures to be followed in connection with any examination or
assessment, including as to the determination or selection of an accredited
health professional who is to undertake the examination or assessment; and
(d)
specify the maximum number of examinations or assessments that may be made in
a particular case; and
(e)
prescribe rules that are to be applied with respect to the determination of
any injury scale value under this Act; and
(f)
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
(g) 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
(h)
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) The rules that are
to apply for the purpose of assessing injury scale values
("ISVs") for multiple injuries must include 1 or more provisions that
adopt the following principles:
(a) a
court must consider the range of ISVs for the dominant injury of the multiple
injuries;
(b) in
order to reflect the level of adverse impact of multiple injuries on an
injured person, a court may assess the ISV for the multiple injuries as being
higher in the range of ISVs for the dominant injury of the multiple injuries
than the ISV that the court would assess for the dominant injury only;
(c) if a
court considers that the level of impact of multiple injuries on an injured
person is so severe that the maximum ISV for the dominant injury is inadequate
to reflect the level of impact, the court may make an assessment of the ISV
for the multiple injuries that is higher than the maximum ISV for the dominant
injury, subject to the following qualifications:
(i)
the ISV for multiple injuries cannot exceed 100;
(ii)
the ISV for multiple injuries should rarely be more than
25% higher than the maximum ISV for the dominant injury.
(5) In connection with
the operation of subsection (4), a dominant injury, in relation to
multiple injuries, is—
(a)
subject to paragraph (b)—the injury of the multiple injuries having
the highest range; or
(b) if
the highest range for 2 or more of the injuries of the multiple injuries
is the same—the injury of those injuries selected as the dominant injury
by a court assessing an ISV.
(6)
Subsections (4) and (5) do not limit any other principle or provision
that may apply under the regulations in relation to the assessment and
determination of an ISV for a particular injury.
(7) 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.
(8) 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.
(9) 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).
(10) A regulation
under subsection (1)(e) may only be made on the recommendation of the
designated Minister.
(11) Before the
designated Minister makes a recommendation under subsection (10), the
designated Minister must consult with—
(a) the
Attorney-General; and
(b) The
South Australian Branch of the Australian Medical Association Incorporated;
and
(c) The
Law Society of South Australia.
(12) If an association
referred to in subsection (11) objects to any matter contained in a
regulation under subsection (10), the designated Minister must, at the
request of that association, prepare a report that—
(a)
provides information about the consultation that has been undertaken; and
(b) sets
out the objection that has been made (including the reasons put forward by the
association for its objection).
(13) The Minister must
cause a copy of a report under subsection (12) to be laid before both
Houses of Parliament as soon as is reasonably practicable after the request is
made.
(14) In addition, a
regulation that would have the effect of changing the injury scale value
applying with respect to a particular injury so that a person who suffers that
injury (and no other injury) would, on account of that change, no longer have
a right to damages for non-economic loss under section 52(3) and (4)
cannot come into operation until the time for disallowance of the regulation
has passed.
(15) 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.
(16) 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.