MOTOR ACCIDENTS ACT 1988 - SCHEDULE 4
MOTOR ACCIDENTS ACT 1988 - SCHEDULE 4
SCHEDULE 4 – Savings, transitional and other provisions
Part 1 - Preliminary
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Actthe Miscellaneous Acts (Motor Accidents) Amendment Act 1988the Motor Accidents (Amendment) Act 1989the Motor Accidents (Amendment) Act 1990the Statute Law (Miscellaneous Provisions) Act 1991the Motor Accidents (Amendment) Act 1993the Motor Accidents (Amendment) Act 1994the Motor Accidents Amendment Act 1995the Motor Accidents Amendment Act 1997the Traffic Legislation Amendment Act 1997the Road Transport (Vehicle Registration) Act 1997 , but only in relation to the amendments made to this Actthe Road Transport (Vehicle Registration) Amendment Act 1998 , but only in relation to the amendments made to this Actthe Motor Accidents Amendment Act 1998the Motor Accidents Legislation Amendment Act 2004Civil Liability Legislation Amendment Act 2008
(2) Any such provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 - Provisions arising from the enactment of this Act and the Miscellaneous Acts (Motor Accidents) Amendment Act 1988
2 Recovery of certain contributions
(1) The GIO may, after the date of commencement of Part 2 of this Act, recover a contribution required to be paid by any person under Part 3 of the Transport Accidents Compensation Act 1987 in relation to an intermediate transport accident within the meaning of section 138 of this Act as if the Transport Accidents Compensation Act 1987 had not been repealed.
(2) Any such contribution may be increased by the amount of any additional liability imposed as a consequence of the enactment of this Act.
3 Early assessment of claims
(1) The GIO may, before the date of commencement of Part 2, receive and assess claims in respect of intermediate transport accidents (within the meaning of Part 10) as if the whole of this Act had been in force at the time the claim is made.
(2) The GIO shall not, before the date of commencement of Part 2, make any payment in respect of any such claim.
Part 3 - Provisions arising from the enactment of the Motor Accidents (Amendment) Act 1989
4 Constitution of Board of Directors
(1) The amendments to section 84 made by the Motor Accidents (Amendment) Act 1989 do not affect the appointment or term of office of a person who held office as a part-time director of the Board of Directors of the Authority immediately before the amendments took effect.
(2) For the purposes of section 84 (2A), as inserted by the Motor Accidents (Amendment) Act 1989 :(a) Robert Avison Scott shall be taken to be a person who, at the time of his appointment, was nominated or approved by licensed insurers, and(b) Raymond Bruce Willing shall be taken to be a person who, at the time of his appointment, was nominated by the National Roads and Motorists' Association.
5 Transitional insurance arrangements
(1) In this clause and clause 6:
"registered motor vehicle" means a registered motor vehicle within the meaning of this Act, the registration of which expires after the date on which Part 2 of this Act commences and in relation to which a contribution has been paid under the 1987 Act to the TAC Fund.
"the 1987 Act" means the Transport Accidents Compensation Act 1987 .
"the TAC Fund" means the Transport Accidents Compensation Fund established under section 15 of the 1987 Act.
(2) On or before the date on which Part 2 of this Act commences, the Authority shall allocate registered motor vehicles among licensed insurers in accordance with the following provisions:(a) Registered motor vehicles shall be allocated among licensed insurers on such basis as may be determined by the Authority.(b) The allocation shall, as far as practicable, be made in accordance with the market share of each insurer.(c) Registered motor vehicles shall be allocated so that, as far as practicable, an equitable distribution is made of registered motor vehicles in each category for which a different amount of contribution has been paid under the 1987 Act to the TAC Fund.
(3) On the date on which Part 2 of this Act commences, a licensed insurer to which a registered motor vehicle has been allocated shall be taken to have issued a third-party policy in respect of the vehicle for the balance of the period for which the vehicle is registered.
(4) The Authority shall, on request by any person, inform the person of the name and business address of the licensed insurer to which a registered motor vehicle has been allocated.
(5) This clause applies, with any necessary modifications, to the allocation of a trader's plate current on the date on which Part 2 of this Act commences in the same way as it applies to the allocation of a registered motor vehicle and applies so as to cause a third-party policy to be taken to have issued in respect of motor vehicles to which the trader's plate is to be fixed before the termination of the period for which the trader's plate is issued.
5A Granting of licences before 1.7.91 which enable insurance to be effected for periods commencing on or after 1.7.91
(1) The Authority may grant a licence under Division 1 of Part 8 before 1 July 1991 which authorises the applicant to effect third-party insurance, before or after 1 July 1991, but only for periods of insurance which commence on or after 1 July 1991.
(2) Section 102 (6) does not apply to a licence granted in accordance with this clause.
(3) Where the Authority proposes to grant a licence in accordance with this clause, it must give 14 days' notice of the proposal to all licensed insurers specifying the name of the corporation making the application.
6 Funding of transitional insurance arrangements
(1) Each licensed insurer shall, on the date on which Part 2 of this Act commences, be paid out of the TAC Fund such sum as the Minister determines towards meeting claims that are likely to arise under third-party policies taken to have been issued under clause 5 by the insurer.
(2) Before making a determination under this clause in relation to a licensed insurer, the Minister shall obtain the advice of an actuary as to the sum to be paid and shall consult with the insurer.
Part 4 - Provisions arising from the enactment of the Motor Accidents (Amendment) Act 1990
7 Operation of certain amendments
(1) The amendments made by section 3 of, and Schedule 1 (2), (3) and (6) to, the Motor Accidents (Amendment) Act 1990 do not apply to registrations (and renewals of registrations) which expire on or before 30 June 1991 but only to those which expire on or after 1 July 1991.
(2) This Act, as in force immediately before 1 July 1991, continues to apply to the renewal of registration of a motor vehicle where the registration expires on or before 30 June 1991.
8 Premiums for insurance
For the purpose of enabling a licensed insurer, before 1 July 1991, to accept a premium and issue a certificate of insurance in relation to a period of insurance which commences on or after that date, section 10 (as proposed to be substituted by the Motor Accidents (Amendment) Act 1990 ) is taken to have commenced on the date of assent to that Act.
Part 5 - Provisions arising from the enactment of the Motor Accidents (Amendment) Act 1993
9 General application of amendments
An amendment made by the Motor Accidents (Amendment) Act 1993 applies to:
(a) motor accidents occurring before the commencement of the amendment as well as to motor accidents occurring after that commencement, and
(b) claims made and proceedings brought before the commencement of the amendment that have not been finally determined before that commencement as well as to claims made and proceedings brought after that commencement,except as provided by this Part.
10 Commencement and duration of third-party policies
Section 12, as substituted by the Motor Accidents (Amendment) Act 1993 , does not apply to a third-party policy that is taken to have been issued before the commencement of Schedule 1 (1) to that Act.
11 Late making of claims
Section 43A does not apply to a claim made before the commencement of that section.
12 Challenging claims for failure to comply with sec 44 or 44A
Section 44B does not apply to a claim made before the commencement of that section.
13 Maximum amount of damages for provision of certain home care services
Section 72, as substituted by the Motor Accidents (Amendment) Act 1993 , does not apply to a motor accident occurring before the commencement of Schedule 1 (13) to that Act.
14 Respite care
Section 72A does not apply to a motor accident occurring before the commencement of that section.
15 Determination of non-economic loss
Section 79, as amended by the Motor Accidents (Amendment) Act 1993 , does not apply to a motor accident occurring before the commencement of Schedule 1 (15) to that Act.
Part 6 - Provisions arising from the enactment of the Motor Accidents (Amendment) Act 1994
16 Payment of interest
Section 73, as substituted by the Motor Accidents (Amendment) Act 1994 , applies to claims for damages:
(a) in respect of motor accidents, within the meaning of Part 6, occurring after 30 June 1987, and
(b) that were not settled or finally determined as at the date on which that section was so substituted.
Part 7 - Provisions arising from the enactment of the Motor Accidents Amendment Act 1995
17 Application of amendments
(1) The provisions of sections 2A, 2B, 34A, 40A, 43 (1), 48 (1), 68A, 72 (1) and 79 (1A), as inserted by the Motor Accidents Amendment Act 1995 , apply to claims made on or after the commencement of the relevant provision.
(2) The amendments to this Act made by Schedule 1 [2], [3], [4], [7], [10], [12], [13], [15], [19], [20], [23], [24], [25] and [27] to the Motor Accidents Amendment Act 1995 apply only in relation to motor accidents occurring on or after the commencement of the amendment.
(3) The amendments to this Act made by Schedule 1 [6] and [41] to the Motor Accidents Amendment Act 1995 do not apply to limit the insurance under a third-party policy in respect of a permit issued under Regulation 53A of the Motor Traffic Regulations 1935 before the commencement of the amendments.
(4) The amendments to this Act made by Schedule 1 [9], [16], [17], [18] and [31] to the Motor Accidents Amendment Act 1995 apply only in relation to claims made on or after the commencement of the amendment.
(5) Section 47A, as inserted by the Motor Accidents Amendment Act 1995 , extends to legal proceedings brought before the commencement of the section.
(7) A claimant who was subject to the requirements of section 52 (3) immediately before its repeal by the Motor Accidents Amendment Act 1995 does not have to provide a full and satisfactory explanation to the court for the delay in commencing proceedings.
(7A) Section 70A extends to a claim arising out of a motor accident that occurred after midnight on 26 September 1995, but not so as to affect any award of damages made before the commencement of this subclause.
(8) An amount under section 79A, as inserted by the Motor Accidents Amendment Act 1995 , does not have to be adjusted under section 80 before 1 October 1996.
(9) Section 135 (2), as inserted by the Motor Accidents Amendment Act 1995 , applies only in relation to offences committed after the commencement of the subsection.
(10) Except to the extent provided by this clause or the regulations, a provision of this Act, as in force immediately before its amendment by the Motor Accidents Amendment Act 1995 , continues to apply to and in respect of anything to which it then applied.
Part 7A - Provisions arising from the enactment of the Property (Relationships) Legislation Amendment Act 1999
17A Damages for psychological or psychiatric injury
The amendments made by the Property (Relationships) Legislation Amendment Act 1999 do not have effect so as to confer on any person a right that the person would not otherwise have had to recover damages of the kind referred to in section 77 in respect of a motor accident that occurred before those amendments took effect.
Part 8 - Provisions arising from the enactment of the Motor Accidents Amendment Act 1997
18 Meaning of "1997 amending Act"
In this Part:
"1997 amending Act" means the Motor Accidents Amendment Act 1997 .
19 Trailer amendments
An amendment made by the 1997 amending Act with respect to trailers (that is, an amendment made by Schedule 1 [2], [5], [6], [8], [9], [10], [11], [12] or [27] to that Act) extends to motor accidents occurring on or after 1 January 1996.
20 Structured settlement amendments
The amendment made to section 81 by the 1997 amending Act extends to arrangements determined or approved under that section before the commencement of the amendment, but not so as to affect any order of a court made before that commencement.
21 Amendment of agreement
Section 3A (5) (as inserted by the 1997 amending Act) extends to any amendment to the agreement referred to in that section made or purporting to have been made before the commencement of that subsection, with the effect that any amendment made or purporting to have been made to that agreement before the commencement of that subsection that could have been validly made after that commencement is validated and takes effect from the date on which it purported to take effect.
22 Unregistered vehicle permits
The amendments made to section 9 (a) (ii) and clause 1 (b) of Schedule 1 by the 1997 amending Act extend to liability arising in respect of the use or operation of a motor vehicle on or after 1 January 1996.
Part 9 - Provisions arising from enactment of Motor Accidents Amendment (Board of Directors) Act 1997
23 Constitution of Board of Directors
The amendments to section 84 made by the Motor Accidents Amendment (Board of Directors) Act 1997 do not affect the appointment or term of office of a person who held office as a part-time director of the Board of Directors of the Authority immediately before the amendments took effect.
Part 10 - Provisions arising from the enactment of the Traffic Legislation Amendment Act 1997
24 Definitions
In this Part:
"amending Act" means the Traffic Legislation Amendment Act 1997 .
"public street" means a public street as defined in section 3 (1) of this Act
immediately before the commencement of Schedule 4.10 [1] to the amending Act.
25 Savings
(1) Any act, matter or thing:(a) that, immediately before the commencement of Schedule 1 to the amending Act, had effect under this Act in relation to a public street is taken to have effect under this Act in relation to a road or road related area, or(b) that, immediately before the commencement of Schedule 1 to the amending Act, was done or omitted to be done on or in relation to a public street is taken to have been done or omitted to be done on or in relation to a road or road related area, or(c) that, immediately before the commencement of Schedule 4.10 [1] to the amending Act, had effect under this Act in relation to a road, motor vehicle, trailer or vehicle (as defined by this Act, or having the meaning it otherwise had, immediately before the commencement of that Schedule) is taken to have effect under this Act in relation to a road, motor vehicle, trailer or vehicle within the meaning of this Act (as amended by the amending Act), or(d) that, immediately before the commencement of Schedule 4.10 [1] to the amending Act, was done or omitted to be done with, on or in relation to a road, motor vehicle, trailer or vehicle (as defined by this Act, or having the meaning it otherwise had, immediately before the commencement of that Schedule) is taken to have been done or omitted to be done with, on or in relation to a road, motor vehicle, trailer or vehicle within the meaning of this Act (as amended by the amending Act).
(2) Nothing in the amending Act affects the validity of any policy.
26 References to public street
Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in a third party policy under this Act or any other instrument of any kind to a public street within the meaning of this Act is taken to be a reference to a road or road related area within the meaning of this Act.
27 References to motor vehicles
(1) Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in a third party policy under this Act or any other instrument of any kind to a motor vehicle within the meaning of this Act (as defined immediately before the commencement of Schedule 4.10 [1] to the amending Act) is taken to be a reference to a motor vehicle or trailer within the meaning of this Act (as amended by the amending Act).
(2) This clause does not apply to the Acts and Regulations amended by Schedules 4 and 5 to the amending Act.
28 References to trailers
(1) Any reference in any Act (other than this Act or the amending Act) or instrument made under any Act or in a third party policy under this Act or any other instrument of any kind to a trailer within the meaning of this Act (as defined immediately before the commencement of Schedule 4.10 [1] to the amending Act) is taken to be a reference to a trailer within the meaning of this Act (as amended by the amending Act).
(2) This clause does not apply to the Acts and Regulations amended by Schedules 4 and 5 to the amending Act.
29 Existing claims
Any claim arising from a motor accident occurring before the commencement of Schedule 4.10 [1] to the amending Act is to be determined as if the amending Act had not been enacted.
Part 11 - Provisions arising from the enactment of the Motor Accidents Amendment Act 1998
30 Definitions
In this Part:
"amending Act" mean the Motor Accidents Amendment Act 1998 .
31 Cancellation of third-party policies
The amendment of section 13 (4) by the amending Act applies to credit card transactions entered into after the commencement of Schedule 1 [5] to the amending Act.
32 Rejection of premiums by Authority
Section 15B (6) as in force before the commencement of Schedule 1 [9] to the amending Act continues to apply in relation to premiums filed under Division 3 of Part 3 before that commencement as if that item had not been enacted.
33 Conciliation
Division 3A of Part 5 does not apply in relation to a claim arising out of a motor accident that occurred before the commencement of section 44C (which was inserted by the amending Act), being a motor accident in respect of which notice under section 43 (4) had been given to an insurer before that commencement.
34 Costs
The amendments made by the amending Act do not affect costs in connection with claims in respect of which a notice under section 43 (4) was given before the commencement of any of the provisions of Part 6A (which was inserted by the amending Act).
Part 12 - Provisions arising from the enactment of the Motor Accidents Legislation Amendment Act 2004
35 Application of section 3D
Section 3D extends to motor accidents occurring before the section commences. However, section 3D does not affect court proceedings commenced before 5 December 2002 or any decision of a court made before the section commences.
Part 13 - Provision arising from the enactment of the Civil Liability Legislation Amendment Act 2008
36 Restrictions on compensation for home care services
An amendment made to this Act by the Civil Liability Legislation Amendment Act 2008 extends to liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement.