MOTOR ACCIDENTS (COMPENSATION) AMENDMENT BILL 2007 Explanatory Statement

Northern Territory Explanatory Statements

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MOTOR ACCIDENTS (COMPENSATION) AMENDMENT BILL 2007

GENERAL OUTLINE

The Motor Accidents (Compensation) Act (“the Act”) is a Government underwritten compulsory motor accident compensation scheme funded by contributions from motorists at the time of registering or re-registering a motor vehicle. The scheme is administered by the Territory Insurance Office (TIO).

In response to increasing costs pressures from common law claims by non residents and, in recognition of the fact that the Act has not been subject to a comprehensive review since its inception in 1979, a review of the Act benefit provisions commenced in April 2005.

Findings and recommendations were finalized in October 2005. Actuaries subsequently analysed the impact of the recommendations on scheme costs in February 2006. In May 2006 the recommendations of the review were endorsed.

This Bill amends the Act by implementing the recommendations of the review so that all motor accident compensation claimants in the Territory will be eligible for the same level of compensation benefits, regardless of residency. This removes an anomaly whereby non residents, who do not contribute to the scheme, can receive compensation in excess of the statutory benefits available to residents. The Bill also increases the benefit provisions, particularly for the seriously and permanently injured.

NOTES ON CLAUSES

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Motor Accidents (Compensation) Amendment Act 2006.

Clause 2. Commencement

This clause provides that the Act will commence operation on the day determined by the Administrator and published in the Northern Territory Government Gazette.

Clause 3. Act amended

This clause provides that the Act being amended is the Motor Accidents (Compensation) Act.

Clause 4. Amendment of section 4 (Interpretation)

Sub-clause (1) omits the following definitions: “accidents”, "attendant care services", "average weekly earnings", "dependent child", "discounted present values", "motor vehicle", "permanent impairment", "resident of the Territory" and “Territory Motor Vehicle”.

Sub-clause (2) inserts amended definitions of "average weekly earnings", "dependent child", "discounted present values", "motor vehicle", "permanent impairment", “Territory motor vehicle” and "resident of the Territory".

The reference to sections 17, 18, 18A and Part V contained in "average weekly earnings" has been deleted to be consistent with the new Act.

The definition of "dependent child" has been amended to include an unborn child and now recognises the notion of “expectation of financial dependency”.

“Discounted present values" currently refers to a 6% discount rate only. The amended definition refers to compensation being calculated at the “prescribed discount rate” that is a discount rate fixed by regulation or if the discount rate is not fixed by regulation then 6%.

The definition of "motor vehicle" has been amended to exclude a motorised wheelchair that is not capable of traveling at a speed greater than 10 km/h, and a cycle powered by an engine with a power output not exceeding 200 watts.

The definition of “Territory motor vehicle” has been simplified to mean a motor vehicle registered under the Motor Vehicles Act and deletes the now redundant differentiation of accidents occurring in and outside the Territory.

Refer to clause 5 for amended and expanded definitions of “motor accidents” (previously “accidents”), "attendant care services", "permanent impairment" and "residents of the Territory".

Sub-clause (2) also inserts new definitions of “child”, “eligible person”, “(indexed)”, “jurisdiction”, “licence”, “medical practitioner”, “nursing care”, “prescribed discount rate”, “public place”, “public street”, “statutory benefits”, “unregistered” and “workers compensation legislation”. The clause defines the terms as follows:

§ "child" of a person (the "parent") includes an unborn child or a person in relation to whom the parent stands or stood in loco parentis;
§ "eligible person" means a person who is entitled to statutory benefits;
§ "(indexed)" indicates that the sum of money to which it relates increases or decreases on 1 January of each year in proportion to the increase or decrease of average weekly earnings for the relevant year;
§ "jurisdiction" means the Commonwealth, State or Territory;
§ “licence” means a licence, permit or other authority to drive a motor vehicle under the law of the Territory or another jurisdiction;
§ “medical practitioner” means a person registered, and practising, as a medical practitioner in Australia;
§ “nursing care” means care provided by a nurse registered under the Health Practitioners Act, or the corresponding law of another jurisdiction, who is authorised under the terms of registration to provide nursing services otherwise than as a member of the nursing staff of a hospital or other institution;
§ “prescribed discount rate” refer above to “discounted present values";
§ “public place” and “public street” refer to the Motor Vehicle Act;
§ “statutory benefits” means compensation or other benefits payable under this Act;
§ “unregistered” refers to a motor vehicle that is neither registered under the Motor Vehicles Act nor deemed to be registered for the purposes of the Traffic Act; and
§ "workers compensation legislation" means Part V of the Work Health Act or the corresponding legislation of another jurisdiction.

Clause 5. New sections 4A to 4D

This clause inserts new definitions after section 4.

4A “Motor accidents”

A new definition of “motor accident” replaces the existing definition of “accident” by deleting the reference to ‘public street’ and registration of the vehicle, to cover all motor accidents in the Northern Territory. Claims are limited to those accidents that occur as a result of a collision or action to avoid a collision.

This new definition extends entitlement to benefits to a person who renders assistance, or attempts to render assistance, at the scene of a motor accident and, as a result of doing so, dies or is injured.

4B "Residents of the Territory"

The definition of “resident of the Territory” has been modified to reflect the extension of the scheme to all accidents in the Territory regardless of residency. The amended definition establishes entitlement to benefits for motor vehicle accidents occurring outside the Territory. The criterion for residency remains unchanged. That is, a person is a resident of the Territory if the person has resided in the Territory for a continuous period of at least 3 months.

4C "Permanent impairment"

The extent of “permanent impairment” is now to be determined by the Board in accordance with the American Medical Association Guides and also on the advice of a medical practitioner.

The amended definition specifies that the extent of a permanent impairment is to be expressed as a percentage of the whole person in accordance with the relevant Guides and not considered to be a permanent impairment unless the extent of the impairment as assessed in accordance with this section is at least 5%.

The amended definition removes reference to impairment levels for the purposes of sections 17, 18 and 18A as these are now specified in the relevant sections.

4D "Attendant care services"

The expanded definition of “attendant care services” covers both personal and household services reasonably required by an injured person as a result of the injury. "Household services" are defined as services of a domestic nature (including cooking, house cleaning, laundry, and gardening) for running and maintaining the injured person's household and "personal services" defined as services for the essential and regular personal care of the injured person. The existing definition only covered personal services.

The amended definition now specifies that attendant care services do not include services provided in a hospital, nursing home or other institution for the treatment, rehabilitation or care of injured persons. This exclusion previously existed but was contained in section 18B of the Act, so this is a tidying up provision.

Clause 6. Repeal and substitution of section 5

This clause repeals and substitute section 5

5. Abolition of common law rights

Sub-clause (1) abolishes an injured person’s right to seek a damages claim through common law for the death of, or injury to, a person arising from a motor accident that occurs in the Territory.

This means everyone will be subject to the same qualifications for benefits and have the same entitlement to benefits for all accidents in the Territory regardless of the residency of claimants. A single system of compensation removes the anomalies that occur between our current duplicated and different systems of compensation for motor accidents injuries depending on residency.

Sub-clause (2) extends the abolition for common law rights for Territory motor vehicle accidents to jurisdictions outside the Territory.

Clause 7. Amendment of section 6 (Office to indemnify certain persons)

This clause omits and substitutes sections 6(1) and 6(3).

Sub-clause (1) indemnifies the owner or driver of a Territory motor vehicle for any “relevant liability” incurred in respect of the death of, or injury to, a person arising from a motor accident caused by, or arising out the use of, the motor vehicle outside the Territory but limits indemnity to within Australia.

This clause restricts the indemnity to accidents that occur outside the Territory as there is no longer a need for an indemnity for accidents within the Territory due to the abolition of remaining common law damages actions.

Sub-clause (2) defines “relevant liability” as: (a) a liability for damages (but not for exemplary or punitive damages) or (b) if the death or injury is compensated under a statutory scheme and the owner or driver is liable to the administrator of the statutory scheme – the liability to the administrator of the statutory scheme.

Sub-clause (3) inserts after section 6(5) a provision allowing the Office (of TIO) to recover compensation for costs incurred if a person fails to co-operate or provide information the Office may reasonable require in respect of the accident.

Clause 8. Repeal and substitution of sections 7 and 8

This clause repeals and substitutes section 7 and repeals section 8.

7. Benefits for death or injury resulting from motor accidents

Sub-clause (1) amends section 7 so that benefits are payable to a person who suffers personal injury or dependent family member if a person dies in, or as a result of, a motor accident occurring in the Territory regardless of residency.
The current no-fault statutory benefits scheme will be retained and extended to cover all motor accidents in the Territory. The expanded compensation scheme provides injured accident victims or families with the same criteria for qualification for and exclusion from statutory benefits, and with access to the same prescribed benefits regardless of fault.

Entry to the statutory benefits scheme will not be qualified by the residency of those persons injured or killed, and will be regardless of the place of registration and source of statutory insurance cover of the vehicles involved in the accident. Consequently section 8 “Payments to non-residents” is no longer relevant.

Sub-clause (2) retains the current entitlement to statutory benefits for Territory residents involved in a motor accident outside the Territory. Benefits are restricted to accidents occurring in Australia and caused by or arising out of the use of a Territory motor vehicle.

Sub-clause (3) describes the requirements of a person who is entitled to statutory benefits but elects to claim damages or compensation under the law of the jurisdiction in which the accident occurred.

Clause 9. Repeal and substitution of sections 9 and 10

This clause repeals and substitutes sections 9 and 10.

9. Exclusions from certain benefits

Sub-clause (1) has been substituted and amended so that a driver would be deemed to be under the influence of a drug if an offence has been committed against relevant traffic laws, and they were under the influence of alcohol or a drug that, in the Board's opinion, contributed to the accident.

Sub-clause (2) establishes the criterion in which the influence of alcohol or a drug is presumed to have contributed to the accident unless the contrary is established. This presumption is now extended to injured person who refuse to provide a blood sample if lawfully required.

Sub-clauses (3) and (4) list criteria in which a person is not entitled to certain benefits consistent with section 9 of the current Act.

Sub-clause (5) excludes person from such benefits if engaged in conduct that creates a substantial risk of injury but the injured person recklessly ignores the risk. This provision applies to drivers, pedestrians, passengers or cyclists involved in an accident.
Sub-clause (6) extends the circumstances when a person is not entitled to certain benefits because of a driver’s licence violation to include situations where the injured person’s licence had lapsed or expired at least 3 months before the date of the motor accident. The provision does not apply, if in the opinion of the Board, the vehicle was being driven under circumstances that amounted to an emergency.

Sub-clause (7) includes a new exclusion from certain benefits if the motor vehicle had never been registered, or was unregistered for a period of at least 3 months and the injured person is the owner or driver of the unregistered motor vehicle. The exclusion applies to the driver if the driver knew or ought to have known that the vehicle was unregistered. The provision does not apply, if in the opinion of the Board, the vehicle was being driven under circumstances that amounted to an emergency.

Sub-clause (8) excludes an injured person who commits an offence to which section 9 applies, from compensation for loss of earning capacity and lump sum compensation for a permanent impairment. This is consistent with the current Act.

10. Exclusion from all benefits

Sub-clauses (1) and (2) list criteria through which a person is not entitled any benefits as a result of a motor accident. These sub-clauses are consistent with sections 10(a) and 10(b) of the current Act.

Sub-cluse (3) applies where a person will be excluded from all benefits if they are in breach under this section and some other provision contained within the Act.

11. Partial exclusion from benefits

This clause inserts a new partial exclusion from benefits after
section 10.

Sub-clause (1) includes a new provision that will reduce loss of earning capacity and permanent impairment benefits by 25 per cent if a claimant was not wearing a seat belt or safety helmet at the time of the motor vehicle accident. Previously this reduction only applied to non-residents seeking common law damages. The partial exclusion applies if a person was or above the age of 16 years at the time of the accident. This section will only apply if the injured person had an exemption from wearing a seat belt or safety helmet under the Motor Vehicles Act.

Sub-clause (2) includes a new provision reducing the amount of the entitlement in respect of the death or injury arising out of a motor vehicle accident if the injured person is entitled to benefits through a policy of insurance or entitled to compensation under a compensation scheme (other than a workers compensation scheme). This provision is aimed at preventing a claimant from double dipping.

Clause 10. Amendment of section 12 (Rights to benefits to be determined by Board)

This clause omits and substitutes sections 12(2), 12(3), 12(4), 12(5), and 12(6).

Sub-clause (2) confers power on the Board to determine a treatment plan or a rehabilitation program for an injured person, subject to the advice of a medical practitioner.

Sub-clause (3) allows the Board to determine a treatment plan or rehabilitation program either on application by the injured person or on the Board's own initiative (and with or without the agreement of the injured person).

Sub-clause (4) provides that a treatment plan or rehabilitation program may define and limit the kind and extent of treatment and care for which statutory benefits will be paid, and imposes reasonable conditions on which the entitlement to statutory benefits for treatment and care is contingent.

Sub-clause (5) confers authority on the Board to request an injured person to undergo an examination by a medical practitioner nominated by the Board and requires a medical practitioner or other person who has examined or treated an injured person with details and results of any such examination or treatment.

Sub-clause (6) requires the Board to obtain from an injured person a written authorisation (which will be irrevocable) to obtain information sort under sub-clause section (5).

Sub-clause (7) confers power on the Board to suspend the payment of statutory benefits if an injured person fails without reasonable excuse to comply with a requirement under sub-clause (5) or a condition of the treatment plan or rehabilitation program.

Sub-clause (8) suspends the right to all statutory benefits if the payment of statutory benefits is suspended under sub-clause (7) above.

The above sub-clauses are consistent with section 12 of the current Act. The intent is to enable the scheme administrator to require the assessing doctor to produce a patient treatment and management plan. This allows an assessment of whether a proposed treatment or service is both required and reasonable, thereby enhancing the capacity for TIO to manage claims effectively.

Clause 11. Amendment of section 13 (Compensation for loss of earning capacity)

This clause omits and substitutes section 13(1) and 13(5).

Sub-clause (1) amends section 13(1) to extend cover for compensation for loss of earning capacity to all motor accidents regardless of residency and fault. This is consistent with amendments to section 7 which mean scheme benefits will not be qualified by the residency of those persons injured or killed, and will be regardless of the place of registration and source of CTP cover of the vehicles involved in the accident.

Sub-clause (2) amends section 13(5) so a person is not entitled to compensation for loss of earning capacity while outside Australia. Other exclusions to compensation for loss of earning capacity are contained in the current Act. These are (a) if a person attains the age of 65 years or (b) if a person is detained in a penal institution (within or outside the Territory).

Clause 12. Repeal of sections 15 and 16

This clause repeals sections 15 (Small benefits that may be commuted by the Board) and 16 (Benefits that may be commuted at the request of beneficiary). Clause 17 or section 25 (Commutation of Benefits) of the Bill replaces sections 15 and 16.

Clause 13. Amendment of section 17 (Compensation for loss of limb or other permanent impairment)

Sub-clause (1) omits and substitutes section 17(1) to extend cover for compensation for loss of limb or other permanent impairment to all motor accidents regardless of residency and fault. This is consistent amendments to sections 7 and 13. The criterion for eligibility and level of benefit remains unchanged.

Sub-clause (2) inserts after section 17(3) a clause that revokes any further right to compensation following assessment and payment of benefits for loss of limb or other permanent impairment, even if the extent of the impairment later increases.

Consistent with amendments to sections 13, 18, 18A, 18B and 19, compensation for a loss of limb or other permanent impairment will only be paid to, or for the benefit of, a person who is, at the time of the payment, in Australia.

Clause 14. Repeal and substitution of sections 18 to 19

This clause repeals and substitutes section 18 and 19.

18. Medical and rehabilitation expenses

Sub-clause (1) entitles eligible person to compensation for the reasonable cost of medical and rehabilitation services required as a result of an injury arising from the motor accident.

Sub-clause (2) defines medical and rehabilitation services similar to section 18(2) of the current Act.

Sub-clause (3) requires payment directly to the hospital or other institution if the cost of accommodation, treatment or care is compensable.

Sub-clause (4) is a new clause assisting the Board in determining whether the cost of medical and rehabilitation services is reasonable. The Casemix system is an objective means of calculating the cost of providing medical services based on Australian hospital rates.

Consistent with amendments to sections 13, 17, 18A, 18B and 19, sub-section (5) limits compensation for medical and rehabilitation expenses for services provided in Australia.

18A. Short-term benefits for attendant care services

Sub-clause (1) replaces the current section 18(2A) and provides benefits for attendant care services to an eligible person if they suffer an impairment requiring attendant care services as a result of the injury received in the motor accident. An eligible person must not have been assessed as eligible for long-term attendant care services. The Bill splits attendant care into short-term and long-term.

Short-term attendant care services apply to the severely but temporarily injured. The Bill introduces a 12 month time limit for short term attendant care benefits but includes a provision for the time limit to be extended on the basis of medical advice.

Long-term attendant care recognises that severely and permanently impaired people often require assistance for an indefinite period.

Sub-clause (2) confers authority on the Board so that only attendant care services of a standard the Board considers appropriate will be payable.

Sub-clause (3) calculates the attendant care benefits using the same formula - at an hourly rate equivalent to 2% of average weekly earnings for the number of hours for which the attendant care services are provided in each week up to the relevant limit for that week.

Sub-clause (4) increases the limit of attendant care for each week to 32 hours (currently capped at 28 hours). This entitlement extends to household services and would be less any hours the eligible person receives in nursing care.

The Bill broadens attendant care benefits to include household services, or services a domestic nature (house cleaning, laundry and gardening services etc) required for the proper running and maintenance of the claimant’s household.

Sub-clause (5) specifies that short-term benefits are to be allowed for a period of up to one year but the Board may extend the period of one year for up to another year if, after considering the advice of a medical practitioner, the Board considers the extension reasonable.

Consistent with amendments to sections 13, 17, 18, 18B and 19, sub-section (6) limits compensation for short-term attendant care for services provided in Australia.

18B. Long-term benefits for attendant care services

Sub-clause (1) provides long-term attendant care benefits to an eligible person if they suffer a permanent impairment as a result of the injury received from a motor accident and the degree of the permanent impairment is assessed by the Board at 60 per cent or more.

Currently, an 85 per cent permanent impairment threshold applies for long term attendant care. The Bill reduces the permanent impairment threshold from 85 to 60 per cent. This means that any claimant who suffers permanent impairment of greater than 60 per cent can access the long term care benefit, up to 32 hours per week.

Sub-clause (2) confers authority on the Board so that only attendant care services of a standard the Board considers appropriate will be payable.

Sub-clause (4) increases the limit of attendant care for each week to 32 hours (currently capped at 28 hours). This entitlement extends to household services and would be less any hours the eligible person receives in nursing care.

Sub-clause (5) introduces of a new benefit for respite care equal to two weeks attendant care benefits per year. This new provision is in recognition of the care provided by family and relatives.

Consistent with amendments to sections 13, 17, 18, 18A and 19, sub-section (6) limits compensation for long-term attendant care for services provided in Australia.

18C. Emergency travel benefit

This clause introduces a new statutory benefit to compensate family members who suffer financial hardship as a result of the cost of travel to be with an injured relative in hospital.

Sub-clause (1) confers complete discretion for payments under this provision to the Board and limits entitlement to an accident involving a Territory motor vehicle and to people who are resident of the Territory. To further qualify a family member must travel at least 1 000 km to be near the injured person or to make arrangements for a deceased person's funeral.

Sub-clause (2) limits reimbursement of a family member to the costs of travel, loss of income and other financial loss resulting from the journey.

Sub-clause (3) requires that benefits are to be divided between two or more close family members should more than one family member qualify.

Sub-clause (4) limits the total amount to be paid in respect of any one motor accident to $3 500.

Sub-clause (5) defines "close family member" as a spouse, parent or child of the person injured or killed in or as a result of the motor accident.

19. Cost of providing appliances, special facilities etc.

Sub-clause (1) provides benefits to an eligible person for special facilities, appliances and alterations the Board considers necessary for the person's rehabilitation. This sub-clause replaces current
section 19.

Consistent with amendments to sections 13, 17, 18, 18A and 18B, sub-section (2) limits benefits to within Australia and any qualifications imposed by regulations.

Clause 15. Repeal and substitution of section 20

20. Definition

In this clause the definition of "qualifying person" regarding payments in respect of death has been amended to include any person who dies as a result of injuries received in a motor accident occurring in the Territory, regardless of residency. This is consistent with amendments to section 7 of the Act.

20A. Reduction of benefits in certain cases

This clause reduces payments in respect of death if the conduct of the deceased contributed to the injuries.

Sub-clause (1) enables the Board to reduce death benefits payable if the influence of the alcohol or drugs contributed to the accident. This applies to the driver of a motor vehicle.

Sub-clause (2) establishes the criterion by which the influence of the alcohol or a drug is presumed to have contributed to the accident unless the contrary is established.

Sub-clause (3) enables the Board to reduce death benefits if the accident occurred while the qualifying person was engaged in conduct that created a substantial risk of injury but the injured person recklessly ignores the risk. This provision applies to drivers, pedestrians, passengers or cyclists involved in an accident.

Sub-clause (4) requires the Board to reduce benefits having regard to the extent to which the influence of alcohol or a drug contributed to the accident.

Clause 16. Amendment of section 22 (Lump sum compensation in respect of death)

This clause amends Section 22.

Sub-clause (1) amends the current section 22(1). The benefit of the qualifying person's spouse or dependent child (or spouse and dependent child) remains unchanged - the prescribed proportions of 156 times average weekly earnings.

Sub-clause (2) omits reference to subsection (1)(b)(i) in section 22(3) as this has been replaced by subsection (1)(b).

Sub-clause (3) inserts a new provision after section 22(3) reducing compensation in respect of death by any compensation received way of lump sum for permanent impairment resulting from the same injury.

Clause 17. New Part VA

Clause 17 inserts after section 24 a new Part VA (containing new section 25) into the Act dealing with the commutation of benefits.

PART VA – COMMUTATION OF BENEFITS

25. Commutation of benefits

New section 25 enables, if the regulations so provide, a liability to pay statutory benefits by way of lump sum. This provision recognises the costs and difficulties for the scheme administrator in managing overseas claims, and the significant disparities that can exist between Australian and overseas medical costs. However, in recognition of the significant disadvantage that this could cause for some seriously injured Territory residents such as dual citizen residents with families overseas or overseas residents, the Bill provides for regulations to be made allowing the commutation of benefits in certain cases. This would allow benefits to be discounted to net present values and paid out in a lump sum, in accordance with criteria and conditions prescribed under regulations.

Clause 18. Amendment of section 27 (Designated person's decision and referral to Board)

This clause omits and substitutes section 27(6) requiring the “designated person” and the Board to each give reasons for decisions. Currently, the Board is not required to disclose reasons underlying a decision on a claimant’s compensation. This provision requires TIO officers and the Board to disclose the reasons for a decision regarding a claimant’s review or appeal. This amendment accords with the principles of natural justice.

Clause 19. Repeal and substitution of section 28

This clause omits and substitutes section 28.

28. Motor accidents (Compensation) Appeal Tribunal

Sub-clause (1) establishes and continues the Motor accidents (Compensation) Appeal Tribunal.

Sub-clause (2) states that the Tribunal is to be constituted by a Judge of the Supreme Court.

Sub-clause (3) extends the same privileges and immunities to a Judge of the Supreme Court when sitting as the Tribunal, as when sitting to as a Judge of the Supreme Court.

Sub-clause (4) and (5) similarly extends the same privileges and immunities to a witness, legal practitioner, other person appearing before the Tribunal or an officer of the Tribunal, as if the proceedings were the proceedings of the Supreme Court.

Sub-clause (6) refers to an officer of the Tribunal as any person acting on the authority or by direction of the Tribunal.

Clause 20. Repeal and substitution of section 38

This clause omits and substitutes section 38.

38. Indemnification of the Office for statutory benefits

Sub-clause (1) amends the criteria in section 38(1) to improve the capacity of the scheme to seek recovery from interstate Compulsory Third Party (CTP) schemes or insurers for statutory benefits paid to non-residents.

Sub-clause (2) allows the scheme to seek to recover all or part of the costs of a claim from the owner or driver of a vehicle for which a compensation contribution or CTP insurance had not been paid.

Sub-clause (3) lists criterion where a person indemnifies the Office for statutory benefits paid to another person in relation to death or injury arising from a motor accident due to unlawful behaviour.

Sub-clause (4) lists criterion where the manufacturer or repairer of the motor vehicle indemnifies the Office for statutory benefits paid to another person if a defect in the manufacture or repair of the motor vehicle caused or contributed to the motor accident.

Sub-clause (5) lists criterion where a person (other than the owner or driver of a motor vehicle) indemnifies the Office for statutory benefits paid to another person whose wrongful or negligent act caused or contributed to the motor accident.

Sub-clause (6) recognises a proportionate reduction of liability on account of contributory negligence. Sub-clause (7) specifies that the reduced liability under sub-clause (6) is to be determined by agreement between the Office and the indemnifier or, in the absence of agreement, by a court in which an action for recovery of the indemnity is brought.

Sub-clause (8) enables the Office to recover an indemnity as a debt owed by the indemnifier.

Sub-clause (9) confers power in the court to give a reduced judgment if the court is satisfied that the recovery of the full amount of the indemnity against the defendant would cause serious financial hardship.

Clause 21. Repeal of sections 40A and 41

This clause repeals section 40A and 41 due to the abolition of an injured person’s right to seek a damages claim through common law for the death of, or injury to, a person arising from a motor accident that occurs in the Territory. This is consistent with amendments to section 5 of the Act.

Clause 22. New Part VIII

Clause 22 inserts after section 42 a new Part 8 (containing new section 43) into the Act dealing with transitional issues arising from the amendments made by this Bill.

PART VIII – TRANSITIONAL MATTERS FOR MOTOR ACCIDENTS (COMPENSATION) AMENDMENT ACT 2006

43. Transitional provisions

Sub-clause (1) applies the Motor Accidents (Compensation) Act, as amended by this Bill, to motor accidents occurs on or after the commencement of this Act.

Sub-clause (2) continues to apply the Motor Accidents (Compensation) Act, as in force immediately before the commencement of this Bill, to motor accidents that occurred before the commencement of this Act.

Sub-clause (3) is retrospective and applies to a person injured before the commencement of the Motor Accidents (Compensation) Amendment Act 2007 who would have, if the accident occurred after the commencement of the Act, been entitled to attendant care benefits under section 18B.

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