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Queensland
MOTOR ACCIDENT
INSURANCE BILL 1994
Queensland
MOTOR ACCIDENT INSURANCE BILL
1994
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5 Application of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PART 2--MOTOR ACCIDENT INSURANCE COMMISSION
Division 1--Establishment of the Commission
6 Establishment of Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7 Constitution of the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8 Commission to be body corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9 Power of delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--General functions of Commission
10 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11 Advisory Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 3--Recommendation and fixing of insurance premiums,
levies and administration fee
12 Premiums, levies and administration fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13 Principles governing levies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14 Principles governing insurance premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15 Fixing of premiums, levies and administration fee . . . . . . . . . . . . . . . . . . . . 18
Division 4--The Nominal Defendant
16 The Nominal Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2
Motor Accident Insurance
17 Nominal Defendant to keep public office . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 Nominal Defendant taken to be licensed insurer . . . . . . . . . . . . . . . . . . . . . 20
Division 5--Annual report
19 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PART 3--COMPULSORY INSURANCE
Division 1--Obligation to insure
20 Offence of driving uninsured vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 2--Selection of insurer
21 Selection of insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
22 Licensed insurer cannot decline CTP business . . . . . . . . . . . . . . . . . . . . . . . 23
23 Statutory policy of insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
24 Transfer of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
25 Motor vehicle must be insured under correct class . . . . . . . . . . . . . . . . . . . . 25
26 Non-application in certain cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 3--Financial obligations of insurers
27 Payment of levies and administration fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 4--The statutory funds
28 Motor Accident Insurance Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
29 Nominal Defendant Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 5--Transfer of CTP business
30 Transfer of CTP business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
PART 4--CLAIMS
Division 1--The insurer
31 Principles for determining the insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
32 Self-insurer as the insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
33 Nominal Defendant as the insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Division 2--Duty to notify accidents and claims and provide
information
34 Duty to notify accidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
35 Duty to provide information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
36 Duty to notify claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Division 3--Claims procedures
37 Notice to be given by claimant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3
Motor Accident Insurance
38 Multiple insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
39 Response to the notice of claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
40 Minority and legal disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
41 Insurer must attempt to resolve claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
42 Payment of medical expenses etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
43 Insured person not to admit liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
44 Power of insurer to act for insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Division 4--Cooperation between claimant and insurer
45 Duty of claimant to cooperate with insurer . . . . . . . . . . . . . . . . . . . . . . . . . . 40
46 Claimant and insurer may jointly arrange for expert report . . . . . . . . . . . . . 41
47 Duty of insurer to cooperate with claimant . . . . . . . . . . . . . . . . . . . . . . . . . . 42
48 Non-disclosure of certain material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
49 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
50 Court's power to enforce compliance with Division . . . . . . . . . . . . . . . . . . . 43
Division 5--Rehabilitation
51 Obligation to provide rehabilitation services . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 6--Proceedings in court
52 Insurer to be joint or sole defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
53 Insurer's right to call and cross-examine insured person . . . . . . . . . . . . . . . 46
54 Mitigation of damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
55 Awards of exemplary damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
56 Exclusion of jury trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
57 Alteration of period of limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 7--Insurer's rights of recourse
58 Insurer's rights of recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
59 Recovery in case of fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
60 Nominal Defendant's rights of recourse for uninsured vehicles . . . . . . . . . . 49
61 Nominal Defendant's rights of recourse against insurer . . . . . . . . . . . . . . . . 50
PART 5--LICENSED INSURERS
Division 1--Licensing of insurers
62 Application for licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
63 Determination of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4
Motor Accident Insurance
64 Conditions of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
65 Industry deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
66 Withdrawal or suspension of licence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
67 Effect of withdrawal or suspension on existing liabilities etc. . . . . . . . . . . . 55
68 Appeals against the Commission's decisions . . . . . . . . . . . . . . . . . . . . . . . . 55
Division 2--Supervision of licensed insurers
69 Business plans of licensed insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
70 Accounts and returns of licensed insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
71 Audit of accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
72 Information to be provided by insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
73 Power of Supreme Court to deal with licensed insurers . . . . . . . . . . . . . . . . 58
Division 3--Special investigations
74 Appointment of investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
75 Investigation of related body corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
76 Powers of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
77 Documents produced to investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
78 Examination of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
79 Self-incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
80 Failure of officer to comply with requirement of investigator . . . . . . . . . . . 62
81 Recording of examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
82 Copy of record of examination may be given to legal practitioner . . . . . . . 63
83 Delegation of powers by investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
84 Report of investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
85 Admission of investigator's report in evidence . . . . . . . . . . . . . . . . . . . . . . . 64
86 Costs of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
87 Offences relating to investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
PART 6--MISCELLANEOUS
88 Information to be provided by licensed insurers . . . . . . . . . . . . . . . . . . . . . . 66
89 Register of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
90 Transport administration to provide certain information . . . . . . . . . . . . . . . . 67
91 Insolvent insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
92 Disclosure of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
5
Motor Accident Insurance
93 False statements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
94 Interference with certain documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
95 Unauthorised policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
96 Restriction on commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
97 CTP insurance premiums not to be discounted etc. . . . . . . . . . . . . . . . . . . . 70
98 Certain prosecutions require authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
99 Penalties for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
100 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
101 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
PART 7--REPEALS, AMENDMENTS AND TRANSITIONAL
PROVISIONS
102 Repeal of Motor Vehicles Insurance Act 1936 . . . . . . . . . . . . . . . . . . . . . . . 71
103 Repeal of Insurance Act 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
104 Existing insurance contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
105 Licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
106 Nominal Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
107 Selection of insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
108 Levies, administration fee and premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 75
POLICY OF INSURANCE
1 Extent of insurance cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2 Insured person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
3 Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
1994
A BILL
FOR
An Act to provide for a compulsory third-party insurance scheme
covering liability for personal injury arising out of motor vehicle
accidents, and for other purposes
8
Motor Accident Insurance
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
Clause1. This Act may be cited as the Motor Accident Insurance Act 1994. 4
5
Commencement
Clause2. This Act commences on a day to be fixed by proclamation. 6
7
Objects
Clause3. The objects of this Act are-- 8
(a) to continue and improve the system of compulsory third-party 9
motor vehicle insurance, and the scheme of statutory insurance 10
for uninsured and unidentified vehicles, operating in Queensland; 11
and 12
(b) to provide for the licensing and supervision of insurers providing 13
insurance under policies of compulsory third-party motor vehicle 14
insurance; and 15
(c) to encourage the speedy resolution of personal injury claims 16
resulting from motor vehicle accidents; and 17
(d) to promote and encourage, as far as practicable, the rehabilitation 18
of claimants who sustain personal injury because of motor 19
vehicle accidents; and 20
(e) to establish and keep a register of motor vehicle accident claims to 21
help the administration of the statutory insurance scheme and the 22
detection of fraud; and 23
(f) to promote measures directed at eliminating or reducing causes of 24
motor vehicle accidents and mitigating their results. 25
9
Motor Accident Insurance
1
Interpretation
In this Act-- 2
Clause4.
"administration fee" means the fee payable to transport administration for 3
work done in the administration of the statutory insurance scheme; 4
"claim" means motor vehicle accident claim; 5
"claimant" means a person by whom, or on whose behalf, a claim is 6
made; 7
"Commission" means the Motor Accident Insurance Commission; 8
"Commissioner" means the Insurance Commissioner; 9
"costs" of an insurer on a claim includes-- 10
(a) the amount paid out by the insurer on the claim to the claimant or 11
for the claimant's benefit, including-- 12
(i) the cost to the insurer of providing rehabilitation services in 13
connection with the claim; and 14
(ii) the cost to the insurer of paying private hospital, medical and 15
pharmaceutical expenses in connection with the claim; and 16
(b) the cost to the insurer of investigating the claim and of litigation 17
related to the claim (but not the insurer's general administration 18
costs); 19
"court", in relation to a claim, means-- 20
(a) if a proceeding based on the claim has been brought--the court 21
hearing the proceeding; or 22
(b) if no proceeding based on the claim has been brought--a court 23
with jurisdiction to hear the claim; 24
"CTP" is an abbreviation of `compulsory third-party'; 25
"CTP insurance policy" means-- 26
(a) a policy of insurance under this Act for a motor vehicle insuring 27
against liability for personal injury caused by, through or in 28
connection with the motor vehicle; or 29
(b) a policy of insurance, or a statutory indemnification, for a motor 30
vehicle registered under the law of another State or a Territory, 31
10
Motor Accident Insurance
providing insurance, or indemnifying against liability, for 1
personal injury caused by, through or in connection with the 2
vehicle anywhere in Australia; 3
"former Act" means the Motor Vehicles Insurance Act 1936; 4
"industry deed" means an agreement, in the form approved by regulation, 5
between the Commission, transport administration, the Nominal 6
Defendant and licensed insurers regulating the conduct of CTP 7
insurance business and matters incidental to-- 8
(a) the conduct of the business; or 9
(b) the statutory insurance scheme;1 10
"injured person" means a person who suffers personal injury because of a 11
motor vehicle accident; 12
"insured motor vehicle" means a motor vehicle for which a CTP 13
insurance policy is in force; 14
"insured person" means-- 15
(a) a person who is insured under a CTP insurance policy or, if the 16
person is dead, the person's personal representative; or 17
(b) a person whose wrongful act or omission causes personal injury 18
for which an action lies against the Nominal Defendant under this 19
Act or, if the person is dead, the person's personal representative; 20
"licence" means a licence under Part 5 (Licensed insurers); 21
"licensed insurer" means an insurer that holds a licence, other than an 22
insurer whose licence is under suspension; 23
"mobile machinery or equipment" has the meaning given by the 24
Transport Infrastructure (Roads) Regulation 1991; 25
"motor vehicle" means a vehicle for which registration is required under 26
the Transport Infrastructure (Roads) Regulation 1991 or the Motor 27
Vehicles Control Act 1975, and includes a trailer; 28
"motor vehicle accident" means an incident in which personal injury is 29
caused by, through or in connection with a motor vehicle; 30
1 For a statement of the subjects that may be covered by the industry deed, see
section 65 (Industry deed).
11
Motor Accident Insurance
"motor vehicle accident claim" means a claim for damages based on a 1
liability for personal injury arising out of a motor vehicle accident and, 2
for a fatal injury, includes a claim on behalf of the deceased's 3
dependants or estate; 4
"officer" has the same meaning as in the Corporations Law; 5
"personal injury" includes-- 6
(a) fatal injury; and 7
(b) prenatal injury; and 8
(c) damage to spectacles, contact lenses, dentures, hearing aids, 9
crutches, wheelchairs, artificial limbs and prosthetic devices; 10
"registration" of a motor vehicle includes a permit or plate under the 11
Transport Infrastructure (Roads) Regulation 1991 permitting a motor 12
vehicle to be used on a road without registration; 13
"rehabilitation" means the use of medical, psychological, physical, social, 14
educational and vocational measures (individually or in 15
combination)-- 16
(a) to restore, as far as reasonably possible, physical or mental 17
functions lost or impaired through personal injury; and 18
(b) to optimise, as far as reasonably possible, the quality of life of a 19
person who suffers the loss or impairment of physical or mental 20
functions through personal injury; 21
"related body corporate", for an insurer, has the meaning given by the 22
Corporations Law; 23
"road" means-- 24
(a) any surveyed or unsurveyed land dedicated to public use, 25
according to law, as a road (including a footpath or median strip); 26
or 27
(b) a toll road; or 28
(c) a bridge, culvert, ford or detour open to public access and used as 29
a road; or 30
(d) a ferry used to carry motor vehicles; or 31
(e) a public car park or parking station; 32
12
Motor Accident Insurance
"self-insurer" means-- 1
(a) the Commonwealth; or 2
(b) a State (other than Queensland) or a Territory that does not have 3
its motor vehicles insured under CTP insurance policies; 4
"share" of the market for CTP insurance business means a percentage, 5
calculated by the Commission under principles prescribed by 6
regulation, representing the proportion that an insurer's share of total 7
CTP insurance premiums bears to the total premiums for CTP 8
insurance policies of classes specified by regulation; 9
"statutory insurance scheme" means the insurance scheme established by 10
this Act; 11
"trailer" means a vehicle without motive power designed to be hauled by a 12
motor vehicle; 13
"transport administration" means-- 14
(a) the chief executive of the department within which the Transport 15
Planning and Coordination Act 1994 is administered; or 16
(b) a person who is, by delegation or direction of the chief executive, 17
responsible for carrying out functions relevant to the 18
administration of the statutory insurance scheme; 19
"uninsured motor vehicle" means a motor vehicle for which there is no 20
CTP insurance policy in force, other than a motor vehicle owned by a 21
self-insurer or a trailer; 22
"wrongful act or omission" includes a negligent act or omission. 23
of this Act 24
Application
This Act applies to personal injury caused by, through or in 25
Clause5.(1)
connection with a motor vehicle if, and only if, the injury-- 26
(a) is a result of-- 27
(i) the driving of the motor vehicle; or 28
(ii) a collision, or action taken to avoid a collision, with the 29
motor vehicle; or 30
(iii) the motor vehicle running out of control; or 31
13
Motor Accident Insurance
(iv) a defect in the motor vehicle causing loss of control of the 1
vehicle while it is being driven; and 2
(b) is caused, wholly or partly, by the wrongful act or omission of a 3
person other than the injured person. 4
(2) However, this Act does not apply to personal injury caused by, 5
through or in connection with-- 6
(a) an uninsured motor vehicle; or 7
(b) a backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, 8
or other mobile machinery or equipment; or 9
(c) an agricultural implement; or 10
(d) a motor vehicle adapted to run on rail or tram tracks; or 11
(e) an amphibious vehicle; or 12
(f) a motor vehicle of a class prescribed by regulation; 13
unless the motor vehicle accident out of which the injury arises happens on 14
a road. 15
ART 2--MOTOR ACCIDENT INSURANCE 16
P
COMMISSION 17
1--Establishment of the Commission 18
Division
of Commission 19
Establishment
Clause6. The Motor Accident Insurance Commission is established. 20
of the Commission 21
Constitution
The Insurance Commissioner, in the Commissioner's official 22
Clause7.(1)
capacity (but not in the capacity of Nominal Defendant), constitutes the 23
Commission. 24
14
Motor Accident Insurance
(2) The Insurance Commissioner is to be appointed under the Public 1
Service Management and Employment Act 1988. 2
to be body corporate 3
Commission
The Commission-- 4
Clause8.(1)
(a) is a body corporate; and 5
(b) has a seal; and 6
(c) may sue and be sued under the name Motor Accident Insurance 7
Commission. 8
(2) The Commission has all the powers of an individual and may, for 9
example-- 10
(a) enter into contracts; and 11
(b) acquire, hold, dispose of, and deal with, property; and 12
(c) employ staff (including temporary staff); and 13
(d) appoint agents and attorneys; and 14
(e) engage consultants; and 15
(f) fix charges, and other terms, for the provision of services by the 16
Commission. 17
(3) The Commission's seal is to be kept as directed by the 18
Commissioner and may be used only as directed or authorised by the 19
Commissioner. 20
(4) Judicial notice must be taken of the imprint of the seal appearing on a 21
document and the document must be presumed to have been properly 22
sealed unless the contrary is proved. 23
of delegation 24
Power
Clause9. The Commission may delegate its powers under this Act. 25
15
Motor Accident Insurance
Division 2--General functions of Commission 1
functions 2
Commission's
The Commission's functions are to-- 3
Clause10.(1)
(a) supervise insurers operating under the statutory insurance scheme 4
and issue, suspend or withdraw licences for insurers operating 5
under the scheme; and 6
(b) establish and revise prudential standards with which licensed 7
insurers must comply; and 8
(c) monitor the management of claims by insurers under the 9
statutory insurance scheme and, in particular, the insurers' 10
compliance with their obligations under Part 4 (Claims); and 11
(d) recommend the premiums payable for CTP insurance policies 12
under this Act, the levies payable on the premiums, and the 13
administration fee; and 14
(e) monitor the availability, adequacy and use of rehabilitation 15
services for claimants who suffer personal injury in motor vehicle 16
accidents and develop programs, resources and guidelines to 17
overcome deficiencies in the services; and 18
(f) fund, or help in other ways, the provision of rehabilitation 19
services for claimants injured in motor vehicle accidents; and 20
(g) provide funds for research and education in the field of 21
rehabilitation and the provision of rehabilitation services; and 22
(h) provide funds for research into the causes of motor vehicle 23
accidents and their prevention; and 24
(i) carry out, or contribute to, advertising campaigns to increase 25
public awareness of the causes of motor vehicle accidents, and of 26
the economic, social and personal cost of motor vehicle accidents; 27
and 28
(j) promote and, if funds are available, make financial contributions 29
towards-- 30
(i) the regular inspection of motor vehicles to ensure safety and 31
roadworthiness; and 32
16
Motor Accident Insurance
(ii) the training of drivers (including the provision of defensive 1
driving courses); and 2
(iii) training in first aid; and 3
(iv) the provision, maintenance and support of the infrastructure 4
necessary to reduce the incidence of motor vehicle accidents 5
and minimise the results; and 6
(k) monitor the costs of insurers on claims; and 7
(l) develop and coordinate strategies to identify and combat fraud in 8
or related to motor vehicle accident claims; and 9
(m) keep the industry deed under review and make recommendations 10
for its amendment; and 11
(n) keep the statutory insurance scheme generally under review and 12
make recommendations for its amendment. 13
(2) In determining prudential standards for licensed insurers, the 14
Commission must have proper regard to the prudential standards that apply 15
to the insurance industry under Commonwealth legislation. 16
Committee 17
Advisory
The Commission may establish an advisory committee to 18
Clause11.(1)
advise on the exercise of the Commission's statutory functions. 19
(2) The matters on which the Advisory Committee may provide advice 20
are to be decided by the Commission with the approval of the Minister. 21
(3) The advisory committee is to consist of persons appointed by the 22
Minister on the Commission's nomination. 23
(4) The terms on which members of the advisory committee hold office 24
are to be decided by the Minister. 25
17
Motor Accident Insurance
Division 3--Recommendation and fixing of insurance premiums, levies 1
and administration fee 2
levies and administration fee 3
Premiums,
The Commission must, at least 2 months before the beginning 4
Clause12.(1)
of each financial year, make recommendations to the Minister on-- 5
(a) the rate for the financial year of-- 6
(i) the statutory insurance scheme levy; and 7
(ii) the hospital and ambulance levy; and 8
(iii) the Nominal Defendant levy; and 9
(iv) the administration fee; and 10
(b) the amount of the premiums to be paid for CTP insurance 11
policies for the financial year. 12
(2) Before recommending the levies, administration fee and premiums-- 13
(a) the Commission must invite written submissions on the subject 14
from licensed insurers and organisations representing motorists 15
in Queensland, and must consider any submissions made in 16
response to the invitation; and 17
(b) the Commission must obtain and consider actuarial advice. 18
governing levies 19
Principles
Clause13.(1) The basis of the levies is as follows-- 20
(a) the statutory insurance scheme levy must cover-- 21
(i) the estimated costs of the administration of this Act for the 22
financial year (including all spending by the Commissioner 23
in the exercise of statutory powers, but not costs associated 24
with the Nominal Defendant scheme); and 25
(ii) any shortfall because the statutory insurance scheme levy 26
was not enough to cover the costs in previous financial 27
years; 28
(b) the hospital and ambulance levy must cover a fair proportion of 29
18
Motor Accident Insurance
the estimated cost of providing public hospital and public 1
ambulance services having regard to the burden placed on the 2
services by motor vehicle accidents; 3
(c) the Nominal Defendant levy must cover-- 4
(i) the estimated costs of the Nominal Defendant scheme for 5
the financial year (including the cost of making appropriate 6
provision for future costs); and 7
(ii) a shortfall because the Nominal Defendant levy was not 8
enough to cover the costs of the Nominal Defendant scheme 9
in previous financial years. 10
(2) The levies are to be percentages of gross premiums. 11
governing insurance premiums 12
Principles
Clause14.(1) In recommending insurance premiums for a financial year, the 13
Commission must have regard to-- 14
(a) the proportions of the premiums to be paid by way of levies and 15
administration fee under this Act; and 16
(b) the likely extent of licensed insurers' liabilities; and 17
(c) any other matters the Commission considers relevant. 18
(2) The recommended insurance premiums may differ according to-- 19
(a) the period of registration; and 20
(b) the nature or class of the motor vehicle; and 21
(c) any other factor the Commission considers relevant. 22
(3) If the Nominal Defendant levy is increased to cover liabilities of the 23
Nominal Defendant as the insurer of last resort on the insolvency of some 24
other insurer formerly taking part in the CTP insurance scheme, there must 25
be a corresponding increase in gross insurance premiums to cover the 26
component of the Nominal Defendant levy referable to the liabilities. 27
of premiums, levies and administration fee 28
Fixing
The insurance premiums, levies and administration fee are to 29
Clause15.(1)
19
Motor Accident Insurance
be fixed by regulation. 1
(2) The regulation should, if practicable, be made at least 2 months 2
before the beginning of the financial year to which the premiums, levies and 3
administration fee relate. 4
(3) If the regulation is not made at least 2 months before the beginning of 5
the financial year to which the premiums, levies and administration fee 6
relate, the regulation commences 2 months after it is notified in the Gazette, 7
and the operation of the regulation fixing premiums, levies and 8
administration fee for the previous financial year is extended until the later 9
regulation commences. 10
(4) Within 3 sitting days after the regulation is tabled in the Legislative 11
Assembly, the Minister must table in the Legislative Assembly-- 12
(a) the Commission's recommendations; and 13
(b) if the insurance premiums, levies or administration fee differ 14
from the Commission's recommendation--a report setting out in 15
detail the reasons for the difference. 16
4--The Nominal Defendant 17
Division
Nominal Defendant 18
The
Clause16.(1) The Nominal Defendant-- 19
(a) is a body corporate; and 20
(b) has a seal; and 21
(c) may sue and be sued under the name Nominal Defendant. 22
(2) The Commissioner is the Nominal Defendant. 23
(3) The Nominal Defendant has all the powers of an individual and may, 24
for example-- 25
(a) enter into contracts; and 26
(b) acquire, hold, dispose of, and deal with, property; and 27
(c) employ staff (including temporary staff); and 28
(d) appoint agents and attorneys; and 29
20
Motor Accident Insurance
(e) engage consultants. 1
(4) The Nominal Defendant may delegate powers under this Act. 2
(5) The Nominal Defendant's seal is to be kept as directed by the 3
Commissioner and may be used only as directed or authorised by the 4
Commissioner. 5
(6) Judicial notice must be taken of the imprint of the seal appearing on a 6
document and the document must be presumed to have been properly 7
sealed unless the contrary is proved. 8
Defendant to keep public office 9
Nominal
Clause17.(1) The Nominal Defendant must have a public office. 10
(2) Legal process is served personally on the Nominal Defendant by 11
leaving it at the Nominal Defendant's public office with a person apparently 12
employed at the office. 13
Defendant taken to be licensed insurer 14
Nominal
The Nominal Defendant is taken to be a licensed insurer (other 15
Clause18.
than for Parts 3 (Compulsory insurance) and 5 (Licensed insurers)) and is 16
bound by the industry deed. 17
Division 5--Annual report 18
report 19
Annual
The Commission must report annually under the Financial 20
Clause19.(1)
Administration and Audit Act 1977. 21
(2) The report must-- 22
(a) include a report dealing with all significant aspects of the 23
operation of the statutory insurance scheme, with particular 24
reference to the operation of the provisions affecting the 25
management of motor vehicle accident claims; and 26
(b) contain information about the cost to the community of motor 27
vehicle accidents for the relevant financial year; and 28
21
Motor Accident Insurance
(c) contain information about the cost of administering this Act and 1
the Nominal Defendant scheme for the financial year; and 2
(d) contain further information that may be required by regulation; 3
and 4
(e) include the audited accounts of the Motor Accident Insurance 5
Fund and the Nominal Defendant Fund. 6
ART 3--COMPULSORY INSURANCE 7
P
Division 1--Obligation to insure 8
of driving uninsured vehicle 9
Offence
Clause20.(1) A person must not drive an uninsured motor vehicle on a road. 10
Maximum penalty--80 penalty units. 11
(2) It is a defence to a charge of an offence against this section to prove 12
that the defendant had reasonable grounds to believe and did believe the 13
motor vehicle was an insured motor vehicle. 14
(3) This section does not apply to a motor vehicle of a class exempted 15
from its application by regulation. 16
Division 2--Selection of insurer 17
of insurer 18
Selection
On lodging an application for the registration of a motor 19
Clause21.(1)
vehicle with transport administration, the applicant must select a licensed 20
insurer to be the insurer under the CTP insurance policy for the vehicle by 21
exercising 1 of the following options-- 22
(a) the applicant may lodge with the application a notice of 23
nomination, in a form approved by transport administration, 24
nominating a particular licensed insurer to be the insurer under the 25
22
Motor Accident Insurance
CTP insurance policy for the vehicle and pay, in full, to transport 1
administration the appropriate insurance premium; 2
(b) the applicant may lodge with the application a certificate in a form 3
approved by the Commission certifying that the appropriate 4
insurance premium has been paid, in full, to the licensed insurer 5
on whose behalf the certificate is issued. 6
(2) On lodging an application for renewal of the registration of a motor 7
vehicle with transport administration, the applicant must exercise 1 of the 8
following options-- 9
(a) if a licensed insurer insured the vehicle under this Act or the 10
former Act for the previous period of registration and the insurer 11
is, or remains, a licensed insurer--the applicant may re-select the 12
insurer for the period of renewed registration by paying, in full, to 13
transport administration the appropriate insurance premium, 14
either without lodging a further notice of nomination or with a 15
further notice of nomination, in a form approved by transport 16
administration, renominating the insurer; 17
(b) the applicant may select a different licensed insurer to be the 18
insurer under the CTP insurance policy for the period for which 19
registration is to be renewed by-- 20
(i) lodging with the application payment, in full, to transport 21
administration of the appropriate insurance premium 22
together with a notice of nomination, in a form approved by 23
transport administration, nominating a different licensed 24
insurer to be the insurer under the CTP insurance policy for 25
the vehicle; or 26
(ii) lodging with the application a certificate in a form approved 27
by the Commission certifying that the appropriate insurance 28
premium has been paid, in full, to the licensed insurer on 29
whose behalf the certificate is issued. 30
(3) However, an applicant for the renewal of the registration of a motor 31
vehicle may only select a different insurer for the period of renewed 32
registration if-- 33
(a) the application for renewal of registration, the notice of 34
nomination or insurance certificate, and all required payments, are 35
23
Motor Accident Insurance
lodged before the end of the previous period of registration 1
with-- 2
(i) transport administration; or 3
(ii) an agency of transport administration designated in the 4
instructions for lodgment contained on the application form; 5
or 6
(b) the insurer previously selected has ceased to be a licensed insurer. 7
(4) Transport administration must pay to each licensed insurer, at 8
periodic intervals fixed by regulation, the premiums collected by transport 9
administration for CTP insurance policies for which the licensed insurer has 10
been selected in the previous period, to be the insurer under this section. 11
(5) Transport administration may keep an administration fee fixed by 12
regulation out of insurance premiums collected by transport administration. 13
(6) In this section-- 14
"appropriate insurance premium" means the insurance premium, fixed 15
by regulation, appropriate to a motor vehicle of the relevant class and 16
the period of registration to which the relevant application relates. 17
insurer cannot decline CTP business 18
Licensed
A CTP insurance policy under this Act is binding on the 19
Clause22.(1)
licensed insurer by force of this Act, and a licensed insurer cannot repudiate, 20
or decline to issue or renew, a CTP insurance policy. 21
(2) If an application is made to a licensed insurer for an insurance 22
certificate for use in connection with an application to register or renew the 23
registration of a motor vehicle, and the appropriate insurance premium is 24
tendered to the insurer by the applicant, the insurer must issue the certificate. 25
Maximum penalty--300 penalty units. 26
(3) A court that convicts an insurer of an offence against subsection (2) 27
may, by order, withdraw the licence. 28
policy of insurance 29
Statutory
When transport administration registers or renews the 30
Clause23.(1)
24
Motor Accident Insurance
registration of a motor vehicle-- 1
(a) a policy of insurance in terms of the Schedule comes into force 2
for the motor vehicle when the registration or renewal of 3
registration takes effect; and 4
(b) the licensed insurer selected under this Part in or in relation to the 5
relevant application is the insurer under the policy. 6
(2) The policy remains in force for the period of registration and for a 7
further period of grace ending-- 8
(a) on the renewal of the registration or the grant of a permit allowing 9
the vehicle to be driven on roads while unregistered; or 10
(b) on the expiry of 30 days from the end of the period of 11
registration; 12
whichever happens first, but the period of grace does not include a period 13
over which the vehicle has attached to it plates that allow it to be driven on 14
roads while unregistered. 15
(3) However, if the registration is cancelled before the end of the period 16
for which it was granted or renewed, the policy ceases to be in force when 17
the cancellation takes effect. 18
(4) The validity of the policy is unaffected by-- 19
(a) transport administration's failure to collect the insurance premium 20
in full; or 21
(b) another error of transport administration or an error of an insurer. 22
(5) If a CTP insurance policy comes into force under this Act and the 23
insurance premium has not been collected, in full, by or for the insurer, the 24
insurer may recover the premium, or as much of it as has not been paid, as 25
a debt, from the person in whose name the motor vehicle is registered. 26
(6) If-- 27
(a) a cheque received by transport administration for the premium, or 28
for an amount including the premium, on a CTP insurance policy 29
is not paid on first presentation; or 30
(b) transport administration becomes aware that, because of 31
administrative error, the amount accepted by it as the premium on 32
a CTP insurance policy is not the full amount of the premium; 33
25
Motor Accident Insurance
transport administration must, as soon as practicable, inform the insurer of 1
the relevant fact and of any action taken by transport administration to 2
recover the premium or the balance of the premium. 3
(7) If provision is made by regulation for the gratuitous insurance of 4
vehicles of a particular class under policies of CTP insurance, a vehicle of 5
the relevant class must be regarded, subject to any conditions and 6
limitations prescribed by regulation, as insured by a CTP insurance policy 7
under which the Nominal Defendant is the insurer. 8
(8) If a licensed insurer issues a CTP insurance certificate for an 9
uninsured motor vehicle, the motor vehicle is covered by the insurer under a 10
CTP insurance policy while the vehicle is being driven as far as is 11
reasonably necessary-- 12
(a) to obtain a certificate of roadworthiness, or a weighbridge 13
certificate, necessary for the vehicle's registration; or 14
(b) to take the vehicle to the nearest convenient place for an inspection 15
that is necessary for registration. 16
(9) However, CTP insurance cover under subsection (8) does not extend 17
to an unregistered vehicle while it is being driven to a place to arrange or 18
undergo repair or another purpose not specifically authorised by the 19
subsection. 20
of registration 21
Transfer
A CTP insurance policy is unaffected by a change of ownership, 22
Clause24.
or a transfer of the registration of, a motor vehicle to which it relates. 23
vehicle must be insured under correct class 24
Motor
An applicant for registration, or renewal of registration, of a 25
Clause25.(1)
motor vehicle must not make a misstatement or misrepresentation that 26
results in-- 27
(a) the motor vehicle being incorrectly classified; and 28
(b) a consequent reduction in the amount of the premium charged for 29
the CTP insurance policy for the vehicle. 30
Maximum penalty--20 penalty units. 31
26
Motor Accident Insurance
(2) However, it is a defence to a charge of an offence against 1
subsection (1) to prove that the defendant believed on reasonable grounds 2
that the misstatement or misrepresentation was true. 3
(3) An insurer must not fix the insurance premium to be paid for a CTP 4
insurance policy on the basis of a classification of a motor vehicle the 5
insurer knows to be incorrect. 6
Maximum penalty--300 penalty units. 7
in certain cases 8
Non-application
Clause26. This Division does not apply to-- 9
(a) a trailer other than a trailer that is registered, or about to be 10
registered, under the Interstate Road Transport Act 1985 11
(Cwlth); or 12
(b) a motor vehicle owned by a self-insurer. 13
Division 3--Financial obligations of insurers 14
of levies and administration fee 15
Payment
Clause27.(1) At periodic intervals fixed by regulation, an insurer must-- 16
(a) give the Commission a return, containing the information 17
prescribed by regulation, of the insurer's income by way of CTP 18
insurance premiums for the previous period; and 19
(b) pay to the Commission the appropriate amount payable by way 20
of levies on the CTP insurance premiums; and 21
(c) pay to transport administration the amount payable by way of 22
administration fee. 23
Maximum penalty--150 penalty units. 24
(2) If an insurer fails to make a payment to the Commission or transport 25
administration when required under this section, the Commission or 26
transport administration may recover the amount as a debt, together with 27
interest at a rate fixed by regulation. 28
27
Motor Accident Insurance
4--The statutory funds 1
Division
Accident Insurance Fund 2
Motor
There is to be a fund called the Motor Accident Insurance 3
Clause28.(1)
Fund. 4
(2) The fund consists of-- 5
(a) any amount transferred to the fund under section 106 (Nominal 6
Defendant); and 7
(b) the amounts received or recovered by the Commission by way of 8
the statutory insurance scheme levy under this Act; and 9
(c) the amounts received or recovered by the Commission by way of 10
the hospital and ambulance levy under this Act; and 11
(d) any penalties or penalty interest imposed under this Act; and 12
(e) income derived from the investment of the fund. 13
(3) The fund is to be applied to meet the cost of administering this Act, 14
including-- 15
(a) all expenditure by the Commission in the exercise of statutory 16
powers and functions (including payments to be made under 17
section 106(4) but not costs otherwise associated with the 18
Nominal Defendant scheme); and 19
(b) interest on advances by the Treasurer under this section. 20
(4) The amounts received into the fund by way of the hospital and 21
ambulance levy are to be paid at periodic intervals, and in proportions, 22
decided by the Treasurer, to the Queensland Health Service and the 23
Queensland Ambulance Service to be applied towards providing public 24
hospital and public ambulance services. 25
(5) The Treasurer may advance amounts to the fund on the terms the 26
Treasurer considers appropriate. 27
(6) The Commission may invest amounts not immediately required for 28
the purposes of the fund as the Treasurer may approve. 29
28
Motor Accident Insurance
ominal Defendant Fund 1
N
Clause29.(1) There is to be a fund called the Nominal Defendant Fund. 2
(2) The following amounts are to be paid into the fund-- 3
(a) the amounts to be paid by the Treasurer to the credit of the fund 4
under section 106 (Nominal Defendant); 5
(b) the income derived from the Nominal Defendant levy; 6
(c) the amounts paid to, or recovered by, the Nominal Defendant 7
under this Act; 8
(d) amounts advanced to the fund under this section; 9
(e) income derived from investment of the fund. 10
(3) The following amounts are to be paid from the fund-- 11
(a) the costs of carrying out the functions of the Nominal Defendant 12
under the statutory insurance scheme; 13
(b) amounts required to satisfy liabilities of the Nominal Defendant 14
for motor vehicle accident claims; 15
(c) interest on any advance by the Treasurer under this section. 16
(4) The Treasurer may advance amounts to the fund on the terms the 17
Treasurer considers appropriate. 18
(5) The Nominal Defendant may invest amounts not immediately 19
required for the purposes of the fund as the Treasurer may approve. 20
Division 5--Transfer of CTP business 21
of CTP business 22
Transfer
The Commission may, on the joint application of 2 licensed 23
Clause30.(1)
insurers, approve the transfer of CTP business from one insurer (the 24
"transferor") to the other (the "transferee"). 25
(2) An approval under this section may be given on the conditions the 26
Commission considers appropriate. 27
(3) Notice of an approval under this section must be published in the 28
Gazette. 29
29
Motor Accident Insurance
(4) On publication of the notice of approval in the Gazette-- 1
(a) all rights and liabilities subject to the transfer are transferred to, 2
and become rights and liabilities of, the transferee; and 3
(b) this Act operates as if the transferee had been selected as the 4
insurer under the CTP policies subject to the transfer; and 5
(c) if the transferor's entire CTP business is transferred--the 6
transferor's licence is withdrawn. 7
PART 4--CLAIMS 8
1--The insurer 9
Division
for determining the insurer 10
Principles
Clause31.(1) If personal injury is caused by, through or in connection with a 11
motor vehicle, the insurer for the statutory insurance scheme is to be 12
decided in accordance with the following principles-- 13
(a) if the motor vehicle is an insured motor vehicle--the insurer 14
under the CTP insurance policy is, subject to this Division, the 15
insurer; 16
(b) if the motor vehicle is not insured but a self-insurer is the 17
registered owner--the self-insurer is the insurer; 18
(c) if the motor vehicle is not insured and a self-insurer is not the 19
registered owner--the Nominal Defendant is the insurer; 20
(d) if the motor vehicle, or insurer under its CTP insurance policy, 21
cannot be identified--the Nominal Defendant is the insurer. 22
(2) In any legal proceedings, it is to be presumed that a motor vehicle 23
cannot be identified if it is established by affidavit or oral evidence that 24
proper inquiry and search have been made and have failed to establish the 25
identity of the motor vehicle. 26
(3) If a trailer is attached to a motor vehicle or runs out of control after 27
becoming accidentally detached from a motor vehicle, the trailer must be 28
30
Motor Accident Insurance
regarded as part of the motor vehicle and the insurer of the motor vehicle is 1
the insurer of the trailer but, in any other case, the insurer of a trailer is the 2
Nominal Defendant whose liability is to be decided as if the Nominal 3
Defendant had issued a separate CTP insurance policy for the trailer. 4
(4) However-- 5
(a) if a motor vehicle accident involving a trailer happens outside the 6
State--the Nominal Defendant is not the insurer of the trailer 7
under subsection (3); and 8
(b) if a trailer is separately insured under a CTP insurance 9
policy--the insurer under the policy for the trailer is the insurer of 10
the trailer for all purposes. 11
as the insurer 12
Self-insurer
If personal injury is caused by, through or in connection with a 13
Clause32.
motor vehicle that is not insured under a CTP insurance policy but a 14
self-insurer is the registered owner, the self-insurer's liability is the same as 15
if the self-insurer had been, when the motor vehicle accident happened, the 16
insurer under a CTP insurance policy under this Act for the motor vehicle. 17
Defendant as the insurer 18
Nominal
The Nominal Defendant's liability for personal injury caused 19
Clause33.(1)
by, through or in connection with a motor vehicle is the same as if the 20
Nominal Defendant had been, when the motor vehicle accident happened, 21
the insurer under a CTP insurance policy under this Act for the motor 22
vehicle. 23
(2) If the insurer under a CTP insurance policy becomes insolvent, the 24
Nominal Defendant becomes the insurer under CTP policies in force under 25
this Act for which the insolvent insurer was formerly the insurer unless the 26
policies are transferred to some other licensed insurer. 27
(3) The Nominal Defendant is liable for personal injury arising out of a 28
motor vehicle accident outside Queensland only if the liability arises under 29
subsection (2). 30
31
Motor Accident Insurance
2--Duty to notify accidents and claims and provide information 1
Division
to notify accidents 2
Duty
Clause34.(1) If personal injury arises from a motor vehicle accident-- 3
(a) the driver, person in charge or owner of the motor vehicle 4
involved in the accident must give written notice to the insurer of 5
the motor vehicle within 1 month after the accident; and 6
(b) a person who proposes to claim damages for personal injury 7
arising from the accident must give written notice to the insurer, 8
or 1 of the insurers, against whom the claim may be made within 9
1 month after the person first consults a lawyer about the 10
possibility of making a claim. 11
(2) A notice under this section must-- 12
(a) state the date, time and place of the accident and describe how it 13
happened; and 14
(b) identify all motor vehicles and drivers involved in the accident as 15
far as known to the person by whom the notice is given; and 16
(c) state the names and residential addresses of all persons injured in 17
the accident; and 18
(d) if the notice is to be given by an intending claimant, state-- 19
(i) the intending claimant's full name, date of birth, and 20
residential address; and 21
(ii) the general nature of the personal injury to the intending 22
claimant; and 23
(iii) the date the intending claimant first consulted a lawyer about 24
the possibility of making a claim. 25
(3) A person must not fail to give a notice required under this section. 26
Maximum penalty--5 penalty units. 27
to provide information 28
Duty
The driver, person in charge or owner of a motor vehicle 29
Clause35.(1)
32
Motor Accident Insurance
involved in an accident out of which personal injury arises must, at the 1
request of the insurer of a vehicle involved in the accident, provide any 2
information about the accident that the insurer may reasonably require 3
within 1 month after receiving the request. 4
(2) A person must not, without reasonable excuse, fail to comply with a 5
request for information under subsection (1). 6
Maximum penalty--10 penalty units. 7
(3) A person asked to provide information under subsection (1) has a 8
reasonable excuse for not complying with the request if the information 9
would tend to incriminate the person. 10
(4) A person, if not the driver, owner, or person in charge of the motor 11
vehicle insured by the insurer asking for information, need not comply with 12
the request unless it was made with the agreement of the insurer of the 13
motor vehicle. 14
(5) An insurer who asks for information under this section must disclose 15
fully in the request the nature of the insurer's interest in the motor vehicle 16
accident. 17
to notify claims 18
Duty
Clause36.(1) A person who receives a claim or demand, or notice of a claim 19
or demand, about personal injury arising out of a motor vehicle accident 20
must, within 1 month after receiving it, give the claim, demand or notice to 21
the insurer of the motor vehicle under the statutory insurance scheme. 22
Maximum penalty--10 penalty units. 23
(2) A person who receives a writ or other process of a court about a 24
motor vehicle accident claim must immediately give it to the insurer of the 25
motor vehicle under the statutory insurance scheme. 26
Maximum penalty--10 penalty units. 27
33
Motor Accident Insurance
Division 3--Claims procedures 1
to be given by claimant 2
Notice
Before bringing an action in a court for damages for personal 3
Clause37.(1)
injury arising out of a motor vehicle accident, a claimant must give written 4
notice of the claim to the insurer, or 1 of the insurers, against which the 5
action is to be brought-- 6
(a) containing a statement, sworn by the claimant, of the information 7
required by regulation; and 8
(b) containing an offer of settlement, or a sworn statement of the 9
reasons why an offer of settlement cannot yet be made; and 10
(c) accompanied by the documents required by regulation. 11
(2) The notice must be given within 9 months after the motor vehicle 12
accident or the first appearance of symptoms of the injury. 13
(3) However, if the motor vehicle cannot be identified, the notice must be 14
given to the Nominal Defendant within 3 months after the motor vehicle 15
accident. 16
(4) If the notice is not given within the time fixed by this section, the 17
obligation to give the notice continues and the notice, when given, must 18
contain an explanation of the delay but, if a motor vehicle accident claim 19
relates to injury caused by, through or in connection with a motor vehicle 20
that cannot be identified and notice of the claim is not given to the Nominal 21
Defendant within 9 months after the motor vehicle accident, the claim 22
against the Nominal Defendant is barred. 23
(5) If 2 or more motor vehicles were involved in the motor vehicle 24
accident, the insurer to which a notice of claim is given under subsection (1) 25
must, within 7 days after receiving it, give a copy of the notice to any other 26
insurer of a motor vehicle involved in the motor vehicle accident. 27
insurers 28
Multiple
If 2 or more motor vehicles are involved in a motor vehicle 29
Clause38.(1)
accident in circumstances in which 2 or more insurers may be liable on a 30
motor vehicle accident claim arising out of the accident, 1 of the insurers 31
(the "claim manager") is to act for all the insurers under this Division and 32
34
Motor Accident Insurance
Divisions 4 (Cooperation between claimant and insurer), 5 (Rehabilitation) 1
and 6 (Proceedings in court). 2
(2) The claim manager is to be decided by agreement between the 3
insurers within 2 months of the day when notice of the claim was first 4
given under this Division or, if agreement is not reached within the period, 5
the claim manager is to be decided under the industry deed. 6
(3) Until it is decided under subsection (2) who the claim manager is to 7
be, the insurer to which notice of claim is first given under this Division is 8
the claim manager. 9
(4) The claim manager-- 10
(a) may exercise the powers and perform the functions conferred by 11
this Division and Divisions 4, 5 and 6 in relation to the claim and 12
the claimant for all insurers liable, or potentially liable, on the 13
claim; and 14
(b) must act as far as practicable with the agreement of the other 15
insurers; and 16
(c) is entitled to contributions from the other insurers on the basis 17
prescribed by the industry deed for expenditure properly incurred 18
as claim manager, and for amounts awarded or paid out on the 19
claim. 20
(5) The claim manager and the other insurers must cooperate with each 21
other and must provide each other with information in their possession 22
relevant to the claim. 23
(6) If the Nominal Defendant is 1 of 2 or more insurers who may be 24
liable on a motor vehicle accident claim because a motor vehicle that cannot 25
be identified was involved in the accident, another insurer may act for the 26
Nominal Defendant under this section only if the Nominal Defendant 27
agrees in writing. 28
to the notice of claim 29
Response
Clause39.(1) If a notice of claim is given to an insurer under this Division or 30
purportedly under this Division-- 31
(a) the insurer must, within 1 month after receiving the notice of 32
claim (even though the notice may have been given out of time), 33
35
Motor Accident Insurance
give the claimant written notice-- 1
(i) stating whether the insurer is satisfied that the notice has 2
been given as required under this Division; and 3
(ii) if the insurer is not satisfied--identifying the noncompliance 4
and stating whether the insurer waives compliance with the 5
requirements; and 6
(iii) if the insurer does not waive compliance with the 7
requirements--allowing the claimant a reasonable period (at 8
least 1 month) specified in the notice either to satisfy the 9
insurer that the claimant has in fact complied with the 10
requirements or to take reasonable action specified in the 11
notice to remedy the noncompliance; and 12
(b) if the insurer is not prepared to waive compliance with the 13
requirements in the first instance--the insurer must, within 14
1 month after the end of the period specified under 15
paragraph (a)(iii), give the claimant a written notice-- 16
(i) stating that the insurer is satisfied the claimant has complied 17
with the relevant requirements, is satisfied with the action 18
taken by the claimant to remedy the noncompliance or 19
waives the noncompliance in any event; or 20
(ii) stating that the insurer is not satisfied that the claimant has 21
taken reasonable action to remedy the noncompliance, with 22
full particulars of the noncompliance and the claimant's 23
failure to remedy it. 24
(2) If an insurer to which a notice of claim is given under this Division or 25
purportedly under this Division is not, for the purposes of the claim, the 26
insurer of the motor vehicle to which the claim relates under the statutory 27
insurance scheme, the insurer must, instead of responding to the notice of 28
claim under subsection (1), give the claimant written notice denying that the 29
insurer is the insurer under the statutory insurance scheme. 30
(3) If a notice of claim is given to an insurer under this Division or 31
purportedly under this Division, and the insurer does not respond to the 32
notice within 1 month after receiving it, the insurer is conclusively 33
presumed to be satisfied the notice has been given as required under this 34
Division. 35
36
Motor Accident Insurance
(4) However, the insurer's failure to respond to the notice does not 1
prevent the insurer from later denying that the insurer is the insurer of the 2
motor vehicle to which the claim relates under the statutory insurance 3
scheme, but the insurer is liable to compensate the claimant and the insurer 4
against which the claim properly lies for prejudice resulting from the 5
insurer's failure to respond to the notice under subsection (2). 6
(5) A claimant may bring a proceeding in a court for damages based on a 7
motor vehicle accident claim only if-- 8
(a) the claimant has given notice to an insurer who may be liable on 9
the claim under the statutory insurance scheme as required under 10
this Division or the insurer has waived compliance with the 11
requirement and-- 12
(i) at least 6 months have elapsed since the notice or the waiver 13
was given; or 14
(ii) the insurer has denied liability on the claim; or 15
(iii) the insurer has admitted liability but only in part and the 16
claimant has given the insurer written notice that the extent 17
of liability is disputed; or 18
(b) the court, on application by a claimant dissatisfied with the 19
insurer's response to a notice of a claim under this Division, 20
declares that-- 21
(i) notice of claim has been given as required under this 22
Division; or 23
(ii) the claimant is taken to have remedied noncompliance with 24
this Division; or 25
(c) the court gives leave to bring the proceeding despite 26
noncompliance with requirements of this Division. 27
(6) A declaration that a claimant is taken to have remedied 28
noncompliance with this Division, or an order that a claimant has leave to 29
bring a proceeding despite noncompliance with requirements of this 30
Division, may be made on conditions the court considers necessary or 31
appropriate to minimise prejudice to an insurer from the claimant's failure 32
to comply with requirements of this Division. 33
(7) If a claimant does not comply with the requirements of this Division, 34
37
Motor Accident Insurance
a court before which the claimant brings an action for damages on the 1
claim-- 2
(a) may, on the insurer's application, award in the insurer's favour 3
costs (including legal and investigation costs) reasonably incurred 4
by the insurer because of the claimant's default; and 5
(b) may only award interest in the claimant's favour for a period for 6
which the claimant was in default if the court is satisfied there is a 7
reasonable excuse for the default. 8
(8) If a claim against the Nominal Defendant is barred because the claim 9
relates to personal injury caused by, through or in connection with a motor 10
vehicle that cannot be identified and the claimant failed to give notice of 11
claim under this Division within 9 months after the motor vehicle accident, 12
the Nominal Defendant cannot waive compliance with the requirement to 13
give notice within the time allowed by this Division, nor can the court give 14
leave to bring a proceeding in a court despite the noncompliance. 15
and legal disabilities 16
Minority
A claimant's obligation to comply with this Division is 17
Clause40.(1)
suspended during the claimant's minority or a period of legal incapacity. 18
(2) A period within which the obligation is to be complied with begins 19
when the claimant's minority or legal incapacity ends. 20
(3) However, this section does not prevent a claimant, or a person acting 21
for the claimant, from complying with an obligation under this Division 22
during the claimant's minority or legal incapacity. 23
must attempt to resolve claim 24
Insurer
Within 6 months after an insurer receives notice of a motor 25
Clause41.(1)
vehicle accident claim under this Division, the insurer must-- 26
(a) take reasonable steps to inform itself of the circumstances of the 27
motor vehicle accident out of which the claim arises; and 28
(b) give the claimant written notice stating-- 29
(i) whether liability is admitted or denied; and 30
(ii) if liability is admitted--whether it is admitted in full or in 31
38
Motor Accident Insurance
part; and 1
(iii) if liability is admitted in part--the extent (expressed as a 2
percentage) to which liability is admitted; and 3
(c) if the claimant made an offer of settlement in the notice of claim, 4
inform the claimant whether the insurer accepts or rejects the 5
offer or, if the claimant did not make an offer of settlement in the 6
notice, invite the claimant to make a written offer of settlement. 7
(2) As soon as practicable after an insurer receives notice of a claim 8
under the Division, the insurer must-- 9
(a) make a fair and reasonable estimate of the damages to which the 10
claimant would be entitled in an action against the insurer; and 11
(b) make a written offer (or counter-offer) of settlement to the 12
claimant setting out in detail the basis on which the offer is made, 13
or settle the claim by accepting an offer made by the claimant. 14
(3) If a notice of claim is not given as required under this Division, the 15
insurer is taken to receive the notice when-- 16
(a) the insurer gives the claimant notice that the insurer waives 17
compliance with the requirement that has not been complied with 18
or is satisfied the claimant has taken reasonable action to remedy 19
the noncompliance; or 20
(b) the court makes a declaration that the claimant is taken to have 21
remedied the noncompliance, or gives leave to bring a proceeding 22
based on the claim despite the noncompliance. 23
(4) An offer (or counter-offer) of settlement must be accompanied by a 24
copy of medical reports, assessments of cognitive, functional or vocational 25
capacity, or other material in the offerer's possession that may help the 26
person to whom the offer is made make a proper assessment of the offer. 27
(5) An insurer or claimant to whom a written offer (or counter-offer) of 28
settlement is made must (unless a response to the offer is to be made under 29
subsection (1)(c)) respond in writing to the offer, within 3 months after 30
receiving it, indicating acceptance or rejection of the offer. 31
(6) An admission of liability by an insurer under this section-- 32
(a) is not binding on the insurer on another claim arising out of the 33
same motor vehicle accident; and 34
39
Motor Accident Insurance
(b) is not binding on the insurer at all if it later appears the admission 1
was induced by fraud. 2
(7) If-- 3
(a) the insurer denies liability or admits liability to the extent of 10% 4
or less; and 5
(b) the insurer's liability is later established in a proceeding before a 6
court to the extent or 80% or more; 7
the court must award costs in favour of the claimant on a solicitor-and-client 8
basis unless the insurer establishes good reason why it should not. 9
of medical expenses etc. 10
Payment
Once liability has been admitted (in whole or part), it is the 11
Clause42.(1)
duty of the insurer to make payments to or for the claimant for private 12
hospital, medical and pharmaceutical expenses reasonably incurred because 13
of the injury or a proportionate part of the expenses reflecting the extent to 14
which liability is admitted. 15
(2) A payment must be made under this section on presentation of an 16
account made up, and verified, as required by regulation. 17
(3) An insurer may recover payments made under this section if it later 18
appears that the admission of liability was induced by fraud. 19
person not to admit liability 20
Insured
An insured person must not, without the insurer's written 21
Clause43.(1)
agreement-- 22
(a) make an admission of liability on a motor vehicle accident claim; 23
or 24
(b) settle, or offer to settle, a motor vehicle accident claim; or 25
(c) make a payment, or offer or promise to make a payment, on a 26
motor vehicle accident claim. 27
(2) A contract, offer or promise made in contravention of this section 28
does not bind the insurer. 29
(3) This section does not prevent an insured person from providing a 30
40
Motor Accident Insurance
police officer with information reasonably required to prepare a report on a 1
motor vehicle accident. 2
(4) An insured person incurs no civil liability to an insurer through 3
contravention of this section. 4
of insurer to act for insured 5
Power
If a motor vehicle accident claim is made against an insured 6
Clause44.(1)
person, the insurer-- 7
(a) must undertake the conduct and control of negotiations and legal 8
proceedings related to the claim; and 9
(b) may compromise or settle the claim or legal proceedings related 10
to the claim and act for the insured person in any other way in 11
relation to the claim. 12
(2) The insured person must sign any documents necessary to give effect 13
to this section and, if the insured person does not sign or is dead, absent or 14
cannot be found, the insurer may sign for the insured person. 15
(3) Nothing said or done by an insurer in connection with a motor 16
vehicle accident claim, or legal proceedings related to a motor vehicle 17
accident claim, is an admission of liability in, or otherwise prejudices or 18
affects, another claim or proceedings arising out of the same circumstances. 19
Division 4--Cooperation between claimant and insurer 20
of claimant to cooperate with insurer 21
Duty
A claimant must cooperate with the insurer and, in particular, 22
Clause45.(1)
must give information reasonably asked by the insurer about-- 23
(a) the circumstances of the accident out of which the claim arose; 24
and 25
(b) the nature of the injuries resulting from the accident and of any 26
consequent disabilities and financial loss; and 27
(c) if applicable--the medical treatment and rehabilitation services the 28
claimant has sought or obtained; and 29
41
Motor Accident Insurance
(d) the claimant's past medical history (as far as it is relevant to the 1
injury to which the claim relates), and any claims for 2
compensation for personal injury previously made by the 3
claimant. 4
(2) The claimant must, at the insurer's request, give to the insurer, within 5
1 month after receiving the request, copies of all medical reports or other 6
documentary materials in the claimant's possession relevant to the matters 7
mentioned in subsection (1). 8
(3) If, after notice of a claim is given to the insurer but before the claim is 9
resolved, the claimant becomes aware of a significant change in the 10
claimant's medical condition, or in other circumstances, relevant to the 11
extent of the claimant's disabilities or financial loss, the claimant must, 12
within 1 month after becoming aware of the change, inform the insurer of 13
the change. 14
(4) The claimant must comply with a request by the insurer to undergo, 15
at the insurer's expense-- 16
(a) a medical examination by a doctor to be selected by the claimant 17
from a panel of at least 3 doctors nominated in the request; or 18
(b) an assessment of cognitive, functional or vocational capacity by 19
an expert to be selected by the claimant from a panel of at least 3 20
experts with appropriate qualifications and experience nominated 21
by the insurer in the request; 22
(5) However, the claimant is not obliged to undergo the examination if it 23
is unreasonable or unnecessarily repetitious. 24
(6) If 3 doctors or experts with appropriate qualifications and experience 25
are not available for inclusion on a panel under subsection (4), the number 26
on the panel may be reduced to 2. 27
(7) Any information provided by a claimant under this section must be 28
verified by statutory declaration if the insurer requires it to be verified by 29
statutory declaration. 30
and insurer may jointly arrange for expert report 31
Claimant
An insurer and a claimant (or intending claimant) may jointly 32
Clause46.(1)
arrange for an expert report on-- 33
42
Motor Accident Insurance
(a) the motor vehicle accident; or 1
(b) the claimant's medical condition or prospects of rehabilitation. 2
(2) Neither an insurer nor a claimant is under any obligation to agree to a 3
proposal to obtain a report under this section. 4
(3) The person by whom an expert report is obtained is to be a person, 5
agreed to by both parties, with appropriate qualifications and experience in 6
the relevant field. 7
(4) The person by whom an expert report is prepared under this section 8
must provide both parties with a copy of the report. 9
(5) The cost of obtaining a report under this section is to be paid by the 10
parties in proportions agreed to in writing between them or, in default of 11
agreement, in equal proportions. 12
of insurer to cooperate with claimant 13
Duty
Clause47.(1) The insurer must cooperate with a claimant and, in particular-- 14
(a) must provide the claimant with copies of reports and other 15
documentary material in the insurer's possession about the 16
circumstances of the accident or the claimant's medical condition 17
or prospects of rehabilitation; and 18
(b) must, at the claimant's request, give the claimant information that 19
is in the insurer's possession, or can be found out from the 20
insured person, about the circumstances of, or the reasons for, the 21
accident. 22
(2) The insurer must-- 23
(a) provide the claimant with copies of reports and other 24
documentary materials within 1 month after receiving the notice 25
of claim under Division 3 (Claims procedures) or, if the reports 26
or materials come into the insurer's possession later, within 1 27
month after they come into the insurer's possession; and 28
(b) respond to a request under subsection (1)(b) within 1 month after 29
receiving it. 30
(3) If the claimant requires information provided by an insurer under this 31
section to be verified by statutory declaration, the information must be 32
43
Motor Accident Insurance
verified by statutory declaration. 1
(4) If an insurer fails, without proper reason, to comply fully with a 2
request under this section, the insurer is liable for costs to the claimant 3
resulting from the failure. 4
of certain material 5
Non-disclosure
A claimant or insurer is not obliged to disclose information or 6
Clause48.(1)
documentary material under this Division if the information or 7
documentary material is protected by legal professional privilege. 8
(2) However, investigative reports, medical reports and reports relevant 9
to the claimant's rehabilitation must be disclosed even though protected by 10
legal professional privilege but they may be disclosed with the omission of 11
passages consisting only of statements of opinion. 12
(3) If an insurer has reasonable grounds to suspect a claimant of fraud, 13
the insurer may withhold from disclosure under this Division information 14
or documentary material (including reports that would, apart from this 15
subsection, have to be disclosed under subsection (2)) to the extent the 16
disclosure would alert the claimant to the discovery of the grounds of 17
suspicion or could help in the furtherance of fraud. 18
(4) An insurer must not withhold information or documentary material 19
from disclosure under this Division without having proper grounds. 20
Maximum penalty for subsection (4)--50 penalty units. 21
22
Privilege
The information and documentary material disclosed under this 23
Clause49.
Division are protected by the same privileges as if disclosed in a proceeding 24
before the Supreme Court. 25
power to enforce compliance with Division 26
Court's
Clause50. If a claimant or an insurer fails to comply with a duty imposed by 27
this Division, the court may order the claimant or the insurer to comply 28
with the duty, and may make the consequential or ancillary orders that may 29
be necessary or desirable in the circumstances of the case. 30
44
Motor Accident Insurance
Division 5--Rehabilitation 1
to provide rehabilitation services 2
Obligation
An insurer may make rehabilitation services available to a 3
Clause51.(1)
claimant on the insurer's own initiative or at the claimant's request. 4
(2) An insurer that makes rehabilitation services available to a claimant 5
before admitting or denying liability on the claim must not be taken, for that 6
reason, to have admitted liability. 7
(3) Once liability has been admitted on a claim (in whole or in part), the 8
insurer must, at the claimant's request, ensure that reasonable rehabilitation 9
services are made available to the claimant. 10
(4) The insurer must, before providing rehabilitation services for the 11
claimant, give the claimant a written estimate of the cost of the rehabilitation 12
services and a statement of how, and the extent to which, the assessment of 13
damages is likely to be affected by the provision of the rehabilitation 14
services. 15
(5) The claimant may, if not satisfied that the rehabilitation services made 16
available under this section are reasonable, apply to the court to decide what 17
rehabilitation services are, in the circumstances of the case, reasonable and 18
appropriate, and the court may decide the issue and make consequential 19
orders and directions. 20
(6) The insurer must bear (or reimburse) the cost of providing 21
rehabilitation services under this section unless the insurer genuinely 22
believes that the cost of providing rehabilitation services requested by the 23
claimant is excessive in view of the damages that the claimant has a 24
reasonable prospect of recovering. 25
(7) If the insurer genuinely has that belief, the cost is to be divided 26
between the insurer and the claimant in proportions agreed in writing or, in 27
default of agreement, decided by the court on the insurer's application but 28
the agreement or decision lapses if the court later assesses damages (before 29
taking into account the cost of rehabilitation services) at an amount that is 30
enough to cover the cost of the rehabilitation services. 31
(8) If the cost of providing rehabilitation services under this section is 32
incurred in the claimant's own name, the insurer must reimburse the cost 33
(or the appropriate proportion of the cost agreed or decided under 34
45
Motor Accident Insurance
subsection (7)) on presentation of an account made up, and verified, as 1
required by regulation. 2
(9) The cost to an insurer of providing rehabilitation services under this 3
section must be taken into account in the assessment of damages on the 4
claim. 5
(10) An insurer who is induced by a claimant's fraud to provide 6
rehabilitation services for the claimant may recover the cost to the insurer of 7
providing the services, as a debt, from the claimant. 8
Division 6--Proceedings in court 9
to be joint or sole defendant 10
Insurer
If an action is brought in a court for damages for personal 11
Clause52.(1)
injury arising out of a motor vehicle accident, the action must be brought 12
against the insured person and the insurer as joint defendants. 13
(2) However, an action may be brought against the insurer alone if-- 14
(a) the insured person cannot be identified; or 15
(b) the insured person is dead or it is impracticable to serve the 16
insured person. 17
(3) If a motor vehicle accident claim lies against 2 or more insurers, all 18
insurers become defendants to the action, but the claim manager continues 19
to represent all insurers in the action unless the court gives leave allowing 1 20
or more of the insurers to be separately represented. 21
(4) If judgment is given in favour of the claimant on the claim related to 22
personal injury, the judgment must be given against the insurer and not the 23
insured person (unless the judgment is a judgment for exemplary or 24
punitive damages), and, if the action involves other claims (unrelated to the 25
personal injury), a separate judgment must be given on the other claims. 26
(5) It is not a defence to an action under this section for the insurer to 27
prove-- 28
(a) that the CTP insurance policy was obtained by fraud, or a material 29
misstatement or nondisclosure; or 30
(b) that the insured person is in breach of a contractual or statutory 31
46
Motor Accident Insurance
obligation. 1
(6) If legal process related to a proceeding based on a motor vehicle 2
accident claim is served on the insurer, the insured person is also taken to 3
have been served. 4
(7) If a motor vehicle accident claim lies against 2 or more insurers, and 5
legal process related to a proceeding based on the claim is served on the 6
claim manager, all insurers are taken to have been served. 7
right to call and cross-examine insured person 8
Insurer's
In an action for damages for personal injury arising out of a 9
Clause53.
motor vehicle accident, the insurer may call the insured person as a witness 10
and, by the court's leave, cross-examine the insured person. 11
of damages 12
Mitigation
Clause54.(1) If an insurer is not satisfied with the action taken by a claimant 13
to mitigate damages, the insurer may give the claimant a written notice 14
suggesting specified action the claimant should take to mitigate damages. 15
(2) The notice may, for example, suggest that-- 16
(a) the claimant should undergo medical treatment of a specified 17
kind; or 18
(b) the claimant should return to work or take specified steps to 19
obtain employment; or 20
(c) the claimant should undergo rehabilitation therapy of a specified 21
kind, or undertake specified programs of rehabilitation and 22
training. 23
(3) In assessing damages for personal injury arising out of a motor 24
vehicle accident, the court must-- 25
(a) consider whether the claimant has failed to take reasonable steps 26
to mitigate damages by not following suggestions made under 27
this section; and 28
(b) if it appears the claimant has failed to take reasonable steps to 29
mitigate damages by not following the suggestions--reduce the 30
claimant's damages to an appropriate extent reflecting the failure. 31
47
Motor Accident Insurance
of exemplary damages 1
Awards
No award of exemplary or punitive damages may be made 2
Clause55.(1)
against an insurer on a motor vehicle accident claim. 3
(2) However, if the court is of the opinion that the conduct of an insured 4
person is so reprehensible that an award of exemplary or punitive damages 5
is justified, the court may give a separate judgment against the insured 6
person for the payment of exemplary or punitive damages. 7
(3) An insured person is not entitled, under a CTP insurance policy, to an 8
indemnity against an award of exemplary or punitive damages. 9
of jury trial 10
Exclusion
A proceeding in a court based on a motor vehicle accident claim 11
Clause56.
must be decided by the court sitting without a jury. 12
of period of limitation 13
Alteration
If notice of a motor vehicle accident claim is given under 14
Clause57.(1)
Division 3 (Claims procedures), or an application for leave to bring a 15
proceeding based on a motor vehicle accident claim is made under 16
Division 3, before the end of the period of limitation applying to the claim, 17
the claimant may bring a proceeding in court based on the claim even 18
though the period of limitation has ended. 19
(2) However, the proceeding may only be brought after the end of the 20
period of limitation if it is brought within 6 months after the day on which 21
the notice is given or leave to bring the proceeding is granted. 22
(3) If during the last 14 days of the period of limitation, the claimant 23
wants to give a notice of claim under Division 3 but is unsure to which 24
insurer the notice should be given, the notice is validly given if it is given to 25
the Commission. 26
(4) After receiving a notice of claim under subsection (3), the 27
Commission must make inquiries to decide the insurer against which the 28
claim properly lies, and pass the notice of claim on to the appropriate 29
insurer. 30
(5) If a period of limitation is extended under Part 3 (Extension of 31
48
Motor Accident Insurance
periods of limitation) of the Limitation of Actions Act 1974, this section 1
applies to the period of limitation as extended under the Part. 2
Division 7--Insurer's rights of recourse 3
rights of recourse 4
Insurer's
If-- 5
Clause58.(1)
(a) personal injury arises out of a motor vehicle accident; and 6
(b) the insured person was at the relevant time using the motor 7
vehicle without the owner's authority, without lawful justification 8
or excuse, and without reasonable grounds to believe that the 9
insured person had the owner's authority, or lawful justification 10
or excuse, for using the motor vehicle; 11
the insurer may recover, as a debt, from the insured person any costs 12
reasonably incurred by the insurer on a claim for the personal injury. 13
(2) If-- 14
(a) personal injury arises out of a motor vehicle accident; and 15
(b) the insured person intended to injure the claimant or some other 16
person; 17
the insurer may recover, as a debt, from the insured person any costs 18
reasonably incurred by the insurer on a claim for the personal injury. 19
(3) If-- 20
(a) personal injury arises out of a motor vehicle accident; and 21
(b) the insured person was, at the time of the accident, the driver of 22
the motor vehicle; and 23
(c) the concentration of alcohol in the blood of the insured person at 24
the time of the accident exceeded 0.05 g in 100 mL of blood; 25
the insurer may recover, as a debt, from the insured person any costs 26
reasonably incurred by the insurer on a claim for the personal injury that are 27
reasonably attributable to the insured person's inability to exercise effective 28
control of the motor vehicle. 29
49
Motor Accident Insurance
(4) If-- 1
(a) personal injury arises out of a motor vehicle accident; and 2
(b) the motor vehicle accident giving rise to the injury is attributable 3
in whole or in part to a defect in the motor vehicle; and 4
(c) the defect arose from the wrongful act or omission of the 5
manufacturer or a person who carries on a business of repairing 6
motor vehicles; 7
the insurer may recover, as a debt, from the manufacturer or repairer the 8
proportion of the costs reasonably incurred by the insurer on a claim for the 9
personal injury that reasonably reflects the degree of the manufacturer's or 10
repairer's responsibility for the accident. 11
(5) However, it is a defence for the manufacturer or repairer to prove that 12
the driver of the motor vehicle drove it with knowledge of the defect and its 13
likely effect. 14
(6) An action by an insurer under this section may be brought separately 15
or by way of third-party proceeding. 16
in case of fraud 17
Recovery
An insurer may recover from a claimant or other person who 18
Clause59.(1)
defrauds or attempts to defraud the insurer on a motor vehicle accident 19
claim any costs reasonably incurred by the insurer because of the fraud. 20
(2) In subsection (1)-- 21
"insurer" includes the Nominal Defendant. 22
Defendant's rights of recourse for uninsured vehicles 23
Nominal
If personal injury arises out of a motor vehicle accident 24
Clause60.(1)
involving an uninsured vehicle, the Nominal Defendant may recover, as a 25
debt, from the owner or driver of the vehicle (or both) any costs reasonably 26
incurred by the Nominal Defendant on a claim for the personal injury. 27
(2) It is a defence to an action by the Nominal Defendant under this 28
section-- 29
(a) as far as recovery is sought against the owner--for the owner to 30
50
Motor Accident Insurance
prove-- 1
(i) that the motor vehicle was driven without the owner's 2
authority; or 3
(ii) that the owner believed on reasonable grounds that the motor 4
vehicle was insured; and 5
(b) as far as recovery is sought against the driver--for the driver to 6
prove that the driver believed on reasonable grounds that the 7
driver had the owner's consent to drive the motor vehicle and that 8
the motor vehicle was insured. 9
(3) The Nominal Defendant may bring a proceeding for recovery of 10
costs under this section before the costs have been actually paid in full and, 11
in that case, a judgment for recovery of costs may provide that, as far as the 12
costs have not been actually paid, the right to recover the costs is contingent 13
on payment. 14
(4) This section does not affect rights of recovery that the Nominal 15
Defendant may have, apart from this section, against the insured person. 16
Defendant's rights of recourse against insurer 17
Nominal
If an insurer becomes insolvent, any costs reasonably incurred 18
Clause61.(1)
by the Nominal Defendant on claims under CTP insurance policies for 19
which the insolvent insurer was the insurer become debts of the insolvent 20
insurer to the Nominal Defendant and provable in the insolvency. 21
(2) The debts of the insolvent insurer that arise under subsection (1) have 22
the same order of priority in the winding-up of the insolvent insurer as if the 23
Nominal Defendant were the insured person under policies of insurance 24
issued by the insolvent insurer. 25
(3) If the claim for which costs were incurred by the Nominal Defendant 26
is covered by a contract of reinsurance, the Nominal Defendant succeeds to 27
the rights of the insolvent insurer under the contract of reinsurance. 28
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Motor Accident Insurance
PART 5--LICENSED INSURERS 1
Division 1--Licensing of insurers 2
for licence 3
Application
A body corporate carrying on the business of general 4
Clause62.(1)
insurance in Queensland may apply to the Commission for a licence under 5
this Part. 6
(2) The application-- 7
(a) must be made in writing; and 8
(b) must be accompanied by the information and materials that may 9
be required by regulation. 10
(3) The applicant must provide the Commission with the further 11
information or materials that the Commission may require to decide the 12
application. 13
(4) The Commission may, for example, require the applicant to 14
provide-- 15
(a) particulars of shareholders, directors, managers and staff; and 16
(b) copies of returns and accounts that the applicant is required by 17
law to prepare; and 18
(c) particulars of reinsurance arrangements to which the applicant is a 19
party. 20
(5) If an application is made for a licence and, before a licence is granted, 21
there is a change in the matters of which particulars are required in the 22
application, or in the matters contained in a document the applicant is 23
required to give, the body corporate must, within 14 days after the change, 24
give the Commission written notice signed by a director giving particulars 25
of the change. 26
(6) A body corporate must not-- 27
(a) make an application for a licence; or 28
(b) give to the Commission a notice under subsection (5); 29
52
Motor Accident Insurance
that is false or misleading in a material particular. 1
Maximum penalty--150 penalty units. 2
(7) An insurer whose licence is withdrawn under this Act may not 3
reapply for a licence within 5 years after the withdrawal. 4
of application 5
Determination
The Commission may, after considering an application for a 6
Clause63.(1)
licence-- 7
(a) grant the licence (conditionally or unconditionally); or 8
(b) refuse the application. 9
(2) In determining the application, the Commission may take into 10
consideration-- 11
(a) the suitability of the applicant; and 12
(b) the nature and extent of the applicant's experience in the business 13
of general insurance; and 14
(c) the applicant's paid-up share capital and reserves; and 15
(d) any reinsurance arrangements to which the applicant is a party; 16
and 17
(e) the likely effect on the statutory scheme of licensing the applicant; 18
and 19
(f) any other factors the Commission considers relevant. 20
(3) A licence may be granted only if the Commission is satisfied that-- 21
(a) the applicant has enough financial resources to carry on business 22
as a licensed insurer; and 23
(b) the applicant has adequately experienced staff available in 24
Queensland to administer personal injury claims under the CTP 25
insurance scheme; and 26
(c) the applicant is in all other respects an appropriate person to hold 27
a licence; and 28
(d) licensing the applicant would not adversely affect the efficiency 29
and effectiveness of the statutory insurance scheme. 30
53
Motor Accident Insurance
(4) A licence must not be granted until the insurer has executed the 1
industry deed. 2
(5) Notice of the grant of a licence under this Part, specifying the date on 3
which the licence takes effect, must be given in the Gazette. 4
of licence 5
Conditions
Clause64.(1) A licence is subject to conditions prescribed by regulation. 6
(2) A licence may be granted subject to other conditions that the 7
Commission considers appropriate and specifies in the licence. 8
(3) A condition may, for example, provide that, if the licensed insurer 9
does not, at the end of a stated period, have a share of the market for CTP 10
insurance at least equal to a minimum fixed by regulation, the Commission 11
must withdraw the licence. 12
(4) The Commission may, by written notice given to a licensed insurer-- 13
(a) impose conditions or further conditions to which the licence is to 14
be subject; or 15
(b) amend or repeal conditions previously imposed. 16
(5) A condition cannot be imposed to give a particular advantage over 17
other licensed insurers. 18
(6) A licensed insurer must not contravene a condition of the licence. 19
Maximum penalty--150 penalty units. 20
(7) A court by which a licensed insurer is convicted of an offence against 21
subsection (6) may, by order, withdraw the licence. 22
ndustry deed 23
I
Clause65.(1) A licensed insurer is bound by the industry deed. 24
(2) The industry deed may-- 25
(a) require licensed insurers to make disclosures and reports to the 26
Commission in accordance with stipulated standards and 27
requirements; and 28
(b) deal with the apportionment of liability, and the sharing of costs, 29
54
Motor Accident Insurance
between licensed insurers (including the Nominal Defendant); 1
and 2
(c) provide for the sharing of information between insurers to the 3
mutual benefit of insurers; and 4
(d) regulate the management of claims under CTP insurance policies; 5
and 6
(e) provide direction and guidance for licensed insurers about 7
initiating, managing, monitoring, and measuring the effectiveness 8
of, the provision of rehabilitation services for injured claimants; 9
and 10
(f) regulate in any other way the conduct of insurance business under 11
the statutory insurance scheme. 12
or suspension of licence 13
Withdrawal
The Commission may, by Gazette notice, withdraw or 14
Clause66.(1)
suspend a licence if-- 15
(a) the insurer asks the Commission to withdraw or suspend the 16
licence; or 17
(b) the insurer contravenes this Act, a condition of the licence or the 18
industry deed; or 19
(c) there is some other reason justifying withdrawal or suspension of 20
the licence. 21
(2) At least 14 days before the withdrawal or suspension of a licence 22
takes effect, the Commission must give the insurer written notice-- 23
(a) stating the Commission's intention to withdraw or suspend the 24
licence; and 25
(b) stating the date on which the withdrawal or suspension will take 26
effect; and 27
(c) stating the reason for the proposed withdrawal or suspension of 28
the licence. 29
(3) The Commission must give a copy of the notice to transport 30
administration. 31
55
Motor Accident Insurance
of withdrawal or suspension on existing liabilities etc. 1
Effect
The withdrawal or suspension of a licence does not affect 2
Clause67.(1)
liabilities that had been incurred, or had accrued, before the day of 3
withdrawal or suspension, nor does it affect the insurer's liabilities under 4
CTP insurance policies that came into force before the day of the 5
withdrawal or suspension. 6
(2) An insurer whose licence has been withdrawn, or is under 7
suspension, is subject to this Act and the industry deed in the same way and 8
to the same extent as a licensed insurer until all the insurer's liabilities for 9
CTP insurance business have been fully satisfied. 10
(3) If an insurer whose licence has been withdrawn, or is under 11
suspension, is selected or re-selected to be the insurer under a CTP 12
insurance policy, some other insurer decided by transport administration is 13
to be the insurer under the insurance policy. 14
(4) Transport administration's decision under subsection (3) must be 15
based on random allocation of the CTP policies to the remaining licensed 16
insurers in proportion to their respective shares of the market for CTP 17
insurance. 18
(5) This section does not apply to the withdrawal of a licence on transfer 19
of the insurer's CTP insurance business under Division 5 (Transfer of CTP 20
business) of Part 3 (Compulsory insurance). 21
against the Commission's decisions 22
Appeals
An insurer may appeal to the Supreme Court against a 23
Clause68.(1)
decision by the Commission to withdraw or suspend the insurer's licence. 24
(2) On the appeal, the Supreme Court may-- 25
(a) confirm, change or reverse the decision under appeal; and 26
(b) make any consequential or ancillary orders (including orders for 27
costs) that may be necessary or desirable in the circumstances of 28
the case. 29
(3) If the court changes or reverses the Commission's decision, the 30
Commission must publish notice of the Supreme Court's decision in the 31
Gazette. 32
56
Motor Accident Insurance
Division 2--Supervision of licensed insurers 1
plans of licensed insurers 2
Business
A licensed insurer must prepare and give to the Commission a 3
Clause69.(1)
business plan for its compulsory third-party insurance business. 4
(2) The licensed insurer's first business plan must be prepared and given 5
to the Commission before the licence is granted. 6
(3) The licensed insurer must revise its business plan whenever it departs 7
significantly from the plan and at the regular intervals that the Commission 8
directs by written notice. 9
(4) The licensed insurer must, as far as practicable, conduct its 10
compulsory third-party insurance business in accordance with its current 11
business plan. 12
(5) If the insurer departs significantly from the business plan, it must 13
notify the Commission of the departure within 2 months after it happens. 14
(6) A business plan-- 15
(a) must describe how the insurer's compulsory third-party business 16
is to be conducted (including marketing, claims handling, the 17
provision of rehabilitation, the keeping of records, systems 18
management and control of costs); and 19
(b) must be prepared in accordance with the written guidelines issued 20
by the Commission and notified to licensed insurers. 21
and returns of licensed insurers 22
Accounts
A licensed insurer must keep the accounting and other records 23
Clause70.(1)
about its business, and its financial position, that may be required by this 24
Act or the industry deed. 25
(2) The regulations may prescribe accounting or other standards with 26
which the records must comply. 27
(3) A licensed insurer must file returns and other documents with the 28
Commission as required by the industry deed or regulation. 29
Maximum penalty--150 penalty units. 30
57
Motor Accident Insurance
(4) The regulations may require that returns or accompanying documents 1
be certified by an auditor or actuary. 2
of accounts 3
Audit
The Commission may appoint an appropriately qualified 4
Clause71.(1)
person-- 5
(a) to inspect or audit, and report to the Commission on, the 6
accounting and other records about the business, or the financial 7
position, of a licensed insurer; or 8
(b) to carry out an actuarial investigation into, and report to the 9
Commission on, the assets and liabilities, or any class of assets or 10
liabilities, of a licensed insurer. 11
(2) The appointed person may inspect the accounting and other records 12
of the licensed insurer. 13
(3) The licensed insurer must provide all reasonable help to assist the 14
inspection, audit or actuarial investigation. 15
(4) A person must not wilfully delay or obstruct a person exercising 16
powers under this section. 17
Maximum penalty--150 penalty units or imprisonment for 1 year. 18
(5) A statement made orally or in writing by a person exercising powers 19
under this section is protected by qualified privilege. 20
to be provided by insurers 21
Information
A licensed insurer must immediately inform the Commission 22
Clause72.(1)
if-- 23
(a) the insurer or a related body corporate fails to make a payment of 24
principal or interest required under any debenture or security 25
issued by the insurer or the related body corporate; or 26
(b) a liquidator, receiver or receiver and manager of property of the 27
insurer or a related body corporate is appointed; or 28
(c) the insurer or a related body corporate resolves to be wound up; 29
or 30
58
Motor Accident Insurance
(d) another event happens of a nature prescribed by regulation. 1
(2) The Commission may require a licensed insurer-- 2
(a) to disclose to the Commission, within the time allowed by the 3
Commission, specified information about the business or the 4
financial position of the insurer or a related body corporate; or 5
(b) to give to the Commission, within the time allowed by the 6
Commission, copies of specified documents. 7
(3) A requirement under subsection (2) must be made in writing and 8
must state the time within which the requirement must be complied with. 9
(4) If a requirement under subsection (2) is not complied with, the 10
insurer commits an offence. 11
Maximum penalty--300 penalty units. 12
(5) In this section-- 13
"licensed insurer" includes a body corporate formerly licensed under this 14
Act. 15
of Supreme Court to deal with licensed insurers 16
Power
If the Supreme Court is satisfied, on application by the 17
Clause73.(1)
Commission, that a licensed insurer or former licensed insurer-- 18
(a) may not be able to meet the insurer's liabilities under CTP 19
insurance policies; or 20
(b) has acted in a way prejudicial to the interests of persons insured 21
under CTP insurance policies; 22
the Supreme Court may make orders that it considers necessary or desirable 23
to protect the statutory insurance scheme and to ensure, as far as practicable, 24
that the insurer properly discharges its obligations under the statutory 25
insurance scheme. 26
(2) The Supreme Court may, for example, make orders (including 27
interim orders that are to apply pending the final determination of the 28
application)-- 29
(a) regulating the administration and payment of claims under CTP 30
insurance policies; or 31
59
Motor Accident Insurance
(b) prohibiting or regulating any transfer or disposal of, or dealing in, 1
assets; or 2
(c) requiring the licensed insurer or former licensed insurer to 3
discharge liabilities under CTP insurance policies out of its assets 4
or the assets of a related body corporate; or 5
(d) appointing a receiver or receiver and manager, with the powers 6
that the Court directs, of property or part of the property of the 7
licensed insurer or former licensed insurer or a related body 8
corporate. 9
(3) The Supreme Court may not require the Commission to give an 10
undertaking about damages as a condition of granting an interim order. 11
(4) On the application of any interested person, the Supreme Court may 12
amend or revoke an order under this section. 13
(5) The powers conferred on the Supreme Court under this section are 14
not to be exercised in relation to a body corporate that is being wound up. 15
Division 3--Special investigations 16
of investigator 17
Appointment
If the Commission considers it desirable in the public interest, 18
Clause74.(1)
the Commission may appoint an investigator to investigate the affairs of an 19
insurer that is, or has been, licensed under this Act. 20
(2) A person is eligible to be appointed as an investigator only if the 21
person is a properly qualified legal practitioner, a properly qualified 22
accountant, or has other appropriate qualifications or experience to carry out 23
an investigation under this Division. 24
(3) The instrument of appointment-- 25
(a) must state the terms of the appointment; and 26
(b) must state the matters into which the investigation is to be made; 27
and 28
(c) may state a period within which the investigation must be 29
completed. 30
60
Motor Accident Insurance
(4) The Commission may, by written notice given to the investigator-- 1
(a) amend the instrument of appointment in any way; or 2
(b) end the appointment. 3
of related body corporate 4
Investigation
If an investigator considers it necessary, in investigating the 5
Clause75.
affairs of an insurer, to investigate the affairs of a body corporate that is or 6
has at any relevant time been a related body corporate, the investigator may 7
investigate the affairs of the body corporate with the Commission's written 8
agreement. 9
of investigators 10
Powers
Clause76.(1) An investigator may, by written notice, require an officer of an 11
insurer or body corporate whose affairs are under investigation-- 12
(a) to produce to the investigator documents of the insurer or body 13
corporate and other documents about its affairs that are in the 14
custody or under the control of the officer; and 15
(b) to give the investigator all reasonable help in connection with the 16
investigation; and 17
(c) to appear before the investigator for examination on oath or 18
affirmation. 19
(2) An investigator may administer an oath or affirmation. 20
produced to investigator 21
Documents
If a document is produced to an investigator under this 22
Clause77.(1)
Division, the investigator may keep the document for the period that the 23
investigator reasonably considers necessary for the investigation. 24
(2) The investigator must permit a person who would be entitled to 25
inspect the document, if it was not being kept by the investigator, to inspect 26
the document at all reasonable times. 27
61
Motor Accident Insurance
of officers 1
Examination
If the affairs of an insurer or other body corporate are being 2
Clause78.(1)
investigated under this Division, an officer of the insurer or body corporate 3
must not-- 4
(a) fail to comply with a lawful requirement (a "relevant 5
requirement") of the investigator to the extent the officer is able 6
to comply with it; or 7
(b) in purported compliance with a relevant requirement, give 8
information knowing it to be false or misleading in a material 9
particular; or 10
(c) when appearing before an investigator for examination under a 11
relevant requirement-- 12
(i) state anything knowing it to be false or misleading in a 13
material particular; or 14
(ii) fail to be sworn or to make an affirmation. 15
Maximum penalty--300 penalty units or imprisonment for 2 years. 16
(2) A person who complies with the requirement of an investigator under 17
this section does not incur any liability to another merely because of the 18
compliance. 19
(3) A person required to attend for examination under this Division is 20
entitled to the allowances and expenses prescribed by regulation. 21
22
Self-incrimination
An officer is not excused from-- 23
Clause79.(1)
(a) answering a question put to the officer by an investigator; or 24
(b) producing a document to an investigator; 25
on the ground that the answer or production of the document might tend to 26
incriminate the officer. 27
(2) Before an investigator requires an officer to answer a question or to 28
produce a document, the investigator must inform the officer-- 29
(a) of the officer's right to assert that answering the question or 30
production of the document might tend to incriminate the officer; 31
62
Motor Accident Insurance
and 1
(b) of the effect under subsection (3) of making the assertion. 2
(3) Neither the answer, nor the fact that the officer has produced the 3
document, is admissible in evidence against the officer in a criminal 4
proceeding (other than a proceeding about the falsity of the answer or 5
document) if-- 6
(a) before answering the question or producing the document, the 7
officer asserts that answering the question or production of the 8
document might tend to incriminate the officer; and 9
(b) answering the question or production of the document might in 10
fact tend to incriminate the officer. 11
of officer to comply with requirement of investigator 12
Failure
If an officer fails to comply with a requirement of an 13
Clause80.(1)
investigator, the investigator may certify the failure to the Supreme Court. 14
(2) If an investigator gives a certificate under subsection (1), the Court 15
may inquire into the case and may-- 16
(a) order the officer to comply with the requirements of the 17
investigator within a period fixed by the Court; and 18
(b) if the Court is satisfied that the officer failed without lawful 19
excuse to comply with the requirement of the 20
investigator--punish the officer in the same way as if the officer 21
had been guilty of contempt of the Court. 22
of examination 23
Recording
Clause81.(1) An investigator must cause a record of the questions asked and 24
the answers given at an examination under this Division to be made. 25
(2) Subject to section 79 (Self-incrimination), a record of the examination 26
of a person under this Division may be used in evidence in a legal 27
proceeding against the person. 28
(3) A copy of the record of the examination of a person must be given 29
without fee to the person on the written request of the person. 30
63
Motor Accident Insurance
(4) A record made under this section about an investigation must be 1
included with the investigator's final report on the investigation. 2
(5) Nothing in this section affects or limits the admissibility of other 3
written or oral evidence. 4
of record of examination may be given to legal practitioner 5
Copy
The Commission may give a copy of the record of any 6
Clause82.(1)
examination made under section 81 (Recording of examination) to a legal 7
practitioner who satisfies the Commission that the practitioner is acting for a 8
person who is conducting, or is in good faith contemplating, legal 9
proceedings about affairs being investigated by an investigator under this 10
Division. 11
(2) The legal practitioner to whom a copy of a record is given under 12
subsection (1)-- 13
(a) must use the record only for the legal proceedings; and 14
(b) must not publish or communicate the record or any part of it for 15
any other purpose. 16
Maximum penalty--300 penalty units. 17
of powers by investigator 18
Delegation
An investigator may delegate any powers under this Division 19
Clause83.(1)
except the power to administer oaths or affirmations and the power to 20
examine on oath or affirmation. 21
(2) A delegate must produce the instrument of delegation for inspection 22
on request by an officer of an insurer or body corporate whose affairs are 23
being investigated under this Division. 24
of investigator 25
Report
An investigator may, and, if directed by the Commission, 26
Clause84.(1)
must make interim reports to the Commission. 27
(2) On the completion or termination of the investigation, the investigator 28
must report to the Commission the investigator's opinion on the matters 29
64
Motor Accident Insurance
subject to the investigation, together with the facts on which the opinion is 1
based. 2
(3) When making a report under this section, an investigator must give to 3
the Commission any documents of which the investigator has taken 4
possession under this Division. 5
(4) The Commission-- 6
(a) may keep the documents for the period that the Commission 7
reasonably considers necessary to enable a decision to be made 8
about whether or not a legal proceeding ought to be started; and 9
(b) may keep the documents for any further period that the 10
Commission reasonably considers necessary to enable a legal 11
proceeding to be started and continued; and 12
(c) may permit other persons to inspect the documents while they are 13
in the Commission's possession; and 14
(d) may permit the use of the documents for a legal proceeding 15
started because of the investigation; and 16
(e) must permit a person who would be entitled to inspect any of the 17
documents if they were not in the Commission's possession to 18
inspect the document at all reasonable times. 19
(5) A copy of a final report must, and a copy of the whole or any part of 20
an interim report may, be given by the Commission to the insurer or other 21
body corporate to which the report relates. 22
(6) However, the Commission is not bound to give an insurer or other 23
person a copy of a report, or any part of a report, if the Commission is of 24
the opinion that there is good reason for not divulging its contents. 25
(7) If the Commission is of the opinion that it is in the public interest, the 26
Commission may cause the whole or any part of a report to be printed and 27
published. 28
(8) If an investigator has caused a record of an examination under this 29
Division to be given to the Commission with the report to which the record 30
relates, a copy of the record may be given to the persons, and on the 31
conditions, that the Commission considers appropriate. 32
65
Motor Accident Insurance
of investigator's report in evidence 1
Admission
A document certified by the Commission to be a copy of an 2
Clause85.(1)
investigator's report is admissible in any legal proceeding as evidence of 3
any facts found by the investigator to exist. 4
(2) Nothing in this section operates to diminish the protection given to 5
witnesses by law. 6
of investigation 7
Costs
Clause86.(1) The Commission may recover the costs of and incidental to an 8
investigation under this Division from the insurer or other body corporate to 9
which the investigation is related. 10
(2) However, costs may not be recovered from an insurer or other body 11
corporate under this section if the investigation established no irregularity on 12
the part of the insurer or other body corporate. 13
relating to investigations 14
Offences
A person who-- 15
Clause87.(1)
(a) conceals, destroys, mutilates or alters a document of or about an 16
insurer or other body corporate whose affairs are being 17
investigated under this Division; or 18
(b) sends, causes to be sent or conspires with someone else to send, 19
out of the State a document mentioned in paragraph (a) or any 20
property belonging to or under the control of the insurer or body 21
corporate; 22
commits an offence. 23
Maximum penalty--300 penalty units or imprisonment for 2 years. 24
(2) It is a defence to a charge of an offence against subsection (1) to 25
prove that the defendant did not act with intent to defeat the purposes of this 26
Division or to delay or obstruct the carrying out of an investigation under 27
this Division. 28
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Motor Accident Insurance
ART 6--MISCELLANEOUS 1
P
to be provided by licensed insurers 2
Information
A licensed insurer must provide the Commission with-- 3
Clause88.(1)
(a) periodic returns, as required by regulation, containing the 4
information required by regulation; and 5
(b) other information-- 6
(i) about claims against the insurer (including claims arising 7
before the commencement of this Act); or 8
(ii) relevant in another way to the administration of this Act; 9
that is required by regulation, or that the Commission may 10
require by written notice to the insurer. 11
(2) An insurer may, for example, be required to provide-- 12
(a) details of motor vehicle accident claims against the insurer, and 13
the dates when notice of the claims were received by the insurer; 14
and 15
(b) information about the claimants; and 16
(c) information about whether liability was admitted by the insurer, 17
when liability was admitted or denied and, if liability was 18
admitted, the extent to which liability was admitted; and 19
(d) information about the rehabilitation services made available to the 20
claimant and the extent to which the rehabilitation services were 21
used by the claimant; and 22
(e) information about the costs of the insurer on claims, and how the 23
costs are made up. 24
(3) The information required under this section must be provided in a 25
form decided by the Commission to be most appropriate for analysis and 26
recording. 27
(4) An insurer must not fail to comply with a requirement imposed 28
under this section. 29
Maximum penalty--150 penalty units and a further 50 penalty units for 30
each week until the requirement is complied with. 31
67
Motor Accident Insurance
(5) A court that convicts a licensed insurer of an offence against this 1
section may, by order, withdraw the licence. 2
of claims 3
Register
The Commission must keep a register of claims. 4
Clause89.(1)
(2) The register must contain information provided under this Act by 5
insurers that the Commission considers appropriate for inclusion in the 6
register. 7
(3) The information contained in the register must be accessible to 8
licensed insurers and others to the extent that the Commission decides. 9
(4) However, information that would, if it became generally known, 10
affect an insurer's competitive position must not be disclosed in a form that 11
would enable the insurer's identification. 12
administration to provide certain information 13
Transport
Transport administration must, on receipt of an application 14
Clause90.(1)
accompanied by the appropriate fee decided by transport administration, 15
inform the applicant-- 16
(a) whether a motor vehicle mentioned in the application was insured 17
under this Act as at a specified date; and 18
(b) if so--the licensed insurer under the CTP insurance policy. 19
(2) A certificate given by a delegate of transport administration to the 20
effect that a particular licensed insurer, or the Nominal Defendant, was, on a 21
specified date, the insurer of a particular motor vehicle under the statutory 22
insurance scheme must be accepted as evidence of the fact certified. 23
insurers 24
Insolvent
Clause91.(1) If the Commission publishes a Gazette notice to the effect that 25
a named insurer previously licensed under this Act became insolvent on a 26
particular date, the insurer is presumed, for the purposes of this Act, to have 27
become insolvent on that date. 28
(2) The liquidator of an insolvent insurer must at the Commission's 29
68
Motor Accident Insurance
request give any information the Commission requires about the stage 1
reached by the insurer in processing claims before becoming insolvent and 2
any other information reasonably required by the Commission. 3
Maximum penalty--25 penalty units. 4
of information 5
Disclosure
A person engaged in work related to the administration of the 6
Clause92.(1)
statutory insurance scheme, or claims made under the scheme, must not 7
divulge information of a private or confidential nature acquired during the 8
work other than as authorised or required by the terms of the person's 9
employment or by law. 10
Maximum penalty--50 penalty units. 11
(2) This section does not prevent-- 12
(a) the exchange of information between insurers; or 13
(b) any other form of disclosure authorised or required by the 14
industry deed or regulation. 15
statements etc. 16
False
A person must not state anything in, or in connection with, a 17
Clause93.(1)
motor vehicle accident claim that the person knows is false or misleading in 18
a material particular. 19
Maximum penalty--150 penalty units or imprisonment for 1 year. 20
(2) A complaint against a person for an offence against subsection (1) is 21
sufficient if it states that the statement was false or misleading to the 22
person's knowledge. 23
(3) A person must not in connection with a motor vehicle accident claim 24
give someone else a document containing information that the person 25
knows is false, misleading or incomplete in a material particular without-- 26
(a) telling the other person that the document is false, misleading or 27
incomplete and the respect in which the document is false, 28
misleading or incomplete; and 29
(b) giving the correct information to the other person if the person 30
69
Motor Accident Insurance
has, or can reasonably obtain, the correct information. 1
Maximum penalty--150 penalty units or imprisonment for 1 year. 2
(4) Subsection (3) does not require an insurer to tell someone that a 3
document is false, misleading or incomplete, or to disclose information, if 4
the probable effect would be to alert a person suspected of fraud to the 5
suspicion. 6
(5) If a court finds a person guilty of an offence against subsection (1) 7
or (3), the court may, on its own initiative or on the application of a person 8
who has suffered loss, order the person who committed the offence to 9
compensate loss resulting from the commission of the offence. 10
with certain documents 11
Interference
A person must not, without proper reason, interfere with 12
Clause94.
documents relevant to the selection of insurers under the statutory insurance 13
scheme. 14
Maximum penalty--150 penalty units. 15
policies 16
Unauthorised
A person other than a licensed insurer must not purport to issue a 17
Clause95.
CTP insurance policy under this Act. 18
Maximum penalty--300 penalty units for each policy purportedly issued. 19
on commission 20
Restriction
A licensed insurer, or a broker or other person acting for a 21
Clause96.(1)
licensed insurer, must not pay a commission, or give any consideration in 22
the nature of a commission, to a person for directing CTP insurance 23
business to, or obtaining CTP insurance business for, the licensed insurer if 24
the amount or value of the commission or consideration is more than-- 25
(a) for a CTP insurance policy for a new motor vehicle or a vehicle to 26
be re-registered after a period of being unregistered--a total of 27
2% of the gross premium for the policy; or 28
(b) for any other CTP insurance policy--a total of 1% of the gross 29
70
Motor Accident Insurance
premium for the policy. 1
Maximum penalty--300 penalty units. 2
(2) A court that convicts a licensed insurer of an offence against this 3
section may, by order, withdraw the licence. 4
insurance premiums not to be discounted etc. 5
CTP
A licensed insurer, or a broker or other person acting for a 6
Clause97.(1)
licensed insurer, must not discount, reduce, waive, subsidise, or defer 7
payment of, or offer to discount, reduce, waive, subsidise, or defer payment 8
of, the premium on a CTP insurance policy. 9
Maximum penalty--300 penalty units. 10
(2) A licensed insurer, or a broker or other person acting for a licensed 11
insurer, must not pay or subsidise, or offer to pay or subsidise, any fee 12
payable on registration, or renewal of registration, of a motor vehicle by a 13
person who has selected, or proposes to select, the licensed insurer to be the 14
insurer under a CTP insurance policy for the vehicle. 15
Maximum penalty--300 penalty units. 16
(3) A court that convicts a licensed insurer of an offence against this 17
section may, by order, withdraw the licence. 18
prosecutions require authorisation 19
Certain
A prosecution for an offence against this Act may only be 20
Clause98.
brought against an individual by, or with the authority of, the Commission 21
or the Attorney-General. 22
for offences 23
Penalties
Any monetary penalty recovered for an offence against this Act 24
Clause99.
must be paid into the Motor Accident Insurance Fund. 25
26
Regulations
Clause100. The Governor in Council may make regulations under this Act. 27
71
Motor Accident Insurance
of Act 1
Review
The Minister must review this Act to ensure that it is 2
Clause101.(1)
adequately meeting community expectations and its provisions remain 3
appropriate. 4
(2) The review must be undertaken as soon as practicable after the end of 5
the period of 5 years starting on the commencement of this Act. 6
(3) As soon as practicable, but within 1 year, after the end of the 5 year 7
period, the Minister must cause a report of the outcome of the review to be 8
laid before the Legislative Assembly. 9
PART 7--REPEALS, AMENDMENTS AND 10
TRANSITIONAL PROVISIONS 11
of Motor Vehicles Insurance Act 1936 12
Repeal
Clause102. The following Acts are repealed-- 13
Motor Vehicles Insurance Act 1936; 14
Motor Vehicles Insurance Act Amendment Act 1939; 15
Insurance Acts and Another Act Amendment Act 1940; 16
Motor Vehicles Insurance Acts Amendment Act 1943; 17
Motor Vehicles Insurance Acts Amendment Act 1944; 18
Motor Vehicles Insurance Acts Amendment Act 1959; 19
Motor Vehicles Insurance Acts Amendment Act 1961; 20
Motor Vehicles Insurance Acts Amendment Act 1962; 21
Motor Vehicles Insurance Acts Amendment Act 1963; 22
Motor Vehicles Insurance Acts Amendment Act 1967; 23
Motor Vehicles Insurance Act Amendment Act 1974; 24
Motor Vehicles Insurance Act Amendment Act 1975; 25
72
Motor Accident Insurance
Motor Vehicles Insurance Act and Another Act Amendment Act 1979; 1
Motor Vehicles Insurance Act Amendment Act 1988. 2
of Insurance Act 1960 3
Repeal
Clause103. The following Acts are repealed-- 4
Insurance Act 1960; 5
Insurance Act Amendment Act 1968; 6
Insurance Acts Amendment Act 1975; 7
Insurance Act Amendment Act 1976. 8
insurance contracts 9
Existing
A contract of insurance in force under the former Act 10
Clause104.(1)
immediately before the commencement of this Act continues in force 11
until-- 12
(a) the contract is replaced by a CTP policy under this Act; or 13
(b) 30 days after the end of the registration period to which it related; 14
whichever happens first. 15
(2) If personal injury arises out of a motor vehicle accident happening 16
before the commencement of this Act, a claim for the personal injury must 17
be dealt with as if this Act had not been enacted. 18
(3) If personal injury arises out of a motor vehicle accident happening on 19
or after the commencement of this Act, a claim for the personal injury must 20
be dealt with under this Act (even though the accident may have happened 21
while a policy of insurance issued under the former Act remains in force). 22
(4) This section expires on 31 December 1995. 23
24
Licences
An insurer that was, immediately before the commencement 25
Clause105.(1)
of this Act, approved as a licensed insurer under the former Act is taken to 26
be a licensed insurer under this Act until a date fixed by regulation or 27
31 December 1994 (whichever is the earlier) or, if an application for a 28
73
Motor Accident Insurance
licence is made before the end of the period, until the application is decided. 1
(2) This section expires on 31 December 1994. 2
Defendant 3
Nominal
Clause106.(1) The Nominal Defendant under this Act succeeds to rights and 4
liabilities of the Nominal Defendant under the former Act for personal 5
injury arising out of motor vehicle accidents that happened before the 6
commencement of this Act. 7
(2) If the insurer liable under a contract of insurance issued under the 8
former Act becomes insolvent-- 9
(a) the Nominal Defendant succeeds to the insolvent insurer's rights 10
and liabilities under the contract of insurance; and 11
(b) the provisions of this Act that apply to the insolvency of an 12
insurer under a CTP insurance policy apply with any changes 13
prescribed by regulation. 14
(3) The Motor Vehicle Insurance Nominal Defendant Fund established 15
under the former Act is closed and the balance standing to its credit at the 16
commencement of this Act must be dealt with as follows-- 17
(a) an amount that is, in the State Actuary's opinion, enough to meet 18
liabilities of the Nominal Defendant under this section must be 19
transferred to the Nominal Defendant Fund under this Act; 20
(b) any balance must be transferred to the Motor Accident Insurance 21
Fund under this Act. 22
(4) If the amount paid to the credit of the Nominal Defendant Fund 23
proves insufficient to meet the liabilities of the Nominal Defendant under 24
this section, the Commissioner must make payments from the Motor 25
Accident Insurance Fund to meet the deficiency, but the total payments 26
from the Motor Accident Insurance Fund under this section cannot be more 27
than the amount transferred to the Fund under subsection (3). 28
(5) Subsection (3) expires on 31 December 1994. 29
74
Motor Accident Insurance
of insurers 1
Selection
If a contract of insurance was in force under the former Act 2
Clause107.(1)
immediately before the commencement of this Act, the insurer under the 3
contract is taken, for the provisions of this Act about the selection of 4
insurers, to have been previously selected as the insurer for the motor 5
vehicle. 6
(2) This section expires on 31 December 1995. 7
administration fee and premiums 8
Levies,
If the date fixed for the commencement of this Act is not the 9
Clause108.(1)
beginning of a financial year-- 10
(a) the levies, administration fee and insurance premiums must be 11
fixed under this Act for the remainder of the financial year and, 12
for that purpose, references in this Act to a financial year are to be 13
read as if they applied to that period; and 14
(b) despite section 12(2)(a) (Premiums, levies and administration 15
fee), the Commission is not required, before recommending the 16
levies, administration fee and insurance premiums for the 17
remainder of the financial year, to invite and consider written 18
submissions on the subject from licensed insurers and 19
organisations representing motorists in Queensland. 20
(2) This section expires on 1 July 1995. 21
22
75
Motor Accident Insurance
CHEDULE 1
¡S
section 23(1) 2
OLICY OF INSURANCE 3
P
of insurance cover 4
Extent
1.(1) This policy insures against liability for personal injury caused by, 5
through or in connection with the insured motor vehicle anywhere in 6
Australia. 7
(2) This policy extends to liability for personal injury caused by, through 8
or in connection with a trailer attached to the insured motor vehicle or that 9
results from the trailer running out of control after becoming accidentally 10
detached from the insured motor vehicle. 11
(3) The liability mentioned in subsection (1) or (2)-- 12
(a) is a liability for personal injury to which the Motor Accident 13
Insurance Act 1994 applies2; and 14
(b) includes the liability of a tortfeasor to make a contribution to 15
another tortfeasor who is also liable for the personal injury. 16
(4) This policy does not insure a person (the "injured person") against 17
injury, damage or loss-- 18
(a) that arises independently of any wrongful act or omission; or 19
(b) to the extent that the injury loss or damage is attributable to the 20
injured person's own wrongful act or omission. 21
person 22
Insured
2. The person insured by this policy is the owner, driver, passenger or 23
other person whose wrongful act or omission causes the injury to someone 24
2 See section 5 of the Act.
76
Motor Accident Insurance
SCHEDULE (continued)
else and any person who is vicariously liable for the wrongful act or 1
omission. 2
3
Exclusions
3.(1) This policy does not insure an employer against a liability to pay 4
worker's compensation. 5
(2) This policy does not insure against a liability to pay exemplary or 6
punitive damages. 7
8
© State of Queensland 1994
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