Victorian Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


TRANSPORT ACCIDENT (AMENDMENT) BILL 2000

                 PARLIAMENT OF VICTORIA

        Transport Accident (Amendment) Act 2000
                                   Act No.


                        TABLE OF PROVISIONS
Clause                                                                    Page

PART 1--PRELIMINARY                                                             1
  1.     Purpose                                                               1
  2.     Commencement                                                          2

PART 2--AMENDMENT OF TRANSPORT ACCIDENT ACT 1986                               3
  3.     Definitions                                                           3
  4.     Transport accident to include certain incidents with pedal cyclists   5
  5.     Pre-accident weekly earnings                                          6
  6.     TAC no longer a reorganising body                                     6
         10A. TAC no longer a reorganising body                                6
  7.     Proceedings and resolutions of the Board                              7
  8.     Authorisation of disability services                                  7
  9.     Extension of time for review                                          7
  10.    Transport Accident Fund                                               8
  11.    Capital and dividends                                                 8
         29A. Repayment of capital                                             8
         29B. Dividends                                                        8
  12.    Sections 39 and 40 substituted                                        8
         39.      Circumstances in which a person is not entitled to
                  compensation                                                  9
         40.      Circumstances in which certain compensation is not
                  payable or is reduced                                        10
         40A. General provisions                                               14
  13.    Degree of impairment                                                  16
  14.    Impairment benefit                                                    17
  15.    Calculation of loss of earning capacity                               19
  16.    Review of entitlement                                                 20
  17.    Surviving spouse                                                      20
  18.    Surviving children                                                    20
  19.    Medical and like benefits                                             21
  20.    Home and motor vehicle modifications                                  25
  21.    Notice of accident                                                    26

  22.    Sections 65 and 66 substituted                                        26



                                       i
541117B.A1-27/10/2000                                BILL LA AS SENT 27/10/2000

 


 

Clause Page 65. Provisions applying to notice under section 64 26 66. Payment of penalty 27 23. Form of claim 28 24. Time for making claim under Part 3 28 25. Time period for considering claims 29 26. Medical examinations 29 27. Reviews 29 28. Evidence as to alcohol or drugs 31 29. Release from liability for payments under section 60 32 30. Serious injury 32 31. Provisions relating to determination of a serious injury 33 32. Appeals 33 93A. Effect of decision on application 33 93B. Hearing of Appeal 34 93C. Giving of reasons 34 33. Procedures under section 93 34 93D. Directions 34 34. Indemnity 35 35. Unindemnified vehicles 35 36. Indemnity by third party 36 37. Rates of charges 36 38. Amendments consequential to section 37 37 39. Provision of information 37 40. Supreme Court-limitation of jurisdiction 38 132C. Supreme Court-limitation of jurisdiction 38 PART 3--AMENDMENT OF ACCIDENT COMPENSATION ACT 1985 39 41. Amendment of section 135A 39 42. Liability of Transport Accident Commission 39 43. Amendment of proposed section 134AG and commencement 39 44. Supreme Court-limitation of jurisdiction 40 252E. Supreme Court-limitation of jurisdiction 40 PART 4--AMENDMENT OF DANGEROUS GOODS ACT 1985 41 45. Amendment of Dangerous Goods Act 1985 41 ENDNOTES 43 ii 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 4 October 2000 As amended in Assembly 26 October 2000 A BILL to amend the Transport Accident Act 1986 to increase certain compensation payments, to provide for improved access to benefits and to revise claims procedures, to amend the Accident Compensation Act 1985 and the Dangerous Goods Act 1985 and for other purposes. Transport Accident (Amendment) Act 2000 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The purpose of this Act is to-- (a) amend the Transport Accident Act 1986 5 to-- 1 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 2 Act No. (i) compensate claimants receiving weekly payments for the effect of the GST; (ii) include as a transport accident a collision between a pedal cyclist 5 travelling to or from work and a motor vehicle; (iii) provide improved access to certain benefits; (iv) revise procedures relating to claims and 10 reviews; (v) improve the operation of the Act; and (b) make miscellaneous amendments to the Accident Compensation Act 1985 and the Dangerous Goods Act 1985. 15 2. Commencement (1) This section and sections 1, 6, 9, 10, 11, 13, 14(3), 15(4), 17, 18, 21, 22, 24, 25, 26, 27(4), 29, 31, 32, 34, 35, 36, 39, 40, 41, 43 and 44 come into operation on the day after the day on which this 20 Act receives the Royal Assent. (2) Section 15(3) is deemed to have come into operation on 1 July 2000. (3) Subject to sub-section (4), the remaining provisions of this Act come into operation on a 25 day or days to be proclaimed. (4) If a provision referred to in sub-section (3) does not come into operation before 1 July 2002, it comes into operation on that day. _______________ 30 2 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 3 Act No. PART 2--AMENDMENT OF TRANSPORT ACCIDENT ACT 1986 3. Definitions (1) In section 3(1) of the Transport Accident Act 5 1986 for the definition of "dependent spouse" substitute-- ' "dependent spouse" in relation to a person means the spouse of that person, if the spouse would but for the injury or death of 10 that person-- (a) be wholly, mainly or in part dependent on that person for economic support; or (b) be wholly dependent on the person for the care of the children of the spouse or 15 of that person;'. (2) After section 3(1A) of the Transport Accident Act 1986 insert-- '(1B) The definition of "dependent spouse" as substituted by section 3(1) of the Transport 20 Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.'. (3) In section 3(1) of the Transport Accident Act 25 1986-- (a) after the definition of "dependent spouse" insert-- ' "disability service" means the provision to or for a person who is disabled as a 30 result of an injury in a transport accident of any service (other than a rehabilitation service) relating to attendant care, assistance, 3 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 3 Act No. accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with 5 section 23;'; (b) in the definition of "injury" after "nervous shock" insert "suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the 10 immediate aftermath of the transport accident"; (c) in the definition of "medical service", for paragraph (e) substitute-- "(e) the provision by a medical practitioner, 15 registered dentist, registered optometrist, registered physiotherapist, registered chiropractor, registered osteopath or registered podiatrist of any certificate required by the person, the 20 person's dependants or the Commission for any purpose relating to the operation of this Act or any report authorised by the Commission;"; (d) for the definition of "rehabilitation service" 25 substitute-- ' "rehabilitation service" means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, 30 apparatus or other service, the provision of which is an authorised service in accordance with section 23;'; (e) after the definition of "transport accident" insert-- 4 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 4 Act No. ' "transportation costs" means costs incurred travelling to or from-- (a) a rehabilitation service; or (b) an approved program of disability 5 services the provision of which is authorised in accordance with section 23;'; (f) in the definition of "registered motor vehicle", in paragraph (b) after "registered" 10 insert "and is not registered under the law of another State or Territory". (4) After section 3(2) of the Transport Accident Act 1986 insert-- '(2A) The definition of "injury" as amended by 15 section 3(3)(b) of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.'. 20 (5) In section 57 of the Transport Accident Act 1986-- (a) for "an earner" (wherever occurring) substitute "a person"; (b) for "the earner" (wherever occurring) 25 substitute "the person". 4. Transport accident to include certain incidents with pedal cyclists After section 3(1A)(b) of the Transport Accident Act 1986 insert-- 30 "(c) involving a collision between a pedal cycle and a motor vehicle while the cyclist is 5 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 5 Act No. travelling to or from his or her place of employment.". 5. Pre-accident weekly earnings After section 4(1B) of the Transport Accident 5 Act 1986 insert-- "(1BA) For the purposes of sub-section (1), in calculating the earner's ordinary time rate of pay for the normal number of hours per week under sub-section (1B), payments for regular 10 overtime and regular shift allowances are to be included but only if-- (a) during the relevant period under sub- section (1), the earner has worked overtime or shift work in accordance 15 with a regular and established pattern; and (b) that pattern was substantially uniform in the number of hours of overtime worked; and 20 (c) the earner would have continued to work overtime or shift work in accordance with that pattern if not for the injury.". 6. TAC no longer a reorganising body 25 After section 10 of the Transport Accident Act 1986-- "10A. TAC no longer a reorganising body (1) The Commission is by virtue of this section declared not to be a reorganising body. 30 (2) The Commission is a statutory corporation under this Act and is not subject to the State Owned Enterprises Act 1992. 6 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 7 9 Act No. (3) The Order of the Governor in Council made under section 7(1) of the State Owned Enterprises Act 1992 and published in the Government Gazette on 6 May 1993 is 5 revoked. (4) This section does not affect the validity, status, operation or effect of any act, matter or thing done by or under the Order revoked under sub-section (3).". 10 7. Proceedings and resolutions of the Board (1) In section 20(6) of the Transport Accident Act 1986, for "present and voting" substitute "able to vote". (2) After section 20(6) of the Transport Accident 15 Act 1986 insert-- "(6A) Despite sub-section (4), a question is to be taken to have been determined under sub- section (6) if the majority is constituted by not less than 3 Directors.". 20 (3) After section 20A(3) of the Transport Accident Act 1986 insert-- "(4) Sub-sections (6) and (6A) of section 20 apply in respect of the making of a resolution under this section.". 25 8. Authorisation of disability services In section 23(1)(a) of the Transport Accident Act 1986 after "to be" insert "disability services or". 9. Extension of time for review 30 In section 23(4) of the Transport Accident Act 1986, for "28 days" substitute "12 months". 7 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. 10. Transport Accident Fund After section 27(3)(e) of the Transport Accident Act 1986 insert-- "(ea) any payment of an amount to the State under 5 section 29A or 29B;". 11. Capital and dividends For section 29A of the Transport Accident Act 1986 substitute-- "29A. Repayment of capital 10 (1) The capital of the Commission is repayable to the State, at the times and in the amounts, determined by the Treasurer after consultation with the Commission and the Minister. 15 (2) In making a determination under this section, the Treasurer must have regard to any advice that the Commission has given to the Treasurer in relation to the Commission's affairs. 20 29B. Dividends (1) The Commission must pay to the State a dividend at the time and in the manner determined by the Treasurer after consultation with the Commission and the 25 Minister. (2) The Treasurer must in determining the dividend policy that applies to the Commission have regard to the solvency margin determined to maintain the long term 30 financial viability of the transport accident scheme.". 12. Sections 39 and 40 substituted 8 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. For sections 39 and 40 of the Transport Accident Act 1986 substitute-- '39. Circumstances in which a person is not entitled to compensation 5 (1) The Commission is not liable to pay compensation under this Act in respect of a person who is injured or dies as a result of a transport accident if-- (a) in the case of a transport accident 10 involving a motor vehicle (other than a recreation vehicle)-- (i) that occurred in Victoria--a report is not made to a member of the police force whether under section 15 61 of the Road Safety Act 1986 or otherwise; or (ii) that occurred in another State or in a Territory--a report is not made to a member of the police force of 20 that State or Territory; and (b) in the case of a transport accident involving a railway train or a tram, a report of the transport accident is not made to the operator of the railway 25 train or the tram. (2) Sub-section (1) does not apply in respect of a person if-- (a) a person is injured or dies as a result of a transport accident involving a motor 30 vehicle; and (b) a report of the transport accident was not made in accordance with sub- section (1)(a); and 9 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. (c) the Commission determines that in all the circumstances the failure should be excused. (3) The Commission is not liable to pay 5 compensation under this Act (other than under section 60) to a person who is injured in a transport accident if the person-- (a) was driving a motor vehicle at the time of the transport accident; and 10 (b) is convicted of an offence under section 318(1) of the Crimes Act 1958 in respect of driving the motor vehicle at that time. 40. Circumstances in which certain 15 compensation is not payable or is reduced (1) The Commission is not liable to pay compensation under section 44 or 45 to a person who is injured as a result of a transport accident if-- 20 (a) the person-- (i) was driving a motor vehicle at the time of the transport accident; and (ii) is convicted, in respect of driving the motor vehicle at that time, of 25 an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law-- unless the person satisfies the 30 Commission that the intoxicating liquor or drug did not contribute in any way to the transport accident; or (b) the person was, at the time of the transport accident, the driver of, or a 10 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. passenger in, a motor vehicle owned by the person in respect of which a transport accident charge payable in respect of a period including that time 5 had not been paid; or (c) the person was, at the time of the transport accident, the driver of a motor vehicle and-- (i) had never held a licence to drive a 10 motor vehicle of that class under the Road Safety Act 1986 or a corresponding previous enactment or under a law that is in relation to the Road Safety Act 1986 a 15 corresponding law or under a law of another country; or (ii) held or had held such a licence but, at the time of the transport accident, it was suspended or had 20 been cancelled; or (iii) in the case of a transport accident occurring on or after the commencement of section 12 of the Transport Accident 25 (Amendment) Act 2000, held or had held such a licence but , at the time of the transport accident, it had not been renewed for at least 3 years; or 30 (d) the person-- (i) was, at the time of the transport accident, the driver of or a passenger in a motor vehicle being 11 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. used for or in connection with or in the commission of an indictable offence, stealing or attempting to steal a motor vehicle, resisting or 5 preventing the lawful apprehension or detention of that person or any other person or intentionally causing or attempting to cause injury to that 10 person or any other person; and (ii) is convicted of that offence. (2) The Commission is not liable to pay compensation under section 44, 45, 47, 48, 49, 50 or 51 to a person who is injured in a 15 transport accident if the person-- (a) was driving a motor vehicle at the time of the transport accident; and (b) is convicted of an offence in relation to the transport accident under section 20 49(1)(c), 49(1)(d), 49(1)(e), 56(2) or 56(7) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law. (3) The Commission is not liable to pay 25 compensation under section 47, 48, 49, 50 or 51 to a person who is injured in a transport accident if the person was driving a motor vehicle at the time of the transport accident and is convicted, in respect of driving the 30 motor vehicle at that time-- (a) of an offence under section 49(1)(a) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or 12 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. (b) of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding 5 law and the relevant level of concentration of alcohol was 0·24 grams or more per 100 millilitres of blood-- unless the person satisfies the Commission 10 that the intoxicating liquor or drug or the concentration of alcohol in the blood, as the case may be, did not contribute in any way to the transport accident. (4) Sub-section (5) applies if a person who is 15 injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at that time-- (a) of an offence under section 49(1)(b), 20 49(1)(f) or 49(1)(g) of the Road Safety Act 1986 or under a law that is in relation to that Act, a corresponding law; and (b) the relevant level of concentration of 25 alcohol was more than 0·05 grams per 100 millilitres of blood. (5) The compensation under section 44 or 45 in respect of a person to whom sub-section (4) applies-- 30 (a) is reduced by one-third if the concentration was more than 0·05 and less than 0·12; and (b) is reduced by two-thirds if the concentration was 0·12 or more and 35 less than 0·24; and 13 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. (c) is not payable if the concentration was 0·24 or more-- unless the person satisfies the Commission that the concentration of alcohol in the blood 5 of the person did not contribute in any way to the transport accident. (6) For the purposes of sub-section (1), a person who drives a motor vehicle at a particular time is not to be deemed never to have held a 10 licence to drive a motor vehicle of that class if at that time-- (a) the person was-- (i) the holder of a learner permit in respect of a motor vehicle of that 15 class under the Road Safety Act 1986 or under a law that is, in relation to that Act, a corresponding law; or (ii) participating in a training program 20 accredited under the Road Safety Act 1986; and (b) in the case of a motor vehicle other than a motor cycle or a tractor, the person had a licensed driver (not being the 25 holder of a licence issued on probation) sitting beside him or her. 40A. General provisions (1) Sub-section (2) applies if-- (a) a person who is injured as a result of a 30 transport accident applies for compensation under this Act and a charge for an offence has been laid or it 14 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 12 Act No. appears to the Commission that a charge for an offence may be laid against the person; and (b) the Commission is not liable under 5 section 39 or 40 to make a payment to that person if he or she is convicted of that offence. (2) The Commission may withhold a payment referred to in sub-section (1)-- 10 (a) if the charge is laid within the limitation period after the date of the transport accident, until the charge is heard or withdrawn; or (b) if no such charge is laid within the 15 limitation period after the date of the transport accident, until the expiration of that period. (3) In sub-section (2), "the limitation period after the date of the transport accident" 20 means-- (a) the period after the transport accident within which the charge could be laid; or (b) the period of two years after the 25 transport accident-- whichever is the shorter. (4) If-- (a) a person is convicted of an offence referred to in section 39 or 40; and 30 (b) the court by which the person was convicted made a finding as to the 15 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 13 Act No. concentration of alcohol in the person's blood at a particular time-- the court must, at the request of the Commission, cause a certificate with 5 particulars of its finding to be given to the Commission. (5) For the purposes of this Act-- (a) a certificate of a court given under sub- section (4) is evidence of the finding of 10 the court as to the concentration of alcohol in a person's blood at a particular time; and (b) any finding of the court as to the concentration of alcohol in the blood of 15 the person or as to the analysis of a sample of a person's blood or breath is conclusive evidence of the facts so found; and (c) a finding of a concentration of alcohol 20 in the blood of a person exceeding 0·05 but otherwise unspecified is conclusive evidence that the concentration was more than 0·05 and less than 0·12.'. 13. Degree of impairment 25 After section 46A(1) of the Transport Accident Act 1986 insert-- "(1A) If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport 30 accident as at 18 months after a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period 35 of 6 years after an injury resulting from the 16 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 14 Act No. transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application. 5 (1B) The period of 6 years referred to in sub- section (1A) applies-- (a) in respect of a transport accident that occurred before the commencement of section 13 of the Transport Accident 10 (Amendment) Act 2000, from the commencement of that section; and (b) in respect of a transport accident that occurs on or after the commencement of section 13 of the Transport 15 Accident (Amendment) Act 2000, from the time that the transport accident occurs.". 14. Impairment benefit (1) After section 47(3) of the Transport Accident 20 Act 1986 insert-- "(3AA) The Commission must make any payment under sub-section (3) to the person in respect of whom the impairment benefit or interim benefit is assessed without setting off any 25 legal costs.". (2) In section 47(3A) of the Transport Accident Act 1986 omit "or interim benefit". (3) For section 47(6) of the Transport Accident Act 1986 substitute-- 30 '(6) If as a result of two or more transport accidents, a person has a total degree of impairment that is more than 10 percent suffered as a result of the transport accidents-- 17 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 14 Act No. (a) this section and sections 48 and 54 apply-- (i) on the first occasion that the impairment is 11 percent or more, 5 as if a reference to a degree of impairment suffered as a result of a transport accident were a reference to the degree of impairment suffered as a result of 10 one or more transport accidents; (ii) in relation to any subsequent transport accident, as if a reference to a degree of impairment suffered as a result of 15 a transport accident were a reference to the degree of impairment suffered as a result all of the transport accidents and as if "B" in the formula in sub-section 20 (2) was equal to the total degree of impairment suffered as a result all of the transport accidents for which compensation has already been made; and 25 (b) section 93(3) does not apply unless the degree of impairment is determined to be 30 percent or more as the result of one of the transport accidents.'. (4) For section 47(7) of the Transport Accident Act 30 1986 substitute-- "(7) Despite section 46A(1), the Commission may for the purposes of proceedings for the recovery of damages in respect of the injury at any time determine the degree of 35 impairment of a person who is injured as a result of a transport accident and who-- 18 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 15 Act No. (a) is or may be entitled to compensation under this Act; or (b) is not entitled to compensation under this Act by virtue of section 37, 38 or 5 38A-- if the Commission is satisfied that the injury has stabilised or has substantially stabilised.". 15. Calculation of loss of earning capacity 10 (1) In section 49(5) of the Transport Accident Act 1986, for the definition of "pre-accident earning capacity" substitute-- ' "pre-accident earning capacity" in relation to an earner who suffers loss of earning 15 capacity as a result of an injury in a transport accident, means the amount the Commission determines as the weekly amount the earner had the capacity to earn before the transport accident in employment reasonably available 20 to the earner in view of the earner's training, skills and experience less such amount as the Commission reasonably considers to be the amount of income tax that would have been payable on that weekly amount under the 25 Commonwealth Income Tax Assessment Act 1936.'. (2) After section 49(5) of the Transport Accident Act 1986 insert-- '(5A) If an amount cannot be determined in 30 accordance with the definition of "pre- accident earning capacity", the amount is deemed to be the amount which is equal to 80 percent of average weekly earnings of all employees for Victoria last published by the 35 Australian Statistician.'. 19 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 16 17 Act No. (3) After section 49(7) of the Transport Accident Act 1986 insert-- "(8) The amount of a weekly payment under this section to which a person is entitled on or 5 after 1 July 2000 in respect of a transport accident that occurred before 1 July 2000 is increased by 4 percent.". (4) In section 50(3)(b) of the Transport Accident Act 1986 after "capacity" insert ", less the 10 earner's post-accident earning capacity". (5) In section 61(1) of the Transport Accident Act 1986, after "or this Division" (where twice occurring) insert "or calculated under section 49(5)". 15 16. Review of entitlement After section 55(6) of the Transport Accident Act 1986 insert-- "(7) Despite sub-section (4), if the Commission has reviewed the earning capacity of a 20 person who has returned to work by participating in an approved vocational rehabilitation program and the return to work is unsuccessful, the Commission must-- (a) restore the entitlement of the person to 25 receive weekly payments; and (b) take into account earnings received during the period of the return to work.". 17. Surviving spouse 30 In section 58(6) of the Transport Accident Act 1986, in the definition of "the earner's assessed earnings" for "but for the death" substitute "but for the transport accident". 18. Surviving children 20 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 19 Act No. After section 59(11) of the Transport Accident Act 1986 insert-- "(12) Sub-section (13) applies if-- (a) the Commission has determined that it 5 is liable to make payments under this section; and (b) the Tribunal upon a review determines that the Commission is liable to make payments under sections 57 and 58 to 10 the surviving spouse of an earner. (13) If this sub-section applies-- (a) State Trustees must, at the request in writing of the Commission, refund to the Commission any lump sum paid to 15 State Trustees on behalf of a dependent child; and (b) the Commission is entitled to set-off payments made as weekly payments and education allowance under this 20 section against the payments that the Commission is liable to make under sections 57 and 58 to the surviving spouse of the earner. (14) Sub-sections (12) and (13) as inserted by 25 section 18 of the Transport Accident (Amendment) Act 2000 apply to and in respect of a transport accident which occurs on or after the commencement of that section.". 30 19. Medical and like benefits (1) In section 60 of the Transport Accident Act 1986, for sub-sections (1), (1A) and (2) substitute-- 21 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. '(1) This section specifies amounts that the Commission is liable to pay as compensation in addition to any other compensation paid under this Act. 5 (1A) The Commission is only liable to make a payment under this section if the application to the Commission for payment relates to an expense or cost incurred within the period of 2 years immediately before the application is 10 made. (2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident-- 15 (a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and 20 ambulance services received in Australia because of the transport accident; and (b) the reasonable costs of attendant care services that would be otherwise 25 payable under paragraph (a) if the injured person had received those services in Australia because of the transport accident, if the injured person receives those services while travelling 30 overseas for a period of not more than 8 weeks in any year; and (c) if the person, during the period of one month preceding the transport accident, was engaged mainly in housekeeping 35 duties or the care of a child and did not receive salary or wages in respect of 22 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 19 Act No. those duties or that care, the reasonable costs incurred after the transport accident in employing, during the first 5 years after the death or injury, an 5 authorised person to undertake in Australia housekeeping duties or care of the child, but the payment of the reasonable costs is not to exceed a total of 40 hours per week of housekeeping 10 or child care services ; and (d) in the case of a person who is injured, the reasonable costs incurred after the transport accident in employing an authorised person to provide in 15 Australia services of a domestic nature or services relating to nursing and attendance but not exceeding 40 hours per week, less the amount paid under paragraph (c). 20 (2A) The Commission is liable to pay as compensation in respect of a person who is injured or dies as a result of a transport accident-- (a) where death or severe injury results 25 from the transport accident, the reasonable costs incurred in Australia of family counselling services provided to family members by a medical practitioner or registered psychologist 30 not exceeding $1670 in respect of that death or severe injury; and (b) where death results from the transport accident, the reasonable costs incurred in Australia of burial or cremation. 35 (2B) In sub-section (2A)(a)-- 23 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 19 Act No. "family member" means a spouse, parent, sibling or child of the person who dies as a result of a transport accident; "severe injury" means-- 5 (a) a severe closed head injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50 percent of the body; or 10 (b) any other injury prescribed for the purposes of this sub-section. (2C) If a parent or guardian of a dependent child injured and admitted to hospital as a result of a transport accident incurs reasonable 15 travelling or accommodation expenses by reason of visiting the dependent child in the hospital, the Commission is, subject to this Act, liable to pay as compensation, payments in respect of those expenses. 20 (2D) If the spouse or a dependent child of a person injured and admitted to hospital as a result of a transport accident incurs reasonable travelling or accommodation expenses by reason of visiting the person 25 who is an in-patient in a hospital that is located at least 100 kilometres from the spouse's or dependent child's normal residence, the Commission is, subject to this Act, liable to pay as compensation to the 30 spouse and any dependent child, payments not exceeding $5000 in respect of those expenses.". (2) In section 23(1)(b) of the Transport Accident Act 1986 for "paragraph (b) or (c) of section 35 60(1)" substitute "section 60(2)(c) or 60(2)(d)". 24 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 20 Act No. 20. Home and motor vehicle modifications (1) For section 60(3) of the Transport Accident Act 1986 substitute-- "(3) If a person who is injured as a result of a 5 transport accident reasonably requires modifications to a motor vehicle in Australia, the Commission is liable to-- (a) pay the reasonable cost of modifications to the person's motor 10 vehicle; or (b) contribute to the reasonable purchase cost of a motor vehicle, if the person does not own a motor vehicle which is capable of being modified. 15 (4) If a person who is injured as a result of a transport accident reasonably requires modifications to a home in Australia because of the injury, the Commission is liable to-- (a) pay the reasonable cost of 20 modifications to the person's home; or (b) contribute to-- (i) the reasonable purchase cost of a semi detachable portable unit; or (ii) reasonable relocation costs to 25 another home-- if the person does not own a home which is capable of being modified. (5) The Commission must not make a payment or contribution under sub-section (3) or (4) 30 which exceeds $5000, unless the person enters into an agreement with the 25 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 21 22 Act No. Commission in relation to the ownership of, and maintenance of modifications to, the motor vehicle, home or semi-detachable portable unit. 5 (6) An agreement under sub-section (5) must include provisions in respect of-- (a) subsequent modifications; (b) changes of ownership; (c) the frequency of modifications and 10 changes of ownership.". (2) In section 61(2) of the Transport Accident Act 1986 after "$30 520," insert "$5000,". 21. Notice of accident In sections 64(1) and 64(3) of the Transport 15 Accident Act 1986 for "make a report in the prescribed form to the Commission within 28 days after the accident" substitute ", if requested by a notice served by the Commission, make a report in the prescribed form within 28 days of receiving 20 the notice". 22. Sections 65 and 66 substituted For sections 65 and 66 of the Transport Accident Act 1986 substitute-- "65. Provisions applying to notice under 25 section 64 (1) A notice under section 64(1) or 64(3) may be served-- (a) personally; or 26 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. (b) by post addressed to the driver at the last known place of residence or business. (2) The notice must state that if the person on 5 whom the notice is served does not make the report under section 64 within the specified period, a penalty of $50 is payable to the Commission. (3) If the Commission is satisfied that there is a 10 good reason for the report not being made, the Commission must by further notice served in accordance with sub-section (1) at any time within 28 days after the notice under section 64 was served, withdraw the 15 first notice. (4) If a notice under section 64 is withdrawn after the penalty has been paid, the Commission must refund the amount of the penalty. 20 (5) A person must not fail to comply with a notice under section 64 that has not been withdrawn. Penalty applying to this sub-section: 1½ penalty units. 25 66. Payment of penalty (1) If the penalty specified in a notice under section 64(1) or 64(3) is paid-- (a) within 14 days after the expiry of the period specified in the notice; or 30 (b) if the Commission so allows, at any time before service of a summons in respect of the failure to comply with the notice-- 27 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 23 Act No. no further proceedings may be taken against the person in respect of the failure to make a report. (2) Nothing in this Part prejudices the institution 5 or prosecution of proceedings for an offence under section 65(5), if the penalty specified in a notice under section 64(1) or 64(3) has not been paid within the period specified in sub-section (1).". 10 23. Form of claim (1) Sections 67(1)(b) and 67(3) of the Transport Accident Act 1986 are repealed. (2) After section 67(1) of the Transport Accident Act 1986 insert-- 15 "(1A) An authority to release information in a claim for compensation has effect and cannot be revoked until a claim is finally determined.". 24. Time for making claim under Part 3 20 (1) For section 68(1)(d) of the Transport Accident Act 1986 substitute-- "(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.". 25 (2) After section 68(2) of the Transport Accident Act 1986 insert-- "(3) Despite sub-section (1) but subject to sub- section (2), if-- (a) a person who is injured as a result of a 30 transport accident to which Part 3 applies was not 18 years of age at the time of the transport accident; and 28 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 25 27 Act No. (b) a claim for compensation by or on behalf of that person has not been made under that Part-- the person may make a claim for 5 compensation under that Part within one year of attaining the age of 18 years.". 25. Time period for considering claims In sections 70(1) and 70(2) of the Transport Accident Act 1986, for "28 days" substitute 10 "21 days". 26. Medical examinations (1) In section 71(1) of the Transport Accident Act 1986, for "medical practitioners" substitute "medical service providers". 15 (2) After section 71(2) of the Transport Accident Act 1986 insert-- '(3) In sub-section (1), "medical service provider" means-- (a) medical practitioner; 20 (b) registered psychologist; (c) registered dentist; (d) registered optometrist; (e) registered physiotherapist; (f) registered chiropractor; 25 (g) registered osteopath; (h) registered podiatrist.'. 27. Reviews (1) In section 77(4) of the Transport Accident Act 1986 for "the expiration of 28 days after a copy of 29 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. the application has been served on the Commission" substitute-- "-- (a) notice is received under section 80 (2) that 5 the Commission has re-affirmed the decision; or (b) the Commission is deemed by section 80(3) to have re-affirmed the decision; or (c) an application is made under section 78(5).". 10 (2) In section 78(1) of the Transport Accident Act 1986 after "reconsider the decision" insert "or give the applicant a notice under sub-section (2)". (3) After section 78(2) of the Transport Accident Act 1986 insert-- 15 "(3) An applicant must comply with a notice under sub-section (2) within 90 days of being given the notice. (4) The Commission must hold a conference or conclude the review within 28 days of 20 receiving the particulars and information required under sub-section (2). (5) If the Commission has not received the particulars and information required under sub-section (2) within 180 days of giving the 25 notice, the Commission may apply to the Tribunal to have the proceedings dismissed or struck out.". (4) After section 79(2) of the Transport Accident Act 1986 insert-- 30 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 28 Act No. "(3) This section is subject to sections 112 to 115 of the Victorian Civil and Administrative Tribunal Act 1998.". (5) For section 80(2) of the Transport Accident Act 5 1986 substitute-- "(2) Within 14 days of holding a conference or concluding the review under section 78(4), the Commission must give notice in writing to the applicant and the Tribunal that it has 10 determined to-- (a) re-affirm the decision; or (b) vary or revoke the decision as specified in the notice. (3) If the Commission fails to comply with 15 section 78(2) or 78(4) or fails to give notice under sub-section (2), the Commission is deemed to have determined to re-affirm the decision.". 28. Evidence as to alcohol or drugs 20 After section 93(6) of the Transport Accident Act 1986 insert-- "(6A) Despite anything to the contrary in any other Act, a party may in proceedings under this section when adducing evidence on the 25 question of whether any person was at the time of the transport accident under the influence of intoxicating liquor or any other drug, use the analysis or the results of the analysis of a blood sample or breath analysis 30 lawfully taken under the Road Safety Act 1986 at or after the time of the transport accident. (6B) A party must not adduce material referred to in sub-section (6A) in evidence in 35 proceedings under this section, unless a copy 31 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 29 30 Act No. of the material has been provided to all the other parties in the proceedings. (6C) Sub-sections (6A) and (6B) as inserted by section 28 of the Transport Accident 5 (Amendment) Act 2000 apply to and in respect of a transport accident which occurs on or after the commencement of that section.". 29. Release from liability for payments under section 60 10 After section 93(18) of the Transport Accident Act 1986 insert-- "(18A) Despite sub-section (18), if an award of damages under this section includes an amount for the future cost of services of a 15 kind set out in section 60 if provided in Australia, the Commission is released from any further liability for compensation under that section. (18B) Sub-section (18A) as inserted by section 29 20 of the Transport Accident (Amendment) Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.". 30. Serious injury 25 After section 93(17) of the Transport Accident Act 1986 insert-- '(17A) For the purposes of determining whether there is an impairment or loss of body function as defined in paragraph (a) of the 30 definition of serious injury in sub- section (17), psychological or psychiatric 32 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 32 Act No. consequences are not to be taken into account. (17B) Sub-section (17A) as inserted by section 30 of the Transport Accident (Amendment) 5 Act 2000 applies to and in respect of a transport accident which occurs on or after the commencement of that section.'. 31. Provisions relating to determination of a serious injury 10 After section 93(19) of the Transport Accident Act 1986 insert-- '(19A) For the purposes of sub-section (4)(d)-- (a) a court must not give leave unless it is satisfied on the balance of probabilities 15 that the injury is a serious injury; (b) no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue 20 estoppel. (19B) For the purposes of the assessment of "serious injury" in accordance with sub- sections (4) and (19A), the monetary thresholds and statutory maximums specified 25 by or under sub-section (7) must be disregarded.'. 32. Appeals After section 93 of the Transport Accident Act 1986 insert-- 30 "93A. Effect of decision on application A decision granting or refusing leave made on an application made under section 93(4)(d) shall be taken not to be a judgment or order in an interlocutory application for 33 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. the purposes of an appeal to the Court of Appeal. 93B. Hearing of Appeal On the hearing of an appeal to the Court of 5 Appeal from a decision made on an application under section 93(4)(d), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard 10 the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court. 93C. Giving of reasons The reasons given by the court in deciding 15 an application under section 93(4)(d) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.". 20 33. Procedures under section 93 After section 93C of the Transport Accident Act 1986 insert-- "93D. Directions (1) For the purposes of section 93, the Minister 25 may issue directions for or with respect to procedures under that section. (2) The directions must be published in the Government Gazette. 34 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 34 Act No. (3) The directions may include directions about the provision of information by affidavit and the attending of conferences. (4) A person to whom a direction under this 5 section applies, and the legal representatives and agents of such a person, must comply with the direction.". 34. Indemnity (1) After section 94(2) of the Transport Accident 10 Act 1986 insert-- "(2A) Sub-section (1) does not apply in respect of any liability in respect of a transport accident involving an organised motor vehicle race or speed trial or a test in preparation for such a 15 race or trial to which section 41(1) applies.". (2) After section 94(7) of the Transport Accident Act 1986 insert-- "(7A) The entitlement of a person to recover against the Commission under sub-section 20 (7) is not affected by the death of an owner or driver indemnified under that sub-section before any proceedings are commenced.". 35. Unindemnified vehicles For section 96(4) of the Transport Accident Act 25 1986 substitute-- "(4) It is a defence to proceedings under sub- section (3)-- (a) in the case of the owner of an unindemnified vehicle, that the vehicle 30 being an unindemnified vehicle was not the result of any default of the owner; (b) in the case of the driver of an unindemnified vehicle-- 35 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 36 Act No. (i) that judgment could not have been obtained against the driver but for this section; or (ii) that the driver had reasonable 5 grounds for believing that he or she had the authority of the owner to drive the vehicle and that the vehicle was not an unindemnified vehicle.". 10 36. Indemnity by third party In section 104(2) of the Transport Accident Act 1986, after "the amount" insert "(including the payment of interest)". 37. Rates of charges 15 (1) After section 110(1) of the Transport Accident Act 1986 insert-- '(1AA) In this section "prescribed" means prescribed by a charges order made under this section after the commencement of 20 section 37 of the Transport Accident (Amendment) Act 2000.'. (2) In section 110(6) of the Transport Accident Act 1986, for "regulations" (wherever occurring) substitute "charges order". 25 (3) After section 110(7) of the Transport Accident Act 1986 insert-- "(8) The Governor in Council may on the recommendation of the Commission by Order in Council make a charges order. 30 (9) A charges order-- 36 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 37 38 Act No. (a) must be published in the Government Gazette; (b) takes effect on and from the date on which it is published or any later date 5 of commencement as may be specified in the order. (10) A charges order may-- (a) apply generally or be limited in its application by reference to specified 10 exceptions or factors; (b) apply differently according to different factors of a specified kind; (c) specify different methods of calculation whether by reference to formulas, 15 scales, tables or other means; (d) apply, adopt or incorporate (with or without modification) the provisions of any document, code, standard, rule, specification or method whether as 20 formulated, issued, prescribed or published at the time the order is made; (e) authorise any specified person or body to determine or apply a specified matter or thing.". 25 38. Amendments consequential to section 37 (1) Section 110A of the Transport Accident Act 1986 is repealed. (2) Section 132(1)(e) of the Transport Accident Act 1986 is repealed. 30 39. Provision of information 37 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Act No. After section 127(3) of the Transport Accident Act 1986 insert-- '(3A) In sub-section (3), "employer" includes a former employer at any time during the 5 period of 3 years immediately preceding the transport accident, of the person who is injured or dies in the transport accident.'. 40. Supreme Court-limitation of jurisdiction After section 132B of the Transport Accident 10 Act 1986 insert-- "132C. Supreme Court-limitation of jurisdiction It is the intention-- (a) of sections 93(19A) and 93(19B) as inserted by section 31; and 15 (b) of sections 93A, 93B and 93C as inserted by section 32-- of the Transport Accident (Amendment) Act 2000 to alter or vary section 85 of the Constitution Act 1975.". 20 _______________ 38 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 41 Act No. PART 3--AMENDMENT OF ACCIDENT COMPENSATION ACT 1985 41. Amendment of section 135A After section 135A(2A) of the Accident 5 Compensation Act 1985 insert-- "(2AA) For the purposes of the procedures relating to an application for a determination from a worker made under sub-section (2B) and received by the Authority or a self-insurer 10 after 10 August 2000 but before 1 September 2000, sub-sections (2B), (2D) and (2DB) have effect as if the reference in each of those sub-sections to 120 days was a reference to 210 days.". 15 42. Liability of Transport Accident Commission In section 137(5B) of the Accident Compensation Act 1985 after "death or injury" (where last occurring) insert "less an amount equal to the employer's excess that would be 20 applicable under section 125A if a WorkCover insurance policy was in force". 43. Amendment of proposed section 134AG and commencement (1) After section 2(7) of the Accident Compensation 25 (Common Law and Benefits) Act 2000 insert-- "(7A) Section 19 (as amended by section 43 of the Transport Accident (Amendment) Act 2000) comes into operation on the day after the day on which the Transport Accident 30 (Amendment) Act 2000 receives the Royal Assent.". 39 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 44 Act No. (2) In section 2(8) of the Accident Compensation (Common Law and Benefits) Act 2000 omit "19,". (3) In section 19 of the Accident Compensation 5 (Common Law and Benefits) Act 2000, in proposed section 134AG-- (a) in sub-section (1)(a), after "section 134AB" insert ", 135, 135A or 135B"; (b) in sub-section (4), after "Section 10 134AB(29)" insert ", 135A(13B) or 135B(7)". 44. Supreme Court-limitation of jurisdiction After section 252D of the Accident Compensation Act 1985 insert-- 15 "252E. Supreme Court-limitation of jurisdiction It is the intention of section 134AG as amended by section 43 of the Transport Accident (Amendment) Act 2000 to alter or vary section 85 of the Constitution Act 20 1975.". _______________ 40 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 45 Act No. PART 4--AMENDMENT OF DANGEROUS GOODS ACT 1985 45. Amendment of Dangerous Goods Act 1985 (1) In section 3(1) of the Dangerous Goods Act 1985-- 5 (a) insert the following definition-- ' "ADG Code" means the document known as the Australian Code for the Transport of Dangerous Goods by Road and Rail (Sixth edition or a later 10 prescribed edition), as amended from time to time;'; (b) the definition of "Competent Authorities Sub-committee" is repealed; (c) in the definition of "dangerous goods" for 15 "Transport Code" substitute "ADG Code"; (d) the definition of "Transport Code" is repealed. (2) In the Dangerous Goods Act 1985-- (a) in sections 4(f), 9B(4), 10(1) and 10(2) for 20 "Transport Code" substitute "ADG Code"; (b) in section 10(1), "or" after paragraph (b) and paragraph (c) are repealed; (c) section 14(1) is repealed. (3) After section 10(2) of the Dangerous Goods Act 25 1985 insert-- '(3) Any reference in any Act, regulation, local law, subordinate instrument or other document to the "Transport Code" is as from the commencement of section 45 of the 30 Transport Accident (Amendment) Act 2000 to be construed as a reference to the 41 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 s. 45 Act No. "ADG Code", unless the context otherwise requires.'. 42 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


 

Transport Accident (Amendment) Act 2000 Endnotes Act No. ENDNOTES By Authority. Government Printer for the State of Victoria. 43 541117B.A1-27/10/2000 BILL LA AS SENT 27/10/2000

 


[Index] [Search] [Download] [Related Items] [Help]