Victorian Consolidated Legislation

Transport Accident Act 1986 - SECT 40

Circumstances in which certain compensation is not payable or is reduced

40. Circumstances in which certain 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-

   (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
        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 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 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 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 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
        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 been cancelled; or

   (iii) in the case of a transport accident occurring on or after the
        commencement of section 12 of the Transport Accident (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



   (d)  the person-

   (i)  was, at the time of the transport accident, the driver of or a
        passenger in a motor vehicle being used for or in connection with or
        in the commission of an indictable offence, stealing or attempting to
        steal a motor vehicle, resisting or preventing the lawful apprehension
        or detention of that person or any other person or intentionally
        causing or attempting to cause injury to that 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,
49, 50 or 51 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

   (b)  is convicted of an offence in relation to the transport accident under
        section 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 compensation under section 47, 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 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

   (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 law and the relevant level of concentration of alcohol
        in the person's blood was 0×24 grams or more per 100 millilitres of
        blood or in the person's breath was 0×24 grams or more per 210 litres
        of exhaled air, as the case requires-

unless the person satisfies the Commission that the intoxicating liquor or
drug or the concentration of alcohol in the blood or breath, as the case may
be, did not contribute in any way to the transport accident.

(4) Subsection (5) applies if a person who is 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), 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 alcohol in the person's blood
        was more than 0×05 grams per 100 millilitres of blood or in the
        person's breath was more than 0×05 grams per 210 litres of exhaled
        air, as the case requires.

(5) The compensation under section 44 or 45 in respect of a person to whom
subsection (4) applies-

   (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
        less than 0×24; and

   (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 or breath of the person did not contribute in any way to the
transport accident.

(6) For the purposes of subsection (1), a person who drives a motor vehicle at
a particular time is not to be deemed never to have held a 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
        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 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 holder of a licence
        issued on probation) sitting beside him or her.