Motor Accidents Legislation Amendment Act 2004 (NSW)

An Act to amend the Motor Accidents Act 1988 and the Motor Accidents Compensation Act 1999 in respect of motor accidents occurring in the course of coal miner employment; and for other purposes.

1Name of Act

This Act is the Motor Accidents Legislation Amendment Act 2004.

2Commencement

This Act commences on the date of assent.

3Amendment of Motor Accidents Act 1988 No 102

The Motor Accidents Act 1988 is amended as set out in Schedule 1.

4Amendment of Motor Accidents Compensation Act 1999 No 41

The Motor Accidents Compensation Act 1999 is amended as set out in Schedule 2.

5Amendment of workers compensation legislation

The Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 are amended as set out in Schedule 3.

Schedule 1Amendment of Motor Accidents Act 1988

(Section 3)

[1]Section 3D

Insert after section 3C:

3DParts 4, 5 and 6 not to apply to coal miner work injury claim resulting from uninsured off-road accident(1)

Parts 4, 5 and 6 do not apply in respect of the death of or injury to a coal miner caused by a motor accident if:

• (a)

  the motor accident did not arise from the use or operation of a motor vehicle on a road or road related area, and

• (b)

  there is no motor accident insurer on risk in respect of the motor accident, and

• (c)

  the death or injury gives rise to a work injury claim.

(2)

For the purposes of subsection (1) (b), there is no motor accident insurer on risk in respect of a motor accident if:

• (a)

  at the time of the motor accident the motor vehicle was not subject to coverage under a third-party policy and was not subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, and

• (b)

  there is no right of action against the Nominal Defendant in respect of the motor accident.

(3)

For the purposes of subsection (1) (c), death or injury gives rise to a work injury claim if it is:

• (a)

  a death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker’s employer), or

• (b)

  an injury to a worker caused by the negligence or other tort of the worker’s employer.

(4)

Expressions used in subsection (3) (a) and (b) have the same meanings as they have in Part 5 of the Workers Compensation Act 1987.

(5)

In this section:

coal miner has the same meaning as in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987.

[2]Sections 34B, 41 and 69

Insert at the end of the sections, respectively:

Note—

The application of this Part in respect of coal miner work injury matters is limited by section 3D.

[3]Schedule 4 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

the Motor Accidents Legislation Amendment Act 2004

[4]Schedule 4, Part 12

Insert after Part 11:

Part 12Provisions arising from the enactment of the Motor Accidents Legislation Amendment Act 200435Application of section 3D

Section 3D extends to motor accidents occurring before the section commences. However, section 3D does not affect court proceedings commenced before 5 December 2002 or any decision of a court made before the section commences.

Schedule 2Amendment of Motor Accidents Compensation Act 1999

(Section 4)

[1]Section 5A

Insert after section 5:

5AChapters 3, 4, 5 and 6 not to apply to coal miner work injury claim resulting from uninsured off-road accident(1)

Chapters 3, 4, 5 and 6 do not apply in respect of the death of or injury to a coal miner caused by a motor accident if:

• (a)

  the motor accident did not arise from the use or operation of a motor vehicle on a road, and

• (b)

  there is no motor accident insurer on risk in respect of the motor accident, and

• (c)

  the death or injury gives rise to a work injury claim.

(2)

For the purposes of subsection (1) (b), there is no motor accident insurer on risk in respect of a motor accident if:

• (a)

  at the time of the motor accident the motor vehicle was not subject to coverage under a third-party policy and was not subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, and

• (b)

  there is no right of action against the Nominal Defendant in respect of the motor accident.

(3)

For the purposes of subsection (1) (c), death or injury gives rise to a work injury claim if it is:

• (a)

  a death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker’s employer), or

• (b)

  an injury to a worker caused by the negligence or other tort of the worker’s employer.

(4)

Expressions used in subsection (3) (a) and (b) have the same meanings as they have in Part 5 of the Workers Compensation Act 1987.

(5)

In this section:

coal miner has the same meaning as in clause 3 of Part 18 of Schedule 6 to the Workers Compensation Act 1987.

[2]Sections 43, 67 and 148

Insert at the end of the sections, respectively:

Note—

The application of this Chapter in respect of coal miner work injury matters is limited by section 5A.

[3]Section 122 Damages in respect of motor accidents

Omit the note to the section. Insert instead:

Note—

See Motor Accidents Act 1988 for motor accidents occurring before the commencement of this Act.

See section 121 of the Transport Administration Act 1988 for the application of this Chapter to railway, ferry and other public transport accidents.

The application of this Chapter in respect of coal miner work injury matters is limited by section 5A.

[4]Schedule 5 Savings, transitional and other provisions

Insert at the end of clause 2 (1):

Motor Accidents Legislation Amendment Act 2004

[5]Schedule 5, Part 4

Insert after Part 3:

Part 4Provisions arising from the enactment of the Motor Accidents Legislation Amendment Act 200417Application of section 5A

Section 5A extends to motor accidents occurring before the section commences. However, section 5A does not affect court proceedings commenced before 5 December 2002 or any decision of a court made before the section commences.

Schedule 3Amendment of workers compensation legislation

(Section 5)

Workers Compensation Act 1987

Insert after section 151E (2):

Note—

However, this Division will generally apply in the case of an injury to a coal miner if the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (as described in section 3D of the Motor Accidents Act 1988 and section 5A of the Motor Accidents Compensation Act 1999).

Workplace Injury Management and Workers Compensation Act 1998

Insert at the end of the definition of work injury damages in section 250 (1):

Note—

However, work injury damages generally extends to damages recoverable from a worker’s employer in the case of an injury to a coal miner where the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (as described in section 3D of the Motor Accidents Act 1988 and section 5A of the Motor Accidents Compensation Act 1999).