Transport Accident (Amendment) Act 2000 (Vic)
Transport Accident (Amendment) Act 2000
Act No. 84/2000
TABLE OF PROVISIONS
Section 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 7
10A. TAC no longer a reorganising body 7
7. Proceedings and resolutions of the Board 7 8. Authorisation of disability services 8 9. Extension of time for review 8 10. Transport Accident Fund 8 11. Capital and dividends 8
29A. Repayment of capital 8 29B. Dividends 8
12. Sections 39 and 40 substituted 9 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 15
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 21 18. Surviving children 21 19. Medical and like benefits 22 20. Home and motor vehicle modifications 25 21. Notice of accident 26 22. Sections 65 and 66 substituted 27
i
Section Page
65. Provisions applying to notice under section 64 27 66. Payment of penalty 28
23. Form of claim 28 24. Time for making claim under Part 3 29 25. Time period for considering claims 29 26. Medical examinations 29 27. Reviews 30 28. Evidence as to alcohol or drugs 31 29. Release from liability for payments under section 60 33 30. Procedures under section 93 33
93D. Directions 33
31. Indemnity 34 32. Unindemnified vehicles 34 33. Indemnity by third party 35 34. Rates of charges 35 35. Amendments consequential to section 34 36 36. Provision of information 36 PART 3—AMENDMENT OF ACCIDENT COMPENSATION ACT
1985 38
37. Amendment of section 135A 38 38. Liability of Transport Accident Commission 38 39. Amendment of proposed section 134AG and commencement 38 40. Supreme Court-limitation of jurisdiction 39
252E. Supreme Court-limitation of jurisdiction 39
PART 4—AMENDMENT OF DANGEROUS GOODS ACT 1985 40
41. Amendment of Dangerous Goods Act 1985 40
═══════════════
ENDNOTES 42
ii
Victoria
No. 84 of 2000
Transport Accident (Amendment) Act
2000†
[Assented to 28 November 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 to—
(i) compensate claimants receiving weekly
payments for the effect of the GST;
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 2 (ii) include as a transport accident a collision between a pedal cyclist travelling to or from work and a motor
vehicle;
(iii) provide improved access to certain benefits;
(iv) revise procedures relating to claims and reviews;
(v) improve the operation of the Act; and
(b) make miscellaneous amendments to the Dangerous Goods Act 1985.
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, 33, 36, 37, 39 and 40 come into operation on the
day after the day on which this 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
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.
_______________
Transport Accident (Amendment) Act 2000
| s. 3 | Act No. 84/2000 |
PART 2—AMENDMENT OF TRANSPORT ACCIDENT ACT
1986
3. Definitions
(1) In section 3(1) of the Transport Accident Act
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 ofthat 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 of that person;'.
(2) After section 3(1A) of the Transport Accident
Act 1986 insert—
'(1B) The definition of "dependent spouse" assubstituted by section 3(1) 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.'.
(3) In section 3(1) of the Transport Accident Act
1986—
(a) after the definition of "dependent spouse" ' "disability service" means the provision to
or for a person who is disabled as a
result of an injury in a transport
accident of any service (other than a
rehabilitation service) relating to
attendant care, assistance,
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 3 accommodation support, community
access, respite care or household help,
the provision of which service is an
authorised service in accordance with
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 immediate aftermath of the transport accident"; (c) in the definition of "medical service", for "(e) the provision by a medical practitioner,
registered dentist, registered
optometrist, registered physiotherapist,
registered chiropractor, registered
osteopath or registered podiatrist of any
certificate required by the person, the
person's dependants or the Commission
for any purpose relating to the
operation of this Act or any reportauthorised by the Commission;";
(d) for the definition of "rehabilitation service" ' "rehabilitation service" means the
provision to or for a person for the
purpose of rehabilitation of any aid,
treatment, counselling, appliance,
apparatus or other service, the
provision of which is an authorisedservice in accordance with section 23;';
(e)
after the definition of "transport accident" insert—
Transport Accident (Amendment) Act 2000
| s. 4 | Act No. 84/2000 |
' "transportation costs" means costs
incurred travelling to or from—(a) a rehabilitation service; or
(b) an approved program of disability 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" 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 bysection 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.'.
(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) substitute "the person".
4. Transport accident to include certain incidents with pedal cyclists
(1) After section 3(1A)(b) of the Transport Accident Act 1986 insert—
"(c) involving a collision between a pedal cycle and a motor vehicle while the cyclist is
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 5 travelling to or from his or her place of
employment.".
(2) After section 3(7) of the Transport Accident Act
1986 insert—
'(8) The definition of "transport accident" as
amended by section 4(1) of the Transport amended by that section was in force when that transport accident occurred and this Act has effect accordingly.'.
Accident (Amendment) Act 2000 applies to
and in respect of any claim arising out of the
transport accident which occurred on
7 February 1997 involving the pedal cycle of
5. Pre-accident weekly earnings
After section 4(1B) of the Transport Accident
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
overtime and regular shift allowances are tobe included but only if—
(a) during the relevant period under sub- overtime or shift work in accordance with a regular and established pattern; and
(b)
that pattern was substantially uniform in the number of hours of overtime worked; and
(c)
the earner would have continued to work overtime or shift work in
Transport Accident (Amendment) Act 2000
| s. 6 | Act No. 84/2000 |
| accordance with that pattern if not for the injury.". |
6. TAC no longer a reorganising body
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.
(2) The Commission is a statutory corporation
under this Act and is not subject to the State
Owned Enterprises Act 1992.
(3) The Order of the Governor in Council made
Enterprises Act 1992 and published in the
under section 7(1) of the State Owned 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).".
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 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.".
(3) After section 20A(3) of the Transport Accident Act 1986 insert—
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 8 "(4) Sub-sections (6) and (6A) of section 20
apply in respect of the making of a resolution
under this section.".
8. Authorisation of disability services
In section 23(1)(a) of the Transport Accident or".
9. Extension of time for review
In section 23(4) of the Transport Accident Act
1986, for "28 days" substitute "12 months".
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
section 29A or 29B;".
11. Capital and dividends
For section 29A of the Transport Accident Act
1986 substitute—
"29A. Repayment of capital
(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.(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.
29B. Dividends
Transport Accident (Amendment) Act 2000
| s. 12 | Act No. 84/2000 |
(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
Minister.
(2) The Treasurer must in determining the
dividend policy that applies to the margin determined to maintain the long term financial viability of the transport accident scheme.".
12. Sections 39 and 40 substituted
For sections 39 and 40 of the Transport Accident
Act 1986 substitute—'39. Circumstances in which a person is not
entitled to compensation
(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 involving a motor vehicle (other than a recreation vehicle)—
(i) is not made to a member of the
police force whether under sectionthat occurred in Victoria—a report 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 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
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 12 made to the operator of the railway
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 vehicle; and
(b)
a report of the transport accident was not made in accordance with sub- section (1)(a); and
(c)
the Commission determines that in all the circumstances the failure should be excused.
(3) The Commission is not liable to pay
compensation under this Act (other than
under section 60) to a person who is injuredin 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 under section 318(1) of the Crimes Act 1958 in respect of driving the motor vehicle at that time.
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 atransport accident if—
(a) the person—
(i) was driving a motor vehicle at the time of the transport accident; and
Transport Accident (Amendment) Act 2000
| s. 12 | Act No. 84/2000 |
(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 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) occurring on or after the
in the case of a transport accident the Transport Accident
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 12 (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) 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 orwas, at the time of the transport 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 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, 48, 49, 50 or
51 to a person who is injured in a transport
Transport Accident (Amendment) Act 2000
| s. 12 | Act No. 84/2000 |
accident if the person was driving a motor
vehicle at the time of the transport accident
and is convicted, in respect of driving themotor 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) 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 wasof an offence under section 49(1)(b), of blood—
unless the person satisfies the Commission
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
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 was more than 0·05 grams per 100 millilitres of blood.
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 12 (5) The compensation under section 44 or 45 in respect of a person to whom sub-section (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
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
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.
Transport Accident (Amendment) Act 2000
| s. 12 | Act No. 84/2000 |
40A. General provisions
(1) Sub-section (2) applies if—
(a) a person who is injured as a result of a transport accident applies for compensation under this Act and a charge for an offence has been laid or it appears to the Commission that a charge for an offence may be laid against the person; and (b) the Commission is not liable under 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)—
(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 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" means—
(a)
the period after the transport accident within which the charge could be laid; or
(b)
the period of two years after the transport accident—
whichever is the shorter.
Transport Accident (Amendment) Act 2000
s. 12
s. 13
Act No. 84/2000
(4) If—
(a) a person is convicted of an offence referred to in section 39 or 40; and (b) the court by which the person was convicted made a finding as to the 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
particulars of its finding to be given to theCommission.
(5) For the purposes of this Act—
(a)
a certificate of a court given under sub- section (4) is evidence of the finding of 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 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 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
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
Transport Accident (Amendment) Act 2000
| s. 14 | Act No. 84/2000 |
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
of 6 years after an injury resulting from the
transport accident first manifests itself, apply
to the Commission for a determination of the
degree of impairment as at the date of the
application.(1B) The period of 6 years referred to in sub- section (1A) applies—
(a) occurred before the commencement of
section 13 of the Transport Accidentin respect of a transport accident that 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
Accident (Amendment) Act 2000,
from the time that the transport accident
occurs.".
14. Impairment benefit
(1) After section 47(3) of the Transport Accident 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
legal costs.".
(2) In section 47(3A) of the Transport Accident Act 1986 omit "or interim benefit".
Transport Accident (Amendment) Act 2000
Act No. 84/2000
(3) For section 47(6) of the Transport Accident Act
1986 substitute—
'(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—
(a) this section and sections 48 and 54 apply— (i) on the first occasion that the impairment is 11 percent or more, 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 one or more transport accidents;
(ii) transport accident, as if a
reference to a degree of
impairment suffered as a result of
a transport accident were a
reference to the degree ofin relation to any subsequent of the transport accidents and as if "B" in the formula in sub-section (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
(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.'.
Transport Accident (Amendment) Act 2000
| s. 15 | Act No. 84/2000 |
(4) For section 47(7) of the Transport Accident Act
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
impairment of a person who is injured as aresult of a transport accident and who—
(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 38A—
if the Commission is satisfied that the injury
has stabilised or has substantiallystabilised.".
15. Calculation of loss of earning capacity
(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
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
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
Commonwealth Income Tax Assessment Act
1936.'.
Transport Accident (Amendment) Act 2000
s. 15
s. 16
Act No. 84/2000
(2) After section 49(5) of the Transport Accident
Act 1986 insert—
'(5A) If an amount cannot be determined in
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
Australian Statistician.'.
(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 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 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)".
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
person who has returned to work by
participating in an approved vocational
Transport Accident (Amendment) Act 2000
Act No. 84/2000
rehabilitation program and the return to work
is unsuccessful, the Commission must—
(a)
restore the entitlement of the person to receive weekly payments; and
(b)
take into account earnings received during the period of the return to work.".
17. Surviving spouse
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
After section 59(11) of the Transport Accident
Act 1986 insert—
"(12) Sub-section (13) applies if—
(a)
the Commission has determined that it 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 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 State Trustees on behalf of a dependent child; and
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 19
(b) the Commission is entitled to set-off payments made as weekly payments and education allowance under this 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
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.".
19. Medical and like benefits
(1) In section 60 of the Transport Accident Act
1986, for sub-sections (1), (1A) and (2)
substitute—
'(1) This section specifies amounts that the
Commission is liable to pay as compensation in addition to any other compensation paid under this Act.
(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 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 ofa transport accident—
(a) the reasonable costs of road accident hospital services, nursing services,
Transport Accident (Amendment) Act 2000
| s. 19 | Act No. 84/2000 |
| disability services, rehabilitation services, transportation costs and ambulance services received in | |
| Australia because of the transport accident; and |
(b) services that would be otherwise
the reasonable costs of attendant care injured person had received those services in Australia because of the transport accident, if the injured person receives those services while travelling overseas for a period of not more than 8 weeks in any year; and
(c) month preceding the transport accident,
if the person, during the period of one duties or the care of a child and did not receive salary or wages in respect of 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 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 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 or services relating to nursing and attendance but not exceeding 40 hours
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 19 per week, less the amount paid under
paragraph (c).
(2A) The Commission is liable to pay as
compensation in respect of a person who is
injured or dies as a result of a transportaccident—
(a) from the transport accident, the
reasonable costs incurred in Australia
of family counselling services provided
to family members by a medical
practitioner or registered psychologistwhere death or severe injury results death or severe injury; and
(b)
where death results from the transport accident, the reasonable costs incurred in Australia of burial or cremation.
(2B) In sub-section (2A)(a)—
"family member" means a spouse, parent, sibling or child of the person who dies as a result of a transport accident;
"severe injury" means—
(a) paraplegia, quadriplegia,
a severe closed head injury, more than 50 percent of the body; or
(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
travelling or accommodation expenses by
reason of visiting the dependent child in the
hospital, the Commission is, subject to this
Transport Accident (Amendment) Act 2000
| s. 20 | Act No. 84/2000 |
Act, liable to pay as compensation, payments in respect of those expenses.
(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
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
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
60(1)" substitute "section 60(2)(c) or 60(2)(d)".
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
transport accident reasonably requires
modifications to a motor vehicle inAustralia, the Commission is liable to—
(a) pay the reasonable cost of 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.
Transport Accident (Amendment) Act 2000
s. 20
s. 21
Act No. 84/2000
(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 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
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) which exceeds $5000, unless the person
enters into an agreement with the and maintenance of modifications to, the motor vehicle, home or semi-detachable portable unit.
(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 changes of ownership.". (2) In section 61(2) of the Transport Accident Act 1986 after "$30 520," insert "$5000,".
21. Notice of accident
Transport Accident (Amendment) Act 2000
Act No. 84/2000
In sections 64(1) and 64(3) of the Transport 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
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
section 64
(1) A notice under section 64(1) or 64(3) may be
served—
(a) personally; or
(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
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
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
first notice.
(4) If a notice under section 64 is withdrawn
after the penalty has been paid, the penalty.
Transport Accident (Amendment) Act 2000
s. 22
s. 23
Act No. 84/2000
(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.
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 (b) if the Commission so allows, at any time before service of a summons in respect of the failure to comply with the notice—
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 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).".
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—
Transport Accident (Amendment) Act 2000
| s. 26 | Act No. 84/2000 |
"(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
(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.".(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 transport accident to which Part 3 applies was not 18 years of age at the time of the transport accident; and
(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
compensation under that Part within one yearof 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 "21 days".
26. Medical examinations
(1) In section 71(1) of the Transport Accident Act
1986, for "medical practitioners" substitute
"medical service providers".
Transport Accident (Amendment) Act 2000
Act No. 84/2000
(2) After section 71(2) of the Transport Accident
Act 1986 insert—
'(3) In sub-section (1), "medical service
provider" means—
(a) medical practitioner;
(b) registered psychologist;
(c) registered dentist;
(d) registered optometrist;
(e) registered physiotherapist;
(f) registered chiropractor;
(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
the application has been served on the
Commission" substitute—
"—
(a) notice is received under section 80 (2) that 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).". (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—
Transport Accident (Amendment) Act 2000
s. 27
| s. 28 | Act No. 84/2000 |
"(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
receiving the particulars and information
required under sub-section (2).
(5) If the Commission has not received the
sub-section (2) within 180 days of giving the
notice, the Commission may apply to theparticulars and information required under or struck out.". (4) After section 79(2) of the Transport Accident
Act 1986 insert—
"(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
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 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
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
Transport Accident (Amendment) Act 2000
Act No. 84/2000
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 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 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
proceedings under this section unless—
(a) the proceedings, copies of the
the party provides to all other parties in evidence at least 6 weeks before the commencement of the trial of the proceedings; and
(b) if notice is given to that party by another party at least 2 weeks before the commencement of the trial of the proceedings, the party causes the person who supplied the information contained in the document or documents to attend the trial of the proceedings for the purpose of cross- examination. (6C) Sub-sections (6A) and (6B) as inserted by
section 28 of the Transport Accident
(Amendment) Act 2000 apply to and in
respect of a transport accident which occurs
Transport Accident (Amendment) Act 2000
| s. 29 | Act No. 84/2000 |
on or after the commencement of that
section.".
29. Release from liability for payments under section 60 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
kind set out in section 60 if provided in any further liability for compensation under that section.
(18B) Sub-section (18A) as inserted by section 29 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. 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
may issue directions for or with respect to
procedures under that section.
(2) The directions must be published in the Government Gazette.
(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
section applies, and the legal representatives
and agents of such a person, must comply
with the direction.".
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 31
31. Indemnity
(1) After section 94(2) of the Transport Accident 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 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 (7) is not affected by the death of an owner or driver indemnified under that sub-section before any proceedings are commenced.".
32. Unindemnified vehicles
For section 96(4) of the Transport Accident Act
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 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— (i) that judgment could not have been obtained against the driver but for this section; or
(ii) that the driver had reasonable she had the authority of the owner
Transport Accident (Amendment) Act 2000
| s. 33 | Act No. 84/2000 |
to drive the vehicle and that the
vehicle was not an unindemnifiedvehicle.".
33. Indemnity by third party
In section 104(2) of the Transport Accident Act
1986, after "the amount" insert "(including thepayment of interest)".
34. Rates of charges
(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
section 34 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".
(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.
(9) A charges order—
(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 of commencement as may be specified in the order.
Transport Accident (Amendment) Act 2000
s. 34
s. 36
Act No. 84/2000
(10) A charges order may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors; (b) apply differently according to different factors of a specified kind; (c) specify different methods of calculation scales, tables or other means;
(d) without modification) the provisions of
any document, code, standard, rule,
specification or method whether asapply, adopt or incorporate (with 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.".
35. Amendments consequential to section 34
(1) Section 110A of the Transport Accident Act 1986 is repealed.
(2) Section 132(1)(e) of the Transport Accident Act 1986 is repealed.
36. Provision of information
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
period of 3 years immediately preceding the
transport accident, of the person who is
injured or dies in the transport accident.'.
Transport Accident (Amendment) Act 2000
Act No. 84/2000
_______________
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 37
PART 3—AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985
37. Amendment of section 135A
After section 135A(2A) of the Accident
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
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 areference to 210 days.".
38. 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 applicable under section 125A if a WorkCover insurance policy was in force".
39. Amendment of proposed section 134AG and commencement
(1) After section 2(7) of the Accident Compensation
(Common Law and Benefits) Act 2000 insert—
"(7A) Section 19 (as amended by section 39 of theTransport Accident (Amendment) Act
2000) comes into operation on the day after
the day on which the Transport Accident
(Amendment) Act 2000 receives the Royal
Assent.".
Transport Accident (Amendment) Act 2000
| s. 40 | Act No. 84/2000 |
(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
(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 135B(7)".
40. Supreme Court-limitation of jurisdiction
After section 252D of the AccidentCompensation Act 1985 insert—
"252E. Supreme Court-limitation of jurisdiction
It is the intention of section 134AG as
amended by section 39 of the Transport
Accident (Amendment) Act 2000 to alter or
vary section 85 of the Constitution Act1975.".
_______________
Transport Accident (Amendment) Act 2000
Act No. 84/2000 s. 41
PART 4—AMENDMENT OF DANGEROUS GOODS ACT 1985
41. Amendment of Dangerous Goods Act 1985
(1) In section 3(1) of the Dangerous Goods Act
1985—
(a) insert the following definition—
' "ADG Code" means the document knownas the Australian Code for the and Rail (Sixth edition or a later 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 "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 "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
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 41 of the
Transport Accident (Amendment) Act
2000 to be construed as a reference to the
Transport Accident (Amendment) Act 2000
| s. 41 | Act No. 84/2000 |
"ADG Code", unless the context otherwise
requires.'.
═══════════════
Transport Accident (Amendment) Act 2000
Act No. 84/2000 Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 5 October 2000
Legislative Council: 31 October 2000
The long title for the Bill for this Act was "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 DangerousGoods Act 1985 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 5 October 2000
Legislative Council: 31 October 2000
Absolute majorities:
Legislative Assembly: 26 October 2000, 22 November 2000
Legislative Council: 21 November 2000
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