Untitled document

Compensation and Superannuation Legislation Amendment Act 2008

No. 65 of 2008

table of provisions

Section  Page

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Transport Accident Act 1986

3Amendment of section 46A—Degree of impairment

4Amendment of section 47—Impairment benefit

5Amendment of section 93—Actions for damages

6Indemnity by third party

7New Division 5 of Part 11 inserted

Division 5—Compensation and Superannuation
Legislation Amendment Act 2008

196Sections 46A (Degree of impairment) and 47 (Impairment benefit)

197Section 93 (Actions for damages)

198Section 104 (Indemnity by third party)

Part 3—Accident Compensation Act 1985

8Indemnity by third party

9New Division 10 of Part IX inserted

Division 10—Compensation and Superannuation
Legislation Amendment Act 2008

299Section 138 (Indemnity by third party)

10Repeal of sunset provision

Part 4—Emergency Services Superannuation Act 1986

11Amendment of section 20M—Optional contributions during leave of absence

Part 5—Repeal of Amending Act

12Repeal of amending Act

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Endnotes

Compensation and Superannuation Legislation Amendment Act 2008

No. 65 of 2008

[Assented to 18 November 2008]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purpose

The purpose of this Act is to—

(a)amend the Transport Accident Act 1986 to—

(i)clarify that a determination of the degree of impairment of a person injured as a result of a transport accident is only to be made if a claim for compensation has been made within the period of time provided by the Act and accepted by the Transport Accident Commission;

(ii)clarify that only a natural person can bring proceedings in accordance with section 93;

(iii)exclude Parts VB, VBA and X of the Wrongs Act 1958 from the calculation of the amount which a third party is required to pay as an indemnity under section 104;

(b)amend the Accident Compensation Act 1985 to exclude Parts VB, VBA and X of the Wrongs Act 1958 from the calculation of the amount which a third party is required to pay as an indemnity under section 138 of the Accident Compensation Act 1985;

(c)repeal section 9 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 so that the provisions of the Accident Compensation Act 1985 giving workers with certain injuries who have a whole person impairment of less than 10 percent access to compensation for non-economic loss continue in operation and do not sunset on 3 December 2009;

(d)amend section 20M of the Emergency Services Superannuation Act 1986 to give the Emergency Services Superannuation Board the power to determine and approve arrangements for the payment of contributions by contributors during a period of leave of absence.

2Commencement

(1)Subject to subsections (2) and (3), this Act comes into operation on the day after the day on which it receives the Royal Assent.

(2)Sections 3 and 4 are deemed to have come into operation on 11 September 2008.

(3)Section 10 comes into operation on 2 December 2008.

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Part 2—Transport Accident Act 1986

3Amendment of section 46A—Degree of impairment

In section 46A(1A) of the Transport Accident Act 1986 after "a transport accident" insert "who has made a claim for compensation in their own right within the period of time provided by this Act that has been accepted by the Commission".

4Amendment of section 47—Impairment benefit

In section 47(7)(a) of the Transport Accident Act 1986 before "is" insert "has made a claim for compensation in their own right within the period of time provided by this Act that has been accepted by the Commission and".

5Amendment of section 93—Actions for damages

After section 93(1) of the Transport Accident Act 1986 insert—

"(1A)For the avoidance of doubt, it is hereby declared that the effect of subsection (1) is that any person, whether or not a natural person, cannot recover any damages in any proceedings to which that subsection applies unless the person is a natural person in which case the natural person can only bring proceedings in accordance with this section to recover damages in respect of the injury sustained by him or her or the death of a person specified in subsection (1).".

6Indemnity by third party

In section 104(2) of the Transport Accident Act 1986 after "Act" insert "and Parts VB, VBA and X of the Wrongs Act 1958".

7New Division 5 of Part 11 inserted

After Division 4 of Part 11 of the Transport Accident Act 1986 insert—

"Division 5—Compensation and Superannuation Legislation Amendment Act 2008

196Sections 46A (Degree of impairment) and 47 (Impairment benefit)

(1)Subject to subsections (2) and (3), section 46A, as amended by section 3 of the Compensation and Superannuation Legislation Amendment Act 2008, and section 47, as amended by section 4 of the Compensation and Superannuation Legislation Amendment Act 2008, apply in respect of any determination of the degree of impairment of a person injured as a result of a transport accident irrespective of when the injury occurred.

(2)Despite subsection (1), sections 46A and 47, as in force before the commencement of sections 3 and 4 of the Compensation and Superannuation Legislation Amendment Act 2008, continue to apply in respect of any determination of the degree of impairment of a person injured as a result of a transport accident in respect of which an application for a determination of the degree of impairment has been made before that commencement.

(3)Despite subsection (1), the amendment of section 46A by section 3 of the Compensation and Superannuation Legislation Amendment Act 2008 and section 47 by section 4 of the Compensation and Superannuation Legislation Amendment Act 2008 does not affect the rights of the parties in the proceedings known as Byrne v Transport Accident Commission [2008] VSC 92.

197Section 93 (Actions for damages)

(1)Subject to subsections (2) and (3), section 93, as amended by section 5 of the Compensation and Superannuation Legislation Amendment Act 2008, applies in respect of any proceedings to which section 93 applies irrespective of when the injury or death occurred.

(2)Despite subsection (1), section 93, as in force before the commencement of section 5 of the Compensation and Superannuation Legislation Amendment Act 2008, continues to apply in respect of any proceedings lodged before that commencement.

(3)Despite subsection (1), the amendment of section 93 by section 5 of the Compensation and Superannuation Legislation Amendment Act 2008 does not affect the rights of the parties in the proceedings known as Martino Developments Pty Ltd (ACN 005 477 690) v John Doughty (No. 6941 of 2006) in the Supreme Court of Victoria (Common Law Division).

198Section 104 (Indemnity by third party)

Section 104, as amended by section 6 of the Compensation and Superannuation Legislation Amendment Act 2008, applies in respect of any right of indemnity, regardless of when that right came into existence, unless before the commencement of that section—

(a)the amount of the indemnity has been determined; or

(b)judgment for damages has been given or entered; or

(c)there has been a settlement or compromise of the claim in respect of which the right of indemnity arose.".

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Part 3—Accident Compensation Act 1985

8Indemnity by third party

(1)In sections 138(1) and 138(2) of the Accident Compensation Act 1985 for "legal liability in a third party to pay damages" substitute "liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria".

(2)In section 138(3)(b) of the Accident Compensation Act 1985—

(a)after "amount calculated" insert ", were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958,";

(b)after "injury or death" omit "were it not for the provisions of this Act and the Transport Accident Act 1986".

9New Division 10 of Part IX inserted

After Division 9 of Part IX of the Accident Compensation Act 1985 insert—

"Division 10—Compensation and Superannuation Legislation Amendment Act 2008

299Section 138 (Indemnity by third party)

Section 138, as amended by section 8 of the Compensation and Superannuation Legislation Amendment Act 2008, applies in respect of any right of indemnity, regardless of when that right came into existence, unless before the commencement of that section—

(a)the amount of the indemnity has been determined; or

(b)judgment for damages has been given or entered; or

(c)there has been a settlement or compromise of the claim in respect of which the right of indemnity arose.".

10Repeal of sunset provision

Section 9 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 is repealed.

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Part 4—Emergency Services Superannuation Act 1986

11Amendment of section 20M—Optional contributions during leave of absence

(1)In section 20M(a) of the Emergency Services Superannuation Act 1986 before "may elect" insert "subject to subsection (2),"

(2)At the end of section 20M of the Emergency Services Superannuation Act 1986 insert—

"(2)For the purposes of subsection (1), the Board may determine that a class or category of contributor may apply in a form approved by the Board to pay contributions under subsection (1)(a) for a specified period which is, or specified periods which are, less than the period of the leave.

(3)The Board may approve an application under subsection (2) subject to any terms and conditions which the Board considers appropriate.".

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Part 5—Repeal of Amending Act

12Repeal of amending Act

This Act is repealed on 2 December 2009.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Minister's second reading speech—

Legislative Assembly: 12 September 2008

Legislative Council: 30 October 2008

The long title for the Bill for this Act was "A Bill for an Act to amend the Transport Accident Act 1986, the Accident Compensation Act 1985 and the Emergency Services Superannuation Act 1986 and for other purposes."