Untitled document
Transport Accident (Amendment) Act 2004
Act No. 94/2004
table of provisions
Section Page
1.Purpose
2.Commencement
3.Definitions
4.Vocational rehabilitation service
5.Pre-accident weekly earnings
6.Insertion of section 4A
4A.Pre-accident weekly earnings—apprentices, trainees etc.
7.Additional ground for payments out of the Transport Accident Fund
8.Insertion of sections 45AA and 45AB
45AA.Interim payments to self-employed person
45AB.Interim payments to be reconciled with actual entitlements
9.Insertion of section 45AC
45AC.Seasonal earners may opt to receive loss of earnings payments on seasonal basis
10.Degree of impairment
11.Payment of impairment benefits
12.Interim payments of lump sum impairment benefits
13.Substitution of section 48
48. Impairment benefit where more than one accident involved
14.Preservation of certain earnings while participating in supported employment program
15.Changes to childcare and home services benefits
16.Widening of categories of family counsellors
17.Travel to work benefit
18.Modifications to vehicles
19.Modifications to homes
20.Modification agreements
21.Accommodation etc. costs to be paid while person in respite care
22.Agreements concerning expensive medical equipment
23.Insertion of section 60A
60A.Post hospital support payments
24.Consequential amendment concerning post hospital support payments
25.Insertion of section 60B
60B.Travel allowance payment agreements
26.Insertion of sections 61A—61D
61A.Individual funding agreements
61B.Contents of individual funding agreements
61C.Other provisions concerning individual funding agreements
61D.Agreements where person has a legal disability
27.Consequential amendments concerning individual funding agreements
28.Indexation of medical excess amount may be temporarily suspended
29.Tribunal may hear individual funding agreement disputes
30.Clarification that period of grace applies to indemnity
31.Indemnity by third party
32.Insertion of section 121
121.Agreements with road accident rescue service providers
33.Certified copies of documents to be evidence
34.Secrecy provisions—authorised disclosures
35.Insertion of section 131A
131A.Commission may refer misconduct etc. to appropriate body and suspend payment
36.Insertion of Division 3 into Part 11
Division 3—Transport Accident (Amendment) Act 2004
183.Definitions
184.Changes that apply to all claims
185.Sections 4 and 4A (Pre-accident weekly earnings)
186.Sections 45AA and 45AB (Interim payments to self-employed person)
187.Section 45AC (Loss of earnings payments to seasonal earners)
188.Section 46A (Degree of impairment)
189.Section 47 (Impairment benefits)
190.Section 47(3A) (Interim payment of lump sum impairment benefits)
191.Section 48—Savings provisions concerning impairment benefits paid as an annuity
192.Sections 60(2)(c) and 60(2)(d)(Childcare and home etc. services)
37.Minor amendment
38.Amendment to the Accident Compensation Act 1985
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Endnotes
Transport Accident (Amendment) Act 2004
[Assented to 7 December 2004]
The Parliament of Victoria enacts as follows:
1.Purpose
(1)The main purpose of this Act is to amend the Transport Accident Act 1986—
(a)to enable the Transport Accident Commission to enter into individual funding agreements with people who suffer severe injuries in transport accidents; and
(b)to change the way pre-accident weekly earnings are calculated for compensation purposes; and
(c)to increase the benefits paid under that Act; and
(d)to otherwise improve the operation of that Act.
(2)This Act also makes a minor amendment to the Accident Compensation Act 1985.
2.Commencement
(1)This Act, other than sections 5, 6, 8 to 15, 17, 23 and 24, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Sections 5, 6, 8 to 15, 17, 23 and 24 come into operation on a day or days to be proclaimed.
(3)If a provision referred to in sub-section (2) does not come into operation before 1 July 2005, it comes into operation on that day.
3.Definitions
(1)In section 3(1) of the Transport Accident Act 1986—
(a)in the definition of "disability service", after "other than a rehabilitation service" insert "or a hospital service";
(b)in the definition of "rehabilitation service", after "other service" insert "(other than a disability service or a hospital service)";
(c)in the definition of "medical service", after paragraph (b) insert—
"(ba)the provision of acupuncture by a person registered as an acupuncturist under the Chinese Medicine Registration Act 2000; and".
(2)In section 3(1) of the Transport Accident Act1986, insert the following definition—
' "severe injury", except in Part 6, means—
(a)a significant acquired brain injury, paraplegia, quadriplegia, amputation of a limb, or burns to more than 50% of the body; or
(b)any other injury specified by the regulations for the purposes of this definition;'.
(3)In section 60(2B) of the Transport Accident Act 1986—
(a)in the definition of "parent", for "child;" substitute "child.";
(b)omit the definition of "severe injury".
4.Vocational rehabilitation service
(1)In section 3(1) of the Transport Accident Act 1986, insert the following definition—
' "vocational rehabilitation service" means any of the following services provided by a person who is approved by the Commission as a provider of a vocational rehabilitation service—
(a)initial rehabilitation assessment;
(b)functional assessment;
(c)workplace assessment;
(d)job analysis;
(e)advice concerning job modification;
(f)vocational rehabilitation counselling;
(g)vocational assessment;
(h)advice or assistance concerning job-seeking;
(i)vocational re-education;
(j)advice or assistance in arranging vocational re-education;
(k)preparation of a return to work plan;
(l)the provision of aids, appliances, apparatus or other material likely to facilitate the return to work of a person after an injury;
(m)modification to a work station or equipment used by a person that is likely to facilitate the return to work of the person after an injury;
(n)any other service authorised by the Commission—
but does not include a disability service, a hospital service or a rehabilitation service;'.
(2)In section 3(1) of the Transport Accident Act 1986, in the definition of "transportation costs", after paragraph (b) insert—
"or
(c)a vocational rehabilitation service;".
(3)After section 23(1)(b) of the Transport Accident Act 1986 insert—
"; or
(c)a person as a provider of vocational rehabilitation services.".
(4)In section 74(2)(b) of the Transport Accident Act 1986, after "offer of rehabilitation" insert
"or of vocational rehabilitation services".
5.Pre-accident weekly earnings
(1)For sections 4(1) to 4(5) of the Transport Accident Act 1986 substitute—
'(1)In this Act, "pre-accident weekly earnings", in relation to an earner (other than a self-employed person) who is injured as a result of a transport accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the relevant day, unless sub-section (2) applies.
(1A)In this section "relevant day" means the day of the accident or the day when the injury first manifested itself, whichever is the later day.
(2)In the following cases, in this Act "pre‑accident weekly earnings", in relation to an earner (other than a self-employed person) who is injured as a result of a transport accident, means—
(a)if, on the relevant day, the earner was earning continuously, but had not been earning continuously for at least 12 months, the weekly average of the gross earnings received by the earner as an earner during the period from when the earner started to earn continuously to immediately before the relevant day; or
(b)if sub-section (3) applies, the weekly average of the gross earnings received by the earner as an earner during the period from when the change of circumstance referred to in that sub-section occurred to immediately before the relevant day; or
(c)if the earner is an earner by reason of an arrangement to which section 3(2)(b) applies, the average weekly gross earnings that the earner could reasonably have been expected to earn, but for the injury, in employment under that arrangement.
Note:This section, as amended by section 5 of the Transport Accident (Amendment) Act 2004, only applies to an earner who was injured in a transport accident that occurs on or after the date of commencement of section 5—see section 185. Section 5 inserted sub-sections (1), (1A), (2), (2A) and (3).
(2A)For the purposes of this section, an earner earns continuously if he or she obtains earnings from permanent employment or from a source that, on the relevant day, was likely to continue for a period of at least 6 months to provide earnings to the earner on the same, or a similar, basis to the basis on which the earnings were being provided as at the relevant day.
(3)This sub-section applies, if during the 12 months immediately before the relevant day, there was, as a result of any action taken by the earner, a significant change in his or her earnings circumstances that resulted in the earner regularly earning, or becoming entitled to earn, more on a weekly basis than he or she was earning before the change occurred.
Examples
Examples of a change of circumstances to which this sub-section would apply include a change of job, a promotion, a move from part-time to full-time employment, or a pay increase arising from the achievement of performance standards. This sub-section does not apply to a pay rise applying across an industry.'.
(2)In section 45(6) of the Transport Accident Act 1986, in the definition of "current weekly earnings" omit the phrase starting "calculated at" and ending "during the week".
(3)For section 61(5) of the Transport Accident Act 1986 substitute—
"(5)An increase in the amount of a weekly payment under section 44 or 45 by reason of this section takes effect even if it increases the amount of the weekly payment to more than 100% of pre-accident weekly earnings, but does not take effect to the extent (if any) to which it increases the amount of the weekly payments to more than 100% of the current weekly earnings to which the earner would be entitled if he or she were employed in the same position or positions (if it or they can be identified) as he or she was employed in immediately before the accident, or the time when the injury first manifested itself.
Note:Sub-section (5), as substituted by section 5 of the Transport Accident (Amendment) Act 2004, only applies to an earner who was injured in a transport accident that occurs on or after the date of commencement of section 5—see section 185.".
6.Insertion of section 4A
After section 4 of the Transport Accident Act 1986 insert—
"4A.Pre-accident weekly earnings—apprentices, trainees etc.
(1)This section applies if, at the time an earner was injured in a transport accident, he or she was—
(a)under the age of 21 years; or
(b)an apprentice; or
(c)employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related—
and, under the terms of his or her employment, he or she was entitled to increments in earnings as the employment continued.
(2)Despite section 4, in respect of any week after the accident in which the earner is entitled to a payment under this Act the calculation of which depends on the amount of the earner's pre-accident weekly earnings, the payment is to be calculated on the basis that the earner's pre-accident weekly earnings are the weekly earnings that it is likely that he or she would have been entitled to in that week had the accident not occurred and had he or she continued in the employment.
Note:This section only applies to an earner who was injured in a transport accident that occurs on or after the date of commencement of section 6 of the Transport Accident (Amendment) Act 2004—see section 185.".
7.Additional ground for payments out of the Transport Accident Fund
After section 27(3)(i) of the Transport Accident Act 1986 insert—
"(j)any payments required to fulfil any agreement made by the Commission in respect of the payment of the legal costs of a person who has applied for compensation or damages that is not otherwise authorised under this sub-section.".
8.Insertion of sections 45AA and 45AB
After section 45 of the Transport Accident Act 1986 insert—
"45AA.Interim payments to self-employed person
(1)This section only applies to an earner who was a self-employed person at the time he or she was injured in a transport accident.
(2)If the person suffers a total loss of earnings that is a result of, or that is materially contributed to by, the injury, the Commission is liable to pay the person 75% of the amount specified for the purposes of section 44(3)(a) until the day on which the first of these events occurs—
(a)the person's period of entitlement (as defined by section 44(4)) ends; or
(b)the expiry of the first 12 weeks of that period of entitlement; or
(c)the Commission determines the amount of the person's pre-accident weekly earnings.
Note:This section only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 8 of the Transport Accident (Amendment) Act 2004—see section 186.
45AB.Interim payments to be reconciled with actual entitlements
(1)This section applies if the Commission makes a payment to a person under section 45AA.
(2)Once the Commission determines the amount of the person's pre-accident weekly earnings, the Commission must then determine the difference between—
(a)the amount that the person has been paid under section 45AA; and
(b)the amount that the person would have been paid under section 44 or 45, during the period in respect of which payments under section 45AA were made, had the amount of the person's pre-accident weekly earnings been determined on the day of the accident.
(3)If the person was paid less than he or she was entitled to under section 44 or 45 for the relevant period, the Commission must pay the amount of the difference to the person as soon as is practicable after determining the amount.
(4)If the person was paid more than he or she was entitled to under section 44 or 45 for the relevant period, the Commission may recover the amount of the difference by way of offset from any future payments it is required to make to the person under that section.".
9.Insertion of section 45AC
Before section 45A of the Transport Accident Act 1986 insert—
'45AC.Seasonal earners may opt to receive loss of earnings payments on seasonal basis
(1)This section applies if a seasonal earner is injured in a transport accident and suffers a loss of earnings as a result of the injury.
(2)For the purposes of this section—
(a)a "seasonal earner" is a person who engages in one or more seasonal activities;
(b)"seasonal activities" are activities that occur on an annual basis but that only provide employment for most of the people engaged in them for less than 6 months in any 12 month period.
Example
Fruit-picking, skiing instruction, acting in a television series that is only in production for 5 months each year, acting in school holiday plays, operating a whale-watching boat, making Christmas puddings.
(3)For the purposes of sections 44 and 45, a seasonal earner may elect to be compensated under those sections during the period of entitlement on a week to week basis as if a reference in those sections to the earner's pre-accident weekly earnings was a reference in a particular week to the earnings the earner could reasonably have expected to earn in that week had the injury not occurred.
Note:This sub-section enables a seasonal earner to elect to receive weekly loss of earnings payments on the same pattern that he or she was accustomed to before the injury, that is, for instance, higher payments in weeks in which he or she would normally have been working full time and no, or lower, payments in weeks when he or she would normally have been unemployed or working part time. If no election is made the earner will receive the same amount each week based on a weekly average of his or her earnings in the last 12 months (unless another provision of section 44 or 45 applies).
(4)An election under sub-section (3)—
(a)must be made in writing and be given to the Commission within 14 days after the earner becomes entitled to receive any payment under section 44 or 45; and
(b)has effect for the remainder of the period of entitlement that applies in respect of the injury; and
(c)cannot be revoked once any payment under section 44 or 45 is made to the earner in accordance with the election.
(5)Despite sub-section (4)(a), the Commission may waive the 14 day period referred to in that sub-section if, in the opinion of the Commission, it is appropriate to do so in particular circumstances.
Note:This section only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 9 of the Transport Accident (Amendment) Act 2004—see section 187.'.
10.Degree of impairment
(1)For sections 46A(1)(a) and 46A(1)(b) of the Transport Accident Act 1986 substitute—
"(a)if the person was not a minor when the accident occurred—
(i)when the injury stabilises; or
(ii)3 years after the accident, or 3 years after any injury first manifests itself (as the case may be)—
whichever occurs first; or
(b)if the person was a minor when the accident occurred or when the injury first manifested itself—
(i)when the person attains the age of 18 years, if the injury has stabilised by that time; or
(ii)in any other case—
(A)when the injury stabilises; or
(B)when the person attains the age of 21 years—
whichever occurs first.".
(2)After section 46A(1) of the Transport Accident Act 1986 insert—
"(1AA)Despite sub-section (1), the Commission must not determine the degree of impairment within 3 months after the accident.
(1AB)If a person applies to the Commission for a determination of his or her degree of impairment as a result of a transport accident more than 2 years after the day of the accident, or the day when any injury first manifested itself, whichever is the later day, the Commission must, if it is of the opinion that the person is, or is likely to be, entitled to an impairment benefit, determine the person's degree of impairment—
(a)if the injury had stabilised by the date that the application was made, within 12 months after that date; or
(b)in any other case, within—
(i)12 months after the injury stabilises; or
(ii)2 years after the date the application was made—
whichever occurs first.
(1AC)If the Commission is of the opinion that a person who applied to the Commission in the circumstances described in sub-section (1AB) is, or is likely to be, entitled to an impairment benefit, but the person's injury has not stabilised within 12 months after the application was made, the person may ask the Commission to wait until the injury has stabilised before determining his or her degree of impairment.
(1AD)Despite sub-section (1AB)(b), the Commission must comply with any request under sub-section (1AC) that is made in writing.".
(3)In section 46A(1A) of the Transport Accident Act 1986 omit "as at 18 months after a transport accident".
(4)After section 46A(1B) of the Transport Accident Act 1986 insert—
"(1C)If an injury of a person who was not a minor when the accident occurred has not stabilised 3 years after the accident, or 3 years after any injury first manifests itself (as the case may be), the person may ask the Commission—
(a)to determine his or her degree of impairment; or
(b)to wait until the injury has stabilised before determining his or her degree of impairment.
(1D)The Commission must comply with any request under sub-section (1C) that is made in writing and, in the case of a request made under sub-section (1C)(a), must do so within 12 months after receiving the request.
(1E)If a person who is eligible to make a request under sub-section (1C) does not make such a request within 90 days after the date he or she becomes eligible to make the request, the Commission must determine the degree of impairment of the person within 12 months after that date.".
(5)After section 46A(7) of the Transport Accident Act 1986 insert—
"(8)If the Commission is required to assess the degree of impairment of a person whose injury has not stabilised, for the purposes of that assessment—
(a)unless the contrary intention appears in this section, the degree of impairment to be assessed is the degree of current impairment as at the date of the determination of the assessment; and
(b)any reference to permanent impairment in the A.M.A. Guides is to be read as a reference to current impairment.
Note:This section, as amended by section 10 of the Transport Accident (Amendment) Act 2004 (which amended sub‑sections (1) and (1A) and inserted sub-sections
(1AA)–(1AD), (1C)–(1E) and (8)) applies with respect to all transport accidents that occurred on or after the day that is 18 months before the date of commencement of section 10—see section 188.".
(6)After section 71(1) of the Transport Accident Act 1986 insert—
"(1A)Sub-section (1) also applies to a person if the Commission is required to make a determination of the person's degree of impairment as a result of a transport accident.
Note:Sub-section (1A) applies with respect to all transport accidents that occurred on or after the day that is 18 months before the date of commencement of section 10 of the Transport Accident (Amendment) Act 2004—see section 188.".
11.Payment of impairment benefits
(1)In section 47 of the Transport Accident Act 1986 insert the following heading—
"Impairment benefit".
(2)At the foot of section 47(1) of the Transport Accident Act 1986 insert—
"Note:This section, as amended by section 11 of the Transport Accident (Amendment) Act 2004 (which substituted sub-section (2) and amended sub-section (6)), only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 11—see section 189.".
(3)For section 47(2) of the Transport Accident Act 1986 substitute—
'(2)The impairment benefit is the amount shown, or the amount calculated in accordance with the formula, in column 2 of the following table that is opposite the person's degree of impairment—
Degree of impairment
Impairment benefit10% or less 0 11% – 19% $4 500 + ((D – 10) ´ $1000) 20% – 49% $15 000 + ((D – 20) ´ $1500) 50% – 59% $60 250 + ((D – 50) ´ $1750) 60% – 79% $78 000 + ((D – 60) ´ $2000) 80% – 89% $120 000 + ((D – 80) ´ $4000) 90% – 99% $164 000 + ((D – 90) ´ $8000) 100% $252 000 where "D" is the person's degree of impairment expressed as a number.
(2A)If a degree of impairment of 11% or more is the result of more than one transport accident, section 48 applies.'.
(4)Sections 47(6)(a) and 55(1) of the Transport Accident Act 1986 are repealed.
(5)In the Transport Accident Act 1986—
(a)in sections 40(2) and 40(3) omit "48,";
(b)in section 53(3), omit "48," (wherever occurring);
(c)in section 56(1)—
(i)for "sum of the impairment annuity under section 48 and" substitute "amount of";
(ii)for "that annuity and" substitute "those";
(d)in section 56(2) omit "an annuity under section 48 or";
(e)in section 61(2) omit "or 48(1)";
(f)in section 93(11)(b)(i) omit ", 48".
12.Interim payments of lump sum impairment benefits
(1)For section 47(3A) of the Transport Accident Act 1986 substitute—
"(3A)The Commission may pay an interim benefit under this section at any time to a person who is injured as a result of a transport accident if it is satisfied—
(a)that, given the nature of the person's injuries, the person's permanent impairment is likely to be at least 30%; or
(b)that the person's injuries are substantially stable.
Note:Sub-section (3A) applies with respect to all transport accidents that occurred on or after the day that is 18 months before the date of commencement of section 12 of the Transport Accident (Amendment) Act 2004—see section 190.".
(2)After section 77(1) of the Transport Accident Act 1986 insert—
"(2)Sub-section (1) does not apply with respect to a decision of the Commission concerning the payment or non-payment of an interim benefit under section 47(3A).".
13.Substitution of section 48
For section 48 of the Transport Accident Act 1986 substitute—
'48.Impairment benefit where more than one accident involved
(1)In this section, the "relevant date" is the date of commencement of section 13 of the Transport Accident (Amendment) Act 2004.
(2)This section applies if—
(a)a person is injured as a result of one or more transport accidents; and
(b)the person has a total degree of impairment of 11% or more as a result of that accident, or those accidents; and
(c)the person is injured in a subsequent transport accident, and the person's total degree of impairment is increased by 1% or more as a result of that subsequent accident.
(3)This section also applies if—
(a)a person is injured as a result of one or more transport accidents; and
(b)the person has a total degree of impairment of 1% or more, but less than 11%, as a result of that accident, or those accidents; and
(c)the person is injured in a subsequent transport accident, and the person's total degree of impairment as a result of the transport accidents is increased to 11% or more; and
(d)the person has not previously become entitled to a benefit under this section.
(4)The person is entitled to an impairment benefit under section 47(2), as at the date of determination of the last relevant degree of impairment, as if the total degree of impairment attributable to the initial accident, or accidents, and the subsequent accident resulted from a single accident.
(5)If the person has already been paid an impairment benefit under sub-section (4) in respect of an earlier accident, or earlier accidents, the person is entitled to be paid the difference between the amount the person is entitled to in accordance with sub-section (4) for his or her current total degree of impairment and the amount that he or she has already been paid as an impairment benefit.
(6)Sub-section (4) does not apply in respect of any accident that occurred before the relevant date (except accidents that did not result in a person having a total degree of impairment of 11% or more).
(7)Sub-section (8) applies if—
(a)a person has a total degree of impairment of 11% or more as a result of one or more transport accidents that occurred before the relevant date; and
(b)the person is injured in a transport accident that occurs on or after the relevant date, and the person's total degree of impairment as a result of that subsequent accident is increased by 1% or more.
(8)If this sub-section applies, the person is entitled to an amount that is the result of the following calculation—
T – N
where—
"T"is the amount that would be payable as an impairment benefit under section 47(2), as at the date of determination of the last relevant degree of impairment, as if the person's total degree of impairment attributable to transport accidents resulted from a single accident;
"N"is the notional amount that the person would have been entitled to as an impairment benefit under section 47(2) on the relevant date in respect of the total degree of impairment resulting from transport accidents in respect of which he or she received, or was entitled to receive, an impairment benefit under this Act before that date.
(9)If the person has already been paid an impairment benefit under sub-section (8) in respect of an earlier accident, or earlier accidents, the person is entitled to be paid the difference between the amount the person is entitled to in accordance with sub-section (8) for his or her current total degree of impairment and the amount that he or she has already been paid under that sub-section.
(10)A reference in this section to "under this section" is a reference to this section as inserted by section 13 of the Transport Accident (Amendment) Act 2004.
(11)This section is to be read as if it were part of section 47, unless the contrary intention appears.'.
14.Preservation of certain earnings while participating in supported employment program
(1)In section 3(1) of the Transport Accident Act 1986 insert the following definition—
' "supported employment program" means a program designed to promote and enhance the independence of a person with a severe injury by assisting the person's return to paid employment where the person needs ongoing support to obtain, or to perform and retain, that employment;'.
(2)After section 49(8) of the Transport Accident Act 1986 insert—
"(9)An earner's entitlements under this section are not affected by the earner starting or continuing paid employment if—
(a)he or she has a severe injury as a result of a transport accident; and
(b)he or she is participating in a supported employment program in respect of that employment; and
(c)he or she receives $120 per week or less as earnings from that employment.".
(3)After section 50(6) of the Transport Accident Act 1986 insert—
"(7)Despite sub-section (5), in the case of an earner who is participating in a supported employment program in respect of any employment and who receives more than $120 per week as earnings from that employment, this section applies as if the earner's post-accident earning capacity was the amount of the earner's earnings less $120.".
(4)In section 61(2) of the Transport Accident Act 1986, after "$5000," insert "$120,".
15.Changes to childcare and home services benefits
(1)For sections 60(2)(c) and 60(2)(d) of the Transport Accident Act 1986 substitute—
'(c)if the person, in the 30 days before the transport accident, was engaged in the care of a child and did not receive salary or wages in respect of 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 care of the child, but payment is not to be made in respect of more than—
(i)if, at the time of the accident, the person was in full-time paid employment for 35 hours or more per week, a total of 10 hours per week of child care services;
(ii)if, at the time of the accident, the person was in paid employment for less than 35 hours per week, a total of x hours per week of child care services where "x" is—
(A)if the result of the following calculation is less than 40—
10 + (35 – the number of hours per week of paid employment)—
that number; or
(B)in any other case, 40;
(iii) in any other case a total of 40 hours per week of child care services; and
(d)the reasonable costs incurred after the transport accident in employing an authorised person to provide in Australia home services and post acute support during the first 5 years after the death or injury, but payment is not to be made in respect of more than a total of 40 hours per week of such services or support.
Note:Paragraphs (c) and (d) only apply to a person who was injured in a transport accident that occurred on or after the date of commencement of section 15 of the Transport Accident (Amendment) Act 2004—see section 192.'.
(2)After section 60(2) of the Transport Accident Act 1986 insert—
"(2AA)If a person is entitled to payments under both sub-sections (2)(c) and (2)(d), the payments are not to be made for more than a combined total of 40 hours per week of the services or support referred to in those sub-sections.
(2AB)For the purposes of sub-section (2)(c), a woman who was pregnant at the time she was injured as a result of a transport accident is deemed to have been engaged in the care of a child in the 30 days before the transport accident.
(2AC)With respect to sub-section (2)(d)—
(a)the 5 year limit does not apply to a person who has a severe injury; and
(b)in determining the reasonable cost of home services, the Commission may have regard to the capacity of other members of the person's household to carry out such services.".
(3)In section 3(1) of the Transport Accident Act 1986 insert the following definition—
' "post acute support" means the provision of assistance to, or for, a person who requires support in personal care, mobility, transfers, banking or shopping after being discharged from a hospital;'.
16.Widening of categories of family counsellors
(1)In section 60(2A) of the Transport Accident Act 1986, for "or registered psychologist" substitute ", a registered psychologist or a person who is authorised under section 23 to provide a service for the purposes of this sub-section".
(2)In section 23(1)(b) of the Transport Accident Act 1986, for "or 60(2)(d)" substitute ", 60(2)(d) or 60(2A)".
17.Travel to work benefit
(1)After section 60(2B) of the Transport Accident Act 1986 insert—
"(2BA)The Commission is liable to pay as compensation to an earner who is injured as a result of a transport accident the reasonable costs of travelling to and from work for up to 12 weeks after first returning to work after the accident if the earner is unable, because of the injuries received as a result of the accident, to undertake that travel in the way that he or she usually did before the accident, but the total payment made under this sub-section to the earner as a result of the accident is not to exceed $1000.".
(2)In section 61(2) of the Transport Accident Act 1986, for "or $1660" substitute ", $1660 or $1000".
18.Modifications to vehicles
For section 60(3) of the Transport Accident Act 1986 substitute—
"(3)If a person, as a result of his or her transport accident injury, reasonably requires a motor vehicle used by him or her in Australia to be modified, the Commission is liable—
(a)to pay the reasonable costs of modifying the vehicle; or
(b)if the vehicle is not capable of being modified, to contribute a reasonable amount to the purchase cost of a suitably modified motor vehicle selected by the Commission.
(3A)If a person, as a result of his or her transport accident injury, reasonably requires access to a motor vehicle, and he or she does not have access to a motor vehicle, the Commission is liable to contribute a reasonable amount to the purchase cost of a suitable motor vehicle selected by the Commission.
(3B)Without limiting the factors the Commission may consider in determining what is a reasonable amount for the purposes of sub-sections (3)(b) and (3A), the Commission must have regard to any of the following factors that are applicable—
(a)the market value now of the motor vehicle used by the person at the time of the accident;
(b)if that vehicle is no longer used by the person, the market value of the vehicle at the time of the accident;
(c)whether the person or, in the case of a minor, his or her parent or guardian, owned, leased or rented the vehicle;
(d)how often the person was using motor vehicles at the time of the accident;
(e)how often the person will, or is likely to, use a motor vehicle in future;
(f)the market value of any other motor vehicle that the person uses.".
19.Modifications to homes
For section 60(4) of the Transport Accident Act 1986 substitute—
"(4)If a person, as a result of his or her transport accident injury, reasonably requires that a home in which he or she resides in Australia be modified, the Commission is liable—
(a)to pay the reasonable costs of modifying the home; or
(b)if for any reason the home cannot be reasonably modified, to contribute a reasonable amount—
(i)to the purchase costs of a semi detachable portable unit; or
(ii)to the costs of relocating the person to another home that is suitable for the person or that is capable of being reasonably modified.
(4A)Without limiting the factors the Commission may consider in determining the reasonable costs or amount for the purposes of sub-section (4), the Commission must have regard to the following factors—
(a)whether the home in which the person resides is structurally suitable for modification;
(b)the nature of the person's injuries as a result of the accident;
(c)how those injuries restrict, or are likely to restrict, the person's ability—
(i)to enter and leave the home in which the person resides; and
(ii)to move about the home for necessary purposes;
(d)the extent of the modifications that will be needed to address those restrictions or likely restrictions;
(e)any complex, unique or unusual circumstances associated with those modifications;
(f)whether the cost of those modifications is likely to exceed the value of the home in which the person resides.
(4B)If a person moves from a home that has modifications to which the Commission made a contribution, in assessing whether to make a payment in respect of modifications to the person's new home, the Commission must have regard to the appropriateness of that home for modification, having regard to all relevant circumstances, with respect to the modifications that are needed.".
20.Modification agreements
In section 60(6) of the Transport Accident Act 1986, for "An agreement under sub-section (5)" substitute "Without limiting what may be included in an agreement under sub-section (5), the agreement".
21.Accommodation etc. costs to be paid while person in respite care
After section 60(10) of the Transport Accident Act 1986 insert—
"(11)Sub-section (7) also does not apply to a person while the person is receiving respite care as a result of the injury.".
22.Agreements concerning expensive medical equipment
At the end of section 60 of the Transport Accident Act 1986 insert—
'(12)The Commission must not make a payment under sub-section (2) of more than $5000 for any equipment or item of the sort described in paragraph (g), (h) or (i) of the definition of "medical service" in section 3(1) unless the injured person enters into an agreement with the Commission in relation to the equipment or item.
(13)Without limiting what may be included in an agreement under sub-section (12), the agreement must include provisions in respect of—
(a)the ownership, operation and maintenance of the equipment or item; and
(b)changes of ownership of the equipment or item.'.
23.Insertion of section 60A
After section 60 of the Transport Accident Act 1986 insert—
"60A.Post hospital support payments
(1)This section applies if—
(a)for an injury resulting from a transport accident, a person receives hospital services as an inpatient or for day surgery; and
(b)the hospital services were received at least 3 years after the transport accident occurred; and
(c)while in hospital, or while recovering from the treatment he or she received in the hospital, the person—
(i)suffers a loss of wages; or
(ii)needs assistance with child care, home services or post-acute support.
(2)The Commission is liable to pay as compensation to the person—
(a)a contribution for the loss of wages;
(b)a reasonable contribution for the child care, home services or post-acute support required by the person in Australia, but only if those services are provided by a person authorised for the purposes of this section under section 23.
(3)With respect to sub-section (2)(a), the Commission must not make a contribution in respect of a day that exceeds one fifth of the current amount specified in section 44(3)(a).
(4)The Commission is only liable to pay a total of $3500 to a person under this section in respect of the injuries sustained in one transport accident.
(5)With respect to the injuries sustained in one transport accident, the limit in sub-section (4) applies as at the date a hospital service referred to in sub-section (1) is first received in respect of the injuries.".
24.Consequential amendment concerning post hospital support payments
Before section 23(1)(b) of the Transport Accident Act 1986 insert—
"(ab)a person to provide services for the purposes of section 60A; or".
25.Insertion of section 60B
Before section 61 of the Transport Accident Act 1986 insert—
"60B.Travel allowance payment agreements
(1)This section applies if—
(a)a person receives a severe injury as a result of a transport accident; and
(b)the person is entitled to receive compensation for transportation costs or for the costs of ambulance services for the purposes of travelling to or from a medical service; and
(c)the person is not a party to an individual funding agreement that covers some or all of those costs.
(2)The Commission may enter into an agreement with the person under which provision is made for the payment of the compensation to the person by way of allowance.
(3)Without limiting what may be included in an agreement, an agreement may provide for payments—
(a)to be made for periods of time, or classes of cases, rather than on the basis of individual trips; or
(b)to be made in advance, despite anything to the contrary in section 27.
(4)While a person is a party to an agreement under this section, he or she is not entitled to any additional compensation under section 60 in respect of the matters covered by the agreement.".
26.Insertion of sections 61A61D—
After section 61 of the Transport Accident Act 1986 insert—
'61A.Individual funding agreements
(1)This section applies if—
(a)a person has a severe injury as a result of a transport accident; and
(b)the person is entitled to receive compensation under this Act for approved services.
(2)The Commission may enter into an agreement with the person under which provision is made for the payment of the compensation to the person by way of periodic payments that represent a reasonable estimate of the person's likely costs or expenditure in the relevant period in relation to the approved services covered by the agreement.
(3)The purpose of the agreement is to promote the person's autonomy in acquiring approved services.
(4)For the purposes of this section, "approved services" are any of the following services for which the Commission is liable to pay compensation under section 60, and any equivalent services for which the Commission is liable to pay compensation under section 145—
(a)medical services other than—
(i)attendance, examination or treatment of any kind by a medical practitioner or a registered dentist; and
(ii)any medical service described in paragraphs (c) to (h) of the definition of "medical service" in section 3(1);
(b)nursing services, disability services authorised under section 23, child care services, home services and post acute support services;
(c)transportation costs;
(d)ambulance services for the purposes of travelling to or from a medical service to which paragraph (a) applies;
(e)rehabilitation services authorised under section 23, other than the provision of any aid, appliance or apparatus for the purpose of rehabilitation that is more than $200 or any other amount specified by the regulations for the purposes of this paragraph.
61B.Contents of individual funding agreements
(1)Without limiting what may be included in an individual funding agreement, the agreement must—
(a)provide for how long it remains in force;
(b)specify what approved services it covers;
(c)specify how and when payments under the agreement are to be made;
(d)require the reporting of specified information to enable the monitoring of the agreement;
(e)set out any other obligations of the parties under the agreement;
(f)provide for how the agreement may be amended;
(g)provide for how the agreement may be renewed;
(h)provide for how the agreement may be suspended or terminated, and in the case of termination, set out any obligations that are to apply to the parties as a result of the termination;
(i)specify that it is governed by the law of Victoria;
(j)provide for the recovery of—
(i)overpayments made under the agreement; and
(ii)payments made under the agreement that were not applied in accordance with the agreement;
(k)set out a dispute resolution mechanism;
(l)provide for any other matter that is required for the purposes of this sub-section by the Governor in Council by order published in the Government Gazette.
(2)Without limiting what may be included in an individual funding agreement, an agreement may provide for payments to be made in advance, despite anything to the contrary in section 27.
61C.Other provisions concerning individual funding agreements
(1)While a person is a party to an individual funding agreement, he or she is not entitled to any compensation under section 60 or 145 (as the case may be) in respect of the approved services covered by the agreement other than the compensation provided under the agreement.
(2)Sub-section (1) applies even if amendments to section 60 or 145 in respect of the approved services take effect while the agreement is in force and the effect of those amendments is to increase the compensation payable with respect to those services.
(3)An individual funding agreement does not have to cover all the approved services to which the person is entitled to compensation under this Act.
(4)The Commission must not make a payment under an individual funding agreement in respect of an approved service covered by the agreement—
(a)that is more, in the opinion of the Commission, than the reasonable cost of that service; or
(b)that is in respect of a period of more than 60 days.
(5)The termination of an individual funding agreement does not affect any entitlement of the person who was a party to the agreement to compensation under this Act for an approved service in respect of any period that is after the date the agreement ended.
61D.Agreements where person has a legal disability
(1)This section applies if—
(a)the Commission is authorised to enter into an agreement with a person under this Act; and
(b)the injured person is under a legal disability that prevents the person from entering into agreements on his or her own behalf; and
(c)the agreement is signed by a person who is authorised by law to enter into the agreement on behalf of the injured person.
Examples
Examples of authorised people may include a person who has been appointed to be the injured person's guardian; a person who has been appointed as the attorney of the injured person under a general or enduring power of attorney; in the case of a minor, the injured person's parent.
(2)A reference in this Act to the injured person includes a reference to the person who signed the agreement if the context requires or permits.
(3)The Commission may include in the agreement provisions dealing with what is to happen if the person who signed the agreement ceases to be the injured person's representative.
(4)The Commission may enter into a separate agreement with the injured person's representative imposing obligations on the representative in relation to the agreement with the injured person.'.
27.Consequential amendments concerning individual funding agreements
(1)In section 3(1) of the Transport Accident Act 1986 insert the following definition—
' "individual funding agreement" means an agreement made under section 61A;'.
(2)After section 3(8) of the Transport Accident Act 1986 insert—
"(9)A reference to the payment of compensation to a person by the Commission in this Act includes a reference to any amount paid in advance in respect of compensation by the Commission to the person under an agreement authorised by this Act.".
(3)After section 23(1)(a) of the Transport Accident Act 1986 insert—
"(aa)services to be approved services for the purposes of individual funding agreements; or".
(4)After section 132(1)(c) of the Transport Accident Act 1986 insert—
"(d)individual funding agreements, including the form of those agreements and additional matters and details that are to be included in those agreements;".
28.Indexation of medical excess amount may be temporarily suspended
After section 61(6) of the Transport Accident Act 1986 insert—
"(7)The Governor in Council may, on the recommendation of the Commission, by order published in the Government Gazette, declare that this section does not apply to any amount referred to in section 43(1)(b) in respect of a specified financial year.".
29.Tribunal may hear individual funding agreement disputes
Before section 77(4) of the Transport Accident Act 1986 insert—
"(3)If any dispute arises in relation to an individual funding agreement or a proposed individual funding agreement, a party (or a proposed party) to the agreement may apply to the Tribunal for a resolution of the dispute within 3 months after the dispute arises.".
30.Clarification that period of grace applies to indemnity
After section 94(2A) of the Transport Accident Act 1986 insert—
"(2B)With respect to sub-section (2)(aa), sub-section (1) does apply in respect of any period when the charge was unpaid if the charge was subsequently paid within 28 days after it was due to be paid.".
31.Indemnity by third party
In section 104 of the Transport Accident Act 1986—
(a)in sub-section (1), after "created a legal liability" insert "in Victoria or elsewhere";
(b)in sub-section (3), after "in sub-section (1)" insert ", whether by consent or otherwise and irrespective of whether the Commission has taken over proceedings in accordance with section 107,".
32.Insertion of section 121
After the heading to Part 9 of the Transport Accident Act 1986 insert—
"121.Agreements with road accident rescue service providers
The Commission may enter into an agreement with a person or body who provides one or more road accident rescue services under which provision is made for the Commission to meet its obligations in respect of such services under section 60 by making payments in respect of classes or groups of cases or claims, rather than on an individual basis.".
33.Certified copies of documents to be evidence
For section 124(2) of the Transport Accident Act 1986 substitute—
"(2)A document that has written on it, or that is accompanied by, a statement signed by the Chief Executive Officer certifying that the document is a copy of all, or a specified part, of a specified original document is to be admitted in any proceeding as if it were the original document, or the part of the original document, as the case may be.
(3)Sub-section (2) only applies if the document looks as if it has been produced by a mechanical or electronic process.
(4)Sub-section (2) does not apply if it is established that the document is not a true copy of the original document.".
34.Secrecy provisionsauthorised disclosures—
After section 131(2)(ca) of the Transport Accident Act 1986 insert—
"(cb)producing a document or divulging or communicating information to a regulatory body as authorised by section 131A; or".
35.Insertion of section 131A
After section 131 of the Transport Accident Act 1986 insert—
"131A.Commission may refer misconduct etc. to appropriate body and suspend payment
(1)This section applies if—
(a)a service is provided to a person who was injured in a transport accident and the provision of the service is wholly or partially funded by the Commission (whether directly or indirectly); and
(b)the Commission is concerned about—
(i)the adequacy, appropriateness or frequency of the service as provided by the service provider; or
(ii)the competence with which the service was provided by the service provider; and
(c)the conduct of the trade or profession of the service provider is regulated by a regulatory body that has a statutory power to investigate the conduct that the Commission is concerned about.
(2)The Commission—
(a)may refer the conduct of the service provider to that regulatory body; and
(b)may provide to that body any information it has concerning the provision of the service or the service provider that is necessary to enable the Commission's concerns to be effectively investigated—
if the person to whom the service was provided has consented in writing to the referral and to the disclosure of the information, or if, in the opinion of the Commission, that consent will not be reasonably provided.
(3)The Commission may also, by written notice to the service provider, suspend the payment of costs by it for any services provided by the provider (whether before or after the referral).
(4)If the regulatory body advises the Commission in writing within 6 months after the referral that it intends to take any form of disciplinary or legal action against the service provider as a result of the referral, the suspension continues until that body advises the Commission in writing that it intends to take no further action against the service provider as a result of the referral.
(5)In any other case, the suspension continues until—
(a)the regulatory body advises the Commission in writing that it intends to take no further action in respect of the referral; or
(b)the expiry of 6 months—
whichever occurs first.
(6)If a debt was suspended under this section and the suspension ends and the debt still exists, the debt is to be treated as if it first fell due 7 days after the day the suspension ends.".
36.Insertion of Division 3 into Part 11
In Part 11 of the Transport Accident Act 1986, after Division 2 insert—
'Division 3—Transport Accident (Amendment) Act 2004
183.Definitions
In this Division—
"amending Act" means the Transport Accident (Amendment) Act 2004;
"commencement date" means the day after the day on which the amending Act receives the Royal Assent.
184.Changes that apply to all claims
This Act, as amended by sections 2–4, 7, 14, 15(1), 15(2) and 16–37 of the amending Act, applies with respect to all transport accidents, regardless of when they occurred, and to all applications in respect of such accidents, regardless of when the applications were made.
185.Sections 4 and 4A (Pre-accident weekly earnings)
(1)Section 4, as amended by section 5 of the amending Act, and section 4A, as inserted by section 6 of the amending Act, only apply to earners who are injured in a transport accident that occurred on or after the date of commencement of section 5 or 6 (as the case may be).
(2)Section 61(5), as substituted by section 5 of the amending Act, only applies to an earner who was injured in a transport accident that occurs on or after the date of commencement of section 5.
186.Sections 45AA and 45AB (Interim payments to self-employed person)
Sections 45AA and 45AB, as inserted by section 8 of the amending Act, only apply to a person who is injured in a transport accident that occurred on or after the date of commencement of section 8.
187.Section 45AC (Loss of earnings payments to seasonal earners)
Section 45AC, as inserted by section 9 of the amending Act, only applies to a person who is injured in a transport accident that occurred on or after the date of commencement of section 9.
188.Section 46A (Degree of impairment)
Section 46A, as amended by section 10 of the amending Act, and section 71(1A), as inserted by section 10 of the amending Act, applies with respect to all transport accidents that occurred on or after the day that is 18 months before the date of commencement of section 10.
189.Section 47 (Impairment benefits)
Section 47, as amended by section 11 of the amending Act, only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 11.
190.Section 47(3A) (Interim payment of lump sum impairment benefits)
Section 47(3A), as inserted by section 12 of the amending Act, applies with respect to all transport accidents that occurred on or after the day that is 18 months before the date of commencement of section 12.
191.Section 48Savings provisions concerning impairment benefits paid as an annuity—
(1)This section applies to a person who, immediately before the commencement of section 13 of the amending Act—
(a)was receiving periodic payments in accordance with section 48; or
(b)had an accrued entitlement to such payments, regardless of whether or not the person's impairment benefit had been assessed.
(2)The person is entitled to continue to receive periodic payments in accordance with section 48 as if sections 11 and 13 of the amending Act had not been enacted.
(3)For the purposes of this section, the Governor in Council may make regulations for or with respect to payments under section 48 as if that section had not been repealed.
192.Sections 60(2)(c) and 60(2)(d)(Childcare and home etc. services)
Sections 60(2)(c) and 60(2)(d), as amended by section 15 of the amending Act, only apply to a person who is injured in a transport accident that occurred on or after the date of commencement of section 15.'.
37.Minor amendment
In section 3(2) of the Transport Accident Act 1986, for "section 77 of that Act" substitute "section 13 of the Child Employment Act 2003".
38.Amendment to the Accident Compensation Act 1985
After section 99(16) of the Accident Compensation Act 1985 insert—
"(16A)Sub-section (15) also does not apply to a person while the person is receiving respite care as a result of the injury.".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 14 October 2004
Legislative Council: 18 November 2004
The long title for the Bill for this Act was "to amend the Transport Accident Act 1986 and the Accident Compensation Act 1985 and for other purposes."
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