Workers Compensation (Amendment) Act 1989 (NSW)

WORKERS COMPENSATION (AMENDMENT) ACT 1989

No. 214

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3. Amendment of Workers Compensation Act 1987 No. 70

4. Amendment of WorkCover Administration Act 1989 No. 120, sec. 19 (Payments into and from Fund)

5. Amendment of Workers Compensation (Benefits) Amendment Act 1989 No. 133

SCHEDULE 1 - AMENDMENTS RELATING TO JOURNEY CLAIMS
SCHEDULE 2 - AMENDMENT RELATING TO INSURERS' LIABILITY

SCHEDULE 3 - AMENDMENTS RELATING TO BODILY DISFIGUREMENT

WORKERS COMPENSATION (AMENDMENT) ACT 1989

No. 214

NEW SOUTH WALES

Act No. 214,1989

An Act to amend the Workers Compensation Act 1987 and certain

other purposes. [Assented to 21 December 1989] other Acts in relation to journey claims, the liability of insurers and for

Workers Compensation (Amendment) 1989

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Workers Compensation

(Amendment) Act 1989.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Workers Compensation Act 1987 No. 70

3. The Workers Compensation Act 1987 is amended as set out in

Schedules 1 - 3.

Amendment of WorkCover Administration Act 1989 No. 120, sec 19

(Payments into and from Fund)

4. The WorkCover Administration Act 1989 is amended by inserting

after section 19 (2) the following subsection:

(3) The maximum amount payable from the WorkCover Authority Fund for the costs of operation of the Compensation Court is to be the amount determined by the Minister administering the Compensation Court Act 1984 after consultation with the Minister administering this Act

Amendment of Workers Compensation (Benefits) Amendment Act

1989 No. 133

5. The Workers Compensation (Benefits) Amendment Act 1989 is

amended by omitting Schedule 5 to that Act (Amendment of Workers

Compensation Act 1987 relating to journeys).

SCHEDULE 1 - AMENDMENTS RELATING TO JOURNEY

CLAIMS

(Sec. 3)

(1) Section 10 (Journey claims):

(a) After section 10 (1), insert

(1 A) Subsection (1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker.

Act No. 214

Workers Compensation (Amendment) 1989

SCHEDULE 1 - AMENDMENTS RELATING TO JOURNEY

CLAIMS - continued

(IB) A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.

(1C) If the risk of injury on a daily or other periodic journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subsection (1) is not excluded merely because the injury was caused by the fault of the worker.

(ID) Subsection (1) does not apply if the personal injury
resulted from the medical or other condition of the worker

and the journey did not cause or contribute to the injury.

(b) Omit section 10 (4), insert instead:

(4) For the purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated.

(c) After section 10 (5), insert

(5A) Nothing in this section prevents the payment of

compensation for any personal injury which, apart from
this section, is an injury within the meaning of this Act.

(d) Section 10 (6):
After the definition of "educational institution", insert

"fault" includes:

(a) negligence or other tort and

(b) any failure to take reasonable care for the worker's own safety,

Workers Compensation (Amendment) 1989

SCHEDULE 1 - AMENDMENTS RELATING TO JOURNEY

CLAIMS - continued

(2) Schedule 6 (Savings, transitional and other provisions):

(a)

Part 2, clause 2: applied before the commencement of the amendments made to that section by Schedule 1 to the Workers Compensation (Amendment) Act 1989".

(b) Part 2, clause 2:
At the end of the clause, insert

(2) In the case of a personal injury received by a worker after the commencement of section 10 of this Act and before the commencement of Schedule 1 to the Workers Compensation (Amendment) Act 1989 on a journey to which that section applied before the commencement of that Schedule, liability is to be determined in accordance with the provisions of section 10 as in force before the commencement of that Schedule.

SCHEDULE 2 - AMENDMENT RELATING TO INSURERS'

LIABILITY

(Sec. 3)

Section 208A

After section 208, insert

Obligations of insurer under policies unenforceable if

insurer has insufficient funds in statutory fund

208 A (1) An insurer who is liable to make any payment under a policy of insurance issued or renewed by the insurer (whether before or after the commencement of this section) may postpone that payment while there is insufficient money to make the payment in the statutory fund maintained by the insurer in respect of that policy.

(2) A person who is not paid any amount to which the
person is entitled because of the operation of any such

Act No. 214

Workers Compensation (Amendment) 1989

SCHEDULE 2 - AMENDMENTS RELATING TO INSURERS'

LIABILITY - continued

postponement may apply to the Authority for payment of

that amount

(3) The Authority is required to pay that amount to the
applicant out of the Premiums Adjustment Fund unless the
right of the insurer to postpone the payment has ceased.
(4) The insurer is required to reimburse the Authority
for any such payment made by the Authority as soon as the

relevant statutory fund of the insurer contains sufficient

money to allow the insurer to do so.

(5) If the Authority is satisfied that any deficiency in the statutory fund of an insurer was caused (wholly or partly) by a failure of the insurer to comply with this Act or the regulations or by a breach of a director's duty under section 200, the Authority may require the insurer to reimburse the Authority from any of its funds (other than its statutory funds).

(6) If an amount that an insurer is required to reimburse the Authority is not paid by the date directed by the Authority:

(a)	the amount may be recovered by the Authority as a debt in a court of competent jurisdiction; and
(b)	the insurer is not entitled, while the amount remains unpaid, to withdraw management expenses referred to in section 197 (c) from any statutory
fund of the insurer.

(7) Any amount reimbursed to the Authority under this
section is to be paid into the Premiums Adjustment Fund.

Workers Compensation (Amendment) 1989

SCHEDULE 3 - AMENDMENTS RELATING TO BODILY

DISFIGUREMENT

(Sec. 3)

(1) Section 65 (Definitions):

In section 65 (2) (b), after "severe facial disfigurement", insert "or severe bodily disfigurement".

(2) Section 72 (Reference of matters to medical panel):

In section 72 (2) and (3), after "severe facial disfigurement", wherever occurring, insert "or severe bodily disfigurement".

(3) Part 3, Division 4, Table (Compensation for permanent

injuries):

(a) At the end of the matter relating to "Disfigurement", insert

Severe bodily disfigurement (being an injury

which is not or is not wholly an injury

otherwise compensable under this Table) 0 -22

(b) At the end of the Table, insert

(h) Compensation is payable in respect of severe bodily disfigurement even though the injury which caused the disfigurement was received after the commencement of this Division and before the inclusion of that item in the Table.

[Minister's second reading speech made in -

Legislative Assembly on 21 November 1989
Legislative Council on 6 December 1989]