Transport Accident (Amendment) Bill

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1 MTHltR RO \'NSON ~ ;-IF.DOERWlCKS '..IBRAR\ Transport Accident (Amendment) Bill As Sent Print EXPLANATORY MEMORANDUM PART I-PRELIMINARY Clause 1 Clause 2 sets out the purposes of the Act. provides for the commencement of the provisions of the Act, providing that clauses come into operation on a day or days to be proclaimed or on the day of the Royal assent. Provisions relating to increasing loss of earning capacity payments are deemed to come into operation on 1 July 2000 to correspond to the date of the introduction of the Goods and Services Tax. Any provision not proclaimed to come into operation before 1 July 2002 is deemed to be operative from that date. PART 2-AMENDMENT OF THE TRANSPORT ACCIDENT ACT 1986 Clause 3 Clause 4 Clause 5 amends the definition of dependent spouse to expand the definition to include dependency based on being wholly dependent for the care of children of the spouse. The Bill also includes new definitions of rehabilitation service disability service and transportation costs clarifying those services in respect of which compensation is payable under section 60 of the Act. Section 57 is amended consequentially. amends the definition of a transport accident to include an incident involving a collision between a bicycle and a motor vehicle that occurs on a journey to or from work. amends section 4 of the Act to make it clear that regular overtime and shift allowances are to be taken into account in calculating an earner's ordinary time rate of pay for the purposes of determining entitlements to loss of earnings benefits BllL LA AS SENT 27fl0f2000

2 Clause 6 Clause 7 Clause 8 Clause 9 inserts section loa into the Act to declare the Commission not to be a reorganising body under the State Owned Enterprises Act 1992 and revoking the Order in Council made on 6 May 1993, which declared the commission to be a reorganising body under that Act. amends section 20 of the Act to clarify quorum rules applicable to the Board of the Commission to ensure a decision can be made by a valid majority of Directors who are able to vote on a matter under consideration. makes consequential amendment of section 23 to enable the Commission to authorise services to be disability services under the Act. extends the time available to review a decision in relation to the authorisation of a rehabilitation service or a disability service from 28 days to 12 months consistent with reviews of decisions under section 77. Clause 10 enables payments of dividends and returns of capital under sections 29A and 29B of the Act to be made from the transport accident fund. Clause 11 inserts sections 29A and 29B to provide for the payment of dividends and the return of capital, which are no longer fixed under the State Owned Enterprises Act 1992 as a consequence of the Commission being declared not to be a reorganising body under that Act. Clause 12 substitutes sections 39 and 40 of the Act by inserting sections 39, 40 and 40A to clarify those breaches of the Road Safety Act 1986 and the Crimes Act 1958, which draw an exclusion from all benefits, those that draw an exclusion from loss of eamings benefits and those that draw a partial exclusion from loss of earnings benefits. Clause 13 imposes a six-year time limit on applications for a determination of impairment in circumstances where it does not appear to the Commission that the person will have an entitlement to impairment benefits. 2

3 Clause 14 amends section 47 of the Act to provide that impairment benefits must be paid in full to the claimant without regard to legal costs. The clause also substitutes section 47 (6) of the Act to ensure the consistent treatment of the assessment of impairment benefits in cases where impairment results from more than one transport accident. The clause also includes discretion for the Commission to make a determination of impairment before 18 months after an accident where this is required for to institute common law proceedings. Clause 15 amends section 49 of the Act to increase the amount ofloss of earning capacity benefits payable to a person after 1 July 2000 in respect of an accident before that date by 4%. The clause also increases the basis of calculation of loss of earning capacity in cases where an amount cannot be otherwise determined from 60% of average weekly earnings to 80% of average weekly earnings. The clause also amends section 61 of the Act to provide for indexation of amounts of loss of earning capacity payable in line with increases in average weekly earnings. Clause 16 provides that a person who participates in an approved vocational rehabilitation program must have their entitlement to income support restored if they are unsuccessful in returning to work. Clause 17 amends the definition of earner's assessed earnings in section 58 to ensure that earnings are calculated by reference to possible earnings had the accident not occurred. Clause 18 amends section 59 to provide for the Commission to be refunded compensation paid under that section if the Tribunal finds that the payments have been made in error. Clause 19 amends section 60 to provide for further compensation under that section in relation to the payment of attendant care services at Australian rates if a claimant goes overseas. The clause also provides increased access to family counselling in the event of severe injury and compensation for visiting a spouse who is an inpatient in a hospital more than 100km from the hospitalised claimant's normal residence. 3

4 Clause 20 substitutes section 60(3) of the Act to clarify the Commission's obligations in relation to the payment of compensation for home and vehicle modifications and provided for agreements to be entered in relation to compensation for home and vehicle modifications. Clause 21 amends section 64 the make the existing mandatory requirement for the provision of a driver's accident report discretionary. Clause 22 substitutes sections 65 and 66 of the Act to set out requirements for the provision of a driver's accident report is required when the Commission requires a report. Clause 23 repeals the requirement for a claim for compensation to be accompanied by a statutory declaration to enable claims for compensation to be lodged electronically. The clause also provides that an authority to obtain information set out in a claim form remains in force and cannot be revoked until a claim is finally determined. Clause 24 extends the time for making a claim by a minor to enable them to make a claim for compensation on reaching 18 years of age. Clause 25 reduces the time in which the Commission must decide to accept or reject a claim for compensation from 28 days to 21 days. Clause 26 provides that the Commission may suspend the benefits of a person if they fail to attend a medical examination by the provider of certain medical services under the Act. Clause 27 sets out the requirement for the Tribunal to fix a date for the hearing of an application for review after being notified that the Commission has reaffirmed its decision or is deemed to have reaffirmed its decision. The clause sets out requirements for the provision of information and the conduct of informal reviews of decisions of the Commission. The clause also confirms the application of provisions of the Victorian Civil and Administrative Tribunal Act 1998 in relation to costs rules applicable following the making of an offer of compromise. 4

5 Clause 28 provides that evidence may be adduced in common law proceedings in relation to any lawfully taken blood or breath analysis taken after a transport accident. All parties to a proceeding will have the opportunity to adduce the evidence of alcohol consumption. Clause 29 provides that the Commission is released from further liability under section 60 in circumstances where compensation of a kind set out in that section forms part of a common law settlement. Clause 30 amends section 93 to provide that for the purposes of determining whether there is an impairment or loss of body function as defined in paragraph (a) of the definition of serious injury in sub-section (17), psychological or psychiatric consequences are not to be taken into account. Clause 31 provides that a Court must decide a question of serious injury on the balance of probabilities and must not take into account the statutory thresholds and maximums in making its decision. Clause 32 provides for a right of appeal to the Court of Appeal in relation to a question of serious injury and the requirements of the Court when hearing such an appeal. Clause 33 provides the Minister with the power to issue directions in relation to the procedures to be followed in the conduct of proceedings under section 93 of the Act. Clause 34 clarifies that the Commission is not required to provide indemnity in respect of incidents occurring in an organised motor sporting event or speed trial. Clause 35 clarifies the application of section 96 in relation to the application of that section to incidents involving the driving of an unindemnified vehicle. Clause 36 provides that in recovering payments made from a third party that the Commission may also recover interest on the payments. Clause 37 sets out a revised method for fixing transport accident charges by the making of a charges order. 5

6 Clause 38 repeals sections 110A and section 132(1)(e) ofthe act as a consequence of the implementation of the revised method to be adopted for the fixing of transport accident charges. Clause 39 amends section 127(3) of the Act to enable the Commission to obtain information from a former employer that is required to provides that it is the intention of clauses 31 and 32 make an assessment of the loss of earnings of a person. Clause 40 of the Act alter or vary section 85 of the Constitution Act 1975 to limit the jurisdiction of the Supreme Court. PART 3-AMENDMENT OF THE ACCIDENT COMPENSATION ACT 1985 Clause 41 amends section 135A of the Accident Compensation Act 1985 so as to extend the time for responding to the application by a worker for a determination of his or her degree of impairment for the purposes of that section, received after 10 August 2000 but before 1 September 2000, from 120 to 210 days. Clause 42 amends section 137(5B) of the Accident Compensation Act 1985 so as to reduce the recovery that may be made by a self-insurer from the Transport Accident Commission in relation to a course of work transport accident by an amount equal to the amount of the employer's excess that would be applicable under section 125A of that Act if a WorkCover insurance policy were in force. Clause 43 amends a provision which is to be inserted into the Accident Compensation Act 1985 by section 19 of the Accident Compensation (Common Law and Benefits Act) 2000 so as to make provision for the setting of legal costs by Order in Council in relation to common law actions arising as a result of an injury occurring before 12 November 1997 and provides for the amendment to be made by section 19 to commence on the day after this Act receives the Royal Assent. Clause 44 provides that it is the intention of clause 43 to alter or vary section 85 of the Constitution Act

7 PART 4-AMENDMENT OF THE DANGEROUS GOODS ACT 1985 Clause 45 inserts a definition of ADG code into the Act and makes required consequential and transitional amendments. 7

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