MOTOR VEHICLE ACCIDENTS (LIFETIME SUPPORT SCHEME) BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 25, page 14, line 20—Delete 'LSS Rules' and substitute 'Authority'

No. 2. Clause 33, page 18, after line 29—Insert:

(ab) a determination of the Authority that results in the suspension of the participation of a person in the Scheme; or

No. 3. Clause 55, page 30, line 31—

Delete 'the WorkCover Corporation' and substitute 'a prescribed authority'

No. 4. Clause 55, page 30, line 35—

Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

No. 5. Clause 55, page 31, line 3—

Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

No. 6. Clause 55, page 31, lines 4 and 5—

Delete 'the WorkCover Corporation' and substitute 'the prescribed authority'

No. 7. Clause 55, page 31, line 10—

Delete 'The WorkCover Corporation' and substitute 'A prescribed authority'

No. 8. Clause 55, page 31, line 11—Delete '112(2)' and substitute '112'

No. 9. Clause 55, page 31, after line 15—Insert:

prescribed authority means—

(a) in relation to a person who suffered a compensable injury as a worker of a self-insured employer under the Workers Rehabilitation and Compensation Act 1986—that self-insured employer; and

(b) in any other case—the WorkCover Corporation;

No. 10. Schedule 1, clause 6, page 34, line 33—After 'possession' insert ', custody or control'

No. 11. Schedule 1, clause 6, page 35, line 5—After 'possession' insert ', custody or control'

No. 12. Schedule 1, clause 6, page 35, after line 11—Insert:

(4a) A person must not, without reasonable excuse, fail to comply with a requirement under subsection (4).

Maximum penalty: $5,000.

No. 13. Schedule 2, clause 3, page 36, lines 23 to 27—Leave out all words in these lines after '0 to 100'

No. 14. Schedule 2, clause 3, page 37, after line 16—Insert:

(4a) However, a court may award damages for non-economic loss in a case that would otherwise be excluded by operation of subsection (4) if satisfied—

(a) that the consequences of the personal injury with respect to non-economic loss are exceptional when judged by comparison with other cases involving the same injury; and

(b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust.

(4b) An assessment of damages for non-economic loss under subsection (4a) must be based on an injury scale value that should rarely be more than 25% higher than the injury scale value that applies under subsection (3)(a) in relation to the injury.

No. 15. Schedule 2, clause 4, page 37, after line 37—Insert:

(2a) However, a court may award damages in a case that would otherwise be excluded by operation of subsection (2) if satisfied—

(a) that the consequences of the personal injury with respect to loss or impairment of future earning capacity are exceptional; and

(b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust.

No. 16. Schedule 2, clause 4, page 38—After 'is based' insert:

(but nothing in this subsection gives rise to an entitlement to damages beyond damages awarded for loss or impairment of earning capacity)

No. 17. Schedule 2, clause 8, page 41, after line 34—Insert:

(aa) authorise an insurer or the nominal defendant under Part 4 of the Motor Vehicles Act 1959 to require a claimant to submit to an assessment or examination of a prescribed kind; and

No. 18. Schedule 2, clause 8, page 42, line 3—Delete 'the' and substitute 'an

No. 19. Schedule 2, clause 8, page 42, after line 41—Insert:

(3a) The rules that are to apply for the purpose of assessing injury scale values ('ISVs') for multiple injuries must include 1 or more provisions that adopt the following principles:

(a) a court must consider the range of ISVs for the dominant injury of the multiple injuries;

(b) in order to reflect the level of adverse impact of multiple injuries on an injured person, a court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV that the court would assess for the dominant injury only;

(c) if a court considers that the level of impact of multiple injuries on an injured person is so severe that the maximum ISV for the dominant injury is inadequate to reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum ISV for the dominant injury, subject to the following qualifications:

(i) the ISV for multiple injuries cannot exceed 100;

(ii) the ISV for multiple injuries should rarely be more than 25% higher than the maximum ISV for the dominant injury.

(3b) In connection with the operation of subsection (3a), a dominant injury, in relation to multiple injuries, is—

(a) subject to paragraph (b)—the injury of the multiple injuries having the highest range; or

(b) if the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a court assessing an ISV.

(3c) Subsections (3a) and (3b) do not limit any other principle or provision that may apply under the regulations in relation to the assessment and determination of an ISV for a particular injury.

No. 20. Schedule 2, clause 8, page 43, after line 38—Insert:

(6a) A regulation under subsection (1)(d) may only be made on the recommendation of the designated Minister.

(6b) Before the designated Minister makes a recommendation under subsection (6a), the designated Minister must consult with—

(a) the Attorney-General; and

(b) The South Australian Branch of the Australian Medical Association Incorporated; and

(c) The Law Society of South Australia.

(6c) If an association referred to in subsection (6b) objects to any matter contained in a regulation under subsection (6a), the designated Minister must, at the request of that association, prepare a report that—

(a) provides information about the consultation that has been undertaken; and

(b) sets out the objection that has been made (including the reasons put forward by the association for its objection).

(6d) The Minister must cause a copy of a report under subsection (6c) to be laid before both Houses of Parliament as soon as is reasonably practicable after the request is made.

(6e) In addition, a regulation that would have the effect of changing the injury scale value applying with respect to a particular injury so that a person who suffers that injury (and no other injury) would, on account of that change, no longer have a right to damages for non-economic loss under section 52(3) and (4) cannot come into operation until the time for disallowance of the regulation has passed.

No. 21. Schedule 2, page 44, after line 25—Insert:

8A—Insertion of section 4A

After section 4 insert:

4A—Commission to behave as model litigant

(1) The Commission must behave as a model litigant in the conduct of litigation.

(2) Any model litigant guidelines applicable to the Crown Solicitor apply also to the Commission.

No. 22. Schedule 2, clause 14, page 46, after line 9—Insert:

(3a) An insurer or the nominal defendant must, within 21 days of receiving any record or other information under subsection (2)(d), send a copy of the report or information to the claimant (or a legal practitioner engaged by the claimant).

No. 23. Schedule 2, clause 17, page 47, after line 35—Insert:

(6) If a person suffered the bodily injury as a result of or partly as a result of the fault of another person (the wrongdoer), the insurer is entitled to recover from the wrongdoer as a debt due to the insurer such proportion of the present value of the insurer's treatment, care and support liabilities in respect of the person's bodily injury as corresponds to the wrongdoer's share in the responsibility for the injury.

(7) The present value of the insurer's treatment, care and support liabilities in respect of a bodily injury is the sum of the following amounts—

(a) amounts already paid by the insurer under this section in respect of the treatment, care and support needs associated with the bodily injury; and

(b) the present value of the amounts that the insurer estimates will be payable by the insurer in the future under this section in respect of the treatment, care and support needs associated with the bodily injury.

No. 24. Schedule 2, clause 17, page 48, line 20—Delete 'insurer' and substitute 'defendant'

No. 25. Schedule 2, clause 17, page 48, line 22—Delete 'insurer' and substitute 'defendant'

No. 26. Schedule 2, clause 17, page 48, line 28—Delete 'insurer' and substitute 'defendant'

No. 27. Schedule 2, clause 20, page 50, after line 26—Insert:

(5) To avoid doubt, section 76(6e) of the principal Act (as enacted by this Act) does not apply in relation to a regulation that prescribes the injury scale values that are to apply on the commencement of section 52(3) of the principal Act (as enacted by this Act).

No. 28. Schedule 2, clause 21, page 50, after line 32—Insert:

(2a) An amendment made by this Act to section 127 of the principal Act does not apply in relation to any claim in relation to bodily injury that results from an accident occurring before the commencement of the amendment (and so a paragraph or subsection to be deleted by such an amendment will continue to operate in relation to such a claim including a claim made after the commencement of the amendment).

No. 29. Schedule 2, page 51, after line 28—Insert:

Part 7—Review

23—Review

(1) The designated Committee must review the operation of this Act (including the amendments made by this Act to other Acts) as soon as practicable after the expiry of 3 years from its commencement.

(2) The review must include an assessment of—

(a) the extent to which this Act has provided an effective and fair scheme to assist people who have been catastrophically injured in motor vehicle accidents; and

(b) whether it would be appropriate to extend the Scheme established by this Act to people who have been catastrophically injured due to other causes, and the issues associated with implementing such a reform; and

(c) the operation of the provisions for the assessment and awarding of damages under section 52 of the Civil Liability Act 1936 with respect to MVA motor accidents (as defined under that Act) enacted by this Act, with particular reference to—

(i) whether the exclusion of a right of recovery for non-economic loss if the injury scale value that applies in a particular case does not exceed 10 has resulted in cases of substantial hardship; and

(ii) whether the rules and principles applying to an injured person who has suffered multiple injuries have—

(A) provided reasonable compensation within the scheme established under that section; or

(B) caused a change in the manner in which such persons claim compensation that has or could lead to an increase in premiums payable under Part 4 of the Motor Vehicles Act 1959; and

(d) the operation of the other amendments to the Civil Liability Act 1936 enacted by this Act, with particular reference to the introduction and effect of thresholds under various heads of damages; and

(e) the effect that the amendments to the Motor Vehicles Act 195  enacted by this Act have had on the handling and settlement of claims under Part 4 of that Act,

and may include any other matter that the designated Committee considers to be relevant to a review of this Act.

(3) In this clause—

designated Committee means—

(a) unless paragraph (b) applies—the Social Development Committee of Parliament; or

(b) if both Houses of Parliament have, before the third anniversary of the commencement of this Act, by resolution, designated another Committee of Parliament to conduct the review envisaged by this clause—that Committee.

Consideration in committee.

The Hon. J.J. SNELLING: I move:

That the Legislative Council's amendments be agreed to.

Motion carried.