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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-10-28 Daily Xml
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ROAD TRAFFIC (USE OF TEST AND ANALYSIS RESULTS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (11:04): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The South Australian Motor Accident Commission (MAC) manages the State's Compulsory Third Party Insurance (CTP) scheme.

In the past, MAC has been able to use and admit into evidence oral fluid and blood samples compulsorily taken (and the consequential Certificate of Analysis) for the purposes of seeking reductions under the Civil Liability Act 1936 for intoxicated drivers, or in recovery actions under s116 and s124A of the Motor Vehicles Act 1959.

The issue as to whether the blood samples obtained compulsorily at hospital can be used by the insurer to establish the insured’s blood alcohol content was first brought into question in a CTP recovery matter against an insured driver. The insured is arguing that the Road Traffic Act specifically prohibits the use of the blood taken and the consequential blood alcohol certificate ('BAC'), against him for any other purpose other than 'an offence' under the Road Traffic Act or Motor Vehicles Act or a driving-related offence.

More recently, the issue of admissibility of the BAC has again been raised during the course of a trial relating to a CTP claim for damages arising out of a motor vehicle accident. The plaintiff's solicitors opposed the admission of the BAC and the Trial Judge ruled on 13 October 2009 that the Certificate cannot be relied upon in this matter.

Without such evidence, proving intoxication and degrees of intoxication will be exceedingly difficult (if not impossible in some cases). This has the potential to significantly escalate the annual cost of compensation to the CTP Fund, thus placing pressure on premiums.

The Bill seeks to ensure that the CTP Scheme continues to be able to use and admit into evidence oral fluid and blood samples compulsorily taken (and the consequential Certificate of Analysis) for the purposes of seeking reductions under the Civil Liability Act 1936 for intoxicated drivers, or in recovery actions under s116 and s124A of the Motor Vehicles Act 1959.

The Bill is important to the long term viability of the CTP Fund and is intended to assist the social responsiveness of the CTP Scheme and protect SA motorists from future possible premium increases driven by escalating liabilities caused by driving behaviours and attitudes that are considered socially unacceptable.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Road Traffic Act 1961

3—Amendment of Schedule 1—Oral fluid and blood sample processes

This clause amends Schedule 1 of the Road Traffic Act 1961. That Schedule includes provisions relating to the taking of oral fluid and blood samples under the Act. Clause 8, which limits the purposes for which the results of the testing or analysis of such samples can be used, is amended so that the results of a drug screening test, oral fluid analysis or blood test, an admission or statement made by a person relating to such a drug screening test, oral fluid analysis or blood test, or any evidence taken in proceedings relating to such a drug screening test, oral fluid analysis or blood test (or transcript of such evidence) can be admissible in evidence against the person who submitted to the test or analysis in certain civil proceedings. If the person who submitted to the test or analysis was involved in an accident, and the testing or analysis occurred in connection with that involvement, the provision as amended will not prevent the results from being admissible in evidence against the person in civil proceedings in connection with death or bodily injury caused by or arising out of the use of a motor vehicle in the accident. Accident is defined in section 5(1) of the Act to include a collision between 2 or more vehicles or any other accident or incident involving a vehicle in which a person is killed or injured, property is damaged, or an animal in someone's charge is killed or injured. The provision makes it clear that the reference to civil proceedings in connection with death or bodily injury caused by or arising out of the use of a vehicle includes proceedings under section 116 or 124A of the Motor Vehicles Act 1959 for the recovery from the person of money paid or costs incurred by the nominal defendant (within the meaning of that Act) or an insurer.

Death or bodily injury will be regarded as being caused by or arising out of the use of a motor vehicle for the purposes of clause 8 if it is regarded as being so caused for the purposes of Part 4 of the Motor Vehicles Act 1959.

Schedule 1—Transitional provision

1—Transitional provision

The amendment to clause 8 of Schedule 1 of the Road Traffic Act 1961 will apply in relation to proceedings commenced before the amendment takes effect in addition to proceedings that commence following that commencement.

Debate adjourned on motion of Hon. D.W. Ridgway.

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