Div 13Regulations

Division 13—Regulations 76—Assessment of motor vehicle injuries (1) The regulations may, in relation to any claim, entitlement or award of damages in respect of personal injury arising from an MVA motor accident— (a) 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 (b) require that an examination or assessment be undertaken by an accredited health professional (see subsection (2)) in order to obtain advice and evidence in relation to any relevant matter; and (c) specify procedures to be followed in connection with any examination or assessment, including as to the determination or selection of an accredited health professional who is to undertake the examination or assessment; and (d) specify the maximum number of examinations or assessments that may be made in a particular case; and (e) prescribe rules that are to be applied with respect to the determination of any injury scale value under this Act; and (f) without limiting a preceding paragraph, make provision for the provision of advice or evidence about diagnosis, causation, prognosis, future requirements for treatment, care or support, or other matters that are relevant to any assessment of damages or liability in respect of the injury; and (g) make provision for the preparation and furnishing of reports and other information or material, including as to the procedures or processes associated with requesting any report, document or other material, the form of any report, document or other material, and the persons to whom any report, document or other material is to be provided or made available; and (h) provide for any other matter that may be relevant to assessing or determining a claim or entitlement, or making an award of damages. (2) The designated Minister may establish an accreditation scheme with respect to health professionals in connection with regulations under this section. (3) The accreditation scheme— (a) may provide for a term or a period of accreditation, and for the suspension or cancellation of accreditation on specified grounds; and (b) may specify terms or conditions of accreditation; and (c) may provide for any aspect of the scheme to be administered or managed by a person or body specified by the designated Minister; and (d) may provide that a person holding an accreditation, registration or other form of authorisation or status under another scheme recognised by the designated Minister will be taken to hold an accreditation under this section; and (e) may be amended or substituted by the designated Minister from time to time. (4) 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. (5) In connection with the operation of subsection (4), 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. (6) Subsections (4) and (5) 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. (7) For the purposes of the rules that are to apply for the purpose of assessing any injury scale value under a designated section (being rules that determine a substantive matter rather than prescribe a procedural matter), the relevant regulations are the regulations applying at the time of the occurrence of the relevant injury. (8) If a person fails to comply with a requirement prescribed under subsection (1) in respect of a claim or proceedings made or commenced by the person— (a) in the case of a claim—a person or body to which the claim has been made may decline to consider or deal with the claim while the failure continues; and (b) the person is not entitled, until he or she complies with the requirement, to commence proceedings or to continue proceedings that have been commenced in respect of the personal injury. (9) In addition, the regulations may— (a) require an insurer or the nominal defendant under Part 4 of the Motor Vehicles Act 1959 to pay for the costs of examinations and assessments, and for the preparation and furnishing of reports, documents or other material, in prescribed circumstances (subject to any limits specified in the regulations); and (b) limit the liability of an insurer or the nominal defendant under Part 4 of the Motor Vehicles Act 1959 to pay for the costs of examinations and assessments, and for the preparation and furnishing of reports, documents or other material, in connection with a claim (and any such regulation may provide that prescribed costs (if any) be borne by a claimant and will have effect according to its terms and despite a liability that would otherwise arise under Part 4 of the Motor Vehicles Act 1959 or any other Act or law); and (c) require an insurer or the nominal defendant under Part 4 of the Motor Vehicles Act 1959 to make a contribution (determined in accordance with the regulations) towards the costs of the accreditation scheme established by the Minister under this section (including so that the scheme is fully‑funded through the making of those contributions). (10) A regulation under subsection (1)(e) may only be made on the recommendation of the designated Minister. (11) Before the designated Minister makes a recommendation under subsection (10), 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. (12) If an association referred to in subsection (11) objects to any matter contained in a regulation under subsection (10), 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). (13) The Minister must cause a copy of a report under subsection (12) to be laid before both Houses of Parliament as soon as is reasonably practicable after the request is made. (14) 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. (15) Nothing in this section is intended to prevent or restrict a court from exercising any judicial power or from determining a matter according to law. (16) In this section— designated Minister means the Minister from time to time designated by the Governor by proclamation to be the designated Minister for the purposes of this section; designated section means any of the following sections: (a) section 52; (b) section 56A; (c) section 58; (d) section 65; health professional means— (a) a registered health practitioner under the Health Practitioner Regulation National Law (other than a student); or (b) a person who is within a class brought within the ambit of this definition by the regulations. 77—Regulations—general provisions (1) Without limiting section 76, the Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act. (2) A regulation under this Act may— (a) refer to or incorporate, wholly or partially and with or without modification, a document prepared or published by a specified body, either as in force at the time the regulation is made or as in force from time to time; and (c) make different provision according to the persons or circumstances to which it is expressed to apply; and (d) provide that a matter is to be determined according to the discretion of a prescribed person or body. Part 3—Amendment of Motor Accident Commission Act 1992 9—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. 10—Amendment of section 14—Functions and objectives of Commission Section 14(3)—after paragraph (c) insert: and (d) to encourage early and appropriate treatment and rehabilitation for people who suffer road accident injuries in respect of which the Commission bears financial responsibility under the policies of compulsory third party insurance referred to in subsection (1). Part 4—Amendment of Motor Vehicles Act 1959 11—Amendment of section 5—Interpretation Section 5(1)—after the definition of licence insert: LSS Fund levy means the LSS Fund levy under Part 7 of the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013; 12—Amendment of section 20—Application for registration Section 20(2)—after paragraph (b) insert: (ba) the appropriate LSS Fund levy; and 13—Amendment of section 24—Duty to grant registration Section 24(1)—after "the appropriate insurance premium" insert: , the appropriate LSS Fund levy 14—Amendment of section 118B—Interpretation of certain provisions where claim made or action brought against nominal defendant (1) Section 118B(1)(b)—after "the policy of insurance" insert: or the other provisions of this Part (2) Section 118B(2)—after paragraph (d) insert: (da) section 126A; (3) Section 118B(2)(e)—delete "and 127A" and substitute: , 127A, 127B and 127C  15—Insertion of section 126A After section 126 insert: 126A—Claim for compensation (1) A person who seeks to make a claim for damages or other compensation in relation to the death of, or bodily injury to, a person for which insurance is provided under this Part must furnish the insurer or the nominal defendant (as the case may be) with a notice of claim that complies with the requirements of subsection (2). (2) A notice under subsection (1)— (a) must be provided at a time or within a period prescribed by the regulations; and (b) must be furnished in a manner and form approved by the Minister; and (c) must set out or be accompanied by— (i) a statement setting out details of the claim; and (ii) a certificate or opinion as to the nature and probable cause of the death or injury (as the case requires) provided by a medical practitioner; and (iii) the relevant police report number for any report provided to a police officer under the Road Traffic Act 1961 in connection with the relevant accident; and (iv) such other report or other information in relation to the accident or the claim as may be prescribed by the regulations; and (d) must be accompanied by a statement (in a form prescribed by the regulations) authorising the insurer or the nominal defendant to have access to records and other sources of information relevant to the claim. (3) Any material or information required under subsection (2)(c) must comply with any requirements prescribed by the regulations. (4) 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). (5) An insurer and the nominal defendant must establish practices and procedures designed to assist claimants to comply with the requirements of the preceding subsections. (6) If a person fails to comply with a preceding subsection— (a) the insurer or the nominal defendant (as the case may be) may decline to consider or deal with the claim while the failure continues; and (b) the person is not entitled, until he or she complies with the relevant requirements, to commence proceedings or to continue proceedings that have been commenced in respect of the death or injury. (7) Subsection (6) operates subject to any provision made by the regulations about qualifying or restricting the effect of failing to comply with the requirements of this section. (8) In this section— medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student). 16—Amendment of section 127—Medical examination of claimants (1) Section 127(2)(a)—delete paragraph (a) (2) Section 127(3), (4) and (5)—delete subsections (3), (4) and (5) (3) Section 127(8)—delete subsection (8) 17—Amendment of section 127A—Control of medical services and charges for medical services to injured persons Section 127A—after subsection (3) insert: (3a) In addition, the Minister may, by instrument in writing, in relation to a particular case or class of case, increase a limit or charge that applies for the purposes of this section (and the prescribed limit or prescribed scale will, in that case, then be taken to be increased to the extent allowed by the instrument). 18—Insertion of sections 127B and 127C After section 127A insert: 127B—Liability of insurer to pay treatment, care and support costs (1) In this section— treatment, care and support needs of a person are the person's needs for or in connection with any of the following: (a) medical treatment (including pharmaceuticals); (b) dental treatment; (c) rehabilitation; (d) ambulance transportation; (e) aids and appliances; (f) prostheses; (g) such other kinds of treatment, care, support or services as may be prescribed by the regulations. (2) Subject to this section, if— (a) a person who has not attained the age of 16 years suffers bodily injury caused by or arising out of the use of a motor vehicle; and (b) the incident to which the bodily injury is attributable occurs in South Australia, then the insurer is liable to pay all the necessary and reasonable expenses with respect to the treatment, care and support needs of the person (including after he or she attains the age of 16 years) that are attributable to that bodily injury. (3) This section applies whether or not a liability at common law exists against the owner of the relevant motor vehicle or other person on account of the occurrence of the bodily injury (but any award of damages must take into account the extent to which an entitlement arises under this section). (4) This section does not apply in relation to a participant in the Scheme under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013. (5) Section 127A will apply to any services under this section insofar as they are prescribed services under that section. (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. 127C—Control of legal costs (1) Subject to subsection (3), a court before which proceedings are brought in respect of a claim for which a person is insured under this Part must comply with the following provisions as to costs in relation to the claimant: (a) if the total amount recovered in respect of the claim does not exceed $25 000—the court must not award in favour of the claimant costs as between party and party unless the court is of the opinion that there are exceptional circumstances justifying the award of such costs; (b) if the total amount recovered in respect of the claim exceeds $25 000 but does not exceed $100 000—the court must not award in favour of the claimant costs in respect of the proceedings in excess of the costs applying under the designated scale unless the court is satisfied that there are exceptional circumstances justifying the award of additional costs. (2) A court before which proceedings are brought in respect of a claim for which a person is insured under this Part must comply with the following provisions as to costs in relation to the defendant: (a) if the total amount claimed does not exceed $25 000—the court must not award in favour of the defendant costs as between party and party unless the court is of the opinion that there are exceptional circumstances justifying the award of such costs; (b) if the total amount claimed exceeds $25 000 but does not exceed $100 000—the court must not award in favour of the defendant costs in respect of the proceedings in excess of the costs applying under the designated scale unless the court is satisfied that there are exceptional circumstances justifying the award of additional costs. (3) If proceedings are brought before a court in order to obtain approval of a compromise or settlement that relates to a person who is under a legal disability, subsection (1)(a) does not apply so as to prevent an award of costs as between party and party insofar as the costs are directly related to obtaining that approval. (4) In this section— designated scale means the scale of costs that apply in relation to civil proceedings in the Magistrates Court of South Australia (even if the claim against the insurer is for an amount that exceeds the jurisdictional limit of that court), subject to any modifications made by the regulations for the purposes of this section. 19—Insertion of section 134A After section 134 insert: 134A—Review of scheme (1) The Minister must cause a review of this Part to be undertaken if the Class 1 premium imposed in respect of insurance under this Part exceeds, in relation to a particular financial year, the prescribed percentage of State average weekly earnings that is current at 1 July of that financial year. (2) The Minister must ensure— (a) that the review is completed within 6 months after the end of the financial year that applies under subsection (1); and (b) that the results of the review are set out in a written report furnished to the Minister. (3) The Minister must cause a copy of a report furnished to the Minister under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report. (4) If a review is undertaken under this section, this section will then not apply in relation to the next 2 financial years immediately following the financial year in which the review is completed. (5) In this section— Class 1 premium means a premium payable under this Part in respect of passenger cars garaged within Metropolitan Adelaide identified, from time to time, by the Minister for the purposes of this definition by notice in the Gazette; State average weekly earnings means the amount determined in accordance with the regulations by reference to publications of the Australian Statistician. Part 5—Amendment of Stamp Duties Act 1923 20—Insertion of Part 3 Division 11 After section 82A insert: