Part 4Third party insurance

Part 4—Third party insurance 99—Interpretation (1) In this Part, unless the context otherwise requires— approved insurer means a person or body of persons approved by the Minister as an insurer under this Part; bodily injury includes mental or nervous shock; GST law means— (a) A New Tax System (Goods and Services Tax) Act 1999 (Cwth); and (b) the related legislation of the Commonwealth dealing with the imposition of a tax on the supply of goods and services; insured motor vehicle or insured vehicle means a motor vehicle in relation to which a policy of insurance under this Part is in force; insured person means a person insured by a policy of insurance under this Part; mobile fork lift means a motor vehicle fitted with an apparatus of the kind commonly known as a fork lift and constructed or adapted solely or mainly for lifting and moving goods by means of the fork lift; the nominal defendant means a person appointed by the Minister to be the nominal defendant, and for the time being holding that appointment; owner means an owner or joint owner or part owner of a motor vehicle and a person who has the use of a motor vehicle under a hire-purchase agreement; participant in a road race includes a driver or navigator of, or passenger in, a motor vehicle that takes part in the road race; passenger, in relation to a motor vehicle, includes any person in or on the vehicle whether or not the person is travelling, has travelled or is proposing to travel in or on the vehicle; policy of insurance means a policy of insurance that complies with this Part; road race means any contest— (a) that tests the speed or reliability of motor vehicles or the skill or endurance of their drivers or navigators; and (b) that— (i) is declared to be an event to which section 33 of the Road Traffic Act 1961 applies; or (ii) takes place on a race track established or adapted for the purpose of such contests; self-propelled lawn care machine means a motor vehicle constructed and used for rolling, watering or otherwise maintaining lawn or grass, but does not include a self-propelled lawn mower; terrorist act has the same meaning as in the Terrorism (Commonwealth Powers) Act 2002. (1a) Where two corporations are related corporations for the purposes of the Corporations Act 2001 of the Commonwealth, they are related corporations for the purposes of this Part. (2) Other words and expressions used in this Part have the meaning assigned to them in section 5, unless the context otherwise requires. (3) Subject to subsection (3a), for the purposes of this Part, death or bodily injury will be regarded as being caused by or arising out of the use of a motor vehicle only if it is a direct consequence of— (a) the driving of the vehicle; or (b) the vehicle running out of control; or (c) a person travelling on a road colliding with the vehicle when the vehicle is stationary, or action taken to avoid such a collision. (3a) For the purposes of this Part, death or bodily injury will not be regarded as being caused by or arising out of the use of a motor vehicle if the death or bodily injury is caused by a terrorist act. (4) For the purposes of this Part, death or bodily injury will be regarded as being caused by or arising out of the use of a motor vehicle conditionally registered under section 25 that is a tractor, agricultural machine, mobile fork lift or self-propelled lawn care machine only if it is caused by or arises out of the use of the vehicle (as referred to in subsection (3)) on a road. 99A—Insurance premium to be paid on applications for registration (1) An applicant for— (a) the registration of a motor vehicle; or (b) an exemption from registration in respect of a motor vehicle; or (c) a permit in respect of a motor vehicle, must at the time of application pay to the Registrar the premium upon a policy of insurance in terms determined by the CTP Regulator for the motor vehicle in respect of which the application is made. (2) The approved insurer for a motor vehicle in respect of which an application for registration is made will be— (a) in the case of an application to register a new motor vehicle—the approved insurer selected by the CTP Regulator in accordance with a scheme determined by the Minister; or (b) in any other case— (i) the approved insurer selected by the applicant for registration; or (ii) if the applicant for registration fails to select an approved insurer—the approved insurer selected by the CTP Regulator in accordance with a scheme determined by the Minister. (2a) For the purposes of subsections (1) and (2), if a person is a participant in the periodic payment scheme under section 24A in respect of a particular motor vehicle— (a) the time of application in relation to a particular renewal will be taken to be the time when an amount for renewal of registration in accordance with the scheme is debited to the nominated account; and (b) without limiting subsection (3), the approved insurer for the motor vehicle will be taken to be the approved insurer selected, as provided by subsection (2), in the person's most recent application for registration of the vehicle. (3) Where an applicant purports to select a corporation as the approved insurer in respect of the motor vehicle, and the corporation is not an approved insurer but a related corporation is such an insurer, the CTP Regulator must, subject to any agreement with an approved insurer under this Part, select the related corporation as the approved insurer. (4) Where the CTP Regulator purports to select an approved insurer pursuant to the provisions of this section, that selection will be conclusively presumed to be valid and effectual for the purposes of this section and no claim or proceedings can lie against the Regulator in respect of any such selection. (5) The applicant must, in the application, furnish the Registrar with such information as may be necessary in order to determine the appropriate insurance premium. (6) Where as a result of any transfer in the ownership of a vehicle, any alteration to the nature of a vehicle, or any change in the use of a vehicle, a greater premium becomes payable in respect of the motor vehicle than that paid to the Registrar when the application was made, the insurer may recover the amount of the difference between the respective premiums as a debt in any court of competent jurisdiction. (7) Where by reason of any fact known to the insured person a greater premium becomes payable to the insurer in respect of the motor vehicle, the insured person must forthwith give the insurer notice in writing of that fact. (8) A policy of insurance in terms determined by the CTP Regulator is in force in respect of the motor vehicle as from the time at which the grant of registration, the exemption from registration, or permit becomes effective and, subject to this Part— (a) remains in force for the whole of the period for which registration is granted and for a further period of grace of 30 days (but falls due for renewal at the expiration of the former period); or (b) remains, subject to express provision in this Act for the policy to be effective for a longer period, in force for the whole of the period for which the exemption from registration, or permit, is granted, but then expires. (9) Subject to subsection (9a), the insurer under the policy of insurance relating to a motor vehicle is— (a) the approved insurer selected under the provisions of this section in respect of that motor vehicle; or (b) if the insurer referred to in paragraph (a), with the approval of the CTP Regulator and the consent of the registered owner of the motor vehicle, novates or assigns the policy of insurance to another approved insurer—that other approved insurer. (9a) If— (a) a new motor vehicle is registered for a period of more than 3 months; and (b) the registered owner of the vehicle, within the first 3 months in the period of registration of the vehicle, nominates an approved insurer other than the approved insurer selected by the CTP Regulator at the time of the application for registration of the vehicle, the policy of insurance relating to the motor vehicle will, on the commencement of the fourth month in the period of the registration of the vehicle, be taken to have been transferred from the approved insurer selected by the CTP Regulator to the approved insurer nominated by the registered owner of the vehicle (and the approved insurer to whom the policy of insurance is transferred then becomes the insurer under the policy of insurance relating to that motor vehicle). (9b) If a policy of insurance is transferred under subsection (9a) from one approved insurer (the old insurer) to another approved insurer (the new insurer), the old insurer must pay to the new insurer the same proportion of the insurance premium received by the old insurer for the policy of insurance as the unexpired portion of the period for which the policy remains in force bears to the whole of the period for which the policy of insurance is effective under this Part (and the amount payable under this subsection may be recovered by the new insurer from the old insurer as a debt in any court of competent jurisdiction). (9c) A nomination under subsection (9a) must be made in a manner and form determined by the CTP Regulator. (10) Where a policy of insurance comes into force in relation to a motor vehicle during the period of grace referred to in subsection (8), the period of grace thereupon terminates. (11) Where the registration of a motor vehicle is transferred, the policy of insurance continues in operation in relation to the person to whom the registration is transferred. (12) A policy of insurance cannot be cancelled while the registration, exemption from registration, or permit, in respect of the motor vehicle to which the policy relates remains in force but upon any renewal of registration a different approved insurer may be selected and that insurer thereupon becomes the insurer of the motor vehicle from the day and time at which the renewal becomes effective. (13) The Registrar must, subject to subsection (14), pay to an approved insurer the premiums collected by the Registrar in respect of policies of insurance in respect of which that approved insurer was selected as the insurer under this section. (14) The Registrar must retain out of the amounts collected by the Registrar under this section a sum of money determined by the CTP Regulator as costs associated with compulsory third party insurance. (15) The costs determined by the CTP Regulator under subsection (14) must include an amount to cover the costs reasonably incurred by the Registrar in connection with the administration of the compulsory third party insurance scheme. (17) A policy of insurance under this section is not invalidated by any error or omission on the part of the Registrar or any officer acting at the direction or under the control of the Registrar. (18) An entry in the register of motor vehicles kept under this Act to the effect that a specified insurer is, or was for a period to which the entry relates, the insurer under a policy of insurance relating to a specified motor vehicle is conclusive evidence that the insurer is, or was for that period, the insurer under such a policy of insurance relating to that motor vehicle. (19) An application for the issue of trade plates will, for the purposes of this section, be taken to be an application for registration in respect of a motor vehicle, and the policy of insurance that comes into operation upon the issue of the trade plates is effective (whether or not the trade plates have been transferred) in relation to any motor vehicle driven in pursuance of the trade plates. (20) For the purposes of this section, a motor vehicle is a new motor vehicle if— (a) the vehicle has not previously been registered under this Act or the law of any other State or Territory of the Commonwealth; and (b) less than 2 years have elapsed since the year and month in which the vehicle was manufactured. 101—Approved insurers (1) Subject to this section, any person or body (whether incorporated or unincorporated) that carries on, or intends to carry on, the business of insurance in this State, may apply to the Minister for approval as an insurer under this Part. (2b) An application for approval as an insurer under this Part must— (a) be made in a manner and form approved by the CTP Regulator; and (b) be lodged with the Regulator; and (c) be referred by the Regulator to the Minister, together with any recommendations of the Regulator to the Minister in relation to the application. (2c) The Minister may, after considering any recommendations made by the CTP Regulator in relation to an application for approval, grant or refuse the application. (3) If an application for approval under this section is made— (a) an approval cannot be granted within 3 months of the date of the application; and (b) if the applicant is approved, the approval takes effect on 1 July next following the date of the approval. (4) Before approving of an insurer the Minister may require the insurer to enter into an undertaking and an agreement by which the insurer accepts duties and obligations relating to insurance under this Part and matters incidental to those duties and obligations. (5) An approved insurer may, on or before 1 April in any year, apply to the Minister for the withdrawal of approval under this Part. (5a) An application for the withdrawal of approval under this Part must— (a) be made in a manner and form approved by the CTP Regulator; and (b) be lodged with the Regulator; and (c) be referred by the Regulator to the Minister, together with any recommendations of the Regulator to the Minister in relation to the application. (5b) The Minister may, after considering any recommendations made by the CTP Regulator in relation to an application for the withdrawal of approval under this Part, grant the application with effect from 1 July following the making of the application. (6) If— (a) an application for approval or withdrawal of approval under this Part is made other than in conformity with the limitations of time stipulated in this section; and (b) the Minister, after considering any recommendations made by the CTP Regulator in relation to the application, is satisfied that there are special circumstances justified in doing so, the Minister may grant the application with effect as from a date determined by the Minister. (7) The Minister may, by notice in writing served personally or by post upon an approved insurer, require the insurer to furnish the Minister, within such time as may be stipulated in the notice, with such evidence of the insurer's financial position and capacity to meet existing and future liabilities under policies of insurance under this Part as may be required in the notice. (8) If— (a) an approved insurer commits a breach of a term or condition of a provision of this Part, or a term or condition on an undertaking or agreement entered into pursuant to this section; or (b) an approved insurer fails to comply with a requirement under subsection (7); or (c) the Minister, after considering— (i) evidence furnished by an approved insurer in compliance with a requirement under subsection (7); and (ii) any recommendations made by the CTP Regulator in relation to the matter, is not satisfied that the approved insurer has sufficient financial resources to continue properly to carry on business as an approved insurer, the Minister may— (d) withdraw the approval of the insurer; or (e) suspend the approval of the insurer for such period as the Minister thinks fit. (9) The withdrawal, suspension or non-renewal of the approval of an insurer does not affect the validity of any policy of insurance. 102—Duty to insure against third party risks (1) A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road. (1a) However, subsection (1) does not apply to a person who drives a motor vehicle, or causes a motor vehicle to stand, if the person proves that the person— (a) drove the motor vehicle, or caused the motor vehicle to stand, in prescribed circumstances; and (b) did not know that the motor vehicle was uninsured. (1b) For the purposes of subsection (1a), a person may prove a matter referred to in that subsection by furnishing to the Commissioner of Police a statutory declaration in accordance with any requirements prescribed by the regulations. (1c) It is a defence to a charge of an offence against subsection (1) if the defendant was not a registered owner or the registered operator of the vehicle and the defendant proves that the defendant did not know, and could not reasonably be expected to have known, that the vehicle was uninsured. (2) If an uninsured motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence. (3) It is a defence to a charge of an offence against subsection (1) or (2) to prove that the motor vehicle was driven or left standing on a road in circumstances in which this Act permits an uninsured motor vehicle to be driven on a road. (3aa) It is a defence to a charge of an offence against subsection (2) to prove that— (a) the vehicle was not driven or left standing on the road by the defendant; and (b) the defendant had taken reasonable steps to ensure that any person lawfully entitled to use the motor vehicle would have been aware that the vehicle was uninsured. (3a) It is a defence to a charge of an offence against subsection (2) to prove that, in consequence of some unlawful act, the vehicle was not in the possession or control of the defendant at the time it was driven or left standing on the road. (3b) It is a defence to a charge of an offence against subsection (2) where the defendant is the last registered owner or last registered operator to prove that the defendant was not the owner or the operator of the motor vehicle, as the case may be, at the time of the alleged offence. (3c) The provisions of Schedule 1 apply to an offence against this section if evidence relating to the offence was obtained through the operation of a photographic detection device. (3d) A motor vehicle is driven or caused to stand by a person in prescribed circumstances for the purposes of subsection (1a) if— (a) the person is not an owner or the registered operator of the vehicle and the person is required by the person's employer to drive the vehicle, or to cause the vehicle to stand, in the course of the person's employment; or (b) the motor vehicle is driven or caused to stand in circumstances declared by the regulations. (4) This section does not apply to a person who, on any road, drives a motor vehicle, if— (a) the motor vehicle is registered in a proclaimed State or Territory of the Commonwealth or is otherwise permitted by the law of a proclaimed State or Territory of the Commonwealth to be driven on public roads within that proclaimed State or Territory; and (b) there is in force in that State or Territory in respect of the motor vehicle a policy of insurance— (i) that complies with the law of the State or Territory; and (ii) under which the owner and the driver of the motor vehicle are insured against liability which might be incurred by the owner or driver in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in this State. (5) For the purposes of subsection (4), the Governor may by proclamation declare any State or Territory, the law of which in the Governor's opinion substantially meets the requirements of this Part, to be a proclaimed State or Territory. (6) A proclamation under subsection (5) may be revoked or varied by a subsequent proclamation. owner, in relation to a vehicle, includes the last registered owner and the last registered operator of the vehicle, but does not include a person who takes the vehicle on hire. 104—Requirements if policy is to comply with this Part (1) In order to comply with this Part, a policy of insurance must— (a) insure the owner of the motor vehicle to which the policy relates, and any other person who at any time drives or is a passenger in or on the vehicle, whether with or without the consent of the owner, in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth; and (b) be in the terms, and contain the conditions and warranties, determined by the CTP Regulator from time to time. (2) However, a policy of insurance complies with this Part even though it does not extend to liability arising from the death of, or bodily injury to, a participant in a road race caused by the act or omission of another participant in the road race. 105—Policies to conform to amending Acts When an Act comes into operation altering the insurance required to be given by a policy under this Part or the rights or liabilities of the insurer under any such policy, every policy of insurance providing insurance required by this Part and in force when that Act comes into operation, or at any time thereafter, will be taken to provide the insurance required by this Part, as altered by that Act. 107—Rights of persons named in policies Notwithstanding any enactment, an insurer under a policy of insurance (whether under this Part or otherwise) in relation to a motor vehicle is, as from the date of the policy, liable to indemnify the persons or classes of persons specified in the policy in respect of any liability which the policy purports to cover. 109—Liability of insurers where premium not paid The fact that the correct premium has not been paid in respect of a policy of insurance under this Part does not affect the validity or operation of the policy. 110—Liability of insurer to pay for emergency treatment (a) — (i) a legally qualified medical practitioner or registered nurse renders emergency treatment in respect of bodily injury (including fatal injury) to a person caused by or arising out of the use of an insured motor vehicle; or (ii) the person so injured is immediately after the injury conveyed in any vehicle; and (b) within one month after the occurrence out of which the death or bodily injury arose, the medical practitioner, nurse or person who conveyed the injured person gives notice in writing of a claim under this section to the insurer in relation to the motor vehicle, the insurer must make such of the following payments as are applicable to the case: (c) to the medical practitioner—the prescribed fee for each person to whom emergency treatment is rendered together with any travelling expenses reasonably and necessarily incurred in respect of that emergency treatment; and (d) to the nurse—the prescribed fee for all emergency treatment rendered by the nurse to the person or persons injured in the accident together with any travelling expenses reasonably and necessarily incurred by the nurse in respect of that emergency treatment (which sum will, if emergency treatment is rendered to two or more persons, be taken to have been paid on behalf of all those persons in equal shares); and (e) to any person who conveyed the injured person as mentioned in paragraph (a)—an amount to be ascertained in accordance with the regulations. (2) Where bodily injury (including fatal injury) is caused by or arises out of the use of two or more motor vehicles insured by different insurers, each insurer must pay an equal share of the payments required to be made under subsection (1). (3) The liability (if any)— (a) of the owner or driver of the motor vehicle, or of a passenger in or on the vehicle, in respect of the death or bodily injury; and (b) of the insurer to the owner, driver or passenger in respect of the contract of insurance; and (c) of the injured person or the person's personal representatives to the person to whom a payment is made under this section, is reduced by the amount paid by the insurer under this section. emergency treatment means such medical or surgical treatment or examination by a legally qualified medical practitioner or a registered nurse as is immediately required as the result of injury referred to in subsection (1). (6) A sum payable under this section is recoverable as if it were a simple contract debt due from the insurer to the person entitled to that sum. (7) The Commissioner of Police must, if so requested by a person who alleges entitlement to a payment under this section, furnish that person with any information at the Commissioner's disposal as to— (a) the identification marks of any motor vehicle that the person alleges to be a motor vehicle out of the use of which the death or bodily injury arose; and (b) the identity and address of the person who was using the vehicle at the time of the event out of which the death or bodily injury arose. (8) A person who was using a motor vehicle at the time when death or bodily injury was caused by or arose from such use must, upon the request of any person who alleges entitlement to payment under this section, furnish the person with the name and address of the insurer in relation to that vehicle at the time of the death or injury. 111—Liability of insurer to pay for hospital treatment When a payment is made (whether or not with an admission of liability) by an insurer under or in consequence of a policy of insurance under this Part in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle, the insurer must, in addition to making any other payments provided for by this Part, make such payments with respect to hospital treatment as are payable pursuant to any Act. 111A—Liability of insurer in respect of burial at public expense (a) the death of a person has been caused by, or has arisen out of the use of, an insured motor vehicle; and (b) the deceased person has been buried at public expense, the Treasurer may, in any court of competent jurisdiction, recover from the insurer the cost of the burial. 112—Liability of insurer when judgment obtained against insured (a) a person has obtained judgment in an action against an insured person for death or bodily injury caused by, or arising out of the use of, an insured motor vehicle; and (b) before the action came on for hearing the insurer knew that the action had been commenced, the judgment creditor may recover by action from the insurer such amount of the money (including costs or a proportionate part of those costs) payable pursuant to the judgment as relates to death or bodily injury and has not been paid. 113—Liability of insurer where the insured is dead or cannot be found (a) death or bodily injury has been caused by, or has arisen out of the use of, an insured motor vehicle, but any person insured under a policy of insurance in respect of the vehicle who is wholly or partly liable for the death or bodily injury is dead or cannot be served with process; and (b) a person who could have obtained a judgment in respect of that death or bodily injury against the insured person if the person were living or had been served with process, has given notice of a claim under this section and a short statement of the grounds of the claim as soon as possible after ascertaining that the insured person was dead or could not be found, or within such time as would prevent the possibility of the insurer being prejudiced by want of such notice, the person who could have so recovered judgment against the insured person may recover the amount of that judgment by action against the insurer. (2) Without limiting the scope of subsection (1), it is declared that a right of action against the insurer under that subsection in a case where the insured person is dead exists and has existed since the enactment of that subsection notwithstanding that the claimant has or had a right of action against the estate of the deceased person under the Survival of Causes of Action Act 1940 or any other law. 113A—Insurer not liable for aggravated damages or exemplary or punitive damages An insurer is not liable to pay any aggravated damages or exemplary or punitive damages awarded in an action against the insured person in respect of death or bodily injury caused by or arising out of the use of a motor vehicle insured under this Part and the insured person is not entitled to be indemnified by the insurer in respect of such an award. 114—Certain defences ineffective in actions against insurers It is not a defence to an action under section 112 or 113 that the insurer is not liable under a policy of insurance by reason of the fact that— (a) the policy was obtained by mis-statement or non-disclosure; or (b) the insured person has committed a breach of or failed to comply with a term, condition or warranty of the policy or a provision of this Part. 115—Claims against nominal defendant where vehicle not identified (a) death, or bodily injury, has been caused by, or has arisen out of the use of, a motor vehicle; and (b) the identity of the vehicle has not after due inquiry and search been ascertained, a person who could have obtained a judgment in respect of that death or bodily injury against a person insured under a policy of insurance in respect of the vehicle (assuming that the vehicle had been an insured vehicle at the relevant time) may recover by action against the nominal defendant the amount of the judgment that could have been so recovered. (2) The nominal defendant is not liable to satisfy a judgment obtained against the nominal defendant, but the judgment and the nominal defendant's costs must be paid— (a) out of money contributed by approved insurers pursuant to a scheme under section 119; or (b) if no such scheme is in operation, by the Minister and approved insurers in accordance with section 120. (3) A person who proposes to proceed against the nominal defendant in pursuance of this section must, as soon as reasonably practicable after it becomes apparent that the identity of the vehicle is not readily ascertainable, give to the nominal defendant notice in writing of the person's claim and a short statement of the grounds on which it is made. (4) Where a claimant fails to give notice of a claim in accordance with the requirements of subsection (3), and the court before which the action is brought is satisfied on the balance of probabilities that the defendant has been prejudiced in the conduct of the defendant's defence by that failure, it may, if the justice of the case so requires, dismiss the action. 116—Claim against nominal defendant where vehicle uninsured uninsured motor vehicle means a motor vehicle in relation to which no policy of insurance as required by this Part is in force, but does not include— (a) a prescribed agricultural machine (within the meaning of section 12) in relation to which there is in force a policy of public liability insurance referred to in section 12(2b); or (b) a motor vehicle in relation to which there is in force a policy of public liability insurance referred to in section 12B(2); or (c) a motor vehicle of a kind exempted by the regulations from insurance under this Part in relation to which there is in force a policy of insurance as required by the regulations; or (d) a motor vehicle in relation to which there is in force a policy of public liability insurance referred to in section 134H(a); or (e) a motor vehicle in relation to which there is in force a policy of insurance— (i) that complies with the law of some other State or Territory of the Commonwealth; and (ii) under which the owner and driver of the motor vehicle are insured against liability that might be incurred by either or both of them in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the motor vehicle in this State; or (f) a motor vehicle of a class prescribed by the regulations for the purposes of this paragraph. (2) A person claiming damages in respect of death or bodily injury caused by or arising out of the use of an uninsured motor vehicle on a road may bring an action for the recovery of those damages against the nominal defendant. (3) Where an action may be brought against the nominal defendant under subsection (2)— (a) the amount recoverable is the amount of the judgement that in the circumstances could have been recovered in respect of the death or bodily injury against a person who would have been an insured person if the vehicle had been an insured vehicle at the relevant time; and (b) no action for damages in respect of the death or bodily injury may be commenced or proceeded with against such a person or a person liable in respect of the acts or omissions of such a person. (4) A person who proposes to proceed against the nominal defendant in pursuance of this section must, as soon as reasonably practicable after it becomes apparent that the motor vehicle in respect of which the claim arises was uninsured, give to the nominal defendant notice in writing of the claim and a short statement of the grounds on which it is made. (5) Where a claimant fails to give notice of a claim in accordance with the requirements of subsection (4) and the court before which the action is brought is satisfied on the balance of probabilities that the defendant has been prejudiced in the conduct of the defendant's defence by that failure, it may, if the justice of the case so requires, dismiss the action. (6) The nominal defendant is not liable to satisfy a claim or judgment obtained against the nominal defendant under this section but the claim or judgment and the nominal defendant's costs must be paid out of money contributed by approved insurers pursuant to a scheme under section 119. (7) Where— (a) a sum is properly paid by the nominal defendant to satisfy a claim made or judgment obtained in respect of death or bodily injury caused by or arising out of the use of an uninsured motor vehicle; and (b) the driver of the uninsured vehicle was wholly or partly liable for the death or bodily injury; and (c) the driver of the uninsured vehicle— (i) drove the vehicle, or did or omitted to do anything in relation to the vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results; or (ii) drove the vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle; or (iii) drove the vehicle while there was present in the driver's blood a concentration of .1 grams or more of alcohol in 100 millilitres of blood, the nominal defendant may, by action in a court of competent jurisdiction, recover that sum together with costs from the driver or a person liable in respect of the acts or omissions of the driver. (7aa) If— (a) a sum is properly paid by the nominal defendant to satisfy a claim made or judgment obtained in respect of death or bodily injury caused by or arising out of the use of an uninsured motor vehicle; and (b) the driver of the uninsured vehicle was wholly or partly liable for the death or bodily injury; and (c) the driver of the uninsured vehicle committed an offence against section 43 of the Road Traffic Act 1961, the nominal defendant may, by action in a court of competent jurisdiction, recover that sum, or such part of that sum as the court thinks just and reasonable in the circumstances, together with costs from the driver or a person liable in respect of the acts or omissions of the driver. (7a) A finding of a court in proceedings for an offence as to— (a) the incapacity of the driver of the uninsured vehicle to exercise effective control of the vehicle at the relevant time owing to the influence of intoxicating liquor or a drug; or (b) the concentration of alcohol present in 100 millilitres of the blood of the driver of the uninsured vehicle at the relevant time; or (c) whether the driver of the uninsured vehicle is guilty of an offence against section 43 of the Road Traffic Act 1961, will be treated as determinative of the issue in an action by the nominal defendant under this section. (7ab) For the purposes of this section, a person will be taken to have committed an offence against section 43 of the Road Traffic Act 1961 if, and only if, the person has been found guilty of the offence. (7b) Where— (a) a sum is properly paid by the nominal defendant to satisfy a claim made or judgment obtained in respect of death or bodily injury caused by or arising out of the use of an uninsured motor vehicle; and (b) the driver of the uninsured vehicle was wholly or partly liable for the death or bodily injury; but (c) the driver of the uninsured vehicle did not drive the vehicle as referred to in subsection (7)(c)(i), (ii) or (iii) or do or omit anything as referred to in subsection (7)(c)(i), the nominal defendant may, by action in a court of competent jurisdiction, recover that sum, or such part of that sum as the court thinks just and reasonable in the circumstances, together with costs from the driver or a person liable in respect of the acts or omissions of the driver. (7c) It is a defence to an action under subsection (7b) if the defendant proves that— (a) the motor vehicle was being used at the relevant time by or with the consent of the owner; and (b) the defendant did not know and could not reasonably be expected to have known that the vehicle was an uninsured motor vehicle. (7d) The defence in subsection (7c) does not apply if it is proved that the driver of the uninsured motor vehicle— (a) drove the vehicle while not duly licensed or otherwise permitted by law to drive the vehicle; or (b) drove the vehicle while the vehicle was overloaded, or in an unsafe, unroadworthy or damaged condition; or (c) committed an offence against section 43 of the Road Traffic Act 1961. (7e) A court before which an action is brought for recovery from a person of a sum paid by the nominal defendant to satisfy a claim made or judgment obtained must, if the court is to determine the amount that it is just and reasonable in the circumstances for the nominal defendant to recover from the person, take into account— (a) the extent to which the person contributed to or is otherwise responsible for the liability to which the claim or judgment relates; and (b) any other matter that the court considers relevant. (8) The nominal defendant must pay any amount recovered under this section to approved insurers in such amounts or proportions as the Minister directs. 116A—Appointment of nominal defendant (1) The Minister may, by instrument published in the Gazette, appoint a person (whether a natural person or a body corporate) to be the nominal defendant for the purposes of this Part. (2) The person for the time being holding the appointment as the nominal defendant may be designated or described (without specification of an actual name) as "The Nominal Defendant" in any legal process or other document. 117—Interpretation of expression in sections 113 and 115 In sections 113 and 115 the expression a person who could have obtained a judgment in respect of that death or bodily injury includes a tortfeasor against whom a claim has been made in respect of that death or bodily injury and who is entitled to recover contribution in respect of it from some other person pursuant to Part 3 of the Wrongs Act 1936. 118A—Appointment of nominal defendant when approved insurer is wound up etc (1) Where the Minister is satisfied that an approved insurer, being a corporation incorporated in the State or elsewhere, has insufficient assets to meet all its liabilities and— (a) is being wound up; or (b) has entered into a compromise or arrangement with its creditors, the Governor may, on the recommendation of the Minister, by proclamation declare that this section applies to that insurer and thereupon this section will apply to that insurer in accordance with the declaration. (3) Where this section applies to an insurer, any person having any claim or entitled to bring any action or enforce any judgment against that insurer— (a) under the terms and conditions of a policy of insurance under this Part; or (b) pursuant to any provision of this Part, may make or bring that claim or action or enforce that judgment against the nominal defendant. (4) The nominal defendant has the same duties and liabilities and has and may exercise the same powers and rights in or in relation to any such claim, action or judgment as the insurer would have if it were not being wound up, or had not entered into a compromise or arrangement with its creditors. (5) Notwithstanding any other Act, where the nominal defendant pays or is liable to pay any sum pursuant to subsection (3) and the amount so paid or liable to be paid or any part of it would, if paid by the insurer, have been recoverable by the insurer from another person under any provision of this Part or a contract or arrangement for reinsurance, the nominal defendant has and may exercise the rights and powers of the insurer under that contract or arrangement so as to enable the nominal defendant to recover that amount from that other person. (6) The insurer or any officer or agent of the insurer or, where the insurer is being wound up, the liquidator of the insurer must, upon the request of the nominal defendant forthwith— (a) furnish the nominal defendant with such particulars as the nominal defendant requires relating to claims, actions and judgments referred to in subsection (3) of which the insurer or liquidator has received notice; and (b) make available to the nominal defendant all books and papers of the insurer relating to those claims, actions and judgments; and (c) give the nominal defendant such assistance as the nominal defendant reasonably requires in relation to any such claim, action or judgment. (7) All money paid out or costs incurred by the nominal defendant under this section in respect of any claim, action or judgment will be paid— (a) out of money contributed by approved insurers pursuant to a scheme under section 119; or (b) if no such scheme is in operation, by the Treasurer and approved insurers in accordance with section 120. (8) The amount of all money paid out or costs incurred by the nominal defendant under this section may, in the winding up of the insurer or in any compromise or arrangement between the insurer and any of its creditors, be proved as a debt due to the nominal defendant by the insurer, and the nominal defendant must pay any amounts received as dividends out of the assets of the insurer, and any amounts recoverable by the insurer under this Part that have been recovered by the nominal defendant, to such approved insurers in such amounts or proportions as the Minister directs. 118B—Interpretation of certain provisions where claim made or action brought against nominal defendant (1) The provisions of this Act prescribed by subsection (2) will be taken to apply where a claim is made or an action is brought against the nominal defendant under this Part as if, for the purposes of those provisions— (a) the motor vehicle in relation to which the claim is made or the action is brought were a motor vehicle insured under a policy of insurance; and (b) the nominal defendant were the insurer and any liability of the nominal defendant were a liability of the insurer under the policy of insurance or the other provisions of this Part. (2) For the purposes of subsection (1), the following provisions of this Act are prescribed: (a) sections 110, 111 and 111A; (b) sections 124 and 124AA; (d) section 125B; (da) section 126A; (e) sections 127, 127A, 127B and 127C; (f) a provision specified by the regulations for the purposes of subsection (1). 119—Scheme under which approved insurers indemnify liabilities incurred by nominal defendant (1) The Minister may, by notice in the Gazette, publish a scheme under which all approved insurers will contribute money in proportions provided for in the scheme for— (a) satisfying claims made, or judgments pronounced, against the nominal defendant under this Part; and (b) otherwise indemnifying the nominal defendant against payments made, and costs incurred, in respect of claims under this Part. (2) The Minister may, by notice published in the Gazette, vary or revoke any scheme previously published under this section. (3) The nominal defendant may by action in any court of competent jurisdiction enforce the terms of any scheme published under this section. 120—Satisfaction of judgment against nominal defendant where no scheme in force (1) If no scheme is in force under the preceding section, the amount of a judgment against the nominal defendant and the nominal defendant's costs and any other money that the nominal defendant is liable to pay under this Part will be paid by the Treasurer out of the General Revenue of the State. (2) This section without further appropriation is sufficient authority for making payments under subsection (1). (3) Every person who was an approved insurer at the date of the accident giving rise to the injury is liable to pay a contribution to the Treasurer to reimburse the Treasurer for the amount paid pursuant to this section. (4) The contribution of each insurer will be determined by the Treasurer and in so determining the Treasurer must have regard to the premium income received for insurance under this Part during the previous year by each insurer. 121—Policy to bind all insured persons While a policy of insurance remains in force, every person who is insured in terms of the policy is contractually bound by the provisions of the policy in all respects as if the person had agreed with the insurer so to be bound. 122—Cancellation of policy (1) An insurer may, subject to subsection (2), by notice in writing served personally or by post upon the insured person, cancel a policy of insurance in respect of a motor vehicle. (2) A policy of insurance may not be cancelled under subsection (1) unless the insurer has received from the Registrar a written notice stating that no registration, exemption from registration or permit is in force in relation to the motor vehicle. 123—Right of insurer against unauthorised driver of vehicle Where a person without lawful excuse drives a motor vehicle without first obtaining the consent of its owner, the insurer may, by action in a court of competent jurisdiction, recover from the person any money paid or costs incurred by the insurer in respect of a claim for death or bodily injury caused by the person's driving. 124—Duty to cooperate with insurer (1) Where an accident caused by, or arising out of the use of, a motor vehicle results in the death of, or bodily injury to, any person, written notice must be given as soon as practicable to the person who is the insurer under a policy of insurance in respect of the vehicle stating in detail— (a) the fact of the accident; and (b) the time and place at which it occurred; and (c) the circumstances of the accident; and (ca) the name, date of birth and address of the driver of the motor vehicle at the time of the accident; and (d) the name and address of any person killed or injured in the accident; and (e) the names and addresses of any witnesses of the accident. (2) Where notice is not given as required by subsection (1), the owner, the person in charge, and the driver, of the motor vehicle at the time of the accident are each guilty of an offence. Maximum penalty: $1 250 or imprisonment for 3 months. (3) It is a defence to a prosecution under subsection (2)— (a) that the defendant did not know of the accident, or gave the requisite notice as soon as practicable after the accident came to the defendant's knowledge; or (b) that the defendant believed upon reasonable grounds that the requisite notice had been given; or (c) if the defendant has not given notice of a particular detail as required by subsection (1)—that the defendant, having made reasonable inquiries, complied with the requirements of subsection (1) to the best of the defendant's knowledge, information and belief. (3a) A person who at the time of an accident of a kind referred to in subsection (1) was the owner, the person in charge, or the driver, of the motor vehicle must co-operate fully with the insurer in respect of a claim made in respect of the accident. Maximum penalty: $5 000. (3b) The duty to co-operate under subsection (3a) will include, in the case of the owner, a duty to give the insurer access to the vehicle, and, if required, possession of the vehicle, or part of the vehicle, on reasonable terms and conditions. (4) Where a claim is made upon an insured person in respect of an accident of a kind referred to in subsection (1), the insured person must as soon as practicable give notice of the claim to the insurer and furnish the insurer with such information in relation to the claim as the insurer may reasonably require. (5) The insurer may, by notice in writing, require— (a) the driver of the motor vehicle at the time of the accident to produce the licence or permit in pursuance of which the driver was driving the motor vehicle, for the inspection of the insurer; or (b) the owner of the motor vehicle at the time of the accident to produce prescribed documents relating to the motor vehicle, for the inspection of the insurer, and if a person of whom such a requirement has been duly made fails to comply with the requirement the person is guilty of an offence. (6) A person must not give any notice or information under this section that is, to the person's knowledge, false or misleading in any material particular. Maximum penalty: $50 000 or imprisonment for one year. (6a) Where a claim is made in respect of an accident of a kind referred to in subsection (1), a person must not give the insurer, or someone known by the person to be engaged by the insurer in connection with the claim, any information that the person knows is material to the claim and is false or misleading. Maximum penalty: $50 000 or imprisonment for one year. (6b) If— (a) an amount has been paid to the claimant in connection with a claim in respect of an accident of a kind referred to in subsection (1); and (b) the claimant has been found guilty of an offence against subsection (6) or (6a) in connection with the claim, the person who made the payment is entitled to recover from the claimant the amount of any financial benefit that the claimant gained from the commission of the offence together with any amount that the court considers appropriate in respect of costs incurred in connection with the claim. (7) A notice or information given under this section is privileged from production or disclosure in any legal proceedings except proceedings under this Part. 124AA—Limitation of liability in respect of foreign awards (1) This section applies in relation to actions brought before a court of another country or state (except a state or territory of the Commonwealth). (2) Any limitation on liability for damages for death or bodily injury arising out of the use of a motor vehicle that is relevant to the operation of this Part and the degree of liability under the policy of insurance under this Part (including, but not limited to, the Civil Liability Act 1936) is a substantive law of the State and is intended to apply in relation to any action that arises out of the occurrence of the death or bodily injury— (a) irrespective of where the death or bodily injury occurred; and (b) despite the fact that the court before which the action is brought would not (but for this subsection) apply, or take into account, the law of this State. (a) an action is brought in respect of death or bodily injury arising out of the use of an insured motor vehicle in a court that is not a court of the State; and (b) despite subsection (2), the court awards an amount to a person that is in excess of the amount (if any) that would have been awarded in a similar action before a court of the State; and (c) the insurer is liable to pay the amount awarded, the following provisions apply: (d) the insurer is entitled to recover the excess from, or set off the excess against any payment to be made to, the person to whom the amount is awarded (the judgment creditor); (e) the insured person's liability to the judgment creditor is fully discharged on payment by the insurer to the judgment creditor of— (i) the amount awarded; or (ii) the amount awarded less the amount of the excess. (4) In the course of proceedings under subsection (3)(d), a court may— (a) receive in evidence any transcript of evidence in proceedings before the court by which the amount was awarded and draw any conclusion of fact from the evidence it considers proper; or (b) adopt any of the court's findings of fact. 124A—Recovery by insurer (1) Where an insured person incurs a liability against which the insured person is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance— (aa) by driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results; or (a) by driving a motor vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle; or (b) by driving a motor vehicle while there is present in the insured person's blood a concentration of .1 grams or more of alcohol in 100 millilitres of blood, the insurer may, by action in a court of competent jurisdiction, recover from the insured person any money paid or costs incurred by the insurer in respect of that liability. (2) Where an insured person incurs a liability against which the insured person is insured under this Part and the insured person has, to the prejudice of the insurer— (aa) contravened or failed to comply with a term of the policy of insurance by committing an offence against section 43 of the Road Traffic Act 1961; or (a) contravened or failed to comply with any other term of the policy of insurance other than one referred to in subsection (1); or (b) contravened or failed to comply with— (i) a requirement of section 124; or (ii) a provision of section 126, the insurer may, by action in a court of competent jurisdiction, recover from the insured person so much of the money paid or costs incurred by the insurer in respect of that liability as the court thinks just and reasonable in the circumstances. (2a) A finding of a court in proceedings for an offence as to— (a) the insured person's incapacity to exercise effective control of the vehicle at the time of the motor accident owing to the influence of intoxicating liquor or a drug; or (b) the concentration of alcohol present in 100 millilitres of the insured person's blood at the time of the motor accident; or (c) whether the insured person is guilty of an offence against section 43 of the Road Traffic Act 1961, will be treated as determinative of the issue in an action by the insurer under this section. (2b) For the purposes of this section, a person will be taken to have committed an offence against section 43 of the Road Traffic Act 1961 if, and only if, the person has been found guilty of the offence. (3) Where an insured person incurs, as a participant in a road race, a liability against which the insured person is insured under this Part, the insurer may, by action in a court of competent jurisdiction, recover from the organiser of the road race the amount of the liability and the reasonable costs incurred by the insurer in respect of that liability. (4) A court before which an action is brought for recovery from a person of a sum paid by an insurer to satisfy a liability incurred by an insured person must, if the court is to determine the amount that it is just and reasonable in the circumstances for the insurer to recover from the person, take into account— (a) the extent to which the person contributed to or is otherwise responsible for the liability incurred; and (b) any other matter that the court considers relevant. 124AB—Recovery of an excess in certain cases (1) Where an insured person incurs a liability against which the insured person is insured under this Part and the liability arises out of an accident which was to the extent of more than 25 per cent the fault of the insured person, the insurer may recover from the insured person as a debt— (a) if the money paid and costs incurred by the insurer in respect of the liability do not exceed the prescribed amount— (i) the amount of that money paid and costs incurred; or (ii) if the amount to be recovered from the insured person is received within 1 month following a first request for payment—95% of the amount of that money paid and costs incurred; and (b) if the money paid and costs incurred by the insurer exceed the prescribed amount— (i) the prescribed amount; or (ii) if the amount to be recovered from the insured person is received within 1 month following a first request for payment—95% of the prescribed amount. (2) The insurer is not entitled to recover an amount under subsection (1) if the insurer exercises any other right of recovery against the insured person under this Part. (3) For the purposes of this section, the prescribed amount is $460. (4) The amount prescribed by subsection (3) will be indexed so that it is adjusted on 1 January of each year, beginning on 1 January 2012, by multiplying the stated amount by a proportion obtained by dividing the CPI for the September quarter of the immediately preceding year by the CPI for the September quarter 2010 (with the amount so adjusted being rounded up to the nearest multiple of $10). (5) A reference in this section to the prescribed amount in connection with costs incurred and money paid by the insurer in respect of a liability arising out of an accident is a reference to the prescribed amount for the year in which the accident occurred (having regard to any adjustment made to the prescribed amount as required under subsection (4)). 124AC—Credit for payment of expenses by insurer If an amount claimed as expenses incurred as a result of death or bodily injury caused by or arising out of the use of a motor vehicle is paid by an insurer to or on behalf of the claimant, the amount of any damages payable to the claimant in respect of the death or bodily injury is reduced by the amount so paid. 125—Power of insurer to deal with claims against insured (1) An insurer may, on behalf of an insured person— (a) conduct any legal proceedings in respect of circumstances out of which a claim against the insurer has arisen, or may arise; and (b) conduct and control negotiations in respect of any claim against the insured person; and (c) at any stage of those negotiations or proceedings pay, compromise or settle any claim against the insured person. (2) The insured person must sign and execute all such warrants, authorities, and other documents as are necessary to give effect to this section and, if the insured person makes default in doing so or is absent or cannot be found, the insurer may sign or execute the warrants, authorities, or other documents on behalf of the insured person. (3) Where— (a) as the result of the use of a motor vehicle an accident happens which results in the death of or bodily injury to any person, as well as damage to property; and (b) claims are made in respect of the death or bodily injury and also in respect of the damage to property, then nothing said or done in any negotiations for settlement of either claim, and no judgment given in legal proceedings in respect of either claim, can be evidence in legal proceedings in respect of the other claim. 125A—Joinder of insurer as defendant to an action (1) Where an action for damages or other compensation has been commenced in a court against an insured person in respect of death or bodily injury resulting from the use of a motor vehicle, the court may, on the application of the insurer, join it as a defendant to the action. (2) The court may not join an insurer as a defendant to an action under subsection (1) unless the court is of the opinion that— (a) there is an actual or potential conflict of interest between the insurer and the insured in relation to the presentation of the defence; and (b) the defence proposed by the insurer in relation to which the actual or potential conflict of interest arises is, in the circumstances of the case, not merely speculative. (3) Where, in pursuance of this section, an insurer has been joined as a defendant to an action— (a) the insurer will be taken to have directly assumed the liability (if any) of the insured person upon the claim in respect of death or bodily injury and, where such a liability is found to exist, judgment upon that claim will be given not against the insured person but against the insurer; and (b) the insured person remains a party to the action only for the purposes of— (i) defending a claim that is not a claim in respect of death or bodily injury; or (ii) proceeding upon a counterclaim, and where there is no such claim or counterclaim, the insured person ceases to be a party to the action; and (c) the insured person may not be joined as a third party to the action; and (d) the insured person is, notwithstanding paragraphs (b) and (c), entitled to be heard in the proceedings upon any question related to the claim in respect of death or bodily injury; and (e) for the purpose referred to in paragraph (d), the insured person is entitled to be represented by counsel of the insured person's own choice, and the insured person's costs must be paid by the insurer unless, in the opinion of the court, there are special reasons for ordering otherwise; and (f) the insurer may apply to call the insured person to give evidence and, in that event, the person will be called, or summoned to appear, as a witness and be liable to cross-examination by the insurer. (4) No judgment or finding of a court in proceedings in which an insurer has been joined as a defendant under this section is binding in subsequent proceedings against the insured person under section 124A. 125B—Acquisition of vehicle by insurer (a) the insurer considers it necessary to acquire the motor vehicle for the purposes of the conduct of negotiations or proceedings connected with the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle; and (b) the owner of the vehicle is unwilling to sell the vehicle to the insurer at all or for a price the insurer considers reasonable, the insurer may acquire the vehicle compulsorily in accordance with this section. (2) The insurer may, for the purposes of compulsorily acquiring the motor vehicle, apply to the Magistrates Court for a valuation of the vehicle. (3) If within one month after the date of a valuation by the Court, the insurer pays into the Court the amount of the valuation, the Court— (a) must make an order vesting title to the motor vehicle in the insurer; and (b) may make any other incidental or ancillary orders that may be necessary or desirable in the circumstances of the case. (4) The insurer must, after acquiring the vehicle, allow inspection and, if necessary, testing, of the vehicle, on reasonable terms and conditions, by— (a) any person who is or may become a party to proceedings in respect of death or bodily injury caused by or arising out of the use of the vehicle; or (b) any person who otherwise has a proper interest in inspecting the vehicle; or (c) any agent of a person referred to in paragraph (a) or (b). 126—Duty of insured not to litigate or negotiate claim An insured person must not, without the consent in writing of the insurer concerned— (a) enter upon, or incur any expense in, any litigation; or (b) make any offer or promise of payment or settlement; or (c) make any payment or settlement; or (d) make any admission of liability; or (e) authorise the repair of the motor vehicle, or dismantle, or wilfully cause damage to, the motor vehicle, in respect of any claim in respect of which the person is insured with that insurer, but this provision does not prevent any person from truthfully answering any question reasonably asked of the person by any police officer. 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 the person 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. medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student). 127—Medical examination of claimants claimant means a person who has made a claim, or on whose behalf a claim has been made, for bodily injury caused by or arising out of the use of a motor vehicle. (2) A claimant must— (b) within 21 days of consulting a legally qualified medical practitioner in relation to the injury to which the claim relates, or such longer period as may be reasonable in the circumstances of the case or as the insurer may allow, inform the insurer, by notice in writing, of— (i) the name of the medical practitioner; and (ii) the day on which the consultation occurred; and (c) within 21 days of receiving (either personally or through a legal practitioner engaged by the claimant) a written report from a legally qualified medical practitioner consulted by the claimant in relation to the injury, or such longer period as may be reasonable in the circumstances of the case, send a copy of that report to the insurer. (6) If a claimant fails to comply with subsection (2)(b) or (c) and proceedings have been commenced before a court— (a) the court may award costs against the claimant; and (b) the court may take that failure into account in assessing an award of compensation in favour of the claimant. (6a) Subsection (6) will not apply to any failure by a claimant to comply with subsection (2)(c) if the claimant has dealt with the medical report and taken other action in accordance with any rules of the court under which a party to proceedings may be relieved from the obligation to disclose to another party a medical report the disclosure of which would unfairly prejudice the party's case. (7) In deciding on an award of costs under subsection (6)(a) or a reduction in an award of compensation under subsection (6)(b), the court may take into account— (a) the effect that the non-compliance with subsection (2)(b) or (c) has had on the proper conduct of the case by any other party to the action; and (b) the effect that that non-compliance may have had on the possibility of settling the case before trial. 127A—Control of medical services and charges for medical services to injured persons injured person means a person who has suffered bodily injury caused by or arising out of the use of a motor vehicle; prescribed limit, in relation to prescribed services, means the limit applying to the prescribed services for the purposes of section 32 of the Workers Rehabilitation and Compensation Act 1986; prescribed scale, in relation to prescribed services, means the scale of charges applying to the prescribed services for the purposes of section 32 of the Workers Rehabilitation and Compensation Act 1986; prescribed services means services of a kind referred to in section 32(2) of the Workers Rehabilitation and Compensation Act 1986, but does not include services of a kind excluded from the application of this section by notice made under subsection (2). (2) The Minister may, by notice in the Gazette— (a) require that, for the purposes of this section, the scales of charges made for the purposes of section 32 of the Workers Rehabilitation and Compensation Act 1986 be read subject to modifications specified in the notice; (b) exclude specified services from the application of this section; (c) vary or revoke a notice under this subsection. (3) The Minister must, before issuing a notice under subsection (2)(a) or a notice varying or revoking such a notice, consult with professional associations representing the providers of services to which the notice relates. (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). (4) For the purposes of this section, a reference in section 32 of the Workers Rehabilitation and Compensation Act 1986 or the scales of charges made for the purposes of that section to a worker is to be taken to include a reference to an injured person. (5) For the purposes of this section, a charge for prescribed services is excessive if— (a) the charge exceeds the prescribed limit or the charge allowed for the prescribed services under the prescribed scale; or (b) in the case of prescribed services for which there is not a prescribed limit and to which a prescribed scale does not apply—the charge exceeds an amount that the Magistrates Court considers reasonable for the provision of the services. (6) The Magistrates Court may, on application by the insurer— (a) where an injured person has been charged an excessive amount for prescribed services—reduce the charge by the amount of the excess and, if the charge has been paid to the service provider, order the service provider to pay the amount of the excess to the insurer; or (b) where an injured person has received prescribed services that the Court considers were, in the circumstances of the case, inappropriate or unnecessary—disallow the charge for the services and, if the charge has been paid to the service provider, order the service provider to pay the amount of the charge to the insurer. (7) Proceedings may not be commenced under subsection (6)(a) in relation to a charge for a prescribed service for which there is not a prescribed limit and to which a prescribed scale does not apply if, prior to the injured person being charged for the service, the insurer agreed to the amount of the charge. (8) Proceedings may not be commenced under subsection (6) unless the insurer has— (a) first given the service provider notice that the insurer claims the charge to be excessive or the services to be inappropriate or unnecessary, as the case may be, and of the reasons for the claim; and (b) allowed at least 30 days from the giving of the notice for the service provider and any professional association or other person acting on behalf of the service provider to respond to the claim and consult with the insurer; and (c) given due consideration to any response to the claim and proposals for settlement of the matter made by or on behalf of the service provider; and (d) given the service provider notice of the result of the insurer's consideration of the matter and allowed a further period of 30 days to elapse from the giving of that notice for any further consultations if requested by the service provider. (9) A person who provides prescribed services to an injured person, knowing that the person's injury has been caused by or arisen out of the use of a motor vehicle, must not, if a prescribed scale applies to the services, charge an amount for the services exceeding the amount allowed under the prescribed scale. (10) Proceedings may not be commenced under subsection (6) or for an offence against subsection (9) in respect of prescribed services provided in relation to bodily injury caused by or arising out of the use of a motor vehicle unless liability to damages (whether being the whole or part only of the amount claimed) in respect of that injury has been accepted by or established against an insured person or the insurer. (11) Proceedings for an offence against subsection (9) may be commenced at any time within 12 months after— (a) liability to damages (whether being the whole or part only of the amount claimed) has been accepted or established as referred to in subsection (10); or (b) receipt by the insurer of an account for payment of the charge to which the proceedings relate, whichever is the later. (12) In proceedings for an offence against subsection (9) it is a defence if the defendant proves that, at the time the defendant charged for the services, the defendant, having made reasonable inquiries, had reason to believe that neither an insured person nor the insurer has or might have any liability to damages in respect of the injury. 127B—Liability of insurer to pay treatment, care and support costs 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 the person 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. 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. 128—Duty of insurers to furnish information (1) The Minister may by written notice given to an approved insurer require the insurer to furnish to the Minister within a period fixed by the notice, being not less than two months, any information reasonably required by the Minister and specified in the notice, relating to— (a) premiums received for insurance under this Part; (b) claims paid under this Part; (c) persons insured under this Part; (d) any other matters relevant to this Part. (2) An insurer who receives such a notice must comply with it; but it is a defence to a charge of non-compliance to show that the insurer had a reasonable excuse for the non-compliance. (3) An insurer must not wilfully or negligently furnish to the Minister any false information relating to matters specified in a notice under this section. 129A—Commissions and other financial benefits and inducements prohibited without Minister's approval (1) An approved insurer must not give, or offer to give, to any person, in respect of any policy of insurance, a commission, discount, gift, rebate or any other form of financial benefit or inducement. (2) Subsection (1) does not apply in relation to financial benefits or inducements of a class approved by the Minister from time to time. 131—Insurance by visiting motorists The Registrar must not grant temporary registration of a motor vehicle to a person visiting the State unless an insurance policy is in force under which persons who drive or are passengers in or on that vehicle in the State are, in the Registrar's opinion, adequately insured against any liability which may be incurred by them in respect of the death of or bodily injury to any person caused by or arising out of the use of that motor vehicle in the State. 132—Power to disqualify on application of insurer (1) An approved insurer may apply on complaint to the Magistrates Court for an order that any person be disqualified for such period as the Court fixes from holding or obtaining a driver's licence. (2) If it is proved to the satisfaction of the Court that the defendant is likely, in the event of continuing to drive motor vehicles, to endanger unduly the safety of the public, the Court may make such order under subsection (1) as it thinks just. 133—Contracting out of liability (1) Subject to subsection (2), any contract (whether under seal or not) by virtue of which a person contracts in advance out of any right to claim damages or any other remedy in respect of death or bodily injury caused by or arising out of the use of a motor vehicle is to that extent void. (2) Neither subsection (1) nor any corresponding previous enactment will be construed as applying to a right or remedy in respect of loss of or damage to property. 134—Persons entitled to act in connection with claims (1) A person must not— (a) for or in the expectation of directly or indirectly receiving any reward accept any instructions or authority to act on behalf of any person in respect of the making, commencement, resisting, negotiation, compromise or settlement of any claim or action for damages for death, bodily injury, or injury to property, arising out of the use of a motor vehicle; or (b) for or in the expectation of directly or indirectly receiving any reward make, commence, resist, negotiate, compromise or settle or cause to be made, commenced, resisted, negotiated, compromised or settled on behalf of any person, any such claim or action; or (c) hold themself out as being willing to act for reward on behalf of any person in making, commencing, resisting, negotiating, compromising or settling any such claim or action. (2) This section does not apply to— (a) any qualified legal practitioner acting in the course of the legal practitioner's profession; (b) any officer of an association formed for the protection of the interests of employees and whether registered under any Commonwealth or State Act or not, when acting in the course of the officer's duties for a member of that association; (c) any person employed or instructed by an approved insurer to act on its behalf in connection with— (i) any claim or action in a case where the insurer is liable to indemnify the person against whom the claim is made or the action brought; (ii) any claim for injury to property in a case where the insurer is exercising rights of subrogation in respect of that injury and where the person so employed or instructed limits themself to making and settling the claim without threatening or otherwise referring to legal proceedings in respect of the claim. (3) An agreement to pay money for work done or services rendered contrary to this section is void and any money so paid is recoverable by the person who has paid it.