40Circumstances in which certain compensation is not payable or is reduced

40 Circumstances in which certain compensation is not payable or is reduced (1) The Commission is not liable to pay compensation under section 44 or 45 to a person who is injured as a result of a transport accident if— (a) the person— (i) was driving a motor vehicle at the time of the transport accident; and (ii) is convicted, in respect of driving the motor vehicle at that time, of an offence under section 49(1)(a) of the **Road Safety Act 1986** or under a law that is, in relation to that Act, a corresponding law— unless the person satisfies the Commission that the intoxicating liquor or drug did not contribute in any way to the transport accident; or S. 40(1)(b) amended by No. 34/2023 s. 59. (b) the person was, at the time of the transport accident, the driver of, or a passenger in, a motor vehicle owned by the person in respect of which a transport accident charge applicable in respect of a period including that time had not been paid; or (c) the person was, at the time of the transport accident, the driver of a motor vehicle and— (i) had never held a licence to drive a motor vehicle of that class under the **Road Safety Act 1986** or a corresponding previous enactment or under a law that is in relation to the **Road Safety Act 1986** a corresponding law or under a law of another country; or (ii) held or had held such a licence but, at the time of the transport accident, it was suspended or had been cancelled; or (iii) in the case of a transport accident occurring on or after the commencement of section 12 of the **Transport Accident (Amendment) Act 2000**, held or had held such a licence but, at the time of the transport accident, it had not been renewed for at least 3 years; or (d) the person— (i) was, at the time of the transport accident, the driver of or a passenger in a motor vehicle being used for or in connection with or in the commission of an indictable offence, stealing or attempting to steal a motor vehicle, resisting or preventing the lawful apprehension or detention of that person or any other person or intentionally causing or attempting to cause injury to that person or any other person; and (ii) is convicted of that offence. S. 40(2) amended by No. 94/2004 s. 11(5)(a). (2) The Commission is not liable to pay compensation under section 44, 45, 47, 49, 50 or 51 to a person who is injured in a transport accident if the person— (a) was driving a motor vehicle at the time of the transport accident; and S. 40(2)(b) amended by Nos 80/2010 s. 4(1), 43/2012 s. 3(Sch. item 52). (b) is convicted of an offence in relation to the transport accident under section 49(1)(ba), (c), (ca), (d), (e), (ea) or (eb), 56(2) or 56(7) of the **Road Safety Act 1986** or under a law that is, in relation to that Act, a corresponding law. S. 40(3) amended by Nos 94/2003 s. 41(1)(b), 94/2004 s. 11(5)(a). (3) The Commission is not liable to pay compensation under section 47, 49, 50 or 51 to a person who is injured in a transport accident if the person was driving a motor vehicle at the time of the transport accident and is convicted, in respect of driving the motor vehicle at that time— (a) of an offence under section 49(1)(a) of the **Road Safety Act 1986** or under a law that is, in relation to that Act, a corresponding law; or S. 40(3)(b) amended by No. 94/2003 s. 41(1)(a). (b) of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the **Road Safety Act 1986** or under a law that is, in relation to that Act, a corresponding law and the relevant level of concentration of alcohol in the person's blood was 0⋅24 grams or more per 100 millilitres of blood or in the person's breath was 0⋅24 grams or more per 210 litres of exhaled air, as the case requires— unless the person satisfies the Commission that the intoxicating liquor or drug or the concentration of alcohol in the blood or breath, as the case may be, did not contribute in any way to the transport accident. S. 40(3A) inserted by No. 49/2014 s. 54(1). (3A) Subsection (3B) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted, or found guilty, in respect of driving the motor vehicle at that time— (a) of an offence under section 49(1)(bc) or (j) of the **Road Safety Act 1986** or under a law of another State or of a Territory that is declared to be a corresponding law under section 47A(2) of that Act; and (b) the level of concentration of alcohol in the person's blood was 0⋅24 grams or more per 100 millilitres of blood or in the person's breath was 0⋅24 grams or more per 210 litres of exhaled air, as the case requires. S. 40(3B) inserted by No. 49/2014 s. 54(1). (3B) The Commission is not liable to pay compensation under section 47, 49, 50 or 51 to the person unless the person satisfies the Commission that the following did not contribute in any way to the transport accident— (a) the concentration, or presence, of alcohol in his or her blood or breath; (b) the concentration, or presence, of drugs in his or her blood or oral fluid; (c) the combination of matters referred to in subparagraphs (a) and (b). (4) Subsection (5) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at that time— (a) of an offence under section 49(1)(b), 49(1)(f) or 49(1)(g) of the **Road Safety Act 1986** or under a law that is in relation to that Act, a corresponding law; and S. 40(4)(b) amended by No. 94/2003 s. 41(2). (b) the relevant level of concentration of alcohol in the person's blood was more than 0⋅05 grams per 100 millilitres of blood or in the person's breath was more than 0⋅05 grams per 210 litres of exhaled air, as the case requires. S. 40(4A) inserted by No. 80/2010 s. 4(2). (4A) Subsection (5A) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted in respect of driving the motor vehicle at the time of an offence under section 49(1)(bb), (h) or (i) of the **Road Safety Act 1986** or under a law that is in relation to that Act a corresponding law. S. 40(4B) inserted by No. 49/2014 s. 54(2). (4B) Subsection (5B) applies if a person who is injured in a transport accident was driving a motor vehicle at the time of the transport accident and is convicted, or found guilty, in respect of driving the motor vehicle at the time of an offence under section 49(1)(bc) or (j) of the **Road Safety Act 1986** or under a law of another State or of a Territory that is declared to be a corresponding law under section 47A(2) of that Act. S. 40(5) amended by No. 94/2003 s. 41(3). (5) The compensation under section 44 or 45 in respect of a person to whom subsection (4) applies— (a) is reduced by one-third if the concentration was more than 0·05 and less than 0·12; and (b) is reduced by two-thirds if the concentration was 0·12 or more and less than 0·24; and (c) is not payable if the concentration was 0·24 or more— unless the person satisfies the Commission that the concentration of alcohol in the blood or breath of the person did not contribute in any way to the transport accident. S. 40(5A) inserted by No. 80/2010 s. 4(3). (5A) The compensation under section 44 or 45 in respect of a person to whom subsection (4A) applies is reduced by one-third unless the person satisfies the Commission that the concentration of drugs in the blood of the person did not contribute in any way to the transport accident. S. 40(5B) inserted by No. 49/2014 s. 54(3). (5B) The compensation under section 44 or 45 in respect of a person to whom subsection (4B) applies is reduced by, in any case, one third and, if the level of alcohol in the person's blood was not less than 0·12 grams and less than 0·24 grams per 100 millilitres of blood or in the person's breath not less than 0·12 grams and less than 0·24 grams per 210 litres of exhaled air, by an additional one third unless the person satisfies the Commission that the following did not contribute in any way to the transport accident— (a) the concentration, or presence, of alcohol in his or her blood or breath; (b) the concentration, or presence, of drugs in his or her blood or oral fluid; (c) the combination of matters referred to in subparagraphs (a) and (b). (6) For the purposes of subsection (1), a person who drives a motor vehicle at a particular time is not to be deemed never to have held a licence to drive a motor vehicle of that class if at that time— (a) the person was— (i) the holder of a learner permit in respect of a motor vehicle of that class under the **Road Safety Act 1986** or under a law that is, in relation to that Act, a corresponding law; or (ii) participating in a training program accredited under the **Road Safety Act 1986**; and (b) in the case of a motor vehicle other than a motor cycle or a tractor, the person had a licensed driver (not being the holder of a licence issued on probation) sitting beside him or her. S. 40A inserted by No. 84/2000 s. 12.