94Indemnity

94 Indemnity S. 94(1) amended by No. 67/2013 s. 649(Sch. 9 item 32(11)). (1) The Commission is liable to indemnify— S. 94(1)(a) amended by No. 127/1986 s. 102(Sch. 4 item 29.2). (a) the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory; and S. 94(1)(b) amended by Nos 84/1994 s. 45(a), 104/1997 s. 56(3), 18/2022 s. 33(1). (b) the operator, owner or driver of a railway train or tram, and the manager of the railway or tramway on which a railway train or tram is operated, in respect of any liability in respect of an injury or death caused by or arising out of the use of the railway train or tram in Victoria; and S. 94(1)(c) inserted by No. 18/2022 s. 33(2). (c) any person in respect of any liability for an injury or death of a pedal cyclist caused by or arising out of a collision in Victoria between a pedal cycle being ridden by the pedal cyclist and a door of a registered motor vehicle being opened, or that has been opened, by the person— other than liability to pay compensation under the **Accident Compensation Act 1985** or the **Workplace Injury Rehabilitation and Compensation Act 2013** or an Act or law referred to in section 37. (2) Subsection (1) does not apply— S. 94(2)(a) amended by Nos 127/1986 s. 102(Sch. 4 item 29.2), 32/1988 s. 21(3). (a) in respect of any period in respect of which the transport accident charge applicable to the motor vehicle for that period has not been paid; or S. 94(2)(aa) inserted by No. 32/1988 s. 21(4). (aa) in respect of the period commencing when the transport accident charge applicable to the motor vehicle was due to be paid and ending when that transport accident charge was paid; or S. 94(2)(b) amended by Nos 44/1989 s. 41(Sch. 2 item 42.3), 84/1994 s. 45(b)(i)(ii), 104/1997 s. 56(4), 26/2000 s. 28. (b) in respect of a railway train or tram during any period in respect of which an agreement under section 115 in respect of the railway train or tram is not in force; or S. 94(2)(c) inserted by No. 26/2000 s. 28, amended by Nos 54/2000 s. 25(6), 18/2022 s. 33(3). (c) in respect of any liability of an indemnified person to pay compensation for a matter for which compensation is awarded under Subdivision (1) of Division 2 of Part 4 of the **Sentencing Act 1991**. S. 94(2A) inserted by No. 84/2000 s. 31(1). (2A) Subsection (1) does not apply in respect of any liability in respect of a transport accident involving an organised motor vehicle race or speed trial or a test in preparation for such a race or trial to which section 41(1) applies. S. 94(2B) inserted by No. 94/2004 s. 30. (2B) With respect to subsection (2)(aa), subsection (1) does apply in respect of any period when the charge was unpaid if the charge was subsequently paid within 28 days after it was due to be paid. S. 94(3) amended by No. 18/2022 s. 33(4). (3) If judgment is entered against an indemnified person in respect of liability in respect of which the Commission is liable under this section to indemnify the indemnified person, the judgment creditor may recover against the Commission a sum equivalent to the amount (including costs) unpaid in respect of the judgment or the amount of the liability of the Commission under the indemnity, whichever is the lesser. (4) A judgment creditor may not recover against the Commission under subsection (3) unless the judgment creditor gave to the Commission before, or within a reasonable time after the judgment is entered, notice in writing of the intention to make the claim and a short statement of the circumstances giving rise to the claim. (5) Despite subsection (3)— S. 94(5)(a) amended by No. 18/2022 s. 33(5). (a) if an indemnified person is or becomes bankrupt and the Commission is required to pay to the trustee in bankruptcy the amount of the liability under subsection (3), the sum recoverable by the judgment creditor against the Commission must be reduced by the amount so paid; and (b) if execution of any such judgment is stayed pending appeal, the judgment creditor may not recover an amount against the Commission until the expiration of the period for which execution of the judgment is stayed. (6) The payment by the Commission of the sum recoverable by the judgment creditor, to the extent of the payment, is a discharge of— S. 94(6)(a) amended by No. 18/2022 s. 33(6). (a) the liability of the indemnified person to the judgment creditor; and S. 94(6)(b) amended by No. 18/2022 s. 33(6). (b) the liability (if any) of the Commission to the indemnified person. S. 94(7) amended by No. 18/2022 s. 33(7). (7) If liability has been incurred to a person by an indemnified person and the indemnified person— (a) cannot be identified; or (b) is dead or cannot be found or, in the case of a corporation, has been wound up— the person may recover against the Commission a sum equivalent to the amount for which the person could have obtained a judgment against the indemnified person or equivalent to the amount of the liability of the Commission under the indemnity, whichever is the lesser. S. 94(7A) inserted by No. 84/2000 s. 31(2), amended by No. 18/2022 s. 33(8). (7A) The entitlement of a person to recover against the Commission under subsection (7) is not affected by the death of an indemnified person indemnified under that subsection before any proceedings are commenced. S. 94(8) amended by No. 18/2022 s. 33(9). (8) Without affecting the generality of subsection (7), an indemnified person shall be deemed to be unable to be found if the indemnified person cannot be found at the last-known place of residence of the indemnified person. (9) A person may not recover against the Commission under subsection (7) unless— S. 94(9)(a) amended by No. 18/2022 s. 33(10). (a) the person gave to the Commission within a reasonable time after knowing that the indemnified person could not be found notice in writing of the intention to make the claim, setting out their full name and address, the date and place of the accident, the general nature of the injuries received and a short statement of the circumstances of the accident; or (b) the person satisfies the court before which the claim is heard that the Commission has not been materially prejudiced in its defence to the claim by any failure by the person to give such notice at the proper time or by any omission from or any insufficiency or defect in the notice. (10) The Commission— S. 94(10)(a) amended by No. 18/2022 s. 33(11)(a). (a) may undertake the settlement of any claim against an indemnified person; and S. 94(10)(b) amended by No. 18/2022 s. 33(11)(b). (b) may take over during such period as it thinks proper the conduct and control on behalf of the indemnified person of any proceedings to enforce the claim or for the settlement of any question arising from it; and S. 94(10)(c) amended by No. 18/2022 s. 33(11)(c). (c) may defend or conduct such proceedings in the name of an indemnified person and on an indemnified person's behalf and, if need be may, without the consent of the indemnified person, to the extent of the liability of the Commission but no further or otherwise, admit liability; and S. 94(10)(d) amended by No. 18/2022 s. 33(11)(b). (d) subject to this section, must indemnify the indemnified person against all costs and expenses of or incidental to any such proceedings while the Commission retains the conduct and control of them. S. 94(11) amended by No. 18/2022 s. 33(12). (11) An indemnified person must sign all warrants and authorities that the Commission requires for the purpose of enabling the Commission to have the conduct and control of proceedings under subsection (10). S. 94(12) amended by No. 18/2022 s. 33(13). (12) If an indemnified person fails to comply with a requirement under subsection (11) upon being requested to do so, the Commission may sign all warrants and authorities specified in subsection (11) on behalf of the indemnified person. S. 94(13) amended by No. 127/1986 s. 102(Sch. 4 item 29.2). (13) A reference in this section to the driver of a motor vehicle, railway train or tram is a reference to a person who drives the motor vehicle, railway train or tram whether with or without the authority of the owner. S. 94(14) inserted by No. 18/2022 s. 33(14). (14) In this section— ***indemnified person*** means a person who the Commission is liable to indemnify under subsection (1). S. 94A inserted by No. 50/1994 s. 108.