South Australia
Motor Vehicles (Third Party Insurance) Amendment Bill 2010
A Bill For
An Act to amend the Motor Vehicles Act 1959; and to make related amendments to the Civil Liability Act 1936.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of Motor Vehicles Act 1959
4	Amendment of section 99—Interpretation
5	Amendment of section 116—Claim against nominal defendant where vehicle uninsured
6	Amendment of section 118B—Interpretation of certain provisions where claim made or action brought against nominal defendant
7	Amendment of section 124—Duty to cooperate with insurer
8	Insertion of section 124AA
124AA	Limitation of liability in respect of foreign awards
9	Amendment of section 124A—Recovery by insurer
10	Amendment of section 124AB—Recovery of excess in certain cases
11	Amendment of section 127—Medical examination of claimants
12	Insertion of section 127AB
127AB	Certain requirements in respect of claims
13	Amendment of Schedule 4—Policy of insurance
Schedule 1—Related amendments and transitional provisions
Part 1—Amendment of Civil Liability Act 1936
1	Amendment of section 52—Damages for non-economic loss
Part 2—Transitional provisions
2	Transitional provisions

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Motor Vehicles (Third Party Insurance) Amendment Act 2010.
2—Commencement
This Act will come into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Motor Vehicles Act 1959
4—Amendment of section 99—Interpretation
	(1)	Section 99(1)—after the definition of GST law insert:
heavy vehicle driver fatigue scheme means a scheme for the management of fatigue in drivers of regulated heavy vehicles—
	(a)	established by regulations made under the Road Traffic Act 1961; or
	(b)	established under the law of another State or a Territory; or
	(c)	brought within the ambit of this definition by the regulations;
	(2)	Section 99(1)—after the definition of participant insert:
parties in the chain of responsibility—a person is a party in the chain of responsibility in relation to a regulated heavy vehicle if the person falls within the chain of responsibility in relation to the vehicle as specified by regulations made for the purposes of this definition;
	(3)	Section 99(1)—after the definition of policy of insurance insert:
regulated heavy vehicle has the same meaning as in section 110AA of the Road Traffic Act 1961;
relevant offence against a heavy vehicle driver fatigue scheme means an offence against such a scheme consisting of driving whilst fatigued or exceeding the allowable work time for a driver or failing to have the required rest time for a driver;
	(4)	Section 99(3)—delete "as arising" and substitute:
arising
	(5)	Section 99(3)—after "only if it is a" insert:
direct
	(6)	Section 99—after subsection (3) insert:
Examples—
Examples of situations that would not be expected to fall within the ambit of subsection (3) include—
	(a)	death or bodily injury caused by or arising out of the displacement of goods while a motor vehicle is being loaded or unloaded;
	(b)	death or bodily injury caused by or arising out of the unintended movement of a motor vehicle while the vehicle is being displayed, serviced, repaired, restored or equipped.
	(7)	Section 99(3a)—delete "as arising" and substitute:
arising
	(8)	Section 99(4)—delete "as arising" and substitute:
arising
5—Amendment of section 116—Claim against nominal defendant where vehicle uninsured
	(1)	Section 116(7)(c)(iii)—delete ".15 grams" and substitute:
.1 grams
	(2)	Section 116—after subsection (7) insert:
	(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—
	(i)	committed an offence against section 43 of the Road Traffic Act 1961; or
	(ii)	if the uninsured vehicle was a regulated heavy vehicle—committed a relevant offence against a heavy vehicle driver fatigue scheme,
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.
	(3)	Section 116(7a)—after paragraph (b) insert:
		or
	(c)	whether the driver of the uninsured vehicle is guilty of—
	(i)	an offence against section 43 of the Road Traffic Act 1961; or
	(ii)	a relevant offence against a heavy vehicle driver fatigue scheme,
	(4)	Section 116(7a)—delete "subsection (7)" and substitute:
this section
	(5)	Section 116—after subsection (7a) insert:
	(7ab)	For the purposes of this section, a person will be taken to have committed—
	(a)	an offence against section 43 of the Road Traffic Act 1961; or
	(b)	a relevant offence against a heavy vehicle driver fatigue scheme,
if, and only if, the person has been found guilty of the offence.
	(7ac)	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 regulated heavy vehicle; and
	(b)	the driver of the regulated heavy vehicle—
	(i)	was wholly or partly liable for the death or bodily injury; and
	(ii)	committed a relevant offence against a heavy vehicle driver fatigue scheme; and
	(c)	a party in the chain of responsibility in relation to the regulated heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly concerned in, or a party to, the commission of the offence,
the nominal defendant may, by action in a court of competent jurisdiction, recover from the party so much of the sum paid or costs incurred by the nominal defendant as the court thinks just and reasonable in the circumstances.
	(7ad)	For the purposes of subsection (7ac), the question of whether a party in the chain of responsibility in relation to a regulated heavy vehicle has aided, abetted, counselled, procured or induced, or been knowingly concerned in, or a party to, the commission of a relevant offence against a heavy vehicle driver fatigue scheme is to be determined on the balance of probabilities.
	(7ae)	If an accident caused by, or arising out of the use of, an uninsured regulated heavy vehicle results in the death of, or bodily injury to, a person, a party in the chain of responsibility in relation to the vehicle must not persuade or attempt to persuade the driver of the vehicle to contravene or fail to comply with an obligation owed by the driver to the nominal defendant under this Part.
Maximum penalty: $10 000.
	(6)	Section 116(7d)—after paragraph (b) insert:
		or
	(c)	committed an offence against section 43 of the Road Traffic Act 1961; or
	(d)	committed a relevant offence against a heavy vehicle driver fatigue scheme.
	(7)	Section 116—after subsection (7d) insert:
	(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.
6—Amendment of section 118B—Interpretation of certain provisions where claim made or action brought against nominal defendant
	(1)	Section 118B(2)(b) and (c)—delete paragraphs (b) and (c) and substitute:
	(b)	sections 124 and 124AA;
	(2)	Section 118B(2)(e)—delete "and 127A" and substitute:
, 127A and 127AB
7—Amendment of section 124—Duty to cooperate with insurer
	(1)	Section 124(1)—after paragraph (c) insert:
	(ca)	the name, date of birth and address of the driver of the motor vehicle at the time of the accident; and
	(2)	Section 124(3a), penalty provision—delete the penalty provision and substitute:
Maximum penalty: $5 000.
	(3)	Section 124(6a)—delete "upon an insured person"
8—Insertion of section 124AA
After section 124 insert:
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 Schedule 4 (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.
	(3)	If—
	(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.
9—Amendment of section 124A—Recovery by insurer
	(1)	Section 124A(1)(b)—delete ".15 grams" and substitute:
.1 grams
	(2)	Section 124A(1a)—after paragraph (b) insert:
		or
	(c)	whether the insured person is guilty of—
	(i)	an offence against section 43 of the Road Traffic Act 1961; or
	(ii)	a relevant offence against a heavy vehicle driver fatigue scheme,
	(3)	Section 124A(1a)—delete "subsection (1)" and substitute:
this section
	(4)	Section 124A(1a)—redesignate subsection (1a) as amended by this section as subsection (2a) and relocate the subsection so that it follows subsection (2)
	(5)	Section 124A(2)—before paragraph (a) insert:
	(aa)	contravened or failed to comply with a term of the policy of insurance by committing—
	(i)	an offence against section 43 of the Road Traffic Act 1961; or
	(ii)	a relevant offence against a heavy vehicle driver fatigue scheme; or
	(6)	Section 124A(2)(a)—delete "a term" and substitute:
any other term
	(7)	Section 124A—before subsection (3) insert:
	(2b)	For the purposes of this section, a person will be taken to have committed—
	(a)	an offence against section 43 of the Road Traffic Act 1961; or
	(b)	a relevant offence against a heavy vehicle driver fatigue scheme,
if, and only if, the person has been found guilty of the offence.
	(8)	Section 124A—after subsection (3) insert:
	(4)	If—
	(a)	a sum is properly paid by the insurer 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 insured regulated heavy vehicle; and
	(b)	the driver of the regulated heavy vehicle—
	(i)	was wholly or partly liable for the death or bodily injury; and
	(ii)	has, to the prejudice of the insurer, contravened or failed to comply with a term of the policy of insurance by committing a relevant offence against a heavy vehicle driver fatigue scheme; and
	(c)	a party in the chain of responsibility in relation to the regulated heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly concerned in, or a party to, the commission of the offence,
the insurer may, by action in a court of competent jurisdiction, recover from the party so much of the sum paid or costs incurred by the insurer as the court thinks just and reasonable in the circumstances.
	(5)	For the purposes of subsection (4), the question of whether a party in the chain of responsibility in relation to a regulated heavy vehicle aided, abetted, counselled, procured or induced, or was knowingly concerned in, or a party to, the commission of a relevant offence against a heavy vehicle driver fatigue scheme is to be determined on the balance of probabilities.
	(6)	If the death of, or bodily injury to, a person is caused by or arises out of the use of an insured regulated heavy vehicle, a party in the chain of responsibility in relation to the vehicle must not persuade or attempt to persuade the driver of the vehicle to contravene or fail to comply with an obligation owed by the driver to the insurer under this Part.
Maximum penalty: $10 000.
	(7)	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.
10—Amendment of section 124AB—Recovery of excess in certain cases
	(1)	Section 124AB(1)(a) and (b)—delete paragraphs (a) and (b) and substitute:
	(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)	Section 124AB—after subsection (2) insert:
	(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)).
11—Amendment of section 127—Medical examination of claimants
Section 127(5)(c)—delete "or compensation" and substitute:
, compensation, interest or costs
12—Insertion of section 127AB
After section 127A insert:
127AB—Certain requirements in respect of claims
	(1)	A person claiming damages or other compensation in respect of death or bodily injury caused by or arising out of the use of a motor vehicle must cooperate fully in respect of his or her claim with the insurer for the purpose of giving the insurer sufficient information—
	(a)	to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent; and
	(b)	to be able to make an early and informed assessment of liability; and
	(c)	to be able to make an informed offer of settlement (if appropriate).
	(2)	In particular, the claimant must comply with any reasonable request by the insurer to furnish information or to produce specified documents or records.
	(3)	The insurer may require a claimant to verify by statutory declaration any information, document or record furnished or produced to the insurer.
	(4)	If a claimant fails to comply with this section—
	(a)	the claimant is not entitled, until he or she complies with this section, to commence proceedings or to continue proceedings that have been commenced in respect of the injury or death; and
	(b)	the claimant is not entitled to damages, compensation, interest or costs for any period during which the failure continues.
	(5)	A person must not furnish information, or produce a document or record, under this section that is, to his or her knowledge, false or misleading in a material particular.
Maximum penalty: $50 000 or imprisonment for 1 year.
13—Amendment of Schedule 4—Policy of insurance
	(1)	Schedule 4 clause 1—delete ", or arising out of the use of," and substitute:
or arising out of the use of
	(2)	Schedule 4 clause 2(c)—delete ".15 grams" and substitute:
.1 grams
	(3)	Schedule 4 clause 2—after paragraph (f) insert:
		or
	(g)	if the person is the driver of the vehicle when it is involved in an accident in which a person is killed or injured—commit an offence against section 43 of the Road Traffic Act 1961; or
	(h)	if the vehicle is a regulated heavy vehicle—commit a relevant offence against a heavy vehicle driver fatigue scheme.

Schedule 1—Related amendments and transitional provisions
Part 1—Amendment of Civil Liability Act 1936
1—Amendment of section 52—Damages for non-economic loss
	(1)	Section 52(2)(a)—delete "equal gradations of non‑economic loss" and substitute:
equal gradations that are strictly applied according to the severity of the non‑economic loss
	(2)	Section 52(2)(a)—after "conceivable kind" insert:
and so as to provide, at this point (insofar as reasonably practicable), strict proportionality against that standard between injured persons according to the extent of non‑economic loss that has been suffered
	(3)	Section 52(2)—after paragraph (a) insert:
Example—
Suppose A claims damages for personal injury. An assessment of A's injury results in the conclusion that the level of non‑economic loss represents one fifth of the gravest loss conceivable. The numerical value to be assigned to A's non‑economic loss should be 12.
Part 2—Transitional provisions
2—Transitional provisions
	(1)	Subject to this clause, an amendment made to the Motor Vehicles Act 1959 by this Act does not affect a cause of action, right or liability that arose before the commencement of the amendment.
	(2)	Section 124AA(3) of the Motor Vehicles Act 1959, inserted by section 8 of this Act, applies in relation to any action commenced after the day on which the Bill for this Act was first introduced in the Parliament.