Transport Accident Amendment Bill
2013
Introduction Print
EXPLANATORY MEMORANDUM
General
The main purpose of this Bill is to make amendments to the Transport
Accident Act 1986 (the Act) to further improve the operation of that Act.
The Bill includes a number of amendments to maintain the integrity and
improve the operational efficiency of the Victorian transport accident scheme
by clarifying the intention of the Act and increasing certain benefits to
persons and families of those who are injured or killed in transport accidents.
Some of the key amendments will—
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
clarify the definition of severe long term mental or severe
long-term behavioural disturbance or disorder for the purposes
of the serious injury provisions in Part 6 of the Act;

increase the amount of family counselling available for the
families of people who die or are severely injured in a transport
accident;

provide that the TAC is only liable to pay the reasonable costs
of a certificate, or a report obtained for medico-legal purposes,
if it is provided jointly to the TAC and the person who is
injured;

increase travel or accommodation expenses for members of the
immediate family visiting an injured person in hospital;

repeal Part 2A of the Act, which dealt with the TAC's
obligations in relation to the winding up the Farrow Group of
Building Societies and associated entities;
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BILL LA INTRODUCTION 15/10/2013

extend reimbursement of reasonable travel costs to persons
attending a Registered Training Organisation, TAFE institution
or university who were studying before their transport accident
and who are unable to travel by their pre-accident means of
transport, because of their injuries;

enable introduction of guidelines regarding the use and
application of the A.M.A Guides for the assessment of the
degree of permanent impairment of a person injured as a result
of a transport accident; and

introduce a more flexible approach to the payment of funeral
costs under the Act.
Clause Notes
Clause 1
sets out the purpose of the Bill, which is to make amendments to
the Transport Accident Act 1986 to further improve the
operation of that Act.
Clause 2
provides for the Bill to commence on the day after the day on
which it receives the Royal Assent except section 27, which is
taken to have come into operation on 16 October 2013.
Clause 27 contains an amendment to section 93 to incorporate
clinical criteria to be applied when assessing whether a person
has a severe long-term mental or severe long-term behavioural
disturbance or disorder.
Clause 3
provides that in this Act, the Transport Accident Act 1986 is
called the Principal Act.
Clause 4
amends the definition of dependent child in section 3(1) and
amends section 68(3)(a) of the Act to provide that a dependent
child of a person who dies as a result of a transport accident, who
was under the age of 18 at the time of the transport accident, is
able to make a claim for dependency benefits at any time before
attaining the age of 21 years, if no dependency claim has been
made on their behalf.
Clause 5
inserts a new subsection (aa) in the definition of medical
service in section 3(1) and inserts a new subsection (aaa) in
section 23(1)(a) to provide that occupational therapy services are
included as a medical service and that these services require prior
approval. The provision also adds occupational therapists to the
list of practitioners that the TAC may require a person to be
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examined by under section 71 of the Act for the purposes of
assessing the person's entitlement to compensation.
Clause 6
inserts the definitions of RTO, TAFE institute and university in
section 3(1) and substitutes the definition of transportation costs
in section 3(1) of the Act to extend reimbursement of reasonable
travel costs to persons attending RTO, TAFE institutes and
university who were students before their transport accident and
who are unable to travel by their pre-accident means of transport,
because of their injuries.
Clause 7
inserts a new subsection (d) in section 3(1A) of the Act to
confirm that incidents involving the opening or closing of train,
tram and bus doors are transport accidents.
Clause 8
repeals sections 13(3), 14(1)(c), 14(3), 27(2)(fa), 27(3)(ha) and
Part 2A of the Act, which finalises the Government's response to
the collapse of the Farrow Group of Building Societies in 1991.
Clause 9
amends section 16(3)(d) of the Act to provide that Director's
resignations are to be submitted to the Minister instead of the
Governor in Council.
Clause 10 amends section 39(3)(b) of the Act to the effect that the TAC is
not liable to pay compensation other than medical and like
services to the driver of a motor vehicle who is convicted of an
offence in another State or Territory that is declared by Order in
Council to be a corresponding law, which is intended to be a law
that is equivalent to culpable driving causing death or dangerous
driving causing death under the Crimes Act 1958.
Clause 11 inserts a definition in section 42(5) of the Act to clarify that law
of a place outside Victoria and proceedings outside Victoria
includes a law of the Commonwealth or a proceeding under
Commonwealth law.
Clause 12 amends sections 46A(1A), 47(7)(a), section 67(1) and repeals
section 67(1A) of the Act to clarify that a person who is injured
in a transport accident must have an accepted claim for
compensation in their own right for their own personal injury in
order to obtain a determination of impairment and consequently
seek access to common law damages.
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Clause 13 inserts a new section 46A(1E) of the Act to clarify that the TAC
is only required to determine the degree of transport accidentrelated impairment of a person and, in the case of a person who
has an injury that existed before the transport accident that is
aggravated by an injury that was the result of a transport
accident, the use of the apportionment methodology set out in
Chapter 3.3f of the A.M.A Guides is to be used for spinal injury
and in any other case, use the substraction methodology set out in
Chapter 2 of the A.M.A Guides.
Clause 14 inserts new sections 46A(2C) and 46A(2D) to provide for the
TAC, with the approval of the Minster, to publish a Guides
Modification Document to set out guidelines regarding the use
and application of the A.M.A Guides for the assessment of the
degree of permanent impairment of a person injured as a result of
a transport accident.
Clause 15 amends section 46A(4)(a) and 46A(4)(b) of the Act to clarify that
diminution of hearing must be assessed as a binaural loss of
hearing.
Clause 16 amends section 60(2)(a) of the Act to provide that the reasonable
costs of vocational rehabilitation services can be paid as
compensation under section 60 of the Act.
Clause 17 amends section 60(2A)(a) of the Act to provide that family
counselling services are increased to a total of $15 000 for the
immediate family of a person who has died or is severely injured
in a transport accident.
Clause 18 amends section 60(2A)(b) of the Act to provide that the total
amount of compensation payable for the costs of funerals, burials
or cremations, monuments, or any other expense prescribed for
the purposes of this section, is $14 135. This amount will be
indexed each year under section 61.
Clause 19 amends section 60(2BA) of the Act to increase the period for
which travel expenses may be claimed from 12 weeks to
24 weeks and to provide that the weeks do not have to be
consecutive or immediately following the transport accident.
Clause 20 amends sections 60(2D)(c) and 60(2E) of the Act to increase the
amount of claimable travel or accommodation expenses for
members of the immediate family visiting the injured person in
hospital to $10 000.
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Clause 21 inserts section 60(2F) and amends section 71(1) of the Act to
provide that the TAC is liable to pay the reasonable costs of a
certificate, or a report or other document obtained for medicolegal purposes, if it is provided jointly to the TAC and the person
who is injured. The provision also confirms that the TAC may
require a person who was injured as a result of a transport
accident to submit from time to time for examination by one or
more medical services providers nominated by the TAC,
including for Part 6 purposes.
Clause 22 amends sections 60(11A) and 61(7) of the Act to provide that
contributions by persons residing in shared supported
accommodation must not exceed $32.50 per day towards the cost
of that accommodation, consistent with existing requirements of
an Order in Council. Section 61 of the Act provides that the
amount of $32.50 is to be indexed by the Consumer Price Index
on 1 July each year. The amendment to section 61(7) provides
for the power to suppress indexation in any year by Order of the
Governor in Council.
Clause 23 amends section 61A(4)(e) of the Act to increase the cap on aids,
appliances or apparatus, that can be purchased under the terms of
an Individual Funding Agreement to $1000.
Clause 24 inserts section 67A into the Act to provide that a person who
makes a claim for compensation must, as soon as practicable,
sign an authority in a form approved by the TAC, to release
relevant medical or other information to the TAC for the purpose
of processing, assessing or otherwise managing the person's
claim and that a person may sign more than one authority.
Clause 25 amends section 74(2)(b) of the Act to the effect that the TAC is
able to discontinue or reduce a person's entitlement to loss of
earning capacity benefits if the TAC reasonably believes that
the person has not accepted a reasonable offer of suitable
employment or a reasonable offer of rehabilitation or vocational
rehabilitation services.
Clause 26 inserts section (2A) after section 93(2) of the Principal Act to
provide that a person who is injured as a result of a transport
accident may not recover damages in respect of mental injury
(including nervous shock) in circumstances where the person was
not directly involved in and did not witness the transport
accident, and the mental injury (including nervous shock) was
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suffered as a result of the injury or death of another person who
was directly involved in the transport accident, and the transport
accident was caused by that other person committing suicide,
intending to commit suicide or as result of the sole or
predominant negligence of that other person.
Clause 27 inserts a clinical framework into section 93(17) of the Act to
define what is a severe long-term mental or severe long-term
behavioural disturbance or disorder. This clause will come into
operation on 16 October 2013 and apply to an application for a
serious injury certificate under section 93(4)(c)(ii) and an
application to the Court for leave under section 93(4) made after
that date. The provision is given effect in respect of all
applications made after that date to ensure that the new criteria
are given immediate effect and to ensure there is no incentive to
lodge applications for a serious injury certificate prematurely to
avoid the application of the revised test. This will ensure there is
no significant increase in lodgements and will avoid the risks
associated with increasing liability associated with increasing
lodgements prior to introduction of the revised clinical
framework for the assessment of mental injuries.
Clause 28 amends section 120(4) of the Act to increase the time limit for
certain criminal prosecutions under section 116, 117 or 117C
from 2 years to 3 years after the alleged offence occurred.
Clause 29 amends section 127(3A) and 124(4) of the Act to extend the
definition of an employer to include a person who had entered
into an agreement with a person who is injured or dies in the
transport accident in the 3 years preceding the accident.
Clause 30 inserts a new Division 7 in Part 11 of the Act which provides the
transitional provisions associated with the provisions of this Bill
and clarifies the application of the provisions of the Bill as
follows—
New section 206 defines the Transport Accident Amendment
Act 2013 to be the amending Act and also provides associated
definitions of amending provision and commencement date.
New section 207 provides that the Act, as amended by section 4
of the amending Act, applies in respect of a claim for dependency
benefits lodged on or after the date that the amending Act
receives the Royal Assent.
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New section 208 provides that the Act, as amended by section 5
of the amending Act, applies in respect of a request for
occupational therapy services made on or after the date that the
amending Act receives the Royal Assent.
New section 209 provides that the Act, as amended by section 6
of the amending Act, applies in respect of a request for
reimbursement of transportation costs made on or after the date
that the amending Act receives the Royal Assent.
New section 210 provides that the Act, as amended by section 7
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent.
New section 211 provides that the Act, as amended by section 10
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent.
New section 212 provides that the Act, as amended by section 11
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent.
New section 213 provides that the Act, as amended by section 12
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives
Royal Assent.
New section 214 provides that section 13 of the amending Act,
applies in respect of any determination of the degree of
impairment of a person injured as a result of a transport accident
that occurred on or after 19 May 1998, regardless of when the
injury occurred. This date of operation coincides with the date
that the TAC adopted the 4th Edition of the A.M.A Guides, the
Evaluation Impairment and the apportionment approach to
determining transport accident related impairment confirmed by
clause 13.
New section 215 provides that the Act, as amended by section 15
of the amending Act, applies in respect of a determination of the
degree of impairment of a person injured as a result of a transport
accident made on or after the date that the amending Act receives
the Royal Assent, regardless of when the transport accident
occurred.
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New section 216 provides that the Act, as amended by section 16
of the amending Act, applies in respect of all applications for
vocational rehabilitation services, regardless of when the
applications were made.
New section 217 provides that the Act, as amended by section 17
of the amending Act, applies in respect of a claim made on or
after the date that the amending Act receives the Royal Assent.
New section 218 provides that the Act, as amended by section 18
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent.
New section 219 provides that the Act, as amended by section 19
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent.
New section 220 provides that the Act, as amended by section 20
of the amending Act, applies in respect of all requests for
compensation under section 60(2E) regardless of when the claim
was lodged.
New section 221 provides that the Act, as amended by section 21
of the amending Act, applies in respect of all examinations after
1 July 2014 that occur for the purposes of obtaining a document
for medico-legal purposes.
New section 222 provides that the Act, as amended by section 23
of the amending Act, applies in respect of all claims, regardless
of when the claim is made.
New section 223 provides that the Act, as amended by section 25
of the amending Act, applies in respect of all claims, regardless
of when the claim is made.
New section 224 provides that the Act, as amended by section 26
of the amending Act, applies in respect of a transport accident
that occurs on or after the date that the amending Act receives the
Royal Assent, except in the case of a person who as at the date of
Royal Assent—

has been issued a certificate under section 93(4)(c)(ii);
or

has been granted leave under section 93(4)(d).
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New section 225 provides that the Act, as amended by section 27
of the amending Act, applies in respect of an application made on
or after 16 October 2013 for—

a certificate under section 93(4)(c)(ii); or

leave under section 93(4)(d).
This clause comes into operation from 16 October 2013 to avoid
potential adverse effects of delaying introduction of clause 27.
New section 226 provides that the Act, as amended by section 28
of the amending Act, applies to an offence against section 116,
117 or 117C that is alleged to have been committed on or after
the date that the amending Act receives the Royal Assent.
Clause 31 provides for the automatic repeal of this amending Act one year
after all of its provisions come into operation (the repeal of the
amending Act does not affect the continuing operation of the
amendments made by it: see section 15(1) of the Interpretation
of Legislation Act 1984).
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