I. INTRODUCTION

14.1 Chapter 1 explained why, despite the wide terms of reference, this report is restricted to proposing a Scheme for compensating transport accident victims (paragraphs 1.33-1.46). This Chapter examines more closely the kinds of accidents that should be included in the Scheme by defining the forms of transport that should be covered and analysing the geographical scope of the Scheme. It also deals with the abolition of other rights to compensation and the problems created by overlap between this Scheme and surviving sources of compensation, including that available for work-related injuries. Finally, the Chapter considers the conduct, if any, that should disqualify a person from benefits under the Scheme.

14.2 Many of the problems dealt with in this Chapter would be avoided if a national compensation scheme were in force providing comprehensive coverage to all accident victims. Any scheme which is less than comprehensive necessarily gives rise to difficult questions of causation and coverage. While these difficulties should not impede moves towards a more satisfactory system of compensation for transport accident victims, they illustrate the desirability of ultimately adopting a broader approach to accident compensation.

II. TRANSPORT ACCIDENTS

A. Forms of Transport

1. Motor Vehicles

14.3 A transport accidents compensation scheme must cover injuries and death sustained in motor vehicle accidents, which constitute a substantial proportion of all transport accidents. Definitions developed in relation to the system of compulsory third party motor vehicle insurance are of considerable assistance in defining a motor vehicle accident for the purposes of the Scheme.

14.4 Section 5(1) of the Motor Vehicles (Third Party Insurance) Act, 1942, defines a motor vehicle as:

... any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam gas, oil or electricity, or by any means other than human or animal power, and includes a trailer.

The term “motor vehicle” should be defined in the same terms for the purposes of the Scheme. The definition has been given a broad interpretation ¹ and has been held to include a tractor converted into a loader ² and a mobile crane. ³ If the same definition is adopted, interpretations of the existing legislation should be helpful to the Corporation and to the appeal tribunals.

14.5 Section 5B(1) of the Motor Traffic Act, 1909, requires a motor vehicle to be registered, and therefore subject to compulsory third party insurance, before it is used or driven on a public street. This means that agricultural vehicles and private recreational vehicles such as trail bikes and dune buggies do not have to be registered or insured provided they are used exclusively on private land. However, if such a vehicle is unregistered and is involved in an accident on a public street, the accident victim subject to proving fault under the existing law, can recover damages from the Nominal Defendant. ⁴ When a registered vehicle is involved in accident on private land, any damages recovered by the victim will be paid through the compulsory third party insurance system. Assuming that the registration requirements for motor vehicles remain unchanged, there is good reason for the Scheme to operate on a basis comparable to that now applying under the Motor Vehicles (Third Party Insurance) Act. That is, the Scheme should apply to death or bodily injury caused by or arising out of the use:

(a) on public property, of any motor vehicle; and

(b) on private property, of a registered motor vehicle.

2. Public Transport

14.6 The other major class of transport which should be included in the Scheme is public transport. The reasons for extending the Scheme beyond motor vehicles to public transport is explained in Chapter 1 (paragraphs 1.45-1.46). Section 3 of the State Transport (Co-ordination) Act, 1931, defines a public motor vehicle as one which is

(i) used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatsoever; or

(ii) plying or travelling or standing in a public street for or in hire or in the course of any trade or business whatsoever.

While this definition adequately conveys the sense of the word “Public”, it does not go far enough in its coverage of forms of transport. There is no sound policy reason for distinguishing between public vehicles such as buses and taxis, and other forms of public transport such as trains and ferries. The Scheme should therefore extend to all forms of public transport whether publicly or privately owned, including buses, taxis, railway trains, ferries and water taxis.

14.7 The general approach in the application of the Scheme to public transport is to build, so far as possible, on the existing system of compulsory third party insurance and on the system of self-insurance, backed by Government guarantee, such as that practised by the Urban Transit Authority and State Rail Authority. Of the forms of public transport referred to in paragraph 14.6, one or other form of insurance applies to buses (whether publicly or privately owned), taxis, railway trains and ferries operated by the Urban Transit Authority. However, neither privately owned ferries nor water taxis are subject to compulsory third party insurance. All ferries in the Port of Sydney are subject to the licensing provisions of the State Transport (Co-ordination) Act, 1931. ⁵ During the 1981-82 financial year, the Commissioner for Motor Transport approved the issue of licences authorising the operation in the Port of Sydney of four eight-seater aqua taxi-cabs.⁶ Such licensing practices provide a basis for the introduction of compulsory levies for compensation purposes. It is desirable that privately owned ferries and water taxis should be brought within the Scheme and that legislation should be introduced imposing registration requirements on such forms of transport. In addition, owners or operators should be required to pay contributions in respect of privately owned ferries and water taxis on a comparable basis to that applied to privately owned motor vehicles (although not necessarily at the same rates).

3. Other Forms of Transport

14.8 There are special reasons of consistency for the inclusion within the Scheme of privately owned ferries and water taxis, despite the fact that they are not at present subject to compulsory insurance. However, the extension of the Scheme to other forms of private transport would require consideration of the practical problems of extending registration and levy requirements. We now refer to two such forms of transport: powered vessels and bicycles.

Powered Vessels

14.9 A Vessel

... propelled by mechanical power capable of producing a speed of not less than ten knots and not more than 19.8 metres in length

must be registered under the Water Traffic Regulations, 1969. The Regulations also provide for the licensing of drivers of such vessels. A number of submissions supported the inclusion of these vessels in the Scheme. ⁷ However, we have been advised by the Maritime Services Board, which administers the Regulations, that the Board had considered imposing compulsory third party insurance but the move was assessed as not “cost-effective”. Apart from the cost factor, there are other difficulties in extending the Scheme to some, but not all forms of private water transport. For example, decisions would have to be made whether to include accidents caused by unidentified vessels and what special provisions, if any, are necessary for injuries sustained by participants in water sports such as water-skiing.

Bicycles

14.10 Bicycle riders are frequently injured or killed in accidents. To the extent that such accidents arise out of the use of motor vehicles or forms of public transport, the Scheme would provide compensation to the cyclist or his or her family. However, if a cyclist is injured or killed in an accident not involving any other vehicle or public conveyance, compensation would not be provided under the Scheme, unless a specific extension were to be made. There are difficulties facing any such extension. For example, given that a large proportion of bicycle owners and riders are children and that many bicycles are used primarily on private property, there may be practical problems in imposing registration and levy requirements. If no levy could be imposed, the Scheme would incur a potentially costly liability with no directly offsetting source of revenue.

14.11 In principle, the Scheme should extend to accidents arising out of the use of powered vessels and bicycles and, for that matter, other forms of transport But since more information is required and some practical problems need to be resolved, we do not recommend that the Scheme be applied beyond motor vehicles and forms of public transport at this stage. However, once the Scheme is under way the Corporation can be expected to gather data that would enable informed decisions to be made about the inclusion of other forms of transport. The Corporation should therefore have the power to recommend to the Government that a class of vehicle or other conveyance should be included in the Scheme, with or without registration and compulsory insurance requirements. If the Government accepts the recommendation it would irritate amendments to the governing legislation or regulations.

4. Motor Sports

14.12 In the no-fault component of the Victorian scheme, compensation for income loss or impairment of earning capacity is denied where the injured person

... was in a motor car in a place other than a highway and taking part in a race, or other competition or trial or testing the motor car for a race competition or trial. ⁸

The Victorian scheme does permit a person injured in these circumstances to claim other benefits, such as hospital and medical expenses. Under the Tasmanian no-fault scheme, scheduled benefits (medical funeral and death benefits and disability allowance) are denied where the

... death or bodily injury was caused by or arose out of the use of a motor vehicle in a motor vehicle race... in which the injured person was taking part. ⁹

The Northern Territory scheme excludes injured persons from entitlement to compensation for loss of earning capacity and lump sum compensation in circumstances almost identical to those described in the Victorian Act. ¹⁰

14.13 The unusually high risks created by motor sports should not be borne by the community at large. Moreover, the social significance of motor racing is that it is a sport, not a form of transportation. A transport accidents scheme therefore, should not cover persons engaged in motor racing nor should it disturb the present rights and liabilities of people who engage in that sport. In particular, the right to sue and the liability to be sued for damages arising out of motor racing should not be disturbed. Motor racing is thereby afforded no special treatment compared with other sporting activities: It follows that a limited exclusion of the kind adopted in Victoria does not constitute a satisfactory solution. Accordingly, the term “transport accident” should be defined so as to exclude motor sports. The effect of dealing with the matter in this way is that, while people injured in the course of motor sports would have no right to compensation or benefits under the Scheme, their common law rights, if any, would not be affected.

B. Transport Accident Defined

14.14 We recommend that, for the purposes of the Scheme, a “transport accident’ should be defined as one caused by or arising out of the use of:

(a) a motor vehicle, except a motor vehicle being used for the purpose of organised motor sport, provided that where the accident occurs, otherwise than on a public street the motor vehicle is registered under the law of New South Wales;

(b) an omnibus, taxi-cab, railway train, water taxi, water f erry or other form of public transport, whether the accident occurs on land or water or on private or public property; and

(c) any other class of vehicle or form of transport included in the Scheme from time to time.

C. Commonwealth Vehicles

14.15 Commonwealth vehicles do not carry third party insurance under the Motor Vehicles (Third Party Insurance) Act, 1942. Compensation payable by way of damages against the driver of a Commonwealth vehicle is, in practice, paid by the Commonwealth and special provision is made with respect to uninsured Commonwealth vehicles in the Commonwealth Motor Vehicles (Liability) Act 1959-1973. ¹¹ We recommend that motor vehicles and any forms of public transport owned or operated by the Commonwealth in New South Wales should be included in the Scheme. It is assumed that the Commonwealth will undertake to pay a contribution on each vehicle or other form of transport. An alternative is for the Commonwealth to meet the actual cost of paying compensation or providing other benefits to people injured or killed as the result of an accident caused by or arising out of the use of a Commonwealth vehicle. However, this will involve difficulties of apportionment where more than one vehicle is involved. While these would not necessarily be insuperable, the more convenient approach would be for the Commonwealth to pay the appropriate contribution.

III. DEATH OR BODILY INJURY

14.16 We recommend that the Scheme should apply to death or bodily injury caused by or arising out of a transport accident. For this purpose it is necessary to explain more fully what is meant by “bodily injury”. It most obviously includes direct physical injury to the person but may include pre-natal injury, injury resulting from nervous shock and damage to artificial members (limbs or organs) and aids.

A. Pre-natal Injury

14.17 Until comparatively recently, there was considerable uncertainty whether a child born deformed Could sue at common law if the deformity was the consequence of injury done by some act of the defendant while the child was en ventre sa mere (‘ie. during pregnancy). This uncertainty was partly explained by lack of confidence in the medical evidence necessary to establish the required causal connection. ¹² But the uncertainty in this area would seem to have been resolved by the Supreme Court of Victoria which upheld a claim for pre-natal injury resulting from an accident involving the mother in her pregnancy. ¹³ The Supreme Court decision appears to reflect sound policy and there is no good reason for denying recovery for pre-natal injury under the Scheme. We recommend that pre-natal injury should be included in the definition of bodily injury. However, the common law rule, that no claims can be made on behalf of a child before its birth should apply under the Scheme.

B. Nervous Shock

14.18 The general rule now operating at common law permits recovery for injury resulting from nervous shock, provided that some form of mental disturbance (grief is not sufficient) was a reasonably foreseeable result of the defendants wrongdoing. ¹⁴ This is most easily established where the person suffering shock was a party in, or a witness to, the accident caused by the defendant. More recent cases have extended the protected class to those within hearing who came upon the accident almost immediately after it happened, ¹⁵ and to those who from some distance away came upon the consequences of it, even some hours later. ¹⁶ In New South Wales, under section 4(1) of the Law Reform (Miscellaneous Provisions) Act, 1944, a parent or spouse of a person killed, injured or put in peril can recover (in the Supreme Court only) for mental or nervous shock, although not a witness to the accident or its consequences at any stage. Thus a mother could claim for nervous shock suffered when told of her daughter’s death the day after it occurred. ¹⁷ Brothers, sisters and children of the person killed, injured or put in peril have an action for nervous shock under the Act, provided they were within sight or hearing of the accident.

14.19 There is no sound reason for excluding injury resulting from nervous shock from the Scheme. In the context of motor vehicle third party insurance legislation, it has long been held to be a form of “bodily injury”. ¹⁸ Furthermore, there is no justification for the kind of distinction made in the 1944 Act among different members of the family. We prefer an approach which treats uniformly all people suffering nervous shock as the result of a transport accident and which does not impose any requirement of physical proximity to the accident. Subject to establishing the necessary causal connection between the accident and the injury, we recommend that injury or incapacity resulting from nervous shock should be included in the definition of bodily injury. We are conscious that this extends the class of potential claimants beyond that currently recognised by the common law, although the scope of the common law is consistently being expanded. ¹⁹ This is unlikely to pose special difficulties for the Scheme, but we think it is an area which should be kept closely under review to ensure that the cost of extending entitlement to compensation does not prove excessive.

C. Artificial Members and Aids

14.20 The definition of “bodily Injury” in section 5(1) of the Motor Vehicles (Third Party Insurance) Act, 1942, includes “damage to the person’s crutches, artificial members, eyes or teeth other artificial aids or spectacle glasses”. There is a similarly extended definition of bodily injury under the New Zealand scheme.²⁰ In some Australian jurisdictions a narrower view has been taken,²¹ but the inclusion of such members and aids in the definition of bodily injury is consistent with the provision made for them as part of the rehabilitative process (paragraphs 9.52-9.55). Accordingly, the definition now contained in the Motor Vehicles (Third Party Insurance) Act should be adopted. We recommend that bodily injury should be defined to include damage to artificial members, eyes or teeth, crutches or other artificial aids or spectacle glasses.

IV. PROBLEMS OF CAUSATION

A. Death or Bodily Injury “Caused by or Arising out of the Use of” a Motor Vehicle or Other Forms of Transport

14.21 We have recommended (paragraph 14.14) that a transport accident should be defined as one caused by or arising out of the use of one or other of the forms of transport included in the Scheme. This phrase is used in section 10(1)(b) of the Motor Vehicles (Third Party Insurance) Act, 1942, which requires the third party policy to provide insurance

... in respect of the death or bodily injury to any person caused by or arising out of the use of the motor vehicle ... ²²

The Working Paper canvassed a number of different ways in which the meaning of this phrase might be limited. ²³ We prefer to leave the phrase unqualified in the expectation that the already substantial body of case law on the interpretation of the identical phrase in current legislation will provide guidance to the Corporation and to the appeal tribunals. This is not to say that the present state of the law is free from uncertainty in borderline cases. But we are not convinced that any alternative formulation would be any more certain. Moreover, the current interpretation strikes a sensible balance between confining coverage to incidents occurring in the course of the actual movement of persons or goods and extending the Scheme to events which have no more than a purely coincidental connection with the relevant form of transport.

14.22 In a recent decision, the High Court reviewed the interpretation of the phrase “caused by or arising out of the use of” when used in the context of injuries suffered in motor vehicle accidents. ²⁴ The relevant principles include the following.

• Where a vehicle falls within the definition of motor vehicle, “use” extends not only to its use as a vehicle, that is as a means of conveyance, but to any use to which it is ordinarily put.
• The term “arising out of” requires a less proximate relationship between injury and relevant use than is required by the words “caused by”. ²⁵

14.23 In Fawcett v. BHP By-Products Pty. Ltd.²⁶ The bucket on a mechanical loader jammed and the driver tried to dislodge it while the loader was stationary. Because of its worn condition the bucket came off and struck the driver. The injuries suffered by the driver were held to have been caused by or arisen out of the use of a motor vehicle, for the purpose of a claim against the third party insurer by the drivers employer. In Commercial and General Insurance Co. Ltd. v. Government Insurance Office of New South Wales ²⁷ a mobile crane was in use in a fixed position on a construction site when a rigger was injured as a result of the negligence of the crane driver. The riggers injury was also held to have been caused by or arisen out of the use of a motor vehicle. The same approach was recently applied ²⁸ when a driver was knocked over by a compressor as it was being lifted off the back of a truck by a crane, having been returned after a period of hire. But an injury to a worker when the cable of a winch snapped, was held not to have been caused by or arisen out of the use of a flat top truck on which the winch drum had been fixed but which itself was immobilised. ²⁹

14.24 The broad interpretation given to the words “arising out of” is illustrated in both third party motor vehicle insurance cases and decisions under the Victorian and Tasmanian no-fault schemes. The words have been held to extend to: injury to a bicycle rider who collided with a stationary and unoccupied motor car, ³⁰ burns suffered when a parked campervan exploded; ³¹ and even a blow from a rock thrown from an unidentified vehicle which had been driven up to the point from which the rock could be thrown. ³² But an event purely coincidental to the use of a vehicle is not sufficient, such as the blow from a falling branch as a person is entering a car. ³³

14.25 More difficult are those cases in which a person is injured while loading goods on or off a vehicle.

The loading of a vehicle designed to be used, and ordinarily used, for the carriage of goods is a necessary element in its ordinary use. Loading it is incidental to the use of it in the normal way. But that does not mean that whatever is done that is incidental or ancillary to such a loading is itself a use of the vehicle in the relevant sense. Therefore, if a person suffers bodily injury when engaged upon some task connected with loading, the question whether his injury was caused by or arose out of the use of the vehicle depends upon whether it was a consequence, direct and not remote, of the operation of loading. ³⁴

Thus injuries caused while unloading, by a jammed door on a livestock float ³⁵ or a faulty rear door on a panel van, ³⁶ were both regarded as caused by or arising out of the use of the respective vehicles. However, there was no relevant “use” of a truck from which the plaintiff was transferring cartons when he injured his back lifting a carton. ³⁷ But a mail delivery contractor who injured her back while seated in her vehicle, in the course of transferring mail and other items from the seat beside her to a roadside mailbox, was held to have sustained an injury arising out of the use of the vehicle. ³⁸

14.26 A line has been drawn consistently between injuries arising out of the use of the vehicle and those sustained while “working on” the vehicle. Even to start the engine of a vehicle in the course of working on it does not necessarily constitute a use of that vehicle. ³⁹ Thus it has been held that repairing or inspecting a vehicle in the course of repair is not using it in the required sense, ⁴⁰ although inspecting an engine to locate an unusual noise was held to be part of its use because the inspection took place in the Course of moving the vehicle from one part of a driveway to another. ⁴¹ Again there will be cases in which the line is not easy to draw but the broad principles of interpretation have been well developed by the courts and a more detailed formulation would not escape the problem of borderline cases.

B. Pre-Accident Condition

1. The Causal Connection

14.27 It is implicit in the phrase “caused by or arising out of the use of” that the death or injury for which benefits are sought under the Scheme must be the result of a transport accident and not of some other independent accident or condition. Cases which have arisen under the New Zealand scheme illustrate that there may be no causal relationship between an accident and the subsequent amputation of a chronically infected finger ⁴² or a heart attack suffered within hours of the accident. ⁴³ Similarly, the injury sustained in the transport accident may simply reveal the existence of another disability unrelated to the accident. For example in Day v. Standard Waygood Ltd., ⁴⁴ a workers’ compensation case, it was discovered that a hand injured in a work accident was cancerous and hid to be amputated for that reason. What was brought forward was not the disability itself, which was unrelated to the work accident, but the discovery of the disability. No special recommendation is required for these cases, although of course there may be difficult questions of fact to resolve.

2. Existing Disability or Incapacity

14.28 The victim of a transport accident may have been suffering from a disability immediately before the accident perhaps resulting from an earlier injury or disease. That disability may or may not have had an effect on the victim’s earning capacity at the date of the accident. For example, the victim may have had a leg amputated some years before the transport accident because of a disease and the loss of the leg may have reduced his or her earning capacity from $500 per week to $300 per week. If the transport accident causes the victim to lose his or her remaining leg, and to become totally incapacitated for work, the question is what approach the Scheme should take to compensation for loss of earning capacity and permanent disability.

14.29 In these circumstances it is well established at common law that liability for a negligent act is limited to the additional disability or incapacity attributable to that act. ⁴⁵ The justification for this approach is that the wrongdoer should be liable only for the consequences of his or her own action. Since the victim was already disabled or incapacitated at the time of the accidental injury, the accident did not cause the total disability or incapacity, but only the additional disability or incapacity flowing directly from the accident. In this case the approach of the common law is sound and should be adopted by the Scheme. Indeed this approach is implicit in the earlier recommendations, such as those relating to assessment of loss of earning capacity (Chapter 7). Thus, in the example in paragraph 14.28 the Scheme would be liable to compensate the transport accident victim only in respect of the difference between his or her immediate pre-accident and post-accident earning capacity(that is, $300 per week). Similarly, the compensation for permanent disability would be limited to the difference between compensation for the loss of both legs and compensation for the loss of one leg.

14.30 Other compensation schemes have adopted a more generous approach. In particular, section 7(2A) of the Workers’ Compensation Act. 1926 provides that

[c]ompensation shall be payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity of the worker. Such compensation shall be payable as if such total or partial incapacity had in fact resulted from the injury.

The language of this sub-section indicates that it is attributing to the work-related injury consequences that normally could not be said to have “resulted from” it. The policy implicit in the sub-section may be justified by the protective approach that the workers’ compensation system has historically taken to injured workers. However, there is no good reason for transferring this policy to the Transport Accidents Scheme. The question which has to be answered is what incapacity did the transport accident cause; not what incapacity might it have caused if circumstances had been different. Speculation of the kind implicit in the second question is best avoided. The phrase “caused by or arising out of the use of” a transport accident is adequate to bring about the preferred approach and no special provision required.

3. Latent Disability or Incapacity

14.31 At the date of the accident, the victim may not be suffering from any observable disability or incapacity, but may have a latent condition which makes it likely or even inevitable that such a disability or incapacity will occur in the future. In these circumstances, the accident may simply cause the disability or incapacity to occur rather sooner than otherwise. At common law, in a case of acceleration (as it is known), the defendant is liable only for the additional consequences of acceleration, such as the longer period of incapacity for work or of pain and suffering. ⁴⁶ If the incapacity is capable of cure or alleviation by the same remedial measures as would have been used at a later date, the accident may have caused no compensable injury at all. ⁴⁷ This means that the court will often have to speculate as to whether a particular disability would have occurred independently of the accident. In one High Court case, for example, damages were discounted by reference to the probability that a rare psychosomatic disease, occurring in people predisposed to hysteria and masochism, which was triggered by the accident would have been triggered by some other future events. ⁴⁸

14.32 While the common law approach has logical force, it involves considerable uncertainty because of the need to predict the onset of a disability or incapacity which has been brought about (or hastened) by the accident. ⁴⁹ In some cases it will be quite clear that a disability, although not yet in evidence, is imminent. In others there will be doubt as to whether the disability will occur and, if so, when. We prefer an approach under which compensation otherwise payable would not be reduced by reason of an existing latent disability not yet in evidence at the date of the accident. In other words, if a disability or incapacity results from a transport accident, the fact that the same disability or incapacity would have or might have occurred in the future should not reduce the benefits available under the Scheme. We appreciate that this approach, which is consistent with that taken under the workers’ compensation system, ⁵⁰ may occasionally result in apparent overcompensation. However, this is preferable to a speculative assessment of what might have happened but for the transport accident, especially if the speculation could work to the disadvantage of the accident victim or create a continuing threat of loss of compensation. We recommend that in determining whether an incapacity or disability was caused by or arose out of a transport accident, no regard should be had to any latent condition existing at the time of the accident, but not then productive of disability or incapacity. This should be so notwithstanding that the latent condition would or may have resulted in or contributed to a later disability or incapacity.

4. Susceptibility to Injury

14.33 It is a well-established principle at common law, which has been adopted in no-fault accident schemes ⁵¹ that people responsible for payment of compensation must take their victim as they find him or her. ⁵² Compensation is therefore payable for the full extent of the injury, even though its extent is the consequence of a special or abnormal susceptibility and is far greater than would be suffered by a “normal” person not suffering from the susceptibility. This principle applies not only where the physical consequences are far worse than would normally be expected (the so-called “egg-shell skull” case), but also where the immediate physical consequences are no worse than normal but the resulting incapacity is much greater. An example of the second class of case is the injury to one eye of a person who has already lost the sight of the other eye and is thus rendered completely blind. With eyesight in one eye such a person may have been able to perform to full earning capacity, but with no sight in either eye his or her earning capacity may be completely destroyed. Compensation for loss of earning capacity in such cases would be based on the difference between pre-accident and post-accident earning capacity, in accordance with the general principles outlined in Chapter 8. ⁵³ The common law principles are sound and should be followed. The assumption underlying these principles, namely that the incapacity would not have occurred at all were it not for the accident, applies to transport accidents covered by the Scheme. No additional recommendation is needed to achieve this result.

C. Post-Accident Aggravation of Injury

14.34 The previous section dealt with problems which arise when the transport accident combines with an existing condition whether latent or patent, to produce the injury or incapacity. Another problem arises where an injury caused by or arising out of a transport accident is aggravated or overtaken by a later accident or illness. For this purpose the common law distinguishes between events which are causally connected with the transport accident and those which are not.

1. Consequences of the Transport Accident

14.35 Post-accident complications which aggravate the injury and which can be medically linked with it, present no practical difficulties and are clearly a continuation of the original injury and a consequence of the accident. ⁵⁴ More difficult are external events which would not have happened had it not been for the accident. The general test of causation at common law is the “but for” or sine qua non test which relies on an answer to an apparently simple question: would the consequence have occurred were it not for the relevant event? On this basis responsibility has been extended to accidents during convalescence from the original injury, such as a fall caused by restricted vision from wearing a surgical collar ⁵⁵ or a dizzy spell resulting from a head injury. ⁵⁶ However the “but for” test if applied literally has led to results which the courts have found unacceptable. In Lindeman Ltd. v. Colvin, ⁵⁷ the claimant in a workers’ compensation claim went for a walk in the hospital grounds while convalescing from the work injury. As he was going down some steps, he fell and broke his leg. It was held that walking was part of the resumption of normal life and the fact that he would not have been in the hospital grounds were it not for the injury did not make the work injury the cause of his fall. The additional disability caused in the fall was therefore not a consequence of the original injury. It was not a case in which the claimant’s injury had put him off balance or caused the fall in any immediate sense. In such cases the original injury is often said not to be the “real” cause of the later injury. Alternatively, the occurrence of the later event and the original injury are described as a mere “coincidence”. ⁵⁸

14.36 The concepts employed by the courts to resolve these cases, such as “rear, or “proximate” cause, are imprecise and conceal value judgments, but it is not clear that any more precise formulation is feasible. It might be possible to distinguish between later events which were directly attributable to the disability, such as the surgical collar cases, ⁵⁹ and those merely occurring in circumstances in which the claimant would not have been placed but for the original accident, such as the walk in the hospital grounds in Lindeman Ltd. v. Colvin. ⁶⁰ But any rule stated in such terms is likely to prove inflexible or difficult to apply. The High Court has indicated that the problems of causation are to be resolved by the application of broad commonsense principles. ⁶¹ Similarly, we prefer to leave such questions to the good sense of the Corporation and appeal tribunals for resolution, consistently with the general objectives of the Scheme and using ordinary rather than technical concepts of causation.

2. Independent Events

14.37 The disability or incapacity sustained by the accident victim may be overtaken or superseded by a disability or incapacity which was bound to occur regardless of the accident or, at least, was quite independent of the accident and its consequence. For example, a person disabled in a transport accident may later be rendered totally incapacitated as the result of a stroke which on the medical evidence, would have happened in due course even if the accident had never occurred. Alternatively, the person may suffer a further disability as the result of an independent event, such as the collapse of a staircase, which is unrelated to that person’s physical condition. The approach of the common law to the first case is clear: the compensation otherwise recoverable will be reduced, on the ground that the stroke was inevitable and thus the consequences of the accident were limited to the period between the date of the original disability or incapacity and the date this was overtaken by the consequences of the stroke. ⁶² Because of the once-and-for-all rule (paragraph 2.29), a stroke suffered after the damages had been assessed would have no effect on them thus leaving the accident victim with a “windfall” when compared with the case in which the stroke had occurred before assessment. The response of the common law to the supervening independent event is less clear. ⁶³ It may depend on whether the later independent event gives rise to a separate claim for compensation since the courts have been reluctant to allow the wrongdoing of one person to be used as a basis for relieving or reducing the liability of another. ⁶⁴ Regardless of whether this is a proper approach for the common law, entitlement based on considerations of fault even if indirect, is inappropriate to a no-fault compensation scheme. There is also a more general difficulty with the assertion that the accident victim would have been exposed to the independent event had the original accident not occurred.

If one’s object is to determine what would have happened if a tort had not been committed, the occurrence of any event after the tort has been committed is not necessarily a reliable indication that the event would have occurred if the tort had not been committed. ⁶⁵

14.38 In contrast to the complexity and uncertainty of the common law, the approach taken under the workers’ compensation system is uncomplicated and more favourable to the injured person. Where a worker suffers partial or total incapacity in a work-related accident and subsequently suffers a non-work-related injury which alone would have produced total incapacity, compensation for the work-related incapacity is not affected. ⁶⁶ The compensation is maintained until the incapacity diminishes or disappears. ⁶⁷ This principle applies whether the subsequent injury is the result of some external event or of illness or old age. ⁶⁸

14.39 We prefer the approach taken under the workers’ compensation system. Once disability is caused by a transport accident it does not cease to be the result of the accident at some future time merely because the same disability would have occurred at that time through some other cause. The causal link with the original accident has not been broken in so far as that disability or incapacity persists. Moreover, to apply the common law principles would require the Corporation to withdraw benefits from an accident victim at a point when that person’s condition has deteriorated. This would not only strike most people as unfair but would seem especially so because the decision to withdraw benefits could hardly ever be made without some degree of uncertainty about whether the supervening incapacity would have occurred in any event. Accordingly, we recommend that a person entitled to benefits under the Scheme should not have those benefits reduced or terminated by reason of an event, not caused by or arising out of the transport accident, which causes further disability or incapacity to that person, or which would have resulted in the same disability or incapacity. In such circumstances benefits should continue at the same level and for the same period as if the event had not occurred.

V. COVERAGE OF THE SCHEME

A. Geographical Scope

14.40 Not all transport accident victims, regardless of residence or the place where the accident occurred, should be entitled to benefits under the Scheme. It is clearly reasonable to require that either the victim or the accident, or both, should have some connection with New South Wales. The Working Paper suggested that the Scheme should cover

• accidents occurring within New South Wales, irrespective of the victim’s place of residence and of the place of registration of the vehicle involved; and
• accidents occurring outside New South Wales, provided that the victim was a resident of New South Wales and provided a vehicle which was registered (or should have been registered) in New South Wales was involved.

After further consideration we have come to the conclusion that this proposal requires refinement.

1. Other Schemes

14.41 Other no-fault motor vehicle schemes have adopted a variety of geographical limitations. The Northern Territory and Tasmania have chosen residence and place of accident respectively, as the principal geographical connection. Benefits under the Northern Territory scheme are payable to Northern Territory residents where the accident occurred in the Territory or in a Territory vehicle. ⁶⁹ Compensation under the Tasmanian scheme is available where the accident occurs in the State, regardless of the residence of the victim, so long as the accident involves a vehicle registered in that State. ⁷⁰ The Victorian provision is more complex. Under the Victorian Motor Accidents Act 1973, the no-fault scheme applies to:

• a Victorian resident in Victoria who sustains injuries that were, or whose death was, caused by or arose out of the use in Victoria of a motor car;
• a person who sustains injuries that were, or whose death was, caused by or arose out of the use in Victoria of a registered (that is, registered under the [Victorian] Motor Car Act 1958) motor car;
• a person who sustains injuries that were, or whose death was, caused by or arose out of the use in Victoria of a motor car the identity of which cannot be established; and
• a person who sustains injuries that were, or whose death was, caused by or arose out of the use, in any other part of Australia, of a registered motor car where the person who sustained the injuries or who died was the driver or a passenger of the motor car when the accident occurred. ⁷¹

2. Our Approach

14.42 The formulae applied in the Australian no-fault schemes thus rely on one or more of the following factors:

• residence of the victim;
• place of accident; and
• place of registration of the motor vehicle.

There are arguments in favour of each of these factors playing a part in determining the geographical scope of the Scheme. The residence of the victim is an important criterion because each State clearly has a special obligation to protect its own residents, although of course there will be limits on the extent to which New South Wales residents injured in accidents elsewhere in Australia should be entitled to benefits under the Scheme. The special obligation gains added force from the fact that New South Wales residents, directly or indirectly, will provide virtually all the resources required for the Scheme, such as contributions by motor vehicle owners or fares paid as passengers in public. The place of the accident is important because the territorial approach to rights and obligations is well entrenched in our legal system. There would be, in our opinion, a community expectation that accidents occurring in New South Wales, generally speaking, should attract the provisions of a compensation scheme established under New South Wales law. The third factor, the place of registration of the vehicle (or other means of conveyance), is also significant because in practice a contribution will be payable in respect of the vehicle. It is reasonable to expect that the protection associated with the contribution should “travel” with the vehicle or its occupants.

14.43 The problem is to decide which factors or combinations of factors should establish eligibility to claim compensation under the Scheme. It is necessary to ensure that the protection accorded by the Scheme is not so narrow as to cause injustice. Yet the solution should not impose undue cost burdens on New South Wales residents nor inflict unreasonable duties on the Corporation, particularly in relation to non-residents who may present special problems relating to assessment and access to rehabilitation and other services. We have concluded that the necessary connection with New South Wales should be regarded as established if two of the three relevant factors we have identified are present in a particular case. Thus the Scheme should cover death or bodily injury to:

• residents of New South Wales killed or injured in a transport accident in New South Wales;
• people resident in Australia but not in New South Wales killed or injured in a transport accident in New South Wales, caused by or arising out of the use of a New South Wales registered motor vehicle or equivalent; and
• residents of New South Wales killed or injured in a transport accident outside New South Wales but within Australia caused by or arising out of the use of a New South Wales registered motor vehicle.

It is also necessary to include accidents involving unregistered or unidentified motor vehicles in order to cover cases now covered by the Nominal Defendant provisions. ⁷²

3. Limits on Coverage

14.44 There are two particular categories of accident victims not covered by this formulation to which attention should be directed. First, New South Wales residents injured or killed outside the State in a transport accident which does not involve a New South Wales vehicle or outside equivalent are not covered. This is consistent with the approach taken in the no-fault schemes of other States or Territories. ⁷³ It is desirable in principle for New South Wales residents to be protected against loss sustained in transport accidents wherever they travel in Australia. However, we do not think that it is practicable to recommend, at the outset, that a New South Wales resident, for example, injured by a Victorian car while crossing the road in Melbourne, should be entitled to compensation under a New South Wales compensation scheme. Experience under the Scheme may suggest, in due course, that an extension can be made, within financial constraints, or that reciprocal arrangements with other States or Territories permit a similar result to be achieved.

14.45 The second category not covered concerns residents of other States involved in accidents in New South Wales, but in which no New South Wales vehicle (or equivalent) is involved. This could happen, for example, when a Queensland visitor, driving a Queensland car, is injured when the car runs off the road in New South Wales and strikes a tree. In this case the connection with New South Wales is insufficient to warrant compensation being available under the Scheme, at least in the absence of cooperative arrangements among the States and Territories. There would be no common law action in such a case but where the State or Territory of residence has its own no-fault scheme, as in Victoria, that scheme may provide benefits to a resident of that State or Territory injured in New South Wales. Therefore the remedy is in the hands of the State or Territory of residence of the injured person. In this way our proposals would protect a New South Wales resident injured in a New South Wales car in an accident in another State.

14.46 There is one special difficulty concerning non-residents injured in transport accidents within New South Wales, who have no claim under the proposed Scheme. We have recommended, in effect, that no common law action should be available to any person injured in a transport accident in New South Wales. The effect of this will be to deny the injured non-resident both the right to claim under the Scheme and the right to bring a common law action. If the non-resident is injured in an accident in which no New South Wales vehicle or equivalent is involved, it may be that no common law action would be available under existing law, as in the example in the previous paragraph. However, in some cases an action could be brought-such as a case in which the non-resident is injured by the negligence of the driver of another interstate registered vehicle. If, for example, two Queensland residents, driving their own cars, collide in New South Wales near the Queensland border, the problem could not be overcome by a common law action in Queensland because of technical “conflicts of laws” rules. ⁷⁴

14.47 However it should be emphasised that people whose rights could be adversely affected in this way are relatively small in number since we are here referring only to out-of-state residents who are victims in a New South Wales transport accident not involving a New South Wales vehicle or other form of transport and who could prove fault on the part of some other person. As long as reform in this area proceeds on a State by State basis, such anomalies inevitably arise. But the fact that only a few people may be affected does not justify ignoring the problem. The most satisfactory approach is for reciprocal arrangements between New South Wales and other States or Territories to ensure that any gaps in compensation cover are filled. Thus the problem of the non-resident left without a remedy could be solved by appropriate amendments to the conflict of laws rules in other States or Territories or by New South Wales agreeing to provide coverage under the proposed Scheme in return for the other State or Territory closing similar gaps in the protection accorded to New South Wales residents who are injured in that other State or Territory. ⁷⁵ Of course, if the other State or Territory were prepared to introduce a scheme similar to that proposed for New South Wales the problems of coordination could be readily overcome. Be that as it may, we are firmly of the view that, before the Scheme is introduced, discussions should be held between the New South Wales Government and representatives of Commonwealth, State and Territory Governments. The objective should be to identify gaps in coverage and to ensure, as far as possible, that remedial action is taken.

14.48 In addition to this action. one further step should be taken. Provision should be made for vehicles (or other forms of transport) registered in another State or Territory to pay an contribution which would allow those vehicles to be regarded as registered in New South Wales for the purposes of the Scheme. This would allow people living in areas bordering New South Wales to ensure that they have full coverage under the Scheme for accidents involving their vehicles in New South Wales. It would also provide a means of protection for non-residents who travel regularly by car within New South Wales, perhaps for business purposes. In some circumstances it may be necessary to go further. At present, for example, interstate buses carrying fare paying passengers in the course of interstate trade do not have to be registered in New South Wales ⁷⁶ and do not necessarily have to take out third party insurance in this state. ⁷⁷ In order to ensure that non-resident passengers on such buses are protected under the Scheme for any accident in New South Wales, it is appropriate to require the owners to pay the appropriate contribution to obtain coverage under the Scheme.

4. Recommendations

14.49 We recommend that the Scheme should apply to, and only to, death or bodily injury suffered by:

(a) a resident of New South Wales whose death was, or injuries were, caused by or arose out of a transport accident in New South Wales;

(b) a person not resident in New South Wales (but resident in Australia) whose death was, or injuries were, caused by or arose out of a transport accident in New South Wales, provided that a motor vehicle or other form of transport, involved in the accident, was registered, or required to be registered, in New South Wales, or was operated by the Urban Transit Authority of New South Wales or State Rail Authority of New South Wales;

(c) a person not resident in New South Wales (but resident in Australia) whose death was, or injuries were, caused by or arose out of a motor vehicle accident in New South Wales in which the identity of the motor vehicle which caused the accident cannot be established; and

(d) a person resident in New South Wales whose death was, or injuries were, caused by or arose out of a transport accident occurring in Australia but outside New South Wales, provided that a motor vehicle or other form of transport involved in the accident was registered, or required to be registered, in New South Wales, or was operated by the Urban Transit Authority of New South Wales or State Rail Authority of New South Wales.

We further recommend that a motor vehicle or other form of transport capable of registration in New South Wales, which is registered in another State or Territory, should be deemed to be registered in New South Wales for the purposes of the Scheme on payment of such contribution as is prescribed.

B. Residents and Non-Residents

1. Definition of Resident

14.50 The residence of an accident victim is fundamental to the recommendations concerning the geographical scope of the Scheme. Because a person may be resident in more than one place at one time, it is necessary to define the term with some care. The concept of “principal residence” is useful for this purpose. By the term “principal residence” we mean the place where a person spends most of his or her time or to which he or she normally returns after absences for purposes of business or employment or other interruptions of a temporary nature. Some allowance should also be made for the person with a proven intent to take up a new residence within a given period of the accident. Therefore, we recommend that a person should be regarded as resident in Australia, or in any State or Territory of Australia, where that person had, at the time of the transport accident, his or her principal place of residence there, or intended, within six months of that accident, to establish his or her principal place of residence there.

14.51 Although people resident outside Australia at the date of the accident generally should be excluded from benefits under the Scheme (paragraph 14.53), this proposal could work harshly, for example, on an Australian citizen, resident overseas, who is injured in a transport accident in New South Wales. To overcome this, we recommend that an Australian citizen who is killed or injured in a transport accident in New South Wales and whose principal place of residence at that date is outside Australia should be deemed to be resident in the State or Territory in which he or she had his or her last principal place of residence in Australia. This recommendation would not apply to an Australian citizen who had never had a principal place of residence in Australia.

2. Overseas Residents

14.52 As a general rule, entitlement to benefits under the Scheme should be limited to persons resident in Australia at the date of the transport accident. There is a disproportionate administrative burden placed on the Scheme where a person entitled to benefits resides outside New South Wales, particularly in view of the emphasis placed on the provision of rehabilitation and attendant care. This burden would be considerably greater where the person is an overseas resident as opposed to a resident of another State or Territory. But there are also considerations of policy which distinguish the person resident in a State or Territory of Australia from a person resident overseas. Given the degree of movement between States and Territories, particularly those sharing a common border, the blanket exclusion of residents of other States and Territories from the Scheme would be unjustifiably restrictive. Even if the inclusion of these people imposes a substantial cost on the Scheme this could be offset to some extent by reciprocal arrangements of the kind referred to in paragraph 14.47. Neither of these considerations applies to overseas residents. Consequently, both practical and policy considerations combine to suggest their exclusion from the Scheme. People engaged in overseas travel are normally encouraged to take out private accident insurance and are not entitled to assume that accidental injury sustained in an overseas country will result in compensation under the law of that country. The proposal is consistent with that practice.

14.53 The requirement of residence should be applied to the victim of the transport accident, but not the dependent family members of a resident who is killed in a transport accident leaving such dependent family members resident overseas. A recent immigrant maybe killed, for example, leaving no spouse or child, but a dependent mother in another country. The residence, in New South Wales or another State or Territory, of the person killed in such a case, with other relevant factors, should be sufficient to justify payment to the mother of the whole or part of the lump sum payable on death. Therefore we recommend that benefits under the Scheme, other than those payable in respect of death, should not be payable or provided to persons not resident in Australia at the date of the accident.

3. Beneficiary under the Scheme takes up Residence Overseas

14.54 An Australian resident injured in a transport accident who is entitled to benefits under the Scheme, may subsequently take up residence overseas. In these circumstances, there may be considerable practical difficulties associated with the maintenance of the full range of benefits to which he or she would otherwise have been entitled. In addition the new country of residence may provide some or all equivalent benefits free of charge or at a real value less than the Australian value. Similarly the real value of equivalent nominal incomes may differ. However, we are not persuaded that the practical difficulties and differences in economic circumstances between Australia and other countries are sufficient reasons for terminating benefits automatically if a person leaves Australia. An important issue of civil liberties is involved. An incapacitated person who wishes to leave Australia should not automatically be disadvantaged in doing so by the removal of benefits. Moreover, removal of benefits would conflict with the main purposes of the Scheme, especially in cases where a family in an overseas country could provide support not available in Australia, thus enhancing rehabilitation and possibly reducing institutional costs. The desirability of maintaining benefits must be balanced against the practical difficulties of providing them and keeping them under review. Provision should be made to enable the Corporation to adjust benefits to the changed circumstances and to relieve the Corporation of the obligation to maintain benefits which pose especially difficult practical problems.

14.55 In accordance with this approach, the Corporation should have power, within general guidelines, to continue payment of compensation for loss of earning capacity and to meet rehabilitation expenses where a person in receipt of benefits takes up residence in another country. Where the accident victim has received an assessment of permanent incapacity, compensation should continue to be paid in accordance with that assessment. Medical and hospital expenses would be governed by the general regulations under Medicare relating to the provider of medical and hospital services. Emigration from Australia would not affect compensation for permanent disability, but we think it inappropriate that support services, whether in the form of homemaker services, attendant care or otherwise, should continue. Thus, we recommend that, if a person who is injured in a transport accident and is entitled to continuing compensation or benefits under the Scheme takes up residence outside Australia after the date of the accident:

(a) the Corporation should continue to pay compensation for loss of earning capacity to the extent it considers appropriate having regard to the circumstances of the person, the general levels of earnings in the country of residence or proposed residence and the opportunities to verify the extent of the person’s continuing incapacity, provided that if there has been an assessment of permanent incapacity, compensation should be paid in accordance with the assessment;

(b) the Corporation should continue to meet the cost of rehabilitation services to the extent it considers appropriate, having regard to the needs and circumstances of the person, the comparative costs of the services, the person’s eligibility for benefits in the country of residence or proposed residence and the opportunities to verify the person’s continuing need for such services; and

(c) the provision of homemaker and attendant care services and other continuing benefits and allowances should be terminated.

14.56 Similar questions may arise in relation to death benefits. The surviving family members may take up residence overseas after the accident victim has died (or be resident overseas at the date of death). This should not affect the lump sum payment available to dependents. Nor should it affect the periodic compensation payable to children or the earnings-related periodic compensation payable to the surviving spouse during the five year period after the death. However, needs-based periodic compensation, payable to a surviving spouse in certain circumstances, should not be available to a person not resident in Australia. The reason is that it would be too difficult to determine the continuing income and earning capacity of the non-resident. Accordingly, we recommend that needs-based periodic compensation in respect of death should not be available for a surviving spouse who is not resident in Australia.

VI. ABOLITION OF OTHER RIGHTS TO COMPENSATION

A. Introduction

14.57 It is a basic feature of the Scheme that it is intended to be the exclusive source of compensation for transport accidents under the law of New South Wales. It follows that other rights to compensation for a transport accident injury should be abolished, as far as the New South Wales legislature is competent to do so. The most significant source of transport accident compensation under the existing law is the common law negligence-action. But rights to compensation for transport injuries may also arise under:

• the Workers’ Compensation Act, 1926 and similar statutory compensation schemes;
• the law applying to liability for defective products; and
• the law governing occupiers’ liability.

Abolition of all other rights to compensation for death or injury caused by or arising out of a transport accident would affect those areas of the law as well as the common law negligence action.

14.58 Transport accidents may occur as the victim is travelling to or from work (so-called “journey accidents”) ⁷⁸ or in the course of his or her employment (as where the driver of a delivery van is injured in a collision during working hours). Accidents of this kind create an overlap between the workers’ compensation system, supplemented by the possibility of an action for damages against the employer, and the Transport Accidents Scheme. For reasons given later, we do not propose that entitlements to claim workers’ compensation or damages from the employer should be abolished, although it is suggested that the injured worker be required to elect between these entitlements and benefits under the Scheme.

B. Defective Products

14.59 The phrase “death or bodily injury caused by or arising out of the use of a motor vehicle” includes cases in which the accident resulted from a defect in the vehicle, such as faulty brakes. If an accident is caused by such a defect, a number of actions for damages may be available under existing law. A person injured as a result of a defect may have an action for

• breach of contract against the person from whom he or she purchased the defective vehicle or other means of conveyance;
• negligence against the person responsible for creating or failing to remove the defect; or
• breach of warranty under the Trade Practices Act 1974 (Cth.). ⁷⁹

14.60 An action may be brought in contract for breach of implied condition of fitness for a particular purpose or of merchantable quality under section 19 of the Sale of Goods Act 1923. As an action in contract, it can only be brought by the buyer against the retailer or other person from whom the purchase was made. However it is not necessary to prove negligence on the part of the retailer in order to recover. There is also a limited extension of the contractual right in section 64(5) of the Sale of Goods Act, 1923, ⁸⁰ by which a court, in an action in contract for breach of the condition of merchantable quality against a seller, may add the manufacturer as a party to the proceedings if it appears that the defect ought to be remedied by the manufacturer.

14.61 In the landmark negligence case of Donoghue v. Stevenson ⁸¹ the duty of a manufacturer to exercise reasonable care in the design and manufacture of products was established. A manufacturer who is shown to be negligent will be liable to a person injured as a result of a defect in the negligently manufactured product. The principle applies to motor vehicles and, by analogy with the manufacturer, has been extended to repairers, ⁸² suppliers, ⁸³ and owners. ⁸⁴ The negligence action is available to an injured person who has no contractual relationship with the negligent defendant. Thus a repairer was held liable to a bystander struck by the flange of the wheel of a truck which came loose as the truck drove past the bystander. ⁸⁵

14.62 Under the Trade Practices Act 1974 (Cth.) a manufacturer is liable to a consumer for defective goods, despite the absence of a contractual relationship, where there is a breach of implied conditions traditionally associated with the law of contract (paragraph 14.60). ⁸⁶ Although this is a significant expansion of liability it is limited by the definition of “consumer” and “goods”. Except in the case of goods not of merchantable quality, a “consumer” is confined to the person to whom the goods were originally supplied ⁸⁷ and “goods” are those ordinarily acquired for personal domestic or household use or consumption. ⁸⁸ Subject to these limitations, a manufacturer in breach of any of the relevant obligations is liable for loss or damage caused by the breach.

14.63 It would be inconsistent with the principles on which the Scheme is based to preserve common law or statutory rights arising out of a defective product involved in a transport accident. There is no good reason why, in a no-fault scheme, a victim in a transport accident which happened to be caused by a defective vehicle should be entitled to compensation any different from that available to transport accident victims in general. However, the New South Wales legislature, although having power to abolish or modify rights under the law of the State, has no power to override Commonwealth legislation. Consequently the right to damages under the Trade Practices Act cannot be affected by a New South Wales statute. It would be possible for the State Government to request the Commonwealth Government to limit the operation of the Trade Practices Act so that it does not apply to people injured in transport accidents who have remedies under the Scheme. Indeed we think that the State Government should make such a request. If the request is not acted upon the matter will have to be dealt with by provisions designed to prevent double compensation (paragraphs 14.92-14.93, 14.95-14.96).

14.64 If the transport accident victim is denied the right for example, to sue the manufacturer of a defective vehicle under the law of New South Wales, the effect may be to remove a powerful incentive to the maintenance of high manufacturing standards. This is one area in which the publicity associated with an action in negligence may have an indirect deterrent effect on poor manufacturing practices. ⁸⁹ Other remedies for defective manufacture may have a similar effect A question also arises as to whether manufacturers should be relieved of meeting some of the costs of injury and death caused by defective products, at the expense of motor vehicle owners or drivers and patrons of public transport. There is an economic argument that manufacturers should bear the costs of defective manufacture (although ultimately the costs will be passed on to consumers and the community at large). These matters raise some very important policy issues to which attention should be given by the Corporation after the Scheme is implemented. A possible solution is to permit the Corporation to sue those who would have been liable had the injured person’s right to claim damages not been abolished. It is, however, arguably contrary to the no-fault philosophy underlying the Scheme that the Corporation should pursue rights based, at least in part-on fault Another argument is that safety is better promoted by the establishment and rigorous enforcement of appropriate safety-standards, than by the haphazard operation of civil remedies. There is a further problem in determining precisely what the Corporation would be entitled to recover. If the Corporation were to be entitled to claim indemnity for its obligation to pay periodic compensation it would be necessary to determine whether the manufacturer should be entitled to liquidate its liability by a once-and-for-all lump sum payment. We are inclined to the view that the Corporation should have the right to claim an indemnity against, sav, the manufacturer of a defective vehicle to cover the cost of providing compensation to a person injured as the result of the defect. However, it is appropriate for further consideration to be given to this question once the Scheme is in operation.

C. Occupiers’ Liability

14.65 Although strictly a branch of the law of negligence, the liability of occupiers for injury sustained by entrants on occupied premises has been treated as a separate area of law. This is largely because of the complex set of rules which distinguish between different categories of entrants and attribute to each one a particular standard of care. ⁹⁰ It is in relation to railway accidents that injuries currently subject to the rules of occupiers liability will often fall within the definition of transport accident. The rights at common law of a person struck down by a train while crossing a railway line, lawfully ⁹¹ or unlawfully, ⁹² would traditionally be determined by means of the rules of occupiers’ liability. If death or bodily injury caused by or arising out of the use of a railway train is included in the definition of transport accident (paragraph 14.14), such a case would clearly be covered by the Scheme.

14.66 The complexity of the occupiers’ liability rules at common law has been repeatedly criticised and in some jurisdictions they have been replaced by statutory provisions in simpler and more general terms. ⁹³ Their replacement, even in the limited area of transport accidents, by no-fault compensation would be especially welcome to those who accept the shortcomings of the negligence action in general. ⁹⁴ However, concern has been expressed by the State Rail Authority ⁹⁵ that the inclusion in the Scheme of accidents traditionally covered by occupiers’ liability rules will impose a substantial additional cost because trespassers on railway tracks are often left without rights to compensation under the existing law. While this is undoubtedly a genuine concern, we do not see it as a reason for limiting the application of the Scheme. It would be anomalous, for example, if a person who wanders carelessly into the path of a motor vehicle is entitled to full benefits while another (perhaps a child) who is struck by a train in corresponding circumstances, is left without any compensation. The appropriate solution to any financial burden is for the cost to be passed on to the users of the railway system. The State Rail Authority also referred to the “disproportionate number of deaths and injuries which result from suicide attempts”. ⁹⁶ In this regard the Authority’s concern is met by the exclusion from the Scheme of death or injury “intentionally self-inflicted” (paragraph 14.116).

D. Conclusion

14.67 With the exception of work-related injuries, no other area of the law requires exemption from a general abolition of existing rights to compensation for transport accident injuries in favour of benefits under the Scheme. Therefore, we recommend that, subject to the special provisions made with regard to work related injuries, all rights, whether under common law or statute, to compensation for death or bodily injury caused by or arising out of a transport accident should be abolished, except for compensation payable or benefits provided under this Scheme.

VII. INDEMNIFICATION OF NEW SOUTH WALES OWNER/DRIVER

14.68 While victims of transport accidents in other States and Territories continue to be entitled to bring common law negligence actions if they can establish fault, the owner and/or driver of a New South Wales registered form of transport may be exposed to common law liability. This could occur, for example, where a New South Wales resident, driving his or her own vehicle, is held liable in damages for an accident occurring in Victoria. Clearly the practice embodied in existing motor vehicle third party insurance, that the owner and/or driver should be indemnified for any such liability, should be continued. Therefore, we recommend that the owner and/or driver of a motor vehicle or other form of transport which is registered in New South Wales should be indemnified by the Corporation for any liability for death or bodily injury arising under the law of any other State or Territory.

VIII. WORK-RELATED ACCIDENTS

A. The Workers’ Compensation System

14.69 Chapter 2 described the main features of the workers’ compensation system in Australia with particular reference to New South Wales. Under the New South Wales Workers’ Compensation Act, 1926, compensation is payable for injury “arising out of or in the course of employment”. ⁹⁷ Compensation is also payable for injury sustained on a journey, such as between the worker’s place of abode and place of employment. ⁹⁸ The two main areas of overlap between workers’ compensation and the Scheme are transport accidents which occur

• on the way to or from work (journey accidents); or
• in the course of employment

1. Journey Transport Accidents

14.70 Not all journey accidents are transport accidents within the scope of the proposed Scheme. A person who falls over, for example, while walking to work would be covered by workers’ compensation for any incapacity, but not by the Scheme. Table 14.1 deals with journey accidents which involve a means of transport In 1981-82 these constituted 63.6 per cent of all journey accidents reported to the New South Wales Workers’ Compensation Commission, excluding cases of less than three days’ incapacity.

Table 14.1: Workers’ Compensation: journey Injuries^(a)

New South Wales 1980-1982

Means of Transport Cases	Fatal Cases (Number)	Non-Fatal (Number)
Rail	3	151
Motor vehicle	69	7,248
Other(b)	2	347
Total	74	7,746

(a) Excludes cases of less than three days’ incapacity.

(b) Some of these may involve means of transportation, such as bicycles, not necessarily within the scope of the Scheme.

Source: Workers’ Compensation Statistics, New South Wales, Year ended 30 June, 1982, p.8, table 3. ⁹⁹

During 1981-82 the total amount paid in respect of all journey injuries which resulted in death or incapacity for three days or more was approximately $30 million. ¹⁰⁰

14.71 The Working Paper referred to the historical reasons for journey accidents being brought within the workers’ compensation system even though they do not occur in the course of the workers employment. This step was a means of ensuring that a worker injured while travelling to and from work received compensation, since there was no guarantee that the common law would provide a remedy. ¹⁰¹ Submissions received before the publication of the Working Paper differed on the question of whether journey accidents should remain within the workers’ compensation system. ¹⁰² Differing solutions to this problem have also been adopted elsewhere. In Victoria the workers’ compensation legislation requires the Motor Accidents Board to reimburse employers (or their insurers) in respect of their liability for motor vehicle journey accidents under the Workers’ Compensation Act 1958. Consequently, the cost of these claims is transferred to the Board, provided the worker is otherwise eligible for compensation under the Victorian motor vehicle accidents scheme. ¹⁰³ In Tasmania, the no-fault motor vehicle accidents scheme does not include any liability to indemnify employers in respect of journey accidents. ¹⁰⁴ In England the Pearson Royal Commission, by a narrow majority, recommended that injuries sustained in journey accidents should be included within the equivalent of the workers’ compensation scheme. ¹⁰⁵

14.72 The Working Paper expressed the view that the responsibility for compensating injuries and deaths sustained in journey transport accidents should be transferred from the workers’ compensation system to the proposed Transport Accidents Scheme. Four reasons were given. ¹⁰⁶

• The establishment of a no-fault Scheme for transport accident victims reduced the force of the historical reasons for placing journey accidents within the workers’ compensation system.
• The employer, generally speaking, has no control over the risk of injury to the worker during journeys to and from work. ¹⁰⁷
• The present system creates the potential for disputes by requiring fine distinctions to be drawn to take account of interruptions, deviations and breaks of journey.
• The transfer of financial responsibility for journey accidents to the Scheme would provide savings to workers’ compensation insurers and to employers.

Submissions from the Labor Council of New South Wales ¹⁰⁸ and individual unions ¹⁰⁹ strongly disagreed with the Suggestion that existing entitlements to workers’ compensation should be replaced by entitlements under the proposed Scheme. Subsequent discussions with the Labor Council and trade unions confirmed their adherence to the current workers’ compensation arrangements. although they were prepared to accept any additional benefits that might be conferred on workers by the Scheme.

14.73 We retain the view that there is much to be said for removing journey accidents from the workers’ compensation system and placing journey transport accidents within the Scheme. However, journey accidents have come to be regarded as an integral part of the workers’ compensation system which, in turn. plays an important part in the negotiation and formulation of industrial awards governing rates of pay and conditions of employment. In short, the workers’ compensation system has to be assessed against a wider industrial background of which it effectively forms a part. We have concluded, therefore, that any major change in the scope of workers’ compensation should be determined in a comprehensive review of the system itself, the first stage of which is already under way. ¹¹⁰ This view is reinforced by the difficulties that would be created in relation to the significant proportion of journey accident victims who would not be covered by the Transport Accidents Scheme. However, as with other work-related deaths and injuries, victims (or their families) of journey transport accidents should be free to elect whether they wish to retain their workers’ compensation entitlement or to claim benefits under the Scheme. This will ensure that, as far as workers’ compensation entitlement is concerned, the injured worker is no worse off under the proposed arrangements and may be considerably better off in cases of long-term incapacity. We return later to detailed recommendations in relation to election (paragraphs 14.85-14.94).

2. Course of Employment Transport Accidents

14.74 A considerable number of transport accidents occur in the course of the victim’s employment During 1981-82, for example, there were 43 fatal “road traffic cases” and 1,203 non-fatal “road traffic cases” arising out of the use of a motor vehicle in the course of employment. ¹¹¹ The Working Paper inclined to the view that compensation for transport accident victims injured or killed in the course of employment should generally continue to be governed by the workers’ compensation system. ¹¹² In view of the conclusions concerning journey accidents, we confirm the opinion expressed in the Working Paper.

14.75 The Working Paper also pointed out that if course of employment transport accidents remain within the workers’ compensation system, not all transport accident victims would be entitled to the same no-fault benefits, since there are differences between the benefits available under the proposed Scheme and those available under the workers’ compensation system. ¹¹³ Of course the ultimate answer is to integrate the two systems, preferably within the framework of a national scheme. However, in the meantime it was suggested that consideration could be given to minimising the differences in benefits by permitting a worker injured in the course of employment to receive “top-up compensation” from the Scheme where its benefits were more generous than those available under the workers’ compensation system. Upon further consideration we do not favour a top-up approach in relation to each set of benefits, but prefer (as was foreshadowed in the Working Paper) to give the injured worker or his or her family an election between the two systems. This conclusion has been reached for two main reasons. First, the Scheme should not fulfil a supplementary role of the kind traditionally performed by the common law in workers’ compensation cases. The Scheme has been constructed to provide a first and only system of compensation; to the extent that it overlaps with existing compensation systems, it should be presented as a complete alternative and not entrenched in a merely supplementary role. Secondly, the administrative task of assessing benefits on a “top-up” basis, item by item, would be extremely difficult if not impossible, since the items of compensation are differently defined in the two systems. There would be even greater difficulty in matching lump sum redemption under the Workers’ Compensation Act with entitlements to periodic compensation under the Scheme. In short the administrative problems arising from a top-up approach would be overwhelming.

14.76 We conclude that workers injured in course of employment transport accidents should have the right to elect between benefits under the Scheme and under the workers’ compensation system (paragraphs 14.85-14.91). There are, however, special reasons that justify permitting a worker, who has elected to receive benefits under the Scheme, to retain the right to compensation under the workers’ compensation system in respect of the first five days’ incapacity (paragraph 14.94).

3. The Cost of Course of Employment and Journey Claims

14.77 Granting an election to workers injured in transport accidents occurring in the course of employment or on the way to or from work does not resolve the problem of which scheme-workers compensation or transport accidents-should bear the cost of compensation. In order to deal with this question it is necessary to understand the present relationship between workers’ compensation and the compulsory third party motor vehicle insurance system. The position is complex, but is broadly as follows.

• Where the worker is injured in a motor vehicle accident and is entitled to claim workers’ compensation, but has no claim for damages against the employer or a third party, the employee s workers’ compensation insurer or the employer (if a self-insurer) meets the whole cost of the claim. ¹¹⁴
• Where the injured worker is entitled to workers’ compensation and also has a common law claim against a negligent stranger, he or she can recover both the workers’ compensation and common law damages, but the former is, in effect, set off against the latter. ¹¹⁵ Workers’ compensation payments are initially made by the workers’ compensation insurer or the self-insurer, but are recoverable from the compulsory third party insurer (the GIO). ¹¹⁶
• Where the injured worker is entitled to workers’ compensation and also has a claim in damages against the employer (for example, because of the employee s vicarious liability for the negligence of a co-employee), he or she can recover both the workers’ compensation and damages, but the former is, in effect-set off against the latter. ¹¹⁷ Workers’ compensation payments are initially made by the workers’ compensation insurer, but if the employer also has compulsory third party insurance with a separate insurer there should be a contribution from both insurers. ¹¹⁸
• Where the injured worker is entitled to workers’ compensation and also has a claim in damages against the employer and a stranger (or where a co-employee of the worker and a stranger were each negligent), he or she can recover both the workers’ compensation and damages, but the former is, in effect set off against the latter. ¹¹⁹ If the employer is insured, the cost of compensation should ultimately be shared among the workers’ compensation insurer, the employees compulsory third party insurer and the strangers third party insurer (in practice the last two being the GIO). ¹²⁰

The end result is that part of the cost of course of employment and journey claims involving motor vehicle accidents are met by the compulsory third party insurance system, although reliable figures on the precise extent of the contributions are not available. ¹²¹

14.78 Despite the provision for election, in relation to workers injured or killed in transport accidents occurring in the course of employment or on the way to or from work, the workers’ compensation system should continue to bear the cost of meeting such claims broadly to the same extent as it now does. Our view would be different if, for example, journey transport injuries were taken out of the workers’ compensation system and placed exclusively within the Scheme. However, unless and until that happens, the workers’ compensation insurer and the Corporation (taking over the functions of the compulsory third party insurer) should meet the cost of compensation in respect of journey and course of employment transport accidents in roughly the same proportions as have applied in the past. The appropriate formula should be determined by negotiations between the Corporation and workers’ compensation insurers in the light of past experience. The sharing of costs should be undertakers not on a case-by-case basis, but by bulk payments or adjustments to the negotiated formula. The formula would be easier to negotiate if a sole authority is established for the workers’ compensation system, but there is no reason, in principle, why a formula cannot be developed which applies to all insurers and self-insurers in the workers’ compensation area.

4. Recommendations

14.79 Where the workers’ compensation system overlaps with the Scheme, workers’ compensation entitlements should not be affected unless the person entitled to compensation elects to come within the Transport Accidents Scheme. We here use the term “workers’ compensation” to cover not only claims under the Workers’ Compensation Act, 1926, but also similar claims under any relevant industrial agreement, award or statutory scheme applicable to the industry in which the accident victim is employed. Accordingly, we recommend that, notwithstanding the abolition generally of rights to compensation (other than rights under the Scheme) for death or injury caused by or arising out of a transport accident, rights to compensation under the Workers’ Compensation Act, 1926, and any similar rights under an industrial agreement, award or statutory scheme under a law in force in New South Wales, should not be affected, except to the extent specifically provided in this Scheme.

14.80 We recommend that the cost of meeting claims arising out of transport accidents occurring in the course of employment or on the way to or from work should be met by employers and their insurers on the one hand, and by the Corporation on the other, in roughly the proportion such claims are currently divided between the workers’ compensation system and the compulsory third party insurance system. This recommendation should be implemented by negotiated agreements between the Corporation and employers and insurers, using past experience as a guide. The agreements should provide for block payments or adjustments pursuant to an appropriate formula.

B. Common Law Actions and Work-Related Accidents

14.81 A worker injured in a transport accident occurring in the course of employment or in a journey accident may have a common law or statutory claim, for example under the Compensation to Relatives Act 1897, in addition to his or her entitlement to workers’ compensation. The claim may be against:

• another person such as a careless driver or manufacturer whose negligence caused the accident;
• the injured workers employer, where the accident was caused by the negligence of a fellow worker for whose acts the employer is liable (under the doctrine of “vicarious liability”);
• the injured worker s employer, for failure to ensure the safety of the vehicle which caused the accident; or
• the injured worker’s employer, for personal negligence or negligence in some other way in failing to maintain a safe system of work, or for breach of statutory duty.

The Working Paper expressed the view that it would be inappropriate to allow retention of common law rights in respect of the first two situations. This was said to create unjustifiable distinctions among classes of accident victims and, in relation to the first kind of claim, would require the maintenance of a system of third party insurance for a limited class of case. The question whether, in the third and fourth situations, common law and related rights should be retained was left open.

14.82 We remain of the view that the injured worker’s common law rights against a person other than the employer should not be retained, even where the injury was suffered in the course of employment. Retention would not only create the need for special insurance measures but would mean that a negligent driver, manufacturer or other person would be held liable according to the quite fortuitous circumstance that the injured victim happened to be acting in the course of employment or travelling to and from work at the time of the accident. We can see no justification for such a result in view of the objectives of the Scheme.

14.83 The vicarious liability of the employer for the negligent acts of a co-employee of the victim presents more difficult issues. This case arises, for example, where a worker travelling as a passenger in a truck in the course of employment is injured by reason of the driver’s negligence (the driver being a co-employee). On the one hand, it is undesirable that courts should continue to determine liability for compensation in transport accidents according to notions of fault that are no longer appropriate. It is also undesirable to create a class of transport accident victims who have remedies not available to other victims. On the other hand, so long as the common law action survives for work-related accidents, fault will continue to be applied as a criterion of liability by the courts and, as we have recognised in relation to workers’ compensation, some victims will have alternative remedies open to them. Moreover, there is a strong argument that the passenger in the truck should be in no worse position than other workers injured by the negligence of their co-employees in non-transport accidents. For example, it would be anomalous if a worker injured by a negligently operated registered fork-lift truck in a factory were to be denied a common law action for damages, while a worker injured by an unregistered machine were to have such an action available on proof of negligence or breach of statutory duty. The future of the common law action and work-related injuries should be considered in the context of a general review of compensation arrangements for workers suffering incapacity and disability. We have concluded that, while the common law action remains for work-related injuries, the action should be available to a person injured, or the relatives of a person killed, in a transport accident caused by the negligence of a co-employee of the victim. Such an action would, of course, lie against the employer.¹²² It follows that the employer should continue to be liable for failing to provide a safe vehicle or system of work or for breach of statutory duty. Accordingly, we recommend that the action for damages at common law or under the Compensation to Relatives Act, 1897, against an employer should not be abolished where death or injury to a worker arose out of or in the course of his or her employment, notwithstanding that it was caused by or arose out of a transport accident.

IX. DOUBLE COMPENSATION

14.84 It is a generally recognised principle of compensation law that an accident victim should not be compensated for the same loss more than once from different sources. Although, for the purpose of compensation of transport injuries, the Scheme is intended to be comprehensive and exclusive, until the development of a national scheme alternative sources of compensation will remain which overlap and duplicate benefits available under the Scheme. The previous section of this Chapter dealt with the overlap created by the workers’ compensation system in relation to course of employment and journey accidents. Compensation systems outside the legislative control of the State of New South Wales are another source of potential overlap. These may be the product of the common law or of legislation of the Commonwealth or other States or Territories. Questions of double compensation will also be raised where a transport accident victim receives payment for disability or incapacity such as sick pay, accident insurance, superannuation or social security (“collateral benefits”). It is therefore necessary to decide how the Scheme should interact with such alternative sources of compensation and what provision should be made to prevent double compensation.

A. Election and Alternative Sources of Compensation

14.85 Transport accident victims entitled to benefits under the Scheme may also be entitled to compensation under

• the Workers’ Compensation Act, 1926, or similar rights under awards or other legislation where the transport accident occurred in the course of employment or on a journey to or from work;
• the Trade Practices Act 1974 (Cth.), where the accident was the result of a defective vehicle;
• a no-fault compensation scheme of another State or Territory the geographical scope of which overlaps with the New South Wales Scheme, (such as a case in which a Victorian resident, travelling in a Victorian registered vehicle, is injured in a collision in New South Wales with a New South Wales registered vehicle and wishes to claim under the Victorian Scheme); and
• a common law action under the law of another State or Territory, in circumstances in which common law rights have not been affected by their abolition in New South Wales (such as a case in which a New South Wales resident, travelling in a New South Wales registered vehicle, is injured in a collision in Queensland with a negligently driven Queensland registered vehicle and wishes to sue in Queensland in a common law action).

14.86 In all these cases the person entitled to benefits under the Scheme should be required to elect whether he or she will claim those benefits or rely on another source of compensation. As a general rule, a reasonable period for such election is three months from the date of the accident. The period should not be any longer because unnecessary delay in electing to claim under the Scheme would jeopardise the objectives of rapid rehabilitation and early assessment. In setting the limit, allowance should also be made for those cases in which the first symptoms of the transport injury are not apparent until some time after the accident.

14.87 During the three month period the person would be free to pursue any claim to compensation other than under the Scheme and to accept benefits pursuant to such claim subject to provision for set-off if a subsequent claim is made under the Scheme. But once a claim is lodged under the Scheme, the decision would be final and no further claim to, or recovery of, compensation outside the Scheme should be permitted. In practice a claimant would be required to elect formally not to pursue any other remedy. This election would be made effective under New South Wales law by amendments to legislation such as the Workers’ Compensation Act, 1926, creating alternative remedies. The amendments would be designed to ensure that the election precludes claims under that legislation. The same approach cannot be used for alternative remedies created by the law of the Commonwealth or another State or Territory, since the New South Wales Parliament cannot require the election to be enforced by authorities in another jurisdiction. There the election should be supported by a provision requiring benefits under the Scheme to be terminated if action is taken or compensation received under a scheme or procedure established in another jurisdiction. The Corporation should also have power to recover any benefits paid under the Scheme where action is taken or compensation received in breach of an election (paragraph 14.95). In practice it may prove possible to negotiate agreements with authorities in other jurisdictions to ensure that elections prove to be effective in relation to compensation schemes in those jurisdictions. Special arrangements will be required to deal with elections by children and the mentally disabled and to prevent the “splitting” of claims by the surviving family members of a person killed in a transport accident.

14.88 Although a person entitled to benefits under the Scheme would generally be permitted to recover compensation outside the Scheme within the three month period without prejudice to his or her entitlement under the Scheme, recovery of compensation in the form of a lump sum which represents a redemption of periodic payments or a final settlement of damages should exclude entitlement to benefits under the Scheme. Since a lump sum payment of this kind is meant to represent compensation for total loss, we see no reason why a person who accepts such a payment should not be regarded as forfeiting any further right to compensation In some cases, there would also be insuperable practical difficulties in identifying the components of such a lump sum for purposes of set-offs against benefits available under the Scheme if a subsequent claim under the Scheme were permitted. But the exclusion should not apply to lump sum disability payments for limited purposes, such as those for specific impairments under section 16 of the Workers’ Compensation Act, 1926, although efforts should be made to avoid such payments before the time for election has passed.

14.89 We recommend that where a person is entitled to benefits under the Scheme in respect of death or bodily injury and is also entitled to compensation or damages under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory in respect of the same death or bodily injury, such person should be given a period of three months from the date of the accident or from the onset of symptoms (whichever is later) to elect between the Scheme and the other source of compensation. Such an election should be permitted within the three month period whether or not any other claim for compensation is made during that time, except that, if an amount by way of a lump sum in redemption of entitlement to periodic payments or in final settlement of the claim (but not a payment under section 16 of the Workers’ Compensation Act, 1926, or any similar payment) has been recovered in respect of the death or injury, no claim under the Scheme should be permitted.

14.90 There may be circumstances in which excessive hardship would be caused if the three month period were rigidly adhered to. For example, a person may have been genuinely unaware of his or her entitlement under the Scheme throughout that period. In such cases the Corporation should have power to extend the period. One particular case which would require sympathetic consideration is the transport accident victim who, in the bona fide belief that he or she has a valid claim outside the Scheme, fails to establish that claim. It would be very unlikely that such an outcome would be known before the expiration of the three month period but, once known, it would then be apparent that that person had not made an effective choice. Specific provision should be made to permit a claim to be made in such a case outside the three month period. Accordingly, we recommend that the Corporation should have power to extend the period of three months where undue hardship to the claimant would otherwise be caused. In particular, if a claim or proceedings other than a claim under the Scheme is concluded by a bona fide determination that the claimant has no right to compensation and no compensation has been received by the claimant, the period of three months should be extended to permit a claim to be made under the Scheme.

14.91 Our general approach is that, subject to a three year limitation period, late lodgement of claims should not affect entitlement to benefits. Of course some benefits, such as support services, cannot be made available retrospectively. However, where the claimant has recovered compensation from some other source this will operate by way of set-off, as we now explain.

B. Avoiding Double Compensation

1. Set-Offs

General Principles

14.92 Benefits payable or available under the Scheme should not duplicate compensation already received from another source. It is reasonable to require of claimants who elect to make a claim under the Scheme that any compensation recovered up to the date of lodgement of the claim should be set off against benefits under the Scheme. The earlier recommendations have dealt with the problem of setting off a lump sum against periodic payments and other benefits by denying the recipient of the lump sum a right to claim under the Scheme. Nonetheless, set-offs still present difficult practical problems, although these cannot be avoided as long as other sources of compensation are available. While some comparisons will be easy, such as periodic payments in lieu of wages or lump sum disability payments, in other cases there will be no obvious equivalent to the compensation available under the Scheme and the Corporation will have to use its judgment in determining the extent of the set-off which is reasonable and appropriate. Even with regard to earnings-related compensation, adjustments may have to be made, for example, where the compensation already paid is on an after-tax basis under the basis (as under the Victorian no-fault scheme),¹²³ compared with a pre Scheme. We recommend that where a person who elects to claim under the Scheme has already been paid or has recovered compensation under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory in respect of the same death or bodily injury for which the claim is made, such compensation should be set off against benefits otherwise payable or available under the Scheme. The Corporation will need to have power to make the appropriate adjustments to ensure that, where the benefits received are not precisely comparable with those under the Scheme, the set-off is reasonable. As in other areas, special attention will have to be given to the possible “splitting” of claims in the event of death.

14.93 There may be cases in which the amount already received from another source exceeds the benefits payable for the equivalent incapacity or disability under the Scheme at the time a claim under the Scheme is made. As a general rule any such surplus should be deducted from future benefits. If this is not done, it would be an open invitation to claim benefits until the very end of the three month period and only then elect to transfer to the Scheme. Such a situation would be inconsistent with the aim of encouraging entry into the Scheme at the earliest time in order to maximise prospects of rehabilitation. If the surplus is deducted from future benefits, there will be no particular incentive to delay transfer to our scheme. However, where such a surplus exists, the process of deduction from future benefits should be gradual and made in such a way as to avoid unnecessary hardship. Accordingly, we recommend that, where a person elects to claim benefits under the Scheme and the compensation previously paid or provided under a law in force in New South Wales or under the laws of the Commonwealth or of another State or Territory is greater than that available under the Scheme to the date of election, appropriate adjustments should be made to future benefits under the Scheme until the excess is absorbed.

Special Provision for Work-Related Injury

14.94 Notwithstanding the recommendation on set-offs in the preceding paragraphs, it is necessary to make special provision for earnings-related compensation recovered under the Workers’ Compensation Act, 1926, or similar schemes in force in New South Wales. Workers entitled to workers’ compensation should retain payments in respect of the first five days incapacity notwithstanding that the Scheme does not provide compensation for that period. If compensation for loss of earnings is greater under the workers’ compensation system than under the Scheme for the first three months of incapacity, the worker should not be required to adjust his or her claim retrospectively. In other words, if periodic compensation under the workers’ compensation system is higher for that three month period (as it may be, since compensation is paid at the rate of 100 per cent of the current wage, rather than 80 per cent of actual earnings), the worker should be able to retain the higher level of compensation for that period. The reason for this is that it is desirable to encourage the worker suffering medium to long-term incapacity to come into the Scheme. If the worker in effect has to repay additional workers’ compensation benefits received during the first three months of incapacity, he or she might be deterred from transferring to the Scheme. While provision should be made to preserve these advantages, no further exception is necessary or desirable. In those few cases, such as where a lump sum payment under section 16 of the Workers’ Compensation Act might exceed the payment for permanent disability under the Scheme, in practice Such payments should be withheld until the period for election has expired. We recommend that, notwithstanding the general provisions for set-off, compensation or damages received prior to lodgement of a claim under the Scheme under the Workers’ Compensation Act, 1926, or similar legislation in force in New South Wales for loss of earnings:

(a) for the first five working days of incapacity, and

(b) for any other period, to the extent that such compensation exceeds the amount payable under the Scheme f or loss of earning capacity in equivalent circumstances,

should not be set off against benefits otherwise payable or available under the Scheme.

2. Forfeiture and Assignment of Rights

14.95 The most effective way to eliminate the risk of double compensation once a person has elected to claim under the Scheme is to deny that person the right to make further claims or accept compensation from any other source. Since the person has three months in which to decide between the Scheme and any alternative, it is not unreasonable to insist that once the decision is made to claim under the Scheme it should be final. Accordingly, we recommend that once a person has made a claim under the Scheme that person:

(a) should not be permitted to enforce any other entitlement to, or accept payment of, compensation in respect of the same death or bodily injury for which the claim is made; and

(b) should be disqualified from further entitlement to benefits under the Scheme and liable to repay benefits under the Scheme if the other entitlement is enforced or payment accepted in breach of this prohibition.

14.96 There may be cases where it is reasonable, despite the finality of the claimant’s election, to expect some or all of the cost to be borne by the other source of compensation. We have already referred to the case of workers’ compensation. The problem may also occur, for example, where the transport accident victim’s injury has been aggravated by medical negligence. In such a case, the aggravation would be compensable under the Scheme (paragraph 14.35). However, the medical negligence would not be a “transport accident” and a common law action against the negligent doctor or hospital would therefore not have been abolished by our earlier recommendations. We think it is desirable, when a claim is made, that entitlement to compensation from other sources should be assigned, to the extent possible, to the Corporation. Accordingly, we recommend that, where a claimant is entitled to compensation otherwise than under the Scheme in respect of death or bodily injury for which compensation is payable under the Scheme, any such entitlement should, to the extent possible, be assigned by operation of law to the Corporation.

14.97 It might be inappropriate for the Corporation to enforce any entitlement the transport accident victim might have to compensation under the no-fault transport accident schemes of other States or Territories. A more constructive approach would be to establish co operative arrangements between the Corporation and equivalent bodies in other States and Territories in order to rationalise compensation procedures. The Victorian Motor Accidents Act 1973, addresses this problem by empowering the Motor Accidents Board

(1) [to] enter into an agreement with any public statutory body constituted by or under a corresponding law to this Act relating to the payment of amounts to a person who sustains injuries that were, or whose death was, caused by or arose out of the use of a motor car, where-

(a) the accident occurred in a participating State; and

(b) the person injured or killed was not resident in the participating State in which the accident occurred but was resident in another participating State.




(2) An agreement... shall provide that in respect of a claim for payment of compensation to persons injured or to relatives of persons who die, as a result of a motor accident where the accident occurred-


(a) in Victoria, the provisions of the Motor Accidents Act 1973 shall apply; and

(b) in any other participating State, the provisions of the law that is in relation to the Motor Accidents Act 1973 a corresponding law shall apply.




(3) For the purpose of this section, “participating State” means Victoria and any other State or Territory under the law of which any public statutory body which enters into an agreement under sub-section (1) is constituted. ¹²⁴

A provision in these terms would not be practicable unless the geographical scope of the Scheme were identical to that under the Victorian Scheme. The necessary flexibility is better achieved if the power is granted to the Corporation in more general terms. We recommend that the Corporation should have the power to enter into arrangements with any body exercising similar functions in any other State or Territory, for the purpose of recoupment or exchange of benefits or for any other form of cooperation necessary for the efficient administration of the Scheme.

C. Collateral Benefits

14.98 The term “collateral benefits” issued to describe benefits paid to an accident victim for a disability or incapacity independently of a right to compensation. Entitlement to such benefits often does not depend, as compensation has traditionally depended, on proof that the disability or incapacity resulted from an injury suffered in consequence of another’s wrongdoing (such as negligence in a common law action), or as the result of certain kinds of accidents (such as course of employment accidents in a workers’ compensation claim). In most cases, entitlement to collateral benefits is based on the disability or incapacity as such and not on its source. Collateral benefits include:

• accident insurance;
• sick pay and holiday pay;
• superannuation and retirement pension;
• payments pursuant to a provident or social welfare scheme;
• social security benefits; and
• ex gratia payments.

But even though such benefits differ in character from accident compensation, their payment clearly creates a risk of double compensation. We first describe briefly how collateral benefits are treated under existing compensation systems in New South Wales and then indicate the suggested approach under the Scheme.

1. The Existing System

Common Law

14.99 At common law sick pay is seen as a direct wage substitute and is therefore set off against damages for loss of wages or earning capacity, ¹²⁵ subject to an allowance for loss of future sick pay entitlement, if any. ¹²⁶ On the other hand, accident insurance is not set off, on the ground that it is the product of the injured parties prudence and should not be used to benefit the wrongdoer. ¹²⁷ Ex gratia payments are not set off on the ground that it would be against public policy to discourage private charity. ¹²⁸ Other collateral benefits have been dealt with under the general principle that where the benefit is intended to be enjoyed independently of the injured party’s right to damages, it should not be set off. ¹²⁹ Thus superannuation payments and most pensions including invalid pensions, ¹³⁰ retirement pensions ¹³¹ and widows’ pensions, ¹³² are not set off. In the recent High Court case of Redding v. Lee, ¹³³ it was held by a narrow four to three majority that unemployment benefits should be set off.

Compensation to Relatives

14.100 It is expressly provided in the Compensation to Relatives Act, 1897, that the following should not be taken into account in assessing damages in a wrongful death claim:

• any sum payable under a contract of insurance;
• any sum payable out of any superannuation, provident or like fund or by way of benefit from a friend by society, benefit society or trade union; and
• any sum payable by way of pension, including widows’, repatriation and invalid pensions. ¹³⁴

In addition it has been held that ex gratia payments should not be set off. ¹³⁵

Workers’ Compensation

14.101 Under the Workers’ Compensation Act, 1926, the injured worker is entitled to both compensation and ordinary pay for any periods of paid leave to which the worker is entitled. ¹³⁶ A worker entitled to both compensation and sick pay may elect to receive compensation in lieu of sick pay. ¹³⁷ The Workers’ Compensation Commission has a discretion to take into account payments made to the worker by his or her employer during the period of incapacity ¹³⁸ but this decision is rarely used to reduce benefits. ¹³⁹ Superannuation payments are not set off. ¹⁴⁰

2. Proposals for the Scheme

14.102 For similar reasons to those given by courts in common law actions (paragraph 14.99), sick pay and holiday pay received by a claimant under the Scheme should be set off against benefits otherwise payable for loss of earning capacity. In such circumstances sick pay is indistinguishable from actual wages so that, to the extent that it has been paid, there has been no real loss to be compensated. However, the receipt of sick pay or holiday pay will usually lead to loss of entitlement in the longer term. Rather than try to allow for this in the calculation of benefits, the claimant should be offered a choice whether to take sick or holiday pay or compensation. This approach is consistent with that taken under the Workers’ Compensation Act and would allow sick or holiday pay to be treated on the same basis as other sources of compensation. It follows that if the claimant elects to take sick pay or holiday pay it would be set off against entitlement under the Scheme. If the claimant elects not to take the sick or holiday pay it would not be set off. This should be subject to the right of the claimant to retain sick pay or holiday pay for the first five working days of incapacity (unless he or she is receiving workers’ compensation for that period). One justification for the recommendation not to award compensation under the Scheme in respect of the first five days of incapacity was that employed people could reasonably be expected to have recourse to sick pay or holiday pay for that period. Accordingly, we recommend that a claimant who is entitled to sick pay or holiday pay in respect of a period of incapacity should be able to elect whether to take such pay or claim compensation for loss of earning capacity for that period. If the claimant elects to take such pay, the amount received should be set-off against the compensation otherwise payable for loss of earning capacity, except that there should be no set-off:

(a) for the first five working days of incapacity; or

(b) for any other period, to the extent that the sick pay or holiday pay exceeds the compensation under the Scheme for loss of earning capacity for that period.

14.103 Collateral benefits generally should not be set off. In the case of ex gratia payments and accident insurance, as with sick pay, we follow the reasoning taken at common law. In addition, it is desirable to encourage people to take out insurance, particularly those whose earning capacity is above the maximum by reference to which compensation can be assessed. To a considerable extent the reasoning applied to accident insurance can also be applied to superannuation benefits: that is, the prudent claimant should be allowed to enjoy the fruits of his or her own contribution to financial security. In addition, the practical difficulty, if not impossibility of devising a satisfactory set-off rule to apply to the wide variety of superannuation schemes which exist is sufficient reason in itself to refrain from any attempt at setting off superannuation payments. This is not designed to support or encourage the concept of double compensation However, the remedy for double compensation lies with the superannuation funds which could limit superannuation payments in compensable cases.

14.104 Under section 115C of the Social Security Act 1947 (Cth.), sickness benefits may be refused where compensation from another source is payable. There is provision for recoupment of benefits already paid to a recipient of compensation. ¹⁴¹ Where periodic payments are made. such as those envisaged in respect of loss of earning capacity under the Scheme, the recipient Would normally be disqualified from claiming unemployment benefits. ¹⁴² It would seem that compensation under the Scheme would not disqualify a claimant from receiving an invalid pension, but of course the usual assets or income tests would apply. In Redding v. Lee ¹⁴³ some of the judgments in the High Court suggested that the Act should be amended to require termination and recoupment of pensions where compensation was recovered, ¹⁴⁴ although the comments were made in a case involving lump sum damages. The Scheme should be treated as a scheme of first recourse and the Commonwealth should make whatever adjustments are necessary to avoid double compensation. Because of the uncertainties surrounding the operation of the existing provisions of the Social Security Act, it may be necessary for discussions to be held with the Commonwealth in order to ensure, for example, that people receiving relatively modest compensation under the Scheme are not deprived entirely of social security benefits and that anomalies are avoided. But these are matters to be worked out between the State and Commonwealth Governments. We recommend that benefits available to a claimant under the Scheme should not be reduced or otherwise affected by the payment of, or entitlement to, ex gratia payments, accident insurance payments, retirement pensions, superannuation and similar benefits, or pensions or benefits under Commonwealth legislation

14.105 The same general principles should apply to death benefits. There should be no set-off of collateral benefits against the lump sum award or periodic payments to a surviving spouse and/or children during the five year period after death. ¹⁴⁵ However, the needs-based payments provided for in the recommendations ¹⁴⁶ would require superannuation pension payments and the like to be taken into account in determining the income of the claimant.

X. EXCLUSIONS

14.106 The extent to which accident victims should be denied benefits under the Scheme by reason of their conduct is a difficult and sensitive issue. It has not proved possible to reach agreement on this question and the differences of opinion within the Commission undoubtedly reflect differences in the wider community. The difficulties are also illustrated by the divergent approaches taken by the Australian no-fault motor vehicle compensation schemes and the New Zealand scheme.

A. Exclusions under Existing Schemes

1. New Zealand

14.107 Under the New Zealand scheme a person is disqualified from all benefits where the injuries were “wilfully self-inflicted”. ¹⁴⁷ In the case of suicide, some survivors’ benefits may be paid where there is special need, but a person convicted of the murder or manslaughter of another covered by the scheme is not entitled to benefits. ¹⁴⁸ Apart from these exclusions, the Accident Compensation Corporation may decline, wholly or partly, to give rehabilitation assistance and to pay compensation if to do so would, in its opinion, be “repugnant to justice”. ¹⁴⁹ Thus the New Zealand scheme simply leaves the problem to be resolved by the Corporation in individual cases, with little guidance in the governing legislation.

2. Victoria

14.108 Section 16(1) of the Motor Accidents Act 1973 sets out the categories of applicants who can be denied compensation for income loss or deprivation or impairment of earning capacity. These categories include people who were committing, when the accident occurred, various driving offences, including unlicensed driving and driving as owner of an uninsured motor car. Other excluded categories of people are those whose injuries are self-inflicted and those who are injured while participating in a race, competition or trial in a place other than a highway. There is no exclusion of hospital, medical and associated expenses. From information supplied by the Victorian Motor Accidents Board, less than 1 per cent of claims for loss of earning capacity in the year 1 July 1982 to 30 June 1983 were denied on grounds of exclusion. This estimate does not, of course, include those people who made no claim because they obviously fell within an excluded category.

3. Tasmania

14.109 In contrast to the Victorian Act, the Tasmanian Act denies scheduled benefits (medical, funeral and death benefits and disability allowances) in respect of:

• death or injury resulting from intentionally causing or attempting to cause death or injury;
• death or injury caused by or arising out of the use of a motor vehicle in a motor vehicle race in which the person killed or injured was taking party; or
• death or injury caused by or arising out of the use of a motor vehicle in the commission of, or in the furtherance of the commission of, an offence of dishonesty or violence, that person being a party to the use of that vehicle for that purpose. ¹⁵⁰

Medical and disability benefits are also denied to people convicted of a number of listed driving offences including unlicensed driving. ¹⁵¹

4. Northern Territory

14.110 All benefits under the Northern Territory scheme are denied to people using a motor vehicle without the consent of the owner for the commission of an indictable of fence, for the purpose of resisting arrest or inflicting injury on themselves or other people. ¹⁵² Compensation for loss of earning capacity and the lump sum payment for scheduled injuries are denied in cases involving particular driving offences, unlicensed driving except in an emergency, and race competitions or trials. ¹⁵³

B. Matters of Principle

1. The Policy Choice

14.111 There are two fundamentally different views on exclusions from benefits under a no-fault compensation scheme. One is that broad exclusions from the scheme conflict with its basic purpose since denying benefits on the ground of criminal conduct or other improper behaviour is a return to fault This is not the place to reiterate the arguments against fault as a principle underlying compensation law, but broad exclusions can be regarded as incompatible with a scheme which seeks to eliminate fault as a determinant of entitlement to compensation. The arguments in favour of broad exclusions often resemble those used to justify the concept of fault as a reason for denying or reducing damages to an injured person. This was evident in Submissions contending that the community’s “sense of justice”. Would be offended if a person whose criminal conduct had caused the accident were to be compensated on exactly the same basis as the innocent victim. ¹⁵⁴ On this view, the Scheme should not compensate those whose injuries resulted from their own misconduct, since they are the authors of their own misfortune. Accordingly, public resources should not be used to compensate them, at least at a level higher than basic social security benefits. To this can be added an argument based on deterrence. If the communities objective is to discourage certain kinds of conduct, such as driving under the influence of alcohol, that objective could be undermined if a wrongdoer is entitled to compensation. However, those who favour narrow exclusions point out that the alleged deterrent effect of reduced compensation lacks emperical evidence to support it, just as there is no reliable evidence to support retention of fault on grounds of deterrence (paragraph 3.37-3.39).

14.112 The issue is complicated for present purposes because the proposed Scheme covers only transport accident victims. Those members of the Commission who support broad exclusions are influenced by the limited scope of the Scheme. In their view it is especially difficult to justify generous compensation under such a Scheme to a person whose criminal conduct is the cause of his or her own injury and possibly injury and even death to others. The limited scope of the Scheme means that some victims of other types of accident, such as home accidents, however innocent, are left uncompensated and the contrast cannot be justified, at least until the advent of a comprehensive scheme. Their view is reinforced by the fact that to exclude a person from the Scheme does not leave him or her entirely without support, which is likely to be available in the form of free hospital and medical care and entitlement to social security. The approach does not deny the validity of the argument that, in principle, compensation and punishment for criminal conduct should not be confused. Rather it measures that principle against the imperfections and inevitable anomalies of significantly different compensation systems operating side by side.

14.113 The contrary argument is that the clear distinction between compensation and punishment for criminal conduct ought not to be compromised, especially in a no-fault scheme. The importance of effective rehabilitation and of providing financial security to the victim and his or her family are no less because the person injured or killed was guilty of a crime. It is one thing for a person’s financial means to be affected by a penalty imposed by the criminal law. But it is another for the compensation system to impose a penalty, a task for which it is not equipped. This argument has particular force in relation to a scheme which makes a total commitment to the no-fault principle. By contrast, under dual schemes, there is no inconsistency of principle between the wide class of exclusions which operate in the “no-fault” component and the retention of the common law action for negligence. The use of the compensation system as a means of punishment for criminal conduct is especially inappropriate if the Corporation itself has to determine the nature and extent of the benefits to be excluded. For this reason, the solution adopted in New Zealand by which the Accident Corporation may decline compensation where to do otherwise would be “repugnant to justice” (paragraph 14.107) is not satisfactory. This is to confuse the role of the courts with that of a Corporation administering a no-fault scheme.

2. What is Excluded?

14.114 This brings us to a second and related question If benefits are to be excluded for improper conduct, does this mean all, or only some, of the benefits available under the Scheme? The solutions adopted by existing schemes demonstrate the range of possible answers. Under both the New Zealand and Northern Territory schemes, all benefits are denied in certain cases, while earnings-related compensation is denied in some other cases in the Northern Territory. In Victoria the general approach is to deny earnings-related compensation Lump sum payments for scheduled injuries are affected in Tasmania (combined with medical and hospital expenses). (See paragraphs 14.107-14.1 10). There is no doubt that the range of benefits affected is influenced by the kind of conduct caught by the exclusion rules. The wider the conduct caught, the less sweeping the denial of benefits; the narrower the conduct, the more benefits that are denied.

14.115 It is very difficult to suggest which class, or classes, of benefits are more appropriately excluded in preference to others. The most important to retain are benefits closely related to treatment and rehabilitation such as medical and ancillary services, attendant care and support services. But denying compensation for permanent disability and for loss of earning capacity also presents difficulties. If the lump sum payment for permanent disability were withheld from a person whose disability resulted from misconduct, the denial would affect only the most seriously injured and it is difficult to justify penalising only this class of wrongdoer. If compensation for loss of earning capacity is to be refused, for example on the ground of conviction for a criminal offence, there will inevitably be a delay, often substantial, between the accident (and commission of the alleged criminal offence) and conviction. Either compensation payments already made will have to be refunded, perhaps after the convicted claimant has fully recovered and is no longer receiving benefits, or compensation payments have to be deferred where it appears a charge has or will be laid, as in Victoria. The former approach presents obvious administrative problems, while the latter could work considerable injustice on those subsequently acquitted of criminal charges.

C. Proposals

1. Self-Inflicted Injury

14.116 The one exclusion on which we hold a unanimous view is that no benefits should be paid where the death or injury is wilfully self-inflicted. This is a ground for exclusion in all other schemes. One reason why self-inflicted injury stands apart from other grounds for exclusion is its association with possible abuse. No earnings-related compensation scheme can ignore the regrettable need to guard against cases of injury deliberately inflicted in order to obtain benefits. We recommend that benefits under the Scheme should not be available in respect of intentionally self-inflicted death or bodily injury.

2. Crimes of Violence

14.117 Some members of the Commission, while recognising the difficulties of imposing an exclusion for criminal conduct generally, are particularly concerned at compensation and benefits being provided to a person engaged in committing a criminal offence at the time of the accident. This is an especially sensitive issue from the perspective of the community’s sense of justice. Discussions following publication of the Working Paper suggest that many members of the community would be offended at the prospect that people guilty of crimes of violence could receive full benefits under the Scheme. Those holding this view extend it to benefits available to members of the family of a person killed in the course of an act of violence. They are influenced by the fact that, in the absence of a comprehensive compensation scheme, the families of many accident victims innocent of criminal wrongdoing have no entitlement to compensation. Other members of the Commission consider that even an exclusion for the extreme case of violent criminal conduct would undermine the principle that the compensation and criminal justice systems have different objectives and should be separately administered. They note that all benefits would be suspended during a period of imprisonment (paragraph 14.123) and that this would have a substantial effect on claimants convicted of crimes of violence. Members of the Commission, though equally divided on the following recommendation, agree that it should have the status of a majority recommendation and should be incorporated in draft legislation. On this basis we recommend that benefits should not be available under the Scheme in respect of bodily injury or death sustained by a person in furtherance of or incidental to the commission of a crime involving an intention to inflict serious violence or substantial damage to property, for which he or she is convicted or against whom the offence is proven.

3. Driving Offences

14.118 The majority of the Commission favour no further exclusions. However, all members of the Commission agree that if, contrary to the majority view, further exclusions should be adopted, they should not be framed in general terms such as “indictable offence”. ¹⁵⁵ The wide range of unrelated and relatively minor crimes included in this term make it inappropriate as an exclusion. Similar difficulties arise in relation to a phrase such as that used in the Tasmanian legislation which links offences of “dishonesty and violence” in its exclusion provision. ¹⁵⁶ It would be better to take the approach in the subsidiary exclusion provision of the Tasmanian legislation which lists a number of specific driving-related offences. ¹⁵⁷ Putting aside serious crimes already dealt with any further exclusion can only be justified where the criminal conduct complained of was in the form of a driving offence which materially contributed to the accident. The minority recommendation therefore adopts an adaptation of the subsidiary Tasmanian provision.

14.119 The majority of the Commission has not been persuaded that a driving offence, even if it materially contributed to the accident, is sufficient to overcome the more fundamental objection in principle to denying compensation through the Scheme. The problems are especially acute if a blanket exclusion is proposed irrespective of-the seriousness of the offence. The quadriplegic whose blood alcohol level is marginally above the prescribed limit would stand to lose extensive benefits over a lifetime, while the driver guilty of manslaughter who escaped with minor injuries would have very little to lose by the exclusion This distorts the priorities normally adopted as part of the criminal process. Furthermore, the knowledge that conviction for a relatively minor offence could automatically deprive an accused person of substantial benefits under the Scheme might influence judges, juries and magistrates in deciding whether to convict and might also influence sentencing in a haphazard way. The majority considers that this could have an arbitrary effect on the administration of justice and that the relationship between the compensation system and the criminal law should be worked out more systematically.

14.120 If the compensation and criminal justice systems were more closely coordinated, would this overcome some of the problems identified in the previous paragraph? Consideration was given, for example, to a proposal to grant judges and magistrates in criminal proceedings power to deny or reduce benefits under the Scheme as part of the sentencing process. This would have the advantage of allowing some account to be taken of the seriousness of the offence in determining the benefits which should be denied or-reduced, although this would complicate the sentencing process in that the court would have an additional sentencing option for certain classes of offenders. It might not be easy to determine the extent to which benefits should be denied, or the relationship between that option and other kinds of penalties. Moreover, the proposal does not overcome the administrative problems created by the substantial delay between the accident and the conclusion of criminal proceedings.

14.121 Despite the difficulties, careful attention should be devoted to the relationship between the accident compensation system and the criminal justice system. In particular, consideration should be given to allowing or perhaps requiring the judge or magistrate in criminal proceedings to take account of benefits available under the Scheme, both past and future, in determining the appropriate sentence for a transport accident victim convicted of an offence related to the accident This approach would allow, for example, the severity of a pecuniary penalty to be determined having regard to compensation entitlements. However, the court would act in accordance with the general principles of sentencing, which take account of the seriousness of the offence and the circumstances of the accused, including his or her responsibilities for the support of family members. Attention would need to be devoted to the enforcement of any penalty. it may be appropriate to establish special procedures to permit a financial penalty to be recouped out of benefits under the Scheme. The value of this approach in principle is that it does not confuse the distinct functions of the compensation and criminal justice systems, yet acknowledges the concern of many people in the community that accident victims guilty of criminal misconduct should not ultimately enjoy the same benefits as victims who have been guilty of no such misconduct. When this is combined with the later recommendation that benefits should be discontinued during a period of imprisonment, the means may be available to satisfy the communities sense of justice, yet preserve the integrity of the compensation scheme. For these reasons, a majority of the Commission recommends that, subject to the discontinuation of benefits during imprisonment, there should be no further exclusions from the Scheme on public policy grounds. However, consideration should be given to revising sentencing procedures to empower or require judges and magistrates to take into account entitlements to benefits under the Scheme when sentencing for offences related to transport accidents and to establish mechanisms for the enforcement of penalties against entitlements under the Scheme.

14.122 Two members of the Commission ¹⁵⁸ would recommend that benefits should not be available under the Scheme in respect of death or bodily injury sustained by a person who commits one or more of certain offences, provided the conduct giving rise to the offence or offences materially contributed to the transport accident. The offences referred to are:

• manslaughter;
• culpable driving under Section 52A of the Crimes Act, 1900;
• driving at a speed or in a manner that is dangerous to the public under section 4(1) of the Motor Traffic Act, 1909;
• malicious injury to property under section 247 of the Crimes Act, 1900;
• driving a motor vehicle with more than the prescribed concentration of alcohol in the driver s blood under section 4E of the Motor Traffic Act, 1909; and
• driving a motor vehicle while the driver is under the influence of intoxicating liquor or of a drug under section 5(2) of the Motor Traffic Act, 1909.

4. Imprisonment

14.123 The earlier discussion foreshadowed an intention to exclude people in prison from benefits under the Scheme. To the extent that discontinuation of benefits in such circumstances is indirectly associated with conviction for a crime connected with the transport accident it effectively reduces benefits in such cases. However, unlike general exclusion on the grounds of conviction for an offence it does not operate retrospectively and thus avoids the administrative problems associated with retrospective adjustment. Moreover, because the term of imprisonment is likely to reflect the seriousness of the crime, it operates less arbitrarily than general exclusion. More generally, a person in prison has access to the medical, hospital and rehabilitation services within the corrective services system. There is no good reason why facilities under the Scheme should be used to supplement or replace them. It would also be contrary to accepted public policy for the Scheme to provide financial support by way of periodic payments for loss of earning capacity during a period of imprisonment. Therefore, we recommend that all benefits under the Scheme should be suspended while a person otherwise eligible for benefits is imprisoned pursuant to conviction or sentence for any crime.

XI. SUMMARY

14.124 This Chapter examines the scope of the Transport Accidents Scheme. Many of the issues discussed in the Chapter would not arise under a national compensation scheme, since they concern the relationship between the Scheme and other sources of compensation. However, a scheme confined to transport accidents is not universal and thus raises difficult questions of causation and coverage. Some of these difficulties would be reduced if the Commonwealth and other Australian States and Territories were prepared to enter into cooperative arrangements to minimise overlap between compensation schemes and to increase the opportunities for efficient administration. The Corporation should have power to enter into such arrangements with any body exercising similar functions elsewhere in Australia.

Transport Accidents

14.125 The Scheme should apply to death or bodily injury caused by or arising out of a transport accident. A transport accident, generally speaking, is one involving the use of a motor vehicle or a form of public transport such as train or ferry. Bodily injury should include not only physical disability but nervous shock and damage to artificial members and aids.

Latent and Supervening Conditions

14.126 In determining whether disability or incapacity was caused by or arose Out of a transport accident, no regard should be had to any latent condition such as a disease of gradual onset existing at the time of the accident, which was not then productive of disability or incapacity. This should be so even though the latent condition ultimately would have resulted in disability or incapacity had the accident not occurred. An accident victim entitled to benefits under the Scheme should not have those benefits reduced or terminated by reason of a subsequent event, such as a second accident, causing further disability or incapacity.

Geographical Scope

14.127 The Scheme should apply to death or bodily injury suffered by:

• a New South Wales resident killed or injured in a transport accident in New South Wales;
• a non-resident killed or injured in a transport accident in New South Wales, provided the vehicle or form of transport involved was registered in the State or operated by a State authority; and
• a New South Wales resident killed or injured elsewhere in Australia, provided the vehicle or form of transport involved was registered in New South Wales or operated by a State authority.

Overseas residents injured in a transport accident in New South Wales should not generally be entitled to compensation under the Scheme.

Common Law

14.128 In general rights to compensation arising out of a transport accident should be abolished, except for the rights to compensation under this Scheme.

Work-Related Accidents

14.129 A worker’s right to claim damages against a negligent employer for a transport accident occurring in the course of employment should remain unaffected by the Scheme. Rights to compensation for injured workers under the New South Wales workers’ compensation system should not be affected by the Scheme. Thus a worker injured in a transport accident in the course of employment or on a journey to or from work should continue to be entitled to workers’ compensation.

Compensation from Other Sources

14.130 A person may be entitled to claim compensation under the Transport Accidents Scheme and under some other scheme or system. This could occur, for example, where the claimant has a common law action for damages in another State or rights under the New South Wales workers’ compensation system. In these circumstances, the general rule should be that the person has three months to elect whether to claim under the Scheme or to pursue other remedies. If the person elects to receive benefits under the Scheme, he or she should have to account fully for any compensation received from the other source. An exception should apply where an injured worker claims workers’ compensation and elects to come under the Scheme within the three month period. In this case the worker should be entitled to retain workers’ compensation in respect of loss of earnings:

• for the first five days of incapacity; and
• for any other period (up to the date of election) if the compensation is greater than that paid under the Scheme.

14.131 Benefits under the Scheme should not be reduced or otherwise affected if the accident victim receives moneys in the form of ex gratia payments, accident insurance, retirement pensions, superannuation or pensions or benefits under Commonwealth legislation.

Exclusions

14.132 The question of exclusions raises difficult questions concerning the relationship between a scheme designed to compensate on a no-fault basis and the criminal justice system. All members of the Commission agree that benefits should not be available in respect of intentionally self-inflicted death or bodily injury and that benefits otherwise available should be suspended while a person is in prison. A majority takes the view that:

• benefits should not be available under the Scheme in respect of bodily injury or death sustained by a person while committing a serious crime; but
• there should be no further exclusions from the Scheme on public policy grounds.

However, consideration should be given to revising sentencing procedures to empower or require the courts to take into account compensation under the Scheme in determining penalties for offences related to transport accidents.

1. Government Insurance Office of New South Wales v. R.J. Green & Lloyd Pty. Ltd. (1966) 114 CLR 437, at p.444, per Barwick C.J.

2. Fawcett v. B.H.P. By-Products Pty. Ltd. (1960) 104 CLR 80.

3. Johnson and Morris Pty. Ltd. v. Government Insurance Office of New South Wales [1972] 2 NSWLR 743: Commercial and General Insurance Co. Ltd. v. Government Insurance Office of New South Wales (1973) 129 CLR 374.

4. Motor Vehicles (Third Party Insurance) Act 1942, s.30(1).

5. Further Schedule to Act.

6. Commissioner for Motor Transport, Annual Report 1981-1982 (New South Wales), p.20.

7. See eg. Submissions S40, p.16; W34: and W55.

8. Motor Accidents Act 1973 (Vic.), s.16(1)(f).

9. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), s.24(1)(d).

10. Motor Accidents (Compensation) Act 1979 (NT), s.9

11. Section 5(1).

12. J.G. Fleming, The Law of Torts (6th ed. 1983). p.153.

13. Watt v. Rama [1972] V.R. 353.

14. Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383.

15. Hinz v. Berry [1970] 2 QB 40, Mount Isa Mines Ltd. v. Pusey (1970) 125 CLR 383.

16. Chadwick v. British Railways Board [1967] 1 WLR 912: McLoughlin v. O’Brian [1982] 2 WLR 982. See now Jaensch v. Coffey (1984) 58 ALJR 426.

17. State Rail Authority of New South Wales v. Sharp [1981] 1 NSWLR 240.

18. Boyle v. Nominal Defendant (1959) 59 SR (NSW) 413.

19. Juensch v. Coffey (1984) 58 ALJR 426.

20. Accident Compensation Act 1982 (NZ). ss.76, 77.

21. In Moore v. Nominal Defendant [1983] 1 Qd R 507, loss or damage to spectacles consequential on bodily injury was held not to be bodily injury for purposes of the Motor Vehicles Insurance Act 1936-1979 (Qld.).

22. See also eg. Motor Accidents Act 1973 (Vic.), s.3 (2) (c).

23. Working Paper, para.10.2.

24. State Government Insurance Commission v. Stevens Brothers Pty. Ltd. (1984) 58 ALJR 346.

25. Government Insurance Office of New South Wales v. R.J. Green & Lloyd Pty. Ltd. (1966) 114 CLR 437.

26. (1960) 104 CLR 80.

27. (1973) 129 CLR 374.

28. State Government Insurance Commission v. Stevens Brothers Pty. Ltd. (1984) 68 ALJR 346. See also Dawson v. Stevens Bros. Pty. Ltd. (1983) 32 SASR 375.

29. Harvey Trinder (NSW) Pty. Ltd. v, Government lnsurance Office of New South Wales (1966) 114 CLR 449.

30. Lamont v. Motor Accidents Board [1983] VR 88.

31. Harris v. Motor Accidents Board, Appeal No.9 of 1980, Victorian Motor Accidents Tribunal.

32. Brewer v Incorporated Nominal Defendant [1980] VR 469.

33. McGuire v. Motor Accidents Board, CCH Victorian Workers’ Compensation Guide-Cases on the Motor Accidents Act, No.74-130.

34. Government Insurance Office of New South Wales v. PJ Green & Lloyd Pty. Ltd. (1966) 114 CLR 437, at p.447, per Windeyer J.

35. Vaux v. Law Union and Rock Insurance Co. Ltd. (1961) 78 WN (NSW) 588.

36. Stewart v. Sydney County Council [1973] 1 NSWLR 444.

37. Gray v Murray [1979] Tas R 48.

38. Harkin v. Motor Accidents Board, CCH Victorian Workers’ Compensation Guide-Cases on the Motor Accidents Act No. 74-130.

39. Government Insurance Office of New South Wales v. King (1960) 104 CLR 93, at pp.99-100, per Menzies J.

40. Mapleson v. Motor Accidents Board, Appeal No.4 of 1975, Victorian Motor Accidents Tribunal, Aquilina v. Noel Schmutter (Sales) Pty. Ltd. 4 August 1983, Supreme Court of New South Wales, Yeldham J.

41. Ryan v. Motor Accidents Board, Appeal No.6 of 1976. Victorian Motor Accidents Tribunal.

42. Application for Review by A (1979) 4 ACCR (NZ) 56.

43. Application for Review by H (1978) 3 ACCR (NZ) 42. See also Accident Compensation Corporation Medical Information Bulletin No.25 (October 1982), pp.3-4.

44. (1941) 65 CLR 204.

45. Performance Cars Ltd. v. Abraham [1962] 1 QB 33.

46. Neall v. Watson (1960) 34 ALJR 364; Hole v. Hocking (1962) SASR 128.

47. Zumeris v. Testa (1972) VR 839.

48. Wilson v. Peisley (1976) 50 ALJR. 207.

49. Cutler v. Vauxhall Motors Ltd. [1971] 1 QB 418, at p.432, per Russell L.J.

50. Salisbury v. Australian Iron & Steel Ltd. (1943) 44 SR (NSW) 157.

51. Appeal by V (1980) 5 ACCR (NZ) 55

52. Neall v. Watson (1960) 34 ALJR 364; Smith v. Leech Brain and Co. Ltd. [1962] 2 QB 405: Robinson v. Post Office [1974] 1 WLR 1176; Pipikos v. W. Brown and Sons Pty. Ltd. [1970] SASR 508, and Hoffmueller v. The Commonwealth (1981) 54 FLR 48.

53. Note that compensation for permanent disability under the proposals in Chapter 11 would be based on the difference between the compensation payable in respect of the loss of one eye and that payable in respect of total blindness.

54. Beavis v. Apthorpe [1963] NSWR 1176: Stephenson v. Waite Tileman Ltd. (1973) 1 NZLR 152.

55. Wieland v. Cyril Lord Carpets Ltd. [1969] 3 All ER 1006: Pyne v. Wilkenfeld (1981) 26 SASR 441.

56. Lindeman Ltd. v. Colvin (1947) 74 CLR 313, at p.317, per Latham C.

57. (1947) 74 CLR 313.

58. H L A Hart and A M Honore, Causation in the Law (1959), pp.153-156.

59. Neallv. Watson (1960) 34 ALJR 364; Smith v.Leech Brainand Co. Ltd. [1962] 2 QB 405; Robinson v. Post Office[1974] 1 WLR 1176; Pipikos v. W. Brown and Sons Pty. Ltd, [1970] SASR 508, and Hoffmueller v. The Commonwealth [1981] 54 FLR 48.

60. (1947) 74 CLR 313.

61. Fitzgerald v. Penn (1954) 91 CLR 268, at p.277; National Insurance Co. of New Zealand v. Espagne (1960) 105 CLR 569, at pp.590-597.

62. Jobling v. Associated Dairies Ltd. [1982] AC 794.

63. Cf. Faulkner v. Keffalinos (1971) 45 ALJR 80: Baker v. Willoughby [1970] AC 467: and Griffiths v. The Commonwealth (1983) 50 ACTR 7

64. Jobling v. Associated Dairies Ltd. [1982] AC 794, at pp.810-811, per Lord Russell of Killowen, at p.8 15, per Lord Keith of Kinkel.

65. Griffiths v. The Commonwealth [1983] 50 ACTR 7, at p. 15, per Jenkinson J.

66. Hanvood v. Wyken Colliery Co [1913] 2 KB 158; Ward v. Corrimal-Balgownie Collieries Ltd. (1938) 61 CLR 120.

67. Doudie v. Kinneit Cannel and Coking Coal Co. Ltd. [1947] AC 377.

68. McCann v. Scottish Co-op. Laundry Association Ltd. [1936] 1 All ER 475; Salisbury v. Australian Iron and Steel Ltd. (1944) 44 SR (NSW) 157.

69. Motor Accidents (Compensation) Act 1979 (NT). s.7.

70. Motor Accidents (Liability and Compensation) Act 1973 (Tas.), s.23(1).

71. Motor Accidents Act 1973 (Vic), s.13(2).

72. See para.2.19.

73. Our formulation is more generous to the resident than the equivalent Victorian provision. The latter covers a Victorian resident injured or killed outside the state, provided that he or she was the driver of or passenger in a Victorian vehicle. We suggest that there should be coverage if the New South Wales resident is injured or killed outside the State and the injury or death is caused by or arises out of the use of a New South Wales vehicle.

74. The rule in Phillips v. Eyre (1870) LR 6 QB 1, means that if the negligent (Queensland) driver is not really liable under the law of New South Wales, because of the abolition of the common law action, he or she is not liable to be sued under Queensland law: Koop v. Bebb (1951) 84 CLR 629; P E Nygh, Conflict of Laws in Australia (4th ed. 1984), ch.18; C S Phegan “Tort Defences in Conflict of Laws-The Second Condition of The Rule in Phillips v. Eyre in Australia” (1984) 58 Australian Law Journal 24.

75. The specific problem referred to in para. 14.45 (the collision between two Queensland vehicles) could be met by Queensland legislating to overturn the conflicts of law rule that would prevent the victim bringing an action in that State.

76. State Transport (Co-ordination) Act, 193 1. s.12(1).

77. Motor Vehicles (Third Party Insurance) Regulations, 1942, reg.17.

78. Workers’ Compensation Act, 1926, s.7(1)(b).(c) and (d).

79. Part V. divisions 2, 2A.

80. Inserted by the Commercial Transactions (Miscellaneous Provisions) Act, 1974.

81. [1932] AC 562. See para.2.11 above.

82. Stennett v. Hancock and Peters [1939] 2 All ER 578.

83. Andrews v. Hopkinson [1957] 1 QB 229.

84. Lexmead Ltd. v. Lewis 1982 A.C. 225; Meth v. Moore (1982) 44 ALR 409.

85. Stennett v. Hancock and Peters [1939] 2 All ER 578.

86. Trade Practices Act 1974 (Cth.), ss.74B-74G

87. Id., s.4B(1).

88. Id., s.74A(2) (a).

89. See para.3.38.

90. See generally J G Fleming, The Law of Torts (6th ed. 1983), ch.21; H. Luntz, A D Hambly and R Hayes, Cases and Commentary (1980), ch.9; and W L Morison, C S Phegan and C Sappideen, Cases on Torts (5th ed. 1980), ch.13.

91. Commissioner for Railways v. McDermott [1967] 1 AC 169.

92. Commissioner for Railways v. Quinlan [1964] AC 1054; Herrington v. British Railways Board [1972] AC 877.

93. A recent example is found in the Occupiers’ Liability Act 1983 (Vic.).

94. As described in Chapter 3.

95. Letter attached to Submission W41.

96. Ibid.

97. Workers’ Compensation Act, 1926, s.6.

98. Id., s.7(1)(b),(c) and (d). A journey accident is not exclusively one occurring on the way to or from work. However, for ease of presentation, the two concepts are treated as interchangeable.

98. Id., s.7(1)(b),(c) and (d),

99. This table covers injuries arising from daily or other periodic journeys under the Workers’ Compensation Act, 1926, s.7(1) (c), (d). The table extracts those accidents where the agency of the accident was a means of transportation.

100. Workers’ Compensation Statistics, New South Wales, Year ended 30 June 1982, p.22. table 1.

101. Working Paper, para.10.25.

102. Journey accidents should remain within the workers’ compensation system: see Submissions S37, annexed paper, p.5: S57. p.12, cf. Submission S44, p.8.

103. Workers’ Compensation Act 1958 (Vic.), s.8(2A)-2H).

104. Motor Accidents (Liabilities and Compensation Act) 1973 (Tas.), s.14(3).

105. Pearson Report, vol.1, paras.858-867.

106. Working Paper, para.10.28.

107. See Hobsons Pty. Ltd. v. Thorne [1954] WCR 59, at pp.59-60, per Street C.J.

108. Submission S32.

109. Submission W33.

110. News Release by the Premier of New South Wales, the Hon N K Wran, QC, MP, 8 May 1984.

111. See note 100 above, pp.47-50, table IX. This does not include all course of employment injuries involving motor vehicles, but only those classified as “road traffic” cases in the statistics. It also includes only those which resulted in death or incapacity for three days or more.

112. Working Paper, para.10.30.

113. Id., para 10.34.

114. Motor Vehicles (Third Party Insurance) Act-1942, s.10(2).

115. Workers’ Compensation Act 1926, s.64(1) (a).

116. Id., s.64(1)(b), (c).

117. Id., s.63: Australian Iron & Steel Pty. Ltd. v. Government Insurance Office of New South Wales [1978] 2 NSWLR 59, at p.63.

118. See Commercial & General Insurance Co. Ltd. v. Government Insurance Office of New South Wales (1973) 129 CLR 374. As to self-insurers, see Australian Iron & Steel Pty. Ltd. v. Government Insurance Office of New South Wales [1977] NSWLR 446, at p.448.

119. Workers’ Compensation Act, 1926, s.64(1) (a).

120. Id., s.64A.

121. The GIO has estimated that slightly under 1 percent of workers’ compensation claims arise from the use of motor vehicles in circumstances where liability could be attributed to a person other than the employer and recovery action was taken by the insurer. Letter from Third Party Claims Manager to Commission, dated 20 June 1983.

122. One consequence of this proposal, together with other recommendations, is that the employer (or the insurer) vicariously liable for the negligence of a co-employee of the victim, would have no right to claim a contribution from a third party partially responsible. However, account should be taken of this in the negotiated agreements referred to earlier (para.14.78).

123. See para.4.30.

124. Motor Accidents Act 1973 (Vic.). s.74A.

125. See para.2.32, H. Luntz, Assessment of Damages (2nd ed. 1983), ch.8.

126. Graham v. Baker (1961) 106 CLR 340.

127. Bradburn v. Great Western Railway Co. (1874) LR. 10 Ex. 1.

128. Redpath v. Belfast & County Down Railway. [1947] NI 167; Wollington v. State Electricity Commission of Victoria (No.2) [1980] VR 91.

129. National Insurance Co. of New Zealand Ltd. v. Espagne (1961) 105 CLR 569. See generally N Seddon & J L R Davis, Report on Relationships Between the Principal Commonwealth Social Security Benefits and Other Forms of Compensation, December 1982.

130. Ibid., Redding v. Lee (1983) 57 ALJR 393.

131. Jones v. Gleeson (1965) 39 ALJR 258.

132. Lindquist v. Maier [1980] Qd R203.

133. (1983) 57 ALJR 393.

134. Compensation to Relatives Act, 1897, s.3(3).

135. Peacock v. Amusement Equipment Co. Ltd. [1954] 2 QB 347.

136. Workers’ Compensation Act, 1926, s.7(2B).

137. Id., s.7(2C).

138. Id., s.13.

139. F Marks, Workers’ Compensation Law and Practice in New South Wales (1983), p.261.

140. Workers’ Compensation Act, 1926, s.13.

141. See para.2.60.

142. See para.2.61.

143. (1983) 57 ALJR 393.

144. Id., at p.406, per Murphy J, at p.41 3, per Deane J.

145. See paras.12.58-12.59.

146. See in particular, para.12.48.

147. Accident Compensation Act 1982 (NZ), s.90.

148. Id., s.91.

149. Id., s.92.

150. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.), s.24(1).

151. Id., s.24(2).

152. Motor Accidents (Compensation) Act 1979 (NT), s.10(a).

153. Id., s.9.

154. See eg. Submissions S43, p.5; W48, p.9; and W84.

155. As used in Motor Accidents (Compensation) Act 1979 (NT), s.10(a).

156. Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.). s.24(1)

157. Id., s.24(2).

158. Justice Rogers and Mr. Sperling.