Part 7Funding of the
Scheme
47Definitions
In this Part—
financial
year means a year commencing on 1 July.
licensed
insurer has the same meaning as in the Motor
Accidents Compensation Act 1999.
third-party policy has the same
meaning as in the Motor Accidents Compensation Act
1999.
48Lifetime Care and Support
Authority Fund
(1)
There is established a fund, to be known as the
Lifetime Care and Support Authority Fund, belonging to and vested in the
Authority.
(2)
The following is to be paid into the
Fund—
(a)
the appropriate proportion of the money
contributed by third-party policy holders under Division 10.4 of the Motor Accident Injuries Act 2017 in
respect of a relevant period (being the proportion that is the required
contribution to the Fund determined under section 49 in respect of that
relevant period),
(b)
the interest from time to time accruing from the
investment of the Fund,
(c)
money required to be paid into the Fund by or
under this or any other Act,
(c1)
(d)
all other money received by the Authority and not
otherwise appropriated.
(3)
The following is to be paid from the
Fund—
(a)
all payments required to be made by the Authority
under Part 2A (Payments under Scheme),
(b)
all payments required to meet expenditure
incurred by or on behalf of a NSW Government agency in providing services
(including staff and facilities) for or in connection with the
Scheme,
(b1)
all payments (as approved by the Minister
administering Part 3 of the State Insurance
and Care Governance Act 2015) required to meet expenditure
incurred by the State Insurance Regulatory Authority in exercising functions
in connection with the Scheme,
(c)
(d)
all payments required to meet expenditure
incurred in relation to the functions of the Authority, where money is not
otherwise provided for that purpose,
(e)
all other money required by or under this or any
other Act to be paid from the Fund.
(3A)
(4)
The Authority may invest money in the Fund that
is not immediately required for the purposes of the Fund—
(a)
if the Authority is a GSF agency for the purposes
of Part 6 of the Government Sector Finance Act
2018—in any way that the Authority is permitted to
invest money under that Part, or
(b)
if the Authority is not a GSF agency for the
purposes of Part 6 of the Government Sector Finance Act
2018—in any way approved by the Minister with the
concurrence of the Treasurer.
s 48: Am 2009 No 96,
Sch 14 [6]; 2012 No 48, Sch 1 [7]; 2012 No 54, Sch 3.2 [15]–[19]; 2015
No 19, Sch 8 [10]–[12]; 2017 No 10, Sch 5.10 [5]; 2018 No 70, Sch
3.44.
48ASeparate accounting for care
and support arrangements
(1)
Each care and support arrangement is to have a
separate account established for it within the Fund.
(2)
Amounts payable to or by the Authority under a
care and support arrangement are to be accounted for separately within the
Fund by being paid into or from the separate account established for the
arrangement.
(3)
A liability of the Authority under a care and
support arrangement is not a liability of the Fund except to the extent that
the liability can be satisfied out of money standing to the credit of the
separate account established for the arrangement within the
Fund.
(4)
Accordingly, an amount required to be paid under
a care and support arrangement can only be paid from the separate account
established for the arrangement but this does not prevent the use of other
money in the Fund for the payment of such an amount pursuant to the provision
of temporary financial accommodation (including by the making of an advance to
the separate account established for the arrangement) that is repaid from the
separate account.
(5)
The Authority is to have no regard to a liability
of the Authority under a care and support arrangement in making a
determination under section 49 (Determination by Authority of amount to be
contributed to Fund).
(6)
In this section—
care and
support arrangement means a care and support arrangement
entered into under section 43A.
s 48A: Ins 2014 No
77, Sch 1 [4].
49Determination by Authority of
amount to be contributed to Fund
(1)
The Authority is to determine, before the
beginning of each relevant period, the amount required to be contributed to
the Fund—
(a)
to fully fund the present and likely future
liabilities of the Authority under Part 2A (Payments under Scheme) in respect
of persons who become participants in the Scheme in respect of motor accident
injuries suffered during that period, and
(b)
to meet the payments required to be made from the
Fund (other than payments under Part 2A) during that period,
and
(c)
to make provision for such other matters as the
Authority should, in all the circumstances, prudently make provision for in
connection with liabilities under Part 2A.
(2)
The amount required to fully fund a liability of
the Authority under Part 2A is an amount that is sufficient to provide a sum
of money that together with anticipated investment income is equal to the best
estimate of the cost of meeting the liability (in inflated dollars) as and
when the liability falls due.
(3)
The Authority’s determination in respect of
a relevant period is to be made in accordance with the report of an
independent actuary engaged by the Authority to report to the Authority on the
amount required to be contributed to the Fund as referred to in subsection
(1).
(4)
A relevant
period is a financial year or such other period as the
Authority determines from time to time to be a relevant period for the
purposes of this section. Relevant periods can be determined so as to overlap
but there must be no gap between successive relevant periods and each relevant
period must not be longer than 12 months.
(5)
The amount determined by the Authority under this
section for a relevant period is the required
Fund contribution for that period.
Note—
The required Fund contribution is contributed as
part of the Fund levy under Division 10.4 of the Motor
Accident Injuries Act 2017.
s 49: Am 2012 No 48,
Sch 1 [7] [8]; 2015 No 19, Sch 8 [13]; 2017 No 10, Sch 5.10
[6].
50–53
s 50: Am 2015 No 19,
Sch 8 [14] [15]. Rep 2017 No 10, Sch 5.10 [7].
s 51: Am 2012 No 54,
Sch 3.2 [5]; 2015 No 19, Sch 8 [7]. Rep 2017 No 10, Sch 5.10
[7].
s 51A: Ins 2009 No
26, Sch 2. Rep 2017 No 10, Sch 5.10 [7].
s 52: Rep 2017 No 10,
Sch 5.10 [7].
s 53: Rep 2017 No 10,
Sch 5.10 [7].
54Recovery of lifetime care and
support payments—uninsured and interstate vehicles and third party
tortfeasors
(1)
The Authority is entitled to recover from the
appropriate person as a debt due to the Authority the present value of its
treatment and care liabilities in respect of the motor accident injury of a
participant in the Scheme if—
(a)
the injury was caused by the fault of the owner
or driver of a motor vehicle in the use or operation of the vehicle,
and
(b)
at the time of the motor accident there was no
third-party policy in force in relation to the motor vehicle
concerned.
(2)
If the participant suffered the motor accident
injury as a result partly of the participant’s contributory negligence,
the amount that the Authority is entitled to recover under this section is to
be reduced in proportion to the participant’s share in the
responsibility for the injury.
(3)
If the participant suffered the motor accident
injury as a result partly of the fault of a person (other than the owner or
driver of a motor vehicle), the Authority is entitled to recover from that
person as a debt due to the Authority such proportion of the present value of
its treatment and care liabilities in respect of the injury as corresponds to
the person’s share in the responsibility for the
injury.
(4)
The present value of the Authority’s
treatment and care liabilities in respect of a motor accident injury is the
sum of the following amounts—
(a)
amounts already paid by the Authority under Part
2A in respect of the treatment and care needs associated with the motor
accident injury,
(b)
the present value of the amounts that the
Authority estimates will become payable by the Authority in the future under
Part 2A in respect of the treatment and care needs associated with the motor
accident injury.
(5)
The appropriate person from whom the
Authority may recover is—
(a)
unless paragraph (b) applies—the person who
at the time of the motor accident was the owner of the motor vehicle or, if at
that time some other person was driving the motor vehicle, the owner and the
driver jointly or either of them severally, or
(b)
if the motor vehicle was at the time of the motor
accident subject to coverage under a policy of compulsory third-party personal
injury insurance or a compulsory motor vehicle accident compensation scheme
under the law of a place other than New South Wales or under a law of the
Commonwealth—the insurer under that policy or the person liable under
that scheme.
(6)
The Authority is entitled to recover under this
section in respect of a motor accident injury of a participant in the Scheme
only if the injury is an injury to which Chapter 3 of the Motor
Accidents Compensation Act 1999 applies (as provided by
section 3B of that Act).
(7)
It is a sufficient defence in any proceedings to
recover under this section against the owner (whether severally or jointly
with the driver) of a motor vehicle if the owner establishes to the
satisfaction of the court that, at the time of the occurrence, some other
person was driving the motor vehicle without the owner’s
authority.
(8)
It is a sufficient defence in any proceedings to
recover under this section against the driver of a motor vehicle (whether
severally or jointly with the owner) if the driver establishes to the
satisfaction of the court that, at the time of the occurrence, the driver was
driving the motor vehicle with the authority of the owner (or had reasonable
grounds for believing and did in fact believe that the driver had such
authority) and that the driver had reasonable grounds for believing and did in
fact believe that a third-party policy was in force in relation to the motor
vehicle.
(9)
The Authority is not entitled to recover under
this section from the owner or driver of a motor vehicle that, at the relevant
time, was not required to be registered or was exempt from registration or, if
required to be registered, was not required to be insured under the Motor Accidents Compensation Act
1999.
(10)
The certificate of the Authority as to the
present value of the Authority’s treatment and care liabilities in
respect of a motor accident injury is evidence of the matters certified for
the purposes of any proceedings in connection with this
section.
(11)
This section does not permit the Authority to
recover the present value of its treatment and care liabilities in respect of
injuries to a participant in the Scheme if the participant paid an amount to
the Authority under section 7A (1) in respect of those
injuries.
s 54: Am 2009 No 33,
Sch 1 [5]; 2012 No 48, Sch 1 [8].
55
s 55: Am 2015 No 19,
Sch 8 [15]. Rep 2017 No 10, Sch 5.10 [7].