Peter Hunt
Principal
CTP Insurance, Insurance
Nominal Defendant Not Liable in Claim for Statutory Benefits
11 June, 2024
In Brief
- Section 1.10A of the Motor Accident Injuries Act 2017 (MAIA) has retrospective application and applies to all open claims for statutory benefits made under the Act.
- Section 2.29 of MAIA provides that the Nominal Defendant is only liable for an accident caused by an unidentified vehicle where the accident occurs on a road.
Facts
The Personal Injury Commission published its decision in Wright v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 268 on 7 June 2024.
The Claimant was injured, during the course of his employment, within a private factory, when two forklifts collided. He was driving one forklift and a co-worker was driving the other. Neither forklift was registered.
The accident occurred on 5 March 2019.
The Claimant successfully recovered work injury damages from his employer, which brought to an end his rights under the Workers Compensation Act 1987 pursuant to s 151Z(1)(b) of that Act.
The Claimant then turned to the Nominal Defendant to meet his treatment and care needs pursuant to s 3.2(1)(c) of MAIA.
The Nominal Defendant, however, denied liability on the grounds that s 1.10A of MAIA applied and the accident did not occur on a road or road-related area.
Section 1.10A of the MAIA
Section 1.10A was introduced to MAIA as part of the November 2022 amendments to the Act.
The section provides that:
The provisions of this Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages, subject to—
(a) necessary modifications, and
(b) modifications prescribed by the regulations.
The Member’s Reasons
The first issue the PIC Member had to grapple with was whether s 1.10A of MAIA applied to the claim given that the accident occurred in March 2019, well prior to the November 2022 amendments to MAIA which introduced s 1.10A.
The PIC Member looked to clause 14 of Schedule 4 of the Amending Act and concluded that s 1.10A applied to “both a claim for statutory benefits made before, and proceedings pending before the Commission immediately before the commencement of the amendment.“
The clear statement in clause 14 of Schedule 4 was sufficient to displace the presumption against retrospectivity found in s 30 of the Interpretation Act 1987 and in the common law.
As such, s 1.10A applied to the Claimant’s claim for statutory benefits even though the accident occurred several years before the provision commenced.
The result was that all the requirements of Div 2.4 of MAIA, relating to the Nominal Defendant’s liability, applied to the claim.
The PIC Member proceeded to conclude that the Nominal Defendant was not liable for his ongoing statutory benefits because the vehicle was unregistered and the accident did not occur on a road as required by s 2.29 of MAIA.
Key Learnings
The decision in Wright confirms that s 1.10A of MAIA has retrospective application. The provision applies to all open claims for statutory benefits made under MAIA.
As such, the Nominal Defendant is not liable to pay an injured person’s statutory benefits unless all the requirements in Div 2.4 of MAIA, relevant to the claim, are met.
As established in this claim, the Nominal Defendant is not liable to pay statutory benefits to a person injured by an unregistered vehicle unless the accident occurred on a road.
It also follows that the Nominal Defendant is not liable to pay statutory benefits to a person injured by an unidentified vehicle unless the claimant conducts due search and enquiry, as required by s.2.30 of MAIA.
The November 2022 amendments to MAIA included various amendments with varying commencement and application dates. To learn more about the amendments and the claims they apply to, click here.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.
