James Hulse v Insurance Australia (trading as NRMA)

James Hulse v Insurance Australia (trading as NRMA)

Member — Belinda Cassidy
Dated 14 December 2022

In this matter, Greg Walsh acted for James Hulse in respect of a decision made by NRMA Insurance denying liability on the basis that the Claimant had been charged with and had been convicted of a serious driving offence connected with the accident. The Claimant sought an internal review and on 13 September 2022, NRMA issued its internal review decision affirming the original decision to deny liability.

The Claimant referred the dispute to the Personal Injury Commission and the proceedings were allocated to Member, Belinda Cassidy.

Background

On 11th September 2020, the Claimant was riding his motorcycle on Shaw Street in Kingsgrove. He came to the intersection at Berith Street, where the driver of a Toyota Sedan, turned right across his path and a collision occurred. The Claimant sustained injuries to his wrists, penis, testicles, hips and lower back. A claim was made on 23 December 2020 and NRMA accepted liability for the statutory benefits claim. On 2 September 2022, a further liability announcement was sent denying liability on the basis that the Claimant had been charged and convicted with a serious driving offence connected with the accident. The Claimant made a claim for statutory benefits under part 3 of the Motor Accidents Iniuries Act (2017), which comprised of weekly income support benefits in accordance with division 3.3 of the Act, and treatment and care benefits in accordance with division 3.4 of the Act.

There are a number of limits to the benefits of Part 3 such as ss 3.1 1 and 3.28, if a claimant is wholly or mostly at fault, no benefits are payable after the first 26 weeks following the accident. As the claimant was not wholly or mostly at fault, and received serious injuries, these sections will not be applicable to him and his claim.

Under s 3.37 of the Act, benefits are restricted if a person is charged with, or convicted, of a ‘serious driving offence’ that is ‘related to a motor accident,’ where no statutory benefits are payable.

Evidence relied upon

The police report referred to 7.72g of cannabis located in the Claimants’ jacket pockets. The Claimant had consumed ‘Wild Turkey (alcohol) and cannabis’, and an alcohol sample was taken. The blood alcohol result was negative. The insurers internal review decision referred to evidence that was not before the Assessor. The Claimants lawyer, Greg Walsh, did not challenge this evidence. The blood tested positive for amphetamine, methylamphetamine and cannabis. The Claimant’s police statement confirmed he had consumed a small quantity of illicit drugs the night before the accident.

Greg Walsh provided the Member with a copy of the Court result on 8 November 2022. The order of the Magistrate in the Court result document was ‘the offender… is found guilty without proceeding to conviction the matter is dismissed pursuant to s 10.1(1)(a) of the Crimes (Sentencing and Procedure) Act 1999‘. The Claimants first submissions asserted that the claimant was not convicted of a serious driving offence and no charges pending therefore, s 3.37(1) does not apply at all. According to the insurer, if a claimant is charged with a serious driving offence, then no statutory benefits are payable. If a claimant is convicted of a serious driving offence, there are no statutory benefits payable. The first submissions on behalf of the Claimant referred to the Court making a conditional release order under ss 9(1)(b) and 10(1)(b) of the CSP Act. However, under s 3.37(4), there are no proceedings pending because the charges have been dismissed ‘without proceeding to conviction’. In the context of the two decisions of ANN v AQQ, as referred to in the review proceedings of Abberton, the issue of causal relationship was not required to be determined and that there is no binding authority in the operation of s 3.37(1) whether a causal connection is required between the serious driving offence and the accident. It was further submitted on behalf of the Claimant by Greg Walsh that s 3.37(1) in context of ss 3.37(2), 3.38(2)(a) and 3.38(6) requires a causal connection between the serious driving offence and the motor accident before the Claimant is disentitled to statutory benefits.

Findings of Member Cassidy

Member Cassidy made a finding that the offence of possession of an illicit substance, cannabis, was not a serious driving offence because it is not a driving offence. The Claimant had a small quantity of an illegal drug for personal use, which is a charge that does not fall within any sections of the Road Transport Act 2013 identified in s 3.37(5).

The other charge concerned driving with an illicit substance. A serious driving offence includes a ‘major offence’ under the Road Transport Act 2013. Section 4(d) of that Act defines a ‘major offence’ as including events under ss 111 and 112. Section 111 relates to having a prescribed illicit drug present in a blood or urine test while driving a vehicle. Section 112 concerns the ‘use or attempted use of a vehicle under the influence of alcohol or any other drug’. The Claimant was charged under s 111(1)(a). There was no issue by Greg Walsh as to whether this was a ‘serious driving offence’. Member Cassidy referred to the insurers submissions that s 3.37(1) should be interpreted as referring to the historical factor of a charge made regard as to whether the charge is dropped or pursued, or whether the charge is proven or not. Member Cassidy went on to find that an actual conviction is required in the test proposed under s 3.37(1). In such circumstances, member Cassidy found that the Claimant is entitled to the continued payment of statutory benefits.

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