The New South Wales Supreme Court has decided that an order under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) does not remove the existence of a charge and therefore does not satisfy section 3.37(2) of the Motor Accidents Injuries Act 2017 (NSW) (MAIA) with respect to entitling a claimant to statutory benefits.
Background
On 11 September 2020 the claimant Mr Hulse was seriously injured in a motor vehicle accident riding his motorcycle.
The insurer, Insurance Australia Limited (NRMA) admitted liability. The claimant was subsequently charged with an offence of having a prescribed illicit drug or drugs while driving a motor vehicle. The claimant entered a plea of guilty to the offence which is a 'serious driving offence' for the purposes of section 3.37(1) of the MAIA.
Section 3.37(1) of the MAIA deprives an injured person of statutory benefits if he has been charged with or convicted of a serious driving offence that was related to the accident unless the person was acquitted of the offence charged or the proceedings are discontinued as required by section 3.37(2).
The Local Court found the claimant guilty but granted his application pursuant to section 10(1)(a) of the CSP Act, dismissing the charge instead of proceeding to a conviction.
The claimant lodged a claim for statutory benefits as a consequence of his motor vehicle accident.
The insurer following further investigations denied liability on the basis that the claimant had been "charged with or convicted of a serious driving offence" [1] related to the motor vehicle accident terminating payment of statutory benefits.
The claimant lodged an application with the Personal Injury Commission (PIC) disputing the insurer's decision to deny liability and not to pay statutory benefits.
PIC Member Decision
At first instance in the PIC, Member Cassidy found in favour of the claimant asserting that the effect of the dismissal of the charge was "as if there had never been a charge at all other than the 'historical fact' of a charge being laid" [2].
The interpretation of section 3.37(2) of the MAIA by the Member was that the historical fact of a charge does not necessarily deprive an injured person of their statutory benefits.
Section 3.37(1) of the MAIA was interpreted by the Member to mean that the historical fact of a charge alone does not determine entitlement to statutory benefits and that proceedings regarding the charge must be pending, as required by section 3.37(4), for an injured claimant to be disentitled to statutory benefits.
The Member therefore concluded the claimant continued to be entitled to statutory benefits because there was no pending charge and he had not been convicted.
NRMA therefore sought judicial review of the Member's decision.
Appeal
The main dispute was whether the decision made by the Local Court to dismiss the case against the claimant under section 10(1)(a) of the CSP Act fell within the scope of section 3.37(2) of the MAIA.
NRMA submitted that the Member's conclusion constituted a misinterpretation and misapplication of section 3.37 of the MAIA which constituted a legal error evident on the face of the record of the PIC.
Associate Justice Harrison held that the words "has been charged with a serious driving offence" refer to past tense only requiring that the person had been charged in the past, not that the person remains charged or are pending.
Her Honour further found that the Member erred in construing section 3.37(2) of the MAIA as lifting the disentitlement in any circumstance where a charge was no longer pending and the charge remained when the offence was proven.
Her Honour clarified that an order under section 10(1)(a) of the CSP Act does not remove the existence of the charge. The charge gave the Court the jurisdiction to make the order and is not "voided" by the order.
Her Honour found that the Member fell into error in holding that while the first defendant was charged with a serious driving offence, "there are no longer proceedings pending against him and therefore the first option in s 3.37(1) is not met".
The decision of the Member on 14 December 2022 was therefore set aside and the matter remitted back to the PIC.
The decision is important as it confirms that an injured person who is charged with a serious driving offence remains disentitled to statutory benefits for loss of income and medical treatment costs until such time as he or she is acquitted of the offence or the proceedings are discontinued. The making of an order to dismiss the charge under section 10(1)(a) is not enough to restore the right to statutory benefits. Accordingly injured persons should be aware that if they wish to claim statutory benefits after having been charged with a serious driving offence they will need to defend the charges until such time as they are acquitted or the charges are discontinued by the Police.
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