Associate Justice Harrison considered whether an insurer was entitled to cease payment of statutory benefits to a claimant who had been charged with a serious driving offence related to the motor accident, in circumstances where the offence was proven, but no conviction was recorded by the Local Court Magistrate. The decision involves assessment of the proper construction of section 3.37 of the Motor Accidents Injuries Act 2017 (the MAIA).

Her Honour determined that the claimant was not entitled to receive statutory benefits because he had been charged with a serious driving offence, to which he even pleaded guilty. The fact that no conviction was recorded when the Local Court dealt with the criminal charge did not mean he became entitled to receive statutory benefits.

Legislative Context

Except in limited circumstances, people injured in car accidents in NSW have access to statutory benefits for treatment and care, and weekly income support. The duration of those benefits depends on the nature of the injuries, and also whether the injured person was most at fault for the accident in which the injuries were sustained.

One of the exceptions to accessing statutory benefits is found is s3.37 of the the MAIA, which relevantly provides as follows:

(1) Statutory benefits under this Part are not payable to an injured person after the person has been charged with or convicted of a serious driving offence that was related to the motor accident.

(2) This section does not prevent the payment of statutory benefits if the person is acquitted of the offence charged or the proceedings are discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence that contributed to the person's injury). If the person is so acquitted or the proceedings are so discontinued--

(a) statutory benefits are payable from the date the person was charged with the offence, and
(b) any limitation period on proceedings for the recovery of those benefits does not commence until the person's acquittal or the discontinuance of the proceedings.

........

(4) A person is considered to have been charged with a serious driving offence if proceedings for a serious driving offence are pending against the person, and the person is considered to have been charged when those proceedings were commenced.

(5) "serious driving offence" is--

(a) an offence that is a major offence under the Road Transport Act 2013 or an offence under section 115 or 116 (2) (a)-(e) of that Act, or
(b) any other offence prescribed by the regulations under this Act as a serious driving offence, but does not include an offence prescribed by the regulations under this Act as excepted from this definition.

[emphasis added]

Factual Background

James Hulse (the claimant) was injured on 11 September 2020 when his motorcycle was involved in a collision with a vehicle insured by NRMA. The driver of NRMA’s vehicle was at fault and liability was wholly accepted by the insurer.

Unbeknownst to NRMA at that time, the claimant had in fact been charged with a ‘serious driving offence’ as defined in s3.37(5)(a) of the Road Transport Act 2013 (NSW) for driving with illicit drugs in his blood at the time of the accident. That charge was the subject of some criminal proceedings against the claimant.

The claimant pleaded guilty to the charges before the Local Court in June 2021, and so unsurprisingly, the Magistrate found him guilty, but without proceeding to record a conviction, the Magistrate dismissed the charge pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. That section operates to dismiss a charge, but does not amount to an acquittal. It allows the Court to find the offence proven, but permits it not to record a conviction.

Some time the following year, NRMA obtained a factual investigation report, and only then became aware the claimant had been charged with a “serious driving offence”. NRMA issued further notices denying liability for both the claim for statutory benefits and the claim for damages.

Internal review of the denial of liability in the statutory benefits claim upheld the insurer’s decision, so the claimant applied to the PIC for a Merit Review.

Member Cassidy of the Personal Injury Commission was allocated to determine whether the order made by the Local Court to dismiss the proceedings pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 fell within s3.37(2) of the Motor Accident Injuries Act 2017 (NSW).

Member Cassidy determined that notwithstanding a guilty plea had been entered, as the proceedings had been dismissed, there was essentially never a charge in existence against the claimant. Member Cassidy determined the claimant was entitled to statutory benefits.

Issue in Dispute

The insurer applied for Judicial Review of the Member’s decision.

It was common ground that the offence with which the claimant had been charged was a ‘serious driving offence’ for the purpose of s3.37.

What was at issue was the proper construction of s3.37. NRMA submitted that the mere fact that the claimant had been charged with a serious driving offence rendered him ineligible for statutory benefits, unless and until he was acquitted of the charges, or the proceedings were discontinued, as provided by s3.37(2), which, NRMA pointed out, in his case did not occur.

Determination

Associate Justice Harrison upheld NRMA’s challenge to the Member’s decision.

Her Honour determined that the claimant was not entitled to statutory benefits, because he had been charged with a serious driving offence, and the proceedings in relation to that charge had not been discontinued in the sense contemplated by s3.37(2). Nor had he been acquitted of the offence..

Her Honour pointed out that the operative provision involved a person being charge with OR convicted, and here, it was common ground that the claimant had been charged with a serious driving offence. That meant that s3.37(1) was satisfied.

She noted that s3.37 (2) provided for payment of statutory benefits if the person charged was subsequently acquitted, or it the proceedings were discontinued (otherwise than in circumstances of a plea of guilty to another serious driving offence).

Here, her Honour noted that the claimant acknowledged his guilt of the serious driving offence by his plea in the Local Court. The proceedings were dismissed, rather than being ‘discontinued’ as s3.37(2) provided. It was incorrect to view s3.37(2) as applying in all circumstances where a charge laid for a serious driving offence was no longer pending. In the claimant’s case, the charge remained despite the proceedings being dismissed. The claimant got the benefit of lenient treatment before the Magistrate, and no conviction for his admitted crime was recorded.

Her Honour determined that it was not the legislative intention for a discontinuance of criminal proceedings on account of a guilty plea to reinstate the claimant’s entitlement to statutory benefits.

The Member’s decision was set aside, and the proceedings were remitted to the President, Personal Injury Commission to be dealt with according to law (ie for a replacement certificate to be issued, consistent with the Court’s reasons).

Conclusion

While it is unlikely to be a circumstance which is frequently encountered, it is important to note that statutory benefits will not be available to people charged with serious driving offences who manage to have the offence(s) dismissed on some basis other than acquittal, or a collapse of the prosecution against them.

The section does not require an actual conviction before it applies to permit the insurer to deny statutory benefits. If a charge is laid, and (perhaps because of the seriousness of the claimant’s injuries) a Court determines to dismiss the charge under s10, the insurer is entitled to deny ongoing statutory benefits.

Note that benefits paid prior to the date the claimant is charged are not recoverable by the insurer, per s3.37(6) of the MAIA.