|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Statutory benefits – wholly or mostly at fault – jurisdictional error – error of law – causation of injury – causation of accident|
|Legislation Cited||Motor Accident Injuries Act 2017 (NSW) ss 1.10, 3.28, 3.36, 5.2(1), 7.36(5), Part 5, Schedule 2(3)(d), Schedule 2(3)(e)|
Motor Accident Injuries Regulation 2017Motor Accident Guidelines 7.441
|Cases Cited||AAI Limited v Singh  NSWSC 1300|
Allianz Australia Insurance Ltd v Crazzi and Others 68 NSWLR 266
Craig v South Australia 184 CLR 163Minister for Immigration and Multicultural Affairs v Bhardwaj  HCA 11
|Parties||AHD – Claimant|
NRMA Insurance – Insurer
|Disclaimer||This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.|
MISCELLANEOUS CLAIMS ASSESSMENT CERTIFICATE
REASONS FOR DECISION – Bhardwaj Reconsideration
1. This matter was referred to me as a Miscellaneous Claim, which is a reviewable decision under the Motor Accident Injuries Act 2017 (NSW) (MAIA) by force of Schedule 2(3)(d) and (e) of the Motor Accident Guidelines.
2. The principal issue for determination was whether AHD was at fault or mostly at fault for the occurrence of the subject accident within the meaning of the MAIA.
3. Resolution of that issue would determine whether the insurer was correct in its view that it was entitled to cease statutory benefits to AHD after 26 weeks from the date of the accident.
4. After receiving written submissions from both parties, I issued a certificate and brief reasons for determination dated 24 October 2019 in which I accepted the correctness of the insurer’s decision.
5. The claimant has now lodged further written submissions advancing two points. First, that my decision was infected by jurisdictional error. Second, that because a decision affected by jurisdictional error amounts to no decision at all my statutory duty remains unperformed. It follows that I am entitled to reconsider my decision and issue a new certificate and reasons.
6. That second argument relies principally on an oft-cited passage from the reasons of Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj  HCA 11 (Bhardwaj).
7. Given the nature of the claimant’s application, I sought written submissions in response from the insurer. The insurer has agreed with the claimant on both points.
8. Whilst the parties’ agreed position is noted, that consent cannot vest me with a power not otherwise vested in me by the MAIA, the Motor Accident Guidelines or general law principles.
9. The applicability of the principle set out in Bhardwaj rests upon whether my first decision is in fact afflicted by jurisdictional error. That is therefore the first question I must answer.
Was the first decision afflicted by jurisdictional error?
10. While the claimant’s submissions allege my decision was infected by jurisdictional error, they do not identify with specificity what that error is.
11. The claimant relied upon the well-known passage in the judgment of the High Court in Craig v South Australia:
12. I infer from the claimant’s selective emphasis within that passage that he submits that I committed one or more of the following jurisdictional errors:
b. asked myself a wrong question;
c. ignored relevant material;
d. made erroneous findings; or
e. reached a mistaken conclusion.
13. The principal basis upon which the claimant alleges I erred appears to be my interpretation of the judgment of Fagan J in Singh as to what that case decided and what was obiter.
14. The claimant submits that what Fagan J said about the proper construction of the provisions of Part 5 of the MAIA was binding on me as ‘direct findings’ of a justice of the NSW Supreme Court. I disagree.
15. In my opinion, the claimant has not paid sufficient attention to the fact that Fagan J held that Part 5 had no application to Mr Singh’s case. His Honour’s subsequent views on Part 5 and its difficulties were therefore not necessary for his Honour to arrive at in order to dispose of the dispute between the parties. They are therefore obiter remarks. That is not to say that those paragraphs in Singh are irrelevant. They remain persuasive but are not ‘direct findings’ as alleged by AHD.
16. However, my interpretation of the ratio and obiter in Singh does not dispose of the claimant’s application adversely to him.
17. At - of my first decision, I said the following:
“The death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of Section 1.10) is, for the purpose of and in connection with any claim for damages or statutory benefits in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle”.
As such, I find that the claimant as the driver of the motorcycle is deemed to have caused the accident and deemed to be at fault.
18. As that extracted passage makes clear, I took the view that s 5.2(1) of the MAIA had the effect of deeming AHD to be at fault for the subject accident.
19. As the claimant has pointed out, Fagan J observed in Singh that the language of s 5.2(1) focuses upon the deeming of causation of injury not the deeming of causation of the motor accident. It does so in order to construct a distinction between causation of injury and causation of the motor accident. As Fagan J noted, it is this distinction that creates a pathway to fixing an insurer for liability in the event that a ‘no-fault motor accident’ occurs.
20. Upon further consideration of those passages in Singh and the text of the provisions of Part 5, I consider that I fell into jurisdictional error in - of my decision. I incorrectly construed s 5.2(1) and that erroneous construction led me to apply a wrong test to the facts of AHD’s case.
21. As Fagan J has said in Singh (although not in these words), the clear and unambiguous language in s 5.2(1) shows it is concerned with causation of injury not causation of the accident.
22. Having found that my first decision was afflicted by jurisdictional error, the question becomes whether that decision can be revisited or amended.
Bhardwaj and the MAIA
23. The claimant submits that the principles in Bhardwaj apply with equal force to the MAIA as they do to its predecessor legislation, the Motor Accidents Compensation Act 1999 (NSW). So much was said to follow by analogy from the decision of Johnson J in Allianz Australia Insurance Ltd v Crazzi.
24. I am not persuaded that such an analogy can be as readily drawn as the claimant submits. Each statutory scheme must be considered in its own light to determine whether an administrative decision-maker can revisit or amend a purported decision. That much is clear from the reasons of Gleeson CJ in Bhardwaj.
25. Despite what may be an inapt analogy on the claimant’s part, I accept the parties’ submission that the principles in Bhardwaj apply to my first decision.
Resolution of this dispute
26. Having reconsidered the construction of Part 5, I accept that Part 5 does not afford the insurer a valid basis on which to cease paying statutory benefits after 26 weeks to AHD in the context of a ‘no-fault motor accident’.
27. Contrary to the claimant’s submissions, I remain of the view that this accident meets the definition of ‘no-fault motor accident’ in s 5.1.
28. However, I accept the view of Fagan J that s 5.2(1) deems the claimant to have been at fault for the causation of injury. It does not deem him to be at fault for the causation of the motor accident.
29. Fault for the occurrence of the motor accident is the gateway to the insurer being able to cease paying statutory benefits after 26 weeks. It follows that the insurer has not made out a basis upon which to terminate statutory benefits to AHD at 26 weeks.
30. For the foregoing reasons, the decision of the insurer should be overruled.
My determination of the Miscellaneous Claim is as follows:
31. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person
32. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.
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