Issued under s 7.13(4) of the Motor Accident Injuries Act 2017

The findings of the assessment of this dispute are as follows:

1. The reviewable decision concerns the amount of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the Act) and is therefore a miscellaneous claims matter under Schedule 2.3(f) of the Act.
2. The reviewable decision dated 17 July 2025 is affirmed.
3. I determine the events giving rise to the alleged injury fall within the scope of the Act.
4. The claimant was convicted by Judge Baly SC in the District Court in Newcastle on

16 May 2025 of driving negligently occasioning death in respect to the subject accident. 5. I determine this satisfies the definition of a serious driving offence and accordingly, s 3.37(1) of the Act is invoked, and statutory benefits are therefore not payable in respect of his injury. 6. The claimant is self-represented and therefore no amount is awarded for legal costs.

1. On 31 October 2022 the claimant was driving his Mitsubishi Triton utility into a causeway. He did attempt to cross it; however, his vehicle was swept off the causeway by water running in Preston's Creek. There were two passengers located in the rear tray of the vehicle, and when the vehicle was swept into the Creek, these two individuals went into the water and drowned.
2. On 16 May 2025, the claimant pleaded guilty to two charges of negligent driving occasioning death.
3. On 5 December 2022, the claimant lodged an Application for personal injury benefits with the insurer. On 21 December 2022, the insurer issued a liability notice accepting liability for the first 26 weeks. On 23 December 2022, the insurer became aware of the police charges and amended the liability notice to deny liability, on the grounds the claimant was mostly at fault and, that he was also charged with a serious offence. On 12 February 2025, the claimant was acquitted of manslaughter charges and the other charges were outstanding at that point in time.
4. On 25 June 2025, he informed the insurer of his acquittal of other charges in February 2025 and in those circumstances, the insurer issued a liability update, and accepted liability for the first 26 weeks, but denied liability after 26 weeks, on the grounds he was at fault. Subsequently, on 17 July 2025, the insurer became aware he had pleaded guilty to charges of negligent driving causing death and accordingly, the insurer amended the liability notice denying liability. This denial was on the grounds the claimant was mostly at fault and in breach of s 3.37 of the Act.
5. On 18 July 2025, the claimant requested an internal review of the insurer's decision. On

6 August 2025, the insurer issued a certificate following the internal review and affirmed the decision. 6. The claimant lodged this miscellaneous claim assessment, as a dispute as to whether he is wholly or mostly at fault pursuant to ss 3.11 at 3.28 of the Act. The insurer also denied liability to pay statutory benefits to the claimant pursuant to s 3.37(1) of the Act. 7. I confirm at the preliminary conference with the parties on 14 October 2025, it was agreed the only issue to be determined by me was the denial of liability pursuant to s 3.37(1) of the Act and I was not required to determine as to whether the claimant was wholly or mostly at fault in respect to the subject accident.

1. I have reviewed and considered all documentation included in the application and reply and all additional information provided by the parties.

1. Section 1.4 of the Act defines "motor accident" as:

"Motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is as a result of and is caused (whether or not as a result of a defect in the vehicle) during

(a) the driving of the vehicle or

(b) a collision or action taken to avoid a collision with the vehicle or

(c) the vehicles running out of control or

(d) a dangerous situation caused by the driving of the vehicle a collision or action taken to avoid a collision with the vehicle or the vehicles running out of control."

"This Act (including any third-party policy under the Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only, if the death or injury is as a result of and is caused (whether or not as a result of a defect in the vehicle) during

(a) The driving of the vehicle or

(b) a collision or action taken to avoid a collision with the vehicle or

(c) the vehicles running out of control or

(d) a dangerous situation caused by the driving of the vehicle a collision or action taken to avoid a collision with the vehicle or the vehicle's running out of control

"Statutory benefits under this part are not payable to an injured person after the person has been charged with or convicted of serious driving offence that was related to the motor accident "

"(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 "

13. Section 4 of the Road Transport Act 2013 defines "major offence" as including:

"(e) an offence against section 117 (1) of driving a motor vehicle negligently (being driven occasioning death or grievous bodily harm.)"

1. I refer to the various submissions lodged on behalf of the claimant by emails dated 28 August 2025, 8 September 2025 and 17 October 2025. In the email dated 28 August 2025, the claimant strictly limits his claim to the first 26 weeks after the subject accident, and no claim for benefits is pursued beyond this period. He states the insurer initially accepted liability to pay for 26 weeks, but the entitlement was subsequently reversed, not on the basis of fresh evidence relating to the accident itself, but in light of discovery of criminal proceedings.
2. It is further submitted the insurer has sought to apply s 3.37 of the Act retrospectively, and it is submitted since the claimant's guilty plea occurred in May 2025, well after the 26 weeks had already expired, then it is submitted s 3.37 cannot retrospectively extinguish the claimant's entitlement for the same period of 26 weeks. It is further submitted the reversal of the insurer's original acceptance of the 26 weeks after the claimant relied on that decision, is inconsistent with procedural fairness and objectives of the Act.
3. I reject this submission. The insurer has not applied s 3.37 of the Act retrospectively. As soon as the insurer was made aware of the fact the claimant was charged with the serious driving offence, it was obliged under the Act to refuse to pay the claimant statutory benefits forthwith.

1. I refer to the submissions by the solicitor for the insurer dated 28 August 2025, which were forwarded to the claimant. I note the following:

"During the preliminary conference, there initially appeared to be some confusion about whether you had pleaded guilty to charges of negligent driving causing death. It was the writer's understanding that you ultimately accepted this was the case. However, for the avoidance of doubt, we note your application for Internal Review contained the following" I have pleaded guilty to negligent driving occasioning death."

"You correctly state that QBE initially accepted liability for statutory benefits in the first 26 weeks before changing their position. You contend that this was unfair. QBE'S decisions were made in response to the information that was available at the time. QBE has no discretion to pay benefits in circumstances where a serious driving offence was committed. There is no doubt that a serious driving offence was committed in terms of the subject accident."

1. At the assessment conference I explained to the claimant that when he lodged his application for personal injury benefits the claim form was not received by the insurer until

5 December 2022. Pursuant to the provisions of s 6.13(2) of the Act (which was the relevant section at that time), the claim must be made within 28 days after the date of the motor accident. 2. Section 6.13(2) is as follows:

"(2) if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made, unless permitted by the regulations."

1. Section 6.13(2) is prescriptive, and the claimant is not entitled to back payments. Accordingly, I advised the claimant since the claim form was received by the insurer on

5 December 2022 and he was charged with a serious driving offence on 20 December 2022, then the insurer is only obliged to make statutory payments for the said period of

5 December 2022 until 20 December 2022, which is a period of 2.1 weeks. 2. Furthermore, I advised the claimant for the purposes of s 3.37, once the insurer was made aware of the fact the claimant was charged the serious driving offence, the insurer is entitled to refuse payment of statutory benefits to him apart from the said period of 2.1 weeks.

1. The claimant is self-represented and therefore no amount is awarded for legal costs.