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Judge shuts down loophole around injured motorcyclist’s drug charge

A tribunal ruling has been overturned after it stated a motorcyclist was covered for crash injuries despite being found guilty of having illicit drugs in his system while driving. 

The rider was seriously hurt in the smash at Kingsgrove in NSW in September 2020 and lodged a claim for statutory benefits from NRMA Insurance, the third-party insurer of the at-fault driver. 

But soon after the crash, the motorcyclist was charged with a drug-driving offence, and in June 2021 he was found guilty by a local court. The case was dismissed without proceeding to a conviction. 

In September 2022 NRMA Insurance – which had initially accepted liability for the incident – stopped paying statutory benefits on the basis the rider had been charged with or convicted of a serious driving offence related to the accident. 

The next month, the claimant took his case to the state’s Personal Injury Commission for adjudication. 

Commission member Belinda Cassidy ruled in the rider’s favour, noting he “had no conviction for [the] serious driving offence” and because the magistrate dismissed the charge, there was “effectively no charge in existence”. 

The effect of the dismissal was “as if there had never been a charge at all other than the ‘historical fact’ of a charge being laid recorded somewhere in the police files and on the court's records”.  

Ms Cassidy decided the motorcyclist was entitled to continued statutory benefits. 

Central to the case is section 3.37(2) of the NSW Motor Accident Injuries Act 2017, which states: “Statutory benefits ... 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. This section does not prevent the payment of statutory benefits if the person is acquitted of the offence charged or the proceedings are discontinued.” 

Earlier this month, a NSW Supreme Court review, brought by NRMA Insurance, found the commission member’s decision was made in error and should be set aside. 

“I disagree [with] the member’s view that the magistrate, by dismissing the charges, meant that there is effectively no charge in existence,” the judge said. “The member erred in construing section 3.37(2) as lifting the disentitlement in any circumstances where a charge was no longer pending. The charge remained when the offence was proven.” 

The ruling added: “The fact disentitlement ... may continue permanently does not demonstrate that the insurer’s construction of section 3.37 is ‘illogical’. In the circumstances where the [motorcyclist] has been discharged under a conditional release order, I agree that the legislative outcome may be considered ... harsh, but I am obliged to interpret the words as they are, harsh as it may be, because that is considered the legislative intention.” 

The case has been passed to the president of the Personal Injury Commission for a new ruling. 

See the full judgment here.