With compulsory third-party insurance in New South Wales we expect that as owner drivers we are covered by our CTP insurance if we (or a driver of our vehicles with or without our consent) cause an accident in which injuries are suffered by another person as the result of negligence.
The recent NSW Court of Appeal case of Insurance Australia Limited v Dent [2019] NSWCA 134 shows that this is not always the case. The driver in this case may well be left without indemnity by the CTP insurer and the injured victim with the right of recovery only against the uninsured driver.
The Facts
Mr Dent was travelling home from work on 7 February 2015 between Boggabri and Manilla in Western NSW when he came across Mr Williams who was trying to get his car out of a bog. Mr Dent stopped to see if any assistance was needed.
In his motor accident claim Mr Dent says that he was assaulted by Mr Williams who then walked to Mr Dent’s car and got in to drive away. Mr Dent says that Mr Williams ordered him into the car as well and as he was almost in the car, Mr Williams accelerated away causing Mr Dent to fall from the car onto the ground, suffering various injuries including right hip bursitis, sacroiliac strain, post-traumatic stress disorder, chronic depression and concussion.
In post-accident statements to hospital staff and to Police, Mr Dent made inconsistent statements about how the injuries occurred, which were suggestive of injuries as the result of the assault rather than the motor accident.
The Decision
The CTP insurer made an application to intervene in the proceedings to cross-examine Mr Williams and Mr Dent. It was decided that a compulsory third party insurer who had denied their insured (Mr Williams) cover for Mr Dent’s compensation claim could be joined in proceedings (separately to the defendant driver) where it had not exercised its right under the Motor Accidents Compensation Act 1999 (‘MACA’) to take over the defence of the proceedings on behalf of Mr Williams and had declined to indemnify him under the policy of insurance.
Usually, the CTP insurer indemnifies both the owner of the vehicle and any other driver of a vehicle whether that driver has or doesn’t have the consent of the owner where an injured party suffers injury as the result of the negligence of the owner or driver. The MACA also makes the insurer liable to an injured person by default if it denies indemnity and judgment is entered against a defendant driver, where the judgment is not met, leaving the insurer rights to recover directly from the defendant driver.
However, s79 of the MACA allows an opportunity to insurers to participate in proceedings where indemnity is at issue where there is a real conflict between the defendant’s interests and those of the insurer.
Given that NRMA would not otherwise have had the opportunity to argue the indemnity question given the effect of s 78, as there was no doubt Mr Williams was their insured, the Court felt it appropriate to permit NRMA to be joined to test the issue.
If you have been a victim or suffered loss as a result of a motor vehicle accident, call us today to speak to our friendly team.
