Blo v CMA

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	BLO v CMA [2024] NSWPICMR 19
CLAIMANT:	BLO
INSURER:	CMA
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	22 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); merit review; dispute about payment of weekly benefits under Division 3.3 of the MAI Act; whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA (as applied by section 3.39 of the MAI Act); limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by s 3.39 of the Motor Accident Injuries Act 2017 (the MAI Act) (Limitation on statutory benefits in relation to certain mental harm) and is therefore a merit review matter under Schedule 2(1)(t) of the MAI Act. 1. The reviewable decision is affirmed.

STATEMENT OF REASONS

INTRODUCTION

A dispute has arisen between BLO (the claimant) and the insurer about the claimant’s entitlement to payment of weekly benefits under Division 3.3 of the Motor Accidents Injuries Act 2017 (MAI Act).
The claimant’s niece, CVM, (the victim) and nephew, CSA (CSA) were injured in a motor accident on 1 September 2023.
The claimant made a claim for statutory benefits under the MAI Act arising from pure mental harm suffered by the claimant in connection with the victim’s motor accident.
On 30 November 2023 the insurer determined the claimant was not entitled to statutory benefits as he was not a person who is eligible to bring a claim for pure mental harm under s 30 of the Civil Liability Act2002 (the CLA).
On 13 December 2023 the claimant requested an internal review of the insurer’s decision dated 30 November 2023.
On 21 December 2023 the insurer issued their internal review decision, which affirmed the insurer’s original decision that the claimant is not entitled to statutory benefits pursuant to s 30 of the CLA.
On 2 May 2024 the claimant requested a merit review of the insurer’s internal review decision dated 22 December 2023 (the Application).

SUBMISSIONS

The claimant submits he is an eligible person under s 30 of the CLA on the basis he:
(a) is a close member of the family of the victim, and/or
(b) he witnessed, at the scene, the victim being put in peril.
The claimant submits he meets the definition of “close member of the family” of the victim under s 30 on the basis he and the victim “were in a close family relationship in that they considered one another brother and sister”.
In the alternative, the claimant submits he attended the scene after the accident and “witnessed the carnage for a number of hours until the wreckage was cleared, and the deceased bodies were removed”. The claimant submits the “tragic events resulting in death, injury or peril are events not necessarily confined to the instant they occur, and the psychiatric injury need not be related to a particular victim”. On this basis, the claimant submits he should be considered a person who witnessed, at the scene, the victim being put in peril for the purpose of s 30 of the CLA.
The insurer submits:
(a) the claimant does not fall within the definition of “close member of the family” of the victim, as the claimant is the victim’s uncle and aunts and uncles are excluded under s 30 of the CLA, and
(b) the claimant did not witness the victim being put in peril, as the harm (death) had already occurred by the time the claimant arrived at the scene of the accident.
A teleconference was held with the parties on 24 May 2024 during which it was canvassed that the parties’ submissions do not address the definition of “close member of the family” in s 30 of the CLA and how they say it should, or should not, be interpreted to include a “brother and sister-like” relationship. It was agreed the parties should provide further submissions addressing this issue. Directions were made accordingly.
During the teleconference it was also raised that the effect of Letters of Guardianship obtained by the claimant’s mother (the victim’s grandmother) in respect of the victim, a copy of which is included in the claimant’s documents, is unclear. The claimant was invited to also address this issue in further submissions, including by providing further evidence in relation to same.
The claimant has not made any submission (in their original submissions or in their further submissions) on how the Letters of Guardianship issued in, and in respect of the state of California, USA in 2003 should be treated for the purpose of this claim. Nothing is known as to the purpose or effect (including how they were put into practice by relevant parties) of the Letters of Guardianship, or the extent to which they continued over the following 20 years. Of note, the victim’s mother continued to also live with the victim (albeit it is said, “on and off” during the earlier period) and had a second child (younger brother of the victim), yet scant information is provided about the relationship between the victim and her mother, particularly in later years leading up to the accident. The claimant’s statement largely only addresses the early years, when the victim was a very young child and do not detail family dynamics in the later years up to the accident.
The claimant also does not address in his statement the extent of his involvement/relationship with his sister’s other child, CSA who was also killed in the subject motor accident. There is no statement from the mother of the victim and CSA (the claimant’s sister) and the claimant does not submit he also had a brother-like relationship with his nephew, the victim’s brother. The motor accident occurred outside the house of the mother of the victim and CSA, whilst the victim and her brother CSA were travelling their together. It seems clear the victim’s mother and the victim continued to have a relationship and continued to be involved in each other’s lives.
As the claimant has not made any submission on the Letters of Guardianship or provided evidence that might enable consideration of how the document may be relevant to this claim, I assume the Letters of Guardianship are not pressed as a basis on which the claimant says they are a “close member of the family…” for the purpose of s 30 of the CLA.
In their further submissions, the claimant submits:
(a)    family relationships are complex, and the labels used can be flexible and meaningful;
(b)    the relationship between the claimant and the victim was exceptionally close and it was natural for the parties to use terms of endearment that reflected that bond;
(c)    referring to the victim as a “sister” emphasized their emotional closeness, affection and shared experiences, and
(d)    ultimately, the claimant and the victim were comfortable with the label, and it reflected their relationship accurately.
The claimant refers to observations by McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33 (Gifford) regarding the closeness and affection of relationships when determining whether a duty is owed to a person claiming nervous shock as a result of injury or death to another person.[1]
[1] The passage in Gifford relied on by the claimant is set out at paragraph of this decision.
The claimant submits s 30(5)(d) should be construed to find the claimant and the victim are “close members of the family” due to the closeness and affection of their relationship that existed from the time of the victim’s birth.

The insurer submits the passage relied upon by the claimant in Gifford is not relevant to interpretation of s 30 of the CLA because it was in respect of the law as it existed prior to enactment of the CLA. The insurer submits Gifford concerned the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (the LRMP Act) as in force at the time and it was held that the LRMP Act did not abolish common law rights, so the plaintiff’s claims could be decided based on those common law rights, which were more expansive than those available under s 4 of the LRMP Act.
The insurer submits it is clear that in enacting Part 3 of the CLA the legislature made the decision to stipulate a list of the required relationships between claimant and victim for a case of pure mental harm and by doing so, s 30 imposes restrictions and limitations on the common law rights that existed prior to the CLA.
The insurer submits that as uncle of the victim, the claimant is excluded from the definition of “close member of the family of a victim” under s 30 of the CLA, as the categories are restrictive and do not include uncle. Whilst the definition of “close member of the family…” includes sisters and brothers, the insurer submits “sister” and “brother” should be given their ordinary legal definition where one exists. The insurer points to the legal definition in the Succession Act 2006 (NSW), which the insurer says accords with the ordinary meaning of these terms and does not extend to cover relationships that are “brother-like” or “brother and sister-like” as contended by the claimant.

REASONS

Legislation

The claimant’s injury is limited to pure mental harm.
Pursuant to s 3.39 of the MAI Act Part 3 (Mental harm) of the CLA applies to payment of statutory benefits under Part 3 of the MAI Act in connection with an injury in the same way as it applies to the award of damages in connection with an injury.
Under Part 3, s 30(2) of the CLA the claimant is not entitled to statutory benefits for pure mental harm unless:
(a) he witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) he is a close member of the family of the victim.
Pursuant to s 30(5) of the CLA "close member of the family" of a victim for the purpose of subsection 2 means:
(a)    a parent of the victim or other person with parental responsibility for the victim, or
(b)    the spouse or partner of the victim, or
(c)    a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d)    a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
Uncle is not listed in s 30(5) and accordingly, the claimant is prima facie excluded as a close member of the family for the purpose of s 30 of the CLA. The claimant contends, however, that the definition of “close member of the family…” should be construed to include the claimant on the basis of his close and affectionate relationship with the victim since the victim’s birth, which the claimant describes as “brother and sister-like”.
In the alternative, the claimant contends he witnessed, at the scene, the victim being put in peril.
There does not appear to be any dispute that the claimant only needs to meet one of the two criteria under s 30(2) of the CLA and not both.
However, for completeness, the wording of s 30(2) is clearly disjunctive using the word “or” and accordingly, the claimant only needs to fall under one of s 30(2)(a) or (b) and does not need to satisfy both.
Accordingly, the issue for determination is:
(a) whether the claimant is a close member of the family of the victim for the purpose of s 30 of the CLA, or
(b) whether the claimant witnessed, at the scene of the accident, the victim being put in peril.

Is the claimant a close member of the family under s 30?

The claimant is the uncle of the victim. He is also the uncle of CSA (CSA), who is the victim’s brother, also killed in the motor accident. However, the claimant does not make any submission that he is a “close member of the family…” for the purpose of s 30 of the CLA by reason of his relationship with CSA.
Uncle is not included in the definition of “close member of the family…” in the CLA. The claimant says the definition of “close member of the family…” should be construed to include the claimant’s close, “brother and sister-like” relationship with the victim.
The claimant relies on the common law decision of Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (Gifford) in which McHugh J said:
“Those who have a close and loving relationship with a person who is killed or injured often suffer a psychiatric injury on learning of that injury or death, or on observing the suffering of that person… They are among the persons who are likely to be so closely and are directly affected by the wrongdoer’s conduct that the person ought reasonably to have taken them in mind when considering if it is exposing the victim to a risk of harm… it is the closeness and affection of the relationship – rather than the legal status of the relationship – which is relevant in determining whether a duty is owed to the person suffering physical harm…”
However, as pointed out by the insurer, Gifford was determined where, at the time which the Gifford appeal relates, s 4 of the LRMP Act was in force (now repealed). It was noted in Gifford that s 4 of the LRMP Act has subsequently been “overtaken” by the CLA. As such, Gifford is of limited relevance to this merit review, which is to be determined under the CLA and not the repealed provisions of the LRMP Act.
In so far as the claimant relies on common law principles by drawing from the observations of McHugh J in Gifford, I consider in respect of claims under the MAI Act that the CLA displaces the common law because:
(a) s 3.39 of the MAI Act provides:
“That in respect of statutory benefits payable in relation to mental harm, Part 3 (Mental Harm) of the CLA applies to the payment of statutory benefits ... in connection with an injury in the same way it applies to the award of damages in connection with an injury subject to any necessary modifications prescribed by the Regulations.”, and
(b) the CLA displaces the common law in respect of payment of statutory motor accidents by operation of s 3.39 and Part 3 of the CLA.
The above conclusion is supported by decisions dealing with the provisions of the CLA such as the decision of the New South Wales Court of Appeal in Harrison v Melhem NSW Law Reports [2008] 380 (Harrison). Although the Court was dealing with s 15 of the CLA, the principles adopted in that decision are equally applicable to the operation of s 3.39 of the MAI Act and Part 3 of the CLA.
Reference is made in Harrison to a passage in Gifford where McHugh J said at [36]:
“Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the presumption of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.”
At [11] in Harrison, Spigelman J said:
“For these reasons I do not find the presumptions against abrogation of common law doctrines or of common law rights to be of any assistance in resolving the proper interpretation of s15(3) of the CLA.”
I am of the view the CLA is clear and unambiguous in its application. Section 30 establishes a clear limitation on those persons who can bring a claim for pure mental harm. The definition of “close member of the family…” in s 30 does not state that it “includes” the stated relationship categories. It states “close member of the family…” “means” persons falling within the specified relationship categories. This reinforces that the section is restrictive. Accordingly, if the claimant does not fall within one of the specified categories of persons under s 30 of the CLA he is not entitled to payment of statutory benefits under Part 3 of the MAI Act.
I agree with the following submission of the insurer in their further submissions dated 9 July 2024, which reinforces my conclusion that the definition of “close member of the family…” in the CLA is deliberately restricted to only the specified relationships, with no scope for expansion to include a close relationship that might be likened to one of the specified relationships:
“19 The enactment of the relevant provision of the CLA occurred following the handing down of the recommendations following the Review of the Law of Negligence chaired by Justice Ipp. In the Report (Ipp Report), it is noted:
The question that this raises in the context of the Panel’s Terms of Reference is whether the current state of the common law imposes satisfactory limits on liability for mental harm. In practical terms, the question is whether liability for pure mental harm should be subject to preconditions of the sort that existed before Tame/Annetts was decided.
20 In considering the question of whether to stipulate the ‘required relationships’ between a claimant and immediate accident victim - to give standing to claim damages for pure mental harm - the Ipp Report noted:
Because of the difficulty of justifying a list of relationships in a principled way, the Panel does not recommend such a list. However, we understand that governments may think that legislation enacting such a list would be desirable. For that purpose, we suggest that the following list might be appropriate to specify the required relationship between the person imperilled, injured or killed and the person who suffered pure mental harm as a result of that person being imperilled, injured or killed:
(a) A parent, or a person who stands in loco parentis, to the person imperilled, injured or killed.
(b) The husband or wife of, or any person living on a bona fide domestic basis with, the person imperilled, injured or killed at the time of the relevant events.
(c) A natural, half or stepsister or brother of the person imperilled, injured or killed.
(d) A natural, adopted or stepson or daughter of the person imperilled, injured or killed.
21 It is clear that in enacting Part 3 of the CLA, the legislature made the decision to stipulate a list of the required relationships between claimant and victim, for the claimant to have necessary standing to bring a pure mental harm claim. While the ‘close member of the family’ categories under section 30(5) are expressed in somewhat different terms to the proposal in the Ipp Report, it is submitted that they are substantively the same.
22 In the Insurer’s submission, there can be no doubt that Part 3 of the CLA, including the required relationships under section 30(5), imposes restrictions and limitation on the common law rights that existed prior to its enactment. As observed in The Law of Torts, Fleming (10th Ed) with the enactment of these provision in the CLA, the legislature ‘sought to close the doors rather than open them’ [para 8.170]. 23 It is also noteworthy that even before the introduction of Part 3 of the CLA in 2002 the legislature had restricted damages for pure mental harm in motor accident cases to only those claimants who had the prescribed relationships with the victim.”
It is also informative to note the nature of the relationship that must exist for claims for pure mental harm differs between jurisdictions. In NSW, a claimant must fall within one of the stated relationship categories. However, in Victoria, for example, s 73 of the Wrongs Act1958 limits the recovery of damages for pure mental harm to persons that were “in a close relationship with the victim”. The Victorian legislation is therefore more expansive than s 30 of the CLA and would likely include the claimant given the claimant’s close relationship with the victim. In South Australia, s 53 of the Civil Liability Act1936 limits damages for pure mental harm to “a parent, spouse, domestic partner or child” of the injured person. Sisters and brothers are excluded from s 53 of the South Australian legislation. As such, s 53 is even more restrictive than s 30 of the CLA, as not only does it exclude aunts, uncles and cousins, it also excludes brothers and sisters.

The Victorian legislation is more aligned with the observations of McHugh J in Gifford than the position in NSW and South Australia. However, this is not the approach taken by the NSW legislature. Unlike s 73 of the Victorian legislation and unlike the LRMP Act (s.4(1)), s 30 of the CLA is an excluding section, specifically precluding claimants who do not meet qualifications. The definition of “close member of the family…” in s 30(5) of the CLA is limited and narrower than that contemplated in both the LRMP Act and common law. Grandparents, cousins, aunts and uncles are excluded from the definition.
Section 30 of the CLA may not align with the observations of McHugh J in Gifford or with unique or non-traditional family models or situations where extended families live together. There are likely many families where, for example and sometimes extending from cultural backgrounds, cousins live together like brothers and sisters and may even think of each other as siblings. However, the CLA is limiting, rather than an expansive provision like s 4 of the LRMP Act. If the NSW legislature had intended to emphasise the “close and loving” quality of a relationship as McHugh J did in Gifford, presumably the legislation would have adopted different language for example by using language similar to s 73 of the Victorian Wrongs Act1958 by only requiring that a claimant was in “a close relationship with the victim”. However, by restricting or limiting “close member of the family…” to mean only the listed categories I do not consider there is any scope to interpret the definition to include persons who do not strictly fall within one of the specified categories, regardless of their otherwise close relationship with the victim.
Section 101 of the Succession Act 2006 defines “brother or sister” as being two people who have one or both parents in common. I agree with the insurer’s submission this accords with the ordinary meaning of those terms and that the ordinary legal meaning of ‘brother’ and ‘sister’ should be relied on when regard is had to the broader phrase of ‘brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim’ under s 30(5)(d) CLA. I also agree that, as the insurer puts it:
“If ‘brother’ and ‘sister’ were to be given a more expansive and undefined meaning so as to cover relationships that are ‘sister-like’ or ‘sister and brother-like’, as the Claimant contends for, it would render meaningless the inclusion of terms ‘half-brother or half-sister, or stepbrother or stepsister’ in the sub-section. Those descriptors would have no work to do unless each of the terms in section 30(5)(d) are given their ordinary legal meaning”.
The meaning of “close member of the family…” in the CLA may not align with the observations of McHugh J in Gifford or family relations in, and expectations of, modern society. However, this is a matter for the legislature to address. Unless and until there is an amendment to the definition of “close member of the family…” it is clear from the unambiguous wording that it is a restrictive, or excluding provision, which excludes anyone who does not fall within one of the specified relationship categories.
The claimant is the victim’s uncle. Uncle is excluded from the specified relationship categories. The claimant and the victim had a close relationship which the claimant describes as “brother and sister-like”. While I do not disagree with the observations of McHugh J in Gifford, unfortunately this close relationship is not sufficient for the purpose of s 30, as it is currently worded. The claimant must be the brother, half-brother or stepbrother of the victim, being the only relevant specified relationship categories, not “like” a brother, half-brother or stepbrother. As uncle of the victim, the claimant does not satisfy the definition of “close member of the family…”.
The conclusion that the claimant is not a “close member of the family” for the purpose of s 30 is not a conclusion that the claimant is not a person affected by the subject motor accident. It is the consequence of legislation intended to be more restrictive than the previous common law position.

Did the claimant witness, at the scene, the victim being put in peril?

In the alternative, the claimant contends he is a person eligible to bring a claim for pure mental harm under the MAI Act because he witnessed, at the scene, the victim being put in peril.
The accident occurred at 9.20pm on 1 September 2023 and was reported to police at 9.25pm. The victim was deceased as a result of the accident along with her brother, CSA.
The claimant has provided a statement in which he states he learned of the accident, and that the victim and CSA had died, when he received a telephone call from his sister, CNA, at around 10.00pm on the night of the accident. The claimant attended the scene of the accident after receiving this call.
The claimant relies on the High Court decision in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 (Wicks), where a broader interpretation of the phrase “put in peril” was preferred. In Wicks, the Court held that a person is “put in peril when put at risk and they remain in peril until they cease to be at risk”. In Wicks, several survivors of the derailment were considered by the Court to have remained in peril until they had been rescued and taken to a place of safety. Thus, the plaintiffs witnessed, at the scene, the victims of the accident being put in peril.
The claimant submits pursuant to Wicks the “tragic events resulting in death, injury or peril are events not necessarily confined to the instant they occur” and that because the claimant witnessed the carnage for a number of hours at the scene until the wreckage was cleared and the deceased bodies removed, he ought to be a person who witnessed, at the scene, the victim being put in peril for the purpose of s 30 of the CLA.
However, it is clear from Wicks that to have witnessed the victim, at the scene, being put in peril it is necessary for the victim (or victims) to have been in peril as a result of an event occurring in the period in which the claimant was at the scene.
The phrase “being put in peril” refers to a state that is present and immediate. This necessarily involves identification of the event happening, whilst the claimant was at the scene, which put one or both victims in peril during that period. As the High Court said in Wicks “it must be read as directing attention to an event that was happening while the plaintiff ‘witnessed’ it”.
The Court’s determination and reasons in Wicks must be put into context, as the facts that lead to the broader interpretation of being put in peril are distinguishable from this matter.
Relevantly, in Wicks, the plaintiffs were among the first to arrive at the scene. They were confronted not only by death and injury that had already occurred, but by survivors trapped in the wreckage of the train. Because the overhead electrical cables had been torn down, and were lying across the wreckage, it was anything but clear whether it was safe to go close to the wreckage. This also meant that many survivors who remained in the wreckage were at risk of sustaining further injury whilst they remained in the wreckage, which was witnessed by the plaintiffs.
The consequences of the train derailment in Wicks took time to play out and not all the injuries sustained by those on the train were suffered during the process of derailment. The perils to which surviving passengers were subjected did not end when the carriages came to rest. The High Court readily inferred from the specific facts in Wicks that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages. This is a matter clearly relevant to the conclusion in Wicks that the plaintiffs witnessed, at the scene, passengers being put in peril. The peril the passengers were in was the risk of further injury whilst being removed from the wreckage. The High Court stated it would be very surprising if each surviving passenger was extricated without further harm. The High Court concluded that as they were removed from the train, at least some of the passengers were still being injured. It was based on this inference that the High Court concluded the plaintiffs witnessed, at the scene, victims of the accident being injured.
Even if these inferences should not be drawn, the High Court said the fact remains that when the plaintiffs arrived at the scene, those who had been on the train, and had survived, remained in peril citing the observation of fallen electrical cables draped over the carriages as an illustration of one kind of peril to which those who remained alive in the carriages were subject before they were taken to a place of safety.
It was this reasoning that led to the conclusion that the expression “being put in peril” should be given the meaning which the words ordinarily convey such that “a person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk”.
Accordingly, once the person is no longer at risk of sustaining further injury, the person is no longer being put in peril.
In this matter, the two victims were already deceased when the claimant received the telephone call from his sister, before he attended the scene of the accident whereas in Wicks, there were survivors not yet rescued or in the process of being rescued. Those survivors remained in peril until they were rescued from the wreckage. Although in this matter, the two victims remained trapped in the wreckage whilst the claimant was at the scene, they were no longer in harm’s way/no longer in peril because the full extent of the harm (death) had already occurred.
The ordinary meaning of “peril” is serious and immediate danger exposing a person to a risk of being injured. Once a person is deceased there can be no further risk to their health or safety.
Whilst the claimant witnessed the aftermath of the accident, he did not witness the victims being put in peril for the reasons outlined above.
The event that was happening, which the claimant “witnessed”, was the victim’s bodies being recovered from the vehicle. This is not an event that could be described as one in which a person is being put in peril that is, that they are being put in serious and immediate danger, which exposes them to a risk of injury.
Accordingly, the claimant did not witness, at the scene of the accident a victim being put in peril for the purpose of s 30 of the CLA.

CONCLUSION

The claimant is the uncle of the victim. Uncle is not included in the definition of “close member of the family” for the purpose of s 30 of the CLA. Whilst the claimant had a close, brother and sister-like relationship with his niece (the victim), s 30 is restrictive. The present wording of the section does not accommodate a “brother and sister-like” relationship.
The claimant arrived at the scene of the accident after the two victims were deceased. Before the claimant arrived, the event which put the two victims in serious and immediate danger had passed. The relevant event had passed upon impact between the two vehicles involved in the accident and the offending vehicle fleeing the scene. The claimant did not witness these events. Whilst the claimant witnessed the aftermath of the accident, including the recovery of the victims’ bodies from the vehicle, he did not witness at the scene, the victims being put in peril. This is because once the victims were deceased, they were no longer at risk of harm and as such, no longer in peril.
As the claimant is neither a close member of the family of the victim under s 30(5) of the CLA and did not witness, at the scene, one or both victims being put in peril, pursuant to s 3.39 of the MAI Act he is not eligible for payment of statutory benefits.
The insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA and s 3.39 of the MAI Act.
Accordingly, the reviewable decision is affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
·        the application, reply and supporting documentation;
·        MAI Act;
·        the Regulation;
·        the Motor Accident Guidelines;
·        the Succession Act 2006;
·        the Wrongs Act 1958 (Vic), and
·        the Civil Liability Act 1936 (SA).

[2024] NSWPICMR 19

22 July 2024