Borrow v Insurance Australia Limited t/as NRMA Insurance

In this case, the claimant, who was self-represented, brought an action against Insurance Australia Limited t/as NRMA Insurance, seeking statutory benefits for pure mental harm sustained following the death of her husband in a motorcycle accident. The insurer refused to pay any statutory benefits, arguing that section 30(1) of the Civil Liability Act (CL Act) prevented such payments because there was no "defendant" or "tortfeasor" as the deceased did not owe a duty of care to his wife to avoid causing her injury. The claimant contested this, seeking a declaration that she was entitled to statutory benefits under the Motor Accidents Injuries Act 2017 (MAI Act).

The legal issues before the court involved determining the applicability of section 30(1) of the CL Act to the claimant's circumstances and whether the mental harm provisions of the CL Act could be modified to fit within the statutory benefits scheme established by the MAI Act. The court considered the principles of statutory interpretation and the objects of the MAI Act, as well as the case of Homsi v Homsi, which the insurer had relied upon. The claimant argued that section 3.39 of the MAI Act required the mental harm provisions of the CL Act to be modified to allow close family members or witnesses to recover statutory benefits in circumstances where there was no fault on the part of an owner or driver of a motor vehicle, or even if the accident was caused by the fault of the primary victim.

The court held that section 30(1) of the CL Act should be modified to adjust the terminology used and to allow close family members or witnesses to recover statutory benefits in the circumstances described. The court found that the objects of the MAI Act and the modification of all of the mental harm provisions supported this interpretation. Consequently, the insurer was not entitled to refuse payment of statutory benefits to the claimant. The court's decision ensured that the claimant could access the statutory benefits she was entitled to under the MAI Act.