Petkovski v Government Insurance Office of New South Wales

In the Supreme Court of New South Wales, Court of Appeal, the appellant, Mr. Petkovski, brought proceedings against the respondent, the Government Insurance Office of New South Wales (GIO). The dispute concerned the appellant's entitlement to an award of damages for a motor vehicle accident that occurred on 14 July 1987. The appellant had been a passenger in a vehicle driven by his wife, and he alleged that his wife's negligent driving caused his injuries. The GIO, as the compulsory third-party insurer, was the nominal defendant in the proceedings.

The primary legal issue before the Court of Appeal was whether the appellant, as a passenger in a vehicle driven by his wife, could recover damages from the GIO for injuries sustained in an accident caused by his wife's negligence, notwithstanding the provisions of section 79 of the Motor Accidents Act 1988 (NSW). Section 79 of the Act stipulated that a driver was not liable to pay damages to a passenger in the same vehicle if the passenger was a relative of the driver, unless the driver had been guilty of a serious and wilful disregard for the safety of the passenger. The Court was required to determine if this statutory limitation on liability applied in the context of a claim against the compulsory third-party insurer.

The Court of Appeal, comprising Gleeson CJ, Samuels JA, and Handley JA, reasoned that the purpose of section 79 was to protect drivers from claims by relatives in circumstances where the negligence was not of a serious and wilful nature. However, the Court held that this protection did not extend to the compulsory third-party insurer. The Court found that the GIO's liability was statutory and that the insurer could not rely on a defence available to the driver personally, particularly when the claim was against the insurer under the compulsory third-party scheme. The Court concluded that the appellant was entitled to recover damages from the GIO, as the insurer was not subject to the limitations imposed by section 79 of the Motor Accidents Act 1988 (NSW) in relation to claims by passengers who were relatives of the driver.

The Court of Appeal allowed the appeal, setting aside the judgment of the trial judge and remitting the matter to the Supreme Court for assessment of damages.