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In Brief
- Section 3.37 of the Motor Accident Injuries Act 2017 prohibits the recovery of statutory benefits after the Claimant is charged with a serious driving offence (as defined by section 3.37(5))
- Subject to other statutory requirements, the Claimant's entitlement to statutory benefits is only reinstated if the Claimant is subsequently acquitted of the serious driving charges or the proceedings against them are discontinued.
Facts
The Personal Injury Commission (PIC) published its decision in Alhussein v QBE Insurance (Australia) Limited [2026] NSWPIC 23 on 30 January 2026.
On 31 October 2022, the Claimant made a decision to drive his utility vehicle into a causeway. There were two passengers riding in the rear tray of his vehicle. Tragically, they were both drowned when the Claimant's vehicle was swept into the water.
The Claimant subsequently pleaded guilty to two charges of negligent driving causing death.
In response to his own claim for statutory benefits, the Insurer issued a series of Liability Notices:
- On 21 December 2022, the Insurer accepted liability for the first 26 weeks.
- On 23 December 2022, having become aware of the police charges against the Claimant, the Insurer amended its Liability Notice to deny liability on the grounds that he had been charged with a serious driving offence.
- On 25 June 2025, upon being informed by the Claimant that he had been acquitted of manslaughter and other charges, the insurer issued a further Liability Notice accepting liability for the first 26 weeks, but denying liability thereafter because the Claimant was wholly or mostly at fault.
- On 17 July 2025, having become aware that the Claimant pleaded guilty to two charges of negligent driving causing death, the Insurer issued a further Liability Notice denying liability for statutory benefits on the grounds that the Claimant had been convicted of a serious driving offence
The Claimant lodged a Miscellaneous Assessment in the Commission challenging the Insurer's July 2025 Liability Notice. The Claimant argue that his guilty plea occurred well after the first 26 weeks had passed and that the Insurer could not use the convictions to retrospectively extinguish his rights to statutory benefits for the first 26 weeks.
The Member's Decision
The Member concluded that the Insurer was entitled to deny the Claimant statutory benefits, pursuant to s 3.37, of MAIA because the Claimant was convicted of a serious driving offence that was related to the motor accident.
Essentially, the Member reasoned that the series of Liability Notices issued by the Insurer did not change the fact that s 3.37 prohibited the recovery of statutory benefits when the Claimant was charged with serious driving offences and he was subsequently convicted for those offences.
The Member decided, however, that the Claimant was entitled to statutory benefits for the period between his late claim and the date he was charged with a serious driving offence.
Why This Case is Important
The decision in Alhussein is interesting because the Member appears to have interpreted the word "after" in s s 3.37(1) to mean that a Claimant who commits a serious driving offence may only be denied statutory benefits for the period after they have been charged with the offence, rather than from the date of the accident.
It the Claimant is subsequently convicted, then the prohibition stands. If, however, the Claimant is acquitted of all serious driving charges, then their entitlement is reinstated, subject to whether they suffered a threshold injury and/or were wholly or mostly at fault for the accident.
If you would like to discuss this case note, please don't hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.
Additional McCabes Resources
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