Pursuant to the Motor Accident Insurance Act 1994 (Qld) (MAIA), damages for personal injuries or death are recoverable from the Nominal Defendant (the ND) if the vehicle at fault is uninsured. Effectively, the ND “stands in the shoes of” a CTP insurer.

When the ND is liable to pay damages, they have a right of recovery from the driver of the uninsured vehicle at fault, and/or the owner of the vehicle who failed to take out a CTP policy.

An issue then arises as to whether a widow and dependent child are able to recover from the ND where the deceased is not responsible for the motor vehicle accident, but owned the uninsured vehicle at fault. The case of Murison & Anor v Nominal Defendant [2012] QSC 221 (Murison) is on point.

Facts

The deceased was a passenger in the vehicle at the time of the accident. The driver of the vehicle was at fault.

The deceased owned the vehicle involved in the accident. However, he failed to take out CTP insurance for the vehicle.

The deceased’s widow and daughter brought a dependency claim.

As the vehicle was uninsured, the ND was the default insurer per the MAIA.

The Dependency claim was brought pursuant to s 17 of the Supreme Court Act 1995 (SCA). S 17 provides the Plaintiffs are able to recover damages only if the ND would have been liable to the deceased, had he lived.

Section 60 of the MAIC allows the ND to recover from the owner of the vehicle any costs incurred due to the accident. The parties agreed that “costs” included any damages paid by the ND to the Plaintiffs.

It was argued by the Defendant that s 60 of the MAIC was effectively a “set-off” provision.

In equity, amounts party A is able to recover from party B can be “set-off” against any money party B is owed by party A.

The ND argued the deceased would not have been entitled to recover damages (in the event he lived), as the ND could have relied on s 60 of the MAIA: any damages the deceased would have been entitled to from the ND, the ND, in effect, could claim back from the deceased. The ND therefore argued the damages were “set-off”.

Findings

Margaret Wilson J found that s 60 of the MAIA effectively operated as a “set-off” provision and therefore the deceased would not have been entitled to recover damages from the ND.

As the deceased effectively had no right to recover damages, the Plaintiffs had no right of action pursuant to s 17 of the SCA. No entitlement to bring a dependency claim therefore existed.

Conclusion and Implications

Once it was clear s 60 of the MAIA operated as a “setoff” provision, it does not appear the aspiring Plaintiffs were able to make any arguments the court considered compelling to overcome the application of the rule.