Smalley v Motor Accident Authority of New South Wales

(2013) 85 NSWLR 580; [2013] NSWCA 318

NSW Court of Appeal

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Interrogate

Catchwords

1. Traffic Law
2. › Motor accident legislation
3. › Liability
4. › Deemed denial of liability by insurer
5. › Subsequent admission of fault but denial of liability
6. › Whether subsequent admission of fault supersedes deemed denial of liability
7. › Whether admission of an element of liability an admission of liability for part of claim
8. › Motor Accidents Compensation Act 1999 (NSW), ss 10, 81, 92
1. Statutory Construction
2. › Construction of statute as a whole
3. › Meaning of 'liability', 'wholly denies liability' and 'admits liability for part only of the claim'
4. › Whether section to be construed in isolation or in context of whole Act
5. › Use of dictionaries
6. › Motor Accidents Compensation Act 1999 (NSW), s 81
7. › Interpretation Act 1987 (NSW), s 64
1. Administrative Law
2. › Judicial review
3. › Claims Assessment and Resolution Service decisions
4. › Whether judicially reviewable error in determination of applications for exemption from assessment
5. › Motor Accidents Compensation Act 1999 (NSW), ss 92(1)(a), 92(1)(b)

Quick Take

Under s 81 of the Motor Accidents Compensation Act 1999 (NSW), 'liability' means the insurer's obligation to pay money under the statutory CTP policy, not merely the existence of one or more elements of the insured's tort liability. An insurer that admits fault but denies any obligation to pay has not admitted liability for part of the claim under s 81(2), and such a letter does not engage s 81(4) so as to displace a deemed denial under s 81(3). Where the only s 81 notice is a deemed denial under s 81(3), cl 8.11.1 of the Guidelines will always be satisfied and the claim must be certified as exempt under s 92(1)(a). The question whether a genuine s 81(4) admission of liability can displace a deemed s 81(3) denial, and for what purposes, was left open.