An allegation of false or misleading statement by the Claimant,
in a material particular, as to the circumstances of the accident,
will result in a mandatory exemption under s 92(1)(a) of the
Motor Accidents Compensation Act 1999 and clause 8.11.6 of
the MAA Claims Assessment Guidelines.
A mandatory exemption under clause 8.11.6, on the grounds of
false or misleading statement as to the circumstances of the
accident, may be obtained notwithstanding a prior Section 81 Notice
admitting fault with no allegation of contributory negligence.
The Principal Claims Assessor has recently issued a Mandatory
Exemption Certificate under s 92(1)(a) of the Motor Accidents
Compensation Act 1999 and clause 8.11.6 of the MAA Claims
Assessment Guidelines, based upon an allegation for false and
misleading statement as to the circumstances of the accident.
Clause 8.11.6 provides that:
8.11 For the purpose of section
92(1)(a), the PCA shall issue a certificate of exemption when
satisfied that, as at the time of the consideration of the
application, the claim involves one or more of the following
circumstances: 6 the Insurer alleges that the claim is a fraudulent
claim in terms of the circumstances of the accident giving rise to
The insurer, in the case under consideration, alleged that the
claimant had made a false and misleading statement as to the
circumstances of the accident.
Whereas the claimant alleged that the insured struck the rear of
her vehicle and pushed her vehicle into the rear of the vehicle
ahead of her, there was evidence that the claimant hit the car in
front of her before the impact caused by the insured.
Principal Claims Assessor's Decision
After taking issue with the insurer's interpretation of the
evidence, the claimant argued that a mandatory exemption should not
be granted because whereas clause 8.11.6 refers to
"fraudulent claims", the insurer only made an
allegation of "false or misleading" statement as
to the circumstances of the accident.
The PCA, however, rejected the claimant's argument,
reasoning as follows:
"`Fraud', in its legal sense is defined in the
Macquarie dictionary as `advantage gained by unfair means, as by a
false representation of fact made knowingly, or without belief in
its truth, or recklessly, not knowing whether is true or
false.' When I read that definition, combined with the four
sections of the Act referred to above [ss 116 to 119] it is clear
to me that the parliament does not mean to distinguish between
false claims or fraudulent claims. A claim that is fraudulent or
false is one in which the claimant has made a `statement knowing
that it is false or misleading in a material
"The difficulty with the claimant's argument is
that I cannot look beyond or behind the allegation that has been
made. I cannot look at the merits of otherwise of what the insurer
has done. I can really only look at the letter it has written. The
insurer in this case has made an allegation that [the Claimant] has
made a false or misleading claim. It is alleging she has made a
statement about how the accident happened that is knowingly false
or misleading. The insurer has not used the precise work but its
allegation can be construed as alleging the claim is
On this basis, the PCA found that the insurer's letter fell
within clause 8.11.6 and issued a mandatory exemption
Given the PCA's decision, it is apparent that an insurer can
obtain a mandatory exemption under s 92(1)(a) by alleging that the
claimant has made a false or misleading statement as to the
circumstances of the accident.
It is clear that the aspect of the circumstances said to be
false or misleading must have some relevance to fault, contributory
negligence or causation. It can not be something trivial such as
the colour of the vehicle.
However, provided the insurer makes an allegation that the
claimant has made a statement "knowing that it is false or
misleading in a material particular", the PCA is prepared
to construe this as an allegation for fraud as to the circumstances
of the accident for the purpose of clause 8.11.6.
Importantly, the PCA issued an exemption certificate under s
92(1)(a) even though the insurer had previously served a Section 81
Notice admitting fault and making no allegation of contributory
As such, clause 8.11.6 appears to represent a mechanism of
obtaining an exemption from assessment by CARS notwithstanding
admissions contained in a Section 81 Notice, provided there are
valid grounds for alleging false and misleading statement by the
claimant, in a material particular, as to the circumstances of the
We recommend that this mechanism only be utilised after careful
consideration of the facts of the case and whether an allegation of
false or misleading statement is justified. Overuse in unwarranted
circumstances is likely to result in clause 8.11.6 being amended or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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