Judgment date: 9 August 2011. Kiaya Uele by her next friend Roxanne Hallcroft v Nominal Defendant (Unreported). District Court of New South Wales1
In Brief
A vehicle which is capable of obtaining an Unregistered Vehicle Permit will be covered by the Nominal Defendant scheme even if the vehicle is not being used for the approved purpose at the time of the accident.
Background
At about 3.30 pm on 19 January 2008 the claimant was a pedestrian on Cobar Reserve when an unregistered motorcycle collided with her causing serious injuries. The motorcycle was being ridden for recreational purposes at the time of the accident. The claimant commenced proceedings against the Nominal Defendant. It was agreed between the parties that the rider of the motorcycle had breached his duty of care to the claimant and caused her injuries.
The proceedings were listed for hearing of the indemnity issue under s 33 of the Motor Accidents Compensation Act 1999. That section allows actions to be brought against the Nominal Defendant in relation to uninsured motor vehicles where the following conditions apply:
"motor vehicle" means a motor vehicle:
(a) that is exempt from registration, or
(b) that is not exempt from registration, is required to be registered to enable its lawful use or operation on a road in New South Wales and:
(i) was at the time of manufacture capable of registration, or
(ii) was at the time of manufacture, with minor adjustments, capable of registration, or
(iii) was previously capable of registration but is no longer capable of registration because it has fallen into disrepair."
It was agreed between the parties that, at the time of the manufacture of the motorcycle in 2000, it was not exempt from registration and could not have been registered for normal road use without extensive and expensive modification, but that it would have been possible to obtain an Unregistered Vehicle Permit (UVP) to use the motorcycle for agricultural purposes. It was also agreed that the motorcycle would have been capable of being certified roadworthy for the purposes of obtaining a UVP but that the Roads and Traffic Authority would not have issued a UVP for recreational use on Cobar Reserve. However, a UVP does allow the use of the vehicle on public rods in accordance with specified conditions of use.
The claimant argued that the issue in determining indemnity under s 33 was whether or not the vehicle was capable of registration, including a UVP, at the time of manufacture. The insurer argued that indemnity must be determined with reference to whether the vehicle was, at the time of manufacture, capable of registration for use to which the vehicle was being put at the time of the accident. The trial judge noted that the Nominal Defendant scheme is beneficial in nature and the provisions should therefore be interpreted beneficially. He therefore adopted the former approach and gave judgment in favour of the claimant.
Implications
This decision dramatically broadens the number of vehicles which may potentially be covered by the Nominal Defendant scheme. Essentially, any vehicle which is capable of being registered or obtaining a UVP could potentially fall within the scheme, even where the purpose for which it is being used at the time of the accident is not an approved use.
The mechanism to obtain a UVP is rather lax. Essentially the owner must certify that the vehicle was roadworthy at the time of manufacture.
1. Judge RA Sorby
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