17 November 2022

Motor Accident Injuries Act denies dependants not in 'amorous union to the exclusion of others'

| Dione David
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In the event of death in a motor accident, not all dependants are entitled to benefits. Photo: File.

A quirk of the Motor Accident Injuries Act 2019 can cost dependants death benefits and warrants consideration of reform, according to a Canberra lawyer.

In a recent case in the ACT, a woman who was supported by and lived with her brother was denied death benefits when he was killed in a motor accident.

Subsequent internal reviews by the deceased’s insurer and the ACT Civil and Administrative Tribunal affirmed the decision.

The claim was denied on the basis his sister was not deemed a dependant under the Motor Accident Injuries Act 2019, which looks to the Legislation Act 2001 for its definition of a domestic partnership.

According to the ACT Civil and Administrative Tribunal, a domestic partnership requires an “…amorous union to the exclusion of others”, rather than a relationship between two people cohabitating and supporting each other financially and emotionally.

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Baker Deane & Nutt Lawyers managing partner Richard Baker said the implication that a dependant must have been in an amorous relationship with the deceased in order to claim death benefits made the 2019 act an “anomaly”.

“When you look at other compensatory schemes such as the Workers Compensation Act 1951, which also provides for the payment of death benefits, the definition of `dependant’ is couched in much broader terms,” he said.

“It includes specific reference to not only a domestic partner (as used by the Motor Accident Injuries Act 2019) but also to other family members including but not limited to children, stepchildren, siblings, parents and grandparent.

“The breadth of definition of ‘dependant’ in that act provides greater recognition of the breadth and scope of co-dependent relationships existing in our society.

“Co-dependency is not necessarily a concept limited to considerations of marital status and sexual relationships and so on – it’s a different issue altogether, one that is based simply on the dependant’s need for support.”

Baker Deane and Nutt Lawyers managing partner Richard Baker

Baker Deane & Nutt Lawyers managing partner Richard Baker. Photo: Baker Deane & Nutt.

Mr Baker said it was common for acts to rely on definitions in established acts to create consistency but in this case, it was problematic.

“The Motor Accident Injuries Act 2019 is a scheme intended to provide beneficial entitlements to claimants suffering damage as a result of a motor vehicle accident,” he said.

“Logically, it would appear to make greater sense to link assessments of dependency to co-dependency as opposed to limiting it to the definition of a domestic relationship as defined in the Legislation Act 2001, which is arguably directed at societal notions including marriage and de facto relationships.

“If the act’s underlying purpose is to provide a compensatory mechanism, in this instance by the death of a person on whom they were financially dependent, wouldn’t the purpose of the compensatory scheme be better achieved by using a definition consistent with that already contained within the Workers Compensation Act? Rather than limiting the concept of dependence by reference to the Legislation Act.”

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Mr Baker cited other relevant areas including death benefits under the terms of superannuation policies, payable to dependants in line with financial dependency and the NSW Workers Compensation Act 1987, which recognised dependency went beyond financial to include emotional.

“The nature of our relationships is extremely complex,” he said.

“There are a lot of relationships out there in which people would satisfy notions of co-dependency where there may be no sexual or amorous component.

“For instance, an adult child caring for an elderly parent; this is not a relationship that would fit with the tribunal’s definition of a ‘domestic partnership’. But is there a good reason to exclude the dependent parent from a death benefit entitlement provided for in a no-fault defined benefit scheme?

“In other compensatory schemes, this notion of dependency relates to whether they’re in genuine relationships of co-dependence … It’s disappointing not to see that same scope within the Motor Accident Injuries Act.”

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This is just so wrong and shameful. A dependent ‘not in an amorous union’ has had to suffer the consequences in order to shine a light on this failing of the system and bring change!

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