Collins v QBE: leave to pursue a late fatal-accident CTP claim

The accident occurred on 16 December 2005. The Court therefore applied the Motor Accidents Compensation Act 1999 (NSW), including its former six-month claim provision, late-claim explanation provisions and court-leave requirements. Those are not the claim periods and procedures that should simply be copied into a claim arising after 1 December 2017.

Current motor accidents are generally governed by the Motor Accident Injuries Act 2017 (NSW). It has separate statutory-benefits and damages pathways. Section 6.14 generally requires a damages claim within three years and contains its own late-claim provisions. Older accidents, current accidents and Compensation to Relatives claims must be checked against the legislation and procedure applying to the actual accident date.

Collins is useful for its analysis of explanation, evidence and prejudice. It is not authority that a claimant under the current scheme can wait 20 years, or that grief, confusion or prior legal contact will always excuse delay. A late claim should be addressed immediately with advice on the correct scheme.

Fraser Revell died aged 37 after a single-vehicle motorcycle accident at Bringelly. He was riding a borrowed motorcycle while unlicensed and intoxicated. Ms Collins, his de facto partner, alleged that the motorcycle’s owner was negligent in allowing him to ride while knowing he was unlicensed, inexperienced, intoxicated and unfamiliar with the motorcycle. Those allegations were pleaded but were not finally determined at the leave hearing.

Ms Collins sought damages for nervous shock and loss of dependency for herself and under the Compensation to Relatives Act 1897 (NSW) for the benefit of the couple’s two children, who were 10 and 17 when the accident occurred. The Court noted that proposed claims for three grandchildren born or conceived after the death were not viable. This illustrates why each claimed relative and each head of loss must be identified rather than treating all family loss as one undifferentiated claim.

Proceedings were filed on 7 March 2025. QBE was the motorcycle’s CTP insurer. The company that owned the motorcycle had been deregistered in 2009, so Ms Collins also sought leave under section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 to proceed directly against QBE.

QBE argued that the proceedings should be dismissed because Ms Collins had not established an arguable liability case against the motorcycle owner. The Court rejected the submission. At this interlocutory stage, she did not have to assemble and prove every link in the evidence that would be required at a final trial.

The pleaded allegation that the owner permitted the deceased to ride in the stated circumstances was capable, if proved, of supporting a breach-of-duty case. The Court therefore found an arguable cause of action. That finding was a threshold for leave, not a final liability determination. Questions about the owner’s knowledge, the deceased’s conduct, causation and contributory negligence remained for any later determination.

For direct proceedings against an insurer, the Court applied the sequence described in Zaki v Better Buildings Constructions Pty Ltd: an arguable insured liability, a policy that responds, and a real possibility that a judgment against the insured would not be met. QBE conceded the policy, and deregistration supported the inference that the insured company could not satisfy a judgment.

Former solicitors had sent a letter in January 2014 purporting to withdraw and discontinue the claim after QBE had rejected it. QBE relied on that history to argue that the same claim could not later be pursued. The Court distinguished the authorities on claims that had proceeded through the statutory steps and were taken to be withdrawn.

Acting Judge Levy accepted Ms Collins’s evidence that the words “withdraw” and “discontinue” were not hers, that she did not understand their significance, and that she believed she had no case because the accident involved one vehicle and the deceased was intoxicated and unlicensed. The Court also accepted that warnings about possible adverse costs had frightened her from proceeding.

The finding was fact-specific. A claimant should not assume that a withdrawn, rejected or dormant claim can simply be restarted. The original claim, insurer response, authority given to previous representatives and every later step need to be examined under the applicable legislation.

The former Act required a full and satisfactory explanation for a late claim and for court leave. “Full” required an account of the relevant conduct throughout the period. “Satisfactory” required the Court to consider whether a reasonable person in the claimant’s position would have experienced the same delay.

Ms Collins provided a comprehensive year-by-year account from 2005 to 2025, supported by her statement, oral evidence, medical records and subpoenaed material. The Court considered her bereavement, delayed counselling, diagnosed mental-health problems, limited understanding of the legal position, and severe personal, family and financial disruption. It found her candid, credible and reliable after cross-examination.

The Court did not infer that earlier contact with probate, criminal or family lawyers meant that she had received advice about a motor accident dependency claim. Nor was evidence from every former lawyer treated as indispensable. The accepted explanation was not mere inaction or a bare statement that the law was unknown; it was a documented chronology tested against the claimant’s particular circumstances.

Section 109 of the former Act required the Court to be satisfied about a statutory damages threshold before granting leave. The parties agreed that the relevant amount was $89,750. After allowing for identified funeral expenses of $7,185.24, the remaining threshold issue was whether the dependency claim was likely to exceed $82,564.76.

The financial evidence was incomplete, particularly concerning how the deceased disbursed his self-employment income. The Court nevertheless considered the family’s comfortable pre-accident lifestyle, the plaintiff’s financial dependence, the children’s ages, the years of expected support and evidence about the younger child’s elite-gymnastics prospects and associated expenses. It concluded, on an impressionistic basis at the leave stage, that the combined damages were likely to exceed the threshold.

These figures were specific to the former Act and this application. They are not current CTP thresholds or a valuation formula. A present-day dependency claim requires its own evidence about income, household expenditure, likely duration of support, domestic services, contingencies and any contributory negligence.

QBE argued that more than 20 years had passed and that it would be difficult to defend both liability and financial dependency. Delay can seriously impair a fair trial through lost records, unavailable witnesses or faded memory. The Court did not minimise that risk, but examined the evidence that remained.

There were 17 police and lay witness statements, a transcript of the partial coronial hearing and no evidence that the motorcycle owner would be unavailable. The Court treated the asserted dependency prejudice as speculative because QBE could test the plaintiff and her children at trial. Any shortage of financial records could also harm the plaintiff’s ability to prove damages rather than unfairly benefiting her.

The Court balanced the position of both sides and found no material prejudice preventing a fair trial. That conclusion was tied to the preserved evidentiary record. In another late claim, missing witnesses, destroyed documents or an inability to investigate the alleged tortfeasor’s conduct may lead to a different outcome.

The Court dismissed QBE’s notice of motion and ordered QBE to pay Ms Collins’s costs of that motion. It granted leave retrospectively for her to continue the proceedings filed on 7 March 2025 against QBE. There was no order as to costs on Ms Collins’s own notice of motion.

The orders allowed the proceedings to continue; they did not award compensation. Ms Collins still had to prove the underlying negligence claim, causation, the relatives entitled to benefit, the amount and duration of dependency, any nervous-shock claim, and the effect of the deceased’s own conduct. QBE remained entitled to defend those issues.

The distinction matters for reporting the case accurately. Collins is a decision about access to a hearing despite delay. It is not a finding that the insured owner was liable, that a single-vehicle fatality always supports a CTP damages claim, or that the final dependency evidence will establish the amount contemplated at the interlocutory stage.

A person who discovers a possible claim late should first identify the accident date and governing scheme, then obtain the complete insurer and former-solicitor files. The explanation should address the whole period, not only the most recent delay, and should distinguish what the claimant knew from what later advisers inferred.

Preserve the liability record as well as the explanation. Police statements, coronial material, witness contact details, vehicle and policy records, company searches and contemporaneous correspondence can determine whether a fair trial remains possible. For dependency, collect tax and business records, household accounts, mortgages, school and care expenses, superannuation material and evidence of unpaid domestic services.

Do not rely on Collins as permission to delay. The current MAI Act has its own claim periods and dispute procedures, and an insurer may reject a late claim. A complaint, enquiry or consultation does not itself extend a statutory period. Obtain advice before withdrawing, re-lodging, commencing proceedings or signing any document that may affect the claim.

The required material depends on the accident date and pleaded claim. A focused review commonly begins with:

• the accident date, registration, insurer identity and complete CTP policy or claim records
• the original claim form, rejection, late-claim explanation and every withdrawal or discontinuance communication
• a year-by-year chronology explaining what the claimant knew, advice sought, health and personal circumstances, and every period of inactivity
• police, ambulance, coronial, witness, scene, vehicle and toxicology material relevant to liability
• ASIC or other records showing the status of the insured person or company and whether a judgment could be met
• proof of each eligible relative and the relationship to the deceased
• tax returns, business accounts, bank records, superannuation, household budgets and evidence of financial support
• evidence of childcare, household, transport, maintenance and other domestic services provided by the deceased
• medical records and reports for any separate recognised psychiatric injury claim
• the current insurer, PIC or court timetable and advice on the legislation applying to the particular accident date