The legal maxim Expressio unius est exclusio alterius is a Latin phrase meaning that the express mention of one excludes the other. It is a rule of statutory construction requiring the exclusion of matters not expressly mentioned. For example, the express conferral of certain rights precludes the implication of others not conferred.[1] This rule applies where it is clear that a legislative provision was intended to make exhaustive provision for the topic in question.[2]
The maxim is pertinent to the fundamental question arising from the recent decision of Borrow v Insurance Australia Limited t/as NRMA Insurance:[3] Is it appropriate for the Personal Injury Commission (PIC) to rewrite a statutory provision through “necessary modifications” pertaining to the Motor Accident Injuries Act 2017 (NSW) (MAIA) to give effect to an “apparent purpose” of legislation, when the meaning of the existing words is clear and there is no ambiguity or obscurity but ostensibly defeats the legislative purpose?
This case concerns the availability of statutory benefits for mental harm to a close family member in a situation where no third party was at fault in a motor accident. The decision has cost implication that were not contemplated by insurers or the government.
[i] Roughley v New South Wales (1928) 42 CLR 162 at 198. [ii] State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579. [iii] [2024] NSWPICMR 67 (Borrow v Insurance Australia Limited t/as NRMA Insurance) (Borrow).
[i] Roughley v New South Wales (1928) 42 CLR 162 at 198. [ii] State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579. [iii] [2024] NSWPICMR 67 (Borrow v Insurance Australia Limited t/as NRMA Insurance) (Borrow).
facts
On 17 March 2024, Mr Borrow (the deceased) was riding his motorcycle when he lost control while negotiating a bend. He slid across the road and was struck by a car travelling in the opposite direction. He died at the scene. He was travelling within the speed limit, but it was raining at the time of the accident, and the road surface was wet. It was a no-fault accident.
The deceased’s widow, who had not witnessed the accident but learned of it afterward, claimed to have suffered “mental harm” and sought statutory benefits under the MAIA from NRMA, the CTP insurer of the deceased’s motorcycle. The insurer’s internal review affirmed the original decision to deny the statutory benefits under the MAIA. The widow referred the matter to the PIC for review.
relevant legislative provisions
The key provisions were:
- MAIA, s 3.39: Limitation on statutory benefits in relation to certain mental harm; imports the pure mental harm provisions of Part 3 of the Civil Liability Act 2002 (NSW) (CLA) into the CTP statutory benefits scheme (subject to modifications by regulations).
- CLA pt 3, s 30(1): Limitation on recovery for pure mental harm arising from shock to witnesses and close family members of the victim, which:“…applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant...”
- Motor Accident Injuries Regulation 2017 (NSW) (MAIR):
- Clause 8(2): allows damages awarded to the plaintiff for pure mental harm to be reduced for contributory negligence.
- Clause 8(3): permits reduction or cessation of statutory benefits to injured parties who are wholly or mostly at fault in the motor accident from which the injury resulted.
insurer's position
The widow’s claim for mental harm invoked MAIA ss 3.1 and 1.4, where “mental harm” is an injury eligible for statutory benefits. Section 3.39 of the MAIA incorporates pt 3 (ss 27–33) of the CLA concerning mental harm. Under section 30 of the CLA, there are limitations on recovery for pure mental harm.
Since the claimant was the wife of the deceased but not involved in the accident itself, the main issue turned on the CLA s 30(1). The insurer contended that CLA s 30(1) requires three elements:
- a liable defendant;
- a primary victim who was killed or injured (the primary victim) by the conduct of the defendant; and
- the plaintiff who was mentally harmed (a secondary victim).
Since the claimant was the secondary victim and the deceased was the primary victim, and there was no defendant owing a duty of care to the two victims, the elements of CLA s 30(1) were considered as not met. Furthermore, the insurer contended that, as the claimant was not involved in the accident, CLA s 30(1) was not operable. The Act makes no provision for the statutory benefit in such an instance.
The insurer also referred to common law position in mental harm cases against the common law expanding the duty where the deceased owed no duty of care to the plaintiff or himself.
the pic merit reviewer's determination
The PIC determination was to address how the CLA’s mental harm provisions are to be applied to the statutory benefits scheme. Here, it stated that the statutory interpretation required a purposive approach. This approach begins and ends with the statutory text while considering the broader legislative context, including the legislative history, extrinsic materials, and the overall purpose of the MAIA legislation[4] When this was done, the PIC held that CLA s 30(1) needed to be modified.[5]
The PIC then noted MAIR clause 8, for context, which uses the term “claimant” instead of “plaintiff”, and phrases “damages recovered from the defendant” as “payment of statutory benefits”. The PIC further noted that the necessary requirement, although not explicit in the legislative text, is that the statutory benefits are paid by the relevant insurer and not by or through the insured owner or driver. The PIC acknowledged that what modifications, or how modifications are to be made, to the CLA and MAIA by MAIR has not yet been tested in the courts.
The decision then detailed, in obiter, the modifications that might be used for the CLA ss 27–31. The suggested “possible necessary and regulated modifications to mental harm provisions” are in Attachment A of the case and provided below.
The focus of this article is on the impugned CLA s 30(1).
first modification
The PIC first modified the legislative text to substitute the terminology used for the parties – consistent with that in the MAIR clause 8 – to read as follows (with the original legislation in strikethrough italics, modifications in bold):
“This section applies to the liability of a person (the defendant) relevant insurer to pay statutory benefits for pure mental harm to a person (the plaintiff) the claimant arising wholly or partly from mental or nervous shock in connection with another person (the victim) the victim being killed, injured or put in peril by the act or omission of the defendant by the motor accident.”
The PIC reasoned that the final part of the sentence in CLA s 30(1) - “act or omission of the defendant” - was “not needed in a claim for benefits where the entitlement is established by the legislation, and does not depend on satisfying the elements of the tort of negligence (duty and breach by the negligent act or omission of a defendant tortfeasor)”.[6] This modification of CLA s 30(1) would then allow the claimant to recover the statutory benefits.
second modification
The PIC also provided an alternative modification (original legislation in strike through italics, modifications in bold):
“This section applies to the liability of a person (the defendant) insured driver/rider for pure mental harm to a person (the plaintiff) the claimant arising wholly or partly from mental or nervous shock in connection with another person (the victim) the victim being killed, injured or put in peril by the act or omission of the defendant insured driver/rider.”
The PIC stated that this modification would be aligned with the insurer’s interpretation and in this version, the claimant “could not recover statutory benefits because that would require there to be three persons involved, the negligent at fault defendant, the injured person and “another person” (the victim)”.[7]
principles per pic
Since there was no guidance found in section 3.39 of the MAIA, the PIC considered the context and purpose of the MAIA legislation as a whole. In so doing, it preferred the first modification as, inter alia (principles in the emphasised words are examined later in this discussion):
- statutory benefits are payable to persons physically or psychologically injured in a motor vehicle accident regardless of fault. The entitlement is not dependent on the existence of a defendant or tortfeasor, and it would be consistent and fair for the benefits of secondary victims to mirror those of primary victims;
- the modification to s 30(3) of the CLA (allowing proportional reduction to plaintiff damages for pure mental harm on the basis of the contributory negligence of the victim), as implemented by clause 8 of the MAIR, enables the reduction or termination of statutory benefits in cases where no other person is at fault, such as when the victim caused the accident) in cases of contributory negligence of the primary victim;
- Section 3.39 of the MAIA imposes a “limitation” on statutory benefits for pure mental harm but does not remove those benefits entirely; and
- if Parliament intended for individuals, such as Mrs Borrow, to have no entitlement to benefits at all, then … Parliament would have explicitly said so.[8]
discussion
The benefits provided under the MAIA are entirely statutory. Therefore, reference to the common law is inappropriate. This is consistent with the PIC stating that, in claims for statutory benefits, the entitlement is established by the legislation and does not depend on satisfying the elements of the tort of negligence in common law.[9]
Historically, the common law was reluctant to award damages for nervous shock unaccompanied by physical injury, on the ground that such damage was too remote.[10] However, damages have always been readily awarded where the psychiatric harm resulted from physical injury.[11] In NSW, the common law restriction was initially removed by the Law Reform (Miscellaneous Provisions) Act 1944, and later by the CLA. Section 29 of the CLA provides that:
In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.
The CLA was enacted following the recommendations of the Ipp Report.[12] However, the CLA in NSW contains restrictive additional provisions that were not recommended by the Ipp Report.
Part 3 of the CLA addresses liability for mental harm in negligence cases. While mental harm is broadly defined in s 27 as meaning “impairment of a person’s mental condition”, s 31 provides that ‘there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness’.
Crucially, Part 3 of the CLA is focused on mental harm in the context of negligence and damages and makes no reference to statutory benefits like those found in the MAIA. This distinction creates a fundamental issue: remedies for mental harm in a motor vehicle accident under the CLA and MAIA are entirely statute-based (or subject to statutory limitations in relation to a common law damages claim). References to the common law may not be relevant, nor appropriate. Furthermore, statutory benefits are found only under the MAIA and these are not contingent on negligence or fault in the first 52 weeks, rendering discussions in relation to duty irrelevant.
Since statutory benefits are wholly governed by statute, the interpretation of entitlement must be limited to the Act. As noted by the PIC, citing the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd,[13] the task of statutory construction must begin and end with a consideration of the statutory text. However, in this author’s opinion, the PIC impermissibly deviated from this accepted principle of statutory interpretation by broadening the interpretation of MAIA provisions (specifically CLA s 30) to include other contextual materials, despite the words in the legislation being clear and unambiguous.
In Hardman v Minehan[14] the NSW Court of Appeal held that context cannot be used to displace the meaning of a statutory provision if the language of the provision is clear and unambiguous, consistent and harmonious with the other provisions of the enactment and can be intelligibly applied to the subject matter with which it deals. The words in the statute must be given their ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
The common law’s historical reluctance to award damages for pure mental harm prompted Parliament to address this issue through legislative provision like the CLA. However, Parliament enacted these provisions in the CLA within strict limits. Similarly, the statutory benefits under the MAIA were deliberately crafted within legislative parameters for policy reasons.
By referencing Part 3 of the CLA through s 3.39 of the MAIA, and without further modification through the MAIR, Parliament clearly intended for s 30(1) of the CLA to apply in MAIA with its strict conditions. These statutory benefits for pure mental harm arising from shock are available only if the elements in CLA s 30(1) are met. The words in CLA s 30(1) are clear and unambiguous and, respectfully, the use of context and extrinsic material to interpret unambiguous statutory provisions, in this author’s opinion, is not appropriate.
The wording of s 30(1) of the CLA explicitly requires three entities, and even provides three different labels (viz defendant, plaintiff, and victim) to differentiate between them. The entity of the “victim” is further distinguished in the statutory text from the other two entities by the phrase “another person”. Limiting the availability of statutory benefits for pure mental harm to situations involving all three entities is not inconsistent nor inharmonious with other provisions of the MAIA. Modification 1 of the PIC has therefore fundamentally altered the clear and unambiguous meaning of CLA s 30(1).
Furthermore, if the PIC deemed it necessary to modify CLA s 30(1), any changes should have been consistent with the statutory language. In Modification 1, the same entity of “person (the defendant)” was replaced by “relevant insurer to pay statutory benefits” in the first instance, and “the motor accident” in a later instance. These changes departed significantly from the legislative intent, as the original statutory words explicitly referred back to an entity already defined within the same sentence (underline added):
This section applies to the liability of a person (the defendant) … by the act or omission of the defendant.
pic principles on policy
The PIC’s modification s 30 of the CLA has significant policy and cost implications for the CTP insurance program. Parliament has already provided a benefit not found in common law. Modification 1 opens a category of secondary victims who may not have been considered or intended by Parliament to qualify for such statutory benefits.
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[1] Roughley v New South Wales (1928) 42 CLR 162 at 198.
[2] State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579.
[3] [2024] NSWPICMR 67 (Borrow v Insurance Australia Limited t/as NRMA Insurance) (Borrow).
[4] Ibid, [52].
[5] Ibid.
[6] Ibid, [71].
[7] Ibid, [75].
[8] Ibid, [81]. See items (c)–(h).
[9] Ibid, [71].
[10] Victorian Railways Cmrs v Coultas (1888) LR 13 App Cas 222.
[11] Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501
[12] DA Ipp (Chairman), Review of the Law of Negligence: Final Report (Ipp Report, September 2002) <R2002-001_Law_Neg_Final.pdf treasury.gov.au)>.
[13] (2012) 250 CLR 503, [39]
[14] (2003) 57 NSWLR 390, [68]–[71]
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