The sister of a man killed in a highway collision has had another death benefit-related application dismissed after giving evidence she would be worse off as the pair supported each other emotionally and financially.
Alistair Forbes Urquhart died on September 15, 2021 when he was involved in a collision at the intersection of the Barton Highway and Gungahlin Drive in Kaleen.
Police have alleged the driver of a tow truck, which was carrying a 10-tonne excavator, went through a red traffic light before colliding with Mr Urquhart's vehicle.
Mr Urquhart had been living with his sister, Jacqueline Forbes, in Canberra since 2008 after he moved from Melbourne.
The pair had supported each other as they both dealt with major health issues and Ms Forbes became his carer in 2018 when he was diagnosed with metastatic melanoma.
Following the death, Insurance Australia trading as NRMA Insurance in February denied payment of the death benefit to her as a dependant on the basis she was not deemed a dependant under the Motor Accident Injuries Act 2019 and the Legislation Act 2001.
A subsequent internal review by the insurer affirmed the decision. Ms Forbes then applied for the ACT Civil and Administrative Tribunal to review it.
The dispute between the parties focused on the interpretation of the "dependant" definition, particularly in relation to the phrase "domestic partner of the person", in the 2019 Act.
Ms Forbes' solicitor argued the applicant was a dependant of her brother because they were domestic partners and that the term should be read to include a sibling relationship with a high degree of emotional and financial interdependence.
The solicitor said the term as defined in the 2001 Act could include a sibling relationship because the indicators listed in that section for deciding whether two people are a couple in a domestic relationship is not an exhaustive list and the section does not expressly exclude sibling relationships.
Reference was also made to the definition of "domestic relationship" in the Domestic Relationships Act 1994, which does not require a romantic relationship.
The solicitors for the insurer argued that if the legislature intended to include siblings in the definition of domestic partnership, it would have expressly done so.
They also highlighted that the definition of domestic partnership in the Legislation Act refers to two people living together as a couple and excludes people merely living together or "house sharing".
In a recent tribunal judgment, acting presidential member Thena Kyprianou said that while she agreed with Ms Forbes' solicitor that the Legislation Act's references to domestic partnerships were not intended to be exhaustive, they set a pattern and provide examples of the kind of relationship the legislature meant to capture.
"All the examples listed are examples of people living together as couples. The list does not include other familial relationships such as parent and child or siblings," Ms Kyprianou said.
She also cited another section of the Act that further clarifies the definition of domestic partnerships.
It states that it is the relationship between two people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
"The ordinary meaning of two people living together as a couple denotes an amorous union to the exclusion of others, rather than a relationship between two people cohabiting and supporting each other financially and emotionally," she said.
The acting presidential member said she did not accept the reference to the Domestic Relationships Act.
"Though I accept the evidence given by the applicant in her statutory declaration ... that she and her late brother provided emotional and financial support to each other and that she will be worse off financially without him, the Motor Accident Injuries Act provides for payment of death benefits to dependants of the person who died and the definition of dependant does not include a dependant sibling," she said.
Ms Kyprianou dismissed the application for review. The truck driver, 27-year-old Jake Barrett, has been charged with criminal offences.
