Layton Smith’s dad turns down $1.2m-plus NRMA Insurance deal on legal advice the NDIS says is wrong

THE father of a boy with brain damage from a “blameless” crash has turned down an insurer’s seven-figure offer on legal advice it jeopardised NDIS access. But the scheme’s boss says the advice is wrong.

Layton Smith, 12, pictured with his father Troy at RAAF Memorial Park in Mt Druitt. For Public Defender.

THE father of a boy with brain damage from a “blameless” crash has turned down a package worth $1.2 million-plus from a major insurer on legal advice that accepting it would jeopardise access to the National Disability Insurance Scheme.

But the scheme’s boss says the advice is wrong.

In 2004, a van ploughed into Troy Smith’s car on the Great Western Highway at Mt Druitt. His son, Layton, then 2, was in the back seat. In 2014 the Supreme Court ruled the van’s driver suffered a heart attack and was not responsible. Without fault, the driver’s compulsory third party (CTP) insurer, NRMA, did not have to compensate Layton.

The law has since been changed so CTP covers such crashes.

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Layton Smith in 2004, then two years old, recovering in hospital after being hit in a car crash now the subject of a court appeal. Picture: Supplied

Prior to the case, NRMA paid Layton’s medical bills. After, it said it would stop. News Corp Australia then led a campaign that saw NRMA offer a package an independent adviser has since valued at $1.2 million. On the adviser’s feedback, NRMA was willing to add to the package.

Mr Smith was close to reaching an agreement — prior to receiving new legal advice he had requested.

One of Mr Smith’s new lawyers told News Corp Australia: “The (NDIS) legislation says you have to pursue all avenues.”

Layton and father Troy at home. Picture: Tim Hunter

So an appeal of the court ruling has begun.

But the CEO of the National Disability Insurance Agency, which runs the NDIS, disputed the advice.

“The NDIS does not require the family to exhaust legal proceedings,” David Bowen told News Corp Australia. “The solicitors for Layton have not sought advice from the agency on this point.”

Mr Bowen also said Layton’s access to the NDIS was not affected by legal proceedings against NRMA.

The insurer said it had been told not to contact Mr Smith but that its package will still be on the table should the appeal fail.

The original claim was for $5 million.

Layton Smith in 2004, then two years old, recovering in hospital after being hit in a car crash that is now the subject of a NSW Supreme Court appeal. Picture: Supplied

At a directions hearing in the Court of Appeal in Sydney yesterday, Registrar Jerry Riznyczok ordered appellant submissions be filed by March 16.

NRMA covered the Smiths’ legal costs for the Supreme Court case. It is unlikely to pay for the appeal.

Another of Mr Smith’s lawyers last night said they did not require the NDIA’s “advice or direction”.

“We continue to act in the best interests of Layton,” he said.

Mr Smith said: “I just truly hope we can come to the complete closure of everything knowing we have (explored) every possible avenue (and) sought the right advice so that one day I can at least tell Layton I did not give up and that was the final answer.”

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