Public Defender: Layton Smith car accident appeal hears of ‘attack’ on evidence

IT’S just as well NRMA Insurance’s $1.5 million package offer to this boy, Layton Smith, will remain on the table.

Layton Smith and his dad Troy remain in a legal battle over injuries to Layton caused in a car crash when he was two. Picture: Tim Hunter

IT’S just as well NRMA Insurance’s $1.5 million package offer to this boy, Layton Smith, will remain on the table after the outcome of his Supreme Court appeal because based on what I observed yesterday, the court has no intention of ordering a retrial.

In 2004, a Toyota Hiace van ploughed into the Smith family’s Mitsubishi Verada as they were driving down the Great Western Hwy at Mt Druitt.

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Layton, aged two at the time, was left him with irreparable brain and body damage.

A court found the van driver suffered a heart attack and wasn’t responsible.

Without fault, the van driver’s CTP insurer, NRMA, was not obliged to pay. The law has since been changed, but it wasn’t retrospective.

Layton Smith was left with injuries to his brain and the left side of his body after surviving the accident in September 2004 aged two. Picture: Facebook

In 2015, we got NRMA Insurance to offer the Smith family a $1.5m package of lifelong assistance.

Mr Smith was going to accept but then received advice that doing so could jeopardise Layton’s access to the NDIS.

The appeal against the 2014 decision finally made it to hearing yesterday, with Bernie Gross QC launching what one of the justices described as an “attack” on the evidence provided by a husband and wife in a Holden Commodore close to the van, as well as the trial judge’s acceptance of their evidence.

Mr Gross questioned differences between what the couple told the police in 2004 and what they said to lawyers before the trial.

The NRMA is no longer paying for Layton’s treatment. Picture: Tim Hunter

Layton Smith recovers in hospital aged two. Picture: Supplied

Mr Gross said their accounts contradicted expert evidence the van driver must have been conscious.

The trial judge had “uncritically accepted” the pair “as a package duo and not addressed that their versions were seriously undermined”, Mr Gross said.

The justices yesterday reserved their decision.

While the NRMA has paid for much of Layton’s treatment since the accident, it is no longer doing so.

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