Like Sophie Delezio minus the pay out: Layton Smith’s family locked in insurance battle after child left with injuries and brain damage

EVERYONE remembers the gut-wrenching case of Sophie Delezio. Ten years ago, Layton Smith suffered an almost identical tragedy. Then everbody forgot.

Public Defender. Pictured is Layton Smith at home in Claremont Meadows today.

“WE were frightened, we were broken.”

Troy Smith is recalling the moment that changed his family’s life forever — a horrific crash that left his son, Layton, then not quite two years old, with irreparable brain damage and injuries, and kicked off a now decade-long battle for a secure future for the now 11-year-old.

One September afternoon in 2004, a van crossed the Great Western Highway at Mt Druitt onto the wrong side of the road. It slammed into a car injuring two adults and an almost-two-year-old baby, with the driver of the van pronounced dead at the scene.

That was about all the detail that made it on the evening news that night, and since then very little has been heard from the Smith family. Though they quickly disappeared from the headlines, Troy, his wife Tracy and little Layton stopped being the “happy family, wanting to take life step by step”, and their troubles grew.

Layton Smith with his dad Troy at home in Claremont Meadows

Layton spent his second birthday in intensive care and his parents were left to plan his treatment and how they would pay for it.

“We just didn’t know,” Mr Smith says now.

“We didn’t know any of it, whether he was going to be able to talk again, walk again. He had to go through many years of pain and suffering himself and to watch that as a parent, to see him in hospital as he grew older and became more aware of what was happening to him was just so hard.”

The crash would later be pronounced a “blameless” accident meaning the driver wasn’t found at fault because he had suffered a heart attack before the crash.

It also meant the driver’s insurance company wasn’t liable for third party injury, as at the time the NSW Government’s Compulosory Third Party scheme only applied if the driver was at fault or negligent, no CTP claim had to be paid.

Sophie Delezio, with her father Ron. She was severely injured & burnt after car ploughed into Roundhouse Childcare Centre.

It was a very similar — Mr Smith says “exactly the same” — as the better known case of Sydney girl Sophie Delezio. In December 2003 the toddler was trapped under a burnt out car that had crashed into their childcare centre after the driver suffered a heart attack.

Like Layton, Sophie was injured in a blameless crash. It was her case that brought to public attention the blameless accidents loophole which meant the insurance provider, in both cases NRMA, was not liable.

Unlike Layton, her case was highly publicised, and her father Ron Delezio believes that because of that publicity NRMA compensated the family.

As they saw the Delezio case play out in the media, Mr Smith and his wife Tracy noticed the similarities and silently continued their battle for compensation, afraid to speak up like Sophie’s family.

“We were absolutely in a situation where the future of Layton was kind of at the beck and call of the insurance company,” he says.

“We were obviously grateful of what they could offer. They paid medical bills but it put us in a corner where we didn’t want to put pressure on them. We didn’t go asking for the world.”

NRMA has assisted by paying $80,000 in medical bills for Layton and assisting with the ankle injury Tracey sustained in the crash — the insurer says it’s had no obligation to make these payments, but has done so out of good will.

Fearing for the future, the Smiths took NRMA to court with a liability case where they sought $5 million in compensation for Layton’s future care. Because the driver, who was NRMA’s client, was found not to be at fault, they family lost the case.

Ron Delezio has been a great source of support to Mr Smith.

Ron says Layton’s life is just as important as his daughter Sophie’s.

Though Mr Smith has been reluctant to speak out about the family’s plight, he’s been encouraged by the “incredible support” from a change.org petition urging NRMA to pay Layton’s CTP claim.

More than 29,000 have signed the petition, which also asks signatories to agree to withdraw their business from NRMA for one year if they are already with the provider.

He’s also found a great supporter in Ron Delezio who he says has “gone through the exact same thing as we have”.

Mr Delezio told news.com.au as well as NRMA providing compensation for Layton, he’d like to see a change in CTP insurance that would mean the vehicle, rather than the driver, was covered.

“A car destroyed this family,” he said.

“They’ve gone through a hard time and Layton will suffer brain damage for the rest of his life. There should be a law change from green slip insurance so that the car is insured, not the driver. Why should it matter to the person they damage whether the driver is at fault or not.”

Layton will need constant medical attention for the rest of his life. He’s delayed in his speech and learning and his entire left side is affected in the same way as a stroke victim’s would be.

The ordeal has taken its toll on Troy and Tracey’s relationship — they split last year. It’s also been a huge financial struggle for the family, but Troy says he’ll continue to fight for his son.

“Layton is an absolute joy. He deserves to be looked after.”

A spokesman for NRMA Insurance said the insurer would not pursue legal costs awarded against Layton Smith last year, and that the insurer would continue financial support for Layton’s treatment.

“This is a tragic situation for Layton and his family and we will continue to work with the Minister, the Lifetime Care and Support Authority and the National Disability Insurance Scheme on the future treatment needs of Layton.”