Cab v AAI Limited t/as GIO
[2024] NSWPICMR 20
•24 July 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | CAB v AAI Limited t/as GIO [2024] NSWPICMR 20 |
CLAIMANT: | CAB |
INSURER: | GIO |
MERIT REVIEWER: | Stephen Boyd-Boland |
DATE OF DECISION: | 24 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether statutory benefits are payable under section 3.26; whether the claimant is entitled to be compensated for before and after school care for her daughter, being a loss of capacity to provide gratuitous domestic services; Allianz Australia Insurance Limited v Vella (No 1) considered; Bussenschutt v QBE considered and applied; for the claim under section 3.26, it is a precondition of section 3.26 that ‘the claimant provided the services to those dependants before the motor accident; in relation to before and after school care the precondition in section 3.26 that the claimant must have provided the services that are the subject of the claim to her dependents before the accident is not met; Held – the claimant is not entitled to any statutory benefits under section 3.26. |
DETERMINATIONS MADE: | CERTIFICATE 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 (MAI Act).
There is a dispute between [CAB] (the claimant) and the insurer about whether statutory benefits are payable under s 3.26 of the MAI Act and the amount of statutory benefits so payable.
On 6 December 2023, the claimant sent an email enclosing a Tax Invoice dated 6 December 2023 from The Y Newbridge Heights OSHC 2023 in the sum of $123.55, making a claim for loss of capacity to provide gratuitous domestic services.
An invoice that appears to be dated 9 April 2024 includes a total of $4,261 with a rebate of $1,418.76 and a total out of pocket of $2,842.24.
On 24 January 2024 the insurer declined the claim for payment of domestic services.
The amount of the claim identified in the letter from the insurer is $2,766.13.
The claimant requested an internal review of the decision.
On 5 February 2024 the insurer issued their internal review decision in which the decision to decline the claim for payment of domestic services was affirmed.
An invoice dated 6 May 2024 includes a total of $9,506.60 with a rebate of $4,338.50 and a total out of pocket of $5,176.10.
The claimant has applied for a merit review of the internal review decision, completing the application on 19 February 2024.
SUBMISSIONS
The dispute concerns whether the claimant is entitled to be compensated for before and after school care for her daughter being a loss of capacity to provide gratuitous domestic services.
The claimant relied upon a number of documents including submissions of 17 April 2024 and 3 May 2024.
The claimant’s submissions of 17 April 2024 and 3 May 2024
The claimant submits that she satisfies the criteria to receive statutory benefits for care under s 3.26 of the MAI Act.
The claimant maintains:
a. s 3.26(1)(a) "In the case of any dependents of the claimant of the kind referred to paragraph (a) of the definition of ‘dependants’' in this section”;
b. the claimant will provide evidence confirming that she provided driving and before and after school care to her daughter;
c. "(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity,";
d. given the young age of the claimant's daughter, this should be uncontroversial;
e. "(c) there is a reasonable expectation that, but for the claimant's injury, the claimant would have provided the services to the claimant's dependants for at least 6 hours per week and for a period of at least 6 consecutive months,";
f. the claimant will provide a statement to establish the above, and
g. "(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances."
The claimant’s submissions of 3 May 2024
The claimant asserted they had addressed the criteria set out at 1 (a), (b), (c) and (d).
The claimant noted the claimant's statement of 18 April 2024 provided that in the period preceding the accident, the claimant would drop off her daughter at school in the morning, drive to work in Smithfield and pick her up from before and after school care, before driving home to her residence.
The claimant maintained that she provided the services to the dependent in the period pre-accident as required by s 3.26.1(a). As set out at her statement, in particular paragraphs 6 through 9, the claimant changed roles to permit dropping off her daughter and picking her up after school, which would have obviated the need for before and after school care.
The claimant maintained that there was a reasonable expectation that she would have provided the relevant services (in this instance, the relevant services being childcare, both driving and looking after her daughter at home before and after school) had the subject accident not occurred, satisfying s 3.26(1)(c).
The insurer characterised the submission of the claimant as follows:
a. her daughter was in before and after school care from at least 2020 (paragraph 4 statement 18 April 2024);
b. in late 2022 the claimant intended to find work closer to home so as to alleviate the need for before and after school care (paragraph 6 statement 18 April 2024);
c. the claimant commenced her new role in January 2023 and she works from home between one to three days per week (paragraph 9 statement 18 April 2024);
d. her husband is unable to assist with pick up and drop off (paragraph 8 statement 18 April 2024), and
e. the claimant alleges she is unable to drop off and pick up her daughter as she cannot drive (paragraph 9 statement 18 April 2024).
The insurer maintains that the claimant does not satisfy the requirements of s 3.26 of the MAI Act insofar that her child was utilizing before and after school care prior to the accident.
These were not services provided by the claimant on a gratuitous basis and are now required on a commercial basis.
REASONS
The dispute concerns whether the claimant is entitled to be compensated for before and after school care for her daughter, being a loss of capacity to provide gratuitous domestic services.
Taking the broadest interpretation of the claim it includes the before and after school care for her daughter and potentially, the claimant driving her daughter to that before and after school care. There is some uncertainty about this and this has not been expressly raised.
In relation to childcare assistance, the Medical Review Panel in Allianz Australia Insurance Limited v Vella (No 1) [2023] NSWPICMP 73 expressed doubts as to whether services to dependants provided by others fell within the definition of treatment and care. The Medical Review Panel expressed the preliminary view that it would have no power to determine any issue about childcare assistance under s 3.24 of the MAI Act.
Pursuant to s 3.25 of the MAI Act no statutory benefits are payable for expenses incurred in connection with the provision of gratuitous attendant care services (the meaning of “attendant care services” in s 1.4 of the MAI Act includes home maintenance and domestic services).
Schedule 2(1)(j) provides jurisdiction to conduct a merit review as to whether statutory benefits are payable under s 3.26 (statutory benefits for loss of capacity to provide gratuitous domestic services) and the amount of statutory benefits so payable. Schedule 2(1)(j) only relates to statutory benefits under s 3.26.
Section 3.26 relates to provision of domestic services to others (not the claimant).
In so far as there is any claim for gratuitous services statutory benefits are not payable under s 3.26 if the domestic services provided after the motor accident are provided gratuitously. Accordingly, a claim under s 3.26 is limited to provision of domestic services on a paid, commercial basis.
Section 3.26 of the MAI Act concerns payment of statutory benefits in relation to the loss of capacity to provide gratuitous domestic services to others and relevantly states:
“(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant's dependants, but only if—
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of ‘dependants’ in this section--the claimant provided the services to those dependants before the motor accident, and
(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant's injury, the claimant would have provided the services to the claimant's dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.”
Section 3.26(2) of the MAI Act provides further qualifying provisions.
Does the claim fall under s 3.26?
In Bussenschutt v QBE [2022] NSWPICMR 13 (24 February 2022) Merit Reviewer Ruschen considered s 3.26 of the MAI Act and concluded at [36]:
“Lastly, and more fatally for the claim under section 3.26, it is a precondition of section 3.26 that ‘the claimant provided the services to those dependants before the motor accident’. “
The language of s 3.26(1)(a) is clear and expressly includes:
“An injured person is entitled to … the reasonable expenses incurred … in employing a person to provide domestic services to the claimant's dependants, but only if… the claimant provided the services to those dependants before the motor accident”.
In relation to the before and after school care for her daughter it is apparent from the history that the claimant did not provide the services to her daughter before the motor accident.
The statement from the claimant dated 18 April 2024 includes at paragraph 4:
a. “From 2020, or after COVID, I would drop off my daughter at school in the morning, drive to work in Smithfield, pick her up from before and after school care, and drive home. The before and after school care was provided within the school which is in [redacted]. I would drop her off at 8am, and pick her up at around 4:30pm”.
The statement from the claimant dated 13 March 2023 includes:
a. at paragraph 17: “The accident occurred about 5:45pm, Friday 09 January 2022”, and
b. at paragraph 16: “I did find a new job, which I do not wish to disclose, and started on 23 January 2023. This job is closer to home for me.”
The claimant’s contention, from her statement dated 18 April 2024 at paragraph 8 appeared to be:
“Before the accident, I had thought that I would be able to drop my daughter off and pick her up because my work was a [redacted]-minute drive approximately from home, and [redacted] minutes from my daughter's school. It was agreed with my employer that I would be allowed to pick up my daughter from school at 3pm and then work from home for the balance of the day”.
That is the evidence of the claimant.
That evidence is to the effect that at all times up to the accident on 8 January 2024, that her child attended the before and after school care.
Whilst the claimant may have intended to provide the services after the motor accident that is not the test imposed by s 3.26(1)(a).
I am not satisfied that the claimant provided the services, before and after school care, that are the subject of the claim to her dependents before the motor accident.
Accordingly, in relation to before and after school care the precondition in s 3.26 that the claimant must have provided the services that are the subject of the claim to her dependents before the accident is not met.
In the event that a claim was being maintained in relation to the the claimant driving her daughter to that before and after school care, the evidence would satisfy the precondition in s 3.26(1)(a).
The statement from the claimant of 18 April 2024 is silent on who has provided the driving to before and after school care.
The statement from the claimant of 13 March 2023 at paragraph 96 provides: “… now my husband has to do the drop offs and picks”.
The last sentence of s 3.26(1) provides: “Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.”
No evidence to the contrary has been provided.
To the extent that the claim may include a claim in relation to driving her daughter to before and after school care, the evidence is that those services, driving her daughter to before and after school care, following the motor accident have been provided by her husband and have been provided gratuitously.
The claimant is not entitled to any statutory benefits under s 3.26.
CONCLUSION
I have concluded that the claimant is not entitled to statutory benefits under s 3.26 on the basis that the precondition that the claimant must have provided the services, before and after school care, to her dependents before the accident is not met.
I have concluded that the claimant is not entitled to statutory benefits under s 3.26 in relation to the services, driving her daughter to before and after school care, on the basis that following the motor accident these services have been provided by her husband and have been provided gratuitously.
The reviewable decision is affirmed.
Legislation and Guidelines
In making this decision, I have considered the following:
a. the application, reply and supporting documentation;
b. MAI Act;
c. Motor Accident Guidelines, and
d. Motor Accident Injuries Regulation 2017.
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