Charity v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Charity v QBE Insurance (Australia) Limited [2025] NSWPICMR 15
CLAIMANT:	Ayla Charity
INSURER:	QBE Insurance (Australia) Limited
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	8 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; whether cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1) (entitlement to statutory benefits for treatment and care); attendant care services; whether loss of income of provider of gratuitous services recoverable as statutory benefits; where injured person is a minor; section 3.25; section 3.26; merit review; jurisdiction; Schedule 2(1)(i); Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the *Motor Accident Injuries Act2017*** The reviewable decision is about whether the cost of treatment and care provided to the claimant is reasonable for the purposes of s 3.24(1) of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is affirmed.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Ayla Charity (the claimant) and the insurer about whether certain expenses are reasonable for the purpose of s 3.24(1) Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 20 September 2024.
The claimant is 14 years of age and suffered serious injuries in the accident, including traumatic brain injury. As a result, the claimant has been dependent on parental care for her day-to-day needs. The claimant’s mother says she has been required to forgo employment to care for the claimant and as a consequence, suffered wage loss.
The claimant lodged an application for personal injury benefits.
On 29 January 2025 the insurer determined no statutory benefits were payable in respect of the claimant’s mother’s wage loss.
On 30 January 2025 the claimant requested an internal review of the insurer’s decision dated 29 January 2025.
On 12 February 2025 the insurer issued their internal review decision in which the insurer affirmed their decision of 29 January 2025.

The claimant has requested a merit review of the insurer’s internal review decision dated
12 February 2025 (the Application).

SUBMISSIONS

The claimant’s mother seeks compensation (by way of statutory benefits paid under s 3.24 of the MAI Act) for the loss of wages suffered as a result of taking time off work to care for the claimant and in particular, to accompany the claimant to medical appointments. The claimant submits the mother’s wage loss should be classified under ss 1.4 and 3.24 of the MAI Act as “treatment and care”.
The claimant submits the MAI Act and Motor Accident Guidelines NSW (the Guidelines) are designed to ensure injured persons, and by extension their dependants, receive prompt and comprehensive treatment and care and the MAI Act and Guidelines are intended to capture all reasonable and necessary expenditures that facilitate the injured person’s recovery. The claimant submits the mother’s wage loss is a direct, quantifiable expense incurred in order to provide necessary care to the claimant for the claimant’s recovery.
The claimant contends the severity of the claimant’s injuries have,
“created a situation where the mother’s services, while rendered in her capacity as a parent, are indispensable and functionally equivalent to professional attendant care. Therefore, her lost wages represent a ‘reasonable expense’ that is directly attributable to the cost of providing essential treatment and care to her injured daughter.”
The claimant acknowledges statutory benefits for gratuitous services are excluded under the MAI Act but contends the claimant’s circumstances differ substantially and the MAI Act is silent on matters where the injured claimant is a minor or has a legal incapacity. The claimant submits “therefore … the [MAI] Act should be interpreted to ensure equal entitlements for all injured persons”.
The claimant further submits that jurisdictions with similar statutory schemes have recognised that, in circumstances where a family member must forgo employment to provide indispensable care, the resultant economic loss may be recoverable as part of the overall treatment and care benefits.
Further and in the alternative, the claimant submits s 3.26 of the Act provides statutory benefits for the loss of capacity to provide gratuitous domestic services by an injured person and although the traditional application of this provision excludes payment for services rendered gratuitously, the underlying objective is to ensure injured persons receive comprehensive support for the costs they would have otherwise incurred in procuring such services. The claimant submits her care needs are so extensive that they disrupt the normal provision of domestic services that would have been provided by the parent. It is submitted that such a loss should be treated similarly to the costs incurred when an injured person is unable to perform domestic tasks, thus justifying reimbursement for the economic loss suffered by the parent.
The claimant submits an expansive reading of s 3.26 supports the statutory objective of mitigating financial hardship on families by recognising the informal, but essential, care provided by parents is a direct consequence of the injury.
The insurer submits the claimant’s interpretation of ss 1.4, 3.24 and 3.26 of the MAI Act is incorrect and points to s 1.4, which defines ‘attendant care services’ as meaning “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
The insurer notes the State Insurance Regulatory Authority (SIRA) prescribes that attendant care services are provided by trained support workers and attendant care providers, often facilitated by the insurer, to provide various types of support to an injured person including personal assistance, nursing, home assistance and domestic services” and that cl 4.101 of the Guidelines states: “An insurer who has identified a claimant requiring treatment, rehabilitation and attendant care services must facilitate a referral to an appropriate treatment provider (including vocational provider, if appropriate) within 10 days, with the claimant’s agreement”.
The insurer submits the claimant’s mother is not a trained attendant carer or a support worker that provides attendant care services. The insurer submits the definition of ‘treatment and care’ and ‘attendant care services’ is to be read as it is and in context, which is supported by s 6 of the Interpretation Act 1987 (NSW) which states: “(6) Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject matter otherwise indicates or requires”.
The insurer acknowledges the severity of the claimant’s injuries and the mother’s loss of time from work but submits the wage loss does not come within the definition of ‘treatment and care’ in s 1.4 and as such, statutory benefits as compensation for the mother’s wage loss is not payable under the MAI Act.
The insurer also relies on Ali v AAI Limited t/as NRMA Insurance [2022] NSWPICMR 56 (the Ali decision) in which the Merit Reviewer highlighted that under s 3.24(1) of the Act, it must be an expense that is incurred by the claimant, not a parent or dependant and considered the cost of airfares to provide care for a minor is not a cost of treatment and care but is an indirect cost incurred by the grandmother in connection with the treatment and care provided to a minor.
The insurer submits the loss of wages is not an expense incurred by the claimant and similarly, the mother’s loss of wages is not a cost of treatment and care provided directly to the claimant. Rather, it is an indirect loss in connection with the care she provided to the claimant. As such, the insurer submits this claim ought to be prosecuted in the claimant’s mother’s own name, as the lost income is not a loss or expense incurred by the claimant.
The insurer notes s 3.24(c) of the Act accommodates cases of a minor requiring assistance to travel by providing that “…if the injured person is under the age of 18 years or otherwise, requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided”. The insurer has reimbursed the claimant’s mother for travel expenses, thus satisfying s 3.24(c).
In so far as the claimant submits the loss of wages should be treated similarly to costs incurred when an injured person is unable to perform domestic services thus falling under s 3.26 of the MAI Act, the insurer refers to the criteria in s 3.26(1) and submits this criteria is not met and therefore s 3.26 is not triggered.
The insurer acknowledges the claimant’s mother’s loss of wages is unfortunate but submits there is no entitlement to statutory benefits for same, as s 3.25(1) of the MAI Act prescribes that statutory benefits are not payable for gratuitous attendant care services.

JURISDICTION

The proceedings are identified as a dispute about the reasonable cost of treatment and care. Schedule 2(1)(i) provides power to a Merit Reviewer to determine “whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1)(a)”.
There is no express matter listed in Sch 2 of the MAI Act concerning a dispute confined to whether a particular item or service provided to an injured person is “treatment and care”. However, the starting point is cl 3.24. Relevantly, s 3.24(1)(a) provides that an injured person is entitled to statutory benefits for “the reasonable cost of treatment and care”. It follows from this that if a cost is not a cost “of treatment and care” it is not a “reasonable cost of treatment and care” payable under s 3.24(1)(a).
Schedule 2(1)(i) provides that a dispute about “whether the cost of treatment and care provided or to be provided to the claimant is reasonable” is a merit review matter. Section 3.24(1)(a) is clearly the precursor to/genesis of the jurisdiction prescribed in Sch 2(1)(i) in the same way s 3.24(2) is the precursor to, or provides the foundation for, the medical assessment jurisdiction prescribed in Sch 2(2(b).
If the merit review jurisdiction in Sch 2(1)(i) is to be narrowly construed so as to only prescribe jurisdiction over the question of whether the cost itself is reasonable it would require the foundation for the jurisdiction that is, s 3.24(1)(a), to be fragmented into different parts. Disputes about whether a cost is a cost of treatment and care and therefore a reasonable cost are likely to arise in many instances. If only the question of whether the cost itself is reasonable can be determined as a merit review, claimant’s would need to lodge multiple applications for example, by potentially lodging a miscellaneous claims assessment application to determine whether a service is “treatment and care”, a merit review application about the cost itself (because that is clearly a merit review matter) and a medical assessment application if there is also a dispute about whether the service is reasonable and necessary.
The guiding principle in s 42 of the Personal Injury Commission Act 2020 (PIC Act) requires the just, quick and cost effective resolution of the real issues in the proceedings. In my view, having regard to the guiding principle, it is not likely the intention of the MAI Act that the foundation for jurisdiction contained in s 3.24(1)(a) should be fragmented into various sub-disputes with only one fragment of a dispute under s 3.24(1)(a), being the very narrow issue of whether a cost is reasonable, to be determined as a merit review.
This conclusion is also reached when regard is had to the close relationship between the wording in s 3.24(1)(a) and Sch 2(1)(i). That is to say, that for the purpose of resolving a dispute under Sch 2(1)(i) about whether a cost of treatment and care is reasonable, I consider it inherent in the wording of the two provisions that there is power to determine whether something claimed as “treatment and care” is in fact “treatment and care” within the statutory definition. In my view, this must be so because s 3.24(1)(a), being the precursor to jurisdiction under Sch 2(1)(i), entitles the claimant to the “reasonable cost of treatment and care” meaning that if a cost is not a cost of “treatment and care” it follows that it is not a reasonable cost of treatment and care.
I therefore conclude I have jurisdiction as Merit Reviewer to determine the dispute concerning whether the mother’s wage loss is a reasonable cost of treatment and care and inherent in this, is jurisdiction to determine whether the cost meets the definition of “treatment and care” in the MAI Act.

REASONS

Meaning of treatment and care – ss 1.4 and 3.26

The claimant submits the mother’s lost wages are caught by the definition of “treatment and care” in s 1.4 and are therefore treatment and care expenses for the purpose of s 3.24 of the MAI Act.
Section 3.24 provides:
“3.24 Entitlement to statutory benefits for treatment and care;
(1) an injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person;
(a)     the reasonable cost of treatment and care;
(b)     reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable; and
(c)     if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2)     no statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3)     the Motor Accident Guidelines may provide for;
(a)     circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b)     circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).”
Section 1.4 provides that “treatment and care” means the following:
“(a)    medical treatment (including pharmaceuticals),
(b)     dental treatment,
(c)     rehabilitation,
(d)     ambulance transportation,
(e)     respite care,
(f)      attendant care services,
(g)     aids and appliances,
(h)     prostheses,
(i)      education and vocational training,
(j)      home and transport modification,
(k)     workplace and educational facility modifications,
(l)      such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
The lost wages are said to arise because the claimant’s mother took time off work to accompany her daughter to medical appointments. The only possible basis on which this might be caught by the definition of “treatment and care” is as “attendant care services”.
Section 1.4 defines “attendant care services” to mean:
“services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
Whilst I consider assistance with travel in the circumstances of this case falls within the definition of “attendant care services”, s 3.24 clearly concerns “expenses” that is, a cost that has in fact been incurred by the injured person. An expense is incurred when a person has paid, or has a liability to make payment, to a third party for the expense. Whilst the mother has suffered wage loss in the sense she has forgone or missed out on income, the wage loss is not an expense because it is not monies that have been paid or have to be paid by or for the claimant. As such, whilst the wage loss relates to attendant care services within the meaning in s 1.4, s 3.24 is not triggered because the wage loss is not a cost (to the claimant) of that treatment and care.
The loss suffered by the claimant’s mother in the form of wage loss might be compensable in some way in a claim for damages (for example, damages for gratuitous domestic assistance). However, the present claim is not a claim for damages. It is a claim for statutory benefits under the MAI Act, which restricts a claimant’s entitlement to recover loss in connection with treatment and care to expenses paid, or payable, by the claimant to a third party such as the treatment provider. The only expansion on this in s 3.24 is for the provision of travel and accommodation expenses incurred by the claimant or their parent or carer, if the claimant is a minor or otherwise requires assistance with travel. Whilst the wage loss is said to have been incurred in connection with travel to obtain treatment and care for the claimant (a minor), the wage loss is not a travel or accommodation expense incurred by either the claimant or the mother. Rather, the wage loss is an indirect, or consequential loss to the mother (not the claimant), which is not provisioned for in s 3.24.
Further, even if the wage loss could be considered an “expense” for the purpose of s 3.24, I agree with the Ali decision that for the purpose of s 3.24 (other than a parent or carer’s travel and accommodation costs under s 3.24(1)(c)) it must be an expense incurred by the claimant and not an expense incurred by a parent or dependent.
The Ali decision concerned an airfare expense for the injured person’s grandmother to travel to the injured person’s bedside to provide gratuitous attendant care services. Whilst it was a cost incurred by the grandmother in order to provide attendant care services to the injured person, it was held not to be a cost of treatment and care but an indirect cost of treatment and care. It was also an expense incurred by the grandmother, not the injured person, in connection with the provision of gratuitous attendant care services and s 3.25 excludes payment of expenses incurred in connection with provision of gratuitous attendant care services. For these reasons, it was held in the Ali decision that the insurer was not required to reimburse the airfare under the MAI Act.
The present case is similar to the circumstances in the Ali decision, although more removed from the operation of s 3.24 than Ali because Ali concerned an expense paid or payable to a third party (the airfare) whereas the present case concerns a loss in the sense of something forgone by the mother rather than monies paid or payable to a third party by the mother (or the claimant). As in the Ali decision, the present case does not concern a travel or accommodation expense incurred in order for the claimant to obtain treatment or care. It concerns an indirect loss suffered by the mother as a consequence of the provision of gratuitous attendant care services by the mother to the claimant during the course of the claimant obtaining treatment.
It is clear from a reading of ss 3.24 and 3.25 that s 3.24(1)(b) and (c) only concern travel and accommodation costs to attend for treatment and care and that other expenses in connection with treatment and care are dealt with separately under s 3.24(1)(a). Section 3.24(1)(a) deals with expenses for attendant care services but if the attendant care services are provided gratuitously, one must then turn to s 3.25 which deals specifically with expenses in connection with gratuitous attendant care services. If the services are provided gratuitously then any expenses associated with provision of those services are specifically excluded under s 3.25.

As stated in the Ali decision at paragraph 62 the “opening words of s 3.24(1) provide an entitlement to benefits for expenses that are incurred in connection with providing treatment and care to an injured person. However, s 3.24(1) then provides three types of expenses, incurred and connected to the provision of that treatment and care…”. In other words, s 3.24 is a limiting provision, limiting the recovery of treatment and care expenses to only the three types set out in s 3.24(1). The first, in s 3.24(1)(a), is limited to costs “of” treatment and care and as such, does not extend to costs incidental to treatment and care. To the extent there is provision for incidental costs, ss 3.24(1)(b) and (c) limits this to travel and accommodation costs only.
Even if the mother’s lost wages could be categorised as an cost of treatment and care for the purpose of s 3.24 it does not fall within any of the three types of expenses permitted under s 3.24. Even if it did, it can only be a cost of attendant care services and as those services were provided gratuitously, the cost is excluded under s 3.25.
Whilst the mother’s services to the claimant may be considered “functionally equivalent to professional attendant care”, as contended by the claimant, the fact remains that the attendant care is provided by the mother on a gratuitous basis and as such, any expenses associated with that care falls for consideration under s 3.25, which excludes the expense.

Gratuitous attendant care services – s 3.25

The claimant acknowledges statutory benefits are not payable for gratuitous attendant care services but says the circumstances of this case substantially differ and the MAI Act is silent in the circumstances of a minor. I do not agree that the MAI Act is silent in relation to circumstances where gratuitous services are provided to a minor. The fact the relevant provision does not make express reference to a minor (or any other specific circumstances) does not mean it is silent on this issue. Instead, absent any ambiguity, it means the provision applies to all circumstances of gratuitous attendant care services, regardless of whether the injured person is a minor.
Section 3.25 provides:
“3.25 No statutory benefits for gratuitous attendant care services
(1) No statutory benefits are payable under this Division for expenses incurred in connection with the provision of gratuitous attendant care services .
(2) In this section--
‘gratuitous attendant care services’ means attendant care services provided to an injured person for which the injured person has not paid and is not liable to pay.”
[emphasis added]
This claim concerns gratuitous attendant care services within the meaning in s 3.25(2). The claim is for loss of wages suffered by the mother in order to provide the services. On the claimant’s case, this is an expense incurred in connection with providing the attendant care services. Even if I agreed this were an “expense”, I consider s 3.25(1) is clear and unambiguous in its terms and those terms are that statutory benefits are not payable for “expenses incurred in connection with provision of gratuitous attendant care services”. That is, regardless of whether the claim concerns provision of gratuitous attendant care services to a minor, statutory benefits are not payable for any expenses in connection with provision of that care.
The claim for lost wages falls squarely within the exclusion in s 3.25(1). Accordingly, statutory benefits are not payable in respect of the mother’s lost wages even if prima facie, the lost wages are an expense of treatment and care for the purpose of s 3.24, as s 3.25 goes on to exclude the expense.
I do not doubt the mother’s services are indispensable and functionally equivalent to professional attendant care, but it remains the fact that the services are gratuitous, and statutory benefits are not available for provision of gratuitous attendant care services including any expenses incurred in connection with providing those services.

Other jurisdictions

The claimant submits jurisdictions with similar statutory schemes have recognised that, in circumstances where a family member must forgo employment to provide indispensable care, the resultant economic loss may be recoverable as part of the overall treatment and care benefits. The claimant does not identify any other jurisdiction or incidence of this in another jurisdiction. There is no further detail in the submission. In any event, this claim falls under the jurisdiction of NSW and more specifically, the MAI Act.
The statutory regime for motor accident claims does differ to some extent from State to State. For example, the relationship that must exist for claims for pure mental harm differs between jurisdictions. In NSW, the claim must fall within one of the stated relationship categories in s 30 of the Civil Liability Act 2002 (the CLA). However, in Victoria s 73 of the Wrongs Act1958 limits the recovery of damages for pure mental harm to persons that were “in a close relationship with the victim”. The Victorian legislation is therefore more expansive than s 30 of the CLA. In South Australia, s 53 of the Civil Liability Act1936 limits damages for pure mental harm to “a parent, spouse, domestic partner or child” of the injured person and is therefore more restrictive than NSW and Victoria by excluding brothers and sisters.
There may also be more expansive (or more restrictive) provisions in motor accident legislation in other jurisdictions regarding costs of treatment or care. However, the NSW legislature has adopted a particular position in the MAI Act and a different, more expansive interpretation is not available by reason of the position of other jurisdictions.
Whilst the claimant has not identified any specific legislation of another jurisdiction or a judicially accepted interpretation of similar legislation in another jurisdiction, if the NSW legislature had intended s 3.24 or s 3.25 to be more expansive, as contended by the claimant, the legislation presumably would have adopted different language and indeed, the same language of the other jurisdiction to which the claimant is referring.

Loss of capacity to provide services to others – s 3.26

The claimant contends the claim for lost wages of the mother should be treated in a similar way to a claim for loss of capacity to provide services to others.
Section 3.26 provides:
“3.26 Statutory benefits for loss of capacity to provide gratuitous domestic services
(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.

(2) If a dependant of the claimant received (or will receive) assisted care during a 6-month period for periods that were (or will be) short-term and occasional and for no more than 4 weeks in total during that 6-month period--
(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least 6 hours, the week should be disregarded if the assisted care was (or will be) provided during that week, and
(b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a 6-month period, any periods during which the assisted care was (or will be) provided in that 6-month period should be disregarded.
(3) The claimant (or the legal personal representative of a deceased claimant) is not entitled to statutory benefits under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.
(4) The provision of domestic services to an injured person's dependants as provided by this section constitutes the provision of treatment and care for the injured person for the purposes of this Division.
(5) In this section--
‘assisted care’, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)--
(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),
(b) if the dependant is a minor (but without limiting paragraph (a))--any care that is provided to the dependant by a person other than the claimant where--
(i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of
‘dependants’ in this section, adoption or otherwise), and
(ii) the care includes the provision of accommodation to the dependant.
‘dependants’ means--
(a) such of the following persons as are wholly or partly dependent on the claimant at the time of the motor accident--
(i) a person to whom the claimant is legally married (including a husband or wife of the claimant),
(ii) a de facto partner of the claimant,
(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),
(iv) any other person who is a member of the claimant's household, and
(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time of the motor accident and who is born after that time.
‘gratuitous domestic services’ means services of a domestic nature for which the person providing the service has not been paid and is not entitled to be paid.”

It is important to recognise this claim is under a statutory benefits scheme with legislation that restricts both the type and amount of statutory benefits payable. This means that if a loss is not provisioned for in the MAI Act, no statutory benefits are payable for that loss. Principles of statutory interpretation do not permit a claim that is otherwise not permitted by the legislation to be treated “similarly” to a claim that is permitted by the legislation so as to enable payment of statutory benefits.
Even if the claim for wage loss could somehow be massaged so as to fall for consideration under s 3.26 the statutory criteria in that section must be met. The criteria in s 3.26, however, is not met as follows:
(a) firstly, this is not a situation where the claimant has employed someone to provide domestic services to the claimant’s dependents that is, to someone other than the claimant. The claim by the mother relates to services the mother has provided to the claimant, not to others;
(b) secondly, there is no evidence of any expenses incurred by the claimant in connection with the services provided by the mother. For the same reasons outlined above, the wages foregone by the mother are not an “expense” incurred by the claimant (they are a loss suffered by the mother);
(c) thirdly, there is no evidence that any of the criteria in s 3.26(1)(a) to (d) has been met so as to permit payment of statutory benefits under s 3.26, and
(d) fourthly, regardless of whether the criteria in s 3.26(1)(a) to (d) has been met, statutory benefits are not payable if the services provided after the motor accident are provided gratuitously as is the present case.
There is nothing in the legislation or the Guidelines that would permit s 3.26 to be arbitrarily widened in the way contended by the claimant so as to require payment of statutory benefits for lost wages of the mother where the criteria in s 3.26(1) is not met and the section contains a blanket exclusion for services provided gratuitously (s 3.25 is also a blanket exclusion for expenses relating to gratuitous services).
As with s 3.25, I do not consider there to be any ambiguity in s 3.26 such that any wider interpretation is available to accommodate this claim. Sections 3.25 and 3.26 contain blanket exclusions such that there is no entitlement to statutory benefits for any expenses incurred in connection with attendant care services that are provided gratuitously.

CONCLUSION

The applicant contends for a “non-traditional” application of the MAI Act so as to permit payment of statutory benefits for the mother’s lost wages. However, as observed by the insurer, pursuant to Harrison As J in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481 (Shahmiri) [at 70] “...one cannot construe an [A]ct to accommodate a particular circumstance, no matter how unfair that circumstance may be".
Whilst I consider the services provided by the claimant’s mother are attendant care services, statutory benefits are not payable in respect of the loss of wages suffered in connection with providing those services because:
(a) the wage loss is neither a cost of treatment and care incurred by the claimant or a travel or accommodation expense of the claimant or her mother;
(b) regardless, the loss was incurred in connection with provision of gratuitous attendant care services and under s 3.25 statutory benefits are not payable for expenses incurred in connection with gratuitous attendant care services, and
(c) the criteria in s 3.26 is not met and regardless, the loss claimed was incurred in connection with provision of gratuitous attendant care services and is therefore also excluded under s 3.26.
Accordingly, the insurer is not liable to pay statutory benefits in respect of the mother’s lost wages.
For these reasons, the reviewable decision is affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;

· Motor Accident Guidelines, and
· the Regulation.

[2025] NSWPICMR 15

8 May 2025