Chowdhury v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chowdhury v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 167
CLAIMANT:	Liton Chowdhury
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Belinda Cassidy
DATE OF DECISION:	11 April 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; whether pet care services for the claimant’s three cats are “treatment and care” within the meaning of the definition in section 1.4; whether they are payable as a statutory benefit under section 3.24(1); claimant seriously injured and non-weight bearing for six weeks with fractured ankle and wrist; claimant lived in apartment with three cats; two occupational therapists and an exercise physiologist advised pet care was needed; insurer declined to pay for it; Geaghen v D’Aubert, and Teuma & Anor v CP and JK Judd Pty Limited distinguished; Held – pet care services are domestic services and therefore a form of attendant care service and as a result a type of treatment and care; subject to the limits and restrictions of Division 3.3 a statutory benefit payable by the insurer; costs allowed at the maximum of 16 monetary units.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 and Schedule 2(3)(n) of the Motor Accident Injuries Act 2017 (the Act), the Commission’s assessment is: 1. The provision of pet care services to Mr Chowdhury, is a form of “treatment and care” as defined in s 1.4 of the Act. 2. The claimant’s costs of this miscellaneous claims assessment matter are assessed at $2,191.20. 3. The proceedings are returned to the Commission for medical assessment in accordance with Division 7.5 and Schedule 2(2)(b) of the Act. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Liton Chowdhury was involved in a motor accident on 11 November 2024. Mr Chowdhury was riding his motorcycle when a vehicle came out from a side street and collided with him. He sustained a fracture of his right ankle and a left wrist injury.
On or about 13 November 2024, Mr Chowdhury made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against NRMA the third-party insurer of the motor vehicle Chowdhury believes caused the accident.
On 20 November 2024 NRMA issued a liability notice to the claimant accepting the claim. NRMA, as the relevant insurer within the meaning of s 3.2 of the MAI Act has, as a result of that acceptance, a liability to pay the claimant’s statutory benefits including treatment and care expenses pursuant to s 3.24 of the Act.
A dispute arose between the claimant and the insurer about certain treatment, namely care for the claimant’s three cats (pet care services) and care for plants kept in pots on the claimant’s balcony (plant care services). A request for these services was made by the claimant through a rehabilitation adviser and the insurer refused to pay for the services. This decision was communicated to the claimant in a letter dated 24 December 2024.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 10 January 2025, in its internal review, the insurer affirmed its original decision in respect of the pet care services but allowed the plant care services.
The claimant has referred the dispute about the pet care services to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings were allocated to me for assessment, and I held a preliminary conference with the parties on 7 April 2025. The parties advised they had no more evidence and no further submissions to make. As there was sufficient information and the issue in dispute was within a narrow scope, it was decided that the proceedings could be determined without holding a formal hearing.[1]

LEGISLATIVE FRAMEWORK

[1] See s 52(3) of the Personal Injury Commission Act 2020.

The entitlement to treatment and care benefits

The MAI Act establishes a scheme for the payment of statutory benefits under Part 3, and the awarding of damages under Part 4, to persons injured in motor accidents in New South Wales.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
In terms of treatment and care benefits, s 3.24(1) of the MAI Act provides that an injured person is entitled to “the reasonable cost of treatment and care” and certain travel and accommodation expenses “incurred in connection with providing treatment and care for the injured person.”
The phrase “treatment and care” is defined in s 1.4 as follows:
‘‘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.”
Attendant care services are also defined in s 1.4 and are:
“services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.

Limits to treatment and care benefits

Not everyone injured in a motor accident gets all the treatment and care they want, for ever. There are a number of limits and restrictions to what can be claimed as a statutory benefit, starting with the definition of treatment and care in s 1.4 of the MAI Act. The list of 11 things in the definition is a finite list. If a product, service or thing is not listed or does not come within one of the types of treatment and care in the list, statutory benefits are not payable for it.
Other limits and restrictions include:
(a) s 3.24(2) provides that no statutory benefits are payable if the treatment and care is not reasonable and necessary in the circumstances or did not relate to the injuries caused by the accident;
(b)    s 3.25 provides that no statutory benefits are to be paid for gratuitous care;
(c)    s 3.27 requires treatment and care expenses to be verified and there are provisions in the Motor Accident Guidelines about this, and
(d)    s 3.28 provides for the cessation of statutory benefits after 52 weeks for a person with threshold injuries or if they were wholly or mostly at fault.

Resolution of disputes about treatment and care

In a statutory benefits claim, disputes can be resolved by Merit Reviewers, Medical Assessors and Members of the Commission. Schedule 2 to the MAI Act declares certain types of matters to be merit review matters, others to be medical assessment matters and other to be claims assessment matters. In disputes about treatment:
(a) Schedule 2(1)(i) permits a merit reviewer to determine disputes about whether the cost of treatment and care is reasonable, and
(b) Schedule 2(2)(b) allows a medical assessor to determine whether any treatment and care claimed, “is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.”
The dispute between Mr Chowdhury and NRMA is not a dispute about the cost of pet care services provided or to be provided.
While Mr Chowdhury referred the dispute to the Commission as a medical assessment matter there does not seem to be a dispute about Mr Chowdhury’s medical ability or fitness to look after his cats. When he was in hospital he could not care for the cats and when he was discharged from hospital and returned home he was non-weight bearing and had lifting restrictions due to his fractured wrist.
What is in dispute is whether the pet care services are a form of “treatment and care” and therefore payable as a statutory benefit. Schedule 2(3)(n) provides a Member of the Commission with power to determine “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”. As the dispute between the parties is whether NRMA has a liability to pay for the cost of pet care services, this would appear to be a matter than I can determine as a member of the Commission.

SUBMISSIONS AND INSURER’S DECISION MAKING

Insurer’s decisions

On 20 November 2024 the insurer advised the claimant that liability for the claim was accepted for the first 52 weeks after the accident.
On 24 December 2024 NRMA wrote to the claimant partially approving some of the treatment requested and recommended, but denying other services. In terms of the plant and pet care services the insurer said:
“Request for cat and plant care is denied because the requested services are not reasonable and necessary. This is because this is not treatment or care of the injured person.”
In the internal review the insurer noted the definition of “attendant care services” and that it included domestic services provided to the injured person and said:
“Based on the above definitions, it is considered that while the provision of domestic services to or on behalf of an injured person are payable, there is no provision for statutory benefits for the caring for pets as it does not fall within the definition of treatment and care as defined in the legislation.”
The insurer agreed however that watering and caring for the multiple pot plants on the claimant’s balcony was treatment and care as a form of domestic services and agreed to pay for it.

Claimant’s submissions[2]

[2] The numbers in square brackets are a reference to the paragraph number in the submissions.

The claimant notes at [8] that he sustained injuries to his right leg and left arm and it was recommended he have care which the insurer has denied. The claimant then submits it was the claimant’s general practitioner (GP) and treatment providers that recommended the treatment and that the insurer is in breach of s 1.3(2)(a) and (g) two of the objects of the Act.[3]
[3] While there is evidence from an occupational therapist and exercise physiologist retained by the claimant’s lawyers to provide reports, there is no evidence from a treating GP or other provider.
The claimant relies at [10] on a report from Ms Khan dated 9 January 2025 who summarises the claimant’s injuries, lists his impairments, restrictions and disabilities and says he “faced ongoing challenges in caring for his three cats such as feeding and carrying them.”
The claimant cites at [11] the decision in Teuma & Anor v CP and JK Judd Pty Limited.[4]
[4] [2007] NSWCA 166 (Teuma).
The claimant says at [12] that s 1.4 of the MAI Act provides a definition of treatment and care which includes attendant care, and the claimant cites the definition of attendant care.
The claimant says at [13] that reaching the floor to empty the litter tray and fill water and food bowls for his three cats is a form of home maintenance and domestic services and comes within the definition. As the claimant was the person who used to do this and now cannot do it, it is reasonable and necessary that someone do it for him.
The claimant submits at [14] that the insurer has not considered his “individual circumstances, symptoms and treatment history.”

Insurer’s submissions

After setting out the legislation including s 1.4 at [1] – [5] and providing background and a history of the decision-making in the matter at [6] – [13], the insurer submits:
(a) the pet care service requested “is not considered a treatment and care request” [14];
(b) the insurer’s activity of daily living report noted the claimant was responsible for the care of three cats including “emptying the litter tray once per week and fill it with food and water” [15], and
(c) the insurer relies on the internal reviewer’s reasons [16].

EVIDENCE

The insurer has provided evidence about the general nature of the claimant’s injuries (including the ambulance report, hospital notes and radiological reports). Most of these are not necessary to include in this evidence review as issue of whether pet care services are a form of treatment and care is a statutory interpretation issue.
The certificate of fitness completed by Dr Ewing is dated 13 November 2024[5] and diagnoses the right ankle fracture and left wrist fracture. The injury management plan indicated a prolonged period of non-weight bearing would be required (six weeks).
[5] Page 87 of the claimant’s bundle.
Ms Parsons, director of nursing wrote to the insurer[6] concerning the claimant’s stay at Eastern Suburbs Private Hospital. It was suggested the claimant would be there for five weeks and approval was sought for the admission and an estimate of the cost was provided.
[6] Page 199 of the insurer’s bundle.
On 27 November 2024 the claimant was assessed by Ms O’Donoghue, Occupational Therapist of Rehab Management Pty Limited for an “initial needs assessment – return to work and activities of daily living”. This report was obtained by the insurer as part of its management of the claim. It was noted the claimant worked two jobs at the time of the accident, at a café and at a supermarket.
In terms of his home life, it was noted Mr Chowdhury lived in an apartment with a flat mate, but they are not close. It was also noted “Mr Chowdhury has three cats, and he is solely responsible for their care including feeding and managing the litter box.” The Occupational Therapist noted in her report that:
“Mr Chowdhury reported that he has x3 pet cats whom he is responsible for their care. Mr Chowdhury advised that they require their litter box to be changed regularly. Mr Chowdhury is unable to change his cats’ litter box at present as he is unable to lift, carry, reach, bend or squat while using bilateral mobility aids.”
Ms O’Donoghue recommended that as part of the cleaning assistance (mopping, dusting and so on) Mr Chowdhury required that:
“Rehab Management recommend weekly domestic assistance for x 6 weeks to include pet litter box changing to allow Mr Chowdhury to maintain his pet care while he focuses on recovery and to reduce the risk of further injury.”
On 3 December 2024, the claimant was discharged from St Vincents Hospital to Eastern Suburbs Private Hospital for rehabilitation.
At the request of his own solicitors, the clamant was assessed by Ms Lum, rehabilitation consultant and occupational therapist of AusRehab on 14 December 2024. She submitted a report dated 14 December 2024[7] which the claimant relies on in these proceedings. At that stage the claimant was still at a rehabilitation hospital, but he was given permission for short term leave and attended his home with Ms Lun as part of the assessment process.
[7] Page 12 of the claimant’s bundle.
The claimant reported attending physiotherapy at the rehabilitation hospital and that he would be continuing physiotherapy as an outpatient after discharge. It was noted he could not squat or bend down to floor level.
The claimant was said to live in a fourth-floor unit with lift access. He had a flat mate with whom he was not close and who travelled overseas a lot. While he had other friends, he could not rely on them.
There was no front or back “yard” but “a whole balcony full of pots.”
Various recommendations were made after this visit including the purchase of a long handled reacher, an electric wheelchair and a recliner chair. Services recommended included cleaning, laundry, shopping and cooking services.
Access to the balcony was noted to be through a narrow path and plant care was recommended due to access issues and restrictions with carrying. It was also noted:
“Mr Chowdhury keeps 3 cats and he is responsible for emptying their litter once per week and filing their food and water bowls. Mr Chowdhury will have difficulties to reach to the floor to empty the litter tray and fill the water and food bowls due to his limited mobility. Assistance to be provided for 8-10 weeks until his mobility and regain capacity for reaching to floor level.”
A further assessment was undertaken by Ms Khan, exercise physiologist of AusRehab. She conducted her assessment on 16 December 2024, two days after Ms Lun’s assessment. Ms Khan’s report is dated 9 January 2025. It too is entitled “initial rehabilitation needs assessment report.” The claimant was still an inpatient at the private rehabilitation hospital at the time of her assessment.
Ms Khan noted the claimant’s living arrangements and remarked:
“He expressed particular concerns regarding his ability to manage household responsibilities, such as cooking meals, cleaning his living space, and maintaining his garden. Additionally, he mentioned that he would face ongoing challenges after leaving the hospital in caring for his three cats, which he previously managed without difficulty.”
Ms Khan records:
“Mr Chowdhury advised he had 3 cats. He mentioned that he faced ongoing challenges in caring for his three cats such as feeding and carrying them, which he previously managed without difficulty.”
Ms Khan said she would organise a case conference with the claimant’s GP and Dr Lee on 3 February 2025. She also recommended that AusRehab provide an initial rehabilitation plan to NRMA after the case conference if required otherwise a return-to-work plan would be developed and the file would be closed. Ms Khan further advised that AusRehab would also liaise with the treating physiotherapist and “get regular updates” and recommended “a period of medical management” to liaise with the claimant’s treatment practitioners.
Mr Chowdhury was discharged from Eastern Suburbs Private Hospital on 19 December 2024. He was discharged mobilising with a knee scooter and crutches for indoor mobility. The Eastern Suburbs discharge summary[8] advises or recommends:
(a)    the claimant had fallen once on the ward with no additional injury;
(b)    the claimant needs someone to help him shower;
(c)    ongoing assistance with activities of daily living including housework, cleaning, meal prep, community access, watering his plants and caring for his cats and the hospital recommended services on discharge;
(d)    the rehabilitation consultant completed an access visit and would assist the claimant with obtaining home modifications and adaptive equipment, and
(e)    he needs ongoing physiotherapy.

CONSIDERATION OF THE ISSUES

[8] Page 63 of the insurer’s bundle.

Are pet care services domestic services?

At [13] of the claimant’s submissions, it was asserted that feeding, changing the litter tray and filling the cats’ water bowl was a form of “home maintenance”. No additional reasons were provided. I am not satisfied that pet care services are a form of home maintenance. The ordinary meaning of those words suggests repairs or maintenance of an injured person’s house or apartment and would cover things like spot painting, changing light bulbs, minor repairs and so on.[9]
[9] See Lau v QBE Insurance (Australia Limited) [2024] NSWPIC 724 where home repairs and maintenance were discussed at [75]-[85].
The claimant also asserts at [13] that pet care services are “domestic services” and therefore attendant care services which is a form of treatment and care. The insurer says in its submissions they are not, but gives little by way of explanation or otherwise engage with the case law and the claimant’s arguments. In its internal review decision, the insurer says that the services claimed are not domestic services and are not treatment and care but again gives no explanation or reasons why this is so.
The term “domestic services” is not defined in s 1.4, but the term “gratuitous domestic services” is defined in s 3.26(5) as services of a domestic nature where the person providing the services “has not been paid and is not entitled to be paid”. While this definition only applies to s 3.26 it provides some guidance and suggests that the words “domestic services” as an example in the definition of attendant care services are services of a domestic nature.[10]
[10] See the case of Saedi v Allianz Australia Insurance Limited [2025] NSWPIC 71where the meaning of “domestic services” was discussed at [76]-[90].

I have not been taken to any cases determined by a Member of the Commission under the MAI Act where it has been found that pet care services are or are not a form of treatment and care within the definition in s 1.4.[11]
[11] Meneses v Lifetime Care and Support Authority of NSW [2024] NSWPIC 428 and Irani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 440 dealt with the issue of whether therapy dogs were “treatment and care” within the definition.
The claimant referred in his submissions to the Court of Appeal decision of Teuma which in turn cited the earlier case of Geaghan v D’Aubert,[12] Stein JA, with whom Handley JA and Foster AJA agreed, discussed in Geaghan whether damages could be awarded for the claim for the “care of the animals.” In his conclusion at [66], his Honour said:
“Whichever way it is put, on a ‘needs’ basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.”
[12] (2002) 36 MVR 542 (Geaghan).
In the Teuma case, the claimant had been injured in a motor accident in November 2007 and sustained injuries including fractured ribs, sternum and spine. At the time of the accident, Mrs Teuma was responsible for all of the domestic duties including the care of the family’s “dogs, cats and birds.” Because there had been no evidence presented that the claimant had an accident-caused need for the services, the care was not allowed with Ipp JA saying at [49]:
“The mere fact that, by reason of her injuries, Mr Judd provides care for pets that, prior to her injuries, she provided, does not establish that she is in need of those services. The concept of ‘need’ involves more than a mere desire. Compensation for need does not encompass compensation for services that are not reasonably necessary for the plaintiff’s well-being.”
Basten JA in Teuma agreed with Ipp JA and said this about the Geagan case at [98]:
“There are suggestions in the reasoning which would conflate the keeping of pets with a ‘hobby’ in all cases. If it were necessary for the resolution of a case, I would respectfully doubt whether the ratio of Geaghan goes so far. It may be that a hobby should be understood as something involving an activity or occupation, so that if the injured plaintiff can no longer engage in the hobby, it falls into the category of activities which are no longer open and should thus be compensated as part of the diminution of the enjoyment of life, by way of general damages. Pets, by way of contrast, provide various benefits within the home and garden. If a person who is quadriplegic obtains enjoyment from listening to a canary, rather than the radio, there is no reason in principle why assistance which might extend to switching a radio on and off and changing channels, should not include feeding the canary. There is no principle which requires that a person rendered impotent by a tortious injury can only receive compensation for the bare necessities of life. The reason why the caselaw may not include reference to caring for pets is probably because it had not previously been thought necessary to require a plaintiff to distinguish between general house cleaning and cleaning up after a pet, or any similar or related distinction. Caring for pets, like caring for furniture, is an inherent part of the concept of domestic assistance, provided to a plaintiff, and does not form some impermissible extension of the kind which occurred in Sullivan v Gordon, overturned in CSR Ltd v Eddy. However, no final view is required, because, as Ipp JA has explained, no need, caused by the accident, for assistance with pets was established on the evidence” (emphasis added).
Both of the above-mentioned cases concerned the award of lump sum damages in claims made under previous motor accident compensation schemes. Mr Chowdhury’s claim is not one for damages but a claim for statutory benefits and care must be taken in attempting to apply legal principles relevant to damages to a scheme of defined and prescribed benefits.
While not part of the ratio of the Teuma case, the underlined words of Justice Basten are helpful and suggest that pet care services are a form of domestic assistance which may be compensable if the need arises after a motor accident.

Are pet care services compensable as a statutory benefit?

The definition of treatment and care lists 11 things that are treatment. “Attendant care services” is one of those things. Attendant care services are defined as follows:
“… services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
The definition uses the words “services that aim to provide assistance to people with everyday tasks.” Feeding a cat is an everyday task as is providing water to the cat. Emptying the litter box may not be done every day of the week but is an ordinary everyday type of task that is part and parcel of caring for a cat.
The definition then adds the words “and includes (for example) …”. Pet care is not specifically mentioned as one of the examples, but it does not need to be because attendant care services can include things other than the four stated “examples” of personal assistance, nursing, home maintenance and domestic services.
Considering the meaning of the term domestic services (services of a domestic nature) and the highlighted words of Justice Basten in Teuma, in my view, care for pets is domestic assistance that is a domestic services within the definition of attendant care services. Mr Chowdhury had three cats at the time of the accident. They were a part of his domestic arrangements. They were part of his household. Services to care for Mr Chowdhury’s pets are, therefore treatment and care within the definition of s 1.4.
While the providers of the pet care service are caring for the claimant’s cat and not the claimant himself, the care is a form of domestic service provided to the claimant just as shopping, cleaning, cooking and laundry is a service provided to the claimant.
The insurer stated in its internal review decision that “there is no provision for statutory benefits for the caring for pets as it does not fall within the definition of treatment and care.” It is true that there is no specific mention of pet care services in either the definition of treatment and care or the definition of attendant care services. Section 1.4 of the MAI Act provides that the Motor Accident Regulation (the Regulation) can prescribe “such other kinds of treatment, care, support or services” for the purposes of the definition of treatment and care. The Regulation can also exclude types of treatment, care, support or services from the definition. If the Parliament had meant to exclude pet care services, then Parliament could have said so in the definition of attendant care services by adding the words “but not including pet care services” or it could have listed pet care services in the Regulation as a service not allowed as a form of “treatment and care”.

Costs of the proceedings

In terms of the costs of the proceedings, the claimant sought costs at the maximum amount permitted by the Regulation as well as disbursements.
As the claimant has been successful, it is appropriate that I should consider his costs as part of the current proceedings pursuant to s 7.42 and s 7.37 of the MAI Act.
On 7 April 2025 a request was made for any additional or final submissions about costs, but no further submissions were received from either party.
Schedule 1, Part 1, Cl (3)(gi) declares the current dispute to be a regulated Miscellaneous Claims Assessment matter which attracts the maximum of 16 monetary units. Noting the amount of work done on the initial application and submissions as well as the time taken to attend the preliminary conference, I am of the view the maximum amount is appropriate.
As the current value of a monetary unit is $124.53 is $1,992.48 which is rounded down[13] and to which GST may be added[14], the total sum payable for costs is $2,191.20.
[13] Schedule 3(3) of the Regulation.
[14] Clause 33 of the Regulation.

CONCLUSION

As I have found that providing food and water to Mr Chowdhury’s three cats and the emptying of their little box is a form of treatment and care, it follows that the insurer has a liability to pay the reasonable cost of providing that treatment and care.
If there remains a dispute between the parties as to whether the pet care services were reasonable and necessary in the circumstances or related to the injuries caused by the accident, the parties should confirm this with the Commission so that a medical assessment can be arranged. If there is no such medical dispute, then the claimant may wish to file a notice of discontinuance.
There is no evidence before me as to the cost that was incurred by Mr Chowdhury in providing the care for his cats. If there is a dispute about the cost of the pet care services, that is a merit review matter. In that regard I note that s 3.25 provides that no statutory benefits are payable for gratuitous attendant care services including domestic and therefore pet care services.

[2025] NSWPIC 167

11 April 2025