Delaney v AAMI Insurance Ltd

[2007] QSC 174

SUPREME COURT OF QUEENSLAND

CITATION:

Delaney v AAMI Insurance Ltd [2007] QSC 174

PARTIES:

DAVID MASSINGHAM as Litigation Guardian for SUSAN DELANEY
(applicant)
v
AAMI INSURANCE LIMITED ACN 92 004 791 744
(respondent)

FILE NO:

BS4395 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

17 July 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

26 June 2007

JUDGE:

Wilson J

ORDER:

1. Declare that in the circumstances of this case it would be reasonable and appropriate to make the following rehabilitation services available to the applicant –

(a)     consultant neurologist: Dr Alison Reid or Dr Michael Walsh

(b)     physiotherapist: Ms Jennie McCorkell

(c)     speech pathologist: Ms Vicki Byatt

(d)     occupational therapist: Ms Beth Dermer

(e)     dietician: Ms Aloysa Houran

(f)     case manager: a person nominated by CRS Australia other than Ms Karen Pery-Johnston

2. Order that the respondent pay the applicant’s costs of and incidental to the application on the standard basis, fixed at $8,000.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – the applicant was seriously injured in a motor vehicle accident – the compulsory third party insurer of the motorcycle on which she had been a passenger agreed to fund reasonable and appropriate rehabilitation but refused to admit liability – the solicitors for the applicant and respondent could not agree on the professionals to provide rehabilitation services – whether the applicant has the right to choose service providers – which service providers should be appointed by the Court

Motor Accident Insurance Act1994 (Qld) s 51, 65
Motor Accident Insurance Regulation 2004 (Qld) sch 5

Re Walker (1995) 22 MVR 245, cited

COUNSEL:

M Grant-Taylor SC and G J Cross for the applicant

R B Dickson for the respondent

SOLICITORS:

Colin Patino & Company for the applicant
Jensen McConaghy for the respondent

1. Wilson J:  The applicant sustained serious brain injury and other injuries when the motorcycle on which she was a pillion passenger was involved in an accident on 16 June 2006. She has been in a persistent vegetative state ever since. The motorcycle driver was killed in the accident.

The application

1. On 14 July 2006 a motor accident claim document was lodged on her behalf with the respondent, which was the compulsory third party insurer of the motorcycle. On 20 July 2006 the respondent wrote that it would “fund the cost of reasonable and appropriate rehabilitation”.[1]  It has refused to admit liability in full or in part.

   [1]Motor Accident Insurance Act1994 (Qld) (MAI Act) s 51(1).

1. The respondent and those acting on behalf of the applicant agree that the applicant requires rehabilitation services provided by a neurologist, a dietician, an occupational therapist, a physiotherapist and a speech pathologist – but they do not agree upon the identities of the service providers or upon who should be the case manager.

1. The applicant’s solicitors twice suggested mediation to help resolve issues between the parties[2] (on 5 February 2007 and on 22 March 2007). On…