Elkhoury v QBE Insurance (Australia) Limited
[2025] NSWPICMR 30
•2 October 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Elkhoury v QBE Insurance (Australia) Limited [2025] NSWPICMR 30 |
| CLAIMANT: | Victor Elkhoury |
| INSURER: | QBE Insurance (Australia) Limited |
| MERIT REVIEWER: | Belinda Cassidy |
| DATE OF DECISION: | 2 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about treatment; $400 taxi fare; referred to Merit Reviewer to clarify whether dispute involved medical issue about whether transport services needed and reasonable and necessary or whether dispute about reasonable cost of treatment; preliminary conference held with legal representatives and further information provided; Held – no dispute about transport to and from shopping centre but taxi driver’s involvement in 3.5 hours of “assistance” while claimant at shopping centre disputed; dispute involves medical issue; medical dispute referred for assessment at same time as another medical dispute. |
STATEMENT OF REASONS
BACKGROUND
Mr Elkhoury was involved in an accident on 12 May 2024. There was an apparent high-speed collision between two other cars and one of them rolled on top of the claimant’s vehicle. The claimant was trapped in his vehicle and sustained injuries including a fractured right leg.
Mr Elkhoury made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE Insurance (Australia) Limited (QBE), and QBE has accepted the claim and has paid Mr Elkhoury his statutory benefits.
A dispute arose between Mr Elkhoury and QBE about certain treatment and care benefits. Mr Elkhoury lodged an application with the Personal Injury Commission (Commission) seeking a medical assessment of whether the following treatments were related to the injuries sustained in the accident and were reasonable and necessary in the circumstances:
(a) a motorised mobility scooter, not yet purchased, and
(b) the reimbursement of travel expenses in the sum of $900 already incurred.
The submissions lodged by the parties suggested that the sum of $900 was claimed for two journeys:
(a) on 3 May 2025 the sum of $400 to transport the claimant from home to a shopping centre (including waiting time) to address an issue concerning his broadband, to attend Service NSW and to visit other shops, and
(b) on 4 May 2025 the sum of $500 to bring his mother from her home in Wetherill Park to his home (and return) to assist with house cleaning.
The insurer agreed to reimburse the 4 May 2025 expense “in good faith” but declined to pay the 3 May 2025 expense on the basis it was not reasonable and necessary and not related to the accident.
The matter was referred to me because it was not clear to the Commission what was in dispute and whether there was a medical dispute about the need for the transport services or a merit review matter about the issue of the cost of those services.
STATUTORY FRAMEWORK
Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
Section 3.24(1), which is in Division 3.3 establishes the entitlement to these benefits as follows:
“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 …,
(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 …”
There are a number of limits and restrictions to what can be claimed by way of treatment and care benefits starting with s 3.24(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.”
Schedule 2 of the MAI Act recognises 47 different dispute types and declares some to be Merit Review matters, others to be medical assessment matters and others to be Miscellaneous Claims Assessment matters. Relevantly to the subject matter of the current proceedings:
(a) clause 1(i) declares the following to be a merit review matter – “whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1)”, and
(a) clause 2(b) declares the following to be a medical assessment matter - “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24.”
PRELIMINARY CONFERENCE DISCUSSIONS
Due to the amount in dispute ($400), the costs available in a medical assessment matter (currently a little over $2,000) and that no costs are available to either party in a merit review matter, the parties were advised at the preliminary conference that the aim was to resolve the dispute proportionately and quickly.
After discussions, Ms Bullus agreed that the claimant required transport assistance to get to and from treatment and social outings at the time the disputed expense was incurred. The parties agreed that the dispute about the $400 taxi fare was not therefore a medical dispute and did not need to be referred for medical assessment. It was further agreed that the dispute was about whether the cost of the transport assistance (the single $400 taxi expense) was reasonable and that is a Merit Review matter which would be determined as a Merit Review matter in accordance with Schedule 2(1)(i).
Ms Bullus raised issues about the “reasonableness” of the $400 expense indicating relevant matters would include where the claimant had travelled to, the distance travelled, and the waiting time involved (and why two separate trips could not have been arranged). A “google search” performed during the course of the discussions with the parties suggested that the taxi fare from the claimant’s home at the time to Mt Druitt shopping centre was only 2 km and would cost in the order of $10.
Due to the sum involved, no formal preliminary conference report was issued and a statutory declaration or statement from the claimant was not requested. The claimant’s solicitor was directed to obtain instructions from her client and to advise the insurer and the Commission by way of a message in the portal about what those instructions were. The insurer was given an opportunity to respond, and a date was set for the delivery of reasons.
On 29 September 2025 the claimant uploaded a message to the portal advising:
(a) on 3 May 2025 at 9.00am the claimant was collected from his home and taken to Ms Druitt shopping centre;
(b) he was there for 3.5 hours and was taken home at about 1.00pm;
(c) the sum of $400 comprised the fee charged for the transport to and from the shopping centre and the assistance provided by the taxi driver while the claimant was at the shopping centre;
(d) the claimant was mobilising using a wheelchair and the taxi driver accompanied the claimant and wheeled him to different shops and offices for the duration of the 3.5 hour visit, and
(e) due to the state of his injuries, the claimant could not make this trip on his own and required the assistance that he paid for.
The insurer responded on 29 September 2025 advising that there appeared now to be a medical dispute because what was previously identified as the taxi driver’s “waiting time” was now active assistance from that taxi driver. The insurer disputed that “any form of accompaniment or assistance with ambulation is reasonable and necessary” because the claimant’s treatment providers were at that time “actively promoting his independence with travel and mobility”. The insurer also took issue with the taxi driver performing the service as he was not an “appropriately qualified provider.”
A message was sent to the parties which advised them that there did not appear to be a medical dispute about the transport services provided by the taxi driver in travelling to and from the shopping centre, but there is now a medical dispute about the need for the claimant to be accompanied and "wheeled" around the shopping centre for 3.5 hours by the taxi driver. I noted that the medical examination with the Medical Assessor (about the motorized wheelchair) was scheduled for early December. In the light of the information provided by the claimant, I proposed referring to the Medical Assessor the dispute about whether the claimant required attendant care services for the visit to the shopping centre.
Both parties uploaded messages to the portal advising they agreed with this course of action.
CONCLUSION
The transport services dispute referred to the Commission should be referred for medical assessment and included in the current referral for assessment.
The dispute referred for assessment is:
“Whether the attendant care services provided to the claimant by a transport service provider (while he was at the Mount Druitt shopping centre for 3.5 hours on 3 May 2025) is related to the injuries caused by the accident and is reasonable and necessary in the circumstances.”
The dispute referred for medical assessment is not about the claimant’s travel to and from the Mt Druitt shopping centre on 3 May 2025 and is also not about the skills and qualifications of the transport service provider.
Subject to the Medical Assessor’s determination, there may remain a dispute about the cost of the attendant care services provided by the unidentified taxi driver and the taxi driver’s skills and qualifications may be relevant to the reasonableness of the cost issue. There may also be a dispute about the reasonable cost of the mobility scooter if that was allowed. These can be the subject of an application for Merit Review at the conclusion of the medical assessment process.
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