Fowler v Youi Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fowler v Youi Pty Limited [2025] NSWPIC 82
CLAIMANT:	Levi Leonard Fowler
INSURER:	Youi Pty Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	12 March 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about whether the purchase of a new car was a form of “treatment and care” within the definition of section 1.4 and whether the claimant could recover the cost as a statutory benefit under section 3.24(1)(a); further dispute about whether the purchase of the new car was a “reasonable and necessary travel expense” to obtain treatment under section 3.24(1)(b); definition of treatment and care includes “home and transport modification” and “rehabilitation”; claimant had a Pajero at the time of the accident which could be modified to accommodate the claimant’s need for hand controls but which could not be modified to accommodate the claimant’s need for independent wheelchair stowage; claimant asked the insurer to fund the purchase cost and the insurer refused; the claimant purchased the vehicle out of an advance paid in his damages claim; Held – the purchase of a new car was not “transport modification” but was in the circumstances of the case part of the claimant’s “rehabilitation; there was insufficient evidence to establish whether the purchase of the new car would also be a cost-effective way of providing “travel expenses” in order for the claimant to pursue his treatment; Alcan (NT) Alumina Pty Limited v Commission of Territory Revenue (NT), SZTAL v Minister for Immigration and Border Protection, and Project Blue Sky Inc v Australian Broadcasting Authority referred to in respect of statutory interpretation; Transport Accident Commission (Victoria) v Hoffman and Others referred to in respect of approach to the new scheme; Allianz Australia Insurance Limited v Abawi referred to in relation to the “competing” objects of the Act; Grain Growers v Chief Commission of State Revenue (NSW) referred to in relation to the phrase “in connection with”.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.6 of the Motor Accident Injuries Act 2017 The Personal Injury Commission’s assessment of the dispute referred under Schedule 2(3)(n) of the Motor Accident Injuries Act2017 (the MAI Act) is: 1. The claimant’s purchase of a new Kia motor vehicle comes within the definition of “rehabilitation” and is therefore a form of “treatment and care” for the purposes of s 3.24(1)(a) of the MAI Act. 2. There is insufficient evidence that the purchase of the new motor vehicle is a reasonable and necessary travel expense for the claimant to obtain treatment and care within the meaning of s 3.24(1)(b) of the MAI Act. 3. Under s 8.10(4)(b) of the MAI Act, the claimant is permitted to recover payment from the insurer, of his lawyers’ reasonable and necessary legal costs incurred in relation to the current dispute, beyond those provided for in the Motor Accident Injuries Regulation 2017. 4. Under s 8.3(4), the insurer’s legal practitioners are entitled to be paid costs for the legal services provided in relation to the current dispute beyond those provided for in the Motor Accident Injuries Regulation 2017. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Levi Fowler was injured in a motor accident on 11 December 2022. He sustained serious injuries including pelvic fractures, plexus damage and spinal fractures. He uses a wheelchair due to reduced use of his legs and this is expected to continue. He has a lifelong need for support, care and equipment.
Mr Fowler has made a statutory benefits claim against Youi, the third-party insurer of the vehicle he says caused his accident and his injuries. Youi has been paying Mr Fowler his statutory benefits. Mr Fowler applied for participation in the Lifetime Care and Support Scheme (LTCS Scheme) but was rejected by the Lifetime Care and Support Authority (LTCS Authority). Mr Fowler is a participant in the National Disability Insurance Scheme (NDIS) and appears to be in receipt of a package of benefits.
Mr Fowler says he owned a four-wheel drive Pajero vehicle at the time of his accident and that vehicle has been modified to accommodate his needs and he is able to drive the modified car. However, Mr Fowler says he needs assistance to stow his wheelchair in the Pajero and retrieve it when he gets to where he is going and that the Pajero is unsuitable for independent wheelchair stowage. Mr Fowler currently utilises the services of his wife and service providers to stow his wheelchair.
Mr Fowler asked the insurer to buy him a new vehicle, modified so that he can drive it, and further modified to include a wheelchair hoist which would enable him to manage his own travel and transportation needs independently, including his travel and transportation to medical appointments. With a hoist, Mr Fowler will not need to have his wife or anyone else to provide the wheelchair stowing and retrieval service. He would also not need to use ride share or taxi services.
Youi has refused to pay for the new car as part of Mr Fowler’s statutory benefits claim.
The claimant argued that the new car was part of his statutory benefits claim because:
(a) the new car was a form of “treatment and care” being “transport modification” as stated in the definition in s 1.4;
(b) the new car was a form of “treatment and care” being part of the claimant’s “rehabilitation” as defined in s 1.4, and
(c) the new car would be the reasonable travel expenses incurred by the claimant in order for him to obtain other forms of treatment and care.
Mr Fowler referred the dispute about the purchase of a new car to the Personal Injury Commission (the Commission).

STATUTORY FRAMEWORK

General background to statutory benefits for treatment and care

Mr Fowler’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits payable by the “relevant insurer”[1] 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.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Located in Division 3.4 of the MAI Act, s 3.24(1) establishes the entitlement for treatment and care expenses 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 for which statutory benefits are payable …”
Not all treatment and care expenses are allowed and there are limits and restrictions in the MAI Act starting with s 3.24(2) which provides:
“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.”
Section 3.24(3) provides that the Motor Accident Guidelines (the MA Guidelines) may prescribe when the cost of treatment is care is reasonable and when treatment and care itself is reasonable.
Section 3.27 requires expenses to be varied.
Section 3.28 provides for the cessation of statutory benefits if the injured person is wholly or mostly at fault or if the injuries are only threshold injuries. Neither of these factors are at play here. Mr Fowler was not at fault, and he has serious non-threshold injuries.
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.”
The term “rehabilitation of an injured person” is also defined in s 1.4 and means the process of enabling or attempting to enable the person to attain and maintain —
(a)    the maximum level of independent living, and
(b)    full physical, mental, social and vocational ability, and
(c)    full inclusion and participation in all aspects of life.
While the definition of treatment and care includes a provision for types of “treatment, care, support or services” to be included or excluded by regulation, there are no “treatment, care or support or services” currently referred to in the Motor Accident Injuries Regulation 2017 (the MAI Regulation).

Dispute resolution

Part 7 of the MAI Act provides for the resolution of disputes that arise in statutory benefits (and damages) claims.
Under Division 7.3, some decisions made by insurers must be internally reviewed before the dispute can be referred to the Commission for assessment or determination. Disputes about treatment can then be determined by Merit Reviewers (under Division 7.4), Medical Assessors (Division 7.5) and Members of the Commission (division 7.6).
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) cl 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);
(b) cl 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”, and
(c) cl 3(n) declares the following to be a miscellaneous claims assessment matter - “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.”

PROCEDURAL HISTORY AND INTERIM DECISIONS

What is the dispute about?

While the dispute between Mr Fowler and Youi was referred as a medical dispute, the matter was referred to me, as a General Member of the Commission to clarify with the parties what was in dispute and to determine the dispute, if it was not a medical assessment matter.
The submissions filed by the parties indicate there is a dispute in the current matter about whether a new car falls within the definition of “treatment and care” under s 3.24(1)(a) and whether the claimant can recover the cost of that new car as an expense in his statutory benefits claim. This does not appear to be a matter which can be determined by a merit reviewer or a medical assessor. They have no explicit or specific power provided to them under Schedule 2 of the MAI Act to determine whether something or some service is or is not “treatment and care” within the definition if there is a dispute about it.
There is also, identified within the submissions a dispute about whether the purchase of a new car to enable the claimant to travel independently to obtain treatment and care is reasonable and necessary travel and accommodation expenses under s 3.24(1)(b). That is also not a dispute listed in Schedule 2(1) or (2) and therefore also not a matter that a merit reviewer or medical assessor has power to determine.
At the first teleconference, I reported my preliminary view that Schedule 2(3)(n) provides a member 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 Youi’s liability to pay for the claimant’s new car as a treatment and care expense is in dispute, the dispute about whether a new car is “treatment and care” could be a miscellaneous claims assessment matter as the dispute is not otherwise specified in the schedule. So too, the dispute about whether the provision of a new care is a “reasonable and necessary” transport and accommodation expenses, as that dispute type is not listed in the Schedule.
The parties were asked to consider the issue and provide submissions if they did not agree with the view I had taken. Neither party took issue with the jurisdictional point. The matter is therefore proceeding on the basis that it is a miscellaneous claims assessment matter pursuant to Schedule 2(3)(n).

SUBMISSIONS FROM THE PARTIES

While the parties both filed submissions with the application and the reply[2], I do not propose to repeat them in these reasons. The submissions of Senior Counsel for both parties deal with all of the issues raised.
[2] The insurer’s submissions with the reply are dated 18 March 2024

Insurer’s submissions 24 September 2024

The insurer submits at [2] that the claimant is entitled to pursue a claim for the cost of his new vehicle in his damages claim pursuant to s 4.5(1)(b) but maintains the cost of a new car is not recoverable in his statutory benefits claim.
The insurer says at [3] that the definition of “treatment and care” and the structure of the MAI Act discloses a clear legislative intent to allow for the modification of an existing vehicle in the statutory benefits claim and the capital cost of the vehicle in the damages claim.
The insurer foreshadows at [5] that it is unlikely there will be a medical dispute but says at [6] a costs dispute may arise if the claimant seeks the full cost of a new vehicle.
The insurer then sets out the history of the common law noting at [8] a case where a catastrophically injured claimant who, before the accident, lived in a caravan was allowed to recover part of the capital cost of a suitable home to live in after the accident. The insurer distinguishes at [11] between economic and non-economic losses and says at [12] that “the recovery of capital costs of a home or vehicle to modify” has historically not been dealt with as a treatment or care expense.
The insurer submits at [14] after setting out the definition of treatment that item (j) in the list of things that are treatment is “home and transport modification”, but the phrase does not include the capital cost of home and transport.
The insurer notes at [18] that cl 9 of the MAI Regulation provides for the awarding of damages for any accommodation or travel that is not a treatment expense in the statutory damages claim.
The insurer says at [19] that it is not aware of any authority that capital costs of a motor vehicle should be allowed as a treatment expense. The insurer says there are workers compensation cases and boundaries for what can be claimed as treatment.
The insurer then says the definition of treatment and care should be interpreted as follows:
(a)    item (j) provides for transport modification not all transport costs [21];
(b)    the word modification limits the recoverable cost related to transport to “modification costs” and excludes capital costs and parliament’s intent is not to let them be allowed as a form of rehabilitation expenses [22];
(c)    the definition of rehabilitation also has limits [23];
(d)    each of the other 10 items listed in the definition are designed to maximise an injured person’s ability to participate in work and life “whether it be through the provision of a prosthesis, the prescription of pain killers, access to physiotherapy or by repairing chipped teeth” [24];
(e)    if the word “rehabilitation’ was expanded to include the purchase of a new car then each of the 10 items listed would not need to be so separately listed [25];
(f)    the fact that parliament included rehabilitation separately suggests it should be given a restricted interpretation so it does not “cover the same ground” as any of the other items [27], and
(g) Parliament turned its mind to home and transport to include modifications but excluded the costs of purchasing new vehicle or home the capital cost of which can be included in a damages claim [28].
The insurer also submits that s 4.5(1)(b) would have little or no work to do if all accommodation and travel expenses became part of the cost of treatment and care as a form of rehabilitation.
The insurer points to three practical reasons why the statutory benefits regime is “ill-equipped” to deal with the purchase of a new vehicle, as follows:
(a) before the accident the claimant used the Pajero to take his children to and from school, pick them up and take them to after school activities [33] and these would continue. The insurer should only have to be responsible for the additional expenses generated by the accident [34]. The statutory benefits scheme does not provide for the partial recovery of expenses which is another indication that the Parliament did not intend for insurers to be paying a claimant’s ordinary living expenses [37];
(b) the insurer says that s 3.24(1)(b) requires the insurer to meet travel expenses to obtain treatment and that this means his mileage costs [39] which includes, wear and tear and depreciation of the vehicle [40]. If Mr Fowler uses the vehicle to drive to treatment appointments, he is using his own vehicle and is entitled to the full mileage rate [41]. If he uses a car purchased by the insurer, then he would be doubly compensated [42]. The insurer notes there is only one mileage rate prescribed in the scheme not two [43], and
(c) if the capital cost of a car as a treatment expense is allowed it will not be a one off, as Mr Fowler will want to replace the car at some stage and there are difficulties calculating the cost. Does it form part of his estate if he dies? Can the insurer pay to lease a vehicle for Mr Fowler. These complexities are said to be avoided if they are included as part of a one-off damages claim [44].
The insurer submits at [45] that there are deficiencies in the evidence. The insurer submits at [45(a)] the claimant asserts he makes seven trips a week for treatment but there is no evidence about how long that treatment regime will last. The insurer also submits at [45(b)] that travel by taxi would cost $400 a week without any evidence and makes no reference to the Taxi Transport Subsidy Scheme.
The insurer submits at [47] that the claim by Mr Fowler that he will use the vehicle to travel to and from work, for recreation and to attend to his children is a pre-existing transport cost and not a rehabilitation cost.
The insurer suggests at [50] that if the claimant had not owned a motor vehicle before the accident and had walked or ridden a bicycle everywhere he may be entitled to the full costs of a vehicle but that would still be through the damages claim.
The insurer submits at [51] that if Mr Fowler had not purchased the Kia out of an advance on his damages, the insurer would still be required to pay for disabled taxis or other ways of getting him to appointments. The insurer says at [52] that as the claimant had bought a vehicle and is entitled to the cost of mileage but he should not be awarded the full capital cost as a treatment expense.
The insurer notes at [53] that ss 59 and 60 of the Workers Compensation Act 1987 (WC Act) permits the recovery of the capital cost of a motor vehicle but that at [54] this is a different scheme with different provisions and is not binding or even persuasive. After citing the cases, the insurer says that had Mr Fowler being injured at work “the costs of the motor vehicle may well be allowed as a treatment expense” [64].

The insurer distinguishes the motor accident scheme from the workers compensation scheme as follows:
(a) the definition of medical or related treatment in the WC Act includes “any nursing, medicines, medical or surgical supplies or curative apparatus” there is no “curative apparatus” clause in the MAI Act;
(b) since amendments to the WC Act in 2001 the only pecuniary losses permitted as damages are related to loss of earnings or loss of earning capacity. The only way to be compensated for the additional capital costs of a motor vehicle is through the legislated statutory benefits scheme whereas s 4.5(1)(b) in the MAI Act makes specific provision for the recovery of the capital costs of a vehicle, and
(c) the case law has not taken into account the “practical and long-term consequences” of allowing the capital cost.
The insurer concludes as follows:
“[75] When all of the relevant provisions of the MAI Act are read together, it is clear enough that the legislature did not intend to have CTP insurers purchasing motor vehicles as a statutory benefit. Consistent with common law practices, there is a clear indication that any such costs are to be recovered as damages, with only vehicle modification costs being specifically covered as a statutory benefit.
[76] The statutory benefits scheme is poorly equipped to try and calculate marginal increases in capital costs and appropriate reductions in mileage expenses over a claimant’s lifetime if the capital costs of a motor vehicle were to become a statutory benefits entitlement.”

Claimant’s submissions 23 December 2024 and 17 January 2025

The claimant says at [2] that he has purchased the new vehicle and seeks reimbursement of the cost. He submits that this is not relevant because the sections should be interpreted for all claimants including those who do not have a suitable vehicle or the means to obtain it. The legislation should be constructed, “in a manner that is consistent across its application to all.”
After summarising the claimant’s submissions and citing at [4] the Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT)[3] (Alcan) decision the claimant submits that the task is “about discerning the meaning of words used and applying the accepted canons of statutory interpretation”. The claimant submits at [7] that the insurer’s reliance on case law in common law damages claims is not helpful because, the provisions in question do not apply to common law claims, abolish the common law entitlement to damages, establish a new, partly faultless scheme of statutory benefits and specifically define the matters that are subject to statutory benefits.
[3] (2009) 239 CLR 27
The claimant highlights at [9] the phrase “in connection with” within s 3.24(1) and says there is nothing in the language that suggests the statute should be read down to exclude the capital cost associated with transport modification.
The claimant also submits at [10] that the definition in s 1.4 of the MAI Act includes “home and transport modification” and at [11] that it does not refer to vehicle modification. The claimant submits s 1.4 addresses modification of the means of transport which is broader than “vehicle”. The claimant suggests at [12] that if the word vehicle was used in the definition, the insurer’s submissions would have more force.
The claimant submits at [13] that if a modified vehicle is reasonable and necessary, “there is no textual or contextual reason for excluding that reasonable and necessary item from the statutory benefits scheme simply because it happens to be a capital item.
The claimant says there are other modifications and capital items permitted under the scheme and submits at [14] that the distinction between capital and non-capital expenses is arbitrary and not found in the MAI Act. The claimant says it is a distinction found in the assessment of common law damages.
The claimant submits at [15] that modification of the home, transport, the workplace or educational facilities come within the definition of treatment and care and identifies at [16] an example of the purchase of a hospital style bed to use in the home. This is a capital item but would not be precluded just because the claimant had a bed in his home at the time of the accident. The claimant gives another example at [17] of an unsuitable existing toilet or shower in the claimant’s home would be replaced in any modification process but the claimant is not required to first purchase it or claim it as part of his damages claim to be entitled to recover it under the statutory benefits scheme.
The claimant says at [18] the insurer’s submissions address the “compensation principle” which applies to a one-off damages claim but not a statutory benefits regime which provides for an ongoing entitlement to treatment and care.
The claimant compares at [19] the purchase of land and building of a house to the purchase of a vehicle noting that the former will appreciate and increase in value over time while the latter depreciates from the time it is purchased.
The claimant submits at [22] that if the claimant had owned a Kia at the time of the accident, he would have been entitled to have it modified without having to obtain an award of damages. The claimant submits at [23] that the insurer’s interpretation of “transport modifications” would create substantially different outcomes for claimants who need transport modifications based on what sort of vehicle they owned at the time of the accident.
The claimant provides at [24] a hypothetical example of two claimants with the same injuries both of whom need a modified vehicle. If claimant A owned a Kia and Claimant B owned a Pajero at the time of the accident, claimant A would get their modification immediately whereas claimant B would have to wait for an award of damages or buy a different (Kia) car themselves and then claim the cost of modifying it. The claimant says at [25] this is an arbitrary approach and could not have been the intent of the parliament.
At [26] the claimant submits that his interpretation of “transport modifications” results in an outcome more consistent with the object of the MAI Act. The insurer notes one of the objects is “the early and appropriate treatment and care to achieve optimum recovery … and maximise their return to work or other activities”. There is a risk that claimants who are not in a financial position to buy their own vehicle would have to wait until their damages claim was concluded. The claimant says at [28] that a modified vehicle gives the claimant “autonomy and freedom of movement”, facilitates access to the claimant’s treatment and enables him to independently travel to other activities.
The claimant submits at [31] that the provision of a suitable vehicle fits within the definition of transport modification but also the rehabilitation goals of the MAI Act further promoting its objects.
The claimant submits at [33] that the provision of a suitable vehicle also offsets or reduces the “reasonable and necessary travel … expenses” recoverable under s 3.24(b).
At [35] the claimant submits that the provision of a suitable vehicle has multiple benefits each of which brings it “within the scope of treatment and care”:
(a)    It is the most effective way of restoring the claimant to his pre-accident level of independence;
(b)    It is a cost-effective way of travelling to obtain treatment and care, and
(c)    It facilitates and fits within the definition of rehabilitation.
The claimant submits at [38]:
“The fact that a Suitable Vehicle satisfies multiple treatment and care needs and rehabilitation goals simultaneously should not be a factor that weighs against the Claimant in these circumstances, but to the contrary, ought to weigh in favour of granting people in the position of the Claimant early access to Suitable Vehicles, which is better achieved by supplying a Suitable Vehicle as a statutory benefit when required.”
The claimant again criticises the insurer’s submissions for referring to common law principles and says at [44] that the claimant will need treatment and care benefits for the rest of his life and the legislature’s intent was to establish a scheme where support is provided on an “as-needs basis” as opposed the once and for all assessment of damages which the claimant suggests is more speculative.

Insurer’s submissions 13 February 2025

The insurer responded to the claimant’s submissions noting at [9] the recent decision of Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi[4] (Abawi) and the competing objects of the Act. While acknowledging the object cited by the claimant, the insurer refers to others including the requirement to keep premiums affordable, keep the costs of the scheme within reasonable bounds and the finite nature of the pool of funds available [13] – [15].
[4] [2024] NSWSC 1245.
The insurer acknowledges at [19] that capital costs are regularly recovered as a treatment or care expense but submits at [20] that the capital expenditure on a home or car is higher and a home or car is something that is acquired over a lifetime; some capital items would come within the term “aids and appliances”, and home and transport have their own specific clause.
The insurer submits at [21] that the definition in s 1.4 of treatment and care does not of itself create any entitlement but that the entitlement to statutory benefits is established by s 3.24(1)(a) and is restricted to the reasonable cost of treatment and further restricted by s 3.24(2) whereby the insurer has no liability to pay for treatment and care that is not reasonable and necessary in the circumstances [22].
The insurer notes the claimant’s examples of capital costs regularly paid for by insurers including the sit/stand desk and hospital bed [24]. The insurer says at [25] the desk and bed would fall within the “aids and appliances” category of treatment and care in (g) as well as the workplace and educational facility modification of (k). The insurer submits at [26] that in cases of a new bed or a sit/stand desk the insurer’s liability should be to pay for the additional cost rather than the capital cost but that because of the low value of the items “the point is almost never taken” [27].
The insurer submits at [28] that the statute “specifically excludes the capital costs of acquiring a home or transport for modification” in line with the longstanding principle that a tortfeasor is only required to pay additional expenses generated by a tortious injury. The insurer says at [29]:
“All humans have some need for shelter and transport. It is not the responsibility of the CTP scheme to meet these basic needs. It can be the CTP scheme’s responsibility to meet additional costs incurred.”
The insurer submits at [30] and [31] that there is no significant difference between the phrase “transport modification” and “vehicle modification” and that the scheme allows the modification of transport not the capital cost of acquisition.
The insurer submits at [32] and [33] that of the list of types of treatment in s 1.4 the reference to home and transport modifications is specific and the reference to rehabilitation is more generic and “the costs of acquiring a home or a car do not sit comfortably within the definition of “rehabilitation”, in particular where there is a specific provision in relation to the modification but not the purchase of these items.
At [35] and [36] the insurer suggests that if the scheme of statutory benefits extends to the purchase of a new vehicle, then the scheme of statutory benefits would extend to the purchase of a new home.
The insurer than at [37] takes issue with the claimant’s submissions that there is some new regime in the MAI Act “for the payment of statutory benefits previously unknown to NSW motor accident claims”. The insurer points to the following:
(a)    The Motor Accidents Act 1988 (the MA Act) which provide for the recovery of reasonable and necessary treatment expenses at s45;
(b)    The Motor Accidents Compensation Act 1999 (the MAC Act) which provided for the recovery of reasonable and necessary treatment and care expense but also the determination of disputes about them before finalisation of the damages claim;
(c)    The Motor Accidents (Lifetime Care and Support) Act 2006 (the LTCS Act) provides for the recovery of treatment and care expenses for the most catastrophically injured.
The insurer also notes at [38] that the definition in s 1.4 is not new and is replicated in

s 5A(1) of the LTCS Act and says that in 18 years of that provision, the insurer is not aware of any argument raised as to home and transport modifications being extended to the capital costs of a home or form of transport suitable to modify. The insurer points to the MA Guidelines enacted in the Lifetime Care and Support scheme which state “will not generally include … the purchase of the vehicle.”
The insurer submits at [49] that it would be anomalous if the most catastrophically injured were not allowed the purchase of a new vehicle but the claimant in this case was, given they are identical definitions.

REVIEW OF THE EVIDENCE

While the claimant has provided medical evidence including ambulance and hospital records, there is no need in this decision to repeat the contents of those. There is no dispute in this matter about the nature and extent of Mr Fowler’s injuries
Mr Fowler’s claim form was signed and dated 29 December 2022[5]. The accident was said to have occurred on 11 December 2022 and the accident is described as follows:
“Due to poor road conditions, I fell off my motorbike sustaining minor injuries. I was then run over by another motorbike that was riding too close behind me. I sustained major injuries. The claim for injury is related to being run over where I sustained major injuries to the plexus nerves in my pelvis. These injuries are similar to those sustained by spinal patients and are non-recoverable and lifelong injuries.”
[5] Page 3 of the claimant’s application.
Mr Fowler lists his injuries which included the pelvic fractures, plexus damage, spinal fractures, a left wrist fracture, internal bleeding and damaged kidney and a gash on the right knee requiring stitches.
The parties have not provided a copy of the claimant’s request for the new car but on

16 January 2024, Youi wrote to the claimant[6] referring to the request for the purchase of a Kia motor vehicle saying it was “unable to approve the requested treatment.” Youi advised Mr Fowler it would pay for the reasonable and necessary costs and expenses associated with his claim including travel expenses and a Travel Expenses Form was provided with information about how to claim travel expenses. Youi quoted s 3.24 (1) and the definition of treatment and care in s 1.4 and said while the modification of vehicles is allowed, the scheme does not cover funding for the purchase of a vehicle.
[6] Page 8 of the claimant’s application.
On 5 February 2024 Youi completed an internal review at the request of the claimant and affirmed the original decision[7]. Youi quotes s 3.24 and the definition of treatment in s 1.4 and relies on a report of Dr Arthurs dated 5 January 2023 acknowledging the claimant would require lifelong support, care and equipment. While acknowledging the severity of the accident and the claimant’s injuries and the significant effect of them on his life, Youi restated that the scheme permits the modification of vehicle but not the purchase of a vehicle.
[7] Page 12 of the claimant’s application.
On 11 May 2023 Dr Helou, general practitioner (GP) referred the claimant to Mr Benad[8] for counselling due to an adjustment disorder which had developed after the accident which had left him without the full use of his legs.
[8] Page 37 of the claimant’s application.
Dr Fernando, rehabilitation physician wrote to Dr Helou on 18 May 2023. He refers to the claimant’s three surgeries, a 10-week admission to hospital, admission to Camden Rehabilitation ward and a return home the week before (five months after the accident). Dr Fernando notes the claimant was currently wheelchair bound but was transferring independently and working on mobility and standing transfers.
It was said the claimant was receiving NDIS benefits, was awaiting home modifications and as he was driving previously, he would like to return to work in a modified vehicle.
Mr Benad, psychologist wrote to the claimant’s GP on 5 June 2023 referring to the claimant as a partial paraplegic with neuropathic pain and that he was worried about “the logistics of life in a wheelchair and the uncertainties of his future. He laments the loss of the adventuresome side of his life.” Mr Fowler was reported as accepting being in a wheelchair for the rest of his life but worried about ongoing pain.
Mr Benad wrote a letter to Youi dated 16 July 2023 about the claimant’s “significant mental health impacts”. He documents the claimant’s adventures with his children being in nature, visiting the beach and the bush and the “wonders of the outdoors”. The wheelchair did not allow him these outlets and Mr Fowler was concerned about losing the bond with his children. From the psychological perspective, Mr Benad asked the insurer to investigate the purchase of equipment to enable the claimant to access the outdoors such as a motorised wheelchair with off-road capabilities. The psychologist also suggested a recumbent bike and a hydrotherapy and pool pass.
The claimant’s exercise physiologist reported to the insurer as to the claimant’s progress and on 16 August 2023[9] noted that the claimant had issues obtaining transport to get to his sessions and four had to be cancelled at the last minute. Mr Ayling requested the insurer, and its rehabilitation coordinator assist with ensuring the claimant could attend.
[9] Page 54 of the claimant’s application.
Dr Hassan, pain specialist wrote to Dr Helou 1 September 2023.[10] He noted the claimant was wheelchair bound but is able to stand and transfer and can stand with two-person support. While there was gradual improvement in muscle strength there had been a gradual deterioration of his pain. On 2 November 2023, Dr Hassan reported the claimant’s pain was worse. In later reports the doctor distinguishes between the claimant’s neuropathic pain and his musculoskeletal pain.
[10] Page 56 of the claimant’s application.
Ms Tabone, occupational therapist and rehabilitation consultant wrote a return-to-work plan for the insurer on 14 June 2023 recommending he work for two hours a day, two days a week. On 31 July 2023 Ms Tabone reported[11] to the insurer that Mr Fowler’s home was not wheelchair accessible and that a number of modifications were required including widening doors, installing automating entry doors, and carport and bathroom modifications. The claimant was said to have “significant difficulty accessing his home, moving within his home in the wheelchair and using his bathroom safely.”
[11] Page 71 of the claimant’s application.
Ms Tabone noted one of the claimant’s goals was to return to driving independently. She stated that Mr Fowler requires driving lessons and assessment in a modified vehicle and vehicle modifications in order to return to driving independently. Momentum Rehab was going to continue to liaise with the Institute of Driver Health, Mobility Engineering and the insurer to ensure Mr Fowler was able to achieve the goal of returning to driving. The issue of Mr Fowler being unable to lift the wheelchair into his car and rooftop stowage was raised.
This document also notes:
(a)    that the claimant’s employer had requested a fleet vehicle be modified for the claimant to use while he was at work (at page 7);
(b)    the claimant “has a busy schedule with intense rehabilitation activities and medical appointments” (at page 7);
(c)    the claimant was receiving assistance through is NDIS program with yard maintenance and transport for exercise physiology and psychology” and the insurer was paying for two hours of domestic cleaning and had paid for a robotic vacuum cleaner. It was foreshadowed that he would need ongoing support through paid services, gratuitous assistance from family and adaptive equipment (page 8), and
(d)    that “all parties need to ensure the claimant has access to treatment and address any barriers such as transport which may impact on his ability to engage in therapy” (page 9)

In a return to work upgrading plan 7[12], Ms Tabone noted that assistance was being provided from Mr Fowler’s work colleague with the stowage and retrieval of his wheelchair.
[12] Page 89 of the claimant’s application.
On 10 November 2023 Ms Tabone provided a lengthy report to the insurer.[13] She notes that before the accident both the claimant and his wife worked fulltime jobs but that since the accident the claimant has returned to 12 hours a week and the claimant’s wife works part time to assist her husband with household tasks that he used to do. She noted before the accident the claimant used to do the drop off and pick up of the children then aged 11 and 13. He would take them to extracurricular activities and taken them mountain biking, bushwalking and camping on the weekends. She refers to the claimant undertaking “multiple rehabilitation activities each week” and that Mr Fowler required support to attend these as he was unable to access them independently.
[13] Page 93 of the claimant’s application.
Ms Tabone also noted that the claimant “requires funding available in his NDIS plan to ensure he is able to meet his treatment and rehabilitation needs.”
Ms Tabone states that the claimant “would also like to have access to appropriate assistive technology to allow him to engage in recreational and leisure activities to maximise his mental wellbeing, quality of life and strengthen his relationships with his children/family.”
She noted his own vehicle has been modified for hand controls, which allowed him to drive independently. However, she stated that the claimant’s current vehicle is not suitable for a wheelchair hoist to allow Levi to stow his wheelchair safely and access the community.
Ms Tabone says in relation to his “transport”:
“Levi is able to drive his modified vehicle, however the vehicle is not currently suitable for stowing his wheelchair. Levi requires a wheelchair hoist (Abiloader) to load his wheelchair into the car. His vehicle is not suitable for the Abiloader and he is currently exploring other vehicle makes and models which will be suitable to stow his wheelchair. It is anticipated that his CTP claim will fund the cost of the vehicle and modifications. However, in the interim, Levi is reliant on support workers to provide transport for him to allow him to attend his multiple rehabilitation appointments each week.”
On 4 December 2023, Ms Tabone provided a further report to the insurer[14]. She reports:
“Mr Fowler is now able to drive his vehicle with the modified hand controls, however, he requires someone to be with him at all times when accessing the community so they can stow the wheelchair in the boot of the car. Mr Fowler is therefore not independent in accessing the community.”
[14] Page 103 of the claimant’s application.
In an extraordinarily detailed report dated 8 December 2023 dealing exclusively with the vehicle recommendations[15], Ms Tabone sets out the steps taken to identify appropriate equipment, the trails and training undertaken by Mr Fowler, the modification of his Pajero noted that since the accident, in order to facilitate the claimant’s rehabilitation goal of returning to independent community access with a suitably modified vehicle.” While she supported the need for the vehicle she advised him that in her 15 years’ experience Momentum Rehab “were not aware of any instance where an insurance company had funded a vehicle.” While she noted he was able to drive his vehicle, he required someone to be with him “at all times” and he was not therefore independent.
[15] Page 115 of the claimant’s application.
Ms Tabone also recorded the “social / economic impact”, noting the claimant’s wife had reduced her working days from 5 days to 3 days per week after the car accident so she could provide her husband with assistance with transport and household duties. She had to return to full time work due to cost of living and work pressures and “the family cannot sustain the reduction in pay due to Mrs Fowler temporarily reducing her work hours”.
The claimant’s rehabilitation and treatment needs were noted, and he was said to be “highly motivated to maximise his function”. He was having six therapy sessions a week, counselling every fortnight and seeing his treating doctor, pain specialist, podiatrist and orthotist as required.
It was again noted that the claimant was receiving assistance for transport through his NDIS plan, which involves a support worker picking him up and taking him to his treatment and therapy appointments on the three days per week when his wife is not able to provide gratuitous assistance. The minimum shift for a support worker was said to be two hours, charged at $132.90 per service plus $1.00 per kilometre travelled. Mr Fowler's NDIS plan was said to be insufficient to sustain his current transport needs and Ms Tabone flagged these would increase in 2024 when Mr Fowler’s wife returned to full time work and was no longer able to provide gratuitous transport assistance two days a week.
She also identified that Mr Fowler’s manager and had made special arrangements with a staff member to meet the claimant on-site at regional locations to ensure he can get his wheelchair in and out of the vehicle. Ms Tabone expresses the view “Mr Fowler will not be able to return to his full work hours or duties if he is not able to access the community independently and safely.”
She recommends the Kia motor vehicle, recommended the Abiloader (at a cost of $25,060), the removal of the hand controls from the Pajero to the Kia (about $5,000).
She identified the risk of a manual handling injury should the claimant not have the Abiloader.
Ms Tabone estimates that if NDIS and the claimant’s wife were not assisting Mr Fowler with the wheelchair stowage and retrieval, Youi would be required to pay up to $44,585.80 per year in additional travel expenses.
In addition, Ms Tabone estimates the financial loss of about $37,500 per year if Mr Fowler cannot return to his full pre-accident work duties.
In a report dated 8 January 2024, Ms Tabone noted the claimant has passed his driving test, his vehicle had been modified for hand controls, but it was not suitable long term due to issues with wheelchair stowage. The claimant was dependant on someone being with him to disassemble and store the wheelchair and retrieve it. Again, Ms Tabone identified Mr Fowler’s barriers to progress as the stowage issue, the reliance on his wife for gratuitous assistance and the insufficiency of his NDIS funding.
The claimant provided a report from Mr Dwyer, occupational therapist dated 9 September 2024.
He states at [3] that as a result of a complex pelvic injury with lumbosacral plexus injury:
“Mr Fowler has minimal functional use of his lower limbs, and he now relies on the use of a wheelchair for all mobility. He uses a self-propelled manual wheelchair with a rigid frame. He is able to partially weight-bear through his lower limbs for the purpose of transferring to and from surfaces, but otherwise is dependent on the use of a wheelchair.”
Mr Dwyer notes at [3.2] that these injuries are anticipated to be lifelong and will not change. He lists the claimant’s functional deficits at [3.3] which includes the claimant’s inability to stand or walk unsupported and his reliance on a wheelchair. He states, “he requires the use of vehicle modifications (hand controls and a wheelchair stowage)”. And that the specific vehicle type he needs is a “Kia Carnival with vehicle specifications to include electrically adjustable seating and powered tailgate.”
Mr Dwyer expressed the opinion at [3.4] that there is no impact on the claimant’s life expectancy and on the current tables he has a life expectancy of 83.69 years, a further 42.69 years.
The report also includes recommendations in relation to domestic and international holidays (with regards to future travel costs) which is not necessary to relate here.
At [4.3] Mr Dwyer says there are specific vehicle requirements. He notes the claimant’s pre-accident vehicle was unsuitable for his needs and he has undergone formal assessment to determine the type of vehicle that would be suitable. He refers to the evidence of another occupational therapist, Ms Tabone and her report of 8 December 2023. Her opinion was that there was only one suitable vehicle, the Kia Carnival.
Mr Dwyer notes the claimant had purchased the vehicle and was in the process of having it modified as a result of which “Mr Fowler will be able to independently drive to access the community.” Without the car, Mr Dwyer says the claimant will be dependent on others for support.
Mr Dwyer says as there is only one suitable vehicle, “it should be viewed as being as essential as the accompanying modifications in being a reasonable and necessary cost to facilitate his independence.” Mr Dwyer supported the purchase in order for him to achieve:
(a)    maximum independence with community access;
(b)    full physical, mental, social and vocational ability; and
(c)    full inclusion and participation in all aspects of life.
In submissions dated 11 September 2024 the claimant’s solicitor allaged the cliamant’s current treatment regime was:
(a) Twice weekly, phystioherpay and exercise physiology sessions, and
(b) Weekly sessions of hydroptherapy, psychology and remedial massage.
The claimant’s solicitor indicated a pain management program at Royal North Shore Hospital was anticipated and that the tax travel to attend his various appointments would be $400 per week.
The claimant provided a statement dated 16 January 2025[16]. He lives in Narellan Vale with his wife. He says at [3] – [7] that he drove a Nissan Pajero when he worked with the police, he purchased his own Pajero in 2022 at a cost of $32,000 and has not sold it. He drove it to and from work and could drive it off work.
[16] Uploaded to the portal on 17 January 2025.
He refers at [8] and [9] to the attempts made to modify the vehicle for hand controls and wheelchair stowage. He says at [10] he was advised that the Kia Carnaval was a more appropriate vehicle. In May 2024 he says at [11] that the insurer provided an advance payment of his damage to allow him to purchase a motor vehicle which he did on 3 June 2024. He says at [12] the vehicle has now been modified for hand controls and the insurer has aggreed to pay for a root top hoist but that modification has not yet been done.
The claimant details at [13] – [15] an incident where he had booked a wheelchair taxi but it did not arrive so he booked an Uber and had to instruct the Uber driver how to dismantle the wheel chair. He says at [16] that until the hoist is fitted he needs a support worker with him to load and unload the wheelchair. He thinks the insurer pays for this.
He lists his current rehabilitation and treatment regime at [17] and involves, two physiotherapys sessions a week, two exercise physiology sessions a week, hydrotherapy and remedial massage one a week and psychological treatment once a week or once a month. He says he has been referred to pain management at North Shore Hospital 70 kms away.
He says he works as a senior investigator with the Department of Planning and Enviornment and is away from home a quarter of the time and drives his Kia as his work vehicle and has driven 6,000 kms since he obtained the car. He indicates at [22] that he has not yet had the opportunity to travel but wants to do so in regional areas including national parks.

PRELIMINARY ISSUES SURROUNDING STATUTORY INTERPRETATION

What is the general approach to statutory construction?

One of the tasks in this dispute is simply to determine whether Mr Fowler’s new car comes within the definition of “treatment and care” in s 1.4 of the MAI Act and therefore could, subject to the limits and restrictions in Division 3.3, be a statutory benefit to which Mr Fowler would be entitled under s 3.24(1)(a).
The definition of “treatment and care” lists 11 types of things or services that come within the definition, two of which are “home and transport modification” and “rehabilitation.” While the parties appear to agree, these two options are the only two relevant possibilities, the parties are in dispute about how those words and phrases are to be interpreted.
The claimant citied the majority in Alcan[17] as the approach to interpreting the words and phrases in legislation. The more recent, often quoted pronouncement from the High Court’s majority in SZTAL v Minister for Immigration and Border Protection[18] is similar:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”
[17] (2009) 239 CLR 27 at 46, the majority being Justices Hayne, Heydon, Crennan and Keifel.
[18] [2017] HCA 34
The word “treatment” in the phrase “treatment and care” is an example of why context and legislative purpose is important. The Macquarie Dictionary[19] defines treatment as “the act or manner of treatment” or “the application of medicines, surgery, psychotherapy etc to a patient to cure a disease or condition”. Of course, the reality for Mr Fowler is that his near paraplegia is never going to be cured, and he faces a lifetime of mobility issues.
[19] Fifth Edition first published in 2009.
The context and purpose of a legislative instrument requires consideration of the whole of the statute.[20] This is also a requirement of s 33 of the Interpretation Act 1987 which requires, for New South Wales legislation, the adoption of a construction “that would promote the purpose or object underlying the Act …” over a construction that would not. Section 1.3(3) of the MAI Act also requires the interpretation of provisions or regulations to adopt a construction which promotes the objects of the MAI Act over one that would not.
[20] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].

The parties’ submissions generally

Both parties have put forward submissions drafted by Senior Counsel. The articulated arguments revolve around the following:
(a)    whether the words “transport modification” is something more than the cost of altering a vehicle;
(b)    the distinction between “transport” and “vehicle” and whether “transport modification” extends to modifying the type of transport that is from a Pajero to the Kia;
(c)    the availability in a claim for damages for the capital cost of a car;
(d)    the scope of the term “rehabilitation”, and
(e)    the utility of the vehicle as a means to obtain treatment.
The parties’ submissions have also raised issues about the scheme generally and have referred to its “newness” or otherwise of the scheme, the compensatory principle and the relevance of common law concepts. I propose to start with those fundamentals and the objects of the Act as an understanding of these things will help ascertain the context and purpose of the legislative provisions in issue.

What is the scheme and the relevance of its history?

The insurer submitted[21] that the MAI Act’s scheme of treatment and care expenses was not new. I do not agree.
[21] at [37] of its 12 February 2025 submissions.
The long title of the MAI Act reads as follows:
“An Act to establish a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents; and for other purposes” (emphasis added).
It must be acknowledged, that there is nothing very new about the scheme of insurance in the MAI Act, and certainly not when compared to the shift to private underwriting that occurred with the commencement of the Motor Accidents Act 1988 (the MA Act). The current legislation maintains a scheme of insurance that is compulsory, which is provided by privately underwritten insurance companies and a system of licensing and monitoring those insurance companies by a government agency.
While the previous scheme under the Motor Accidents Compensation Act 1999 (the MAC Act) had limited statutory benefits,[22] the MA Act and the MAC Act were primarily schemes of lump sum damages assessed by formal or informal dispute resolution in accordance with common law principles (albeit with restrictions). The common law damages provisions under Part 4 of the MAI Act are very similar to those in the previous schemes.
[22] Under the Motor Accidents Compensation Act 1999 (MAC Act) s 47 provided for treatment expenses and lost earnings upon certain events occurring (such as reporting the accident to the police and lodging an accident notification form with the insurer up to 28 days after the accident) up to the sum of $5,000 according to s 51.
However, the MAI Act establishes a “new scheme” for persons injured in motor accidents in New South Wales after 1 December 2017. The scheme of statutory benefits under Part 3 includes an entirely new weekly income replacement type benefit for “earners” pursuant to Division 3.3 and for almost all, treatment and care benefits pursuant to Division 3.4. More significantly and certainly “new” is that those statutory benefits are paid, for the first 52 weeks at least, on a no-fault basis.
Justices Young and McGarvie of the Supreme Court of Victoria[23] remarked in one of the early cases under that state’s new transport accident compensation scheme that:
“The right to compensation given by the legislation goes far beyond the right to compensation which common law gives for injuries caused by negligence. Care must be taken not to confine the statutory right to familiar situations of the type in which the common law right exists.”
[23] Transport Accident Commission (Victoria) v Hoffman and Others [1988] 7 MVR 193 at p 199.
While dealing with a liability dispute involving a bicycle colliding with a parked car, those words emphasise the paradigm shift that may be needed when dealing with what in my view is this state’s entirely new scheme of statutory benefits.

What is the relevance of the compensatory principle?

The insurer has also submitted[24] that it should only be liable for the additional costs of a motor vehicle rather than the capital cost due to the “longstanding principle” that a tortfeasor need only pay for what has been generated by a tortious injury.
[24] at [28] and [29] of the 13 February 2025 submissions.
That statement may be correct in a claim for damages where the compensatory principle continues to apply. The principle of restitutio in integrum is the object of a damages claim. A claimant is compensated to restore them, as best a lump sum of money can, to the position they were in but for the accident. The compensatory principle has been diluted somewhat in the various motor accident schemes of insurance and compensation since 1988. Since the MA Act, for example there has been a maximum weekly amount for the loss of earnings or earning capacity with the result that some injured people (albiet high earners) are not restored to their pre-accident pecuniary position at all.
In addition to further restrictions in the MAI Act as to what can be claimed by way of damages[25], and how much can be paid, the statutory benefits scheme established in Part 3, further departs from the compensatory principle in that a clamant is never paid 100% of his or her pre-accident weekly earnings. At all stages after the accident, the claimant is paid between 80% and 95% of the difference between their pre-injury and post-accident earnings or earning capacity.
[25] Damages cannot be awarded for treatment or care (gratuitous or commercial) or to replace the lost capacity to provide care to others (including children).

What is the purpose of the MAI Act?

Section 1.3 contains a number of sub-clauses concerning the objects of the MAI Act. In s 3(1) the long title of the Act is repeated noting the establishment of a new scheme of insurance and benefits.
Section 1.3(2) lists the objects of the Act as follows:
“(a)    to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,
(b)     to provide early and ongoing financial support for persons injured in motor accidents,
(c)     to continue to make third-party bodily insurance compulsory for all owners of motor vehicles registered in New South Wales,
(d)     to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses,
(e)     to promote competition and innovation in the setting of premiums for third-party policies, and to provide the Authority with a role to ensure the sustainability and affordability of the compulsory third-party insurance scheme and fair market practices,
(f)      to deter fraud in connection with compulsory third-party insurance,
(g)     to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,
(h)     to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme.”
The insurer has referred[26] to the decision of Justice Griffiths in Abawi[27]. His Honour observed at [16]:
“The plaintiff insurer places particular emphasis on the third of [the] objects. That particular object is unquestionably relevant but given that all the stated objects reflect a range of conflicting or competing purposes, it is important to avoid permitting a purposive approach to dominate and drive the task of statutory construction, at the expense of considerations of text and context.”
[26] at [9]–[17] of the 13 February 2025 submissions.
[27] See paragraph 61 above.
The competing objects are a product of the two fundamental purposes of the motor accident scheme governed by the MAI Act. The first fundamental purpose is insurance where presumably the desire to keep premiums affordable for the millions of drivers in New South Wales is paramount. The other side of the scheme is the compensation and benefits side, where the thousands of people injured on the roads in this state every year would likely want the maximum compensation and all the benefits to which they are entitled.
While the first object (s 1.3(2)(a)) is clearly relevant to the interpretation of what is or is not treatment and care within the statutory definition, the fourth object (s 1.3(2)(d)) concerning the affordability of the scheme is also relevant as the legislation is concerned about regulating insurer profits and the limiting the benefits available to persons with threshold injuries. These competing or balancing objects are referenced in s 1.3(3)(a) which acknowledges the need to keep premiums affordable and the need to treat and rehabilitate injured persons in the one clause.
The objects of the MAI Act do not impose an obligation on the insurer to put the claimant in as close a position as possible (by the payment of benefits) to his or her pre-accident position but the first object of the Act (s 1.3(2)(a)) is, in my view, the equivalent of the compensatory principle in the statutory benefits side of the scheme:
“to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.”
The purpose of the MAI Act in its broadest terms is to provide a scheme of affordable insurance to the greenslip paying public and a scheme of fiscally responsible payments to injured persons. The purpose of s 3.24 (and Division 3.4) is to provide for the scheme of payments for treatment and care outside any entitlement to damages. The purpose of the definition of “treatment and care” in s 1.4, along with the limits and restrictions contained in Division 3.4, is to provide some boundaries to what can be claimed and paid for in that scheme of benefits.

What is the context of the MAI Act and the definition of treatment?

The insurer submitted[28] that the MA Act in 1988, and the MAC Act in 1999 provided for the “recovery” of reasonable and necessary treatment expenses just as in the MAI Act. I do not agree with the word “recovery” although I accept both of these schemes dealt with treatment expenses.
[28] at [37] of the 13 February 2025 submissions.
The Motor Vehicles (Third Party Insurance) Act 1942 (MV (TPI) Act) established the Government Insurance Office, and under s 25 enabled that Office to pay direct to providers, expenses incurred for treatment at a hospital, as well as ambulance transportation, medical treatment, massage treatment, dental treatment and nursing. This did not establish an entitlement to recover treatment and care expenses but facilitated the means by which payments could be paid by the insurer during the life of the claim and as an alternative to a single once and for all sum of damages paid often many years after the accident.
The MA Act continued that interim payment system[29]. It also recognised the importance of these early payments to injured people. Part 4 of the Act was entitled “Rehabilitation” and included an object of the Part was, “to encourage and support recovery from injury and the use of early and appropriate rehabilitation for people injured … so that they can return, as far as possible, to their pre-accident lifestyle.”[30] The MA Act imposed a a condition on licensed insurers to provide rehabilitation services to injured persons promptly[31] and s 45 imposed a duty on insurers to pay for hospital, medical, pharmaceutical, rehabilitation and respite care expenses once liability was admitted.
[29] Section 39B of the MA Act.
[30] Section 34A(a).
[31] Section 38 of the MA Act.
The MAC Act also valued rehabilitation including as one of the objects of the Act[32], “to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries …”. The MAC Act imposed several duties on insurers including at s 83 to pay for treatment expenses and at s 84 a duty to “do all such things as may … be reasonable and necessary for the rehabilitation of an injured person.” Failure to comply with these duties could have implications for an insurer’s license.
[32] Section 5(1)(a).
Under the MAI Act the injured person has an entitlement to treatment and care expenses established in the statute without having to prove negligence. The entitlement is to have expenses paid as and when they are needed. There are no duties in Division 6.2 of the MAI Act equivalent to ss 83 and 84 of the MAC Act, in particular there is no specific duty imposed on an insurer under the Act to treat and rehabilitate the claimant. This can be understood by appreciating the difference between a system of lump sum damages and a scheme of statutory entitlement to ongoing treatment. There is no need for an insurer to be under a duty to pay for treatment along the way in a claim that has no end date (for those with non-threshold injuries and claimants who are not wholly or mostly at fault) and when the injured person has an entitlement under the legislation for that treatment and care.
The historical context of the treatment and care benefits available under the MAI Act is a new scheme of benefits not derived from a common law right but from a statutory entitlement.
It is also important to context that the MAI Act maintains the ability for an injured person to pursue a claim for damages but that s 4.5(1) does not allow a claimant to recover damages for treatment and care expenses incurred, including those which might fall outside the statutory scheme.

The Motor Accident Guidelines

Section 3.17 of the MAI Act states that “an insurer must require an injured person [in receipt of weekly benefits] to undertake such reasonable and necessary treatment, rehabilitation or vocational training as the Motor Accident Guidelines may require.” If the injured person does not, their statutory benefits may be suspended.
Section 3.24(3) states that the MA Guidelines may provide for specific circumstances where the cost of treatment and care is deemed to be reasonable and circumstances in which the treatment and care itself is deemed reasonable and necessary.
Section 6.1 provides that the MA Guidelines may set out how insurers are to deal with “claims” which would include both statutory benefits claims and claims for damages.
While the insurer cautions[33] using the contents of Regulations or Guidelines to construe statutory provisions, the insurer discusses the Lifetime Care and Support Guidelines (the LTCS Guidelines)[34]. In my view the MAI Regulation and MA Guidelines are part of the context of the treatment and care regime provided for in Division 3.4.
[33] At [43] and [44] of the 12 February 2025 submissions.
[34] At [45] – [47].
The MA Guidelines are extensive comprising some eight parts covering permanent impairment and threshold injury assessment, market practices and premium setting and so on.
Part 4 of the MA Guidelines concerns “Claims”. In addition to clauses about communications, making claims, weekly benefits decision there is a section headed “treatment, rehabilitation, care and vocational support.” The first two clauses of that section are worth setting out in full:
“4.79 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant’s individual circumstances and needs, providing support based on best practice and a commitment to early and appropriate treatment and care.
4.80 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:
(a) measure and demonstrate the effectiveness of the treatment
(b) adopt a biopsychosocial approach – consider the whole person and their individual circumstances
(c) empower the injured person to manage their recovery
(d) implement goals focused on optimising function, participation and return to work or other activities
(e) base treatment on the best available research evidence.”
Clase 4.81 gives two examples of other guidelines (for the management of whiplash injuries and for neuropsychological assessment for those with a brain injury) which must be considered by insurers.
Clauses 4.82-4.85 require the insurer to “screen” claimants before developing a “tailored recovery plan”. There are extensive provisions regarding recovery plans. Failure to participate in a recovery plan could lead to the suspension of the claimant’s weekly benefits (see clause 4.92).
Section 3.24(1) refers to expenses “incurred” and therefore an injured person has an entitlement to recover the reasonable and necessary, related and verified expenses they have paid for themselves. The MA Guidelines also imply that insurers can pre-approve treatment and pay treatment and care providers direct. I am aware through other treatment disputes that there are forms used by service providers when seeking pre-approval including forms for the purchase of equipment[35] and allied health recovery request (AHRR) forms[36] used for services or when for example physiotherapists or psychologists are seeking approval for a series of treatment sessions.

SECTION 3.24(1)(A) – IS THE NEW CAR A FORM OF TREATMENT AND CARE?

Is the cost of the new car “transport modification”?

[35] In Custovic v Allianz Australia Insurance Limited [2025] NSWPICMR 4 the equipment sought was a home gym,

[36] In BLI v Allianz Australia Insurance Limited [2024] NSWPIC 436 the services were painting services,

Modification – in connection with

The opening words of s 3.24(1) provide the entitlement to benefits for “expenses (treatment and care expenses) incurred in connection with providing treatment and care” which is, as defined, and includes transport modification.
The claimant argues[37] that the entire cost of modifying a vehicle should be allowed and that the words “in connection with” do not support a restrictive interpretation limited to just the modification of an existing vehicle or a purchased vehicle.
[37] At [3a] and [9] of the 23 December 2024 submissions.
The insurer has not addressed in its submissions the phrase “in connection with.” In Grain Growers Ltd v Chief Commissioner of State Revenue (NSW)[38], various authorities were cited in support of a finding that “in connection with” are “relational terms” which have a “broad meaning” or “wide import” and that “it is necessary to identify … what there is to be a connection with.”[39]
[38] [2016] NSWCA 359.
[39] Grain Growers [121] – [124].
It is not apparently in issue that the modification of a vehicle to include both hand controls and a hoist is required for Mr Fowler. If the claimant owns a car that cannot be appropriately modified, is purchasing a new car that can be so modified, an expense “incurred in connection with” providing the “treatment and care”, that is, in this case the transport modification?
When the whole of s 3.24(1) is considered the expenses incurred “in connection with” treatment are limited to the three things, that is the actual treatment and care itself, and the reasonable and necessary travel and accommodation expenses of the claimant (and any necessary accompanying parent or carer) incurred to get that treatment and care. Section 3.24(1) does not extend to any other expenses incurred in connection with obtaining treatment for example, the cost of childcare or babysitting services while an injured person is in hospital or at a medical appointment.
It follows that the words “in connection with” do not of themselves expand the concept of “transport modification”. The “transport modification” must be a form of treatment and care under s 3.24(1)(a) for its reasonable cost to be permitted.

Modification - transport versus travel

The insurer has throughout its submissions referred to the capital cost of the motor vehicle as being recoverable as part of the claimant’s damages claim. The claimant does not appear to address his entitlement to these damages in his submissions.
The relevant wording in the definition of treatment and care is “home or transport modification”.
Section 4.5(1)(b) provides that a claimant is entitled to damages for costs relating to “accomodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations”. Clause 9 of the MAI Regulation provides that damages may be awarded for “any accommodation or travel for which the claimant has incurred, or is likely to incur, a cost as a result of the injury caused by the motor accident” (emphasis added). Section 3.24(1)(b) and (c) includes as a statutory benefit, the accomodation and travel expenses incurred by a claimant and carer associated with obtaining treatment and care.
Clearly Parliament distinguishes between what is an injured person’s accomodation and what is their home and also between travel and transport. Accomodation and home are not in my view one and the same thing. A claimant with two broken legs whose home is on the fourth floor of an apartment with no lift, may need to rent a ground floor apartment temporarily while his broken legs heal. His rental expenses might be covered as “accomodation” in his damages claim, but are probably not “home modification” as a form of treatment in his statutory benefits claim. So too travel and transport may not be the same thing. A claimant with chronic regional pain syndrome (in his legs) who has family abroad and holidayed with them once a year before the accident may need to fly business class instead of the economy cabin when he visits family after the accident. The additional costs of a business class airfare would appear to be a kind of “travel” costs claimable in a damages claim, but not necessarily “transport modification” as a form of treatment in the statutory benefits claim.
I am aware in Mr Fowler’s case he has been provided with an advance on his damages which has enabled him to buy a new car which suggests that his damages claim has not been resovled or assessed. I note Youi’s interpretation of s 4.5(1)(b). Neither party has provided me with a reference to any authority which has considered the meaning of “accomodation or travel” or any decision where the purchase price of a new car has been allowed as damages for “travel”. I am not aware of any judicial pronouncement of the scope of s 4.5(1)(b).
If the definition of treatment and care included the words “accomodation or travel modification” or the words of s 4.5(1)(b) permitted damages for costs relating to “home or transport that is not treatment and care” then there would be greater certainty. It is clear that accomodation and travel is something different to home and transport, but it is not entirely clear, that the purchase price of a new vehicle is a cost of “travel” and that the capital cost of a motor vehicle would be covered by the damages provision in s 4.5(1)(b).

Modification – capital cost

The insurer has, throughout its submissions referred to the “capital cost” of the car as opposed to the cost of the modifications made to the car.
The claimant submitted that the provision of a sit-stand desk to accommodate a claimant’s needs after injury is a capital item regularly paid for by insurers. The insurer appears to acknowledge[40] that because of the low cost (when compared to a motor vehicle) of such an item, it would be paid for by insurers despite being a capital cost. The insurer says[41] a sit-stand desk would, in any event likely come within the type of treatment, “aids and appliances” or could be a “workplace or educational facility modification”.
[40] At [27] of the 12 February 2025 submissions.
[41] At [25] of the 12 February 2025 submissions.
Whatever category of product an item is (within the definition of treatment and care), if the purchase of the product is a capital cost then the insurer’s argument would appear to exclude the cost of it, whether it was a new motor vehicle or the new sit-stand desk. While a claimant might be able to recover the capital cost of the motor vehicle in a damages claim according to the insurer, the capital cost of the sit-stand desk is neither a cost of accomodation or a cost of travel recoverable in a damages claim.
There is no distinction in the definitions or in s 3.24 or elswhere in the Act between capital costs and costs that are not capital costs and I do not accept that this distinction applies to determine what may be or may not be treatment and care within the definition.
The insurer draws my attention[42] to the historical distinction where capital costs have been allowed in damages claims, the entitlement to capital costs of motor vehicles in the workers compensation scheme but the non-entitlement to capital costs of motor vehicle in the Lifetime Care and Support scheme.
[42] At [53] – [68] of the 24 September 2024 submissions.
The workers compensation scheme involves a very different definition of treatment and has different (and more restricted) common law damages provisions.
The LTCS Act includes the same definition of treatment and care as in s 1.4 of the MAI Act. The insurer’s Senior Counsel says[43] that he and his instructing solicitors “are not aware of any argument ever having been raised” that the identical term of “transport modification” has been extended to include the purchase of a new car in the LTCS scheme.
[43] At [38] of the 12 February 2025 submissions.

The insurer refered to the LTCS Guidelines in its submissions including the chapter concerning transport modifications (Chapter 12) which provides at cl 1.6((b) that reasonable transport modification expenses “will not generally include … the purchase of the vehicle.” I note that:
(a)    the words include “not generally”, and not the words “not ever”;
(b)    one of the opening paragraphs to part 12 says:
“The Lifetime Care and Support Authority (Lifetime Care) may waive observance of any or parts of this Guideline. Waiving observance of all or part of this Guideline in any particular circumstances is not an indication that Lifetime Care will waive observance of this or any other Guideline in any other circumstances”;
(c)    clause 1.3(d) of part 12 recognises as reasonable and necessary treatment and care the modification of transport for a person who “owns or has access to a motor vehicle, or is planning to purchase a suitable vehicle to be modified”;
(d)    clause 8.1 of the LTCS transport modification chapter of the Guidelines enables LTCS to enter into agreement with the claimant about “maintenance, insurance and ownership of the vehicle” (emphasis added).
All of this suggests that while the purchase of a vehicle is not generally allowed in the LTCS scheme, it is not prohibited and could be allowed in certain circumstances.
The definition of treatment and care in both the MAI Act and the LTCS Act provide for the Regulations (and not the Guidelines) to include or exclude things from the definition. There is nothing included or excluded in the regulations made under the MAI Act or the LTCS Act.
If Parliament had meant to unambigulously eliminate the capital or purchase cost of a vehicle from the statutory benefits scheme it could have done so by saying so in the definition of treatment and care in the MAI Act or by nominating it as an exclusion in the MAI Regulation.

Modification – transport vs vehicle

The insurer submits[44] that the ordinary meaning of “transport modification” is the modification costs of a vehicle to accommodate an injured person’s injuries and disabilities. The insurer says it does not include “all … transport costs” and that the word “modification” limits or restricts what the claimant is entitled to. The claimant concedes that if the definition of treatment included the phrase “home and vehicle modification” the insurer’s argument would be stronger but that the phrase “transport modification” is a wider concept and includes, if necessary, modifying the type of transport the claimant uses including the type of vehicle which permits him to recover the cost of purchasing it.
[44] At [21] and [22] of the September 2024 submissions.
There is no dispute that Mr Fowler required modification of his existing vehicle (the hand controls) and needs a hoist to enable him to independently drive it without needing someone to put the wheelchair in the boot and get it out again. There is also apparently no dispute that the claimant’s Pajero was modified to enable him to drive it, but cannot be modified to enable him to drive it independently.
The term “transport modification” is not limited to vehicles. In Mr Fowler’s case he used to ride a bicycle with his young children. The insurer’s rehabilitation consultant, and Mr Fowler’s psychologist have explored with the claimant, the purchase of a recumbant bike. Modifying an existing bicycle has apparently been ruled out due to the nature and severity of the claimant’s injuries. A new recumbant bicycle would presumably not be covered as a statutory benefit on the basis of the insurer’s argument in relation to the KIia motor vehicle.
I am of the view the word “transport” in the phrase “transport modification” brings other forms of conveyance into the scheme of statutory benefits than simply vehicles including motor vehicles.
The question remains whether the words “transport modification” goes beyond the alterations done to a vehicle to make them fit for the claimant’s purposes or whether they permit the change or alteration of the type of vehicle itself. I agree with the claimant’s concession that if the term used in the definition was “vehicle modification” the answer to the question would be more obvious. When the other modifications mentioned in the definition are considered: modification to the claimant’s workplace; modification to the claimant’s educational facility and, modification to the claimant’s home, they are all existing things that need to be modified as in altered or changed. Modifiying the claimant’s workplace for example would not extend to finding the claimant a new job[45]. Modifying the claimant home would clearly encompass the work done to claimant’s home (including bathroom, kitchen and carport building works) but I do not think that “home modification” could extend to modifying the home as in purchasing a new one because the pre-accident one cannot be modified.
[45] Finding the claimant a new job would of course be a part of his “rehabilitation” and therefore a form of “treatment and care.”
In my view transport modification means modification (as in change or alteration) to the transport the claimant was using at the time of his accident to accommodate his injuries. This would encompass modifying the Pajero for hand controls and modifying any other vehicle for hand controls and an Abiloader or hoist.
I am not satisfied that transport modification extends to replacing Mr Fowler’s Pajero vehicle that cannot be modified, with the Kia vehicle that can.

Is a new car a form of “rehabilitation”?

In covering the history of the legislative schemes I noted the importance placed on rehabilitation in the MA Act, its continuance as a separate concept with a distinct duty imposed on insurers in the MAC Act and now its appearance within the definition of “treatment and care”. The change in the first mentioned object in the MAC Act (early and appropriate treatment and rehabilitation) and the MAI Act (early and appropriate treatment and care) is understood when the definition of treatment and care is considered which includes “rehabilitation”. There is no need to separately acknolwedge rehabilitation in the objects when it is now included in the definition of treatment and care.
I do not think the subsuming of rehabilitation into the larger concept of treatment and care means that rehabilitaiton is less important now than it was in 1988, and perhaps simply reflects the evolution of rehabilitation from what was then a new health discipline seen as additional to treatment, to something that is now nearly 40 years later a mainstream medical specialty and an integral part of an injured person’s treatment, care and recovery.
The previous schemes were fundamentally common law schemes involving lump sum damages paid at the end of an often lengthy claims process. Early access to treatment and rehabilitation has presumably contributed to the affordability of the scheme by minimising losses, getting injured persons back to work and usual activities, sooner thereby reducing the damages paid at the end of the claim.
In the new scheme of statutory benefits, supporting, treating and rehabilitating all injured people (including those at fault) has a social utility for the person, their family and community as well as getting “earners” back to work and reducing the time they are receiving weekly benefits thereby contributing to the affordability of the current scheme.
The definition of rehabilitation is as follows:
“rehabilitation of an injured person, means the process of enabling or attempting to enable the person to attain and maintain—
(a)  the maximum level of independent living, and
(b)  full physical, mental, social and vocational ability, and
(c)  full inclusion and participation in all aspects of life.”
The insurer says if the term “rehabilitation” is given a wide meaning then everything in the list in the definition of treatrment and care could be a form of rehabilitation and would not need to be mentioned separately.
I note the definition of rehabilitation, “means the process of …”. By referring to a “process”, the definition is in my view already very wide and does capture may of the other things listed in the definition of treatment and care. Aids and appliances, prostheses, modifications to home, transport, workplace and educational facitilities are items or things which are certainly part of a process of rehabilitation.
But the ordinary meaning of the term “process” implies a beginning and an end. An injured person’s rehabilitation does not go on forever. At some stage, Mr Fowler will reach a point where his injuries have stabilised and he cannot gain any further use of his legs or strength in his upper body and mentally he has come to terms with his diability and pain levels. There will come a time when he has reached the maximum level of independent living he can achieve, he is working full time hours or the most hours he can work and he has returned to all aspects of his previous life albeit in a wheelchair. As has been foreshadowed in the medical evidence, Mr Fowler will have continuing needs to maintain the maximum level of living and ability, but they may no longer be provided as part of the process of rehabilitation.
For that reason while part of the process of rehabiliation, the things separately listed in the definition of treatment and care including aids and appliances, prostheses, modifications to home, transport, workplace and educational facilities need to be listed so that statutory benefits can be provided after the “process” of rehabilitation concludes.
In December 2023 the claimant was having six therapy sessions a week, counselling every fortnight and seeing other health practitioners in order to maximise his function.[46] The claimant’s statement[47] of 17 January 2025 includes details of six therapy sessions a week, counselling every week or every month and other treatment needs. The insurer has not provided any evidence to the contrary. It would appear that Mr Fowler’s process of rehabilitation was, as of 17 January 2025, still continuing.
[46] Ms Tabone’s report is referred to at paragraph 96.
[47] See paragraph 113 above.
The insurer submitted[48] that the insurer was only required to compensate the claimant for additional losses, costs and expenses and that there should be some apportionment of the capital cost of a new vehicle to accommodate the claimant’s “ordinary day to day living expenses” such as his using the vehicle to drop and pick up his children. In my view it is important that s 1.3(2)(a) is not about compensating a claimant but sets a goal to “achieve the optimum recovery” and “maximise” the injured person’s “return to work or other activities.” The definition of treatment and care refers to the “maximum level of independent living … full physical, mental, social and vocational ability” and the “full” inclusion and participation in life. The insurer is required to pay for treatment and care that helps the claimant achieve these goals which may include ordinary day to day activities such as picking up and dropping off his children, doing the shopping or going to work.
[48] At [32] – [37] and [47] of the 24 September 2024 submissions.
If Mr Fowler did not have an appropriately modified motor vehicle then he may be able to pick up and drop off his children at school, but he will not be able to independently get out of the car and mingle with other parents and get back in. He will not therefore be able to participate in all aspects of life that he enjoyed before his accident. If he does not an have an appropriately modified vehicle then he has to have a support person or someone at each end of his trip to help him retrieve or stow his wheelchair. That is not the maximum level of independent living. It should also be noted that the claimant’s treating psychologist noted the claimant’s difficulties in adjusting to his injuries and the level of pain and pointed to the benefits to his mental health and fitness of returning to his pre-accident activities.
The totality of the medical evidence, including the evidence provided by Ms Tabone of Momentum Rehab, and in particular her report of 8 December 2023 satisfies me that the provision of the Kia car purchased by Mr Fowler in June 2024 was, and is, an integral part of the process of his rehabilitation enabling him to maximise his independence, achieve his full vocational ability and fully particiate in all aspects of his personal and family life.
In my view, the facts and circumstances of Mr Fowler’s case satisfy me that, at the current stage of the rehabilitation process, and in the light of his physical and psychological state that the purchase of a new car which could be modified to enable independent travel or transport and the fullest possible inclusion and participation in aspects of life is a form of treatment and care within the definition in s 1.4.

The practical difficulties identified by the insurer

The insurer has raised a number of objections or concerns should the purchase of a new car be found to be treatment. I will deal with the significant ones as I am not certain they are as problematic as foreshadowed.

Partial recovery vs partial payment

The insurer notes that there is no ability for a claimant to partly recover the cost of a statutory benefit or for the insurer to partly pay for it. That may be correct, but the legislation does not prohibit negotiation and compromise.
For example, an injured person may need to have his bathroom modified to accommodate accident-related injuries and may want to have European gold taps in that bathroom at a cost of $10,000. The insurer may want to pay $1,000 for generic chrome fittings only. A dispute about the reasonableness of the cost of the modifications (in particular gold versus chrome taps) could be referred to the Commission for determination by a merit reviewer but, one would hope and expect that an insurer and a claimant would discuss the matter and attempt to resolve the matter first. For example the insurer may agree to modify the bathroom including installing the gold taps and the claimant may agree to pay for the difference in price between standard taps and the gold variety.
The claimant had a vehicle (the Pajero) which was modified, although the hand controls may have been removed and installed in the Kia (recommended by Ms Tabone). As a part of any negotiation process that could have taken place between the claimant and Youi before the purchase of the Kia, the trade in price for the Pajero could have been factored in.
I also note that the LTCS Guidelines for both transport and home modification permit agreements to be entered into between an injured person and the Authority including agreement as to ownership. While there is no similar provision in the MA Guidelines, there would appear to be nothing preventing the negotation, settlement and documentation of the arrangements for the purchase of a new car between the licensed insurer and the claimant covering its use, ownership and insurance.

Mileage versus reasonable costs

The insurer submit that s 3.24(1)(b) requires Youi to meet the claimant’s mileage costs in travelling to treatment. Mileage costs are said to include more than the cost of the petrol to get there but includes wear and tear. I have not been taken to the provision which the claimant relies on. Clause 33 of the MAI Regulation provides a rate per kilometer for an injured person using a private car to attend medical and health reated examinations under ss 6.27(5) and 7.28(5). There is no provision in the MA Guidelines of which I am aware that sets a rate for travel to and from treatment appointments.
If the claimant uses his own vehicle to access treatment, the legislation provides that the claimant is entitled to the reasonable costs of travel to obtain treatment. Followig on from paragraph 207 above, as part of the negotiations around the purchase of a vehicle by the insurer, agreement could be reached as to how travel to obtain treatment would dealt with once the vehicle was delivered.
In the absence of any agreement, the relevant considerations for the decision maker in any dispute about travel expenses would likey include that the insurer had paid for the vehicle. Whatever the standard rate is for “mileage”, it may be decided that rate is not the reasonable rate to adopt, and the merit reviewer may find some other rate or basis for payment.

Not a one off, and what of the next car?

As the purchase of Mr Fowler’s new car has been considered a form of treatment and care (as part of his rehabilitation), if there is a dispute about whether that new car is related to the injuries resulting from the accident or if there is a dispute about whether that new car is reasonable and necessary in the circumstances, that dispute will need to be referred to a Medical Assessor. Following that, and assuming the purchase was allowed there may then possibly be a merit review matter concerning the reasonable cost of it.
Any decision about the current car will not bind the relevant insurer to commit to buying Mr Fowler a new vehicle every five years or so. If Mr Fowler wants a new vehicle in five years time he will ask the relevant insurer at that time and the relevant insurer will need to decide whether it is reasonable and necessary in the circumstances as they are at that point in time. Mr Fowler’s rehabilitation may be at an end and his circumstances may have changed. His children will be in high school and may not need to be dropped and picked up from school, Mr Fowler may have further adapted to his new way of life, he may have achieved greater functional recovery and he may have been promoted and no longer need to travel for work.

Premium setting

The insurer raised[49] difficulties with premium setting by insurers if the capital cost of a motor vehicle could be both a statutory benefit and a loss to be compensated in a damages claim. The insurer noted that statutory benefits are paid by the relevant insurer which will (in accordance with s 3.2(3) move from Youi to the LTCS Authority at a point in time five years after the accident. The insurer says that actuaries will have difficulty determining how to treat the cost of motor vehicles because they will not know what claimants are going to claim the cost of a new car in their statutory benefits claim or what claimants will claim it in their damages claim.
[49] At [51] – [59] of the 12 February 2025 submission.
As indicated earlier, it is not entirely clear that the ability to claim damages for travel and accomodation extends to the capital cost of a motor vehicle, therefore the issue raised may not be a problem.
Mr Fowler’s case gives another example of the problems for actuaries. Claimants like Mr Fowler are entitled to recover the cost of travel expenses incurred in attending treatment and the additional costs of someone attending with them (in Mr Fowler’s case to help with the stowage and retrieval of his wheelchair). Actuaries presumably have factored in those travel expenses when setting premiums. If what Ms Tabone has recorded is correct and NDIS is paying for something that Youi has a liability to pay for, and that is happening in more than just Mr Fowler’s claim, presumably actuaries will have the same difficulty in predicting which claimants will claim travel expenses from the relevant insurer as opposed to claiming travel expenses from a Federal scheme.

SECTION 3.24(1)(B) – IS THE NEW VEHICLE A MEANS TO OBTAIN TREATMENT

Section 3.24(1)(b) provides that an injured person is entitled to the reasonable and necessary travel expenses incurred in order to obtain treatment and care.
The claimant has provided evidence in his statement about a single incident when a taxi did not turn up and he was required to catch an Uber and the Uber driver was required to dismantle and then reassemble the claimant’s wheelchair. The evidence from Mr Ayling[50] includes a reference to four occasions when treatment sessions were cancelled due to the claimant having difficulty obtaining transport. The claimant and Ms Tabone[51] document the provision of gratutious services provided by the claimant’s wife in taking the claimant to treatment and the claimant in his statement is of the view the insurer is also providing commercial support services to assist him with wheelchair stowage and retrieval associated with attending medical and other appointments.
[50] See paragraph [86] above.
[51] See paragraph [91] above.

The insurer has been critical[52] of the evidence provided by the claimant and says while there is evidence of him taking seven trips a week to access treatment,there is no evidence as to the current arrangements and how long this regime of treatment will continue.
[52] Paragraph [45] of the 24 September 2024 submissions.
The insurer has not put forward any medical, treatment or rehabilitation evidence and that it was the claimant who has provided copies of various reports provided by the insurer’s own rehabilitation consultant. The insurer would be paying the claimant his weekly benefits and would therefore know the hours he is working each week and whether he is back to full time pre-injury hours or not. The insurer would also be aware of the claimant’s past treatment appointments, as presumably it has paid for them. The insurer is likely receiving AHRR forms and approving treatment in advance. The insurer would appear to be in a good position to analyse the claimant’s treatment (including rehabilitation) plan and needs.
The insurer has provided no evidence as to what it has paid in for travel expenses incurred under s 3.24(1)(b) including the commercial services it may have provided. I note Ms Tabone suggests that Youi may not in fact be paying some of the travel expenses that it should be paying and that some of Mr Fowler’s support services are being paid for by the Federal Government’s NDIS scheme. Ms Tabone in her 8 December 2023 report estimates at $44,584.80 the cost of travel expenses if Mrs Fowler was not providing gratutious assistance[53] and NDIS was not providing commercial assistance.
[53] It is not entirely “gratuitous”. While she is not being paid to do it, the evidence suggests she reduced her working days from five days a weed to three days a week after the accident suggesting a financial loss to the family unit for her services.
In my view if the claimant is incurring about $45,000 a year in travel expenses, then it may be reasonable for the insurer to pay for a modified vehicle, which would enable the claimant to independently access those services himself if that regime of treatment was to continue for more than a year or two. Again as part of any negotiation process, terms could be entered into as to the ownership, insurance upkeep and ongoing mileage in respect of that vehicle.
I am not of the view that I have sufficient evidence to make a decision as to whether the travel expenses incurred by the claimant to obtain treatment are substantial enough to warrant the purchase of a vehicle as a “reasonable and necessary cost of travel” to obtain treatment.
In the light of my decision on the treatment definition issue, it is not in my view necessary for me to further consider this in any event.

CONCLUSION

While I am not of the view that the purchase of the Kia Carnival in June 2024 is treatment and care because it is “transport modification”, I am of the view that the purchase of the Kia Carnival in June 2024, is a form of treatment as the evidence establishes it is a part of the claimant’s rehabilitation and is enabling him to attain and maintain the maximum level of independent living, a return to his full vocational ability and so he can fully participate in all activities of life including those with his children.
If there remains a dispute about the relationship of the purchase of the vehicle to the injuries sustained in the accident or the reasonableness and necessity of that purchase, that is a medical assessment matter which the Commission should refer to an appropriate decision maker.
If there remains a dispute about the cost of the vehicle, that is a merit review matter and either party can refer that dispute to the Commission.

COSTS

The claimant seeks costs on the exceptional costs basis under s 8.10 of the MAI Act. The insurer’s representative indicated at the second preliminary conference that the insurer would not oppose such an order.The insurer seeks costs beyond the regulated fees pursuant to s 8.3(4) of the MAI Act. The claimant did not oppose such an order.
Senior Counsel have represented both sides and I have been very much assisted by their submissions. The issue in this matter was novel and complex and in my view both parties should be entitled to costs beyond the regulated fee.
I have no power to assess the insurer’s costs. A Merit Reviewer has power to assess the claimant’s costs in the absence of any agreement[54]. I do not propose to assess the actual costs as part of this dispute resolution process. Should the parties be unable to agree on the claimant’s costs then either parties can refer that dispute for Merit Review.
[54] Schedule 2(1)(aa) of the MAI Act.

[2025] NSWPIC 82

12 March 2025