Frost v NRMA - [2021] NSWPICMR 52

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Frost v NRMA [2021] NSWPICMR 52
CLAIMANT:	Lillian Frost
INSURER:	NRMA
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	16 December 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about cost of treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017; definition of treatment and care; definition of attendant care services; tasks associated with a business or commercial enterprise; whether care for livestock is treatment and care for the injured person; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	The reviewable decision is about whether the cost of treatment and care provided to Ms Lillian Frost (the Claimant) is reasonable for the purposes of section 3.24(1)(a) of the Motor Accident Injuries Act 2017 (MAI Act), and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is: a. affirmed.

Background

There is a dispute between Lillian Frost (the Claimant) and the insurer about whether the cost of treatment and care provided to the Claimant is reasonable for the purposes of section 3.24(1)(a) of the MAI Act.
The Claimant was involved in a motor accident on 5 December 2019.
The Claimant lodged an application for statutory benefits on 13 December 2019.
The Claimant operates a business from a rural property that trains horses for sale, riding and showing.
On 21 January 2020 Ms Emma Krizaj, occupational therapist carried out an activities of daily living assessment and report in respect of the Claimant’s care needs as of 21 January 2020.
Relevant to this merit review is Ms Krizaj’s recommendation in her report dated 4 February 2020 that the Claimant be provided with hoof trimming services in respect of the horses on her property for a period of 10 weeks.
On 22 September 2020 the Claimant advised the insurer “all horses currently owned by [the Claimant] are livestock retained here on the rural property for commercial, income producing purposes, not as a hobby or as pets…” and that the insurer’s refusal to pay for hoof trimming “is a substantial economic loss” and will impact “future earnings based on [the horses’] previous and future intended use and purpose”. In response the insurer advised the Claimant that the CTP scheme also covers loss of income and listed the various documents that would be required in order to assess any entitlement to same.
On 2 October 2020 the insurer declined the claim for hoof trimming made under section 3.24 of the MAI Act in relation to treatment and care on the basis the services were related to pet care. The insurer relied on the decision of Geaghan v D’Aubert [2002] NSWCA 260 (Geaghan), which found pet care is a hobby and does not fall under attendant care. The insurer also had regard to the definition of “attendant care services” in the MAI Act and determined that pet care did not fall within the scope of that definition.
The Claimant requested an internal review of the 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frost v NRMA

Details

AGLC: Frost v NRMA [2021] NSWPICMR 52
Case: [2021] NSWPICMR 52
Decision Date: 16 December 2021

CaseChat Overview and Summary

Frost was injured in a motor accident and sought a review of a decision by NRMA regarding the cost of his treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017. The dispute centred on the interpretation of the terms "treatment and care" and "attendant care services," specifically whether certain tasks associated with Frost's care for his livestock qualified as treatment and care for him. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue was whether the care Frost provided to his livestock, including feeding, watering, and general maintenance, constituted treatment and care for him within the meaning of the Act. Additionally, the court had to determine if these activities were tasks associated with a business or commercial enterprise, which would exclude them from being considered treatment and care. The definitions provided in the Act and the nature of Frost's activities were key to resolving these questions.

The Tribunal considered the statutory definitions and the purpose of Division 3.4, which aims to compensate for treatment and care reasonably required by the injured person due to their injuries. The Tribunal concluded that the care Frost provided to his livestock was not treatment and care for him because it was primarily related to his business operations, not his injuries. Consequently, the Tribunal affirmed the reviewable decision, holding that the costs associated with Frost's care for his livestock were not compensable under Division 3.4.

No additional orders were made beyond affirming the reviewable decision.

Orders