Irani v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Irani v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 63
CLAIMANT:	Jim Irani
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	23 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute about cost of treatment and care; section 3.24; definition of treatment and care; definition of attendant care services; costs of caring for pets, animals, dog walking, dog washing; whether domestic services; whether care for pets or animals is treatment and care for the injured person; section 3.31(3) discretion to pay where statutory benefits otherwise not payable; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION The reviewable decision is about whether the cost of treatment and care provided to the claimant is reasonable for the purposes of s3.24(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 affirmed.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Jim Irani (the claimant) and the insurer about whether the cost of treatment and care provided to the claimant is reasonable for the purposes of
s 3.24(1)(a) of Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 5 April 2022.
The claimant made an application for personal injury benefits under the MAI Act, including a claim for the cost of dog washing and dog walking services.
The insurer initially approved payment of the cost of dog washing and dog walking services on compassionate grounds and not because such costs were payable under the MAI Act.
On 2 May 2023 the insurer advised the claimant that such payments would no longer be made.
The claimant requested an internal review of the insurer’s decision dated 2 May 2023 to cease payments for dog washing and dog walking services after 12 months.
On 24 May 2023 the insurer issued their internal review decision in which the insurer affirmed their decision to cease payments for dog washing and dog walking services on the basis such costs were not recoverable under the MAI Act.

The claimant has made an application for a merit review of the insurer’s internal review decision dated 24 May 2023 (the Application).

SUBMISSIONS

The claimant submits he is entitled to payment of statutory benefits for the walking and washing of his dogs as part of the reasonable cost of his treatment and care pursuant to s 3.24 of the MAI Act.
The claimant relies on the report of Carol Hayek dated 23 June 2023 in support of the claimant’s need for those services as part of his treatment and care. However, whether there is a reasonable need for the service to be provided as a result of the motor accident is not a merit review matter but is a medical assessment matter. Accordingly, I do not have jurisdiction to determine whether there is a need for these services as a result of the motor accident. In any event, I note the insurer concedes the need for dog walking and dog washing services relate to injuries sustained in the subject accident.
The insurer submits, however, that to date payment of such services has been made on a compassionate basis but otherwise, these services do not fall within the scope of statutory benefits payable under the MAI Act.

REASONS

Issues

The insurer, in my view, erroneously relies on s 3.26 of the MAI Act in their submissions. Section 3.26 covers statutory benefits for loss of capacity to provide gratuitous domestic services to an injured person’s dependents, as defined in the MAI Act.
In my view, it is clear s 3.26 has no application to the provision of services to or in connection with an injured person’s pets. Pets do not fall within the definition of dependents. As the claimant also does not argue for the application of s 3.26 (presumably for the same reasons I consider it clear that it has no application in the circumstances of this dispute) I will not address the section further.
The issue to be determined is whether dog washing and dog walking services is “treatment and care” within the meaning of the MAI Act for the purpose of statutory benefits payable under s 3.24.

The legislation

Section 3.24 relevantly provides:
“(1) 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) ...”
Section 3.31 relates to limits on statutory benefits for particular treatment and care. The limits under s 3.31 are not relevant to this matter. However, pursuant to s 3.31(3) the insurer is not prevented from paying the costs of treatment and care of a kind not covered by the MAI Act and therefore of a kind the insurer is not required to pay as statutory benefits. As noted, despite their position the insurer decided to pay for the costs of dog washing and dog walking for the first 12 months following the accident on compassionate grounds, as permitted by s 3.31(3).
However, it is clear s 3.31(3) gives the insurer a discretion to pay meaning the insurer may exercise the discretion at any time not to pay, or not to continue to pay, if it is not required to pay the costs as statutory benefits.
Pursuant to s 1.4 of the MAI Act “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 costs of the kind of services in dispute are not prescribed by the regulations.
The costs of dog washing and dog walking services can only fall within “attendant care services” in the definition of “treatment and care”, if at all.
Pursuant to s 1.4 of the MAI Act “attendant care services” means:
"… services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
Whilst the list of examples in the definition of “attendant care services” is not stated as being exhaustive, dog washing and dog walking cannot be categorised as personal assistance, nursing, or home maintenance. Such services would be considered “domestic services”, if at all.

Caselaw

The question of whether caring for pets falls within the ambit of domestic services has been judicially considered by the courts in a number of cases. These cases largely deal with this question in the context of damages for gratuitous domestic services under the common principle in Griffiths v Kerkemeyer [1977] HCA 45 (1977) 139 CLR 161 (Griffiths v Kerkemeyer). In Griffiths v Kerkemeyer the High Court of Australia held that if a claimant’s injuries have created a need for care or for domestic services, they are entitled to recover the cost of such services whether they are provided on a gratuitous or commercial basis.
Whilst the present case relates to payment of statutory benefits and not damages at common law, it is well established that domestic services under legislation such as the MAI Act are akin to domestic services of the kind the subject of common law damages formerly known as Griffiths v Kerkemeyer damages. Various legislation now prescribes and limits the basis on which an injured person is entitled to statutory benefits or damages for domestic services, including the MAI Act and the Civil Liability Act 2002.
As noted, the purpose of such legislation is to limit the basis (as compared to the previous common law position) upon which statutory benefits or damages are payable in relation to the provision of domestic services to or on behalf of an injured person. Where legislation limits compensation or damages previously available at common law, unless expressly provided for in the relevant legislation it cannot be the intention of the legislation to expand on the nature or type of services in respect of which statutory benefits or damages are recoverable for provision of domestic services.
Dog washing and dog walking is not expressly provisioned for in the MAI Act or the Motor Accident Injuries Regulation (the Regulation). The question is whether such services are domestic services and therefore fall within the definition of “treatment and care” (as attendant care services) for the purpose of statutory benefits payable under s 3.24 of the MAI Act. For the reasons outlined at paragraphs 23 to 25 above, the common law cases provide relevant authority in circumstances where “domestic services” is not defined in the MAI Act and the kind of services in dispute is not expressly provided for in the MAI Act, the Motor Accident Guidelines (the Guidelines) or the Regulation.
The question of whether caring for pets falls within the ambit of domestic services was considered by the New South Wales Court of Appeal in Geaghan v D'Aubert [2002] NSWCA 260 (Geaghan).
In Geaghan the cross-appellant claimed compensation for the gratuitous care by her husband of her three dogs and eight horses. The cross-appellant owned the three dogs and two of the horses prior to the accident and cared for them. After the accident the cross-appellant’s husband took over the looking after of the dogs and horses. At first instance the court held a claim in relation to the care of the animals was not maintainable because the activities concerning the dogs and horses was a hobby and therefore not domestic services.
The cross-appeal was confined to the three dogs and one horse, all of which the cross-appellant had before the accident.
The New South Wales Court of Appeal in Geaghan noted [at 57] neither counsel was able to point to any decision where gratuitous care of pets as a hobby had been allowed under Griffiths v Kerkemeyer. The Court of Appeal held the costs of services in relation to caring of pets were not recoverable as domestic services with Stein JA stating [at 61 to 66]:
“I do not believe that Griffiths v Kerkemeyer, or any of its extensions, includes the provision of care to an injured persons’ pets or a hobby. The cases have accepted domestic care at home, in the garden and shopping. But counsel has found no case which extends domestic assistance to the care of domestic pets or the retention of a hobby.
It might be that no relevant ‘need’ of a plaintiff to the provision of such a service as pet care or a hobby has been established. Alternatively, it may be that if a plaintiff was unable to look after a pet, or lost a hobby, that loss more appropriately sounded in general damages. It may also be that such a loss may be seen as too remote a damage to be laid at a defendant tortfeasor’s door.
Some of these types of considerations are inherent in the discussion of Mason P in Sullivan v Gordon (at pp 322 – 324). Mason P stressed the exceptional nature of Griffiths v Kerkemeyer and the difficulty of recognising what ‘needs’ of a plaintiff are to be included, as well as their proper limits.
...
In my view, any consideration of an extension of the categories of needs under Griffiths v Kerkemeyer should be carefully evaluated, as for example in Sullivan v Gordon and Sturch v Willmott (1997) 2 Qd R 310.
Whichever way it is put, on a ‘needs’ basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff’s hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.”
Caring for pets in the context of a claim for domestic services was also the subject of discussion by the New South Wales Court of Appeal in Teuma & Anor v C P & P K Judd Pty Ltd [2007] NSWCA. The appellant in that matter did not contend that Geaghan had been wrongly decided. The Court of Appeal therefore did not consider the question but Ipp JA with whom Hodgson JA and Basten JA agreed made the following observations [at 48 and 49]:
“[the defendant] relied on Geaghan v D’Aubert (2002) 36 MVR 542 where Stein JA (with whom Handley JA and Foster AJA agreed) held that Griffiths v Kerkemeyer (1977) 139 CLR 161 services did not include the provision of care to an injured person’s pets or a hobby: see at 549 to 550, [61] to [66]. Leave was not sought to argue that Geaghan was wrongly decided, and the appellants did not contend that it was. Accordingly, I do not propose to consider that question. I shall assume the correctness of the proposition upheld in that case.
I would add, however, that, consistent with the authority of Van Gervan v Fenton (1992) 175 CLR 327, for damages to be awarded for the provision of care of family pets, Mrs Judd had to prove a need for those services. The mere fact that, by reason of her injuries, Mr Judd provides care for pets that, prior to her injuries, she provided, does not establish that she is in need of those services. The concept of “need” involves more than a mere desire. Compensation for need does not encompass compensation for services that are not reasonably necessary for the plaintiff’s well-being. No evidence of such a need was led in regard to the services provided in looking after animals. I therefore consider that Mrs Judd did not prove that she had such a need. Thus, in assessing damages under this head, the time taken by Mr Judd in looking after the animals must be excluded from the time he spends in providing domestic care.”
The question of whether caring for pets fell under domestic services was also considered in Schofield v Hopman & Anor [2017] QSC 297 (Schofield). In Schofield, the Court reaffirmed the principles outlined in Geaghan that a plaintiff cannot recover economic loss for the care of pets. At paragraph 195 the court stated in Schofield:
“Counsel for the defendant argued that the Griffiths principle did not extend to the care provided to pets. It certainly involves an extension of the Griffiths principle. No authority was cited which authorised such an extension. Counsel for the defendant cited Geaghan v D’Aubert [128] as express authority against the extension. The decision pre-dated CSR Ltd v Eddy [129] but is plainly in conformity with the reasoning there.”
The Court cited paragraphs 61 to 66 in Geaghan and went on to state [at 196]:
“As McMurdo P, with respect, accurately summarised in Clement, one effect of the decision in CSR Ltd v Eddy [131] is that the principle identified in Griffiths v Kerkemeyer ‘should not be used by way of analogy to extend an award of damages in any case where its use is not covered by authority’.[132] That applies here.”
More recently, the New South Wales Supreme Court considered the issue of whether caring for pets is a domestic service in Makaroff V Nepean Blue Mountains Hospital Health District [2019] NSWSC 715 (Makaroff). Once again, the Court endorsed and followed Geaghan. In doing so, the Court stated in Makaroff [at 553]:
“If the horses are to be characterised as pets, or their care as a hobby, the plaintiff is not entitled at law to recover with respect to their future care: see Geaghan at [61]-[66]”.
Accordingly, the relevant authorities commencing with Geaghan establish that services provided in relation to caring for pets (which would include dog washing and dog walking) are not domestic services of a kind in respect of which compensation or damages are payable.
As “domestic services” is not defined in the MAI Act the common law position is to be considered in so far as the phrase “domestic services” has been judicially considered in a similar context. Applying the common law authorities, caring for pets does not fall within the scope of domestic services under the MAI Act and therefore is not treatment and care for the purpose of s 3.24. Accordingly, the cost of such services is not a cost recoverable or for which statutory benefits are payable as costs of treatment or care under s 3.24 of the MAI Act.
As the costs of caring for pets do not fall under the costs of treatment and care covered by s 3.24 and there is no provision for statutory benefits to be payable for such costs elsewhere in the MAI Act, the Guidelines, or the Regulation the claimant is not entitled to statutory benefits for the cost of dog washing and dog walking.
Whilst the insurer agreed to pay statutory benefits for such costs for the first 12 months following the accident, s 3.31(3) of the MAI Act permits this at the discretion of the insurer. There is nothing in the MAI Act, the Guidelines or the Regulation that requires the insurer to continue to make such payments where the discretion to pay was exercised. The insurer may exercise the discretion to pay, or not to pay, at any time in circumstances where the insurer is otherwise not required to pay statutory benefits under the MAI Act.

CONCLUSION

For the reasons set out above statutory benefits are not payable under the MAI Act as costs of treatment or care, or otherwise, in relation to the cost of dog washing and dog walking. Whilst the insurer may exercise a discretion to pay such costs under s 3.31(3) and in this case, had done so, the insurer is entitled to exercise the discretion not to pay at any time, regardless of whether payments were previously made.
Accordingly, the reviewable decision is affirmed.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;

· the Guidelines, and
· the Regulation 2017.

[2023] NSWPICMR 63

23 October 2023