Lau v QBE Insurance (Australia) Limited
[2024] NSWPIC 724
•6 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lau v QBE Insurance (Australia) Limited [2024] NSWPIC 724 |
| CLAIMANT: | Chi Chiu Lau |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Cassidy |
| DATE OF DECISION: | 6 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; claimant requested painting and handyman services; insurer rejected request; claimant lodged application for medical assessment on basis painting and handyman services were treatment; proceedings referred to member for determination under schedule 2(3)(n) whether the services were “treatment and care” within the definition and whether the insurer was liable for this part of the claim; claimant seriously injured and could not do the work and paid commercial provider to do the work; both parties relied on clause 5.13 of the Guidelines and member found this did not apply; cases of Frost v NRMA, Suttie v QBE, BLI v Allianz and Haddad v Lifetime Care followed and applied; Member found painting and light installation services were not attendant care services, but cleaning services were a form of home maintenance or domestic services; Member found purpose of the services was to prepare the home for sale and was not treatment and care for the claimant; Held – painting and handyman services were not treatment and care and the expense was not a treatment and care expense and the insurer had no liability for it; costs awarded as per the Regulation $1,992 plus GST. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The painting and handyman services claimed by the claimant are not “treatment and care” as defined in s 1.4 of the Act. 2. The insurer is not liable under s 3.24 of the Act to pay for the claimed painting and handyman services in Mr Lau’s claim for statutory benefits. 3. The amount of the claimant’s costs in the miscellaneous claims assessment matter is assessed at $2,191.20 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Chi Chiu Lau was involved in an accident on 18 January 2023. Mr Lau was riding his bicycle in Carlingford when he came to an intersection. A car coming from the other direction turned right in front of Mr Lau. Mr Lau struck the vehicle and sustained a number of injuries including a burst, compression fracture and other fractures in his thoracic spine.
Mr Lau made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against QBE, the third-party insurer of the car that Mr Lau says caused the accident. QBE has accepted liability for the claim and has been paying Mr Lau his statutory benefits.
During the course of that claim, Mr Lau requested the insurer pay for commercial house painting and handyman services provided to the claimant on 6 March 2024.
On 4 April 2024 the insurer declined the request. The claimant sought an internal review and on 17 April 2024 the insurer affirmed their decision in an internal review.
On 23 August 2024 the claimant referred the dispute to the Personal Injury Commission (the Commission) for medical assessment of whether the commercial house painting services are reasonable and necessary in the circumstances and related to the injury caused by the accident.
The claimant has provided an invoice dated 6 March 2024 from OMG Services for the work that was totalling $10,560 and subsequent submissions have revised the claim for painting and handyman services down to the sum of $6,202.50.
LEGISLATIVE FRAMEWORK
The scheme of statutory benefits
The MAI Act establishes a scheme for the payment of statutory benefits under Part 3 and the awarding of damages under Part 4 to persons injured in motor accidents in New South Wales. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Section 3.24of the MAI Act provides that:
“(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 …
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
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.”
Attendant care services are also defined in s 1.4 as:
“services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
Section 3.28(1) provides that a person is not entitled to statutory benefits more than 26 weeks[1] after the accident if their only injuries are threshold injuries and if they are wholly or mostly at fault. On 27 April 2023, QBE wrote to Mr Lau accepting he has an ongoing entitlement to statutory benefits because he was not at fault, did not contribute to his accident and has a non-threshold injury.
[1] For accidents occurring after 1 April 2023 this has been extended to 52 weeks.
Dispute resolution
In a statutory benefits claim, disputes about treatment can be resolved by Merit Reviewers, Medical Assessors and Members of the Commission. Schedule 2 to the MAI Act declares certain types of matters to be merit review matters, others to be medical assessment matters and others to be claims assessment matters. In the context of this dispute:
“(a) Schedule 2(1)(i) permits a merit reviewer to determine disputes about the cost of treatment and care, and
(b) Schedule 2(2)(b) allows a medical assessor to determine whether any treatment and care claimed, “is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.”
The dispute in the current proceedings is a dispute between Mr Lau and QBE about whether the painting and handyman services from 6 March 2024 are “treatment and care” (treatment) and therefore payable as a statutory benefit. This dispute has been referred to the Commission as a medical assessment matter.
There is no specific power given in Schedule 2 to Merit Reviewers, Medical Assessors or Members to determine a dispute about whether some thing or some service is treatment within the meaning of the definition in s 1.4 of the MAI Act. It has been held, by other decision makers of the Commission (including by me) that there may be an “inherent power” on the part of Merit Reviewers and Medical Assessors to determine that issue if they have a dispute about the cost of treatment or the medical basis for treatment before them.
Schedule 2(3)(n) provides a Member of the Commission 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”. It is my view that this provision clearly gives power to Members to determine a dispute about whether some service or some thing is treatment and care and whether an insurer may have a liability to pay for it.
In a dispute such as Mr Lau’s the process of resolving the dispute would involve:
(a) a determination by a member of whether what is claimed is “treatment and care”;
(b) if it is not, the medical assessment proceedings are dismissed, if it is and a dispute remains about whether it is reasonable and necessary or related to the injuries sustained in the accident, then that is a declared medical assessment matter, and it can be referred for assessment by a Medical Assessor, and
(c) if, at the conclusion of the medical assessment, there remains a dispute about whether the cost is reasonable or not, then that is a merit review matter which can be referred to a Merit Reviewer.
CONSIDERATION OF THE ISSUES IN DISPUTE
Claimant’s original submissions
The submissions filed with the application refer to the claimant’s age (48) and circumstances of the accident, his injuries and disabilities and initial treatment.
The claimant says at [12][2] that the request for painting services comes within the definition of attendant services being a form of home maintenance. The claimant says in accordance with cl 5.13(d) of the Motor Accident Guidelines (the Guidelines) home maintenance may be approved as a statutory benefit if the claimant was required to do the task before the accident. The claimant says he was responsible for the maintenance of his property before the accident.
[2] The numbers in square brackets correspond to the paragraph numbers of the submissions.
The claimant also says at [13] that what is an “everyday task” within the contemplation of the definition of attendant care services should not be interpreted narrowly but should be interpreted as “ordinary tasks” and that house painting is an ordinary task that need to be done every few years as part of the maintenance of the home.
The claimant summarises at [14] and [15] the medical evidence that supports his inability to do the painting and other work himself.
Insurer’s original submissions
The insurer noted at [2] that the house painting was performed on 6 March 2024 and that the claimant sold his property on 14 April 2024. The insurer also notes at [6] the claimant’s occupation is that of a software developer.
The insurer submits at [10] that “house painting undertaken for a commercial purpose (to sell the claimant’s property)” is not attendant care services and therefore is not treatment and care and cites the case of Frost v NRMA[3] and at [11] BLI v Allianz Australia Insurance Limited.[4]
[3] [2021] NSWPICMR 52 (Frost).
[4] [2024] NSWPIC 436 (BLI).
The insurer cites at [12]-[14] cl 5.13 of the Guidelines and says there is no evidence that house painting was something Mr Lau did before the accident and that he had not painted this particular townhouse since he had purchased it in 2012.
The insurer cites at [16] one of the objects of the MAI Act[5] which is:
“to encourage early and appropriate treatment … to achieve optimum recovery of [injured persons] … and to maximise their return to work or other activities.”
[5] Section 1.3(2)(a).
The insurer submits the MAI Act is designed to cover treatment and care for a person’s injuries and that the installation of additional lights, cleaning, removing adhesive from glass and so on is not treatment for the claimant’s injuries and that they should not be allowed.
The insurer submits at [22] that house painting is not treatment and therefore cannot be the subject of a medical assessment matter.
Preliminary conference
A preliminary conference was held by MS Teams on 9 October 2024. There was a discussion about the two cases referred to by the Insurer and a recent case of Haddad v Lifetime Care and Support Authority.[6]
[6] [2024] NSWPIC 96 (Haddad).
The parties agreed that there was no other treatment referred to in the Motor Accident Injuries Regulation 2017 and of the 11 types of treatment listed in s 1.4 of the MAI Act, the painting and other services in the OMG Services invoice were not home modifications necessary because of the claimant’s injuries and they are not treatment for the claimant’s actual injuries.
The parties appeared to agree:
(a) that the only type of “treatment” the disputed services could be is “attendant care services” which is defined as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”, and
(b) that painting, cleaning and home handyman activities are likely to come within the meaning of one of the examples given being “home maintenance”.
There was discussion about the meaning of “everyday tasks” including that:
(a) everyday tasks are not necessarily tasks that you do every day. For example, lawnmowing or laundry is an everyday task but not something that someone does every single day, and
(b) synonyms for “everyday” would include, usual, ordinary, mundane, routine or regular.
In the report I noted that the three cases discussed suggest that painting and handyman services will not always be disallowed in a statutory benefits claim and that it will depend on the facts and circumstances of the individual case. For example, spot painting might be an everyday type of task whereas painting the whole of a house inside and out over a four-week period may not. Replacing a single broken oyster light might be an everyday type of task but replacing 13 at once may not. It was also noted that the work (and not the products or tools) in respect of this invoice may be a matter for any damages claim made by the claimant (under s 4.5(1)(b)).
A timetable was set to provide the parties with the opportunity to resolve the matter and for final submissions.
The parties agreed that an assessment undertaken “on the papers” was appropriate.
Claimant’s further submissions
The claimant filed further submissions on 22 October 2024 with a statement from the claimant.
The claimant amends at [2]-[4] the scope of the dispute to services in the sum of $6,202.50 including labour costs of the painting (but not the paint) and other tasks.
The claimant notes at [5] the insurer’s apparent concession that the claimant is physically unable to do this work.
At [6] the claimant submits that the definition of attendant care is broad and gives examples and uses the word “includes” before those examples which permits “commercial attendant care services for a broad range of tasks.” The claimant says at [7] the definition should not be limited to activities of daily living because parliament would have used those words which are used elsewhere in the jurisdiction.
The claimant says at [8] that activities of daily living are different to “everyday tasks” and at [9] that the services in dispute are everyday tasks that should be compensable.
The claimant refers at [10] to the case of Haddad and the finding that an everyday task is a routine, usual or commonplace task and cites at [11] the Oxford English Dictionary definition of “everyday” which is “that which is familiar from daily experience; ordinary or commonplace things.” The claimant says at [12] that the tasks set out in the OMG Services invoice do not require any special skill education or qualification and that ordinary people would be expected to perform them without engaging a skilled tradesperson or professional.
The claimant submits at [13] that the scope of work is irrelevant, and I should reconsider my finding that a project or major endeavour would not be considered attendant care services and that in the case of painting should not be limited to “spot painting, touch up painting or small painting jobs in and outside the home” (Haddad at [50]).
Finally, the claimant submits at [14] that “home maintenance” is a specific example of the type of everyday task contemplated by s 1.4, that an ordinary person would consider house painting a type of home maintenance, which is a stated form of attendant care service. The claimant submits that this does not therefore require consideration of whether it is an everyday task or not.
The claimant seeks costs on an unregulated basis pursuant to s 8.10(3) saying there is an “unusual degree of factual or legal complexity” involved in the matter.
Insurer’s further submissions
The insurer again refers at [2] to the previously cited object of the act and says at [3] that “the legislature clearly intended to exclude large scale works for those with threshold injuries.”
The insurer notes at [4] that there has been no updated quote from OMG Services and while acknowledging the revision in terms of the cost of labour says at [5] there is no breakdown between labour and cost of the oyster light, no specification of the furniture that needed to be removed and why and what rooms were being painted.
The insurer again quotes at [6] cl 5.13 of the Guidelines and the requirement for tasks to have been done before the accident. The insurer refers to the claimant’s statement and submits at [7] that in 2010 he painted one bedroom and a bathroom over a couple of days and some touch up painting in about 2012.
The insurer says at [8] there is no evidence of the claimant’s handyman abilities, no evidence of previous projects or endeavours and at [9] no evidence that he could do the various tasks covered by the invoice.
The insurer maintains at [11] that painting services are not home modification but is a form of home improvement or maintenance and painting is not on the list of types of treatment and care in s 1.4.
If painting services are a form of “attendant care services”, the insurer says:
(a) painting is not done every day and is not a common or ordinary everyday activity [14];
(b) some types of painting (such as spot painting) could be home maintenance [15] however it must be an everyday task [16];
(c) painting the whole interior of a townhouse is not an everyday task [17] because it is not a frequent activity (the claimant has not done it in the 10 years he has owned the property), a significant amount of time and expense was involved, he would have had to take time off work and special tools would have been required, and
(d) the painting was contemplated as a necessary part of the sale of the premises to increase its value which is a “commercial purpose”.
The insurer citing BLI and Haddad says at [20]:
“Whether a special skill, education or qualification is required to undertake a task is irrelevant to whether it is considered an ‘everyday’ task. What is in issue is whether a task is an ordinary, usual or commonplace task that the claimant would have likely undertaken and was within the claimant’s skill set.”
REVIEW OF THE EVIDENCE
The application for statutory benefits (claim form) was signed and dated 27 January 2023. Mr Lau describes the accident as involving him effectively t-boning the car that had turned in front of him. He says he crashed into the side of the car and fell to the road.
He notes his injuries as scratches and bleeding on his right hip, leg and arm as well as a thoracic (T12) fracture.
Mr Lau says he was taken to Westmead Hospital and had lost six days work as a full time software developer.
The invoice from OMG Services in Burwood is dated 6 March 2024 and refers to a property at an address in Charles Street at Carlingford includes painting and handyman type jobs totalling $10,560. The tasks and the amount charged including goods and services tax (GST) are:
(a) paint ($7,480);
(b) install 13 oyster lights ($1,573);
(c) install two exhaust fans with lights ($209);
(d) clean skylight ($165);
(e) remove adhesive from glass ($121);
(f) clean backyard floor ($308);
(g) replace power point ($82.50);
(h) remove furniture ($275);
(i) clean balcony and blinds ($198), and
(j) fix exhaust fan ($148.50).
There is no additional detail provided for any of the above items and no breakdown between labour services and tools or any indication that it includes purchases (such as the paint, lights and fans).
The claimant has provided hospital records and radiological reports confirming his thoracic spine fracture (54% compression according to the 8 August 2023 CT scan). The claimant also relies on a report of occupational physician Dr Khan dated 9 November 2023. Ten months after the accident the claimant was still in pain and Mr Lau reported an increase of his pain on activity. He was still working restricted hours and Dr Khan thought this would continue in the future. Dr Khan was of the view the claimant could not carry out heavy manual handling jobs.
In a vocational and functional assessment report dated 23 February 2024 (following assessment on 31 January 2024[7]) Mr Ting, occupational therapist records:
“Mr Lau strives to maintain independence in personal care activities but encounters difficulty with tasks requiring bending down or leaning forward. This includes challenges in dressing in pants and brushing his teeth, although he manages to retain his self-care routine.
Residing in his own townhouse since June 2012, he was previously fully capable of managing all household responsibilities. Prior to the injury, his domestic duties included cooking two to three times a week, daily dishwashing, vacuuming twice weekly, nightly mopping of tiled floors, grocery shopping with his wife, conducting basic yard and car maintenance fortnightly, and other home maintenance tasks. He was also actively involved in childcare activities.
Post-injury, he has ceased activities such as dishwashing, vacuuming, mopping, window cleaning, and yard maintenance. He finds himself unable to perform tasks such as cutting up a watermelon and avoids any actions that involve bending, including bathing his younger son. This has also limited his ability to interact with his children in various activities. However, he continues to assist in preparing light meals.
His insurance has provided services including water jet cleaning of the yards every six months and house cleaning services for three hours every fortnight. Additionally, they have provided a floor mat, an armchair, and an office chair for his home use.”
[7] The report states the assessment occurred on 31 January 2023 but clearly that is an error and should be 2024.
My Ting recommends ongoing commercial assistance.
The claimant has provided a statement dated 17 October 2024. He says:
(a) in 2010 he lived with family in Dundas [3] and painted the bathroom and one of the three bedrooms in the home [4]. His family bought the equipment, did not pay him and it took him a couple of days to complete the job;
(b) in June 2012 he moved to the townhouse in Carlingford which had three bedrooms, two and a half bathrooms and was 295 square metres in size [5];
(c) the townhouse was built in 2007 and did not need painting when he moved in [6] but he did some touch up painting and threw away the paint and brushes;
(d) he decided to see the home in late February 2024 [8] and there were scratches and dents in the walls that needed to be fixed and walls that needed to be repainted and other handman repairs [9]. He was not advised to repaint or repair [10];
(e) he documents the accident and his injuries at [11] and [12] and says at [13] that there were many repairs and tasks he could not do;
(f) if he had not been injured, he could have painted the townhouse and did not need a professional painter [14]. He says he engaged OMG Services to paint the walls not the ceilings [15] and they painted a brighter white colour [16];
(g) he asked OMG Services to do handyman tasks that he could not do including:
(i)installing 13 new oyster lights – before the accident he had changed the bulbs but not the light fixtures, but he could have and would have done it himself;
(ii)the exhaust fans were something he could not and would not do before the accident (and therefore the $209 cost in the invoice is not to be included);
(iii)cleaning the skylight is something he could have and would have done as was removing stickers his children had placed on the glass wardrobe doors;
(iv)the backyard cleaning involved removing mould and weeks growing through the pavers and was something he did every three months or so;
(v)before the accident he had replaced power point covers every six months when they were broken, he could not do this after the accident because of difficulties holding a screwdriver;
(vi)the furniture had to be moved before the painting could be done and the claimant was unable to do this;
(vii)cleaning the blinds and the balcony was something he did every month, but he could not do it after the accident, and
(viii)the broken exhaust fan was repaired by OMG Services and that was something the claimant could not and would not have done (and therefore the $148.50 cost in the invoice is not to be included).
The claimant says OMG Services took 10 days to do the painting and handyman tasks and three people worked on the job but not 10 whole days. The painting was done room by room.
Mr Lau says he asked OMG Services to revise the tax invoice, but they would not but advised that the cost of paint and tools was about $4,000.
CONSIDERATION OF THE ISSUES
Does cl 5.13 apply in this case?
Both the claimant and the insurer have cited cl 5.13(d) of the Guidelines. This clause is contained in the “Threshold Injury” chapter, Part 5 of the Guidelines under a heading “limits to domestic services and home maintenance” and says (emphasis added):
“Domestic services and/or home maintenance may be approved as appropriate treatment and care for a person whose only injuries are threshold injuries if the domestic service and/or home maintenance is all of the following:
(a) required as a result of injuries caused by the accident
(b) required because the person has reduced fitness for domestic tasks
(c) reasonable and necessary in the circumstances
(d) required for tasks the person used to do before the accident
(e) safe and effective
(f) a properly verified expense as set out in Part 4 of these Guidelines.”
Neither party has referred to Table 5.1 in the Guidelines (directly beneath, but not referred to in cl 5.13) which appears to limit domestic services and home maintenance availability to 12 hours in total in the first four weeks, up to eight hours in total for weeks five to eight and up to six hours in total during weeks 9-52 after the accident. Clause 5.14 says this can be varied in agreement with the insurer where a certificate of capacity and fitness attests to the claimant’s inability to complete pre-injury domestic tasks.
As cl 5.13, Table 5.1 and cl 5.14 are all found in the Threshold Injury chapter of the Guidelines, it is doubtful that they were meant to apply to claimants such as Mr Lau, who have non-threshold serious injuries such as a burst thoracic spine fracture. As cl 5.13 specifically refers to persons with threshold injuries, in my view it clearly does not apply to Mr Lau and his claim for statutory benefits.
What are the relevant decided cases?
The parties have referred in their submissions to three cases, and there is, a fourth case concerning a Schedule 2(3)(n) matter about “treatment and care” that is also relevant.
The case of Frost involved a request for hoof trimming of horses which a claimant kept on her property. She ran a business at that property training, riding and showing horses. Merit Reviewer Ruschen noted the definition of treatment and care and the definition of attendant care services in s 1.4 and said after referring to the objects of the MAI Act:
“[30] … this suggests section 3.24 is designed to cover expenses for treatment and care for injured persons to directly address their injuries. The intention of section 3.24 is to assist in the Claimant’s recovery so that she is able to return to work, including hoof trimming, in a timely manner. It is not the intention of section 3.24 to arrange, through payment, for the Claimant’s work to be done in the meantime whilst she recovers. …
[31] This intention is supported by the wording of section 3.24 of the MAI Act, which provides that the Claimant is entitled to statutory benefits for treatment and care expenses incurred in connection with providing treatment and care for the injured person. In other words, the care is to be ‘for’ the Claimant personally and not for her livestock, her business or commercial enterprise or for a third party.”
Merit Reviewer Ruschen considered hoof trimming of livestock kept as part of a commercial enterprise was not a service for the claimant herself but for her business and therefore not a service which came within the definition of treatment and care and therefore not allowable.
In Suttie v QBE Insurance (Australia) Limited[8] Member McTegg was required to determine whether repairs to and maintenance of a complex irrigation system on a rural property was “treatment and care”. She found, based on the evidence, that the irrigation system which provided water to the commercial enterprise on the farm, the garden as well as safe drinking water to the house and therefore to the claimant, required constant maintenance. She was not satisfied however, on the evidence presented to her, that the invoice to repair a part of that irrigation system was for home maintenance and therefore was not attendant care and the insurer was not liable to pay for it.
[8] [2024] NSWPIC 355.
In BLI v Allianz the claimant requested the insurer pay for the exterior painting of his weatherboard home. The claimant had provided photographic evidence of the “tools” and he gave evidence that in the year before he had painted the interior of the house and had taken three weeks leave from work in order to complete the exterior painting. As the decision maker in that case I found at [65] that painting the exterior of a weatherboard home was a form of home maintenance. I was satisfied [71] that the claimant was intending to do the work himself. But I was not satisfied the painting work was an everyday task finding at [75]:
“When the above reasons are considered, the painting work that was proposed was a major undertaking, a significant project and not something that would ordinarily be contemplated by the phrase ‘everyday tasks.’”
The claimed painting services were not allowed.
Mr Haddad requested the relevant insurer pay for the painting of the interior and exterior of his home. The claimant gave evidence that home painting was something he had done before and was not out of the ordinary for him however as the decision maker in that case, I found that painting the whole of his house, inside and out, was not an everyday task or a routine or regular home maintenance job.
Are the claimed services “attendant care services” and therefore treatment?
The parties have agreed that if the painting and handyman services are “treatment” within the definition they must be a form of “attendant care services”.
The definition of attendant care services is, “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
The services requested in my view fall into three broad categories:
(a) painting services – the painting of the interior of a three bedroom, 2.5 bathroom home with the associated moving of furniture (presumably furniture against the walls) to allow the painting to occur;
(b) cleaning services – the skylight, backyard, balcony and blinds, and
(c) installation of lights (the claimant having revised the claim to exclude the installation and fixing of exhaust fans).
I will deal with each of these in turn.
Painting services
The claimant in his original submissions claimed that interior house painting was a form of home maintenance and I his further submissions as something an ordinary person would consider a form of home maintenance.
In BLI, I considered the painting of the exterior of a weatherboard home a form of maintenance. Weatherboards without paint will be exposed to the elements which might accelerate their deterioration. In Haddad I made at [47] the distinction between home maintenance and home improvement and at [50] said that “spot painting, touch up painting or small painting jobs in and outside the home might be a form of home maintenance”.
I do not accept that painting the whole of the interior of the claimant’s home is a form of “home maintenance” within the contemplation of the definition of treatment and care and is, on the evidence, more appropriately characterised as home improvement.
I reject the claimant’s submissions that the scope of the work is irrelevant and that allowable painting services should not be limited to just small painting jobs. Each case will be determined on the facts and circumstances of that case and the scope of the work is relevant. For example, painting the interior of a 12-room house would be an enormous undertaking if it was undertaken by a homeowner all at once, however if the injured homeowner was a professional painter who had, five years before the accident, painted a different room of his own home over the course of one weekend every month and had intended to paint every room again on the same basis the year after the accident that might possibly be something contemplated by the term “home maintenance.”
I do not accept the claimant’s argument that if a task comes within the meaning of one of the examples provided for in the definition of attendant care services that no consideration needs to be given to the words “everyday tasks.” The definition of attendant care services is services that aim to provide assistance with everyday tasks and gives examples. However, there are home maintenance tasks that are everyday tasks just as there are everyday domestic service tasks and domestic service tasks that are not everyday. For example, cleaning the interior of a skylight might be an everyday task, but cleaning the exterior of a skylight on a second story roof requiring a safety harness and rigging might not be. Assistance with preparing dinner on a weeknight might be an everyday domestic activity but assistance with preparing a birthday dinner for two dozen family members might not.
Cleaning services
Mr Ting, occupational therapist refers in his report to the insurer providing cleaning services to the claimant including “water jet cleaning of the yards every six months and house cleaning services for three hours every fortnight”.
I accept that cleaning the internal part of a skylight, the backyard, balcony and blinds is either home maintenance or domestic assistance both of which are examples of “attendant care services”. While the inside of a skylight and blinds might not be cleaned every day, cleaning them is a commonplace, routine or ordinary task that does not require specialist skills or tools. Cleaning a balcony and the backyard is also a home maintenance or domestic assistance task likely to be undertaken more frequently that the skylight or the blinds and also a usual type of task a homeowner would do albeit not every day.
Cleaning services therefore could be treatment within the meaning of the definition of s 1.4 of the MAI Act.
Installation of lights
Mr Lau claims the cost of the installation of 13 oyster lights. The insurer notes in its further submission there has been no breakdown of the cost of installing the lights and the cost of purchasing the lights.
The claimant concedes he has replaced bulbs before but not the lights but says he would have done it himself. There is no evidence from the insurer to suggest an electrician is required in order to replace light fittings. There is also no evidence from the claimant about why 13 lights had to be replaced. Were they replaced because all 13 were broken or were they replaced because they were out of date and a newer style of light was suggested?
While I accept that replacing a single broken light from time to time might be home maintenance within the meaning of the definition of attendant care, I do not accept that replacing 13 lights is home maintenance and that it is open to me to draw an inference that the lights were replaced as a form of home improvement prior to the sale of the home.
What was the purpose of the services as a whole?
I have formed the view that the installation of lights and the painting services are not a form of home maintenance and therefore not attendant care services and it follows not treatment and care. However, I have formed the view that the cleaning services (interior of the skylight, blinds, balcony and back yard) are a form of attendant care service and therefore could be treatment.
The clear evidence from the claimant was that the work that is the subject of the OMG Services invoice (painting, lights and cleaning) was done not as part of a regular pattern of cleaning but for the purpose of readying the claimant’s home for sale. Mr Lau says he was not advised by anyone to do this work but that the choice was his to get it done when he decided to sell his home in February 2024.
While he may not have been advised to clean and freshen up his home before sale, the evidence supports a finding that the purpose of the work that was done in March 2024 was in anticipation of the sale which occurred in April 2024.
While there is no dispute that the claimant could not do all of the things quoted for by OMG Services, including the cleaning, there is no evidence that the services provided were part of the claimant’s recovery plan or needed to treat his injuries. Mr Lau’s injuries did not require him for example, to live in a freshly painted home or a home with 13 new light fittings.
I am satisfied that the purpose of all the work within the OMG Services invoice was to maximise the sale price of the home. Following the decision-making in Frost and Suttie the disputed expenses were not “incurred in connection with providing treatment and care for” Mr Lau but they were incurred for a commercial purpose namely the sale of Mr Lau’s home.
CONCLUSION
As I am not satisfied that the services performed by OMG Services were provided for Mr Lau’s treatment and care, it follows that the invoice from OMG Services is not a treatment and care expense incurred in connection with providing treatment and care.
There is therefore no liability on the part of the insurer to pay the OMG Services expense and no medical assessment matter which needs to be determined by a Medical Assessor.
As a member of the Commission, I am of the view that I do not have the power to dismiss a medical assessment matter. The claimant could file a notice of discontinuance of the proceedings or an officer of Commission with the power to dismiss the proceedings may be required to do so.
The claimant sought costs on an unregulated basis. The insurer made no submissions as to costs. I do not consider this matter involved exceptional circumstances warranting the awarding of costs in accordance with section 8.10 of the MAI Act. It was a dispute about treatment and liability for part of a claim. There have been similar cases. The issues involved were not novel and did not require the consideration of a significant amount of evidence or a face to face hearing.
I am however of the view that costs have been incurred and that costs should be awarded. In my view the maximum amount provided for under the Motor Accident Injuries Regulation 2017 is appropriate noting the nature of the application, the submissions made by the claimant and the attendance at the preliminary conference. Costs are therefore allowed in the sum of $1,992 plus GST.
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