McIntyre v AAI Limited

Case [2021] QSC 251

SUPREME COURT OF QUEENSLAND

CITATION:

McIntyre & Anor v AAI Limited [2021] QSC 251

PARTIES:

MARK McINTYRE

(first applicant)
SU KIM HO
(second applicant)

v
AAI LIMITED
ABN 48 005 297 807

(respondent)

FILE NO/S:

BS No 13125 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

8 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2021

JUDGE:

Davis J

ORDER:

1.   In relation to the application by the first applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 15, 16, 17, 18, 20, and 24 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) The total rehabilitation services claimed in each of items 13, 19, and 26 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

2.   In relation to the application by the second applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 6, 7, 8, 12, 13, 16, 17, 18, and 19 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) As to item 15 as identified in the schedule which is Exhibit 2, referrals to a general practitioner, a psychiatrist, and a pain physician and subsequent treatment are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

3.   The parties have liberty to apply for further orders necessary for the provision of the rehabilitation services ordered to be provided.

4.   The applicants are to file and serve written submissions and any material on costs by 4:00pm on 15 October 2021.

5.   The respondent is to file and serve written submissions and any material on costs by 4:00pm on 22 October 2021.

6.   The applicants are to file and serve any reply submissions on costs by 4:00pm on 29 October 2021.

7.   The parties are at liberty to make application to make oral submissions on costs.

8.   If no application to be heard orally on the question of costs is filed and served by 4:00pm on 3 November 2021, the issue of costs will be determined on the written submissions and material (if any) filed by the parties.

CATCHWORDS:

MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND THE LIKE SCHEMES - DRIVER, OWNER OR STATUTORY AGENT OF OWNER - INSURED PERSON - where the applicants were injured in a motor vehicle accident - where the respondent is the third party insurer - where the applicants seek orders for the provision of rehabilitation services - where s 51 of the Motor Accident Insurance Act 1994 requires the insurer to provide “reasonable and appropriate” rehabilitation services…

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AGLC
McIntyre v AAI Limited [2021] QSC 251
Case
[2021] QSC 251
Decision Date

CaseChat Overview and Summary

The applicants, husband and wife, who were injured in a motor vehicle accident, sought orders for the provision of particular rehabilitation services by the third-party insurer, AAI Limited. AAI agreed to provide some of the services but not others. The applicants sought a declaration from the court that the disputed services were reasonable and appropriate under s 51 of the Motor Accident Insurance Act 1994. The court considered the nature of the applicants' injuries and the need for the rehabilitation services, including the Kalbarri dining chairs and case management by Ms Kooyman. The court had to decide whether the services claimed were reasonable and appropriate, and if so, whether declaratory relief was appropriate.

The court found that the Kalbarri dining chairs were reasonable and appropriate for Mr McIntyre as they would enable him to comfortably participate in mealtimes and other family activities at the dining table. The court also found that ongoing case management by Ms Kooyman was reasonable and appropriate for the applicants' rehabilitation. The court noted that it was not part of its function to make findings relevant to the final determination of the damages claim. The court held that declaratory relief was appropriate as it would settle the dispute as to what rehabilitation services should be supplied under s 51 of the MAIA. The court made declarations that certain rehabilitation services were reasonable and appropriate and ordered the parties to file written submissions and material on costs. If no application to be heard orally on the question of costs was filed, the issue of costs would be determined on the written submissions and material filed by the parties.

Orders

Orders of the court

1. In relation to the application by the first applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 15, 16, 17, 18, 20, and 24 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) The total rehabilitation services claimed in each of items 13, 19, and 26 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

2. In relation to the application by the second applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 6, 7, 8, 12, 13, 16, 17, 18, and 19 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) As to item 15 as identified in the schedule which is Exhibit 2, referrals to a general practitioner, a psychiatrist, and a pain physician and subsequent treatment are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

3. The parties have liberty to apply for further orders necessary for the provision of the rehabilitation services ordered to be provided.

4. The applicants are to file and serve written submissions and any material on costs by 4:00pm on 15 October 2021.

5. The respondent is to file and serve written submissions and any material on costs by 4:00pm on 22 October 2021.

6. The applicants are to file and serve any reply submissions on costs by 4:00pm on 29 October 2021.

7. The parties are at liberty to make application to make oral submissions on costs.

8. If no application to be heard orally on the question of costs is filed and served by 4:00pm on 3 November 2021, the issue of costs will be determined on the written submissions and material (if any) filed by the parties.

Background

Background to the litigation

The applicants, who were injured in a motor vehicle accident, make application under s 51(5)(b) of the Motor Accident Insurance Act 1994 (MAIA) for orders that particular rehabilitation services be made available to them by the third-party insurer, AAI Limited (AAI). AAI, who is the respondent to the application, accepts that it should provide some of the services, but says that it should not be ordered to provide many which are claimed.Background The applicants are husband and wife. Mr McIntyre is now 56 years of age. He was nearly 53 when injured. Ms Ho is now 48 years of age. She was 45 years old when injured. The applicants have young twin sons. Prior to being injured, Mr McIntyre was gainfully employed as a commercial diver and supervisor on off-shore gas and oil projects while Ms Ho was responsible for household and parenting duties.Accident On 28 June 2018, the applicants were involved in a high speed, head-on motor vehicle accident on the Bruce Highway at Kolonga near Gin Gin. The applicants sustained severe injuries and the applicants’ young twin sons were also injured in the accident. Mr McIntyre’s injuries Mr McIntyre suffered the following injuries in the accident:[1][1]Affidavit of Dr Neil John Cochrane filed 22 March 2021 (CFI 22) annexing NC-02 pages 8-16; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 pages 347, 348.(a)Fractured sternum;(b)Fractured lumbar spine at L2;(c)Fractured right femur; (d)Fractured right heel;(e)Fractured right foot;(f)Fractured left foot;(g)Fractured ribs;(h)Binaural tinnitus;(i)Brain injury. As a result of his injuries, Mr McIntyre experiences ongoing back pain when sitting, standing and walking.[2] He has a low tolerance for these functions[3] and uses mobility aids including a single-point walking stick for walking beyond 100 metres on uneven terrain[4] and a wheelchair for mobility over longer distances.[5] He suffers pain and fatigue through his right foot when standing and at times is unable to bear weight on the right lower limb.[6] He therefore uses a swivel chair for showering.[7] He finds it difficult to transfer from a seated to a standing position[8] and the pain in his right foot is aggravated when traversing stairs. Mr McIntyre is unable to traverse stairs whilst carrying load due to his reliance upon the handrail or walking stick for stability.[9] Mr McIntyre has not been medically cleared to return to driving a motor vehicle and he is reliant upon others for transport.[10] He reports ongoing cognitive dysfunction post-accident in the form of high-level language difficulties,[11] lowered attention to detail, difficulty completing non-routine tasks, difficulty with memory and reliance upon the use of an alarm to assist him in remembering tasks, difficulty retaining new information, and difficulty processing visual cues into action.[12] Due to his injuries Mr McIntyre is limited in his ability to manage his day-to-day affairs,[13] to contribute to domestic and family tasks such as preparation of meals or driving the children to school,[14] and to participate in family leisure activities such as attending his sons’ cricket matches.[15][2]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.[3]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2, 4.[4]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.[5]Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BHK-1 page 15.[6]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 9, 10.[7]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 9, 10.[8]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.[9]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.[10]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1; Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.[11]Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BHK-1 page 13.[12]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2, 10.[13]Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.[14]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 11.[15]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 6.Ms Ho’s injuries

Evidence

Evidence Before The Court

The Kalbarri Dining Chair is a wider than usual dining chair with armrests. The Kalbarri range of dining chairs matches the existing dining room table in the home.[54] The cost of the dining chairs is $925 for the armrest chair and $5,600 for eight additional chairs.Evidence[54]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.Applicant’s evidence Mr McIntyre has a sitting tolerance of less than 10 minutes using the current dining chair as the chairs are too firm and upright. [55] Mr McIntyre is utilising the wheelchair for alternative seating at the dining table in the meantime which, if continued, could result in postural issues. [56][55]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 4.[56]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 4, 5. A high-backed aluminium dining chair is deemed inappropriate as it is too heavy to manoeuvre, the seat will be too firm, and it will not align with the aesthetics of the home, thus promoting the perception of disability.[57][57]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5. The recommended dining chair is wider, providing Mr McIntyre with adequate lumbar support, and allows for better transfers from sitting to standing positions using the armrests.[58] It is recommended that all dining chairs are replaced to provide uniformity in the dining set and reduce the perception of disability.[59][58]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.[59]Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.Respondent’s evidence It is not expected that Mr McIntyre would require support for prolonged static periods of time in order to consume a meal before being able to alternate to a more comfortable seating position or chair.[60] [60]Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31. A high-backed orthopaedic chair with armrests could be utilised instead as it will provide purpose-designed support, comfort and stability and can be manoeuvred with minimal force.[61] [61]Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.Ruling on the Kalbarri dining chairs The supply of the Kalbarri dining chairs (including the armrest chair) will enable Mr McIntyre not only to comfortably and properly participate in mealtimes with his family but also to participate properly in other family activities which take place at the dining table. The respondent’s suggestion that Mr McIntyre should consume his meal and then relocate himself is less than satisfactory. Further, the replacement of the other dining chairs, so as not to promote the perception of disability, is reasonable and appropriate. Mr McIntyre, before the accident, lead what could be described as an adventurous life scuba diving from oil rigs. The accident has deprived him of that lifestyle and he is suffering psychological impacts as a result of that loss. Psychological measures such as reducing the perception of disability in settings such as family mealtimes is obviously beneficial to him.

Decision

Reasons for decision

Ms Ho’s rehabilitation obviously requires ongoing management. For the reasons given with respect to Mr McIntyre’s item 26 and Ms Ho’s items 8 and 12, ongoing case management by Ms Kooyman’s is reasonable and appropriate.[262][262]See paragraphs [116] and [194]. Conclusions and orders The application seeks “a declaration or decision” as to what rehabilitation services are reasonable and appropriate. The application is no doubt drawn in that way because s 51(5) requires “the court to decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate”. Having decided that issue, the court must give a remedy to quell the dispute between the parties. That remedy ought be by way of declaration. Mr Matthews QC expressed concerns that declaratory relief may set up an estoppel so that AAI would be prevented from arguing at the trial that the cost of some or all of the rehabilitation items were not compensable by way of damages. Declaratory relief would settle the dispute the subject of the application. The subject of the application is as to what rehabilitation services ought to be supplied pursuant to s 51 of the MAIA. For the reasons already explained, it is not part of the court’s function when hearing an application under s 51 to make findings relevant to the final determination of the damages claim. Consequently, AAI is not being inadvertently disadvantaged by virtue of the giving of declaratory relief. In relation to those items on the schedule which have been conceded by AAI, it is inappropriate to make a declaration as there is no active controversy. It is appropriate to make declarations only in relation to those items which AAI dispute and which have been determined to be reasonable and appropriate. During argument the parties agreed that costs should be determined on written submissions and that when delivering judgment on the application I should give directions to facilitate that process.Orders1.As to the application by the first applicant:(a)it is declared that the rehabilitation services claimed in each of items 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 15, 16, 17, 18, 20 and 24 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and(b)the total rehabilitation services claimed in each of items 13, 19, and 26 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.2.In relation to the application by the second applicant, it is declared that:(a)the rehabilitation services claimed in each of items 1, 2, 3, 6, 7, 8, 12, 13, 16, 17, 18, and 19 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and(b)as to item 15 as identified in the schedule which is Exhibit 2, referrals to a general practitioner, a psychiatrist and a pain physician and subsequent treatment are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.3.The parties have liberty to apply for further orders necessary for the provision of the rehabilitation services ordered to be provided.4.The applicants are to file and serve written submissions and any material on costs by 4.00 pm on 15 October 2021.5.The respondent is to file and serve written submissions and any material on costs by 4.00 pm on 22 October 2021.6.The applicants are to file and serve any reply submissions on costs by 4.00 pm on 29 October 2021.7.The parties are at liberty to make application to make oral submissions on costs.8.If no application to be heard orally on the question of costs is filed and served by 4.00 pm on 3 November 2021, the issue of costs will be determined on the written submissions and material (if any) filed by the parties.

Ratio Decidendi

Legal Principle Established

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