Suttie v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Suttie v QBE Insurance (Australia) Limited [2024] NSWPIC 355
CLAIMANT:	Madeleine Suttie
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Susan McTegg
DATE OF DECISION:	21 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims matter; medical assessment matter; attendant care services; water irrigation system; repair of pump; liability for claim for statutory benefits; everyday tasks; injuries include a mild traumatic brain injury; claimant filed application for medical assessment of dispute over payment of invoice for repair of water pump; removal of large log out of the river, repair of water pipe and removal of tree stump on the basis the claimant is unable to operate and maintain complex irrigation system due to the injury; referred as a miscellaneous claims dispute under schedule 2 clause 3(n) to determine preliminary dispute as to whether there is any liability for the services in dispute on the basis they meet the definition of “treatment and care”; operation and maintenance of the irrigation system was an everyday task within the definition of “attendant care services”; no evidence that the repairs subject of the claim arose by reason of failure to maintain irrigation system; Held – the tasks the subject of the invoice do not constitute attendant care services within section 1.4 and do not come within the definition of treatment of care for which the claimant is entitled to receive statutory benefits under section 3.24; application for medical assessment referred back to the Commission for determination.
DETERMINATIONS MADE:	CERTIFICATE Issued under section 7.36 of the Motor Accident Injuries Act, 2017 The findings of the assessment of this dispute are as follows: 1. The tasks outlined in the invoice from Southern Cross Water and Irrigation do not constitute attendant care services within the meaning of the definition in s 1.4 of the Motor Accident Injuries Act, 2017 and do not come within the definition of treatment and care for which the claimant is entitled to receive statutory benefits under s 3.24 of the MAI Act. 2. The application for medical assessment is referred back to the Personal Injury Commission for determination.

STATEMENT OF REASONS

INTRODUCTION

On 21 September 2022 Madeleine Suttie (the claimant) was the driver of a vehicle when a
B-double truck collided with the rear of her vehicle at 80 to 100kmph (the accident).
On 29 September 2022 Ms Suttie lodged an Application for personal injury benefits. She described her injuries as follows:
“I was knocked unconscious. I sustained whiplash, a broken nose, a cut to my nose, a cut to my shin, a sore calf muscle, a bruise and laceration to my back. Aches and pains to my whole body. Shock and anxiety. Memory loss. Word finding difficulty, amnesia, mental fog. Fatigue. Flashbacks.”
Ms Suttie described her usual occupation as “Law professor/farmer/consultant”.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay statutory benefits or damages to Ms Suttie under the Motor Accident injuries Act 2017 (the MAI Act).
Ms Carla Crichton of the South West Brain Injury Rehabilitation Service undertook a living skills assessment and provided a report dated 14 June 2023. She noted Ms Suttie has sustained the following injuries as a result of the accident:
(a)      mild traumatic brain injury (TBI)/concussion;
(b)     back and neck injuries, with persistent ongoing pain;
(c)      facial trauma;
(d)     post-traumatic stress disorder;
(e)      depression, and
(f)      anxiety.
Ms Suttie lives on a property with her husband and six children. She was reportedly responsible for running the farm prior to her injury. Since the accident a farmhand has been engaged to assist with running the farm.
Ms Crichton reported Ms Suttie struggled to manage the intricate water irrigation/pump system connecting water from the tanks to the main house and other parts of the property which involves understanding an intricate operational system of taps/levers and pump systems. She reported this was a job that Ms Suttie was able to manage without difficulty prior to her injury but is now struggling to navigate.
On 14 August 2023 Ms Suttie made a claim for reimbursement of the cost of services provided by Southern Cross Water and Irrigation. The invoice from Southern Cross Water and Irrigation dated 21 June 2023 in the total sum of $3,588.20 was as follows:
“18/5/23(DOMESTIC PUMP) GO TO SITE 2 MEN PULL RIVER PUMP DISCHARGE HEAD APART LOOK AT TOP SHAFT.FOUND IT NEEDED TO BE BUILD UP AND COATED CHANGE OIL IN THE DIESEL 12 H 103 KL 1
20/05/23RETURN TO SITE PULL OUT OF THE RIVER A VERY LARGE LOG WHICH WAS HOOKED UP WITH THE SUCTION LINE AND WAS THREADING TO DO DAMAGE TO THE FLOAT AND OR SUCTION LINE / FIND A LEAK IN DOMESTIC WATER PIPELINE NEXT TO THE CAR PARK FIND A BURIED SOLENOID VALVE REMOVE OLD TREE STUMP FIND BURIED SOLENOID VALVE, FILL IN DEPRESSION NEAR DRIVE AND FRONT GRID 12 H 103 KL
24/5/23RETURN TO SITE WITH REPAIRED TOP SHAFT INSTALL NEW SHAFT PACKING REASSEMBLE PUMP DISCHARGE HEAD /DRIVE HEAD BELTS START PUMP $1190 PARTS P/PACKING 50/ SHAFT 80.00 prime pump start.”
On 28 August 2023 the insurer declined the request on the basis it was not reasonable and necessary and not related to the accident.
On 28 August 2023 the claimant sought an internal review of the decision declining payment of the invoice.
On 11 September 2023 the insurer issued a Certificate of Determination maintaining the declinature. The basis for the decision was as follows:
“It is noted that there was no prior request to QBE for pre-approval of any of the services for which reimbursement has been requested.
I refer to the correspondence from your legal representative dated 22 December 2022 which reported that prior to the subject accident, you worked on the farm and managed the property. You completed a number of tasks including, but not limited to, checking and maintaining irrigation lines for stock and domestic pipes.
Notwithstanding the above, there is no evidence that you had the necessary qualifications and experience to perform the services yourself. Further, there is no evidence to demonstrate that you in fact performed the services rendered by Southern Cross Water and Irrigation Services yourself before the motor accident.
As the services provided by Southern Cross Water and Irrigation appear to relate to the management of your farming area surrounding your home, these services are considered business expenses, which fall outside the definition of ‘treatment and care’ under Section 1.4 of the Act. Therefore, these services are not compensable expenses under Section 3.24 of the Act.
In the alternative that the services performed by Southern Cross Water and Irrigation are in relation to the general care and maintenance of your home, the services would have been required irrespective of the motor vehicle accident, and again fall outside of the definition of ‘treatment and care’ under Section 1.4 of the Act.”

Miscellaneous claims dispute

Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including “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”.
Section 3.24 provides:
“3.24 Entitlement to statutory benefits for treatment and care
(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) 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,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(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.
(3)      The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.”
Section 1.4 of the MAI Act provides 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.
Section 1.4 of the MAI Act defines attendant care services as meaning “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
On 18 September 2023 the claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the dispute between the parties. In the Application dated 18 September 2023 the claimant identified the dispute as whether “treatment and care was reasonable and necessary”.
However, there is a preliminary issue to be determined, that is, whether the services provided meet the definition of treatment and care for which the insurer may be liable.
Pursuant to Schedule 2, cl 3 of the MAI Act, various matters are declared to be miscellaneous claims assessment matters including:
“(n) any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified…”
Whilst the claimant referred the dispute to the Commission as a medical assessment matter it was referred to me for consideration as a miscellaneous claims dispute under Schedule 2 cl 3(n) of the MAI Act where there is a preliminary dispute as to the liability for statutory benefits, that is, whether there is any liability for the services in dispute on the basis they meet the definition of “treatment and care”.
If I find the dispute meets the definition of “treatment and care” I will refer the medical assessment dispute as to whether the treatment and care was reasonable and necessary to the medical assessment service for assessment.

Teleconference on 28 March 2024

The matter was listed before me for a teleconference on 28 March 2024. Ms Karina Goodall of Stacks Goudkamp appeared on behalf of the claimant. Mr Blake Campbell appeared in the interests of the insurer.
I canvassed with the parties whether the services referred to in the invoice constitute attendant care and whether the tasks outlined in the invoice would have been undertaken by Ms Suttie before the accident.
Ms Goodall stated because of her injury Ms Suttie had been unable to maintain the equipment and as a result it broke down requiring repair. I noted the repair of the pump on 18 May 2023 apparently required two men, the task on 20 May 2023 was to pull a large log out of the river and the task on 24 May 2023 was to repair the pump equipment including the cost of parts. In the absence of a statement from the claimant I queried whether Ms Suttie undertook tasks of this nature prior to the accident and whether this repair might simply have been part of the need for repair due to normal wear and tear. I also queried whether maintaining the pump system was included in the duties undertaken by the farm hand engaged since the accident.
Ms Goodall indicated there were further reports available which might be of assistance and conceded a statement from the claimant might be required.
I also canvassed with Ms Goodall whether this claim would form part of the claim for economic loss in a claim for common law damages. If the farm is run as a business this may well be a business expense which is claimed as a tax deduction. In that event these services would not constitute attendant care and could not form the basis of a medical assessment dispute.
I also noted that Ms Suttie not only alleges a traumatic brain injury, but she has also been diagnosed with post-traumatic stress disorder, depression and anxiety and recommended in those circumstances it would be preferable to limit the medical assessments she is required to attend where possible.
I made the following directions:
(a)   on or before 12 April 2024 the claimant is to advise whether the claim as a medical assessment matter is pressed and if not, to file a Notice of Discontinuance of this dispute.
(b)   If the claim is pressed, on or before 10 May 2024 the claimant is to upload to the portal in one indexed and paginated bundle the following:
·a statement from the claimant;
·further evidence in support of the claim;
·the letter dated 14 August 2023 to the insurer requesting reimbursement for the services provided by Southern Cross Water and Irrigation;
·the letter from the insurer dated 28 August 2023 declining the request for reimbursement of the services provided by Southern Cross Water and Irrigation, and
·submissions as to why this dispute constitutes a medical assessment matter.
(c)   On or before 31 May 2024 the insurer is to upload to the portal any submissions in reply.

THE EVIDENCE

On 21 May 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from page 1 to 202.
On 5 June 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 17.

Statement of Madeleine Suttie

Ms Suttie provided a statement dated 11 May 2024. She lives on a 200 acre property with her husband and six children aged 5 to 15 years. The property does not have access to town water meaning it is necessary to rely on rainwater, bore water and water from the Murrumbidgee River. There are cattle, goats, sheep, chickens, turkeys, ducks and a pig on the property as well as five dogs and several guinea pigs.
Ms Suttie states she was responsible for ensuring their pets, livestock, garden and her family had access to water. The water system on the property consists of seven different water tanks and over a dozen pumps and taps. The taps and pumps need to be turned on and off at specific times and in various combinations to ensure the correct water is delivered to the property. Ms Suttie stated the water from the river is not appropriate for human consumption but can be used to water trees, the garden and for the pets. Household water is collected rainwater or bore water. Ms Suttie stated the bore water, rainwater and the river water share pipes between the house and the storage tanks.
Ms Suttie states she was responsible, on a day-to-day basis, for the cleaning of the filters, priming of the pumps, organising the water movement and repairing the domestic irrigation system. She maintained the pool and yard and the garden sprinkler and the garden irrigation system to ensure the yard and fruit trees were watered and maintained. Ms Suttie states she also maintained the lawn and hedges, used pesticides as necessary and drove around the property to check the electric fences and make minor repairs.
Ms Suttie states as a result of the accident she injured her lower back and neck and sustained a mild traumatic brain injury. Ms Suttie states she has been diagnosed with post-traumatic stress disorder, post-concussion syndrome and a neurocognitive disorder.
Since the accident Ms Suttie states she has struggled with the tasks around the farm including maintaining the water irrigation system and the garden. She has hired a number of farm hands to complete tasks she was previously responsible for as well as someone to attend to the domestic water irrigation system tasks.
She has found it difficult to get over the barbed wire fence and climb up the 20-foot embankment to the pumps, pipes and gate valves. Ms Suttie states she can no longer understand the extensive water system to the house and property and becomes confused by how many tanks, valves, pipes and pumps she has to look after. She cannot remember the order they need to be turned on and off to ensure the correct water flow to ensure water going to the home is not contaminated.
Ms Suttie states in August 2023 she failed to flush one of the water lines correctly and left the wrong lever open contaminating 140,000 litres of household water meaning it was necessary to drain the entire tank, perform an extensive clean and re-pump the water. Her family was without drinking water and had no flushing toilets, no showers and no tap water.
In May 2024 Ms Suttie stated she moved water from the bore water storage tank to the house water tank. She forgot she had turned on the water and overflowed the house tanks wasting 110,000 litres of water.
Whilst Ms Suttie has written instructions she states she still gets confused with the sequencing of tasks. She stated daily maintenance of the irrigation system is essential and because she cannot maintain the water supply big expensive emergencies that require urgent fixing arise. She stated at times the river pump becomes blocked by a small twig, something which was an easy fix for her before the accident. When the person hired to manage the irrigation system is unavailable Ms Suttie will try and fix the problem herself, however, often the repair is not done correctly causing a larger blockage and expensive repairs.

icare Care Needs Assessment Report

A detailed assessment was undertaken on 19 December 2023 by Ms Danielle O’Connor of Moore Rehab Outcomes. She reported a mild traumatic brain injury (TBI) diagnosis was supported by the findings of a neuropsychology assessment completed on 28 February 2023.
Pre-injury Ms Suttie was extremely high functioning with a very busy lifestyle. She worked in paid employment across multiple part time roles, including university lecturing, business management of her husband’s medical practice, a consultancy business and as the Dean of Rural Students for St Johns College, Sydney University. She was also responsible for farm operations and management as well as being primarily responsible for domestic tasks and education support for her children who were home schooled.
Ms Suttie’s recovery has been complicated by her psychological reaction to the accident with difficulty in accurately distinguishing between post-traumatic stress disorder symptomatology and the residual effects of the mild TBI. It was reported whilst neck and back pain have improved anxiety, cognitive and fatigue limitations remain as barriers to pre-injury function. Ms O’Connor reported Ms Suttie’s primary care needs relate to prompting and assistance with planning, problem solving and task focus along with the maintenance of safety in her parenting role.

In relation to garden/lawn care Ms O’Connor reported:
“Madeleine is unable to plan, initiate or complete garden tasks independently. She is also restricted physically by neck and back pain … and reduced endurance and fatigue also impacting. She is currently reliant on care support to complete. Madeleine was responsible for other garden tasks including planting, watering (management of irrigation/watering system), pruning, pest and weed management for a variety of shrubs, ornamental and fruit trees and vegetable garden. Due to the size of the garden a total of 11.77 hours per week garden tasks (including lawn mowing … estimated at 4 hours per week) has been estimated by garden service provider …”.

Bidgee Pumps & Irrigation

In a letter dated 22 March 2024 Bidgee Pumps & Irrigation (Bidgee) reported being called to perform some work at Sarsfield Park in November 2023. It reported the irrigation system at Sarsfield Park is extensive, involving a large domestic controller and irrigation that covers gardens around the homestead, pool, and tennis court of approximately two acres. Whilst the system was previously maintained by the owner it was reported the owner was not keeping up with systematically checking the system.
Bidgee reported the irrigation system required constant maintenance, the pumps need to be checked, the cartridges washed and changed, and the pop-up sprinklers maintained. Bidgee reported when a system is not maintained it deteriorates more quickly. Pop-up sprinklers can be easily broken, rural animals can step on the poly pipes or scratch at them and cause leaks. Cattle in the garden can cause damage. Leaky pipes can cause flooding if not repaired quickly. Further, because the system is on river water little bits of dirt and grit can get into the system requiring it to be constantly checked.
Bidgee recommended that the system be checked once a week and maintenance undertaken estimated to take two hours plus travel time per week.

Jim Leahy, Southern Cross Irrigation

In an email dated 11 April 2024 Mr Leahy referred to the service he provided to repair the river pump, garden irrigation and fencing around the homestead. He reported prior to the accident Madeleine maintained the garden sprinkler system but since the accident she had not regularly maintained the system. Mr Leahy reports he has worked on tasks at Sarsfield that Madeline could ordinarily do but he has noticed she has become very bad at sequencing and problem solving.
He reported river pumps require constant surveillance. He reported the repair he undertook to the river pump and electric fencing was not in the ordinary maintenance schedule. He noted when a branch or log gets caught on the floating suction line it needs to be removed quickly otherwise it just keeps trapping more and more debris which builds up against the suction line.
Mr Leahy reported he had been recently contacted Ms Suttie when she advised she had emptied their 110,000L drinking water tank accidentally. He noted there are a series of about seven taps to move water which requires vigilance while water is moving and to be turned off afterwards.
He also noted an occasion when the internet went down, and Ms Suttie could not fix it causing the pool system to turn off and the pool go green resulting in a mammoth cleaning task.
Mr Leahy emphasised that these services are for the running of the homestead, swimming pool, and domestic pets and are essential to Madeleine’s normal life.

SUBMISSIONS

Claimant’s submissions

The claimant did not provide any submissions, other than to upload the following message on 15 April 2024:
“We are instructed to maintain the application on the following basis:
1.prior to the subject accident the claimant maintained the ‘water system’.
2.the system at the claimant’s home needs to be maintained regularly.
3.the claimant is unable to maintain the water system because of the difficulty she has with sequencing and problem solving as a result of the injuries she sustained in the subject accident.
4.the claimant submits that if the system is not maintained issues with the system are likely to arise and the system is more likely to fault.”

Insurer’s submissions

The insurer provided submissions dated 10 October 2023. In those submissions the insurer referred to the certificate of Medical Assessor Lisa Middleton dated 15 June 2023 in relation to a treatment and care dispute as to whether farming work, cleaning services and a one-off ironing service was reasonable and necessary. Medical Assessor Middleton determined the past domestic assistance related to the injury caused by the accident and was reasonable and necessary in the circumstances. The insurer lodged an application for review of the certificate of Medical Assessor Middleton on the basis she had failed to address the insurer’s submissions that the disputed farming services relate to expenses incurred in the claimant’s business and did not meet the definition of “treatment and care” pursuant to s 1.4 of the MAI Act. Similarly, in the current dispute the insurer argued the work performed by Southern Cross Water and Irrigation was not “treatment and care” as defined by s 1.4 of the MAI Act.
The insurer provided further submissions on 5 June 2024. The insurer submits the dispute does not constitute a medical assessment matter and should be dismissed.
The insurer noted a Medical Review Panel consisting of Member Gary Patterson, Medical Assessor Lauren Alach and Medical Assessor Dawn Piebenga revoked the certificate of Medical Assessor Middleton and issued a new certificate determining that the tasks performed by Jim Leahy and itemised in his tax invoice of 20 October 2022 did not fall within the definition of domestic assistance. The Review Panel found the farm work was undertaken by the claimant in the course of her employment and the invoice for farm work was a business expenses and was excluded from the definition of “treatment and care” in s 1.4 of the MAI Act.
On pages 9 and 10 of the certificate and reasons the Review Panel noted:
“…the tasks listed in Ms [sic] Leahy’s invoice dated 20 October 2022 are outside or [sic] the role of a handyman or support worker, therefore are not considered domestic assistance. They involved working with an electric fencing system, digging trenches to find pipes, and replacing sections of pipes and a water pump. Those tasks should all be done by licenced contractors such as electrician, plumber or water and irrigation specialist such as Jame’s [sic] Leahy. Therefore, they are not considered domestic assistance as reasonable under the motor accident guidelines.
…
The Panel considers that it is reasonable that someone living on a large rural property such as Ms Suttie, would have a greater need. But that would only be to maintain her home and the block/fencing surrounding it. Maintaining the property beyond that is not considered reasonable domestic assistance. Nor is maintaining the home and property for farming services.
…
Tasks that the Panel consider were reasonable to replace Ms Suttie’s pre-injury contribution to maintaining her home and garden … include:
·checking and clearing gutters to ensure that rainwater system functions properly;
·checking pipes and taps around the house and performing minor repairs if needed;
·checking and making minor repairs to the fence surrounding the hours [sic], except where an electrician is required in the case of an electric fence; and
·other minor repairs and maintenance, such as removing debris from around the house that could present a bush fire risk.”
The insurer submits that notwithstanding a lack of response from the claimant it is clear from the claimant’s statement that she is running her farm as a business. Further, as I noted in my teleconference report the tasks listed in the irrigation invoice involved the repair of the irrigation pump which required two men, the removal of a large log out of the river and the repair of the irrigation pump equipment. In line with the decision of the earlier Medical Review Panel the insurer submits these tasks should be performed by a licensed contractor, such as a water and irrigation specialist.
The insurer notes the MAI Act defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks and includes (for example) personal assistance, nursing, home maintenance and domestic services”. The insurer submits that whilst the list is not exhaustive it provides an indication as to what types of services are to be considered. The insurer submits the tasks listed in the irrigation invoice do not fall into any of these categories.

DETERMINATION

I do not consider I am bound by the decision of the Medical Review Panel where the Review Panel was considering farming work. However, I note in that matter the Review Panel considered tasks Ms Suttie undertook pre-injury to maintain her house and garden included checking and clearing gutters to ensure that the rainwater system functions properly and checking pipes and taps around the house and performing minor repairs.
However, it seems to me that the Review Panel has not clearly understood the complexity of the irrigation system required to maintain the flow of water to the house, garden and other parts of the property.
I am satisfied that maintenance of the irrigation system consisting of seven different water tanks and over a dozen pumps and taps was required to ensure the provision of both rainwater and bore water to the house and surrounding garden.
Whilst maintenance of the irrigation system may also have benefited the farm the daily operation and maintenance of the irrigation system was critical in ensuring the provision of water fit for human consumption for the house. In his statement Mr Leahy also emphasised that the irrigation serves are essential for the running of the homestead, the swimming pool and for the domestic pets.
Ms Suttie stated the bore water, rainwater and the river water share pipes between the house and the storage tanks. The dispersal of water between the house, the garden and the remainder of the property is dependent on the operation of various taps and pumps in a particular sequence at specific times and in various combinations each day. Before the accident Ms Suttie was responsible for the operation of the irrigation system on a daily basis.
I am satisfied that as a result of her cognitive impairment Ms Suttie has struggled to operate the irrigation system and accept that she has become confused by the tanks, valves and pumps she is required to operate, and the order in which they need to be turned on and off to ensure water going to the home is not contaminated. Ms Suttie nominated two occasions when she erred in her operation of the irrigation system, on the first occasion she contaminated 140,000 litres of household water leaving her family without water and on the second occasion she forgot she had turned on the water and overflowed the house tanks wasting 110,000 litres of water.
In addition to operating the irrigation system Ms Suttie also alleges pre-injury she was responsible for the daily maintenance of the irrigation system including the removal of small twigs which had the potential to block the river pump. The letter from Bidgee suggests that maintenance of the irrigation system includes checking the pumps, washing and changing cartridges, maintaining pop up sprinklers and repairing leaking pipes. The need for constant surveillance of the irrigation system was also supported by Mr Leahy, who commented that any branch or log which gets caught on the floating suction line needs to be removed quickly.
The insurer correctly states that the examples of everyday tasks included in the definition of attendance care services in s 1.4 of the MAI Act are not exhaustive.
I find that the operation and maintenance of the irrigation system was for Ms Suttie an everyday task within the definition of attendant care services given that it was necessary for the provision of water for her house and garden and where as a result of the injury caused by the accident she requires assistance with these tasks.
However, that does not resolve the dispute where the tasks identified in the invoice from Southern Cross Water and Irrigation dated 21 June 2023 are not for the everyday operation and maintenance of the irrigation system.
Whilst pre-injury I am satisfied Ms Suttie would remove small twigs or branches which had the potential to block the river pump it seems the repairs undertaken by Southern Cross Water and Irrigation on 18, 20 and 24 May 2023 were much more significant. On 18 May 2023 it was necessary for two men to pull the river pump discharge head apart whilst on 20 May 2023 a very large log which had hooked up with the suction line was pulled out of the river, a leak in the domestic water pipeline next to the car park was repaired, an old tree stump was removed, and a buried solenoid valve was located. On 24 May 2023 a new shaft was installed, and the pump was reassembled.
I am satisfied having regard to the evidence of Ms Suttie, Mr Leahy and Bidgee that the irrigation system required constant maintenance and that as a result of the injuries sustained in the accident Ms Suttie was no longer maintaining the system.
However, there is no evidence before me to demonstrate that the repairs the subject of the invoice from Southern Cross Water and Irrigation dated 21 June 2023 arose because of the failure of Ms Suttie to maintain the irrigation system and not by reason of normal wear and tear. Certainly, it seems unlikely that Ms Suttie uninjured would have been able to remove from the water a very large log, remove an old tree stump or to pull apart the river pump, replace a part and reassemble it.
I find that the tasks outlined in the invoice from Southern Cross Water and Irrigation do not constitute attendant care services within the meaning of the definition in s 1.4 of the MAI Act where they are not everyday or commonplace tasks which would have been performed by Ms Suttie had the accident not occurred.
It follows that having concluded that the tasks outlined in the said invoice do not constitute attendant care services they do not come within the definition of treatment and care for which the claimant is entitled to receive statutory benefits under s 3.24 of the MAI Act.
I find the insurer is not liable as part of the claim for statutory benefits to pay the invoice from Southern Cross Water and Irrigation dated 21 June 2023.
However, I do not have the power to dismiss or otherwise determine the application lodged by the claimant for medical assessment and refer that application back to the Commission for further consideration.

CONCLUSION

The tasks outlined in the invoice from Southern Cross Water and Irrigation do not constitute attendant care services within the meaning of the definition in s 1.4 of the MAI Act and do not come within the definition of treatment and care for which the claimant is entitled to receive statutory benefits under s 3.24 of the MAI Act.
The application for medical assessment is referred back to the Personal Injury Commission for determination.

[2024] NSWPIC 355

21 June 2024