Walters v Roche
[2020] QSC 319
•20 October 2020
SUPREME COURT OF QUEENSLAND
CITATION: Walters v Roche & Anor [2020] QSC 319 PARTIES: GRAHAM LEONARD WALTERS (plaintiff) v
KATHERINE GRACE ROCHE(first defendant)
andQBE INSURANCE (AUSTRALIA) LIMITED (ACN 003
191 035)(second defendant) FILE NO: BS 2574 of 2019 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING Supreme Court of Queensland at Brisbane COURT: DELIVERED ON: 20 October 2020 DELIVERED AT: Brisbane HEARING 14, 15 and 16 July 2020 DATES: JUDGE: Ryan J ORDERS: Having concluded that the second defendant is not liable on the plaintiff’s claim for “excluded” treatment, care and support damages:
1.
I direct the parties to undertake the calculations which will give effect to my judgment and to provide me with a draft order which reflects the quantum matters about which they are agreed and the matters in dispute which I have resolved.
2.
I direct the parties to attempt to agree on an order as to costs.
3.
If the parties are unable to agree on a draft order, or unable to agree on costs, then I will hear the parties further on a date to be agreed between the parties and Court.
CATCHWORDS:
INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES –
RISK OR LIABILITY where the plaintiff is a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (“the Scheme”) where the plaintiff suffered serious injuries as a result of being hit while cycling by the first defendant driving her car – where the plaintiff claims damages for personal injury from the first defendant and her insurer –
where the plaintiff issued, and then withdrew, a preservation notice under the Scheme – whether, on the correct interpretation of the legislation, because the plaintiff is a participant in the Scheme, the defendant insurer is liable to compensate him in damages for past and future gratuitous care
INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES –
RISK OR LIABILITY where the plaintiff is a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (“the Scheme”) where the plaintiff suffered serious injuries as a result of being hit while cycling by the first defendant driving her car – where the plaintiff claims damages for personal injury from the first defendant and her insurer – where the parties dispute the quantum of the claim – whether a gratuitous service can be said to be “necessary”, within the
meaning of section 59(1)(a) of the Civil Liability Act 2003 (Qld), when that same service is available to the plaintiff via paid carers but the plaintiff chooses not to accept that paid care
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – where damages are assessed under the Civil Liability Act 2003 (Qld) – where the plaintiff claims for
damages for gratuitous care provided by his family members to him while in hospital whether this assistance falls within the category of “Wilson v McLeay damages” Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Civil Liability Act 2003 (Qld), s 52A, s 52B, s 52C, s 59(1)(a)
National Injury Insurance Scheme (Queensland) Act 2016
(Qld), s 3, s 4, s 8, s 9, s 12, s 15, s 16, s 25, s 26, s 27, s 28, s
30, s 35, s 37, s 40, s 41, s 42, s 43, s 44, s 49, s 51, s 55, s 96National Injury Insurance Scheme (Queensland) Regulation 2016 (Qld), s 16(2), s 21 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied
Clement v Backo & Suncorp Metway Insurance Ltd [2007] 2
Qd R 99; [2007] QCA 81, considered
Commissioner of Taxation v Consolidated Media (2012) 250
CLR 503, applied
CSR Ltd v Eddy (2005) 226 CLR 1, cited
Daly v Thiering (2013) 249 CLR 381, applied
Griffiths v Kerkemeyer (1977) 139 CLR 161, applied
Harrison v Melhem (2008) 72 NSWLR 380, cited
Kriz v King & Anor [2007] 1 Qd R 327; [2006] QCA 351, cited
McAndrew v AAI Limited [2013] QSC 290, consideredMcChesney v Singh & Ors [2002] QSC 311, considered National Insurance Co of New Zealand Ltd v Espagne (1961)
105 CLR 569, consideredProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied
Quintano v B W Rose Pty Ltd & Anor [2009] NSWSC 446,
considered
SAS Trustee Corporation v Miles (2018) 265 CLR 137, applied
Todorovic v Waller (1981) 150 CLR 402, cited
Van Gervan v Fenton (1992) 175 CLR 327, applied
Vowles v Osgood & Anor [2012] QSC 82, appliedCOUNSEL: G Diehm QC with M Forbes for the plaintiff
L F Kelly QC with R Morton for the first and second
defendantsSOLICITORS: Shine Lawyers for the plaintiff
McInnes Wilson Lawyers for the first and second defendants
Table of Contents
Overview .............................................................................................................................. 4
The legal issue ...................................................................................................................... 6
The National Injury Insurance Scheme ................................................................................ 6
The Civil Liability Act 2003 .............................................................................................. 13
Principles of statutory interpretation .................................................................................. 15
The explanatory notes and second reading speech ............................................................. 16
The plaintiff’s position under the Scheme.......................................................................... 19
The plaintiff’s argument in support of his claim for past and future gratuitous care ......... 20
Submissions in response to the insurer’s arguments ...................................................... 21
The defendant insurer’s argument ...................................................................................... 22
Context ........................................................................................................................... 22
Submissions .................................................................................................................... 23
Legal issue – discussion ..................................................................................................... 26
Coherent reading of the NIISQA ........................................................................................ 27
Overview ........................................................................................................................ 27
Sections 8 and 9 .............................................................................................................. 27
References to “excluded treatment, care and support” in the balance of the NIISQA ... 28
Sections 25, 26 (read with section 15), and 27 (Support plans) ..................................... 29
Section 30 (read with section 15) (Service requests) ..................................................... 34
Section 37 (Payment requests) ....................................................................................... 35
Sections 49 and 51 .......................................................................................................... 38
Part 2A of Chapter 3 of the CLA (including section 52B) ................................................. 40
Extrinsic materials explaining the purpose of the Scheme ................................................. 45
Conclusion about legal issue .............................................................................................. 46
Damages – quantum ........................................................................................................... 47
The plaintiff’s disputed claims ........................................................................................... 47
Relevant principles ......................................................................................................... 48
Past out-of-pocket expenses ............................................................................................... 48
Past travel expenses ............................................................................................................ 53
Future holiday expenses ..................................................................................................... 54
Future aids and equipment ................................................................................................. 55
Future motor vehicle expenses ........................................................................................... 55
Past and future gratuitous care ........................................................................................... 57
The meaning of “necessary” in section 59(1)(a) of the CLA ......................................... 60
Wilson v McLeay damages ............................................................................................ 62
Community outings ............................................................................................................ 66
Past gratuitous care ............................................................................................................. 66
Future gratuitous care ......................................................................................................... 71
Overview
The plaintiff, Graham Walters, claims damages for personal injury from the first defendant, Kathleen Roche, and her insurer.
Mr Walters was riding his bicycle on a road in Burpengary on 11 August 2016. Ms Roche was driving her Nissan Patrol along the same road at the time.
“Distracted” by her mobile phone, Ms Roche hit Mr Walters from behind. The impact
threw him 15 metres. He landed on (or near) the road.
The plaintiff suffered serious injuries, including spinal injury at the level of T10, and psychological injuries. He is now wheelchair bound.
The plaintiff is married with four adult children and three grandchildren. Before the accident, he was an active man with a full life: unable to sit still. He was employed as an emergency rescue paramedic, working fly-in/fly-out at the mines. He was a keen, five days-per-week cyclist; in training for an amateur, international, 800- kilometre event. He and his wife shared interior domestic duties on the weeks he was home. He was primarily responsible for cleaning and maintaining the exterior of their house, including the pool. They had planned a future which included travelling, ballroom dancing and spending more time together as a couple.
The plaintiff’s life has been profoundly changed by the accident and he struggles daily
with feelings of despair, frustration and loss.
His family have been of enormous comfort and support to him. His wife, who is a nurse, attends to many of his care needs.
The plaintiff is a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (the “Scheme”).
Broadly, the purpose of the Scheme is to ensure that the treatment, care and support needs of those who are catastrophically injured in car accidents are met for their lifetime, regardless of their fault, out of an insurance fund to which motorists contribute.
A recurring theme in the evidence of the plaintiff and his wife is that they find the administrative aspects of the Scheme a burden. And they resent the lack of autonomy
they have over decisions about the plaintiff’s treatment, care and support.
The plaintiff seeks about $3.5 million in damages. Liability has been admitted. However, the parties are in dispute about the quantum of the claim.
The defendant insurer (“QBE”) asserts that some aspects of the plaintiff’s claim are
“excessive and contrary to the medical and other evidence and the application of the
Civil Liability Act 2003 (Qld) and the National Injury Insurance Scheme
(Queensland) Act 2016 (Qld)”. In particular, QBE submits that, on the correct
interpretation of the legislation, because the plaintiff is a participant in the Scheme, QBE is not liable to compensate him in damages for past or future gratuitous care (the
“legal issue”).
I have determined that QBE is not liable in damages for the plaintiff’s past or future
gratuitous care. However, it is important to note that the outcome of the legal issue in this case is not the default position under the Scheme for a participant like the plaintiff who has a good claim for damages for personal injury against an at-fault defendant. The Scheme is designed to preserve to a participant like the plaintiff the option of accepting lump sum damages for treatment, care and support, and opting out of the Scheme. Had the plaintiff preserved that option, he could have achieved autonomy over his treatment, care and support. However, the plaintiff chose not to preserve that option. Instead, he decided to remain a participant in the Scheme and to argue that he was also entitled to claim lump sum damages for gratuitous care from
the defendant’s insurer. I have concluded that the legislation does not permit him to
do so.
My reasons for that conclusion, and for my various conclusions about the other quantum matters in dispute, follow.
I have not quantified the monetary amounts for the allowances I have made for the disputed claims. I direct the parties to undertake the calculations which will give effect to my judgment and to provide me with a draft order which takes into account the quantum matters about which they are agreed and the matters in dispute which I have resolved.
If the parties are unable to agree on a draft order or unable to agree on costs, I will hear the parties further on a date to be agreed between the parties and Court.
The legal issue
QBE asserts that section 52B(2) of the CLA is a complete answer to the plaintiff’s
claims for damages for past and future gratuitous care. That section was introduced into the CLA by section 149 of the National Injury Insurance Scheme (Queensland)
Act 2016 (Qld) (“NIISQA”).
The National Injury Insurance Scheme
The National Injury Insurance Scheme is a scheme which runs in parallel with the National Disability Insurance Scheme.
The Scheme is funded by a levy, payable by motorists as part of their CTP insurance premiums, to cover the cost of the lifetime care of persons who are catastrophically injured in motor vehicle accidents.
Each State or Territory in Australia has implemented its own National Injury Insurance Scheme.
Queensland’s Scheme was established by the NIISQA.
The stated purpose of the Queensland Scheme is “to ensure that persons who suffer
particular serious personal injuries as a result of a motor accident in Queensland
receive necessary and reasonable treatment, care and support, regardless of fault”
(section 3(1) NIISQA).
Section 3(2) of the NIISQA explains how its purpose is to be achieved –
(2) The purpose is achieved by establishing –
(a) a national injury insurance scheme, Queensland for –
(i) assessing the treatment, care and support needed by participants in the scheme; and (ii) making payments for the treatment, care and support of participants; and (b) a National Injury Insurance Agency, Queensland to administer the scheme; and (c) a national injury insurance scheme fund, Queensland.
The Queensland Scheme applies in relation to motor vehicle accidents which happen on or after 1 July 2016 (section 4 NIISQA). The plaintiff suffered his accident in August 2016.
Persons who meet certain eligibility criteria are eligible to participate in the Scheme
(section 12 NIISQA). The plaintiff met the criteria; applied to “the agency” to
participate in the Scheme; and was accepted as a participant.
The “agency” is the National Injury Insurance Agency, Queensland (the “Agency”),
established by section 55 of the NIISQA.
Under section 26 of the NIISQA, the Agency must make a support plan for a participant, after carrying out an assessment of the participant under section 25. The
assessment involves, inter alia, an assessment of a Scheme participant’s “treatment,
care and support needs”.
“Treatment, care and support needs” are defined in section 8 of the NIISQA.
“Excluded treatment, care and support” is defined in section 9. The outcome of the
legal issue in this case depends upon my interpretation of those sections.
8 Meaning of treatment, care and support needs
The treatment, care and support needs of a person are the
person’s needs for, or relating to, 1 or more of the following –
(a) medical or pharmaceutical treatment; (b) dental treatment; (c) rehabilitation; (d) ambulance transportation; (e) respite care; (f) attendant care and support services; (g)
aids and appliances, other than ordinary personal or household items;
Examples of ordinary personal or household items –
an air conditioner, a laptop, linen, a mobile phone, a personal
computer or a washing machine
(h) prosthesis; (i) education or vocational training;
(j) home or transport modification. 9 Meaning of excluded treatment, care and support
(1) Excluded treatment, care and support is treatment, care and support that –
(a) is provided without charge; or (b) if the participant is a child – ordinarily falls within the ordinary costs of raising a child; or
(c)
must be provided by a registered provider but is provided by a person who, at the time of provision, is not a registered provider; or
(d)
is provided as part of a medical trial or on another experimental basis; or
(e)
is provided as part of a public sector health service, as defined in the Hospital and Health Boards Act 2011, schedule 2; or
(f)
is provided by State emergency services, including the Queensland Ambulance Service or the Queensland Fire and Emergency Service; or
(g) is prescribed by regulation.
(2) For subsection (1)(c), the following treatment, care and support must be provided by a registered provider –
(a)
attendant care and support services that are personal assistance services or services to assist a person to participate in the community;
(b)
any other treatment, care or support prescribed by regulation.
(3)
However, subsection (2)(a) does not apply if the treatment, care and support is being provided to a person at a hospital (whether as an inpatient or an outpatient) as part of the services provided by the hospital.
“[A]ttendant care and support services” (in section 8(f)) are defined in schedule 1 of
the NIISQA as “services to help a person with everyday tasks”.
Chapter 2 (National injury insurance scheme, Queensland) of Part 4 (Payments) of the NIISQA sets out the ways in which payments may be made in relation to the
treatment, care and support of participants, namely –
by way of funding agreements (Division 2 of Part 4); or after payment requests (Division 3 of Part 4); or by way of a “contribution” by the Agency towards an insurer’s liability (if any) for treatment, care and support damages (Division 4 of Part 4).
Division 4 of Part 4 applies in relation to a lifetime participant of the Scheme, if a claim has been made against a relevant insurer by the lifetime participant for the
participant’s injury (section 40).
The plaintiff is a lifetime participant in the Scheme and he has made a claim against a relevant insurer for his injury.[1] Thus, the division, which contains sections 40 to 44, applies to him.
[1] See the definition of insurer in Schedule 1 to the NIISQA: “insurer means an insurer under the statutory
Speaking very generally, under Division 4, a relevant participant may –
choose to “preserve” any rights they may have to be awarded damages in relation to their treatment, care and support; and
if successful in a claim for those damages, elect to receive them as a lump sum,
payable by the Agency; and opt out of the Scheme.
In detail, section 41 of the NIISQA provides for the giving of a “preservation notice” by a relevant participant –
41 Notice about right to treatment, care and support damages
(1) The participant must give a notice to the agency and the insurer stating whether or not the participant wants to preserve any right the participant may have to be awarded treatment, care and support damages under a final judgment of a court or a binding settlement. (2) A notice given under subsection (1) stating that the participant wants to preserve any right the participant may have to be awarded treatment, care and support damages is a preservation notice.
(3) The participant must give a notice under subsection (1) –
(a) if the claim is made after the participant is accepted as a lifetime participant—within 14 days after the
participant is given, or is entitled to be given, a notice
under the Insurance Act, section 39(1) or (2); or
(b) if the claim is made before the participant is accepted as a lifetime participant – within 14 days after the participant is given notice of the participant’s
acceptance into the scheme as a lifetime participant.
(4)
However, a notice may be given after the period stated in subsection (3), but before a final judgment is given, or a
settlement is made, in relation to the claim, if –
(a)
the insurer and the agency agree to the notice being given; and
(b) for a claim that is the subject of a proceeding before a court – the court orders that the notice may be given.
(5)
If the agency considers the participant is a person under a legal disability, the agency must apply to the court for an order sanctioning a notice given under subsection (1).
(6) Subsections (7) and (8) apply if the court considers the
participant is a person under a legal disability.(7) The court –
(a) must decide whether or not to sanction the notice; and (b)
may order that the participant, or a person acting for the participant, give a new notice under subsection (1); and
(c)
may make any other order the court considers appropriate.
(8)
If the participant is an adult, the court may exercise all the powers of QCAT under the Guardianship and Administration Act 2000, chapter 3.
(9)
If the court exercises a power mentioned in subsection (8), the Guardianship and Administration Act 2000, section 245(3) to (6) applies in relation to the exercise of the power as if the court were acting under section 245(2) of that Act.
(10) This section is subject to section 43.[2] (11) In this section – court means –
(a) if a proceeding in relation to the claim has been [2] Under section 43(1): “The agency may apply to the court for an order preventing the participant from being
brought in the District Court or the Supreme Court –
the court hearing the proceeding; or
(b) otherwise – the District Court or the Supreme Court.
If the participant gives a preservation notice to the Agency (sections 41(1) and (2)),
then the Agency is liable to contribute towards the insurer’s liability under section 42
of the NIISQA –
42 Liability of agency to contribute towards damages
(1) If the participant gives a preservation notice, the agency is liable to contribute towards the insurer’s liability, if any, on the claim for treatment, care and support damages. Notes – 1 For the awarding of damages in relation to a participant’s treatment, care and support needs, see the Civil Liability Act
2003, chapter 3, part 2A.2 For the role of the agency in relation to a claim that the agency is liable to contribute towards, see the Insurance Act, part 4, division 8.
(2) However, the agency stops being liable to contribute if –
(a) a court decides, or the parties to the claim agree by way of settlement, that –
(i) the participant is guilty of contributory negligence in relation to the claim; and
(ii) the damages that the participant would otherwise be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by 50% or more; or
(b)
a court decides, under section 41(7), not to sanction the preservation notice; or
(c)
a court makes an order, under section 43, preventing the participant from being awarded treatment, care and support damages; or
(d) for a participant other than a participant whose preservation notice has been sanctioned by a court—
the participant, by notice to the agency and the insurer,
withdraws the preservation notice.
(3) In this section – party, to the claim, includes the agency.
Under section 44, if the participant/plaintiff is awarded treatment, care and support damages under a final judgment of a court or a binding settlement, then the participant/plaintiff must choose whether to accept the awarded treatment, care and support damages or not. If the participant/plaintiff notifies the Agency and the defendant insurer that he or she accepts the awarded treatment, care and support damages then, in effect, the Agency pays the lump sum which would otherwise be paid by the defendant insurer to the participant/plaintiff and the participant/plaintiff ceases to be a participant in the Scheme. If the participant/plaintiff does not accept the awarded treatment, care and support damages, then the participant/plaintiff remains in the Scheme, which will thereafter meet the cost of his or her treatment,
care and support for his or her lifetime in accordance with the NIISQA –
44 Acceptance of treatment, care and support damages
(1) This section applies if –
(a)
the participant is awarded treatment, care and support damages under a final judgment of a court or a binding settlement; and
(b) the agency is liable, under section 42, to contribute towards the insurer’s liability on the claim for
treatment, care and support damages.
(2)
The participant must, within the acceptance period, give notice to the agency and the insurer stating whether or not the participant accepts the awarded treatment, care and support damages.
(3)
If the participant states in the notice given under subsection (2) that the participant accepts the awarded treatment, care
and support damages –
(a)
the agency must pay to the participant the amount of the awarded treatment, care and support damages, less any amount that relates to the period of the
participant’s participation in the scheme; and
(b)
the participant stops being a participant in the scheme when the participant receives the payment under paragraph (a); and
(c) despite the final judgment of the court or the terms of the binding settlement –
(i)
the insurer is not liable to pay to the participant the amount of the awarded treatment, care and support damages; and
(ii)
the agency is not liable to pay to the participant any amount of the awarded treatment, care and support damages that relates to the period of the
participant’s participation in the scheme.
(4)
Subsection (5) applies if the participant gives a notice under subsection (2) stating that the participant does not accept the awarded treatment, care and support damages.
(5)
Despite the final judgment of the court or the terms of the binding settlement, neither the agency nor the insurer is liable to pay the amount of the awarded treatment, care and support damages.
(6)
For this section, a payment of an amount of damages is taken to have been paid to, or received by, the participant if the payment is paid to, or received by, a person who may lawfully receive the payment for the participant.
(7) This section applies despite the Civil Proceedings Act 2011,
part 13.(8) In this section – acceptance period means –
(a)
if the binding settlement or final judgment under which the treatment, care and support damages are awarded must, under another Act, be sanctioned by a
court or the public trustee—the period of 14 days after
the sanction is given; or
(b) if the treatment, care and support damages are awarded under a binding settlement and paragraph (a) does not apply—the period of 14 days after the
settlement is made; or
(c) if the treatment, care and support damages are awarded under a final judgment of a court and paragraph (a) does not apply – the period of 14 days
after the period for lodging an appeal against the
judgment ends.
The Civil Liability Act 2003
The NIISQA amended the CLA by inserting into it part 2A of Chapter 3 containing sections 52A, 52B and 52C.
Section 52A contains the definitions for the part. Section 52B prohibits a court from awarding damages for the treatment, care and support needs of a plaintiff/participant
if those needs arose while the plaintiff/participant was a participant in the Scheme –
subject to section 52C. Under section 52C, the court may award the plaintiff/participant treatment, care and support damages in the circumstances spelt
out in that section –
Part 2A Participants in national injury insurance scheme,
Queensland
52A Definitions for part In this part – insurance agency means the National Injury Insurance Agency, Queensland established under the National Injury Act.
insurance scheme means the national injury insurance scheme, Queensland established under the National Injury Act, chapter 2.
motor accident see the National Injury Act, section 4(1)(b). National Injury Act means the National Injury Insurance
Scheme (Queensland) Act 2016.serious personal injury see the National Injury Act,
schedule 1.52B Restriction on damages for participants in insurance
scheme
(1)
This section applies to the awarding of damages for personal injury resulting from a motor accident if the person suffering the injury is, or was, a participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident.
(2) A court can not award damages in relation to the person’s treatment, care and support needs that –
(a) result from the personal injury; and (b)
arise, or arose, while the person is, or was, a participant in the insurance scheme.
(3) This section applies –
(a)
whether or not the personal injury is a serious personal injury; and
(b)
whether or not the treatment, care and support needs are an approved service for the person under the National Injury Act; and
(c)
whether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and
(d)
whether or not the treatment, care and support is provided without charge.
(4) Also, this section applies subject to section 52C. (5) In this section – participant, in the insurance scheme, see the National
Injury Act, section 14(1).treatment, care and support needs see the National
Injury Act, section 8.
52C Damages if insurance agency is liable to contribute
(1)
This section applies to a claim for personal injury damages against an insurer under the Motor Accident
Insurance Act 1994 if –
(a) the personal injury resulted from a motor accident; and (b) the person suffering the personal injury is a lifetime participant in the insurance scheme in relation to a serious personal injury resulting from the motor accident; and (c) a court decides –
(i) the person is not guilty of contributory negligence in relation to the claim; or (ii) the person is guilty of contributory negligence in relation to the claim and the damages that the person would be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by less than 50%; and (d) the insurance agency is liable, under the National Injury Act, section 42, to contribute towards the insurer’s liability on the claim for
treatment, care and support damages.
(2) The court may award treatment, care and support
damages.(3)
However, if the court awards treatment, care and support damages, the court must not, in assessing the amount of the treatment, care and support damages, take into account any contributory negligence of the person.
(4) In this section – lifetime participant see the National Injury Act,
section 14(2).treatment, care and support damages see the National
Injury Act, schedule 1.
Principles of statutory interpretation
The resolution of the legal issue depends upon my interpretation of the relevant provisions of the NIISQA and the CLA.
[40] In their submissions, the parties referred me to the principles of statutory
interpretation. Those principles are well known. They include that –
the primary object of statutory interpretation is to construe the relevant
provision consistently with the language and purpose of all of the provisions
of the statute;[3]
[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at 381
the meaning of a provision must be determined “by reference to the language
of the instrument viewed as a whole” (emphasis added);[4] statutory construction begins with a consideration of the text itself;[5]
the meaning of the text may require consideration of the context, including the general purpose and policy of a provision, and in particular the mischief it is seeking to remedy;[6]
the statutory text must be considered in its context, including in the context of the legislative history and extrinsic materials, but legislative history and extrinsic materials cannot displace the meaning of the statutory text;[7]
it is to be presumed that, “in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities” – that is, the principle of legality applies;[8]
if the text of a provision, read in context, permits of more than one meaning, then the choice between meanings may ultimately turn on the relative coherence of each with the scheme of the statute and its identified objects or policies;[9]
[4] Ibid, quoting Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ.
[5] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 – 7 [47].
[6] Ibid.
[7] Commissioner of Taxation v Consolidated Media (2012) 250 CLR 503 at 519 [39].
[8] Project Blue Sky as referred to in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 591-2 [43].
[9] SAS Trustee Corporation v Miles (2018) 265 CLR 137 at 149 [20] (Kiefel CJ, Bell and Nettle JJ).
“[c]ontext can give words an interpretation that is the opposite of their
ordinary meaning and grammatical sense”[10] – but “the clearer the natural
meaning, the more difficult it is to justify departing from it”.[11][10] Ibid at 162-3 [64] (Edelman J).
[11] Ibid quoting Arnold v Britton [2015] AC 1619 at 1628 [18].
I have applied those principles in the course of considering the meaning to give to section 9 of the NIISQA, and the consequences of attributing to the section (and its interplay with section 8) one meaning over another.
I have also taken into account relevant sections of the Acts Interpretation Act 1954
(Qld) (the “AIA”) including sections 14A and 14B. Section 14A of the AIA provides that the interpretation of a provision of an Act which will “best achieve the purpose of the Act” is to be preferred to any other interpretation. Section 14B sets out the
circumstances in which extrinsic materials may be considered in the interpretation of
a provision, including where the provision is ambiguous or obscure.The explanatory notes and second reading speech
It is convenient at this point to set out some of the content of the explanatory notes of, and the second reading speech for, the National Injury Insurance Scheme (Queensland) Bill 2016. The parties referred to these extrinsic materials in their submissions. All of the emphasis in the quoted parts which follow is mine.
The explanatory notes to the National Injury Insurance Scheme (Queensland) Bill
2016 begin with an explanation of Queensland’s compulsory third-party (“CTP”)
insurance scheme – a common law “fault” based scheme. Under the CTP scheme, a
person who is injured in a motor vehicle accident, who is at fault, cannot successfully claim against a CTP insurer. In the absence of the Scheme, they would be left (as
explained by the Treasurer in the second reading speech), “to rely on the support of
family, friends and carers, not-for-profit groups, public health and welfare systems”.
In that context, the main purpose of the Scheme is to ensure that certain injured persons receive all necessary care, treatment and support, regardless of their fault.
However, as the Treasurer explained, the Scheme is a “hybrid” scheme, which allows
for the retention of common law rights for a not-at-fault injured person and allows the not-at-fault injured person to choose between accepting a lump sum for treatment, care and support damages and opting out of the Scheme, or not accepting the lump
sum for those damages and remaining in the Scheme. He said –
This bill also retains participants’ common law rights. I note that the
opposition is proposing amendments that would strip away these
common law rights. This is anti-choice. It is the government’s firm
view that adopting a hybrid scheme provides greater freedom of choice and self-determination for participants. The bill preserves common
law rights and enables participants the freedom to choose whether
to receive a lump sum or to remain in the NIISQ [the Scheme].
All participants who have a CTP claim can continue to make a common law claim for damages such as non-economic loss and economic loss.
In addition, some participants will be able to opt out of the National Injury Insurance Scheme Queensland and pursue a claim for
treatment, care and support damages. These damages will be paid by the National Injury Insurance Scheme. The bill aligns NIISQ processes with the CTP claims process under the Motor Accident Insurance Act 1994 so that damages under CTP and damages under the National Injury Insurance Scheme are settled at the same time.
Where the agency holds concerns regarding a person’s ability to manage
their damages for their lifetime, the agency can apply to the court for an order that prevents certain persons from seeking an award for treatment, care and support damages. The intent is to ensure that catastrophically injured people have access to treatment, care and support for their lifetime and that their damages are managed efficiently and last for their lifetime. Where a participant is unable to, or does not elect to pursue
damages for treatment, care and support, they will remain a
participant in the NIISQ.Towards the end of the second reading speech, the Treasurer said –
… The insurance industry raised concerns directly to the government
and through the parliamentary committee about the scope of their liability in relation to payments for medical expenses, rehabilitation expenses and for the payment of treatment, care and support damages
for injuries arising from a motor vehicle accident.
To ensure the legislation is clear, a number of clauses have been amended to remove the potential uncertainty about the operation of the bill and make the position clearer that the agency is the sole entity
responsible for meeting payments for the participant’s medical
expenses, rehabilitation expenses and treatment, and care and support damages for all injuries arising in the subject accident and not the CTP insurers.
The position of a person such as the present plaintiff (who was injured by an at-fault
driver) is also discussed in the explanatory notes –
Where fault of a person other than the injured person can be established, certain participants are able to elect to opt out of the [Scheme] and obtain payment of treatment, care and support damages from the [Agency], with the CTP insurer making payments for all other heads of damage.
Participants who cannot, or choose not to, opt out of the [Scheme] will continue to receive their treatment, care and support services co-ordinated through [the Scheme].
The explanatory notes to specific clauses in the bill include the following –[12]
[12] In each case, the clause in the bill was reproduced identically in the Act, with the exception of the cut off
Clause 18 When person other than injured person may make application
…
Under clause 18, an insurer is able to make an application on behalf of
a seriously injured person, without the person’s consent, to be accepted
as a participant into the NIIS(Q) Fund [sic].
The ability of an insurer to make such application is justified in that [sic] on the basis that a person will receive lifetime care and support under the [Scheme]. This will provide certainty and early access to rehabilitation and services that might otherwise be delayed. Acceptance by the [Agency] of a person as a participant into the scheme will relieve
the insurer from direct liability for the payment for treatment and care, and is consistent with [the Scheme] Levy and CTP premium
distribution. It is important that the CTP insurer and the [Scheme] understand the status of a participant, this will assist with the provision of treatment, care and support services, respective liabilities of parties and the resolution of a CTP claim.
Clause 42 Liability of agency to contribute towards damages; and Clause
43 Application to court for order
...
Under the current CTP scheme, an injured person has a right to claim common law damages for hospital, medical and other treatment and care. Under clause 42, if a person is a participant in the [Scheme], the [Agency] is not liable to contribute to the claim for treatment, care and support damages where a participant is guilty of contributory negligence of more than 25% [increased to 50% upon the passage of the NIISQA], or where the person has indicated they do not wish to preserve their right to receive damages, or where a Court prevents a participant from
receiving a lump sum …
The removal of the right to claim common law damages in these restricted circumstances is justified on the basis that a person will
receive lifetime care and support under the NIIS(Q). This will provide certainty and early access to rehabilitation and a CTP claimant no longer carries the risk that a lump sum may not last their lifetime ether due to underestimation of future costs, mismanagement of funds or payment of legal costs. A participant may still claim common law damages for other categories of loss and damage where they can assert fault against other [sic] owner or driver of a motor vehicle (i.e. for non- economic loss and economic loss).
The “Notes on provisions” of the bill include the following (emphasis added) –
Clause 8 defines “treatment, care and support needs” for the scheme.
Clause 9 defines “excluded treatment, care and support” for the scheme.
Such treatment, care and support is not required to be funded by the scheme. The clause also identifies treatment, care and support that must be provided by a registered provider.
…
Clause 12 … A person is not eligible to participate in the scheme inrelation to a serious personal injury if the person has been awarded damages, under a final judgment of a court or a binding settlement, in
relation to the person’s treatment, care and support needs as a result of
the injury and the damages were paid other than by way of a payment by the agency under section 44(3)(a), or, if the person was suffering from a pre-existing injury or condition and the motor accident does not
permanently increase the person’s extent of disability.
Clause 13 provides that the agency may decide to accept a person into the scheme if they suffer a serious personal injury prescribed by regulation but are not eligible to participate in the scheme in relation to the injury. In this situation, the period of participation in the scheme will be agreed between the injured person and the agency and could potentially relate to, for example, a fixed period of time, or, the
remainder of a person’s life.
If the person is accepted as a participant in the scheme, the person must
pay to the agency a contribution towards the person’s treatment, care
and support needs. This contribution will be used to fund the person’s
future treatment, care and support. …
The plaintiff’s position under the Scheme
The plaintiff was accepted as an interim participant in the Scheme on 13 October 2016.
On 20 August 2018, he was accepted as a lifetime participant in the Scheme.
He gave a preservation notice to the Agency, under section 41 of the NIISQA, on 23 August 2018.
He withdrew that notice on 25 September 2018.
The plaintiff filed his claim and statement of claim against the defendants on 8 March 2019.
The plaintiff’s reasons for withdrawing the preservation notice have not been
explained.
A hypothetical person in the position of the present plaintiff who had not withdrawn
the preservation notice could have sued the defendants for “treatment, care and
support damages” under section 52C.
If successful in that aspect of his or her claim, the Agency (not QBE) would have to pay those damages if the hypothetical plaintiff elected, under section 44(2) of the NIISQA, to accept them (as a lump sum) and leave the Scheme. The hypothetical plaintiff, of course, would have the option of not accepting the lump sum amount, and remaining a participant in the Scheme.
However, having withdrawn the preservation notice, the present plaintiff is subject to section 52B of the CLA.
The plaintiff’s argument in support of his claim for past and future gratuitous
care
The plaintiff acknowledges that he has certain “treatment, care and support needs”
which are funded by the Agency under the NIISQA. However, he has other needs
which he says “have not been and will not be” funded by the Agency. In particular,
the Agency does not fund all of the attendant care services provided to him.
The plaintiff does not suggest that the Agency is not willing to fund all of the attendant care services he requires. Rather, the plaintiff and his wife decided not to have paid
(that is, Agency funded) carers attend to all of the plaintiff’s care, for reasons which
included a desire for privacy and increased opportunity for intimacy, and for the good
of their relationship. Thus, the plaintiff’s wife (and other members of his family)
have provided a significant amount of care (including attendant care) to him and will continue to do so. Also, the plaintiff argues, his needs are not always predictable and, in the absence of a paid 24-hour carer, responsibility for his unpredictable needs falls (mostly) to his wife.
The plaintiff accepts that, in so far as his treatment, care and support needs have been met, and will be met, by paid carers, funded by the Agency, he cannot recover damages in respect of those needs. However, he argues that the legislation preserves his legal entitlement to recover from QBE damages for gratuitous care, which, he
submits (that is, gratuitous care), is not a “treatment, care and support need” for which
the Agency is responsible because it is excluded from section 8 of the NIISQA by
section 9 of the NIISQA.
From the plaintiff’s perspective in this case, his excluded treatment, care and support includes –
the gratuitous care and support provided by his family; who are additionally, not
registered providers (see section 9(1)(c)); and the “coordination” services provided by his wife (see section 9(1)(g) and regulation 21, National Injury Insurance Scheme (Queensland) Regulation
2016).
The plaintiff developed his argument as follows: first as to the correct interpretation of sections 8 and 9; and then as to the consequences of that interpretation for his claim
for damages –
The interpretation of sections 8 and 9 of the NIISQA
(a) The phrase “treatment, care and support” is not defined in the NIISQA but its meaning may be gleaned from the definition of the associated expression
“treatment, care and support needs” in section 8 of the NIISQA;
(b) Section 9 defines “excluded treatment, care and support” to include treatment, care and support “that is provided without charge”; (c) “Excluded” is to be given its literal meaning; (d) Although section 8 does not expressly state that “treatment, care and support needs” do not include, or exclude, needs relating to “excluded treatment, care
and support”, the “natural reading of the interplay between ss. 8 and 9 … [is]
that if particular treatment, care and support comes within s. 9, a need for such treatment, care and support will not fall within s. 8 as a treatment, care and
support need”;
(e) Support for the “natural interplay” based interpretation of sections 8 and 9 may be found in the explanatory notes and the second reading speech of the NIISQ bill in the statements made therein that excluded treatment, care and support is
“not required to be funded” by the Scheme (see paragraph [49] above).
(f) The balance of the provisions of the NIISQA sits comfortably with the plaintiff’s interpretation of sections 8 and 9 (and their natural interplay) in that
other provisions of the Act require “consideration” of whether treatment, care or support is “excluded”, such as sections 15 and 26 – consistent with a
requirement that the Agency is literally to exclude section 9 treatment, care and
support from funding.The CLA and the plaintiff’s damages claim
(g) Section 52B of the CLA only acts as a bar to recovering damages in relation to a person’s “treatment, care and support needs” – that is, matters which fall
within section 8 of the NIISQA;
(h) When section 8 is read in conjunction with section 9, gratuitous care, and care provided by an unregistered provider, are excluded from the definition of “treatment, care and support needs”;
(i) Therefore, section 52B does not operate to restrict or bar the plaintiff’s
entitlement to recover damages for the matters in [62] above;
(j) Section 52B(3) should not be read to “expand the prohibition” in section 52B(2): “If the prohibition does not arise in the first place, [subsection] (3) has
no work to do”.
The plaintiff also made the following submissions in response to QBE’s arguments.
Submissions in response to the insurer’s arguments
If QBE is correct, then the plaintiff’s common law right to recover damages for
gratuitous care was extinguished the moment he entered the Scheme. Yet this was not a stated purpose of the NIISQA. And in the absence of clear words, the statute ought not to be construed in prejudice of existing rights.
Any concern that a plaintiff who receives lump sum damages for gratuitous care might then have the same care provided by the Agency is alleviated by the fact that the Agency can take into account that damages have been paid for gratuitous care in
assessing the plaintiff’s treatment, care and support needs (see sections 15, 25 and
26(1)(e) of the NIISQA, and regulation 16(2)). Also, if such a plaintiff applied to come back into the Scheme, the prior damages award could be taken into account, under section 16(4) of the NIISQA.
Correctly interpreted, section 37(6) (upon which QBE relies – see below) does not
imply that excluded treatment, care and support may form part of a support plan or a
service request approval (which would be inconsistent with the plaintiff’s
interpretation of sections 8 and 9). Section 37(6) only applies for the purposes of section 37. It provides an exception for the payment of excluded treatment, care and support. If support plans or service request approvals could, without subsection (6), contain approval for excluded treatment, care and support, there would be no need for
subsection (6). It “exists” because excluded treatment, care and support cannot
otherwise be provided for in either a support plan or service request approval. The
references to “excluded treatment, care and support” in sections 37(6)(a) and (b) are
directed to that which is the subject of the payment request under section 35. The subsections say, in effect, that if the excluded treatment, care and support corresponds to treatment, care and support in a support plan or service request approval, then it can be taken to be an approved service. By this provision, emergency treatment, care and support, which otherwise would not be covered, can be funded by the Scheme.
The defendant insurer’s argument
Context
To provide context for its arguments, QBE referred me to the following statements of the High Court in Daly v Thiering (2013) 249 CLR 381, at 392, which concerned
cognate, but not identical, legislation –
In the field of motor vehicle accidents, legislative intervention to ensure that injured persons are provided meaningful compensation and care which the community is able to afford is now commonplace. There was no occasion to read the language of s 130A with an eye to preserving the common law rights of a participant in the Scheme, especially given that s 128 of the [Motor Accidents Compensation Act 1999 (NSW)] evinces an unmistakable intention to cut back those rights, and given further that s 130A was enacted as an integral part of legislative measures to provide for the lifetime care of a participant in the Scheme established by the [Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)].
In Daly v Thiering, the High Court quoted from the decision of Basten JA in Harrison v Melhem (2008) 72 NSWLR 380. Harrison v Melhem was a decision of a five-
member Court of Appeal in which Basten JA said at 409, [220] – [221] (some of
which was quoted by the High Court) –Compensation for loss of the capacity to look after oneself as a result of the tortious conduct of another is undoubtedly an entitlement which arises under the general law. In many cases, in a practical sense, fulfilment of that entitlement will depend upon the defendant holding insurance. In relation to a range of conduct which may cause loss if negligently undertaken, the legislature has intervened to impose statutory requirements of insurance so that those injured are not left without effective redress. In other cases, insurance may be voluntary, but is widely held. In these circumstances, issues of public policy arise in relation to the extent to which an injured person can obtain compensation for injury, and the manner in which the costs are to be spread across the community. It is a matter of general knowledge that these concerns led to the establishment of a committee to review the law of negligence, which reported to the Commonwealth Minister for Revenue and the Assistant Treasurer, in September 2002. The question of capping liability for attendant care services was expressly addressed in that report. Thus, both the existence of an effective remedy and controls over the extent of compensation have long since moved beyond the scope of the general law unaffected by statute, and have become the specific attention of widespread statutory interventions.
In these circumstances, it is reasonable to conclude that Parliament addressed the relevant issues by imposing specific constraints on recovery, which was otherwise available under the general law. In the absence of constraint, general law principles continue to operate. If the factors involved in resolution of statutory ambiguity were indeed finely balanced, it would be appropriate to resolve the issue in favour of the continuation of general law entitlements. On the other hand, where consideration of the legislation, in a given statutory context, favours a construction involving greater rather than lesser constraint, there is no reason not to give effect to the construction so indicated.
QBE also referred me to the following passages from the second reading speech for
the NIISQA (emphasis by QBE) –
All participants who have a CTP claim can continue to make a common law claim for damages such as non-economic and economic loss. In addition, some
participants will be able to opt out of the National Injury Insurance Scheme Queensland and pursue a claim for treatment, care and support damages. These
damages will be paid by the National Injury Insurance Scheme. The bill aligns NIISQ processes with the CTP claims process under the Motor Accident Insurance Act 1994 so that damages under CTP and damages under the National Injury Insurance Scheme are settled at the same time.
And –
To ensure the legislation is clear, a number of clauses have been amended to remove the potential uncertainty about the operation of the bill and make the
position clearer that the agency is the sole entity responsible for meeting
payments for the participant’s medical expenses, rehabilitation expenses and
treatment, and care and support damages for all injuries arising in the subject
accident and not the CTP insurers.
Submissions
QBE submits that the plaintiff’s claim for damages for gratuitous care is contrary to
the statutory scheme.
It submits that the Scheme was intended to operate to ensure that CTP insurers are not
liable for treatment, care and support damages – the Agency is. Indeed, CTP insurers
are unfunded for those damages.
QBE argues that the plaintiff is “seeking to get the best of both worlds” by receiving
a lump sum for damages for treatment, care and support from the insurer whilst
continuing to receive benefits from the Scheme. This is a form of “double recovery”
not contemplated by the Scheme.
On the correct interpretation of sections 8 and 9 of the NIISQA, damages for
gratuitous care come within the scope of “treatment, care and support damages”.
QBE submits that, upon his withdrawal of the preservation notice, the plaintiff “gave
up” his right to claim damages for treatment, care and support under section 52C of
the CLA. And, by reason of section 52B of the CLA, a court may not award the
plaintiff damages for past and future gratuitous care.
Throughout its submissions – written and oral – QBE emphasised the point that, had
the plaintiff not withdrawn the preservation notice, he would have been able to successfully sue for lump sum damages for treatment, care and support, which could include gratuitous attendant care and support (referring to section 52C(1)(d) of the CLA).
QBE submits that, despite using the word “excluded”, section 9 sets out matters which
are “carve outs” from section 8 or a subset of section 8 needs, which are to be treated
in a certain way under the NIISQA but which may be funded by the Scheme. Reading
the NIISQA harmoniously requires a non-literal interpretation of the word “excluded”
including because –
(a)
section 37(6) makes it very clear that section 9 excluded treatment, care and support may become treatment, care and support under a support plan if the Agency considers it necessary and reasonable; and
(b)
the sections of the NIISQA, which require the Agency to consider “whether” a treatment, care and support need is “excluded treatment, care and support” are inconsistent with the proposition that “excluded treatment, care and support” can never be funded by the Agency – indeed, those sections imply that excluded
treatment, care and support may be funded.
Further, QBE submits that –
(a) it cannot be said that section 52B does not prohibit the court awarding damages for excluded treatment, care and support, because –
(i) section 52B(3)(b) of the CLA makes it plain that the prohibition on the award of damages applies whether or not the treatment, care or support
is an approved service – and excluded treatment, care or support may be
an “approved service”;(ii) section 52B(3)(c) of the CLA makes it plain that the prohibition on the award of damages applies whether or not the Agency must make a payment in relation to the treatment, care and support needs under the
NIISQA – the Agency is not obliged to, but may, fund excluded
treatment, care and support; and
(iii) in accordance with section 52B(3)(d), the prohibition clearly applies to treatment, care and support which is provided gratuitously (that is,
“excluded treatment, care and support”) – it would be a contortion of the
language to suggest that it did not;
(b) the prohibition in section 52B(2) of the CLA concerns damages in relation to the person’s treatment, care and support needs – section 9 does not define
excluded treatment, care or support needs;
(c) the prohibition on the recovery of damages in subsection 52B(2) “matches” the needs set out in section 8. As Queen’s Counsel explained –
… if a service is not a need it is not covered by the Scheme … And a
gratuitous service which is not a need will not be recoverable as damages
under [section 59(1)(a) of the CLA] … So, the proper way … of looking at section 9 … is that it sets out a subset of ways of providing …
treatment, care and support. This subset is not excluded from the
prohibition in 52B(2) … which only refers to needs. Section 9 is merely
a subset of matters that … may or may not be provided for and funded
under the Scheme …
(d) the plaintiff’s approach would render the “carefully worded statutory scheme for preserving common law claims” in sections 40 – 44 of the NIISQA “completely irrelevant to his claim for damages for treatment, care and
support”; and
(e) on the plaintiff’s case, QBE would be required to pay a large sum for treatment, care and support damages for which it is not funded.
It was not correct to say that, on the defendant’s interpretation, the plaintiff’s common
law right to recover damages for gratuitous care was extinguished from the time he entered the Scheme (thus depriving him of significant compensation). His rights were
“extinguished” under section 52C when he withdrew his preservation notice. As
emphasised by QBE, had the preservation notice not been withdrawn, the plaintiff could have sued for treatment, care and support damages (and included an amount for the care and support provided gratuitously).
QBE submits that there is nothing perverse or wrong (as suggested by the plaintiff) about the NIISQA preserving only to a participant without fault[13] a right to claim treatment, care and support damages. An at-fault participant would never have a (viable) common law right to sue for treatment, care and support damages, so the Scheme takes nothing away from them. In fact, the Scheme provides something they
[13] Or where the participant’s contributory negligence is less than 50 per cent.
would otherwise not have – that is the provision (by the Agency) of necessary and
reasonable treatment, care and support for their lifetime.[14]
[14] This submission was made in response to the plaintiff’s submission that (as I understood it) –
If the plaintiff were to succeed in his interpretation of the legislation, then he could receive a large lump sum from QBE (the plaintiff claims $1.7 million in past and future gratuitous care) and then, having obtained that lump sum, seek ongoing funding from the Agency for treatment, care and support (because he remained a participant in the Scheme). It was not an answer that the Agency could take into account that the plaintiff had been awarded damages in deciding whether to fund certain treatment,
care or support – the NIISQA required the Agency to determine what was necessary
and reasonable.
[82] The plaintiff’s choice, not to accept funded care from the Agency, was not
transformed by the legislation into QBE’s liability to pay for it. It was not intended
that the Scheme would provide for the Agency’s responsibility for the plaintiff’s past
and future treatment, care and support but that, because the plaintiff chose to receive some of that treatment, care and support from his wife gratuitously, the insurer would become liable for the gratuitously provided treatment, care and support.
Legal issue – discussion
I am of the view that the defendant’s interpretation of sections 8 and 9 of the NIISQA
and the relevant provisions of the CLA is correct.
I am of that view because the non-literal interpretation of “excluded” –
allows for a coherent reading of the whole of the NIISQA; is confirmed by section 52B of the CLA and allows for a coherent reading of
Part 2A of Chapter 3 of the CLA in the context of the Scheme; and is consistent with the intention behind the Scheme as revealed in the extrinsic
materials.
I elaborate on each of those dot-points below, commencing at [90].
I am also of that view because the plaintiff’s approach does not align with the
distribution of risk and funding intended by the Scheme and has the potential to
undermine levy arrangements.
Under the Scheme, motorists pay a levy (as part of their CTP insurance premium)[15]
which contributes to the Scheme’s fund[16] which is managed by the Agency and which
is intended, among other things, to fully fund the treatment, care and support of those who are catastrophically injured in car accidents.[17] The amount payable to CTP insurers by motorists has been correspondingly reduced (and, in effect, the amount of the levy has been re-directed to the Agency). Indeed, CTP insurers were required to pay to the Agency any premiums they had collected in relation to the risks covered and funded by the Scheme (see section 96 of the NIISQA).
[15] See section 12(1)(e) of the Motor Accident Insurance Act 1994 (Qld).
[16] The levy is only one of the sources of money for the fund: see section 93(2) NIISQA.
[17] See Chapter 4 of the NIISQA.
For the present plaintiff to succeed in an award of damages for (excluded) treatment, care and support, he must satisfy the court not only that section 52B of the CLA does not prohibit such an award but also that the gratuitous services in respect of which
damages are claimed are “necessary” (in accordance with section 59(1)(a) of the
CLA).
On the plaintiff’s approach, the only limit upon the damages award for gratuitous care is the “necessary” limit imposed by section 59(1)(a) of the CLA. In other words,
assuming a plaintiff (in the position of the present plaintiff) is able to establish that
certain gratuitous services are “necessary” (including because the provision of those
same services by paid third parties would harm a marriage relationship), such a plaintiff could claim up to and including the whole amount of his or her treatment, care and support costs as a lump sum from the insurer. If such a plaintiff were successful, then an insurer would be required to pay in damages a large amount of money from its fund which does not include levies for the treatment, care or support of Scheme participants. In my view, such an outcome could not have been intended.
Coherent reading of the NIISQA
Overview
Reading the NIISQA as a coherent whole is not consistent with the word “excluded”,
in section 9, bearing its literal meaning. Other provisions of the NIISQA make it plain
that the Agency may fund section 9 “excluded treatment, care and support”. However,
the provisions which allow the Agency to fund excluded treatment, care and support effectively require the Agency to deliberate about such a funding decision. The requirement for that deliberation is unsurprising, given that, speaking generally,
“excluded treatment, care and support” does not come at an obvious cost to a
Scheme’s participant.
The choice of the word “excluded” may not have been the most felicitous one. It may
have been taken from cognate, though not identical, interstate legislation.[18] But
regardless of the origins of the word “excluded”, in my view – bearing in mind the relevant principles of statutory interpretation – reading section 9 in the context of the whole of the NIISQA requires the word “excluded” to mean something other than
[18] See for example, the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW); or the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 (SA) or the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA), which was proposed legislation when the NIISQA was passed.
literally excluded from funding for the reasons exposed in the following analysis of the relevant provisions of the NIISQA.[19][19] It is difficult to express my view of the meaning of the phrase “excluded treatment, care and support” in
Sections 8 and 9
“Treatment, care and support” is not defined in the NIISQA, but its meaning may be
gleaned from section 8.[20] Thus, “treatment, care and support” for the purposes of the
NIISQA consists of the items listed in subsections (a) to (j) of section 8.
[20] Either by way of section 32 of the AIA or by a commonsense reading of the section.Section 9 does not list types of treatment, care and support different from those listed in section 8. Rather, it lists certain circumstances in which section 8 treatment, care and support might be provided. Thus, if an item listed in (a) to (j) of section 8 is
provided in the circumstances listed in section 9(1)(a) – (g), then it is “excluded
treatment, care and support”.
The treatment, care and support needs of a person, as defined in section 8, are not
limited to the person’s treatment, care and support needs as a result of the
participant’s injury. A person may have treatment, care and support needs which are
not the result of his or her injury. This is recognised by the Scheme in, for example,
section 25(1)(b).
Section 8 does not state that a person’s treatment care and support needs do not
include, or exclude, treatment, care and support that is provided in the circumstances
set out in section 9 – which might have been expected had that been the intention,
rather than relying on an “interplay” between the sections.
I acknowledge that the use of the word “excluded” in section 9 may leave the
impression – at least at first blush – that, under the Scheme, the Agency is not to fund
treatment, care or support provided in section 9(1) circumstances.[21] I acknowledge too that there is a logical attraction to that impression in that (at least on the face of it) the provision of treatment, care or support in section 9(1) circumstances does not come at a monetary cost, or at an additional monetary cost, to the recipient of the
treatment, care or support. However, the references to “excluded treatment, care and support” in the balance of the NIISQA are only consistent with the phrase carrying a
meaning contrary to its literal meaning.
References to “excluded treatment, care and support” in the balance of the
[21] As elaborated upon by sections 9(2) and 9(3) NIISQA.NIISQA
The phrase “excluded treatment, care and support” appears in the following sections
of the NIISQA: ss 15, 26, 37, and 51 (as well as in section 9).
Also, section 15 incorporates a reference to “excluded treatment, care and support”
into sections 26, 27 and 30.
The references to “excluded treatment, care and support” in these sections are, in my
view, only consistent with the interpretation of that phrase as meaning a particular type, or subset, of the treatment, care and support about which the NIISQA is concerned, and which may be funded by the Agency. Indeed, the conclusion that treatment, care and support, provided in section 9 circumstances, is not literally excluded from the Scheme is, in my view, put beyond doubt by section 37.
A consideration of each of those provisions in the context of the NIISQA as a whole,
together with “approved service/s” (as defined) – which appears in sections 37, 49 and
51 – follows.
Considering the provisions in the context of the NIISQA as a whole requires me to bear in mind that the NIISQA seeks to achieve its purposes by the assessment of the
treatment, care and support needs of its participants and payments for “the treatment, care and support” of participants. In other words, section 3(2)(a)(ii) does not say that the NIISQA’s purposes are to be achieved by the Agency’s “making payments for the treatment, care and support needs” (as defined by section 8) of participants. Indeed, the treatment, care and support which may be funded by the Agency is –
in one sense, more limited than section 8 “treatment, care and support needs” (because of section 26(1)(d), discussed below); and
in another sense, not as limited as section 8 “treatment, care and support needs” (because of section 26(1)(e), discussed below). Sections 25, 26 (read with section 15), and 27 (Support plans)
By section 25 of the NIISQA, the Agency is –
required to assess –
o a Scheme participant’s “treatment care and support needs as a result of the participant’s injury” (section 25(1)(a));[22] and may assess –
o “any other treatment, care or support needed by the participant, including [22] Emphasis added.treatment, care or support that is, or may be provided or funded other than
under the scheme” (section 25(1)(b))[23].
[23] Emphasis added.
Having conducted the section 25 assessment, the Agency is required to make a support
plan, under section 26, which states inter alia –
any treatment, care and support needs the agency considers are necessary and reasonable in the circumstances as a result of the participant’s injury (section
26(1)(d)); and
any other treatment, care or support the agency considers should be funded, in whole or part, under the scheme (section 26(1)(e)), having regard to the matters listed in section 26(1)(e)(i) – (vi).
The whole of section 26 follows –
26 Making support plan
(1) After carrying out the first assessment of a participant under section 25,
the agency must make a plan (a support plan) that states –
(a) the name of the participant; and (b) the outcomes of the assessment under section 25(1); and (c) the matters stated in section 25(2), if known by the agency;[24] and (d)
any treatment, care and support needs the agency considers are necessary and reasonable in the circumstances as a result of the
[24] These section 25(2) matters include the treatment, care and support which the participant considersparticipant’s injury; and
(e) any other treatment, care or support the agency considers should be funded, in whole or part, under the scheme, having regard to the following matters –
(i) whether the treatment, care or support is needed by the participant as a result of the participant’s injury or another
personal injury resulting from the motor accident;
(ii) whether it would be fair and reasonable in the circumstances to fund, in whole or part, the treatment, care or support;
(iii) whether providing the treatment, care or support will, or is
likely to, reduce the participant’s treatment, care and support
needs;
(iv) whether funding all or part of the treatment, care or support is
more practical or cost-effective than funding the participant’s
treatment, care and support needs, without compromising the level of treatment, care or support received by the participant under the scheme;
(v) whether the treatment, care or support is excluded treatment, care and support;
(vi) where the treatment, care or support is to be provided, including, for example, whether the treatment, care or support is to be provided outside Australia; and
(f) any other matter prescribed by regulation.
Section 15 is relevant to section 26(1)(d) –
15 Necessary and reasonable treatment, care and support needs
For this chapter, the agency must consider the following matters in
deciding whether a person’s treatment, care and support needs as a result
of a serious personal injury are necessary and reasonable in the
circumstances –
(a)
whether the treatment, care and support needs are excluded treatment, care and support;
(b) any other matter prescribed by regulation.
The sections work together as follows: Under section 26(1)(d) the Agency is to –
consider whether the participant has a need for, or relating to, any of the matters
listed in section 8(a) to (j) as a result of the participant’s injury; and,
having decided that a participant has a need for, or relating to, any of the matters listed in section 8(a) to (j), as a result of the participant’s injury, then decide whether that need for, or relating to, that section 8 matter is “necessary and reasonable”.
Whilst there is an element of tautology in the notion of a decision as to whether a
“need” is “necessary”, the intention of the requirement, in the context of the whole of
the NIISQA, is, in my view, plain – that is, to limit funding by the Agency for “needs”
to funding for “necessary and reasonable needs”. (I note in this context the comments
in Daly v Thiering about “legislative intervention to ensure that injured persons are
provided meaningful compensation and care which the community is able to
afford”.)[25]
[25] Daly v Thiering (2013) 249 CLR 381 at 392 [33] (emphasis added).
Then, in accordance with section 15, in considering whether a need for, or relating to,
a section 8(a) to (j) matter is “necessary and reasonable”, the Agency must “consider
… whether the treatment, care and support needs are excluded treatment care and
support”.[26]
[26] Emphasis added.
Although “needs” relate to “treatment, care and support”: they “are” not “treatment,
care and support” – excluded or otherwise. But the section is plainly intended to
require the Agency to consider (in the context of deciding whether a treatment, care or support need is necessary and reasonable) whether it is a need for, or relating to,
“excluded treatment, care and support”.
The plaintiff contends that, in directing the Agency to “consider whether” the
treatment, care or support need is excluded treatment, care and support, the legislation intended the Agency to exclude excluded treatment, care and support from the support plan (which guides funding decisions). However, in my view, if the legislation intended that treatment, care and support provided in section 9 circumstances was never to be stated in a support plan, then the NIISQA would simply have said so.
In my view, under section 26(1)(d), the Agency may conclude that a participant’s
necessary and reasonable treatment, care and support needs, as a result of the
participant’s injury, include treatment, care and support provided in section 9
circumstances such as (for example) treatment, care and support which is provided without charge, or on an experimental basis. There is, in my view, no other reasonable
interpretation of the “consider whether” instruction.
That treatment, care or support provided in section 9 circumstances could be stated by
the Agency in the support plan for a participant is consistent with “excluded treatment,
care and support” falling within the Scheme and not consistent with its being, literally,
excluded from it.
Further, in my view, there is nothing odd about the Scheme anticipating that the
Agency might conclude that a participant requires (necessarily and reasonably) –
I note McMeekin J’s approach in McAndrew v AAI Limited was as follows –
[130] The plaintiff claims a global sum of $5,000 for the support provided to the plaintiff during his periods of hospitalization. He
has had five such periods. There is no doubt that the plaintiff’s
parents and partner did provide him with support on those
occasions.[131] [as above]
[132] There is very limited evidence here to support the contention that
the visits were reasonably necessary to alleviate the plaintiff’s
condition.
[133] Further the decision in Wilson v McLeay itself was to allow the amount of expenses incurred by the mother in coming on three occasions and by the father in coming on one occasion to see the injured plaintiff. Taylor J held that if there had been no expenditure there could be no recovery. The need to demonstrate actual expenditure was doubted in Wann v Fire and All Risks Insurance Company Ltd [[1990] 2 Qd R 596 per Ryan J].
[134] Here the lack of evidence going to the reasonable need for the attendance of parents and Ms Hoch and the lack of evidence as to the expenses incurred make me cautious in allowing any significant
sum. Given the seriousness of the plaintiff’s injuries and the
impairments that he subsequently had it does seem likely that the presence of his loved ones would have been of some assistance to him and indeed it is conceded by the defendant that services were provided whilst he was hospitalized in the initial stages.
[135] It seems to me that all I can do is assess a very modest sum and I will allow $1000.
QBE refers to the decision of Mackenzie J in McChesney v Singh & Ors [2002] QSC 311 in which his Honour discussed Wilson v McLeay and subsequent authorities. His Honour observed that an amount less than the precise costs incurred was allowed in Wilson v McLeay but a reduction of the sum when actual costs could be quantified was not universal. However, his Honour observed that the authorities did not suggest that it was correct in principle to quantify Wilson v McLeay damages by reference to
a notional hourly rate. His Honour said, at [34] –
A further factor in the present case is that a separate claim is made for
travel expenses to and from the hospital so that the plaintiff’s parents and
grandmother could be with her. A claim is also made for services
performed during their time at the hospital to attend to the plaintiff’s needs
which would not otherwise have been adequately attended to. Since it is necessary to avoid double compensation for activities compensated for elsewhere, I do not allow a separate Wilson v McLeay component.
QBE submits that it was the expenses that were incurred in the attendance at hospital
which were recoverable – and in the present case were claimed as travel expenses.
QBE also refers to Quintano v B W Rose Pty Ltd & Anor [2009] NSWSC 446, in which family members or a girlfriend were with the plaintiff for almost every hour (if
not every hour) of his eight months of hospitalisation – doing everything they could
do for him, including assisting orderlies to lift him, encouraging him to eat, assisting him with rehabilitation and passing the time with him. Brereton J considered this an insufficient basis for a claim for damages for gratuitous care. His Honour said, at
[121] – In my view, this evidence is insufficient to sustain a claim for damages for gratuitous care in respect of the period while Luke was in hospital.
There is no doubt that his father’s presence during that time was important
and supportive, and reflects more than what many parents might appropriately have done. But that is not to say that it is compensable. Damages in respect of gratuitous services are recoverable only in respect of services of a domestic nature, services relating to nursing or services that aim to alleviate the consequences of an injury, for which there is a reasonable need, that has arisen solely because of the injury [(NSW) Civil Liability Act 2002, s 15(1), (2)]. They are not recovering for simply “being there”, or “being on-call” [Ren v Mukerjee [ACTSC, Miles CJ, 12
December 1996), [85]; Rotumah v NSW Insurance Ministerial Corp (SCNSW, Donovan AJ, 6 April 1998), [103]]. Luke was in a hospital staffed with professional nursing and other staff and fully cared for by
them. …
By reference to Marsland v Andjelic (1993) 31 NSWLR 162, Brereton J drew a
distinction between a family member “being there” and a family member participating
in treatment, such as physical or speech therapy.
QBE conceded that “to the extent that a person visiting an injured person in hospital
may actually provide services which are, despite the hospitalisation of the injured
person “necessary” [referring to section 59(1)(a) of the CLA], then the reasonable
market costs of satisfying the accident created need may be recovered. That is
however more than just “being there” or “being on call” albeit that the presence of the
injury person’s loved ones may be emotionally beneficial”.
The plaintiff’s claim was in terms of Mrs Walters “[p]roviding emotional support and
accompaniment – hospital records note regular visits by the family. As the Plaintiffs’
[sic] sleep was poor, emotional support included Mrs Walters exchanging supportive text messages with her husband overnight (they texted rather than phoned each other
to not disturb the Plaintiffs [sic] roommates on the ward)”. There was also a claim
for assisting the plaintiff to have breaks off the ward (on hospital grounds or in the
community) and bringing him meals because he did not like hospital food.
QBE’s position is that: “if the things done for the Plaintiff properly qualify as care then damages could be recovered for those things, but just being there is not enough”.
The plaintiff submits that his wife and family members were providing “a therapeutic
benefit to [him] which the hospital staff were evidently not providing”. He refers to
his evidence that the hospital did not provide him with any psychological support for the first five months of his hospitalisation and that his family members filled that void.
Having regard to the authorities discussed above, I will allow for the travel expenses
of the hospital visits by the plaintiff’s family, but in the absence of evidence of their
participation in his therapy, I will not allow an hourly rate for their attendance.
Community outings
There is also a claim for “community outings”. The plaintiff submits that outings with
his wife are very different from the way they used to be because his wife is now also
his carer on those outings.
I am satisfied on the evidence that, during their outings, the plaintiff’s wife provides
him with active care and protective attention to an extent which restricts her own
freedom of activity to some degree – but not for the whole of the time they are in the community together. I do not consider the plaintiff’s outings with his funded-carers
a substitute for outings with his wife. I would make an allowance for this active care
and protective attention (see below).Past gratuitous care
I will deal now with the plaintiff’s specific claims.
The plaintiff claims $316,033.20 in past gratuitous care – applying a rate of $44.25
per hour, and setting out his claims in a schedule, differentiating between different
“stages” in the plaintiff’s care post-accident.
QBE created its own schedule in response.
For most of the items, QBE’s position is that the gratuitous care was not “necessary”,
as required by section 59(1)(a), because the Agency would provide it. Also, QBE submits that certain of the matters claimed by the plaintiff are not within the Griffiths v Kerkemeyer principle. And in relation to claims for things like lawn mowing and pool cleaning, QBE reminds me that that which is funded by the Agency might not leave the plaintiff with a perfect garden or perfectly clean pool, but he is entitled to
“reasonable” compensation only.
My decisions in respect of each of the items claimed are as follows. I have stated the allowance which I would make if I am wrong about the legal issue. I have allowed for a gratuitous service which falls within the Griffiths v Kerkemeyer and other common law principles and which is objectively necessary in accordance with section 59(1)(a). As noted, QBE did not suggest that the plaintiff failed to achieve any other
section 59 pre-requisite to an award for gratuitous care –
Stage 1
I understand that the plaintiff does not pursue a claim for Stage 1.
Stage 2
I would not allow an hourly rate for emotional support.
I would not make an allowance for things like checking the plaintiff’s
mail, paying his bills, attending to his banking, attending to administrative tasks related to income protection et cetera, in the absence of authority extending the Griffiths v Kerkemeyer principle.
Assisting the plaintiff to have breaks off the ward and bringing in meals, snacks, clothing et cetera from home is, in my view, an element of the
emotional support provided by the plaintiff’s family. I would not allow
an hourly rate for it (even if the schedule had been drafted in such a way
as to allow me to calculate the hours spent on these tasks).
I note that QBE does not object to an allowance for the laundering of the
plaintiff’s clothes whilst he was in hospital, but observes that the evidence
does not state how long it took. Nevertheless, I would allow an hour per
week for hospital laundry.I would make an allowance for some of time the plaintiff was at home with his family over Christmas 2016, on the reasonable assumption that for some of the time they provided him with care. I would not be prepared to make an allowance for the presence of family members for the whole of the time (in accordance with Van Gervan v Fenton). I would allow 14
hours for the 56.5 hour period – noting that this was the plaintiff’s first
overnight stay at home after his accident.
Similarly, I would allow for 90 minutes (of active care) for every six-hour long day pass visit home.
I would make no allowance for “yard care” in the plaintiff’s circumstances
because it does not fall within the principle of Griffiths v Kerkemeyer.
Stage 3
I am not satisfied that Mrs Walters assisting the support worker was necessary, and I would therefore make no allowance for it.
I would allow for the time spent assisting the plaintiff to change his clothes and shower after an episode of incontinence (in the absence of the Agency funded support worker) during the day. I consider such assistance necessary.
I do not consider that the following services either necessarily had to be provided gratuitously (they were the responsibility of the Agency) or fell within the relevant common law principles, and I would make no allowance for them. I have borne in mind that it is not to be expected that
the services provided by the Agency meet perfectly the plaintiff’s pre-
accident standards –
assistance with wound care; setting up the bedside table; evening assistance; unpacking bulk bowel and bladder management
consumables;
travel to medical/allied health appointments; being there/general monitoring; liaising with the Agency on the plaintiff’s behalf; obtaining documents relating to the plaintiff’s income
protection and liaising with the income protection insurer;
vacuuming;
steam mopping; grocery shopping; preparing evening meals; washing dishes; preparing breakfast and lunch; ironing;
bill paying; making beds/changing bedlinen; pharmacy shopping; lawn mowing; edging;
exterior cleaning; gardening;
gutter cleaning; blower vac cleaning; working bees; pool care; household maintenance; and emptying the household bins into the wheelie bin and putting
the wheelie bins out.
I consider it “necessary” for the plaintiff to have received certain
gratuitous services in the absence of the support worker (or for services
which do not obviously fall within the Agency’s responsibility). I would
make allowances in respect of the following, for the amounts claimed in
the schedule (unless otherwise indicated) –
transfer onto standing frame (On the evidence about the gains to the plaintiff from standing, I consider it necessary for the plaintiff to stand as much as he is comfortable with
for its mental health benefits – including at times at which the Agency did not stand ready to supply support workers
(that is, at times other than morning and evening shifts); supervision of mobility/transfers; fetching and carrying; active assistance by Mrs Walters during their outings –
limited to ¼ of the time spent on their outings;
active care in response to episodes of overnight
incontinence;
additional laundry as a consequence of episodes of
incontinence.
Stage 4
I consider it “necessary” for the plaintiff to have received certain
gratuitous services in the absence of the support worker. I would make allowances in respect of the following, for the amounts claimed in the
schedule (unless otherwise indicated) –
active care in response to episodes of daytime bladder or bowel incontinence including assisting the plaintiff to shower and change;
transfer onto standing frame; supervision of mobility/transfers; fetching and carrying; active assistance by Mrs Walters during their outings –
limited to ¼ of the time spent on their outings;
active care in response to episodes of overnight bladder and
bowel incontinence; and additional laundry as a consequence of episodes of
incontinence.
I consider all other claims under Stage 4 to concern services which are either the responsibility of the Agency, and in that sense, not necessary or not necessary in the sense that they are not essential.
Stage 5
I consider it “necessary” for the plaintiff to have received certain
gratuitous services in the absence of the support worker. I would make allowances in respect of the following, for the amounts claimed in the
schedule (unless otherwise indicated) –
active care in response to episodes of daytime bladder or bowel incontinence including assisting the plaintiff to shower and change;
episodic assistance with wound care; supervision of mobility/transfers; fetching and carrying; active assistance by Mrs Walters during their outings –
limited to ¼ of the time spent on their outings;
active care in response to episodes of overnight bladder and
bowel incontinence; additional laundry as a consequence of episodes of
incontinence;
assistance with community use of the plaintiff’s hand cycle (I consider it necessary for the plaintiff, who was previously very active, to maintain his activity levels to the maximum extent possible for long term mental and physical health benefits. I note that from mid-2019, this service was funded by the Agency); assistance with transfer onto standing frame.
I consider all other claims under Stage 5 to concern services which are either the responsibility of the Agency, and in that sense, not necessary; or not necessary in the sense that they are not essential; or not to be supported by the evidence.
Stage 6
I consider it “necessary” for the plaintiff to have received certain
gratuitous services in the absence of the support worker. I would make allowances in respect of the following, for the amounts claimed in the
schedule (unless otherwise indicated) –
active care in response to episodes of daytime bladder or bowel incontinence including assisting the plaintiff to shower and change;
supervision of mobility/transfers; fetching and carrying; active assistance by Mrs Walters during their outings –
limited to ¼ of the time spent on their outings;
active care in response to episodes of overnight bladder and
bowel incontinence; additional laundry as a consequence of episodes of
incontinence;
assistance with community use of the plaintiff’s hand cycle; assistance with transfer onto standing frame.
I consider all other claims under Stage 6 to concern services which are either the responsibility of the Agency, and in that sense, not necessary or not necessary in the sense that they are not essential.
Stage 7
I consider it “necessary” for the plaintiff to have received certain
gratuitous services in the absence of the support worker. I would make allowances in respect of the following, for the amounts claimed in the
schedule (unless otherwise indicated) –
active care in response to episodes of daytime bladder or bowel incontinence including assisting the plaintiff to shower and change;
supervision of mobility/transfers;
fetching and carrying – limited to 0.3 hours per week as before – that is, making no allowance for his inability to
clean up after the grandchildren; active assistance by Mrs Walters during their outings –
limited to ¼ of the whole of the time spent on outings during
this period;
active care in response to episodes of overnight bladder and
bowel incontinence; additional laundry as a consequence of episodes of
incontinence;
assistance with transfer onto standing frame; assistance with community use of the plaintiff’s hand cycle – until the point at which it was funded by the Agency.
I consider all other claims under Stage 6 to concern services which are either the responsibility of the Agency, and in that sense, not necessary; or not necessary in the sense that they are not essential; or not covered by the Griffiths v Kerkemeyer principle.
Future gratuitous care
The plaintiff claims $1,715,561.58 in future gratuitous care.
With respect to future care, QBE makes the same point it made with respect to past
care – much of that which is claimed would be funded by the Agency (in accordance with the Scheme). Other claims were for matters which were not “necessary”. Also,
QBE submits that there needs to be a significant discount made for the fact that the
plaintiff might move to a house without the “architectural barriers” of his present
house.
On the basis that the services are necessary (that is, essential and not funded by the Agency), and within relevant common law principles, if I am wrong about the legal
issue, I would allow for the following –
active care in response to episodes of daytime bladder or bowel incontinence (in the absence of a support worker) including assisting the plaintiff to shower and change;
assistance with transfer onto standing frame; assistance with transfers (in the absence of a support worker: it is in my view
necessary that the plaintiff be assisted to transfer when he wishes to transfer); fetching and carrying – limited to 0.3 hours per week as before – that is, making no allowance for his inability to clean up after the grandchildren;
active assistance by Mrs Walters during their outings – limited to ¼ of the whole of the time spent on outings during this period; active care in response to episodes of overnight bladder and bowel incontinence; additional laundry as a consequence of episodes of incontinence; emptying the household bins and putting out and retrieving the wheelie bins (because of the plaintiff’s driveway) – at half of the amount claimed, recognising that the plaintiff worked remotely, week on/week off.
The plaintiff’s claim for $128,116.15 for a 24 hour carer for two weeks per year while
the plaintiff holidays in a remote location or overseas fails for want of evidence about
the plaintiff’s intention to take holidays of that kind. And also, the decision about
funding a carer whilst the plaintiff holidays is a matter for the Agency.
insurance scheme under the [Motor Accident Insurance Act 1994]”.
awarded treatment, care and support damages under a final judgment of a court or a binding settlement.”
[69].
for contributory negligence in clause/section 42.
notwithstanding that the purpose of the Scheme is to ensure that participants in it receive necessary and
reasonable treatment, care and support, regardless of fault – on the defendant’s construction, fault would
determine what the Agency would fund (at least when it came to the provision of gratuitous services). See
paragraphs [67] – [69] of the plaintiff’s written submissions.
words which include “excluded”. My best attempt is something like “excluded from a presumption in
favour of funding” but that does not quite capture (and indeed overstates) what the legislation requires.
necessary and reasonable as a result of their injury; their abilities and limitations; and their goals.
of that interpretation of it.
law rights from sections like s 41(5) and s 43 which contemplate that the option might be attractive to
plaintiffs who are not well placed to manage a lump sum over their lifetime.
expense.
101 of the plaintiff’s occupational therapist’s report (see Exhibit PLA008), reference is made to a
“wheelchair accessible lift” and a “portable ramp” only.
| was likely to be motivated to drive for as long as possible and that it was probable that he may need two vehicles over the course of his life. |
one.
Authority [1969] 1 Lloyd’s Rep. 95 at 102, per Megaw LJ.
0