Walters v Roche

[2020] QSC 319

SUPREME COURT OF QUEENSLAND

CITATION: 

Walters v Roche & Anor [2020] QSC 319

PARTIES: 

GRAHAM LEONARD WALTERS

(plaintiff)

v
KATHERINE GRACE ROCHE

(first defendant)
and

QBE 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…