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Queensland Judgments
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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 COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 October 2020 

DELIVERED AT:

Brisbane

HEARING DATES:

14, 15 and 16 July 2020 

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 96

National 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, considered

McChesney v Singh & Ors [2002] QSC 311, considered National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, considered

Project 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, applied 

COUNSEL:

G Diehm QC with M Forbes for the plaintiff 

L F Kelly QC with R Morton for the first and second defendants

SOLICITORS:

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 arguments21

The defendant insurer’s argument 22

Context22

Submissions23

Legal issue – discussion 26

Coherent reading of the NIISQA 27

Overview2727

Sections 8 and 927

References to “excluded treatment, care and support” in the balance of the NIISQA2828

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 5138

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 principles48

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 CLA60

Wilson v McLeay damages62

Community outings 66

Past gratuitous care 66

Future gratuitous care 71

Overview

  1. [1]
    The plaintiff, Graham Walters, claims damages for personal injury from the first defendant, Kathleen Roche, and her insurer.  
  2. [2]
    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.  
  3. [3]
    “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.  
  4. [4]
    The plaintiff suffered serious injuries, including spinal injury at the level of T10, and psychological injuries.  He is now wheelchair bound.
  5. [5]
    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, 800kilometre 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.  
  6. [6]
    The plaintiff’s life has been profoundly changed by the accident and he struggles daily with feelings of despair, frustration and loss.   
  7. [7]
    His family have been of enormous comfort and support to him.  His wife, who is a nurse, attends to many of his care needs.  
  8. [8]
    The plaintiff is a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (the “Scheme”).  
  9. [9]
    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.  
  10. [10]
    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.
  11. [11]
    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.   
  12. [12]
    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”).
  13. [13]
    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. 
  14. [14]
    My reasons for that conclusion, and for my various conclusions about the other quantum matters in dispute, follow.  
  15. [15]
    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. 
  16. [16]
    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

  1. [17]
    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

  1. [18]
    The National Injury Insurance Scheme is a scheme which runs in parallel with the National Disability Insurance Scheme.  
  2. [19]
    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.
  3. [20]
    Each State or Territory in Australia has implemented its own National Injury Insurance Scheme.    
  4. [21]
    Queensland’s Scheme was established by the NIISQA.  
  5. [22]
    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).  
  6. [23]
    Section 3(2) of the NIISQA explains how its purpose is to be achieved – 
  1. The purpose is achieved by establishing –
  1. (a)
    a national injury insurance scheme, Queensland for –  
    1. assessing the treatment, care and support needed by participants in the scheme; and 
    2. making payments for the treatment, care and support of participants; and 
  2. (b)
    a National Injury Insurance Agency, Queensland to administer the scheme; and 
  3. (c)
    a national injury insurance scheme fund, Queensland.  
  1. [24]
    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.  
  2. [25]
    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.  

  1. [26]
    The “agency” is the National Injury Insurance Agency, Queensland (the “Agency”), established by section 55 of the NIISQA.  
  2. [27]
    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”.
  3. [28]
    “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 – 

  1. (a)
    medical or pharmaceutical treatment;
  2. (b)
    dental treatment;
  3. (c)
    rehabilitation; 
  4. (d)
    ambulance transportation;
  5. (e)
    respite care;
  6. (f)
    attendant care and support services;
  7. (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

  1. (h)
    prosthesis;
  2. (i)
    education or vocational training; 
  3. (j)
    home or transport modification.

9  Meaning of excluded treatment, care and support

  1. (1)
    Excluded treatment, care and support is treatment, care and support that – 
    1. is provided without charge; or
    2. if the participant is a child – ordinarily falls within the ordinary costs of raising a child; or
    3. 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
  1. (d)
    is provided as part of a medical trial or on another experimental basis; or
  2. (e)
    is provided as part of a public sector health service, as defined in the Hospital and Health Boards Act 2011, schedule 2; or
  3. (f)
    is provided by State emergency services, including the Queensland Ambulance Service or the Queensland Fire and Emergency Service; or
  4. (g)
    is prescribed by regulation
  1. (2)
    For subsection (1)(c), the following treatment, care and support must be provided by a registered provider – 
    1. attendant care and support services that are personal assistance services or services to assist a person to participate in the community;
  1. (b)
    any other treatment, care or support prescribed by regulation.
  1. (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.
  1. [29]
    “[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”.
  2. [30]
    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).
  3. [31]
    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).  
  4. [32]
    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.  
  5. [33]
    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.
  1. [34]
    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. (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. (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. (3)
    The participant must give a notice under subsection (1) –   
    1. 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
    2. 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.
  1. (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 – 
  1. (a)
    the insurer and the agency agree to the notice being given; and
  2. (b)
    for a claim that is the subject of a proceeding before a court – the court orders that the notice may be given.
  1. (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).
  2. (6)
    Subsections (7) and (8) apply if the court considers the participant is a person under a legal disability.
  3. (7)
    The court – 
    1. must decide whether or not to sanction the notice; and
    2. may order that the participant, or a person acting for the participant, give a new notice under subsection (1); and
    3. may make any other order the court considers appropriate.
  1. (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.
  1. (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.
  2. (10)
    This section is subject to section 43.[2]
  1. (11)In this section –

court means – 

  1. (a)
    if a proceeding in relation to the claim has been brought in the District Court or the Supreme Court – the court hearing the proceeding; or
  1. (b)
    otherwise – the District Court or the Supreme Court.
  1. [35]
    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. 1For 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. 2For 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.
  1. However, the agency stops being liable to contribute if – 
  1. a court decides, or the parties to the claim agree by way of settlement, that –
  1. (i)
    the participant is guilty of contributory negligence in relation to the claim; and
  2. (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
  1. (b)
    a court decides, under section 41(7), not to sanction the preservation notice; or
  2. (c)
    a court makes an order, under section 43, preventing the participant from being awarded treatment, care and support damages; or
  3. (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.
  1. In this section –

party, to the claim, includes the agency.

  1. [36]
    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 – 
  1. (a)
    the participant is awarded treatment, care and support damages under a final judgment of a court or a binding settlement; and
  2. (b)
    the agency is liable, under section 42, to contribute towards the insurer’s liability on the claim for treatment, care and support damages.
  1. (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.
  2. (3)
    If the participant states in the notice given under subsection (2) that the participant accepts the awarded treatment, care and support damages – 
  1. (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
  2. (b)
    the participant stops being a participant in the scheme when the participant receives the payment under paragraph (a); and
  1. (c)
    despite the final judgment of the court or the terms of the binding settlement – 
    1. the insurer is not liable to pay to the participant the amount of the awarded treatment, care and support damages; and
  1. (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.
  1. (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.
  2. (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.
  3. (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.
  4. (7)
    This section applies despite the Civil Proceedings Act 2011, part 13. 
  5. (8)
    In this section –

acceptance period means –

  1. 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
  2. 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
  3. 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

  1. [37]
    The NIISQA amended the CLA by inserting into it part 2A of Chapter 3 containing sections 52A, 52B and 52C.  
  2. [38]
    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. (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. (2)
    A court can not award damages in relation to the person’s treatment, care and support needs that –
  1. (a)
    result from the personal injury; and
  2. (b)
    arise, or arose, while the person is, or was, a participant in the insurance scheme.
  1. (3)
    This section applies – 
  1. (a)
    whether or not the personal injury is a serious personal injury; and
  2. (b)whether or not the treatment, care and support needs are an approved service for the person under the National Injury Act; and
  3. (c)whether or not the insurance agency must, under that Act, make a payment in relation to the treatment, care and support needs; and
  4. (d)whether or not the treatment, care and support is provided without charge.
  1. (4)Also, this section applies subject to section 52C.
  2. (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. (1) This section applies to a claim for personal injury damages against an insurer under the Motor Accident Insurance Act 1994 if – 
  1. (a)
    the personal injury resulted from a motor accident; and
  1. (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
  1. (c)
    a court decides – 
  1. (i)the person is not guilty of contributory negligence in relation to the claim; or
  2. (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
  1. (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.
  1. (2)
    The court may award treatment, care and support damages.
  1. (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.
  1. (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

  1. [39]
    The resolution of the legal issue depends upon my interpretation of the relevant provisions of the NIISQA and the CLA.
  2. [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]
    • 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]
    • “[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]
  3. [41]
    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.  
  4. [42]
    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

  1. [43]
    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. 
  2. [44]
    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. 
  3. [45]
    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.  

  1. [46]
    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.  

  1. [47]
    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].

  1. [48]
    The explanatory notes to specific clauses in the bill include the following –[12] 

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 noneconomic loss and economic loss).

[49]  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 in relation 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

  1. [50]
    The plaintiff was accepted as an interim participant in the Scheme on 13 October 2016.  
  2. [51]
    On 20 August 2018, he was accepted as a lifetime participant in the Scheme.
  3. [52]
    He gave a preservation notice to the Agency, under section 41 of the NIISQA, on 23 August 2018.  
  4. [53]
    He withdrew that notice on 25 September 2018.  
  5. [54]
    The plaintiff filed his claim and statement of claim against the defendants on 8 March 2019.
  6. [55]
    The plaintiff’s reasons for withdrawing the preservation notice have not been explained.
  7. [56]
    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.  
  8. [57]
    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.
  9. [58]
    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

  1. [59]
    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.  
  2. [60]
    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 privacyand increasedopportunityfor intimacy, and for the goodof 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 predictableand, in the absence of a paid 24-hour carer, responsibility for his unpredictable needs falls(mostly) to his wife.
  1. [61]
    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.  
  2. [62]
    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).
  3. [63]
    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

  1. (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;
  2. (b)
    Section 9 defines “excluded treatment, care and support” to include treatment, care and support “that is provided without charge”;
  3. (c)
    “Excluded” is to be given its literal meaning;
  4. (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”;
  1. (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).
  2. (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

  1. (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;
  2. (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”;
  3. (i)
    Therefore, section 52B does not operate to restrict or bar the plaintiff’s entitlement to recover damages for the matters in [62] above;
  4. (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”.
  1. [64]
    The plaintiff also made the following submissions in response to QBE’s arguments.

Submissions in response to the insurer’s arguments

  1. [65]
    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.
  2. [66]
    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.
  3. [67]
    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

  1. [68]
    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)].

  1. [69]
    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 fivemember 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.

  1. [70]
    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

  1. [71]
    QBE submits that the plaintiff’s claim for damages for gratuitous care is contrary to the statutory scheme.
  2. [72]
    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.
  3. [73]
    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.
  4. [74]
    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”.
  5. [75]
    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.
  6. [76]
    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).
  7. [77]
    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 –
    1. (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
    2. (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.
  8. [78]
    Further, QBE submits that –
    1. (a)
      it cannot be said that section 52B does not prohibit the court awarding damages for excluded treatment, care and support, because –
    1. 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”;
    2. 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
    3. 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;
    1. (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;
    2. (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 …

  1. (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
  2. (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.
  1. [79]
    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).
  2. [80]
    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 would otherwise not have – that is the provision (by the Agency) of necessary and reasonable treatment, care and support for their lifetime.[14]
  3. [81]
    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.
  1. [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

  1. [83]
    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.
  2. [84]
    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.
  3. [85]
    I elaborate on each of those dot-points below, commencing at [90].
  4. [86]
    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.
  5. [87]
    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).
  6. [88]
    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).
  7. [89]
    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

  1. [90]
    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.
  2. [91]
    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 literally excluded from funding for the reasons exposed in the following analysis of the relevant provisions of the NIISQA.[19]

Sections 8 and 9

  1. [92]
    “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.
  2. [93]
    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”.
  3. [94]
    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).
  4. [95]
    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.
  5. [96]
    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 NIISQA

  1. [97]
    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).
  2. [98]
    Also, section 15 incorporates a reference to “excluded treatment, care and support” into sections 26, 27 and 30.
  3. [99]
    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.
  4. [100]
    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.
  5. [101]
    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)

  1. [102]
    By section 25 of the NIISQA, the Agency is –
    • required to assess –
      • 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 –
      • any other treatment, care or support needed by the participant, including treatment, care or support that is, or may be provided or funded other than under the scheme” (section 25(1)(b))[23].
  2. [103]
    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).
  3. [104]
    The whole of section 26 follows –

26 Making support plan

  1. (1)After carrying out the first assessment of a participant under section 25, the agency must make a plan (a support plan) that states –
  1. (a)
    the name of the participant; and
  2. (b)
    the outcomes of the assessment under section 25(1); and
  3. (c)
    the matters stated in section 25(2), if known by the agency;[24] and
  4. (d)
    any treatment, care and support needs the agency considers are necessary and reasonable in the circumstances as a result of the participant’s injury; and
  5. (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 –
    1. 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;
    2. whether it would be fair and reasonable in the circumstances to fund, in whole or part, the treatment, care or support;
    3. whether providing the treatment, care or support will, or is likely to, reduce the participant’s treatment, care and support needs;
    4. 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;
    5. whether the treatment, care or support is excluded treatment, care and support;
    6. 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.

  1. [105]
    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 –

  1. (a)
    whether the treatment, care and support needs are excluded treatment, care and support;
  2. (b)
    any other matter prescribed by regulation.
  1. [106]
    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”.
  2. [107]
    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]
  1. [108]
    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]
  2. [109]
    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”.
  3. [110]
    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.
  4. [111]
    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.
  5. [112]
    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.
  6. [113]
    Further, in my view, there is nothing odd about the Scheme anticipating that the Agency might conclude that a participant requires (necessarily and reasonably) –
    • as a result of their injury; and
    • in the circumstances,

“excluded treatment, care and support” – given the breadth of the expression “in the circumstances” in section 26(1)(d). In my view, that expression allows for consideration of the particular circumstances which pertain to a particular Scheme participant. By way of example, relevant “circumstances” for a participant could include the remote location of their home; the particular language or dialect they speak; or a particular vulnerability which means that the presence of persons other than family causes distress. These are not uncommon circumstances. Consistently with its purpose, it is not unreasonable for the Scheme, and the NIISQA, to anticipate that care provided gratuitously (as per section 9(1)(a)) or by a non-registered provider (as per sections 9(1)(c) and 9(2)) might be the only viable option for the provision of care to a participant in those circumstances (or indeed, in a variety of other circumstances). This further supports the non-literal interpretation of “excluded treatment, care and support”.

  1. [114]
    When one also considers section 37(6)(a) (discussed below), it becomes clear that the Agency may conclude that excluded treatment, care or support is a treatment, care and support need that is necessary and reasonable in the circumstances as a result of the participant’s injury – confirming the non-literal interpretation of the word “excluded” in section 9.
  2. [115]
    Also, in my view, and confirmed by section 37(6)(a)(ii), section 26(1)(e) contemplates a support plan including section 9 “excluded” treatment, care or support.
  3. [116]
    As to the meaning of the expression “any other treatment, care or support” in section 26(1)(e), I have considered inter alia section 30 (which is set out below).
  4. [117]
    Section 30 falls within Division 2 of Part 3 (Assessing needs) of the NIISQA. Part 3 consists only of two divisions – Division 1 (Preparing support plans) and Division 2 (Service requests). Symmetry between the two “Assessing needs” divisions would not be unexpected.
  1. [118]
    One may note the symmetry between sections 30(a) and (b), and section 26(1)(d).
  2. [119]
    Achieving symmetry between section 30(c) and section 26(1)(e), and interpreting the provision purposively, means that “any other” treatment, care or support, which the Agency might consider should be funded, in whole or in part, and stated in a support plan, refers to treatment, care or support which is –
    • required for reasons other than as a result of the injury which rendered the participant eligible for the Scheme; or
    • not necessary and reasonable in the circumstances.[27]
  3. [120]
    Subsections (i) – (vi) of section 26(1)(e) require the Agency to have regard to different categories of matters, in deciding whether “other” treatment, care or support, should be funded, namely –
    • the reason why the treatment, care or support is needed (see subsection (i));
    • the fairness and reasonableness of funding the “other” treatment, care or support (see subsection (ii));
    • the benefit to the participant and to the Scheme (from a cost perspective) of funding the “other” treatment, care or support (see subsections (iii) and (iv)); and
    • the nature of the circumstances in which the treatment, care or support is or is to be provided (see subsections (v) and (vi)).
  4. [121]
    It would be odd for the legislation to include the section 26(1)(e)(v) “matter” among the other matters if the legislation intended that excluded treatment, care or support should not, indeed could not, be stated in a support plan. If the legislation intended, via section 26(1)(e)(v), to literally exclude “excluded treatment, care and support” from a support plan, it could have simply said so.
  5. [122]
    In my view, consistently with its purposes, via section 26(1)(e), the NIISQA allows the Agency the latitude to state excluded treatment, care or support in a support plan, such as gratuitously provided attendant care, even if it is –
    • required for reasons other than as a result of the injury which rendered the participant eligible for the scheme; or
    • not necessary and reasonable in the circumstances.
  6. [123]
    An analysis of section 27 points to the same conclusion – that is, an amended support plan might include excluded care, treatment or support under section 27(2)(a) or section 27(2)(b).
  7. [124]
    In the context of the NIISQA as a whole, a support plan is relevant to the funding to be provided by the Agency. Thus, sections 25, 26 and 27 reflect an intention that the Agency is to be responsible for funding decisions for treatment, care and support, including that which falls within section 9. Reading those sections coherently with section 9 requires a non-literal interpretation of the word “excluded”.

Section 30 (read with section 15) (Service requests)

  1. [125]
    The next section to consider is section 30. As noted, it falls within the “Assessing needs” part of the NIISQA, which consists of the “Preparing support plans” division (sections 25 – 27) and the “Service requests” division (sections 28 – 32).
  2. [126]
    Under section 28, a person may ask the Agency to fund particular treatment, care or support, to be provided to a participant in a particular period. This request is known as a “service request”. It may be made before or after a support plan is made. The service request is assessed under section 30, which states –

30 Assessing service request

In assessing a service request, the agency must consider the following matters –

  1. (a)
    whether or not the requested service relates to the participant’s treatment, care and support needs as a result of the participant’s injury;
  2. (b)
    if the requested service relates to the participant’s treatment, care and support needs as a result of the participant’s injury – whether or not the needs are necessary and reasonable in the circumstances;
  3. (c)
    if the requested service does not relate to the participant’s treatment, care and support needs as a result of the participant’s injury, or it relates to treatment, care and support needs that are not necessary and reasonable in the circumstances – whether or not the agency considers the requested service should be funded, in whole or part, under the scheme, having regard to the matters stated in section 26(1)(e).
  1. [127]
    After assessing the service request, the Agency “must” decide to approve it or refuse it and, either way, must reflect the decision in any support plan if one is in existence when the decision is made (section 31).
  2. [128]
    The requirement that the Agency “must consider” whether or not the treatment, care or support needs are necessary and reasonable in the circumstances (section 30(b)) brings in section 15 and the Agency must consider whether the needs are “excluded treatment, care and support” in the case of treatment, care or support which relates to the participant’s injury.
  3. [129]
    Similarly, the Agency “must consider” whether the treatment, care or support is excluded treatment, care or support in the circumstances set out in section 30(c), because of its reference to section 26(1)(e), which includes section 26(1)(e)(v).
  4. [130]
    Thus, taking the same approach to the interpretation of this section as I took to the interpretation of the sections contained in Division 1 of Part 3, the Agency may approve a service request which relates to excluded treatment, care or support which is the subject of the service request – consistently with the Agency’s responsibility for ultimately funding such a service, and a non-literal reading of “excluded” in section 9.

Section 37 (Payment requests)

  1. [131]
    Payments are dealt with in Part 4 of Chapter 2. As noted above, payments in relation to treatment, care and support may be made in one of three ways: under funding agreements; in response to a payment request; or by way of contribution towards an insurer’s liability for treatment, care and support damages on a claim in particular circumstances.
  2. [132]
    Section 37 concerns decisions in response to payment requests.
  3. [133]
    Under section 35 of the NIISQA, a person who incurs an expense for the treatment, care or support of a participant may, by notice, ask the Agency to pay all or part of the expense incurred (if the person has not entered into a funding agreement for the treatment, care or support). The request is known as a “payment request” and, under section 37(1), the Agency must decide whether to approve it or refuse it.
  4. [134]
    Section 37 continues –

(2) The agency must approve the payment request if –

  1. (a)
    the expense is incurred in the period the participant is a participant in the scheme; and
  2. (b)
    the treatment, care or support that the request relates to is an approved service for the participant.
  1. (3)
    To remove any doubt, it is declared that the agency may approve the payment request even though the treatment, care or support is not an approved service.

  1. [135]
    “Approved service” is defined in Schedule 1 of the NIISQA, but it is further defined, or more accurately, qualified, by section 37(6) solely for the purposes of section 37.
  2. [136]
    The definition of “approved service” in Schedule 1 is as follows –

approved service, for a participant, means –

  1. (a)
    if a support plan has not been made for the participant – treatment, care or support approved under a service request approval relating to the participant; or
  2. (b)
    if a support plan has been made for the participant –
    1. a treatment, care and support need stated in the support plan to be a need the agency considers is necessary and reasonable in the circumstances as a result of the participant’s injury; and
    2. other treatment, care or support stated in the support plan to be treatment, care or support the agency considers should be funded, in whole or part, under the scheme.
  1. [137]
    The definition of “approved service” for the purpose of section 37 is as follows –
  1. (6)
    In this section –

approved service does not include excluded treatment, care and support, unless –

  1. (a) if a support plan has been made for the participant – the excluded treatment, care and support is specifically stated in the support plan to be –
  1. (i)
    a treatment, care and support need that the agency considers is necessary and reasonable in the circumstances as a result of the participant’s injury; or
  1. (ii)
    treatment, care or support the agency considers should be funded, in whole or part, under the scheme; or
  1. (b)if a support plan has not been made for the participant – the excluded treatment, care and support is specifically approved under a service request approval relating to the participant.
  1. [138]
    QBE submits that section 37(6) clearly contemplates the existence of a support plan which states “excluded treatment, care and support” or the approval of a service request for “excluded treatment, care and support” and it is therefore plain that excluded treatment, care and support is not literally excluded from the “treatment, care or support” which may be funded by the Agency.
  2. [139]
    The plaintiff submits that section 37(6) is confined in its operation to section 37 and contains no implication that excluded treatment, care and support may be included in a support plan or the subject of an approved service request. Rather, the plaintiff submits, sections 37(6)(a) and (b) convey that if the treatment, care or support the subject of the payment request “corresponds to” treatment, care and support in a support plan or approved service request, then it can be taken to be an approved service.
  3. [140]
    I do not agree with the plaintiff’s construction of the subsection. Whilst section 37(6) is confined in its operation to section 37, it does imply that a support plan or service approval request may include “excluded treatment, care and support” – thus confirming that excluded treatment, care and support is not literally excluded from matters which may be funded by (and are, in that sense, the responsibility of ) the Agency. The critical word in sections 37(6)(a) and (b) is the word “specifically”.
  4. [141]
    In my view, the correct interpretation of section 37 is as follows: In the absence of section 37(6), if a support plan states, or a service request approval relates to, excluded treatment, care or support, then, because of section 37(2), the Agency would have no choice about approving a payment request in relation to it.
  5. [142]
    However, section 37(6) has the effect of ensuring that the Agency is not automatically obliged to approve a payment request for excluded treatment, care and support which is not specifically included in the support plan or the subject of a service request approval – but it may.
  6. [143]
    That it may approve such a payment request is confirmed by section 37(3).
  7. [144]
    It seems to me that section 37(6), read with section 37(2), has the effect of requiring the Agency to take care before approving a request for payment for excluded treatment, care and support which has not been “specifically” stated in a support plan or “specifically” the subject of a service approval.
  8. [145]
    It also has the effect of reinforcing that the Agency will “automatically” approve payment requests for expenses which relate to excluded treatment, care and support that are specifically stated in a support plan or the specific subject of a service request approval.
  9. [146]
    The need for care around, or limits upon, the approval of payment requests generally is also reflected in section 37(5), which states –

However, the agency is not liable to pay a part of the requested amount that exceeds –

  1. (a)
    if the requested amount relates to treatment, care or support provided within Australia – an amount prescribed by regulation for the treatment, care or support; or
  2. (b)
    if the requested amount relates to treatment, care or support provided outside Australia – the average cost of providing the treatment, care or support in Queensland.
  1. [147]
    When one –
  • considers the nature of section 9 excluded treatment, care and support (that is, that it does not obviously come at a cost or an additional cost to a participant); and
  • bears in mind that the Agency is administering public funds,

there is, in my view, nothing surprising about the legislation requiring the Agency to take care around “excluded treatment, care and support” which might include (for example) treatment, care or support which has been rendered gratuitously or would otherwise fall within the costs of raising a child –

  • first, in deciding whether to classify it as an approved service (as per section 30), and then;
  • even if classified as an approved service, before approving payment of an expense in respect of it, if the particular excluded treatment, care or support had not been specifically contemplated during a needs assessment or was not the subject of a specific service request (as per section 37(6)).
  1. [148]
    The plaintiff’s suggestion that, in effect, section 37(6) provides the only means by which excluded treatment, care and support may be funded by the Scheme (that is, when it “corresponds to” treatment, care and support in a support plan or service request approval) overlooks the fact that section 37(6) anticipates support plans which specifically state that excluded treatment, care and support is (that is, “state” it “to be”) a necessary and reasonable treatment, care and support need or something which should be funded.
  2. [149]
    Further, the relevant explanatory notes to section 37 explain that payment requests relate to matters outside a funding agreement and also state (my emphasis) –

If a payment request relates to excluded treatment, care and support, the agency is also not required to pay the requested amount, unless the excluded treatment, care and support is specifically stated to be an approved service in either a support plan or a service request approval.

  1. [150]
    To summarise: in my view, section 37 makes it clear that “excluded” in section 9 is not to be read literally and that “excluded treatment, care and support” is a subset of the treatment, care and support listed in section 8.

Sections 49 and 51

  1. [151]
    For completeness, I note that the phrase “approved service” also appears in sections 49 and 51 of the NIISQA. And the phrase “excluded treatment, care and support” appears in section 51. However, neither section 49 nor section 51 detracts from the non-literal interpretation of section 9 in my view.
  2. [152]
    Section 49 falls within Part 6 of Chapter 2 of the NIISQA, which concerns a participant who is absent from Australia. It states –

49 Application of part

This part applies to a participant in the scheme if –

  1. (a)
    the participant leaves Australia; and
  2. (b)
    while the participant is absent from Australia, expenses are, or are likely to be, incurred by or for the participant for the participant’s treatment, care or support; and
  3. (c)
    the agency did not, in deciding the approved services for the participant, consider the need for treatment, care and support to be provided outside Australia as a result of the participant’s absence.
  1. [153]
    The balance of the part –
    • obliges the participant to give notice of their intended absence from Australia to the Agency (section 50);
    • allows the Agency to review and amend the participant’s support plan or service request approval (section 51); and
    • allows suspension of the participant’s participation in the Scheme in certain circumstances (section 52).
  2. [154]
    Any amendment to the support plan or service request approval under section 51 must be an amendment the Agency “considers appropriate” (section 51(2)(b)). The balance of the section states –

  1. (3)Without limiting subsection (2), the agency may amend the approved services for the participant by –
  1. (a)
    removing or rescheduling any treatment, care or support that is to be provided in Australia while the person is absent from Australia; or
  2. (b)
    including any treatment, care or support that is to be provided outside Australia while the person is absent from Australia, if the agency considers the treatment, care or support should be funded, in whole or part, under the scheme, having regard to the following matters –
    1. the length of the absence;
    2. whether the treatment, care or support is to be, or could be, provided or funded in another way during the absence;
    3. whether the treatment, care or support is excluded treatment, care and support;
    4. any other matter the agency considers relevant.
  1. (4)
    However, the agency may amend the approved services to include treatment, care or support that is to be provided outside Australia only if a service request has not been made for the treatment, care or support.
  2. (5)
    If the agency decides to amend the support plan or the service request approval, the agency must, within 14 days of making the decision, give the participant –
    1. a copy of the amended plan or approval; and
    2. if the decision is to amend approved services – an information notice for the decision.
  1. (6)To remove any doubt, it is declared that the agency is not required to carry out an assessment under section 25 before amending a support plan under this section.
  1. [155]
    The requirement that the Agency “have regard to … whether” the treatment, care or support that is to be provided outside Australia is “excluded treatment, care and support” further confirms that excluded treatment, care and support may be funded by the Agency in certain circumstances for the reasons explained above.

Part 2A of Chapter 3 of the CLA (including section 52B)

  1. [156]
    The Scheme created by the NIISQA is a hybrid one which does not do away with the rights of a person who has been injured by an at-fault driver (and whose own contributory negligence was less than 50 per cent) to claim for, and if successful, to receive, an award of treatment, care and support damages.
  2. [157]
    Broadly, under the Scheme, as explained above, a not-at-fault (or less than 50 per cent at fault) participant may “preserve” their right to be awarded treatment, care and support damages in a personal injury action arising out of the motor vehicle accident by giving to the Agency and the insurer a “preservation notice”. The giving of the preservation notice has the effect of rendering the Agency liable to contribute towards the insurer’s liability on the claim for treatment, care and support damages (consistently with the levy arrangement discussed above).
  3. [158]
    If the Agency remains liable at the time at which the participant is successful in their claim for treatment, care and support damages, and the participant exercises their choice to accept the award and opt out of the Scheme, then the Agency is –
    • to pay “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” (section 44(3)(a) NIISQA); and
    • “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” (section 44(3)(c)(ii) NIISQA).
  4. [159]
    However, the Agency “stops” being liable to contribute if, as in the present case, the preservation notice is withdrawn. In those circumstances, section 44 does not apply (section 44(1)).
  5. [160]
    If the Agency is “liable” to contribute, then section 52C of the CLA applies, and the court may award treatment, care and support damages. In awarding those damages, the court is to ignore any contributory negligence of the participant.
  6. [161]
    “Treatment, care and support damages” are defined in Schedule 1 of the NIISQA as follows (my emphasis) –

treatment, care and support damages, in relation to a participant, means damages relating to the participant’s treatment care and support needs that –

  1. (a)
    result from the participant’s injury or another personal injury resulting from the motor accident; and
  2. (b)
    arise after the participant is accepted into the scheme.
  1. [162]
    The “participant’s injury” is the serious personal injury in relation to which the participant is accepted into the Scheme (section 11(2)(a)).
  2. [163]
    It may be recalled that, under the Scheme, the Agency may state in a support plan, or approve a service request for, treatment, care or support which is needed because of “another personal injury resulting from the motor accident” (see sections 26(1)(e)(i), 30(c) and 31). In that sense, the scope of treatment, care and support damages aligns with the treatment, care and support which may be funded by the Agency under the Scheme.
  3. [164]
    Also, by requiring the court to, in effect, ignore the participant’s contributory negligence in the assessment of treatment, care and support damages, the CLA obviously aims to place a participant who elects to receive treatment, care and support damages broadly in the same position as a participant who chooses to remain in the Scheme and not pursue a claim for treatment, care and support damages (or a participant who has no choice about it).
  4. [165]
    On the defendant’s/non-literal interpretation of section 9, a plaintiff would be able to include in their claim for treatment, care and support damages a claim for gratuitous care, subject to section 59 of the CLA.
  5. [166]
    In relation to a claim for gratuitous care (“gratuitous services”), section 59(1) of the CLA provides –

59 Damages for gratuitous services provided to an injured person

  1. (1)Damages for gratuitous services provided to an injured person are not to be awarded unless –
  1. (a)
    the services are necessary; and
  2. (b)
    the need for the services arises solely out of the injury in relation to which damages are awarded; and
  3. (c)
    the services are provided, or are to be provided –
  1. (i)for at least 6 hours per week; and
  2. (ii)for at least 6 months.
  1. (2)Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
  2. (3)
    In assessing damages for gratuitous services, a court must take into account –
    1. any offsetting benefit the service provided obtains through providing the services; and
    2. periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
  1. [167]
    “Gratuitous services” are not defined in the CLA but the phrase assumes its common law meaning. The “services” which it contemplates are in the nature of domestic or nursing services,[28] and would include attendant care and support services as defined in the NIISQA.
  2. [168]
    Of course, section 52C does not apply to the present plaintiff.
  3. [169]
    The present plaintiff is, in my evaluation, a mature and intelligent person, with good family support, who appears to be well capable of independently planning and managing his treatment, care and support.
  4. [170]
    He was certainly not obliged to give (and not withdraw) a preservation notice. However, the Scheme anticipates that a participant such as the plaintiff, to whom Division 4 of Part 4 of Chapter 2 of the NIISQA applies, would wish to give (and not withdraw) a preservation notice, so as to allow for their choice between –
    • having the cost of their treatment, care and support met by way of lump sum damages (payable by the Agency) and being “freed” thereafter from the Scheme;[29] or
    • rejecting the lump sum and remaining a participant in the Scheme.
  5. [171]
    Such a Scheme participant is ultimately able to make that choice with knowledge of the quantum of the lump sum available to them as treatment, care and support damages (indeed, with knowledge of the quantum of the whole of the judgment of the court): section 44(1) NIISQA.
  6. [172]
    The Scheme anticipates that a participant to whom Division 4 of Part 4 of Chapter 2 applies would be attracted to the lump sum option. Indeed, it provides for an application by the Agency to the court for an order preventing such a participant from being awarded lump sum damages (even before they have given a preservation notice) because of, for example, concerns that such a participant may not be able to manage the lump sum so as not to compromise their health and wellbeing: see section 43 NIISQA.
  7. [173]
    On the non-literal interpretation of section 9, had the present plaintiff not withdrawn the preservation notice, the lump sum amount awarded to him for treatment, care and support damages could have included an amount for gratuitous care (or, it seems to me, could have been calculated by reference to his losses, represented by his needs – however those needs were to be met; that is, by way of services provided by paid carers or provided gratuitously).
  8. [174]
    Having withdrawn the preservation notice, section 52B of the CLA applies to the plaintiff. Under that section, a court can not award damages “in relation to” a Scheme participant’s “treatment, care and support needs”.
  9. [175]
    The plaintiff attempts to overcome the prohibition in section 52B(2) by an argument that gratuitous care does not fall within section 8 treatment, care and support needs. However, in my view, whatever interpretation of “excluded” is correct, section 52B(3)(d) makes it clear that a court may not award damages in relation to gratuitous care provided, or to be provided, to the plaintiff.
  10. [176]
    The plaintiff argues that section 52B(3) should not be used to “expand” the prohibition in section 52B(2) and that, if the prohibition does not concern gratuitous care, then there is, in effect, no need to read further. But that is not the correct approach. The section must be read as a whole.
  11. [177]
    I note that each of the matters listed in section 52B(3) may be funded under the Scheme –
    • as to section 52B(3)(a) of the CLA, see section 26(1)(e)(i) of the NIISQA.
    • as to section 52B(3)(b), see section 37 of the NIISQA.
    • as to section 52B(3)(c), see sections 15, 26(1)(e), 31 and 37 of the NIISQA.
    • as to section 52B(3)(d), see my reasons above.

Thus, in my view, section 52B(3) makes it clear that the prohibition applies whether or not the Agency would fund the need the subject of the participant’s claim.

  1. [178]
    So, for example, because of section 52B(3)(a), there is no scope for an award of damages in relation to a need for treatment, care or support which is the result of a personal injury other than the serious personal injury sustained by a participant, even if the Agency has decided not to fund that latter need. This is consistent with the Agency being the sole entity responsible for deciding about the funding of a participant’s treatment, care and support.
  2. [179]
    My primary view is that section 52B(3)(d) anticipates that the “treatment, care and support needs” referred to in section 52B(2) may include treatment, care or support provided gratuitously, consistent with the non-literal meaning of excluded in section 9 of the NIISQA.
  3. [180]
    But even if “treatment, care and support needs” (in section 52B(2)) exclude gratuitous care; and even if it therefore appears to the reader of sections 52B(1) and (2) only that a participant may successfully sue for damages for gratuitous care, section 52B(3) cannot be ignored. And section 52B(3)(d) expressly prohibits an award of damages for gratuitous care (indeed, for all treatment, care or support needs provided without charge).
  4. [181]
    The plaintiff argues that, on his interpretation of section 9, even if section 52B(3)(d) is read to exclude a claim for damages for gratuitous care, section 52B(3) does not exclude care provided in section 9(1)(c) circumstances and he may therefore make a claim for damages in relation to that aspect of his past and future care.
  5. [182]
    In my view, that outcome – that the plaintiff may not be awarded damages for section 9(1)(a) treatment, care and support but may be awarded damages for section 9(1)(c) treatment care and support – is anomalous. This is particularly so given the potential overlap between treatment, care and support provided in section 9(1)(a) circumstances and in section 9(1)(c) circumstances.
  6. [183]
    Further, it seems to me that a coherent reading of the whole of Part 2A, in the context of the Scheme, requires “excluded” in section 9 to bear a non-literal meaning. For the purposes of this part of my reasons, I will refer to a participant who has given a preservation notice which, in the circumstances, renders the Agency liable to contribute towards the insurer’s liability on the claim for the participant’s injury for treatment, care and support damages as a “preserving participant”. I will refer to a participant who has a claim in respect of which the Agency is not liable to contribute as a “non-preserving participant”.
  7. [184]
    In my view, the plaintiff’s interpretation of section 9 leads to anomalous results. For example, on the plaintiff’s case –
    • a preserving participant who is –
  • wholly without fault; and
  • chooses to accept the award of treatment, care and support damages,

cannot receive damages for gratuitous care from the Agency under section 52C of the CLA read with section 44 of the NIISQA;

  • a preserving participant who is –
  • wholly without fault; and
  • chooses to reject the award of treatment, care and support damages,

will never be eligible for funding for gratuitous care under the Scheme;

yet,

  • a preserving participant, guilty of contributory negligence of 50 per cent (rendering section 52C inapplicable – see section 52C(1)(c)) may receive damages for gratuitous care under section 52B and will remain in the Scheme for funding in relation to their other treatment, care and support.
  1. [185]
    Thus, the 50 per cent at fault preserving participant would, on the plaintiff’s case, potentially “do better” than a wholly without fault preserving participant in terms of funding for his or her treatment, care and support. Such an outcome is difficult to justify.
  2. [186]
    However, on the non-literal interpretation of section 9, the outcomes are, in my view, coherent. For example –
    • a preserving participant, wholly without fault is able to receive treatment, care and support damages which may include an amount for gratuitous care; and
    • a non-preserving participant, regardless of fault, is eligible to receive funding for gratuitous care (albeit subject to the constraints of the Scheme) for their lifetime.

Extrinsic materials explaining the purpose of the Scheme

  1. [187]
    In my view, the extrinsic materials do not support – indeed are inconsistent with – the plaintiff’s construction of the Scheme, which would render both the Agency and QBE financially responsible for his treatment, care and support. In my view, the extrinsic materials convey very clearly that the insurer will not be liable for any kind of treatment, care or support (which would include gratuitous care).
  2. [188]
    The plaintiff relies upon the explanatory note to section 9 (see above at [44]) in support of his argument that “excluded treatment, care and support” is literally excluded from the Scheme. However, in my view, the plaintiff reads too much into the phrase “not required to be funded” in that note. In my view, consistent with a coherent reading of the whole of the NIISQA, the statement that section 9 excluded treatment, care and support is “not required to be funded by the Scheme” reinforces the fact that the Agency has flexibility when it comes to its funding. If it were to be literally excluded, I would have expected the explanatory note to have said so.
  3. [189]
    In my view, the critical “takeaways” from the extrinsic materials are these:
    • the main purpose of the Scheme is to ensure that persons who sustain serious personal injuries, as a result of motor vehicle accidents, receive necessary treatment, care and support, regardless of fault;
    • there is no access to damages for treatment, care and support if the injured person has materially contributed to their injuries (that is where the person’s contributory negligence is 50 per cent or more);
    • but, where damages are available, the Agency is to be solely responsible for meeting payments for a participant’s medical expenses, rehabilitation expense and treatment, and care and support damages for all injuries arising out of the accident (subject to the NIISQA) – not the CTP insurer;
    • the CTP insurer is to make payments in relation to heads of damage other than those relating to treatment, care and support; and
    • participants who cannot, or choose not to, accept treatment, care and support damages and opt out of the Scheme will continue to receive their treatment, care and support services co-ordinated through the Scheme.
  4. [190]
    As the Treasurer explained, the Scheme is a “hybrid” scheme, which allows for the retention of the common law rights of a not-at-fault injured person and allows the notat-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. What is preserved (for an eligible participant) is freedom of choice about the way in which the participant’s treatment, care and support will be funded – not freedom to pursue the insurer instead of the Agency, for treatment, care and support.
  5. [191]
    The extrinsic materials refer to the choice between accepting the lump sum or remaining in the Scheme. They make it plain that it was never contemplated that a Scheme’s participant might be able to rely on the Scheme for funding some of his or her treatment, care and support and rely upon damages for other of his or her treatment, care and support. (See in particular the parts of the extrinsic material which I emphasised above.)
  6. [192]
    The discussion in the second reading speech about the concern of the insurance industry that the bill was unclear about its responsibility for treatment, care and support clearly explains that the Agency is to be solely responsible for treatment, care and support damages. Similarly, the notes to clause 18 explain that the insurer is relieved from direct liability for payment for treatment and care, consistent with the Scheme’s levy and CTP premium distribution.

Conclusion about legal issue

  1. [193]
    To conclude, in my view, section 9 does not literally exclude from “treatment, care and support” the treatment, care and support delivered in the circumstances listed in section 9. Rather, section 9 creates a subset of treatment, care and support for the purposes of the Scheme and the CLA.
  2. [194]
    After withdrawing his preservation notice, the plaintiff’s claim for treatment, care and support damages was governed by section 52B of the CLA. That section makes it plain that the court cannot award damages against QBE in relation to the plaintiff’s treatment, care and support – including damages for gratuitously provided care.
  3. [195]
    Having withdrawn his preservation notice, the plaintiff’s treatment, care and support for his lifetime, including “excluded treatment, care and support”, will be managed by the Agency under the Scheme.
  4. [196]
    The position the plaintiff finds himself in is not the default position under the Scheme for not-at-fault persons who suffer catastrophic injuries in motor vehicle accidents.
  5. [197]
    The extrinsic materials reveal that a considered decision was made to ensure that the Scheme preserved to a not-at-fault plaintiff the right to pursue treatment, care and support damages, and the opportunity to decide whether to take them or not. It is reasonable to assume and, in my view, the NIISQA anticipates, that most eligible plaintiffs would be attracted to the prospect of being able to choose between a lump sum damages payment and remaining in the Scheme.[30]
  6. [198]
    Nothing obliged the plaintiff to give, and not withdraw, his preservation notice, but upon withdrawing his preservation notice, the plaintiff deprived himself of the choice the legislature intended to preserve for him.
  7. [199]
    For completeness, I note that neither party made submissions about section 41(4) of the NIISQA.

Damages – quantum

  1. [200]
    QBE acknowledges that it is liable to the plaintiff for damages in relation to the following –
    • general damages;
    • past loss of earning capacity;
    • past loss of superannuation benefits;
    • future loss of earning capacity; and
    • future loss of superannuation benefits.
  2. [201]
    The parties have agreed on amounts for each of those heads of damage (including interest) – subject to adjustments (in the case of all of the above, apart from general damages) to take into account the usual delay between the hearing and the delivery of final orders.
  3. [202]
    The parties are in dispute about the quantum of the following heads of damage –
    • past out of pocket expenses;
    • future holiday expenses;
    • future aids and equipment;
    • future motor vehicle expenses; and
    • past and future gratuitous care.

The plaintiff’s disputed claims

  1. [203]As above, I agree with QBE that the plaintiff may not claim damages against it for treatment, care and support (“excluded” or otherwise, and including gratuitous care) because of section 52B of the CLA. However, in case I am wrong about that, I will address the plaintiff’s claim for damages for gratuitous care. I will also deal with the other claims which are in dispute.

Relevant principles

  1. [204]
    The plaintiff relied upon the well-known statements of Gibbs CJ and Wilson J in Todorovic v Waller (1981) 150 CLR 402 about the fundamental principles which apply to the assessment of damages at common law. I note in particular the principle that a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him or her in the same position as if he or she had not sustained the injuries.
  2. [205]
    QBE made the point that the plaintiff was entitled to “reasonable” compensation only, referring to Vowles v Osgood & Anor [2012] QSC 82, in which McMeekin J said at [46] –

In issue is the concept of fairness between the parties. This is not an ideal world and damages cannot give perfect compensation. Damages, as Professor Luntz has said “are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff could possibly have sustained”.

Past out-of-pocket expenses

  1. [206]
    The plaintiff’s claim for past out-of-pocket expenses was detailed in a schedule and totalled $109,771.26
  2. [207]
    The plaintiff claims for many and varied expenses – including (but not only) bedroom curtains, flannelette sheets, two cars, a lightweight mower, bathroom shelves (for the hair straightener), sandals, the cost of replacing veranda balustrades, clothing, the cost of painting the house, valet parking whilst on holidays, and wheelchair accessible accommodation.
  3. [208]
    No attempt was made by the plaintiff’s lawyers to identify or summarise the evidential basis upon which each expense claimed was said to relate to a need created by the accident. Rather, the plaintiff submitted that, because there was no challenge to his statement that the expenses listed in the schedule were related to his injury/disability as a result of the accident, there was no reason to doubt the causal connection between the items listed and his personal injury.
  4. [209]
    QBE submitted that the plaintiff’s statement that an expense was incurred because of his injury was not enough if, on its “face”, the expense did not appear to be injury related.
  5. [210]
    QBE also pointed to evidential gaps in the schedule. Where it was contended that the plaintiff would have done something were it not for his injury but, because of his injury, had to pay a third party to do it, then QBE considered he had “got[ten] over the [evidential] hurdle”. But where the schedule made no such statement in relation to an expense (and there was no other evidence to that effect), QBE submitted that the plaintiff had not cleared the evidential hurdle and the absence of challenge to his evidence was irrelevant.
  1. [211]
    QBE challenged almost every item on the schedule because –
    • there was a gap in the evidence as to how the expense was accident related; or
    • it was something which was required regardless of the accident (such as new clothes); or
    • it was an expense covered by the Scheme.
  2. [212]
    The plaintiff seemed content to deal with these challenges on the strength of the argument that his evidence that these expenses were accident related was not challenged and therefore had to be accepted.
  3. [213]
    It is not the case that I must be persuaded of everything asserted by the plaintiff which was not challenged.
  4. [214]
    In my view, it was unsatisfactory for the plaintiff’s lawyers to have failed to identify the compensable basis of each expense claimed. Nevertheless, in relation to every expense claimed, I assessed the evidence for how it might be said that the expense was required as a result of the accident.
  5. [215]
    In the case of some but not all of the items under challenge, I was able to find the evidence which I assumed the plaintiff intended to rely upon. Accordingly, where I was able to find evidence of the reason why the plaintiff might have claimed a certain expense, I gave consideration to that evidence and reached a decision about that expense.
  6. [216]
    Also, where it was obvious, from the nature of the item, that it was an expense brought about by the accident (for example, the “easireach”), I was prepared to accept that it was an accident related expense.[31]
  7. [217]
    But where it was not obvious (in the case of, for example, curtains or a bathroom shelf for the hair straightener), I was not prepared to speculate (and indeed, it would have been impermissible to speculate) as to how it might have been accident related.
  8. [218]
    I accept, on the strength of evidence or common sense inferences that the plaintiff has an accident related need for the following –
    • a stick vacuum cleaner (even though the Agency is responsible for cleaning – it is not uncommon or unreasonable for householders to clean between cleaners’ visits);
  • a standing bed lamp for night bladder care;
  • a mop and bucket for the ensuite (because of post-accident incontinence);
  • One-third of the cost of the dishwasher (I found evidence that – before his accident – the plaintiff washed up by hand. I assume that a dishwasher was purchased so that the plaintiff could stack it, and in that way assist with the washing up. Of course, the dishwasher is to Mrs Walters’ benefit as well. As it turns out, Mr Walters can stack the top, but not the bottom, drawer of the dishwasher. Nevertheless, it assists the plaintiff with a pre-accident task to some degree and I am therefore prepared to allow for one-third of the cost of the dishwasher as an accident-related expense);
  • a heater for the bathroom (because –
    • there is evidence that the plaintiff does not have the same ability to regulate his body temperature as he did before the accident;
    • his ablutions take more time now (in an unheated bathroom) than they did before the accident; and
    • he might need the room heated on days when the reverse cycle airconditioner is not running (if indeed it heats the bathroom when it runs));
  • a recliner chair (I assume that it accommodates the plaintiff’s disability more comfortably than an ordinary chair);
  • jeans (on the basis that the plaintiff may not have needed to purchase jeans in a larger size were it not for the accident: jeans last for years);
  • gloves for the hand-cycle (I have assumed that the gloves required for hand cycling are different from the gloves required for leg cycling because the hands are used in a different way. Further, I have proceeded on the basis that it is reasonable that the pre-accident, very active plaintiff, would take up an activity, such a hand-cycling, post-accident);
  • enclosed sandals (while of course, “people need shoes anyway”, I am prepared to accept that the plaintiff might not have purchased this style of shoe were it not for the accident);
  • other new shoes and shorts (I have inferred that the plaintiff required a different style or size in shoes and shorts because of post-accident changes to his shape/size/skin sensitivity et cetera and that he may not have purchased additional clothes “anyway” were it not for the accident);
  • bedlinen and mattress protectors (I have differentiated between “ordinary” mattress protectors and those designed to deal with incontinence. I do not read paragraphs 97 and 98 of Mrs Walters’ statement as implying that the Agency funded the cost of the bedlinen and mattress protectors which were required because of the change in bed size (as the insurer suggested). Also, I have assumed that, because of the plaintiff’s incontinence, he requires more bedlinen post-accident than pre-accident);
  • repairs to pool roof area (I would have preferred sworn evidence about these repairs, but given the defendant’s position, I am prepared to proceed on the basis of the statement in the schedule to the effect that the plaintiff would have undertaken these repairs were it not for the accident);
  • thermos flask (I am prepared to proceed on the basis of the statement in the schedule about the way in which this thermos is used. Were it not for the accident, the plaintiff would be able to get up and make his own coffee first thing in the morning (without needing to wait for his carers to arrive to get him out of bed and prepared for the day));
  • tracksuit pants; stretchable trousers and stretchable jeans (I am prepared to proceed on the basis that the plaintiff would not have purchased clothes of this type were it not for the accident).
  1. [219]I do not allow the plaintiff’s claim for the following expenses because there was no relevant evidence about how they are said to be accident related, nor is there anything about them from which a reasonable inference that they are accident-related may be drawn –
  • curtains from Spotlight;
  • plastic covers and files for the plaintiff’s office;
  • bathroom shelf from Bunnings;
  • toaster and kettle for plaintiff’s shelf;
  • the cost of cutting paper bark trees and removing their stumps (there is no evidence that the plaintiff did work of this kind prior to the accident; also, the Agency will pay for gardening);
  • computer software protection;
  • shelves for bathroom and hair straightener;
  • repairs to the sliding doors;
  • hand cycle repair;
  • replacement of the veranda balustrades;
  • a cordless hedge trimmer (the evidence is to the effect that prior to the accident the plaintiff trimmed/pruned the trees and hedges at his house and is no longer able to – cordless hedge trimmer or not);
  • replacement of front steps;[32]
  • painting the house.
  1. [220]
    The following expenses are the responsibility of the Agency, or items which would be required regardless of the accident, and I will not therefore make an allowance for them in damages – pool care;
    • car washing;
    • waterproof mattress protector;
    • rubber mat to prevent wheelchair slipping;
    • Lamb’s wool slippers with big toe “pressure” area;
    • Easireach;
    • home modifications (including the polycarbonate around the lift area);
    • gutter cleaning;
    • disposable bed covers;
    • passport photos for taxi subsidy scheme;
    • tree-lopping, stump grinding, rubbish removals;
    • garden waste disposal bags;
    • service of lift;
    • air-conditioning in the bedroom;
    • valet parking at Geelong and Adelaide;
    • the cost of wheelchair accessible holiday accommodation.
  2. [221]
    Also, I do not consider it appropriate to award damages for the purchase of lighter-inweight power tools or a mower for Mrs Walters to use. Mr Walters’ loss, in terms of his inability to (for example) use a blower vacuum, is met (albeit imperfectly) by the Agency funding garden care. It is not met by Mrs Walters. Whilst the outdoor cleaners, funded by the Agency, might not clean as frequently as Mr Walters would like, I consider his loss in that regard to have been reasonably addressed by the Agency-funded cleaners.
  3. [222]
    I do not consider it reasonable to make an allowance for the purchase of a bike for the plaintiff’s wife to ride.
  1. [223]
    Although it is trivial in the scheme of things, I will not make an allowance for television hire whilst the plaintiff was in intensive care and, on the evidence, heavily sedated.
  2. [224]
    As noted, the plaintiff claims for the costs associated with the purchase of two motor vehicles. The plaintiff acknowledges that section 8(j) refers to “transport modification” but submits that he is not claiming for a modification – but instead for the capital costs of two cars.
  3. [225]
    QBE referred to the evidence about the cars, which was to the effect that the car owned by the plaintiff at the date of the accident could not be modified. He sold it and purchased a Ford Falcon utility which proved to be unsuitable. He then traded the utility in on a Holden Station Wagon for a changeover cost of about $57,000. QBE submits that it should not have to pay for the plaintiff’s “unsuitable” choice. Also, the claim was for the capital cost of an asset which the plaintiff will retain.
  4. [226]
    With respect to the claim for the capital cost of the two motor vehicles – the Ford Falcon utility ($14,880) and the Commodore Station Wagon ($57,500) – I consider it appropriate to treat the cars as wasting, rather than capital assets. I note that there was, though, no claim for depreciation.
  5. [227]
    In my view, it is appropriate to award a sum for the cost to the plaintiff of changing over his existing utility to a vehicle which would accommodate his disability, but it is not appropriate to award the plaintiff the capital cost of the two cars.
  6. [228]
    The plaintiff made, it seems, a poor choice in his selection of the Ford Falcon utility and was required to buy another vehicle. There was no evidence led by the plaintiff about the range and costs of vehicles which would have been suitable for the plaintiff post-accident. Nevertheless, I am prepared to award the plaintiff a global sum of $25,000, representing the changeover cost of acquiring a suitable vehicle.
  7. [229]
    I note that the insurer does not object to claims for the following –
    • TV hire at QE II;
    • TV hire in February 2019.

Past travel expenses

  1. [230]
    The plaintiff claims $1,012.22 in past travel expenses which were not related to his medical or pharmaceutical treatment, or rehabilitation. Rather, they related to “outings” during his hospitalisation (or most of them did).
  2. [231]
    QBE’s position is that if the travel expenses concerned the plaintiff’s needs; they fell within “attendant care and support services”; and they would be covered by the Scheme. QBE submits that there is no reason to think that the Agency would not carry out its statutory responsibility in this regard.
  3. [232]
    These outings were intended to “support” the plaintiff’s mental health and well-being. Their cost is the Agency’s responsibility. I will not make an allowance for them.

Future holiday expenses

  1. [233]
    The plaintiff claims $142,886.47 for future holiday expenses.
  2. [234]
    The plaintiff and his wife have family members (including the plaintiff’s mother and Mrs Walters’ elderly parents) in Forster and Manilla in New South Wales, whom they visited two or three times per year pre-accident. Pre-accident, they stayed with family members on those visits but their families’ accommodation is now unsuitable.
  3. [235]
    The plaintiff claims the whole cost of wheelchair accessible accommodation in New South Wales for two weeks every year, for the rest of his life.
  4. [236]
    QBE submits that it would be unlikely that the plaintiff would make a trip to see family members for every year of the rest of his life – because he and his family are aging and his mother is likely to pre-decease him. QBE submits that, regardless, the cost of holidays will be met by the Agency under the Scheme.
  5. [237]
    The plaintiff tendered a document entitled “NIIS Queensland Guideline Participant Support When Far Away from Home”. That document states that the Agency will “generally not pay for” inter alia “holiday expenses such as meals and accommodation”.
  1. [238]
    I note that the statement is qualified by the word “generally”. I do not read the document as the Agency asserting that it would not be legally responsible for making a decision about funding the items it listed. But regardless, the Agency’s list of holiday related expenses which it will “generally” not fund does not conclude what it is obliged by law to fund (or consider funding). Apart from the specific provisions of the NIISQA which concern funding, section 59 sets out the general principles to which the Agency must have regard in performing its functions under the NIISQA. They include the principle that participants be supported to maximise their participation in the community. However, the real point is that I consider the funding of the additional costs associated with the plaintiff’s future holidays with family a form of “support” or “care” which is the responsibility of the Agency. Under section 52B of the CLA, I cannot make any allowance for those additional costs in damages.
  2. [239]
    Similarly, I consider the following holiday costs and expenses to be the responsibility of the Agency because they fall within “support” or “care” or “aids and equipment” for the plaintiff –
    • the additional costs associated with the plaintiff’s reduced driving tolerance when it comes to driving holidays;
    • the cost of an upgrade to business class for domestic flights of more than three hours duration or international flights (putting to one side the lack of evidence about the plaintiff’s plans to fly to international destinations or destinations which are more than three hours away, twice a year (as claimed) – which would also preclude me from making an allowance in the amount claimed);
    • the cost of hire of a power wheelchair accessible vehicle.
  3. [240]
    The plaintiff also makes a claim for additional travel insurance costs. Whether that properly falls within the Agency’s responsibility or not – the evidence about these costs was insufficient. It was limited to the following statements by the plaintiff’s expert occupational therapist that –

Sourcing a travel insurer that would cover Mr Walters for any medical care (or any specialist equipment related damage or loss) may be challenging. Problems finding appropriate travel insurance could expose Mr Walters to significant financial risk when travelling.

  1. [241]
    That limited evidence (expressed speculatively) does not substantiate the claim made and I make no allowance for it.

Future aids and equipment

  1. [242]
    The plaintiff claims the sum of $6,831.09 for items including an electric recliner chair, a front loading washing machine, a clothes dryer and its operating cost, and lighter (as in weight) home and property maintenance tools.
  2. [243]
    The plaintiff argues that because these “aids and equipment” should also be regarded as ordinary personal or household items, I should treat them as falling outside section 8.
  3. [244]
    QBE submits that if the items are necessary and reasonable aids or equipment, then they will be funded by the Scheme. QBE also relies upon the fact that many of the items claimed are ordinary household items (such as washing machines and dryers).
  4. [245]
    In my view, the electric recliner chair, which will assist pain relief and reduce lower limb oedema and trunk fatigue is not an ordinary household item. It is relevant “equipment” falling within section 8 of the NIISQA.
  5. [246]
    The cost of lighter tools for Mrs Walters to use is not compensable by QBE. Mr Walters’ loss of his capacity to do home maintenance is addressed by the Agency. It falls within section 8(f) “attendant care and support services” which are defined to include home maintenance.
  6. [247]
    I am prepared to make an allowance for a front loading washing machine and dryer, and the extra costs of running the dryer but those items assist Mrs Walters as well. I will therefore allow for one-half of their cost.

Future motor vehicle expenses

  1. [248]
    The plaintiff claims the sum of $110,058.66 as the capital cost of two more vehicles which he submits he will require in the future because of his injury.
  2. [249]
    QBE’s position is that this claim is based on the assumption that the plaintiff will need another vehicle at some stage in his life, but there is no evidence of that.[33] And regardless – the need for a new vehicle is not related to his injury. Further, the Scheme would pay for modifications to it.
  3. [250]
    The evidence is that the plaintiff purchased his “dream car”, a Holden V8 Poison Ivy manual utility, in his early fifties. It was his “pride and joy”. I proceed on the basis that, had it not been for the accident, the plaintiff would have driven “Poison Ivy” for as long as the rest of its safe driving life.
  4. [251]
    Unfortunately, there was no evidence before me about how long Poison Ivy would have been safe to drive. Nevertheless, I consider it reasonable to assume that Mr Walters was likely to have ultimately traded in Poison Ivy for another vehicle within 12 years of its purchase (when he was in his mid-sixties). There was no evidence before me about the age at which the plaintiff was likely to cease driving were it not for the accident.
  5. [252]
    I proceed on the basis that, were it not for the accident, the plaintiff was likely to have acquired one or perhaps two motor vehicles (after Poison Ivy).
  6. [253]
    On that basis, the plaintiff would be entitled to the additional cost of two vehicles suitable for modification. By “additional”, I mean in the sense that the vehicles necessary to accommodate the plaintiff’s disability (as a driver and as a passenger) are likely to be more expensive than the replacement vehicles he would have purchased were it not for the accident. I draw that inference from the fact that the plaintiff’s first choice of vehicle (to replace Poison Ivy) was a moderately priced utility, which proved to be unsuitable and which was replaced by a more expensive station wagon.
  7. [254]
    However, on the evidence, I am unable to reach any conclusions about how long the plaintiff himself might be able to drive. The expert reports discuss persisting shoulder symptoms, a reduced daily driving tolerance (for long distances), issues with pressure sores, and his likely future difficulties accessing a vehicle using a transfer board (which would mean he would need to be transported as a passenger in a “people mover”).
  8. [255]
    The plaintiff’s expert occupational therapist recommended a vehicle which allowed for direct wheelchair accessibility, namely a Volkswagen Caravelle Long Wheel Base, at a cost of between approximately $53,000 and $83,000. However, the evidence does not assist me to reach a conclusion about whether, or for how long, Mrs Walters would be able and willing to drive a people mover.
  9. [256]
    In the light of the limited evidence, I will allow $50,000 as a global sum representing the additional cost of two future vehicles (one for the plaintiff to drive and the other for Mrs Walters to drive (at least for a few years)), suitable for modification.

Past and future gratuitous care

  1. [257]
    I will discuss this claim generally first, then state my reasons in relation to each individual claim listed in the plaintiff’s schedules entitled “Schedule of Past Gratuitous Care” and “Schedule of Future Care”.
  2. [258]
    The claim under this head raises several issues including –
    • the plaintiff’s entitlement to an allowance in damages for gratuitous services in lieu of Agency-funded services;
    • the scope of Griffiths v Kerkemeyer damages;[34]
    • the relevance of the plaintiff’s stable marriage relationship to certain aspects of the claim; and
    • the application of Wilson v McLeay (1961) 106 CLR 523.
  3. [259]
    Inter alia the plaintiff submits that, although the Agency stands ready to meet his care and support needs via funded carers, he is entitled to both –
    • choose the Agency funded care and support he will accept; and
    • pursue a claim for damages for past and future gratuitous care and support in relation to the balance of his care needs.[35]
  4. [260]
    The plaintiff argues that he had, or has, a section 59(1)(a) CLA need for the gratuitous care provided to him in the past, and to be provided to him in the future, because his marriage would suffer (he fears, irreparably) if he were required to rely upon Agency funded carers for all of his needs. In that sense, he submits, the services are “necessary”.
  5. [261]
    In relation to most of the plaintiff’s claims for past and future gratuitous care (or “services” as per section 59 CLA), QBE submits that no allowance should be made because the gratuitous services, in respect of which the claims are made, are not “necessary” as required by section 59(1)(a). (I note that QBE did not challenge the plaintiff’s gratuitous care claims on the basis that any other section 59 pre-requisite had not been met.)
  6. [262]
    QBE acknowledges that care cannot be forced upon the plaintiff by the Agency. The plaintiff’s choice about accepting care is not removed by the CLA. What is removed, QBE submits – because of the requirement of necessity – is the availability of damages for gratuitous care in relation to services which the Agency stood ready, and stands ready, to provide.
  1. [263]
    QBE argues that –
    • the Agency is obliged by statute to provide to the plaintiff all of his “necessary and reasonable” treatment, care and support;
    • the plaintiff disowned (indeed, did not plead) a case that the Agency has not or will not carry out its obligation;
    • the only reason the plaintiff has not had his needs met by the Agency by way of the provision of paid services is because he chose not to accept those services;
    • the only reason the plaintiff will not in the future have his needs met by the Agency by way of the provision of paid services is because he has indicated that he will not accept those services;
    • thus, the gratuitous services he has chosen, and will in the future choose, to receive in lieu of the Agency’s services cannot be said to be “necessary”.
  2. [264]
    The plaintiff submits that he should be entitled to choose from whom he wishes to receive care. He submits that it would be “a very large step for the common law to take to say that if … funded care and assistance can be provided to someone then it needs to be accepted, and if it is not accepted … [there can be] no claim for gratuitous care and assistance”.
  3. [265]
    In addition to its “not-necessary” argument, QBE cautions me not to expand the common law principles of Griffiths v Kerkemeyer damages, as altered by section 59 of the CLA. In the context of that caution, QBE observed that the plaintiff’s schedule (which sets out the detail of his claim) does not differentiate between claims based on obvious “caring” services (such as bringing in food at the request of the hospital’s dietician and laundry), and those which (QBE contends) expand upon the common law principles (see for example, page 2 of the plaintiff’s “Schedule of Past Gratuitous Care”).
  4. [266]
    I have considered McMurdo P’s discussion of Griffiths v Kerkemeyer damages in Clement v Backo & Suncorp Metway Insurance Ltd [2007] 2 Qd R 99; [2007] QCA 81 and note her Honour’s reference to the anomalous character of such an award –

[2] … The High Court’s recent interpretation in CSR Ltd v. Eddy of the principle in Griffiths v. Kerkemeyer strongly emphasises the anomalous character of such an award of damages and that the principle should not be extended in the absence of clear authority. …

  1. [267]
    I note also Mackenzie J’s observation (at [48]) that Kriz v King & Anor [2007] 1 Qd R 327 settled that the term “gratuitous services” means “the common law concept as it was determined from time to time”, rather than the concept as it was understood at the time of the enactment of section 59.
  2. [268]
    Further, I have considered the analysis of National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 by Fryberg J in Clements v Backo at [87 ] – [93] and the High Court’s discussion of the relevance, to an award of damages, of the availability of special services intended to “lighten the monetary burden” of a plaintiff’s illness. Although I hasten to add that I appreciate the difference between the issues in Espagne and the issues in this case.
  3. [269]
    QBE also referred me to Van Gervan v Fenton (1992) 175 CLR 327, in which Deane and Dawson JJ said that the assessment of damages was not an exact science and was to be governed by considerations of practical common sense in the context of the circumstances of the particular case. The plaintiff in that case was in, and was likely to remain in, a stable marriage. Their Honours continued at pages 343-4 (my emphasis in bold) –

... [T]he ordinary incidents of [the plaintiff’s stable marriage relationship] and the give-and-take activities of the parties to it provided a significant part of the active services and passive attendance in and about the matrimonial home which were necessary to look after the appellant’s accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into “services” rendered or to be rendered by the other spouse even if they obviate a need for such “services” which would otherwise exist [such as in the case of a plaintiff without a domestic partner]. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give-and-take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident-caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided to that spouse to look after the accident-caused needs of the injured plaintiff.

It is clear that, in the present case, the additional services which are being and will be provided by the wife to attend to the appellant’s accidentcaused needs during the relevant period are very extensive. They involve both active care and protective attention to an extent that represents an oppressive restraint upon the wife’s freedom of activity. It was clearly reasonable that the appellant’s damages for loss of capacity include a substantial amount calculated by reference to the value of those additional services and that, in ascertaining the extent of the wife’s additional services, account be taken of the drastic curtailment of the appellant’s ability to do things for his wife (and himself) in return. Nonetheless, it would be illegitimate to treat the burden of additional care which the wife has assumed in the context of a devoted marriage and in the environment of her own home as converting her into the equivalent of a full-time live-in housekeeper to be remunerated not only for the active services which she renders to her husband but on the basis that time spent with her husband in her own home is to be treated as if it were services rendered to a stranger in a strange environment.

The meaning of “necessary” in section 59(1)(a) of the CLA

  1. [270]
    The issue is whether a gratuitous service can be said to be “necessary”, within the meaning of section 59(1)(a), when that same service is available to the plaintiff via paid carers but the plaintiff chooses not to accept that paid care.
  2. [271]
    I have considered the interpretation of the word “necessary” suggested by the purpose of section 59.
  3. [272]
    The purpose of the section is to place statutory limits upon the common law entitlement to damages for gratuitous care. In CSR Ltd v Eddy (2005) 226 CLR 1, Gleeson CJ, Gummow and Heydon JJ observed that section 59 restricted the availability of this head of damage.[36] And in Kriz v King & Anor, McMurdo P, with whom Jerrard JA and Helman J agreed, said (at [12]) –

Section 59 does not provide a statutory entitlement to damages for gratuitous services separate to the common law but rather modifies and restricts the common law entitlement to them.

  1. [273]
    Section 59’s purpose suggests that I ought to take a narrow, rather than a broad, approach when it comes to an assessment of the necessity of the gratuitous services claimed. A narrow approach would require an objective consideration of whether the services are “necessary”.
  2. [274]
    Also, putting to one side the purpose of section 59 (to restrict the availability of this head of damage), a subjective interpretation of “necessary” would be inconsistent with the common law which required the relevant services to be “reasonably required” or “reasonably necessary” – importing an objective assessment.
  3. [275]
    I note further the following commentary from the fourth edition of R Douglas, G Mullins and S Grant, Annotated Civil Liability Legislation[37] about section 59(1)(a) –

Services ‘necessary’. The provision does not provide any touchstone for assessment of such necessity. Whether the services are necessary will turn on the facts of the particular case. Services may be necessary to avoid another and potentially greater loss.[38]

The test is an objective one, but applied by reference to the circumstances of the injured person. This will require findings that the services can be described as at least reasonable, and in some instances perhaps indispensable, having regard to the needs and circumstances of the person to whom the services are provided.

  1. [276]
    I have considered the statement, “Services may be necessary to avoid another and potentially greater loss”, which is taken from the first instance decision of Dutney J in Clement v Backo & Anor [2006] QSC 129.
  2. [277]
    In Clement v Backo, the relevant greater loss contemplated was a financial loss which was found to be the loss of a not-speculative opportunity to make a commercial profit from a plantation (were it not gratuitously maintained by the plaintiff’s wife).
  3. [278]
    At face value at least, that proposition might be thought to apply to the plaintiff’s circumstances, were the “loss” taken to refer to the loss of his relationship. But the decisions of McMurdo P and Mackenzie and Fryberg JJ in the appeal decision make it plain that the issue in the case was the extension of the principle in Griffiths v Kerkemeyer to gratuitous care provided to avoid economic loss. The Court of Appeal decisions convey that, at best, the principle stated by Dutney J was only to be applied in analogous circumstances involving the need to avoid the risk of economic loss.
  4. [279]
    Viewed objectively, while of course the services are necessary, it is not necessary that they be provided gratuitously. The Agency stands ready to provide those services and it is only viewed from the plaintiff’s subjective perspective that the gratuitous services might be said to be necessary in an esoteric sense – to avoid the risk of a breakdown in his marriage.
  5. [280]
    Further, the plaintiff’s interpretation of “necessary” would allow for the undermining of the Scheme which is designed to relieve CTP insurers of the cost of the treatment, care and support of Scheme participants. The plaintiff’s interpretation would allow a participant to side-step the carefully worded “preservation notice” regime and would allow for lump sum payments to be made to those who are not capable of properly managing their treatment, care and support for their lifetime.
  6. [281]
    On the plaintiff’s interpretation of “necessary”, if a Scheme participant were to contend that his or her marriage (or other close and supportive) relationship would be jeopardised by the provision to the participant of any Agency-funded care, such a participant could make a claim in damages against a CTP insurer for gratuitous care for the whole of his or her care and support needs. The legislation cannot be taken to have contemplated such a result.
  7. [282]
    I acknowledge that, in some circumstances, it might objectively be considered necessary that services which the Agency stands ready to provide via funded carers be provided gratuitously to a plaintiff by a family member (see for example the circumstances discussed in [113] above). But I do not consider this to be such a case.
  8. [283]
    I acknowledge that this outcome may seem harsh to the plaintiff but I am compelled to again observe that, had he not withdrawn his preservation notice, he could have received lump sum damages for his past and future care and support[39] and thereafter the balance between paid and unpaid care would have been a matter for him, in consultation with his wife.
  9. [284]
    In reaching the conclusion that gratuitous services which the Agency stood ready, and stands ready, to provide are not “necessary” I have also borne in mind that the plaintiff will remain a participant in the Scheme. Thus considerations about the unfairness of benefitting a defendant/their insurer/the community at large, at the expense of burdening an “ordinary decent human being”, such as an injured plaintiff’s spouse, with responsibility for an injured person’s care,[40] if no award of damages for gratuitous care were made, are not relevant here. The cost of the plaintiff’s care and support will be met by the Scheme (an insurer) and in that sense the community at large, including the defendant, if the plaintiff chooses to accept the funded care and support.

Wilson v McLeay damages

  1. [285]
    Some of the plaintiff’s claim for past gratuitous care relates to care provided by family members to him while he was in hospital. He submits that that aspect of his claim falls within the category of “Wilson v McLeay damages” (Wilson v McLeay (1961) 106 CLR 523).
  2. [286]
    He relies upon McMeekin J’s explanation of Wilson v McLeay damages in McAndrew v AAI Limited [2013] QSC 290 at [131] –

The general principle that applies is that the visits need to be reasonably necessary for alleviation of the plaintiff’s condition. Visits prompted merely by love and affection are not compensable.

  1. [287]
    The plaintiff submits that, beyond just being there, members of his family provided him with “emotional and other kinds of support which were necessary for [his] wellbeing”. The plaintiff’s written submissions continued –
    1. [107]The Plaintiff’s evidence was that during the period of hospitalisation his family “was incredibly supportive throughout”, especially Mrs Walters who had been very engaged in his rehabilitation … [T]he Plaintiff also attested to the therapeutic benefits he derived from his family’s care and support made [sic] a “huge difference” and gave him “a reason to keep going” whilst in the dark recesses of depression. This was extremely important, particularly given that he received no psychological support at the hospital for the first five months, notwithstanding the deterioration in his mental health.
    2. [108]It is important to note that Wilson v McLeay damages are not abolished by s.59(3)(b) of the CLA. That section requires a court, in assessing damages for gratuitous care, to take into account (emphasis in original):

periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in an hospital or other institution.”

  1. [109]
    It is submitted that this sub-section would only be engaged when a plaintiff’s need for services are being reasonably met by hospital staff … [T]hat is not the case here. The attendance by the Plaintiff’s family during his lengthy period of hospitalisation was crucial to his mental well-being. In essence, the family provided the Plaintiff with therapeutic benefits which the hospital staff were evidently not providing.
  1. [288]
    In Wilson v McLeay, Taylor J allowed an amount for the expenses incurred by the almost 22-year-old plaintiff’s parents to travel from Queensland to Sydney to be at her bedside whilst she was treated for serious injuries and to escort her home. In determining to allow such an amount, his Honour said that he considered that the necessity for the expenditure should be taken into account in assessing general damages. His Honour said at 527-8 –

… a plaintiff’s entitlement to damages accrues when he is injured by the negligence of the defendant. And if an assessment of damages were then to be made it would, it seems to me, be proper, in a case such as the present, to make some allowance to permit the plaintiff to provide for the reasonable attendance of her parents. She was in hospital many hundreds of miles from home, her injuries were serious and such as to call for such comfort and consolation as her parents’ reasonable attention could provide. Of course, if at the trial it appeared that no expenditure for that purpose had, in fact, been incurred no allowance should be made. But that is not the position in the present case and the assessment of general damages should include some allowance on this account. I am fortified in this conclusion by the reasoning in the unreported case of Morgan v Hosking [(1960) 104 CLR 667 (note)] … That was a case where a young girl, fifteen years of age, was so badly injured that she was left “an inert paralysed wreck” and it was likely that the constant and expert nursing which she needed would require her confinement to hospital for the rest of her life. In dealing with the question of damages this Court considered that “she should be in a position to pay the expenses of the constant visits of her parents which as the evidence shows, mean so much to her”. Her parents’ visits were no doubt considered to constitute part of the care and attention rendered necessary by the consequences of the defendant’s negligence. The present case, though it does not present the tragic features of that case, is somewhat special and, according to the medical evidence, it was of some importance in the alleviation of her condition that she should have the comfort and assistance of her parents. Having listened to the evidence, I do not think the claim under this head should be quantified merely by taking the precise amount of the expenditure incurred; I think it will be sufficient to add to the amounts already specified the sum of

£200 … [The plaintiff had claimed £267, 5s. 0d.]

  1. [289]
    I note McMeekin J’s approach in McAndrew v AAI Limited was as follows –
  1. [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.
  2. [131][as above]
  3. [132]There is very limited evidence here to support the contention that the visits were reasonably necessary to alleviate the plaintiff’s condition.
  4. [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].
  5. [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.
  6. [135]It seems to me that all I can do is assess a very modest sum and I will allow $1000.
  1. [290]
    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.

  1. [291]
    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.
  2. [292]
    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. …

  1. [293]
    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.
  2. [294]
    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”.
  3. [295]
    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.
  4. [296]
    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”.
  5. [297]
    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.
  6. [298]
    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

  1. [299]
    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.
  2. [300]
    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

  1. [301]
    I will deal now with the plaintiff’s specific claims.
  2. [302]
    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.
  3. [303]
    QBE created its own schedule in response.
  4. [304]
    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.
  5. [305]
    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 preaccident 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

  1. [306]
    The plaintiff claims $1,715,561.58 in future gratuitous care.
  2. [307]
    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.
  1. [308]
    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.
  1. [309]
    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.

 

Footnotes

[1] See the definition of insurer in Schedule 1 to the NIISQA: “insurer means an insurer under the statutory insurance scheme under the [Motor Accident Insurance Act 1994]”.

[2] Under section 43(1): “The agency may apply to the court for an order preventing the participant from being awarded treatment, care and support damages under a final judgment of a court or a binding settlement.”

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at 381 [69].

[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).

[10] Ibid at 162-3 [64] (Edelman J).

[11] Ibid quoting Arnold v Britton [2015] AC 1619 at 1628 [18].

[12] In each case, the clause in the bill was reproduced identically in the Act, with the exception of the cut off for contributory negligence in clause/section 42.

[13] Or where the participant’s contributory negligence is less than 50 per cent.

[14] This submission was made in response to the plaintiff’s submission that (as I understood it) – 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.

[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.

[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.

[19] It is difficult to express my view of the meaning of the phrase “excluded treatment, care and support” in 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.

[20] Either by way of section 32 of the AIA or by a commonsense reading of the section.

[21] As elaborated upon by sections 9(2) and 9(3) NIISQA.

[22] Emphasis added.

[23] Emphasis added.

[24] These section 25(2) matters include the treatment, care and support which the participant considers necessary and reasonable as a result of their injury; their abilities and limitations; and their goals.

[25] Daly v Thiering (2013) 249 CLR 381 at 392 [33] (emphasis added).

[26] Emphasis added.

[27] Beyond symmetry with section 30, “any other” treatment, care or support may also include treatment, care or support which might fall outside the matters listed in section 8(a) to (j) – although I am not as confident of that interpretation of it.

[28] See Shaw v Menzies and Anor [2011] QCA 197 at [74].

[29] And any administrative burden or other constraint it might be thought to impose.

[30] I draw the inference that the Scheme anticipates that most eligible plaintiffs will preserve their common 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.

[31] But of course, that is not the whole answer to the question whether QBE is liable in damages for the expense.

[32] There is no evidence to suggest that the stairs have been replaced for an accident-related purpose. At page 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.

[33] I note the evidence of the plaintiff’s occupational therapist (in her report dated 3 July 2020) that the plaintiff 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.

[34] Griffiths v Kerkemeyer (1977) 139 CLR 161.

[35] Obviously on the assumption that his interpretation of “excluded treatment, care and support” is the correct one.

[36] At [8].

[37] LexisNexis Butterworths, 2016, [59.9].

[38] Citing Clement v Backo [2006] QSC 129.

[39] And treatment.

[40] See Griffiths v Kerkemeyer (1977) 139 CLR 161 at 171 per Stephen J, quoting Watson v Port of London Authority [1969] 1 Lloyd’s Rep. 95 at 102, per Megaw LJ.

Close

Editorial Notes

  • Published Case Name:

    Walters v Roche & Anor

  • Shortened Case Name:

    Walters v Roche

  • MNC:

    [2020] QSC 319

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    20 Oct 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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