Rogers v Suncorp Metway Insurance Limited
[2013] QSC 230
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- Notable Unreported Decision
- Rogers v Suncorp Metway Insurance Limited[2013] QSC 230
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Rogers v Suncorp Metway Insurance Limited[2013] QSC 230
Rogers v Suncorp Metway Insurance Limited[2013] QSC 230
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Originating application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 5 September 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 June and 11 July 2013 |
JUDGE: | Boddice J |
ORDER: | I shall hear the parties as to the form of orders and as to costs. |
CATCHWORDS: | INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – where the applicant suffered a severe traumatic brain injury due to a motor vehicle accident – where the applicant makes application against the CTP insurer for the construction of a purpose built residence with associated attendant care and services – where the applicant has significant behavioural issues and places himself and others at risk of physical or other harm – where there is differing opinion as to whether the applicant should be placed in a shared or one-on-one facility – whether the rehabilitation services presently provided for the applicant are reasonable and appropriate Motor Accident Insurance Act 1994 (Qld), s 4, s 51(5)(b) Aldridge v Alliance Australia Insurance Limited [2009] QSC 257, followed Re Walker (1995) 22 MVR 245, cited |
COUNSEL: | M Grant-Taylor QC, with S J Williams, for the applicant R J Douglas QC for the respondent |
SOLICITORS: | Schultz Toomey O'Brien for the applicant Jensen McConaghy for the respondent |
- The applicant, a 23 year old with an “extremely severe” traumatic brain injury following a motor vehicle accident, makes application pursuant to s 51(5)(b) of the Motor Accident Insurance Act 1994 (Qld) (“the Act”) for the provision of certain rehabilitation services by the respondent, the CTP insurer of the motor vehicle.
- There is no dispute the applicant requires rehabilitation services. What is in issue is whether the rehabilitation services presently being provided for the applicant are reasonable and appropriate.
Background
- The applicant was born on 25 October 1989. He sustained severe personal injuries on 20 September 2011 when the motor vehicle in which he was travelling as a passenger collided with another motor vehicle. The most prominent of his injuries was a traumatic brain injury which has left him with profound mobility, cognition, visual and communication impairments. He also has developed a severe behavioural impairment consistent with a frontal lobe disorder.
- The applicant remained an inpatient in Princess Alexandra Hospital for almost 12 months following the accident. He was then transferred to Gympie Hospital, where he remained as an inpatient until April this year. Upon discharge, the applicant was accommodated in shared accommodation provided by a service provider, BE Lifestyle Retreats. This accommodation was arranged pursuant to an interim order of this Court, in response to this application.
- On 3 June 2013, the applicant was removed from that shared accommodation and admitted to the Nambour Hospital. His admission followed a serious incident involving another resident of the shared accommodation. The applicant was discharged the following day, and accommodated by the same service provider in another facility, on a one-on-one basis.
Amended application
- By a further amended originating application, filed on 11 July 2013, the applicant seeks a decision in respect of the provision of rehabilitation services by way of:
- construction of a purpose built residence for the applicant with associated attendant care and services;
- provision of care and services in an appropriate facility pending construction of that residence (with funding for weekend home visits);
- provision of a suitable motor vehicle; and
- provision and/or facilitation of access to sex workers.
- At the hearing, the respondent indicated a willingness to continue to fund the applicant’s care in an appropriate facility provided by the service provider until determination of his claim. The respondent would also fund the provision of, and/or facilitate access to, sex workers on specified conditions. However, the respondent opposed any order for the construction of a purpose built residence, or for provision of a motor vehicle at this stage on the basis that neither is reasonable nor appropriate on the current medical evidence.
Applicable principles
- The Act imposes an obligation on an insurer to provide rehabilitation services that are reasonable and appropriate in the circumstances. “Rehabilitation” refers to measures to restore and optimise, as far as reasonably possible, the claimant’s physical or mental functions and quality of life.[1]
- One of the express objects of the Act is “to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents”.[2] Accordingly, the obligation to provide rehabilitation services should be construed beneficially, from the perspective of claimants.[3]
- The relevant principles, when determining applications of this kind, were usefully summarised by Applegarth J in Aldridge v Alliance Australia Insurance Limited[4]:
“[46]The application is concerned with the applicant’s ‘rehabilitation’ and the ‘reasonable and appropriate rehabilitation services’ to be provided by the respondent insurer, not her long-term, optimum accommodation needs, and how she might choose to satisfy them out of the proceeds of the sale of her home and an award of damages. The respondent’s obligation under s 51 of the Act is to provide ‘reasonable and appropriate’ rehabilitation services, not the applicant’s long-term housing needs, a substantial part of which would have existed had she not been injured in June 2008.
[47]The insurer’s obligation under s 51(3) of the Act to ensure that ‘reasonable and appropriate rehabilitation services are made available to the claimant’ is to be construed in accordance with the remedial intent of the legislation, and not constrained so that services will only be found to be reasonable and appropriate if they and their cost match a head of damages in a personal injuries action. The requirement that the services be ‘reasonable and appropriate’ and directed towards rehabilitation governs the insurer’s obligation under s 51(3). The expected outcome of the personal injuries action is a relevant consideration in deciding what is ‘reasonable and appropriate’ in the circumstances of the case. However, a distinction exists under the Act between ‘rehabilitation’ which is concerned with measures to optimise, as far reasonably possible, the quality of life of a claimant, and the assessment of damages in a legal proceeding.
[48]Decisions under s 51(5)(b) are made in the shadow of the future trial or settlement of a damages claim. In deciding what rehabilitation services are ‘reasonable and appropriate’ I should have regard to the applicant’s personal injuries claim and the likely date of trial at which she will receive an award of damages, the purpose of which is to restore her to her pre-accident condition and satisfy her accident-caused needs, so far as money can. However, it would be an error to treat rehabilitation as necessarily a short-term process, and the rehabilitation services to which a claimant is entitled under the Act as necessarily limited to short-term measures that are designed to see the claimant through until the trial of the action or its settlement, at which point the claimant’s future needs are funded from a damages payment. To take a simple example, a specially-modified car or a powered wheelchair may be reasonably necessary for a claimant’s rehabilitation, so as to optimise, as far as reasonably possible, the quality of the claimant’s life, and also last for years after the trial.
[49]Although the insurer’s obligation under s 51(3) is, in a sense, separate from and additional to, its obligation to indemnify under the policy of insurance that is a schedule to the Act, the determination of what is ‘reasonable and appropriate’ occurs in the shadow cast by the common law claim for damages to which the insurer has admitted liability. The expectation is that at a trial or earlier resolution of that claim, the applicant will receive a damages award that will seek to restore her, so far as money is able, to her pre-accident condition, and satisfy, so far as money can, needs caused by the accident. Short-term measures may be reasonable and appropriate if they enable the applicant to restore, as far as reasonably possible, physical or mental functions, and to optimise, as far as reasonably possible, the quality of her life. The further restoration of those functions and the optimisation of the quality of her life can also be addressed by choices the claimant makes about how to use her own funds, including a damages award.
[50]Understandably, the evidence of witnesses and submissions sometimes are cast in terms of ‘short-term solutions’ and ‘long-term solutions’. However, the Act does not use these or similar terms. In some circumstances, short-term solutions will be reasonable and appropriate. In other circumstances, they will not ‘optimise, as far as reasonably possible, the quality of life of a person who suffers the loss or impairment of physical or mental functions through personal injury’. In some cases, the provision of a particular service will address both a short-term and a long-term need that must be satisfied for a claimant’s rehabilitation.”
(Citations omitted)
Evidence
- The parties placed before the Court numerous medical reports and other records. They reveal that as a consequence of his brain injury, the applicant engages in temperamental and inappropriate behaviours leading to strained relationships with hospital staff, when he was admitted to those facilities, and his carers and other residents whilst accommodated in shared accommodation. His most recent behaviours have meant the service provider considers the only appropriate form of accommodation at present is one-on-one care in a facility which does not have other residents.
- The applicant’s Litigation Guardian does not consider that type of accommodation the most appropriate form of accommodation for the applicant. Initially, it was contended the purpose built residence should allow for the applicant’s Litigation Guardian, and her extended family, to also reside in that residence. The applicant’s Litigation Guardian has acted as his mother since he was extremely young, and obviously has a loving and caring relationship with the applicant. However, the hearing was conducted on the basis the purpose built residence now sought is one in which the applicant would reside, with care services being provided, without the Litigation Guardian and her extended family living in that residence.
- As a consequence of the manner in which the application was initially to be pursued, many of the medical reports address the appropriateness of the applicant residing in a purpose built residence with his extended family, including young children. The material reveals there were significant concerns as to the safety of minors in such an environment. There were also significant concerns as to the potential for the applicant to be subject to exploitation or have access to illicit substances.
- Whilst those reports must now be read in light of the amended position, it does not follow that aspects of those reports are not relevant to a determination of the application. In particular, those reports reveal the applicant’s Litigation Guardian has a good rapport with the applicant, and has been used by carers to date to calm the applicant down when he has engaged in inappropriate behaviour. Further, the applicant’s limited level of insight into his condition renders important a familiar and stable physical environment.
- The reports also reveal that it is to be expected the applicant will, with ongoing rehabilitation, experience further recovery in his cognitive, behavioural and physical deficits, although any recovery will still leave him with significant impairments of his physical and mental functions. Those impairments will be exacerbated by ongoing behavioural issues as a consequence of his brain injury.
- The behavioural issues are significant. The applicant exhibits aggression towards others. He also behaves inappropriately, including in a sexualised way. These behaviours have, on occasions, placed others at physical risk of harm. Those risks led to the applicant being removed from the shared facility, and housed in a one-on-one facility.
- The applicant’s ongoing behavioural issues give rise to a difference of opinion as to the appropriate care model now, and in the future. Dr Buckley opines the applicant’s behavioural impairments mean the “most unpredictable environment of all” to place him in is one where multiple brain injured people live together, each with their own unpredictable behavioural impairments. Such a group home is almost certain to be a chaotic environment and to be highly damaging to the structural stability required by the applicant in order to minimise behavioural disturbance.
- Evidence was placed before the Court to indicate the applicant finds a shared facility demoralising. Dr Markou opined the ability of the applicant to reside away from institutional care is one of the best possibilities for him to live in as independent a fashion as ever possible.
- That type of facility is supported by the applicant’s rehabilitation co-ordinator, Ms Scudamore, who opined:[5]
“… the most appropriate long term solution for the Applicant’s housing needs is to have him reside in his own home where he can live with his extended family. In that environment, it will provide a physical and social environment which will optimise, so far as is reasonably possible, the quality of life that the Applicant will be able to enjoy, notwithstanding the significant injuries that he suffered in the accident that occurred on 20 September 2011.”
A similar view was expressed by Dr Yeo, the applicant’s rehabilitation physician.
- By contrast, Dr Hazleton opines that placement of the applicant in a shared facility has significant advantages. A shared facility has trained staff in sufficient numbers to be able to cope with behavioural difficulties or excesses, thereby limiting the exposure of carers and fellow residents to aggressive and inappropriate behaviour. Further, a shared facility provides necessary safety and psychological support for the applicant to maintain behaviour, function and consistency in his environment.
- On this latter aspect, Dr Hazleton opines:[6]
“Since moving to BE Lifestyle, Mr Rogers has settled down considerably with the implementation of a behaviour management program. The staff at BE Lifestyle have implemented a suitable behaviour management program for Mr Rogers. It is only with successful implementation of a behaviour management program which is consistent will his functioning and social participation improve. It is important to realise that this will require a long-term approach to this issue.”
- Dr Hazleton also opines that a loss of structure is likely to be detrimental to the applicant’s long-term future. Even moving to alternative accommodation on weekends raises concerns due to an inability to provide stable support workers and the risk of relapse in his behavioural management and exposure to illicit substances.
- Dr Eckerman also opines that accommodation in a shared facility will give the applicant the opportunity for socialisation, although the applicant’s injuries mean it will be difficult for the applicant to take advantage of that opportunity.
Submissions
- The applicant submits the only reasonable and appropriate rehabilitation services by way of accommodation is the provision of a residence, purpose built for the applicant. Accommodation in a shared facility places fellow residents at an unacceptable risk of physical or other harm, and, consequently, also places the applicant at risk of harm in the event a fellow resident retaliated against the applicant’s aggressive or inappropriate behaviour.
- The applicant relies upon an incident on 3 June 2013, which resulted in the applicant being removed from the shared facility, as evidence that his behavioural problems are a real and significant impediment to any shared facility being an appropriate care model, either now or in the long-term. Similar behavioural issues resulted in the applicant’s admission to the Gympie Hospital, and contributed to his being discharged from that hospital into a shared care facility.
- The applicant’s Litigation Guardian also raises concerns about the suitability of a shared facility. The applicant has been significantly agitated by interaction with other residents. Staff members, in the past, have also called on her services to calm the applicant down.
- The respondent submits the present accommodation and care services being provided to the applicant are reasonable and appropriate in the circumstances. Until determination of any further improvement in the applicant’s condition, it cannot be said the provision of a purpose built residence will be the most appropriate accommodation for the applicant. Further, any concerns as to the applicant’s ongoing aggressive or inappropriate behaviour are adequately being met by his current placement in a one-on-one facility. The respondent also points to recent indications of a willingness on the part of the applicant to again be housed in a shared facility.
Discussion
- There is no doubt the applicant provides significant challenges in terms of his accommodation and care needs. Those challenges include aggressive behaviour towards staff members and fellow residents. That behaviour has been of such a magnitude that it has rendered the applicant an inappropriate candidate for continued accommodation as an inpatient in hospital and, subsequently, as a resident in a shared facility.
- There is also no doubt the applicant’s long-term accommodation needs will ultimately depend upon the extent of any further improvement in his mental and physical impairments, together with his responses to ongoing rehabilitation, particularly in respect of his behavioural impairments.
- Any assessment of what constitutes reasonable and appropriate rehabilitation services, in terms of accommodation and care services, must be viewed against the clear acknowledgement of the medical practitioners that there is likely to be some improvement in the applicant’s day-to-day functioning in the future. Whilst the extent of that improvement is impossible to presently gauge, it is a relevant factor when determining whether the accommodation and care services presently being provided by the respondent by way of rehabilitation constitute reasonable and appropriate rehabilitation services within its obligation under s 51 of the Act.
- A further relevant factor is the consequences, to the applicant and others, of the type of accommodation facility provided by way of rehabilitation. Whilst the provision of accommodation by way of a shared facility places fellow residents potentially at significant risk, the provision of a purpose-built residence may place the applicant in an environment which, if Dr Hazleton’s opinion is to be accepted, may not be conducive for his long-term rehabilitation.
- The applicant contended little weight should be placed on Dr Hazleton’s opinion, not only because it is expressed inappropriately, but also because the applicant could, in a purpose built residence, have others reside with him. However, there is a significant risk in such a scenario. The residence would be the applicant’s residence. The applicant’s Litigation Guardian would therefore determine who could reside with the applicant. That could potentially place the applicant at significant risk of exploitation, or of access to illicit substances. It could also place other residents at significant risk as the available staff would be less than in a shared facility.
- By contrast, placement in a shared facility would result in an environment where the service provider has the final determination as to who else resides in the facility. The higher ratio of staff available would ensure the safety of other residents.
- Ultimately, the touchstone of any determination of this application is the question of reasonableness, and appropriateness. Having regard to the available evidence, I am not satisfied it is reasonable or appropriate for the applicant to be accommodated in his own purpose-built residence. I am, however, satisfied the accommodation and care services presently being funded by the respondent are reasonable and appropriate rehabilitation services.
- Those services include an agreement to fund accommodation and care, in a one-on-one facility, at significant weekly cost. The accommodation and care provided pursuant to that agreement is working effectively to date. It may also be possible for the applicant to return to a shared facility in the future.
- Whilst the particular premises in which the applicant is presently housed will not be available in the future, material recently provided to the court (by agreement of the parties) indicates similar, suitable accommodation, on a one-on-one basis, will be provided by the service provider at a facility at Peregian Beach.
- The applicant contended uncertainty surrounding the availability of suitable accommodation provides a compelling reason why reasonable and appropriate rehabilitation services require the provision of a purpose-built residence, as it ensured the applicant had certainty by way of accommodation in the future. However, I am not satisfied the provision of purpose built accommodation is reasonable or appropriate on the present material.
Conclusion
- The accommodation and care services being provided by the respondent by way of rehabilitation are reasonable and appropriate services at the present time.
- It was agreed at the hearing that should I reach that conclusion, there was no present basis to order the provision of a suitable motor vehicle by way of rehabilitation expenses. In that event, the provision of taxi vouchers was reasonable and appropriate rehabilitation services.
- As the respondent has undertaken to meet the costs of the present accommodation and care services, and has indicated a willingness to fund and facilitate the provision of services from a sex worker, and to provide ongoing travel expenses through the provision of taxi vouchers, there appears no need for the Court to make any formal orders by way of relief in respect of the matters in dispute on the application.
- As the question of ongoing rehabilitation expenses is likely to need to be revisited in the future, depending on any improvement in the applicant’s functions, I propose to adjourn the application to a date to be fixed. However, I shall give the parties an opportunity to make further submissions in respect of the appropriate orders and as to the costs of the application.
Footnotes
[1] Motor Accident Insurance Act 1994 (Qld), s 4.
[2] Motor Accident Insurance Act 1994 (Qld), s 3(f).
[3] Re Walker (1995) 22 MVR 245 at 247.
[4] [2009] QSC 257, [46]-[50].
[5] Affidavit of Wendy Scudamore sworn 30 April 2013, paragraph 7.
[6] Affidavit of Ronald Hazleton sworn 22 May 2013, page 83.