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McIntyre v AAI Limited[2021] QSC 251

McIntyre v AAI Limited[2021] QSC 251

SUPREME COURT OF QUEENSLAND

CITATION:

McIntyre & Anor v AAI Limited [2021] QSC 251

PARTIES:

MARK McINTYRE

(first applicant)

SU KIM HO

(second applicant)

v

AAI LIMITED

ABN 48 005 297 807

(respondent)

FILE NO/S:

BS No 13125 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

8 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2021

JUDGE:

Davis J

ORDER:

  1. In relation to the application by the first applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 15, 16, 17, 18, 20, and 24 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) The total rehabilitation services claimed in each of items 13, 19, and 26 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

  1. In relation to the application by the second applicant, it is declared that:

(a) The rehabilitation services claimed in each of items 1, 2, 3, 6, 7, 8, 12, 13, 16, 17, 18, and 19 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and

(b) As to item 15 as identified in the schedule which is Exhibit 2, referrals to a general practitioner, a psychiatrist, and a pain physician and subsequent treatment are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.

  1. The parties have liberty to apply for further orders necessary for the provision of the rehabilitation services ordered to be provided.
  2. The applicants are to file and serve written submissions and any material on costs by 4:00pm on 15 October 2021.
  3. The respondent is to file and serve written submissions and any material on costs by 4:00pm on 22 October 2021.
  4. The applicants are to file and serve any reply submissions on costs by 4:00pm on 29 October 2021.
  5. The parties are at liberty to make application to make oral submissions on costs.
  6. If no application to be heard orally on the question of costs is filed and served by 4:00pm on 3 November 2021, the issue of costs will be determined on the written submissions and material (if any) filed by the parties.

CATCHWORDS:

MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND THE LIKE SCHEMES – DRIVER, OWNER OR STATUTORY AGENT OF OWNER – INSURED PERSON – where the applicants were injured in a motor vehicle accident – where the respondent is the third party insurer – where the applicants seek orders for the provision of rehabilitation services – where s 51 of the Motor Accident Insurance Act 1994 requires the insurer to provide “reasonable and appropriate” rehabilitation services – where the insurer agreed to provide some services but not others – whether the services claimed are reasonable and appropriate

Civil Liability Act 2003

Motor Accident Insurance Act 1994, s 4, s 51, s 65

Aldridge v Allianz Australia Insurance Limited (2009) 53 MVR 396, followed

Lee v Lee (2019) 266 CLR 129, cited

Lee v RACQ Insurance Ltd [2015] QSC 120, followed

Massingham v AAMI Insurance Ltd (2007) 48 MVR 235, followed

McMullen v Suhr (1998) 2 Qd R 406, followed

Re Walker (1995) 22 MVR 245, followed

COUNSEL:

M Grant-Taylor QC with C George for the applicants

T Matthews QC for the respondent

SOLICITORS:

VBR Lawyers for the applicants

Jensen McConaghy Lawyers for the respondent

  1. [1]
    The applicants, who were injured in a motor vehicle accident, make application under s 51(5)(b) of the Motor Accident Insurance Act 1994 (MAIA) for orders that particular rehabilitation services be made available to them by the third-party insurer, AAI Limited (AAI).  AAI, who is the respondent to the application, accepts that it should provide some of the services, but says that it should not be ordered to provide many which are claimed.

Background

  1. [2]
    The applicants are husband and wife.  Mr McIntyre is now 56 years of age.  He was nearly 53 when injured.  Ms Ho is now 48 years of age.  She was 45 years old when injured.  The applicants have young twin sons.  Prior to being injured, Mr McIntyre was gainfully employed as a commercial diver and supervisor on off-shore gas and oil projects while Ms Ho was responsible for household and parenting duties.

Accident

  1. [3]
    On 28 June 2018, the applicants were involved in a high speed, head-on motor vehicle accident on the Bruce Highway at Kolonga near Gin Gin.  The applicants sustained severe injuries and the applicants’ young twin sons were also injured in the accident.

Mr McIntyre’s injuries

  1. [4]
    Mr McIntyre suffered the following injuries in the accident:[1]
    1. (a)
      Fractured sternum;
    2. (b)
      Fractured lumbar spine at L2;
    3. (c)
      Fractured right femur;
    4. (d)
      Fractured right heel;
    5. (e)
      Fractured right foot;
    6. (f)
      Fractured left foot;
    7. (g)
      Fractured ribs;
    8. (h)
      Binaural tinnitus;
    9. (i)
      Brain injury.
  2. [5]
    As a result of his injuries, Mr McIntyre experiences ongoing back pain when sitting, standing and walking.[2]  He has a low tolerance for these functions[3] and uses mobility aids including a single-point walking stick for walking beyond 100 metres on uneven terrain[4] and a wheelchair for mobility over longer distances.[5]  He suffers pain and fatigue through his right foot when standing and at times is unable to bear weight on the right lower limb.[6]  He therefore uses a swivel chair for showering.[7]  He finds it difficult to transfer from a seated to a standing position[8] and the pain in his right foot is aggravated when traversing stairs.  Mr McIntyre is unable to traverse stairs whilst carrying load due to his reliance upon the handrail or walking stick for stability.[9]  Mr McIntyre has not been medically cleared to return to driving a motor vehicle and he is reliant upon others for transport.[10]  He reports ongoing cognitive dysfunction post-accident in the form of high-level language difficulties,[11] lowered attention to detail, difficulty completing non-routine tasks, difficulty with memory and reliance upon the use of an alarm to assist him in remembering tasks, difficulty retaining new information, and difficulty processing visual cues into action.[12]  Due to his injuries Mr McIntyre is limited in his ability to manage his day-to-day affairs,[13] to contribute to domestic and family tasks such as preparation of meals or driving the children to school,[14] and to participate in family leisure activities such as attending his sons’ cricket matches.[15]

Ms Ho’s injuries

  1. [6]
    Ms Ho suffered the following injuries in the accident:[16]
    1. (a)
      Injury to lumbar spine L2 with compression fracture;
    2. (b)
      Rib fractures;
    3. (c)
      Neck injury;
    4. (d)
      Left shoulder soft tissue injury;[17]
    5. (e)
      Psychological or psychiatric injury with anxiety and traffic phobia.
    6. (f)
      Assessed as suffering 24% whole person impairment as a result of the injuries.[18]
  2. [7]
    Ms Ho’s injuries cause her to experience ongoing spinal pain, extending from the cervical spine to the lumbar spine,[19] ongoing pain in the lower back and sacroiliac joint which extends into her right leg,[20] deep pain in the left shoulder,[21] residual neck pain, and intermittent symptoms of paraesthesia in both upper limbs.[22] Her tolerance to sitting is limited to between 30 and 60 minutes and is dependent upon the type of chair being used.[23]  Ms Ho’s standing tolerance is limited to 45 minutes and her walking tolerance is limited to 2 kilometres.[24]  She cannot perform any work with the left arm above shoulder height and has difficulty performing heavy manual tasks.[25]  She reports experiencing ongoing cognitive changes with thinking and persistent fogginess[26] as well as suffering ongoing psychological distress, post-traumatic stress disorder, anxiety, sleep disturbance, nightmares and poor concentration.[27]  She takes medication to address the pain of her injuries.  As a result of her injuries, Ms Ho is limited in her ability to contribute to domestic tasks and effectively care for the children.[28]  Further, the ongoing cognitive changes she complains of impact upon her daily functions and her ability to manage the family property portfolio and business.[29]

Liability

  1. [8]
    AAI has admitted liability and there are no allegations of contributory negligence.

Legal principles

  1. [9]
    As already observed, the applicants’ claims are made under s 51 of the MAIA.  Section 4 of the MAIA defines its objects.  As well as maintaining a compulsory third party scheme of motor vehicle insurance, a stated object of the MAIA is:

“(h) to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents;”

  1. [10]
    “Rehabilitation” is defined in the MAIA as:

rehabilitation means the use of medical, psychological, physical, social, educational and vocational measures (individually or in combination)—

  1. (a)
    to restore, as far as reasonably possible, physical or mental functions lost or impaired through personal injury; and
  1. (b)
    to 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.”
  1. [11]
    The objective of promoting and encouraging rehabilitation of persons injured in motor vehicle accidents is advanced by s 51.  Relevantly, that section provides:

51 Obligation to provide rehabilitation services

  1. (1)
    An insurer may make rehabilitation services available to a claimant on the insurer’s own initiative or at the claimant’s request.
  1. (2)
    An insurer that makes rehabilitation services available to a claimant before admitting or denying liability on the claim must not be taken, for that reason, to have admitted liability.
  1. (3)
    Once liability has been admitted on a claim, or the insurer has agreed to fund rehabilitation services without making an admission of liability, the insurer must, at the claimant’s request, ensure that reasonable and appropriate rehabilitation services are made available to the claimant. …
  1. (4)
    If the insurer intends to ask the court to take the cost of rehabilitation services into account in the assessment of damages, the insurer must, before providing the rehabilitation services, give the claimant a written estimate of the cost of the rehabilitation services and a statement explaining how, and to what extent, the assessment of damages is likely to be affected by the provision of the rehabilitation services.
  1. (5)
    The claimant may, if not satisfied that the rehabilitation services made available under this section are reasonable and appropriate—
  1. (a)
    apply to the commission to appoint a mediator to help resolve the questions between the claimant and the insurer; or
  1. (b)
    apply to the court to decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate. …

(5D) On an application under subsection (5)(b), the court may decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate and make consequential orders and directions. …

  1. (9)
    The cost to the insurer of providing rehabilitation services under this section is to be taken into account in the assessment of damages on the claim if (and only if) the insurer gave a statement to the claimant, as required under subsection (4), explaining how and to what extent the assessment of damages was likely to be affected by the provision of the rehabilitation services. …”
  1. [12]
    Although s 51 refers to the provision of rehabilitation “services”, the definition of “rehabilitation”[30] clearly contemplates not only the provision of services but also the provision of goods.[31]  The scope of s 51 is very wide.  In Aldridge v Allianz Australia Insurance Limited,[32] for example, the court ordered the purchase of a house for a claimant.
  2. [13]
    Here, as already observed, full liability has been admitted on the claims of both Mr McIntyre and Ms Ho.  That admission engages s 51(3) and casts upon AAI the obligation to “ensure that reasonable and appropriate rehabilitation services are made available to [the applicants]”.[33]  The present application is made under s 51(5)(b) so the court’s function is to determine “what rehabilitation services are in the circumstances of the case, reasonable and appropriate”. 
  3. [14]
    Section 65 of the MAIA provides that insurers, such as AAI, are bound by the “industry deed”.  The industry deed may:

“(e) provide direction and guidance for licensed insurers about initiating, managing, monitoring, and measuring the effectiveness of, the provision of rehabilitation services for injured claimants;”[34]

  1. [15]
    The industry deed provides:

CTP insurer

The CTP insurer may make rehabilitation services available to the claimant on the insurer’s own initiative or at the claimant’s request. Once liability has been admitted on a claim, or the insurer has agreed to fund rehabilitation services without an admission of liability, the insurer must, at the claimant’s request, ensure that reasonable and appropriate rehabilitation services are made available.

It is not the insurer’s role to develop treatment and rehabilitation plans, but to facilitate the rehabilitation process. The insurer must ensure that its procedures for dealing with rehabilitation services and requests are efficient and cost effective.

There is an expectation that insurers will undertake their own quality assurance activities to ensure compliance with the Rehabilitation Standards.”[35] (emphasis added)

  1. [16]
    A citizen who is injured in a motor vehicle accident has as his or her remedy a claim in damages which are compensatory.  The MAIA maintains that primary position but modifies those rights and regulates how they may be pursued.[36]
  2. [17]
    Section 51 of the MAIA establishes a regime which is both separate from, but linked to, the damages claim.  As Moynihan J explained in Re Walker,[37] which was apparently the first application brought under s 51, orders under s 51 are “interim” in nature.  Any money expended by the insurer can be offset against any damages claim.
  3. [18]
    As observed in Re Walker, s 51(5) ought to be construed and applied beneficially to a claimant.  As s 51 is remedial and s 51(9) allows for the recovery of expenditure in the calculation of the final damages claim, the obligation upon an insurer under s 51(3) should not be read narrowly.[38]
  4. [19]
    By force of s 65 and the industry deed, the development of treatment and rehabilitation plans is for a claimant, no doubt in consultation with his or her chosen doctors.[39]  It is the insurer’s role to facilitate the rehabilitation process which has been put in place.
  5. [20]
    In Aldridge v Allianz Australia Insurance Limited,[40] Applegarth J heard an application by a plaintiff left paraplegic as a result of a motor vehicle accident.  She sought orders under s 51 that the insurer purchase a wheelchair friendly house for her and then receive the proceeds of the sale of the plaintiff’s existing home in due course.  Of course, no such remedy is recognised by the common law and no such remedy could be obtained in the proceedings proper.  An award of damages is the only result. 
  6. [21]
    Applegarth J, neatly in my respectful view, explained the relationship between a damages claim and a claim under s 51 in the context of the case before him in this way:

[62] Neither the policy of the Act nor its terms suggest that what is required by way of compensation in respect of a particular head of damages should equate with the cost of reasonable and appropriate rehabilitation services required under s 51(3). In some circumstances, the cost of rehabilitation services will be to fulfil a short-term need. For instance, it may be possible for the insurer’s obligation under s 51(3) to be fulfilled by paying the rent of a suitably modified home, leaving the plaintiff to fund the acquisition and modification of a new home out of the sale proceeds of her home and a damages award, which includes a component on account of the accident-related accommodation costs. An assessment of damages generally would not include the total cost of renting the modified premises, since the claimant may have incurred certain rental costs in any event.”[41]

  1. [22]
    The determination of an application under s 51 does not involve any final assessment of what expenses might be ultimately recoverable in a damages claim.  The starting point is that the claimants and their doctors have set a rehabilitation and treatment plan and the obligation of the insurers is to provide those rehabilitation services[42] provided that they are “reasonable and appropriate”.
  2. [23]
    As demonstrated by Massingham v AAMI Insurance Limited,[43] Mr McIntyre and Ms Ho had the obligation to determine what rehabilitation and treatment services are undertaken, not AAI and not their experts.  Except to the extent that AAI’s experts’ evidence reflects upon the reasonableness or appropriateness of the rehabilitation treatment services requested, it is beside the point that those experts may have different views as to the proper ways in which Mr McIntyre and Ms Ho might undertake rehabilitation. 
  3. [24]
    Mr Matthews QC, who appeared for AAI, said this in his written outline:

“16. The applicants do not wish to cross-examine any of the respondent’s deponents. It is reasonable to proceed on the basis that, therefore, that the opinions contained in Mr Zietek’s 3 February 2021 report (responsive to Ms Vincent’s recommendations in her 21 December 2020 report) are accepted by the applicants. That would mean that Items 1, 2, 3, 5, 6, 7 and 8 should be rejected as not being reasonable or appropriate rehabilitation in respect of the first applicant.”

  1. [25]
    It does not follow that where an applicant has evidence supporting a claim under s 51 and an insurer produces a contrary opinion, the contrary opinion prevails unless challenged.
  2. [26]
    As already observed, the responsibility for planning rehabilitation of an injured person, and the carrying out of that rehabilitation, falls upon the injured person and those planning and effecting the rehabilitation.  Where an applicant produces evidence in support of a claim, the claim does not fail to be a reasonable and appropriate one merely because there is expert evidence to the contrary.  In oral argument, Mr Matthews QC conceded as much.[44]
  3. [27]
    Relevantly to the consideration of what is reasonable and appropriate, are factors beyond just a consideration of the services which it is sought for the insurer to provide.  For instance, a relevant consideration is the recoverability of those expenses by the insurer by way of offset against the ultimate damages award.[45]
  4. [28]
    Here, it is appropriate and consistent with the authorities to take into account the following:
  1. It is clear here that AAI has a significant contingent liability to both Mr McIntyre and Ms Ho.  Liability has been admitted.  Contributory negligence is not asserted and the quantum of both claims is, unarguably, large.
  2. In order to protect AAI’s position, Mr McIntyre and Ms Ho have, in open correspondence, offered that if AAI funds the rehabilitation initiatives but it is later determined that those rehabilitation initiatives were inappropriate, interest at 10 per cent per annum on those payments from the date of payment to the date of judgment would be calculated and offset against the damages claim.
  1. [29]
    Applying the principles that I have identified in all the circumstances of the case, I turn now to a consideration of the individual claims.

Claims by Mr McIntyre

  1. [30]
    Pursuant to directions given by Brown J, a schedule was produced which:
  1. assigned an item number to each individual claim;
  2. indicated which claims AAI admits, which it rejects and which it partially admits.[46]
  1. [31]
    Adopting the numbering and the short description of the item claimed from the schedule, the following are approved by AAI:

“4. Shower seat

  1. Home garden, pool maintenance
  1. Monitor upper limb recovery
  1. Various medical practitioners
  1. Practical matters
  1. Psychologist”
  1. [32]
    Claims by Mr McIntyre for the following services/items have been partially approved by AAI:

“13. Physiotherapy

  1. Treatment to monitor vocational goals
  1. Transport
  1. Case management”
  1. [33]
    Claims by Mr McIntyre for the following services/items are in contest between the parties and have not been approved by AAI:

1. Novacorr Tilt and Lift Chair

Item description

  1. [34]
    The Novacorr Tilt and Lift Chair is an electric rise and tilt chair which would be customised in accordance with Mr McIntyre’s individual size and requirements.[47]  The cost of the chair is $3, 980 plus delivery. A home trial assessment by an occupational therapist is required which costs $500.

Evidence

Applicant’s evidence

  1. [35]
    Occupational Therapist Ms Vincent notes that Mr McIntyre experiences ongoing pain when seated and has a 30-minute sitting tolerance in the riser recliner armchair which he presently owns.[48]  The current chair being utilised is shared between Mr McIntyre and Ms Ho.  The chair is worn and does not offer sufficient lumbar and postural support without a tilt function.[49]
  2. [36]
    The tilting function in the recommended chair allows the backrest to remain in the same position relative to the seat thus the backrest support does not change.[50]  The tilting function also provides relief from the pressure usually placed on the sacrum and spine when in the sitting position thus increasing user comfort when sitting.[51]

Respondent’s evidence

  1. [37]
    The tilt and lift chair will not improve Mr McIntyre’s daily living or occupational activity.[52]  Ongoing use of the existing recliner chair and bed, for times when Mr McIntyre wishes to adopt a recumbent position, is recommended.[53]

Ruling on the Novacorr Tilt and Lift Chair

  1. [38]
    The respondent’s evidence rather assumes that there is no rehabilitative value in having Mr McIntyre being able to assume a recumbent position in a chair.  Rather, it is said the he could assume that position in the bed.  However, Mr McIntyre’s evidence is that the existing recliner chair is old and worn and is being shared with Ms Ho.  It has fewer features than the chair being sought.  In my view, given the opinion of Ms Vincent, the supply of the Novacorr Tilt and Lift Chair is reasonable and appropriate for Mr McIntyre’s rehabilitation and I order it to be supplied.

2. Kalbarri dining chairs

Item description

  1. [39]
    The Kalbarri Dining Chair is a wider than usual dining chair with armrests. The Kalbarri range of dining chairs matches the existing dining room table in the home.[54]  The cost of the dining chairs is $925 for the armrest chair and $5,600 for eight additional chairs.

Evidence

Applicant’s evidence

  1. [40]
    Mr McIntyre has a sitting tolerance of less than 10 minutes using the current dining chair as the chairs are too firm and upright.[55] Mr McIntyre is utilising the wheelchair for alternative seating at the dining table in the meantime which, if continued, could result in postural issues.[56]
  2. [41]
    A high-backed aluminium dining chair is deemed inappropriate as it is too heavy to manoeuvre, the seat will be too firm, and it will not align with the aesthetics of the home, thus promoting the perception of disability.[57]
  3. [42]
    The recommended dining chair is wider, providing Mr McIntyre with adequate lumbar support, and allows for better transfers from sitting to standing positions using the armrests.[58] It is recommended that all dining chairs are replaced to provide uniformity in the dining set and reduce the perception of disability.[59]

Respondent’s evidence

  1. [43]
    It is not expected that Mr McIntyre would require support for prolonged static periods of time in order to consume a meal before being able to alternate to a more comfortable seating position or chair.[60]
  2. [44]
    A high-backed orthopaedic chair with armrests could be utilised instead as it will provide purpose-designed support, comfort and stability and can be manoeuvred with minimal force.[61] 

Ruling on the Kalbarri dining chairs

  1. [45]
    The supply of the Kalbarri dining chairs (including the armrest chair) will enable Mr McIntyre not only to comfortably and properly participate in mealtimes with his family but also to participate properly in other family activities which take place at the dining table.  The respondent’s suggestion that Mr McIntyre should consume his meal and then relocate himself is less than satisfactory.  Further, the replacement of the other dining chairs, so as not to promote the perception of disability, is reasonable and appropriate.  Mr McIntyre, before the accident, lead what could be described as an adventurous life scuba diving from oil rigs.  The accident has deprived him of that lifestyle and he is suffering psychological impacts as a result of that loss.  Psychological measures such as reducing the perception of disability in settings such as family mealtimes is obviously beneficial to him.
  2. [46]
    The supply of the whole set of Kalbarri dining chairs is, in my view, reasonable and appropriate and should be supplied by AAI.

3. Karma Ergo Lite Transit Wheelchair and Action Centurion Wheelchair Cushion

Item description

  1. [47]
    The Karma Ergo Lite Transit Wheelchair is a manual lightweight transit wheelchair for use over longer distances.[62]   The cost of the wheelchair is $940.99 and the cost of the cushion is $325.99, a total of $1,266.93.

Evidence

Applicant’s evidence

  1. [48]
    Mr McIntyre’s sitting tolerance is up to one hour in the wheelchair.[63]  Provision of a manual lightweight transit wheelchair is required to facilitate assisted mobility over longer distances.[64]

Respondent’s evidence

  1. [49]
    Mr McIntyre is capable of walking short distances without a walking stick with recurrent seated rest breaks and has a greater walking tolerance using a single-point walking stick.[65]  Provision of the recommended wheelchair could be appropriate where prolonged walking is expected without ability for recurrent seated rest breaks.[66]  Mr McIntyre’s mobility tolerances may improve following further surgery on the right ankle/foot thus the purchase of mobility aids at the current time is not recommended.[67]

Ruling as to Karma Ergo Lite Transit Wheelchair and Action Centurion Wheelchair Cushion

  1. [50]
    It is obvious that Mr McIntyre is restricted in his mobility.  Mr Zietek accepts that even walking short distances requires recurrent seated rest breaks.  The main objection to the provision of the wheelchair seems to be that further surgery is anticipated which may increase Mr McIntyre’s mobility.  That contingency does not, in my view, mean that it is not reasonable and appropriate in the meantime to take sensible steps to increase Mr McIntyre’s mobility.  The Karma Ergo Lite Transit Wheelchair and associated cushion does that and it is reasonable and appropriate that AAI supply it.

5. Mobility scooter

Item description

  1. [51]
    A specific scooter has not been recommended at this stage. Further assessment by an occupational therapist is required to liaise with suppliers, arrange a seating assessment and a trial of possible options.[68]  It is anticipated that the occupational therapist’s fee will be in the order of $1,180.  As no particular model of scooter has yet been identified, no quote for its purchase has been obtained.

Evidence

Applicant’s evidence

  1. [52]
    Mr McIntyre is currently unable to drive.[69]  He requires a single-point stick for walking.[70]  His indoor walking tolerance is limited to 30 minutes without an aid and his outdoor walking tolerance is limited to 100 metres using a single-point stick on flat, even terrain.[71]  Mr McIntyre has difficulty in accessing his sons’ cricket games as the matches are located across grassy, uneven fields some distance from the car.[72]
  2. [53]
    The recommended mobility scooter will increase Mr McIntyre’s community access, improve participation in social engagements, and limit the physical discomfort associated with this.[73]  Without the provision of the mobility scooter, Mr McIntyre is at risk of social and family isolation and possible declining mental health symptoms associated with isolation and dependency.[74]

Respondent’s evidence

  1. [54]
    Mr McIntyre is reliant on support for driving.[75]
  2. [55]
    It is recommended that Mr McIntyre request that the driver deliver Mr McIntyre as close as possible to the desired destination to limit excess walking particularly on uneven terrain.[76]  It is further recommended that Mr McIntyre have seated rest breaks whilst walking using existing seating at the destination with regular postural variations or using a lightweight foldable chair.[77]
  3. [56]
    There is concern regarding the use of a mobility scooter considering self-reported awareness being affected by use of medication.[78]  The recommendation for the provision of a mobility scooter should be reassessed after Mr McIntyre has undergone further surgery which might improve his tolerance for mobility and weight bearing.[79]

Ruling on the mobility scooter

  1. [57]
    As already observed, it is obvious that Mr McIntyre has mobility problems.  It is contemplated by AAI that Mr McIntyre can make arrangements (such as being delivered by a driver closer to his ultimate destination) which would then limit the necessity for a device which would enable him to travel over longer distances independently.  It is also submitted by AAI that his needs in this respect should be reassessed after he has undergone further surgery.
  2. [58]
    It is reasonably necessary for measures to be put in place to enable Mr McIntyre to travel independently over short, as well as extended, distances.  That is necessary for him to be able to properly engage socially and thereby limit the impact of his injuries on his day to day life.
  3. [59]
    In my view, it is reasonable and appropriate for a mobility scooter to be provided.  The occupational therapist’s fees will need to be expended.  At this point, no particular model of mobility scooter has been identified.  The parties have liberty to apply in the event that a dispute arises in relation to the model of mobility scooter.

6. E-bicycle

Item description

  1. [60]
    A specific E-bicycle has not yet been recommended. It is necessary for an occupational therapist to liaise with suppliers and conduct trials in order to identify the appropriate bicycle.[80]  The occupational therapist’s fees are $520.  No quote has been obtained for the E-bicycle as the appropriate model has not been identified.

Evidence

Applicant’s evidence

  1. [61]
    The recommended e-bicycle will allow Mr McIntyre to participate in activities with his young children,[81] thus complimenting his rehabilitation needs in the context of activity participation and,[82] to a certain extent, improving his quality of life.[83]

Respondent’s evidence

  1. [62]
    The provision of the e-bicycle would improve access to areas beyond Mr McIntyre’s walking tolerances and would improve engagement in family activities, thus reducing the need for mobility aids such as a mobility scooter.[84]
  2. [63]
    However, there are concerns that the use of the e-bicycle may cause Mr McIntyre to suffer further injury should he lose control of the e-bicycle or not take due care in paying attention to his surroundings whilst operating it.[85]  This concern arises from self-reported difficulties with single-legged weight bearing and balancing on the right lower limb, avoidance of cycling and level of awareness affected by use of medication.[86]
  3. [64]
    A direct assessment of Mr McIntyre’s tolerance of the e-bicycle and his capacity to consistently operate it safely is required.[87]  Further, the need for an e-bicycle should be reassessed following further surgery which may improve Mr McIntyre’s mobility tolerances.[88]

Ruling in relation to the e-bicycle

  1. [65]
    The evidence is that the e-bicycle will allow Mr McIntyre to participate in family activities as he did before his accident.  That will no doubt improve his quality of life and also reflect positively on his psychological state.
  2. [66]
    The objection to supplying the e-bicycle is that Mr McIntyre may lose control of the ebicycle and suffer further injury.  Mr McIntyre is, as I have observed, a person who made a living scuba diving off oil rigs in the open sea.  It is fair to assume that he has awareness of maintaining his own safety.  Given Mr McIntyre’s work history, it is, in my view, somewhat unrealistic to conclude that it is likely that he will improperly assess any risk associated with riding a bicycle.  It is also suggested by AAI that there is no need for both a mobility scooter and an e-bicycle.  Riding a mobility scooter next to children on bicycles is, with respect, hardly a satisfactory engagement in the children’s activity.  Conversely, it will not always be appropriate for him to be riding an e-bicycle and so both the e-bicycle and mobility scooter are necessary.
  3. [67]
    The supply of the e-bicycle is reasonable and appropriate for Mr McIntyre’s rehabilitation.  The occupational therapist’s fee of $520 should be paid.  An ebicycle should be provided.  The position is the same as in relation to the mobility scooter where no particular model has yet been identified.  The parties have liberty to apply if there is some dispute arising over what is the appropriate model.

7. Stairlift

Item description

  1. [68]
    A specific stair lift has not been recommended at this stage. Further assessment by an occupational therapist in consultation with a builder and lift supplier is required to determine specification and functionality, and for a quote to be provided.[89]  The fees of the occupational therapist are estimated at $2,120.

Evidence

Applicant’s evidence

  1. [69]
    Mr McIntyre’s mobility on stairs is restricted.[90] He experiences persistent pain and fatigue through the right foot which is aggravated when traversing stairs.[91]  Further, he experiences reduced balance when traversing stairs and is unable to carry loads on stairs due to his reliance on the handrail or mobility aid for stability.[92]  Consequently, Mr McIntyre avoids using stairs where possible and has been residing separately on the downstairs level of the family residence since the accident,[93] rendering him unable to access the shared master bedroom or the children’s rumpus room and bedrooms.[94]
  2. [70]
    Mr McIntyre’s mobility on the stairs from the garage into the house will be further restricted following further surgery on his right foot and ankle which will affect his ability to bear weight on the limb.[95] To enable access from the downstairs level of the house, Mr McIntyre will need to be housebound post-operatively or Ms Ho will need to push Mr McIntyre in his wheelchair up the ramp on the side of the house which will further aggravate Ms Ho’s injuries.[96]
  3. [71]
    The installation of the stair lift, from the garage level servicing both levels of the house, will facilitate Mr McIntyre’s safe and independent access between both levels of the home.[97]  Mr McIntyre is concerned that the installation of the stair lift in a prominent position in the house, namely the internal stairs, will promote the perception of disability thus impacting his mental health and quality of life.  As such, installation at garage level is recommended.[98]

Respondent’s evidence

  1. [72]
    Mr McIntyre is capable of traversing the stairs slowly with the use of the hand rail and walking stick for support.[99]  At the time of the report, Mr McIntyre reports residing on the lower level of the house, not requiring regular access to the top level of the house and not having to traverse stairs whilst carrying loads.[100]  As such, the installation of the stair lift is not considered to be reasonable and appropriate for rehabilitation.[101]

Ruling on the stairlift

  1. [73]
    Mr McIntyre has significant difficulties in negotiating stairs from the lower level of the house to the upper level.  As a result of that, Mr McIntyre resides on the lower level of the house.  He told Mr Zietek that he did not require regular access to the top level of the house.  In context, what that means is that as a matter of necessity he can survive living on the lower level of the house.  His family inhabit the higher level of the house and he is isolated from them.
  2. [74]
    It is appropriate and necessary that Mr McIntyre have access to the entirety of his home.  It is reasonable and appropriate for a stairlift to be provided and installed.  The cost of the occupational therapist should be paid.  As yet, the exact design and cost of the stairlift has not been settled on and ascertained.  The parties have liberty to apply if any dispute in relation to those details emerges.

8. Shower modifications

Item description

  1. [75]
    The shower modifications would entail the installation of grab rails in the shower, removal of the existing shower recess and installation of a level-access shower with non-slip tiles.[102]  Further assessment by an occupational therapist is required to provide specifications to the builder in order for a quote for materials and labour to be provided by the builder.[103]  The fees of the occupational therapist have been ascertained at $770.  The costs of the shower modifications cannot be ascertained until the occupational therapist has made the proper assessments.

Evidence

Applicant’s evidence

  1. [76]
    Mr McIntyre experiences increased pain and fatigue in his right foot when standing for longer than 10 minutes and ongoing lower back pain when sitting and standing.[104]  Consequently, Mr McIntyre sits down to shower and uses a swivel chair to access the downstairs shower safely and independently when he is unable to bear weight on the right lower limb to transfer over the hob in the shower.[105]
  2. [77]
    Modifications to the shower are recommended to facilitate level access, provide access for assistive equipment, and minimise the risk of further injury.[106]  The existing shower recess should be removed and replaced with a level access shower with non-slip tiles and grab rails.[107] 

Respondent’s evidence

  1. [78]
    Mr McIntyre is capable of traversing the low hob in the existing shower recess and has demonstrated, for an extended period to date, ongoing independence in showering with the existing bathroom access and shower chair.[108]  The installation of alternate tiling and grab rails is not required and use of the existing lever-operated tap and flexible shower hose are sufficient to facilitate independent showering when seated on a chair within the cubicle.[109]
  2. [79]
    The use of a mat with rubber backing in foot traffic areas is recommended for stability, to limit movement underfoot and prevent the pooling of water on tiles.[110] 

Ruling in relation to the shower modifications

  1. [80]
    There are really two issues with Mr McIntyre showering.  The first is negotiating a hob in the existing shower recess.  It is necessary for him to step over the hob or to use a swivel chair to swing himself into the shower over the hob.  That is what he does now.  The second issue is stability once in the shower.
  2. [81]
    There is no doubt, given the injury to Mr McIntyre’s foot, and his brain injury, that stability in the shower is an issue.  The hob is something which Mr McIntyre is presently negotiating, but it should not be concluded from that fact that the current showering arrangements are appropriate.  The modifications to the shower will make ingress and access easier and safer.
  3. [82]
    It is reasonable and appropriate that the shower modifications be effected by AAI.  The cost of the occupational therapist should be paid as should the cost of the shower modifications.  They, as yet, cannot be ascertained.  The parties have leave to apply if any dispute arises in that respect.

9. Referral to occupational therapy specifically focussing on cognitive rehabilitation

Item description

  1. [83]
    Referral to Neuro Junction Occupational Therapy at Palm Beach for an initial 90-minute assessment and in-home assessment is sought.[111]  The cost is $270 plus the travel costs incurred by the occupational therapist.

Evidence

Applicant’s evidence

  1. [84]
    Mr McIntyre continues to report ongoing high-level cognitive dysfunction in line with the findings in the report of neuropsychologist Dr Elspeth Mitchell;[112] Mr McIntyre reports attempting to occupy his time with administrative tasks related to the household and some body corporate activities.  Mr McIntyre reports that he continues to make mistakes and his attention to detail has lowered since the accident.  He struggles with non-routine tasks such as recalling changed appointment times.  He uses an alarm to remind him to take his medication.  He has difficulties retaining new information and does not process visual cues into action.[113]
  2. [85]
    In an assessment of Mr McIntyre’s cognitive function conducted by Dr Mitchell, a neuropsychologist, approximately 23 months post-accident, mild to moderate reductions were evident in his attention and semantic processing and his speed and complex attention processing.[114]  Further, his ability to learn and recall structured and unstructured verbal information was moderately and severely reduced respectively.[115]  Consequently, it is unlikely that Mr McIntyre will be able to return to work in his former capacity as a diving supervisor, a role which requires sustained and complex attention.[116]  Mr McIntyre demonstrates intact awareness and insight into current cognitive difficulties.[117]  Mr McIntyre has reported difficulties with emotional regulation and reduced frustration tolerance since the injury and his responses in the assessment indicated moderate stress symptomatology.[118]
  3. [86]
    Dr Mitchell has indicated that the result of Mr McIntyre’s neuropsychological examination are considered consistent with significant residual cognitive deficits second to a traumatic brain injury and consistent with neuroimaging results.[119]  Dr Mitchell has concluded that analgesic medications, chronic pain, hypervigilance and psychological distress could be contributing and exacerbating Mr McIntyre’s underlying cognitive difficulties secondary to the brain injury but are not the primary cause of the cognitive deficits.[120]  Dr Mitchell does not anticipate that Mr McIntyre will experience any significant neurological recovery.[121]
  4. [87]
    Based on the self-reporting and findings of Dr Mitchell, ongoing assessment and intervention is recommended.[122]  An MRI brain scan is recommended for further assessment of structural changes however, Dr Mitchell notes the MRI may not depict a diffuse axonal injury which is the likely cause of the cognitive dysfunction.[123] Mr McIntyre may benefit from further cognitive rehabilitation focused on further developing and implementing strategies to assist in managing cognitive deficits.[124]

Respondent’s evidence

  1. [88]
    The senior claims adviser employed by AAI, Ms Guardala, formed the view that there was insufficient evidence to support the conclusion that a traumatic brain injury was sustained in the accident requiring treatment.[125]

Ruling in relation to occupational therapist for cognitive rehabilitation

  1. [89]
    The expert evidence supplied by Dr Mitchell, a neuropsychologist, is that the most likely cause of cognitive disfunction is a diffuse axonal injury which may not be detectable by MRI.  She opines that the result of her neuropsychological examination of Mr McIntyre is consistent with a traumatic brain injury.
  2. [90]
    Consequently, the expert evidence does not support the conclusion drawn by Ms Guardala.  It follows that it is reasonable and appropriate for AAI to fund an assessment of Mr McIntyre by Neuro Junction Occupational Therapy.

11. Domestic assistance and 12. Home help/nanny service

Item description

  1. [91]
    Continuation of the existing arrangement for cleaning services for three hours per week and an additional one hour per month for changing of linen is sought.[126]
  2. [92]
    Continuation of the existing support for home help/nanny services for six hours per day from Monday to Friday in addition to travel allowance for the service is sought.[127]

Evidence

Applicant’s evidence

  1. [93]
    Mr McIntyre is able to mobilise in short distances around the kitchen to carry items without aid.[128]  However, due to ongoing difficulties with poor balance, low sitting and standing tolerances and reliance on the single-point stick for mobility, Mr McIntyre is limited in his ability to prepare basic snacks and drinks or effectively contribute to domestic tasks.[129]
  2. [94]
    Mr McIntyre is unable to drive and therefore cannot transport children to and from school and is otherwise limited in his ability to effectively care for the children for reasons previously explained.[130]
  3. [95]
    Ms Vincent, occupational therapist, recommends that the existing domestic assistance currently in place continue for the foreseeable future.[131]

Respondent’s evidence

  1. [96]
    The evidence relied upon by the respondent as to why items 11 and 12 are not considered reasonable and appropriate is set out at item 6 in relation to Ms Ho which commences at paragraph [183] of these reasons.

Ruling on domestic assistance and home help nanny service

  1. [97]
    Prior to the accident, Ms Ho performed the home duties and took a major role in caring for the children.  While it is accepted by AAI that Ms Ho experiences tiredness and discomfort now performing household tasks, given her injuries, she can cope.  Given the expert opinion of Ms Vincent, occupational therapist, that the existing domestic assistance should continue for the foreseeable future, it is my view that it is reasonable and appropriate for that to occur.  Those services should continue to be supplied by AAI.

15. Neuro occupational therapy

Item description

  1. [98]
    Neuro occupational therapy focusing on developing a cognitive rehabilitation plan and addressing cognitive deficits.[132]  A referral to a specific neuro occupational therapist has not been made as a formal outcome has not yet been provided by the respondent in relation to this request.[133]  The cost will be $7,177.63.

Evidence

Applicant’s evidence

  1. [99]
    Mr McIntyre experiences ongoing cognitive issues with thinking, persistent brain fog, difficulties managing complex tasks, dividing attention, being organised, problem-solving and memory retention.  This impacts his ability to manage day-to-day affairs effectively.[134]
  2. [100]
    Neuropsychologist intervention is recommended as part of Mr McIntyre’s current rehabilitation needs to furnish a cognitive rehabilitation plan and address existing cognitive deficits from traumatic brain injury.[135]  Fortnightly neuropsychology sessions are recommended.[136]
  3. [101]
    Engagement of an occupational therapist is also recommended to address the following matters:  upper limb recovery to maximise independence and function, issues with dexterity and fine motor skills,[137] functional activities of daily living,[138] home set up and equipment needs,[139] assess driving safety (when medically cleared),[140] vocational goals given Mr McIntyre is unlikely to return to his pre-injury work role,[141] review engagement with meaningful activities, community participation and access, and transport needs.[142]

Respondent’s evidence

  1. [102]
    The neuropsychology report and recommendations included therein were declined on 3 September 2020 on the basis of insufficient evidence to support that a traumatic brain injury was sustained in the accident requiring treatment.[143]

Ruling in relation to the neuro occupational therapy

  1. [103]
    The evidence of the neuropsychologist, Dr Mitchell, supports this item, for the same reasons as I explained at [89] and [90] in relation to item 9 “Referral to occupational therapy specifically focussing on cognitive rehabilitation”.  It is reasonable and appropriate for AAI to supply the neuro occupational therapy.

16. Speech pathologist

Item description

  1. [104]
    To assess and address high level language skills, communication, and memory.[144]  A referral to a specific speech pathologist has not been made as a response has not been provided by the respondent in relation to Mr McIntyre’s request for re-consideration of this request.[145]  The cost is $1,537.93.

Evidence

Applicant’s evidence

  1. [105]
    Mr McIntyre has reported experiencing some high-level language difficulties however, he is able to engage on a functional level with his communication and language.[146]
  2. [106]
    Engagement of a speech pathologist is recommended as part of Mr McIntyre’s current rehabilitation needs to assist in addressing deficits in high level language, communication and memory caused by his traumatic brain injury.[147]

Respondent’s evidence

  1. [107]
    The request for speech therapy remains not approved on the basis that Mr McIntyre has not been diagnosed with a traumatic brain injury.[148]

Ruling in relation to the speech pathologist

  1. [108]
    AAI’s objection to this item is that Mr McIntyre has not been diagnosed with a traumatic brain injury.  As observed relevantly to items 9 and 15, Dr Mitchell’s evidence is that a brain injury was sustained.  It is reasonable and appropriate for the speech pathologist to be engaged and the expense met by AAI.

17. Occupational therapy home assessment and 26. Case management

Item description

  1. [109]
    The services of an occupational therapist are necessary to assess various items already considered, eg item 1, tilt and lift chair, item 5 mobility scooter, item 6 e-bicycle and item 7 stairlift.
  2. [110]
    What is claimed under item 17 is an assessment to address equipment needs including ergonomic seating and safety.[149]  A referral to a specific occupational therapist for a home assessment has not been made as an outcome has not been provided by the respondent in relation to this request.[150]  What is sought by item 26 is a home visit by Brooke Kooymans who is a social worker and case manager with Rehability Australia.
  3. [111]
    What is specifically sought under items 17 and 26 is:

Item 17

  • Home visit assessment following any further surgery to review post-operative equipment needs and/or ADLs in acute post-operative phase
  • 1 hour x $180 to complete home assessment
  • 2 hours x $160 for travel for home visit assessment
  • 2 hours x $180 as needed to complete reports/coordinate further hire equipment

Item 26

  • 1 x joint home visit with the Case Manager Brooke Kooymans to ensure a collaborative approach
  • $180 per hour x 2 hours for appointment - $360
  • $160 per hour x 2 hours for travel to and from appointment - $320
  • 2 hours x $180 per hour for report writing at end of block and preparation of subsequent treatment plans as required.

Evidence

Applicant’s evidence

  1. [112]
    Mr McIntyre has reported that he continues to sleep in the bedroom on the lower level of the house, continues to use the static shower stool in the bathroom, the hired wheelchair at the dinner table and the hired recliner chair.[151]  An assessment by Ms Kooymans has concluded that the home environment is not presently set up to meet Mr McIntyre’s needs.[152]
  2. [113]
    Review of the home environment is recommended to address home set up and equipment needs including ergonomic seating and safety and home modifications.[153]

Respondent’s evidence

  1. [114]
    In response to the request from Rehability Australia for reconsideration of the request for a home assessment by an occupational therapist, the respondent considered it reasonable to await the outcome of the medicolegal report in relation to the medicolegal examination which was arranged to be conducted in November 2020 to outline equipment/home modification recommendations for consideration.[154]
  2. [115]
    The report referred to is that of Xavier Zietek, occupational therapist retained by AAI.  He in fact prepared two reports dated 10 December 2020 and 3 February 2021.

Ruling in relation to occupational home assessment and case management

  1. [116]
    I could discern nothing in Mr Zietek’s reports suggesting that a post-operative assessment is not necessary.  Given Ms Kooymans’ opinion that assessments, as described, are desirable for the planning of Mr McIntyre’s rehabilitation, I find that claims 17 and 26 are reasonable and appropriate.

18. Treatment to monitor community access

Item description

  1. [117]
    Follow up to assess Mr McIntyre’s ability to access rehabilitation services, maximise independence and return to pre-injury activities.[155]  This seems to be confined to $1,561.92 for a driving assessment to be undertaken.

Evidence

Applicant’s evidence

  1. [118]
    Mr McIntyre experiences ongoing and significant functioning mobility issues resulting in a reliance upon others for transport and a reduction of functional independence, including engagement in community activities.[156]  Due to Mr McIntyre’s reliance upon others for transportation and community access, he has limited capacity to undertake community activities of daily living and he has no access to leisure or recreational activities.[157]  Further, Mr McIntyre has not been medically cleared to return to work and it is unlikely that he ever will be.[158]  Consequently, Mr McIntyre reports experiencing social isolation.[159]
  2. [119]
    It is recommended that Mr McIntyre engage in physiotherapy, occupational therapy and undergo a vocational assessment to maximise independence and functional mobility in the community environment, participation in activities and community engagement.[160]  Further, ongoing monitoring of transport services available to Mr McIntyre will be required to provide funding for transport at times when Ms Ho and other persons performing gratuitous transport services are unavailable.[161]  For the moment at least, it appears that a driving assessment is recommended.

Respondent’s evidence

  1. [120]
    The respondent is of the view that ongoing monitoring of Mr McIntyre’s community access is not reasonable and appropriate at this stage as Mr McIntyre does not presently require specific community access.[162] However, if Mr McIntyre was further disabled, for example from driving, then monitoring of community access may need to be reconsidered.[163]

Ruling in relation to treatment to monitor community access

  1. [121]
    Community access by Mr McIntyre is obviously desirable.  He is at the present point in time dependent upon others for transport over any particular distance.  At present, a driving assessment is recommended.  The cost of that ($1,561.92) should be paid by AAI as that step is reasonable and appropriate at the moment.  Depending upon the result of that assessment, the parties have liberty to apply in relation to further relief under this head.

20. Neuropsychologist

Item description

  1. [122]
    Ascertain barriers to rehabilitation and progress with identified goals,[164] including funding for brain MRI.[165]  The total cost is $5,574.66 (calculated on the basis of 26 sessions being provided at a cost of $214.41 per session).

Evidence

Applicant’s evidence

  1. [123]
    The evidence relied upon by the applicants as to why this item is required is set out at items 9 and 15 above.

Respondent’s evidence

  1. [124]
    The evidence relied upon by the respondent as to why this item is not considered reasonable and appropriate is set out at items 9 and 15 above.

Ruling in relation to the neuropsychologist

  1. [125]
    The real issue here is in relation to whether or not Mr McIntyre is suffering a brain injury.  As previously observed, the neuropsychologist, Dr Mitchell, thought the evidence suggested that a brain injury had been suffered.  She doubted though whether the injury would be necessarily identified on an MRI.  I accept the evidence of Dr Mitchell.  It is reasonable and appropriate in those circumstances for an MRI to be conducted which might identify a brain injury and for the other steps to be taken.

24. Brain injury education

Item description

  1. [126]
    Provide education on brain injury addressing common sequelae from acute brain injury, changes to relationships and fatigue.[166]  A referral to a specific medical practitioner for brain injury education has not been made.  The costs of this have not yet been ascertained as no service provider has yet been identified.

Evidence

Applicant’s evidence

  1. [127]
    The evidence relied upon by the applicants as to why this item is required is set out at items 9 and 15 above.

Respondent’s evidence

  1. [128]
    The evidence relied upon by the respondent as to why this item is not considered reasonable and appropriate is set out at items 9 and 15 above.

Ruling in relation to brain injury education

  1. [129]
    Once the evidence of Dr Mitchell is accepted and at least a potential brain injury is diagnosed, brain injury education is, in my view, both reasonable and appropriate and should be funded by AAI.
  2. [130]
    There are three items which AAI has partially approved.  They are item 13 physiotherapy; item 19 treatment to monitor vocational goals; and item 23 transport.
  3. [131]
    I turn now to consider the items which are only partially in dispute.

Items which have been partially approved

13. Physiotherapy

Item description

  1. [132]
    Four sessions of physiotherapy per week.

Evidence

Applicant’s evidence

  1. [133]
    Physiotherapy is necessary to provide ongoing monitoring of Mr McIntyre’s physical rehabilitation to maximise his independence and mobility both in the home and community environment.[167] This is the MedEx physiotherapy program.

Respondent’s evidence

  1. [134]
    Approval of the MedEx physiotherapy program is not considered reasonable and appropriate as concurrent physiotherapy has already been approved.[168]

Ruling in relation to physiotherapy

  1. [135]
    There have been difficulties experienced by AAI in having the details of the MedEx physiotherapy clarified.  It is the MedEx physiotherapy which is in dispute.[169]
  2. [136]
    AAI has approved two hours of physiotherapy per week but not the further two hours of physiotherapy per week through MedEx.
  3. [137]
    MedEx has provided specified physiotherapy related to Mr McIntyre’s spinal injuries which Mr McIntyre considers has been beneficial[170] and is recommended by Ms Kooymans.
  4. [138]
    In these circumstances, I find that the total physiotherapy claims, including the MedEx sessions, are reasonable and appropriate.

19. Treatment to monitor vocational goals

Item description

  1. [139]
    Ongoing monitoring in relation to vocational goals and return to work planning, in consultation with the therapy and medical team.[171]

Evidence

Applicant’s evidence

  1. [140]
    Mr McIntyre reports social isolation as he has not been medically cleared to drive, he is reliant upon others for community access due to his physical deficits, he reports that he does not have access to leisure or recreational activities, and has not been and is unlikely to be medically cleared to return to work due to the extent of his injuries and physical limitations.[172]  Treatment is necessary to facilitate and support Mr McIntyre’s re-integration into community and recreational activities and address any barriers to achieving this goal.[173]

Respondent’s evidence

  1. [141]
    This item should be considered at an appropriate juncture such as the point in time when Mr McIntyre reaches maximum medical improvement.[174]

Ruling in relation to treatment to provide ongoing monitoring of vocational goals

  1. [142]
    Mr McIntyre’s rehabilitation is obviously a gradual process.  He will no doubt over time reach different goals as his physical and psychological condition improves.  There is nothing which convinces me that it is not reasonable and appropriate to address the integration and vocational goals now.  This item should be allowed.

23. Transport

Item description

  1. [143]
    Access to transportation assistance given Mr McIntyre has not been medically cleared to drive.[175]

Evidence

Applicant’s evidence

  1. [144]
    Mr McIntyre has not been medically cleared to drive and is reliant upon others for community transportation and access.[176]  Mr McIntyre proposes that the nanny service be engaged to meet any transportation requirements beyond those which are provided to him gratuitously.[177]  While requests have been made for transportation services and AAI have approved the engagement of the nanny service, Ms Kooymans accepts that there is no current request for such services.

Respondent’s evidence

  1. [145]
    This item will be considered upon receipt of requests.[178]

Ruling in relation to transport services

  1. [146]
    In my view, there is hardly a dispute at all about this item.  AAI recognise a need for transportation services and has previously provided transport services upon request.  AAI doesn’t wish, understandably, to be in a position where it must fund any services which Mr McIntyre might request.  They wish to be in a position to consider any request.
  2. [147]
    Given that there is nothing to suggest that AAI would not give bona fide consideration to requests for transportation, it is not reasonable and appropriate to make orders in terms sought by Mr McIntyre under this item.
  3. [148]
    Item 26, the only other partially allowed claim in dispute, is dealt with earlier together with item 17.[179]

Claims by Ms Ho

  1. [149]
    Ms Ho’s claims have also been included in the schedule.
  2. [150]
    Adopting the numbers and the short description of each item claimed from the schedule, the following is approved by AAI:

“14. monitor vocational goals”

  1. [151]
    Claims by Ms Ho for the following services/items have been partially approved by AAI:

“13. Driving safety assessment”

  1. [152]
    Claims by Ms Ho for the following services/items are in contest between the parties and have not been approved by AAI.

1. Novacorr Tilt and Lift Chair

Item description

  1. [153]
    The Novacorr Tilt and Lift Chair is an electric rise and tilt chair which would be customised in accordance with Ms Ho’s individual size and requirements.[180]  The cost of the chair is $3, 980 plus delivery. A home trial and assessment of the chair by an occupational therapist is required which costs $500.

Evidence

Applicant’s evidence

  1. [154]
    Ms Ho experiences spinal pain extending from the cervical spine to the lumbar spine which she treats with Targin and Panadeine Forte.[181]  Her sitting tolerance is dependent upon the chair being used.  She can sit on the recliner chair for up to one hour.[182]  The recliner chair provided for Mr McIntyre is currently being shared with Ms Ho.[183]  The chair is not suitable for Ms Ho’s rehabilitation and does not provide sufficient lumbar support for the same reasons set out above in relation to Mr McIntyre’s Item 1.
  2. [155]
    The Novacorr Tilt and Lift Chair is recommended for Ms Ho for the same reasons as set out in relation to Mr McIntyre.

Respondent’s evidence

  1. [156]
    Provision of the recommended chair is not considered reasonable and appropriate for the same reasons set out above in relation to Mr McIntyre.[184]

Ruling on the Novacorr Tilt and Lift Chair

  1. [157]
    The evidence is that Mr McIntyre and Ms Ho presently share a recliner chair.  Further, I accept that the Novacorr Tilt and Lift Chair provides better lumbar support and enables Ms Ho to sit more comfortably for longer.  The supply of the Novacorr Tilt and Lift Chair is reasonable and appropriate for Ms Ho’s rehabilitation and it should be supplied.

2. Kalbarri dining chairs

Item description

  1. [158]
    The Kalbarri Dining Chair is a wider dining chair with armrests.  The Kalbarri range of dining chairs matches the existing dining room table in the home.[185]

Evidence

Applicant’s evidence

  1. [159]
    Ms Ho is currently using the existing dining chair with additional cushions for sitting at the dining table in short periods in lieu of a suitable alternative.[186]  The existing chairs are too firm and upright and Ms Ho is unable to tolerate sitting on the existing chairs for the duration of a meal without the added support of extra cushions and constant postural changes.[187]
  2. [160]
    A high-backed aluminium chair is not recommended for the same reasons as set out above in relation to Mr McIntyre.[188]  The Kalbarri dining chair provides adequate support and has been recommended.  Provision of a suitable chair is required to facilitate sitting during family meal times and other activities that take place at the dining table such as homework and other activities with the children.[189]

Respondent’s evidence

  1. [161]
    Use of a high-back aluminium chair is recommended as set out above in relation to Mr McIntyre.

Ruling on the Kalbarri dining chairs

  1. [162]
    This item is now of  interest only because I have ruled that the set of Kalbarri dining chairs is reasonable and appropriate and should be supplied by AAI as part of the rehabilitation of Mr McIntyre.

3. Shower seat

Item description

  1. [163]
    A shower stool with armrests for safety and independence in the bathroom.[190] 

Evidence

Applicant’s evidence

  1. [164]
    Ms Ho needs to sit down in order to wash her hair.[191] The shower stool that is currently being used is not suitable as it is not designed for showering tasks and is too low to the ground.[192]
  2. [165]
    A shower stool with armrests and adjustable height function is recommended to maintain independence with showering and safety in the bathroom.[193]

Respondent’s evidence

  1. [166]
    Provision of a shower stool is not considered reasonable and appropriate.[194]  One issue here is whether Mr McIntyre and Ms Ho could share one shower chair between them.

Ruling on shower seat

  1. [167]
    Ms Ho has ongoing spinal pain extending from the cervical spine to the lumbar spine and to the sacroiliac joint extending into her right leg.  Activities such as showering are obviously compromised and consequently safety issues arise.  In my view, provision of a shower stool is reasonable and appropriate and should be supplied by AAI.
  2. [168]
    It is not practical for Mr McIntyre and Ms Ho to share a shower chair.  Because of his mobility problems, Mr McIntyre is living in the downstairs area of the house.  At least until the installation of the stair lift, it is necessary for both upstairs and downstairs bathrooms to be properly equipped.

4. Neuropsychologist

Item description

  1. [169]
    Neuropsychological assessment to inform requirement for ongoing intervention such as cognitive rehabilitation.[195]

Evidence

Applicant’s evidence

  1. [170]
    Ms Ho continues to complain of ongoing cognitive dysfunction. As such, a referral to neuropsychologist Dr Elspeth Mitchell is recommended for further neuropsychological assessment.[196]

Respondent’s evidence

  1. [171]
    An assessment by Dr John Chalk, psychiatrist, concludes that, in the aftermath of the accident, Ms Ho has developed symptoms of an adjustment disorder with depressed and anxious mood and has some post-traumatic symptomatology.[197]  Dr Chalk does not think Ms Ho has developed post-traumatic stress disorder.[198]
  2. [172]
    Dr Chalk indicates that Ms Ho would benefit from further clinical psychological treatment however, does not consider there to be significant benefit in treatment beyond that or treatment by psychotropic medication as Ms Ho does not exhibit any signs of cognitive impairment.[199]

Ruling on neuropsychologist

  1. [173]
    The recommendation that Ms Ho be referred to a neuropsychologist comes from occupational therapist, Ms Amy Vincent.  She bases that recommendation on Ms Ho’s complaints of “ongoing cognitive disfunction”.[200]  She forms no conclusions as to Ms Ho’s cognitive functioning.  That is understandable as the drawing of such a diagnosis is beyond her field of expertise. 
  2. [174]
    Dr Chalk, in June 2020, examined Ms Ho and concluded that there was no evidence of any cognitive impairment.  Such a diagnoses is, it seems to me, within the expertise of a psychiatrist. 
  3. [175]
    Consequently, the investigations which Ms Vincent recommended have effectively been done and completed by Dr Chalk.  In my view, the referral of Ms Ho to a neuropsychologist is not reasonable and appropriate.

5. Pain management clinic

Item description

  1. [176]
    Referral and participation in a multi-disciplinary pain management clinic for further education around pain experienced.[201]  Multiple options identified.

Evidence

Applicant’s evidence

  1. [177]
    Ms Ho reports experiencing deep pain in the left shoulder and ongoing pain in the lower back and SI joint which extends to the right leg.[202]  It is reported that, based on the way Ms Ho has described the pain experienced, it is likely that she has sustained disruption of the lumbosacral disc and possible disruption and derangement of the SI joints as well as injury to the bicep or AC joint.[203]
  2. [178]
    It is reported that Ms Ho requires further education around pain and pacing to complement any upgrade in her graded return to activity program.[204]  Referral and participation in a multi-disciplinary pain management clinic on the Gold Coast is recommended to assist Ms Ho in understanding her pain and functional tolerances, understanding strategies to adjust to life changes caused by pain and to assist her to re-engage with meaningful activities.[205]

Respondent’s evidence

  1. [179]
    Ms Ho is unlikely to benefit from any non-operative treatments and her ongoing pain should be managed with appropriate analgesia and a regular exercise program to maintain mobility, core strength and aerobic fitness.[206]

Ruling on pain management clinic

  1. [180]
    The recommendation for referral to a multidisciplinary pain management clinic is made by Ms Vincent, occupational therapist.  It is made, it seems, without reference to the report of Dr Bruce McPhee, a spinal surgeon.[207]  Dr McPhee opines that surgery is not indicated and Ms Ho is unlikely to benefit from ongoing non-operative treatments.  He opines that non-operative treatments are likely to be counterproductive as they “… are unlikely to result in any substantial or sustained improvement and will serve to reinforce invalidity”.  There appears to be no evidence contradicting Dr McPhee’s opinion.
  2. [181]
    Under Item 12 I have ruled that occupational therapy ought to be provided for ongoing pain management. Further, under Item 15 I have ruled that referral to a pain physician is reasonable and appropriate.
  3. [182]
    In the circumstances, proceeding with non-operative treatments such as referral to a pain management clinic is not reasonable and appropriate, especially given that the services in items 12 and 15 will be provided.

6. Domestic assistance and 7. Home help/nanny service

Item description

  1. [183]
    Continuation of the existing arrangement for cleaning services for three hours per week and an additional one hour per month for changing of linen is sought.[208]
  2. [184]
    Continuation of the existing support for home help/nanny services for 6 hours per day from Monday to Friday in addition to travel allowance for the service is sought.[209]

Evidence

Applicant’s evidence

  1. [185]
    Prior to the accident Ms Ho was primarily responsible for performing home duties and volunteering as the chairperson of a large body corporate.  She also planned to return to work as a real estate agent or website manager but was unable to pursue these plans due to her persisting symptoms and lack of family support to assist with caring for the children.[210]  She continues to be limited in her ability to contribute to domestic tasks and effectively care for the children as she cannot perform any work with her left arm above shoulder height, she is likely to experience long-term difficulty with heavy manual tasks,[211] and her chronic pain results in poor concentration.[212]
  2. [186]
    It is recommended that the existing domestic support continue for the foreseeable future to assist Ms Ho in maintaining the home and caring for the children.[213]

Respondent’s evidence

  1. [187]
    Ms Ho is capable of performing numerous household tasks which the nanny currently attends to such as tending to the laundry and the dishwasher, preparing the children’s breakfasts and lunches and instructing children in preparation for the school day and activities.[214]  It is accepted that the tiredness and discomfort which Ms Ho experiences may reduce her motivation and efficiency to perform household tasks however, she is not precluded from engaging in them.[215]
  2. [188]
    It is expected that with the passage of time and continued support from the occupational therapist in relation to modified practices and use of a range of freely-available supportive equipment, Ms Ho will be able to resume attending to additional domestic tasks independently without the need for ongoing domestic/nanny support.[216]

Ruling on domestic assistance and home help/nanny service

  1. [189]
    I have ruled on this in relation to items 11 and 12 of Mr McIntyre’s claim.  See paragraph 97 of these reasons.  These claims are reasonable and appropriate.

8. and 12. Occupational therapy intervention/home assessment

Item description

  1. [190]
    Address home set up and conduct equipment trials and prescription, ongoing pain management education, ongoing monitoring and review of progress, and liaison with other treating health professionals.[217]

Evidence

Applicant’s evidence

  1. [191]
    Post-accident Ms Ho experiences ongoing pain and discomfort, anxiety, fatigue and dependence upon the assistance of others as previously explained.[218]  It is recommended that an occupational therapist be engaged to conduct equipment trials, to assist in ongoing pain management education, to monitor and review rehabilitation progress including liaison with other treating health professionals to ensure goals are consistent, to conduct a driving safety assessment, and to address issues surrounding social isolation and engagement with meaningful activities.[219]
  2. [192]
    Engagement of an occupational therapist is recommended to conduct a home assessment of the Novacorr chair, to review the rehabilitation plan following Ms Ho’s attendance at a pain management clinic, and a joint home visit with Rehability case manager, Ms Brooke Kooymans, to ensure a consistent approach to Ms Ho’s treatment.[220]

Respondent’s evidence

  1. [193]
    The request is not reasonable and appropriate as home assessments have already been conducted by Mr Zietek on 6 October 2020 and Ms Vincent on 21 December 2020. The report of Ms Vincent and the medico-legal report of Dr McPhee indicate that Ms Ho is capable of attending to personal care activities independently.[221]

Ruling on occupational therapy intervention/home assessment

  1. [194]
    Ms Ho’s rehabilitation is ongoing.  There will be new equipment provided to her such as the Novacorr Tilt and Lift Chair, the Kalbarri dining chairs, the shower seat and she is still undergoing treatment. I have ruled against AAI providing pain management clinic services. Otherwise, it is appropriate for there to be further occupational therapy intervention and home assessment and I find items 8 and 12 to be reasonable and appropriate.

9. Physiotherapy and 10. Monitor upper limb recovery

Item description

  1. [195]
    Ongoing physiotherapy to address areas of concern regarding physical presentation and maximise independence and functional mobility in the community and home environment.[222]

Evidence

Applicant’s evidence

  1. [196]
    Ms Kooymans in her report has identified the current areas of concern to be residual back pain, neck and shoulder pain, exacerbation of pain in the left shoulder when the arm is lifted above shoulder height, pins and needles in both arms and hands, and intermitted symptoms of paraesthesia in both upper limbs.[223]  Ms Ho has been assessed as having a standing tolerance of 45 minutes, a sitting tolerance of 30-60 minutes and a walking tolerance of two kilometres.[224]
  2. [197]
    An MRI of Ms Ho’s shoulder in January 2019 confirmed significant subacromial bursitis.[225]
  3. [198]
    A physiotherapy rehabilitation program is recommended to assist Ms Ho in maximising her independence and functional mobility by addressing lower back pain, cervical spine and paraspinal muscle strengthening, range of motion exercises, postural awareness for the cervical spine, and upper limb recovery.[226]  Ms Ho may also require a referral to a shoulder surgeon.[227]

Respondent’s evidence

  1. [199]
    Dr McPhee’s report indicates that the injuries to Ms Ho’s shoulder are not consistent with painful arc and there are no signs of rotator cuff impingement or pain-related impairment rating.[228] Dr McPhee indicates that Ms Ho is unlikely to benefit from ongoing non-operative treatments and can be deemed to have reached maximum medical improvement.[229] As such the request is deemed not to be reasonable and appropriate as all reasonable treatments have been provided, no specific treatment has been recommended and the injuries are deemed as having reached maximum medical improvement.[230]

Ruling in relation to physiotherapy and monitor upper limb recovery

  1. [200]
    The recommendation for physiotherapy and monitoring limb recovery comes from Rehability case manager, Brooke Kooymans.  She identifies in her report as a “current area of concern” shoulder and neck pain resulting in a reduction of function.  She then identifies as a “current rehabilitation need”[231] “physiotherapy to maximise independence and functional mobility both in the home and community environment” and “physiotherapy to address upper limb (shoulder) recovery to maximise independence and function”.  That rather assumes that physiotherapy will have a rehabilitative effect.  Dr McPhee opines otherwise and there is no competing evidence by a surgeon or other doctor which contradicts Dr McPhee’s views.
  2. [201]
    In the circumstances then, the provision of physiotherapy and ongoing monitoring of upper limb recovery is neither reasonable nor appropriate.

11. Neuropsychologist/neuro occupational therapist

Item description

  1. [202]
    Cognitive assessment to address any cognitive deficits.[232]

Evidence

Applicant’s evidence

  1. [203]
    Ms Ho reports experiencing ongoing cognitive changes with thinking and persistent fogginess which impacts upon her daily functions and ability to manage the family property portfolio and business.[233]
  2. [204]
    A neuropsychological cognitive assessment is recommended to address any cognitive deficits.[234]

Respondent’s evidence

  1. [205]
    The medico-legal report of Dr Chalk contained no evidence of cognitive impairment and therefore, this request is deemed not to be reasonable and appropriate.[235]

Ruling on neuropsychologist/neuro occupational therapist

  1. [206]
    For the same reasons I gave in relation to item 4,[236] this item is neither reasonable nor appropriate.

15. Various medical practitioners

Item description

  1. [207]
    Liaison with a general practitioner for community medical management, spinal-orthopaedic specialist for ongoing management of injury to spine, rehabilitation specialist for ongoing management of rehabilitation, sports/musculoskeletal physician for ongoing management of physical recovery, psychiatrist for ongoing management of psychological concerns, and pain physician for ongoing pain management needs.[237]

Evidence

Applicant’s evidence

  1. [208]
    Engagement with the following medical practitioners is recommended: general practitioner for community medical management, spinal-orthopaedic specialist for ongoing management of spinal injury, rehabilitation specialist for ongoing management of rehabilitation, sports/musculoskeletal physician for ongoing management of physical recovery, psychiatrist for ongoing management of psychological concerns, and pain physician for ongoing pain management needs.[238]
  2. [209]
    Further, a referral to a psychiatrist is required to develop a biopsychosocial management plan including a review of Ms Ho’s mental state and risk of self-harm, pharmacotherapy and psychotherapy.[239]

Respondent’s evidence

  1. [210]
    This request is deemed not to be reasonable and appropriate on the basis that Dr McPhee reports that Ms Ho’s shoulder injury has reached the maximum level of medical recovery and Dr Chalk reports that Ms Ho has not developed post-traumatic stress disorder, she does not exhibit any signs consistent with a cognitive impairment, and would not benefit from any psychotropic medication.[240]

Ruling on various medical practitioners

  1. [211]
    These recommendations come from Ms Kooymans.[241]  Consistently with my approach to items 4, 5, 9, 10, and 11 where there is unchallenged medical evidence contradicting Ms Kooymans’ recommendations, those items ought not be allowed.
  2. [212]
    Engaging with a general practitioner for community medical management is reasonable and appropriate.  Given Dr McPhee’s evidence, a referral to a spinal orthopaedic specialist is not.  Although Dr Chalk says that Ms Ho has not developed post-traumatic stress disorder, he accepts that psychological treatment is required and, in my view, referral to a psychiatrist to monitor her ongoing mental health is reasonable and appropriate.  Reference to a pain physician for ongoing pain management needs is actually consistent with Dr McPhee’s opinion where he says that the pain must be managed with analgesia.  That referral then is reasonable and appropriate.

16. Practical matters

Item description

  1. [213]
    Identify and address any practical matters as they arise including medication and pharmacy account, domestic services, and nanny service.[242]

Evidence

Applicant’s evidence

  1. [214]
    It is recommended that funding for Ms Ho’s pharmacy account at Ashmore Chempro, the domestic services and the nanny services continue for the foreseeable future.[243]

Respondent’s evidence

  1. [215]
    The evidence relied upon by the respondent in relation to this request is set out at items 6 and 7 above.[244]

Ruling on practical matters

  1. [216]
    For the reasons given in respect of Items 11 and 12 sought by Mr McIntyre,[245] ongoing provision of domestic and nanny services is reasonable and appropriate.
  2. [217]
    Ms Ho reports that she continues to experience ongoing physical pain as a result of her injuries. Dr Chalk opines that analgesic treatment is appropriate for the management of Ms Ho’s pain. Therefore, continued funding of Ms Ho’s account at Ashmore Chempro is reasonable and appropriate.

17. Support for recreational activities

Item description

  1. [218]
    Facilitate and support engagement in recreational activities and community re-integration/socialisation activities and address any barriers.[246]

Evidence

Applicant’s evidence

  1. [219]
    It has been identified that Ms Ho requires support with community reintegration and socialisation.[247]  It is recommended that Ms Ho engage in an occupational therapy assessment to review social isolation, engagement with purposeful and meaningful activities, and address any barriers to achieving these goals.[248]

Respondent’s evidence

  1. [220]
    The medico-legal report of Dr Chalk indicates that Ms Ho is socially avoidant. Ongoing psychological appointments with Dr Anne Mitchell, which may address this issue, have already been funded and thus this need is already addressed.[249]

Ruling on support for recreational activities

  1. [221]
    What Ms Ho seeks is a specialised occupational therapy assessment directed to suitability of recreational activities.  That, in my view, is treatment beyond psychological treatment.  It is reasonable and appropriate.

18. Psychologist

Item description

  1. [222]
    Monitor mood and psychological status.  Liaison and follow up with clinical psychologist to address mood changes and adjustment to disability as required.[250]

Evidence

Applicant’s evidence

  1. [223]
    Ms Ho reports experiencing ongoing psychological distress, post-traumatic stress disorder, sleep disturbance, nightmares, and anxiety.[251]
  2. [224]
    It is recommended that Ms Ho liaise with a clinical psychologist to obtain support for potential post-traumatic stress disorder,[252] to address mood changes and adjustment to disability and develop self-management strategies for anxiety and depression as required.[253]

Respondent’s evidence

  1. [225]
    Liaison with a clinical psychologist is not deemed reasonable and appropriate as the medico-legal report of Dr Chalk indicates that treatment beyond a further 12 psychiatric sessions is not likely to be beneficial.[254]

Ruling on psychologist

  1. [226]
    The recommendation for psychological treatment comes from the case manager, Ms Kooymans, and also from Dr McEntee who is an orthopaedic spinal surgeon and Dr Storer, a psychiatrist.  The fact that Dr Chalk disagrees does not render the provisions of the psychological services as considered by those advising Ms Ho either unreasonable or inappropriate.  The item should be allowed.
  2. [227]
    There are two items which AAI has partially approved. They are item 13 driving safety assessment and item 19 case management.
  3. [228]
    I turn now to consider the items which are only partially in dispute.

Items which have been partially approved

13. Driving safety assessment

Item description

  1. [229]
    Assessment of driving safety including assessing difficulties that compound safe driving such as visual issues, fatigue, pain exacerbation and anxiety.[255] The cost of the driving assessment is $1,561.92.

Evidence

Applicant’s evidence

  1. [230]
    Ms Ho reports continuing to experience residual pain and other symptoms associated with the injuries to her back, shoulder and neck as well as persistent fatigue, cognitive “fogginess”, and anxiety.[256]

Respondent’s evidence

  1. [231]
    This request is not considered reasonable and appropriate on the basis that D  Chalk’s report indicates that Ms Ho is capable of driving locally and psychological treatment to address Ms Ho’s reported ongoing driving anxiety has previously been approved.[257]  AAI has indicated that it will re-consider this request once Ms Ho has completed her psychiatric treatment.

Ruling in relation to driving safety assessment

  1. [232]
    The parties have regarded this as an item to which there has been partial agreement because it has not been rejected. AAI say they will consider it. However, as at the time of the present application it is something that AAI are refusing to supply.
  2. [233]
    Dr Chalk’s evidence is:

“Ms Ho has had significant difficulties with mixed anxiety and depressive symptoms. She described having at times heard a voice when she is driving that is urging her to perhaps drive into a tree. She has also had nightmares and these have attenuated over time and no longer re-live the accident in the same way that they did. However, they are full of a “sea of red” and lights. She has also been short-tempered and she reports, “My husband is pissed off with me”. She described worrying about the future in a way she did not previously. She has also experienced panic attacks…

Ms Ho drives but she is nervous and avoids driving; she really drives only locally. She will drive to Brisbane only under significant pressure. She even gets anxious in meetings with the local body corporate. She gets panicky but this is less frequent than it was.”[258]

  1. [234]
    While Ms Ho might be driving locally she is still having difficulties with driving and this is associated with her anxiety. A driving assessment as proposed, so as to address these issues, is reasonable and appropriate and should be provided by AAI.

19. Case management

Item description

  1. [235]
    Case management for the facilitation and coordination of all injury related needs to ensure maximal outcomes and resumption of pre-injury daily living activities.[259] The cost of the ongoing case management is quoted to be $10,640, the breakdown of which can be found in Ms Kooyman’s report in relation to Ms Ho at page 20.[260]

Evidence

Applicant’s evidence

  1. [236]
    Ongoing case management by Rehability Australia is required for the facilitation and coordination of rehabilitation services and for the development of communication strategies to be employed by all parties involved in Ms Ho’s rehabilitation to ensure open and updated communication and information is maintained throughout the rehabilitation process.[261]

Respondent’s evidence

  1. [237]
    AAI has not provided any evidence contesting the claim however it has submitted that this item is approved consistently with the current funding but not the extent claimed by Ms Ho.

Ruling in relation to case management

  1. [238]
    Ms Ho’s rehabilitation obviously requires ongoing management. For the reasons given with respect to Mr McIntyre’s item 26 and Ms Ho’s items 8 and 12, ongoing case management by Ms Kooyman’s is reasonable and appropriate.[262]

Conclusions and orders

  1. [239]
    The application seeks “a declaration or decision” as to what rehabilitation services are reasonable and appropriate.  The application is no doubt drawn in that way because s 51(5) requires “the court to decide what rehabilitation services are, in the circumstances of the case, reasonable and appropriate”.  Having decided that issue, the court must give a remedy to quell the dispute between the parties.  That remedy ought be by way of declaration.
  2. [240]
    Mr Matthews QC expressed concerns that declaratory relief may set up an estoppel so that AAI would be prevented from arguing at the trial that the cost of some or all of the rehabilitation items were not compensable by way of damages. 
  3. [241]
    Declaratory relief would settle the dispute the subject of the application.  The subject of the application is as to what rehabilitation services ought to be supplied pursuant to s 51 of the MAIA.  For the reasons already explained, it is not part of the court’s function when hearing an application under s 51 to make findings relevant to the final determination of the damages claim.  Consequently, AAI is not being inadvertently disadvantaged by virtue of the giving of declaratory relief.
  4. [242]
    In relation to those items on the schedule which have been conceded by AAI, it is inappropriate to make a declaration as there is no active controversy.  It is appropriate to make declarations only in relation to those items which AAI dispute and which have been determined to be reasonable and appropriate.
  5. [243]
    During argument the parties agreed that costs should be determined on written submissions and that when delivering judgment on the application I should give directions to facilitate that process.

Orders

  1. As to the application by the first applicant:
  1. (a)
    it is declared that the rehabilitation services claimed in each of items 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 15, 16, 17, 18, 20 and 24 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and
  1. (b)
    the total rehabilitation services claimed in each of items 13, 19, and 26 as identified in the schedule which is Exhibit 2 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.
  1. In relation to the application by the second applicant, it is declared that:
  1. (a)
    the rehabilitation services claimed in each of items 1, 2, 3, 6, 7, 8, 12, 13, 16, 17, 18, and 19 are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994; and
  1. (b)
    as to item 15 as identified in the schedule which is Exhibit 2, referrals to a general practitioner, a psychiatrist and a pain physician and subsequent treatment are reasonable and appropriate rehabilitation services for the purposes of s 51(3) of the Motor Accident Insurance Act 1994.
  1. The parties have liberty to apply for further orders necessary for the provision of the rehabilitation services ordered to be provided.
  2. The applicants are to file and serve written submissions and any material on costs by 4.00 pm on 15 October 2021.
  3. The respondent is to file and serve written submissions and any material on costs by 4.00 pm on 22 October 2021.
  4. The applicants are to file and serve any reply submissions on costs by 4.00 pm on 29 October 2021.
  5. The parties are at liberty to make application to make oral submissions on costs.
  6. If no application to be heard orally on the question of costs is filed and served by 4.00 pm on 3 November 2021, the issue of costs will be determined on the written submissions and material (if any) filed by the parties.

Footnotes

[1]  Affidavit of Dr Neil John Cochrane filed 22 March 2021 (CFI 22) annexing NC-02 pages 8-16; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 pages 347, 348.

[2]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[3]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2, 4.

[4]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[5]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BHK-1 page 15.

[6]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 9, 10.

[7]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 9, 10.

[8]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[9]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[10]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1; Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[11]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BHK-1 page 13.

[12]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2, 10.

[13]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[14]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 11.

[15]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 6.

[16]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-47 page 183; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-53 page 207.

[17]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 237.

[18]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 240.

[19]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 2.

[20]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) exhibiting GSB-56 pages 233, 234, 236.

[21]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 pages 233, 234, 236.

[22]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3; Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 2; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 233.

[23]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 pages 1, 5; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[24]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[25]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[26]  Affidavit of Brooke Heather Kooymans dated 27 January 2021 (CFI 19) annexing BHK-1 page 3.

[27]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6, 7; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-53 page 205, 208; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 236; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 5.

[28]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[29]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[30]  See reference to “medical, psychological, physical, social, educational and vocational measures” (emphasis added).

[31]McMullen v Suhr [1998] 2 Qd R 406 at 407.

[32]  (2009) 53 MVR 396.

[33]  Section 51(3).

[34]  Section 65(2)(e).

[35]  See the analysis of an earlier version of the deed by Wilson J in Massingham v AAMI Insurance Ltd [2007] QSC 174.

[36]  As does the Civil Liability Act 2003.

[37]  (1995) 22 MVR 245.

[38]McMullen v Suhr [1998] 2 Qd R 406.

[39]Massingham v AAMI Insurance Ltd (2007) 48 MVR 235.

[40]  (2009) 53 MVR 396.

[41]  At 412.

[42]  Including good.

[43]  (2007) 48 MVR 235.

[44]  Transcript, T 1-11.

[45]Lee v RACQ Insurance Ltd [2015] QSC 120 at page 7, ultimately resolved in the High Court in Lee v Lee (2019) 266 CLR 129.

[46]  The schedule was Exhibit 2 on the application.

[47]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 3.

[48]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[49]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 3.

[50]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 3, 4.

[51]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 3, 4.

[52]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 30.

[53]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 30.

[54]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[55]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 4.

[56]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 4, 5.

[57]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[58]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[59]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[60]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.

[61]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.

[62]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[63]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[64]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 5.

[65]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.

[66]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.

[67]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 31.

[68]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 6.

[69]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[70]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[71]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[72]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 6.

[73]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 6.

[74]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 7.

[75]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[76]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[77]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[78]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[79]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[80]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 7.

[81]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 7.

[82]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 7.

[83]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 2, 7.

[84]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[85]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[86]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[87]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 3.

[88]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 pages 3, 4.

[89]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[90]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[91]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[92]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[93]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[94]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[95]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[96]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[97]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 8.

[98]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 9.

[99]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[100]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[101]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[102]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 9.

[103]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 9.

[104]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[105]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 9, 10.

[106]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 9, 10.

[107]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 9, 10.

[108]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[109]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[110]  Affidavit of Xavier Zietek filed 11 February 2021 (CFI 20) annexing XZ-03 page 4.

[111]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 10.

[112]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 10.

[113]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 pages 1, 2.

[114]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347.

[115]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347.

[116]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 348.

[117]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347.

[118]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347.

[119]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347; Affidavit of Dr Neil John Cochrane filed 22 March 2021 (CFI 22) annexing NC-02 page 12.

[120]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 347.

[121]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 348.

[122]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 10.

[123]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 348.

[124]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 5) annexing GSB-89 page 348.

[125]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [28]-[30].

[126]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 11.

[127]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 11.

[128]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[129]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 1.

[130]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 11.

[131]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 17) annexing AEV-1 page 11.

[132]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 11, 12.

[133]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 12.

[134]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[135]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 5, 6, 8.

[136]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 32.

[137]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 5.

[138]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 6.

[139]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 5.

[140]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 5.

[141]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 5.

[142]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 5, 6.

[143]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [30].

[144]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 13.

[145]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 13.

[146]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 13.

[147]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 3, 5, 8.

[148]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [32].

[149]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 8.

[150]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 15.

[151]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 15.

[152]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 15.

[153]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 5, 6, 8.

[154]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [35], [36].

[155]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 15.

[156]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 3.

[157]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[158]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[159]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[160]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 5, 6, 8.

[161]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 15.

[162]  Affidavit of Dr Neil John Cochrane filed 22 March 2021 (CFI 22) annexing NC-02 page 15.

[163]  Affidavit of Dr Neil John Cochrane filed 22 March 2021 (CFI 22) annexing NC-02 page 15.

[164]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 16.

[165]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 17.

[166]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 24.

[167]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 5, 6, 8.

[168]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [22].

[169]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 7) at [17]-[22].

[170]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 9, 10.

[171]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 8.

[172]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[173]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 8.

[174]  Schedule of rehabilitation services sought page 5.

[175]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 5.

[176]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 page 4.

[177]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 18) annexing BKH-1 pages 22, 23.

[178]  Schedule of rehabilitation services sought page 8.

[179]  See [116].

[180]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 3.

[181]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 2.

[182]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 1.

[183]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 3.

[184]  Schedule of rehabilitation services sought page 10.

[185]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[186]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[187]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[188]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[189]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[190]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[191]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 pages 5, 6.

[192]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[193]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 5.

[194]  Schedule of rehabilitation services sought page 10.

[195]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[196]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[197]  Affidavit Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-70 page 374.

[198]  Affidavit Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-70 page 374.

[199]  Affidavit Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-70 page 374.

[200]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[201]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[202]  Affidavit Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 pages 233, 234, 236;

[203]  Affidavit Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 pages 235, 236, 237.

[204]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[205]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[206]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[207]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71.

[208]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6.

[209]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 7.

[210]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-53 page 205.

[211]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[212]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-53 page 205, 208; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 236; Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 7.

[213]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 6, 7.

[214]  Affidavit of Ross Alexander McConaghy filed 15 December 2020 (CFI 9) annexing RAM-07 page 67.

[215]  Affidavit of Ross Alexander McConaghy filed 15 December 2020 (CFI 9) annexing RAM-07 page 67.

[216]  Affidavit of Ross Alexander McConaghy filed 15 December 2020 (CFI 9) annexing RAM-07 page 67, 69; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[217]  Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 9; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 10.

[218]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 4-6.

[219]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 4-6.

[220]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 4-6.

[221]  Affidavit Natalie Cesera Guardala filed 15 December 2020 (CFI 8) at [29]-[30].

[222]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[223]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3; Affidavit of Amy Elizabeth Vincent filed 25 January 2021 (CFI 16) annexing AEV-1 page 2; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 233.

[224]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[225]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-47 page 182.

[226]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4; Affidavit of Gregory Stuart Black (CFI 3) annexing GSB-47 page 183.

[227]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-56 page 239.

[228]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 383.

[229]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[230]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382; Affidavit Natalie Cesera Guardala filed 15 December 2020 (CFI 8) at [24].

[231]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[232]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 4, 7.

[233]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[234]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[235]  Affidavit Natalie Cesera Guardala filed 15 December 2020 (CFI 8) at [26].

[236]  See paragraphs [173]-[175].

[237]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 11, 12.

[238]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[239]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-55 page 224.

[240]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-70 page 374; Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-71 page 382.

[241]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[242]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 12.

[243]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 12.

[244]  See paragraphs [187] and [188].

[245]  See paragraph [97].

[246]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 12, 13.

[247]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 7.

[248]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 5.

[249]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 8) at [39].

[250]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 13.

[251]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 5.

[252]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-47 page 183.

[253]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-55 page 224; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 7.

[254]  Affidavit of Gregory Stuart Black filed 9 December 2020 (CFI 3) annexing GSB-70 page 374; Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 19) at [41].

[255]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 4.

[256]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 3.

[257]  Affidavit of Natalie Cesera Guardala filed 15 December 2020 (CFI 19) at [33].

[258]  Affidavit of Natalie Guardala filed 15 December 2020 (CFI 19) annexing NCG-10 pages 61, 62.

[259]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 5.

[260]  Item 13 of the schedule relating to Ms Ho; Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 page 20.

[261]  Affidavit of Brooke Heather Kooymans filed 28 January 2021 (CFI 19) annexing BHK-1 pages 7, 8.

[262]  See paragraphs [116] and [194].

Close

Editorial Notes

  • Published Case Name:

    McIntyre & Anor v AAI Limited

  • Shortened Case Name:

    McIntyre v AAI Limited

  • MNC:

    [2021] QSC 251

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    08 Oct 2021

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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