Exit Distraction Free Reading Mode
- Notable Unreported Decision
- National Injury Insurance Agency, Queensland v Harrison[2021] QSC 253
- Add to List
National Injury Insurance Agency, Queensland v Harrison[2021] QSC 253
National Injury Insurance Agency, Queensland v Harrison[2021] QSC 253
SUPREME COURT OF QUEENSLAND
CITATION: | National Injury Insurance Agency, Queensland v Harrison [2021] QSC 253 |
PARTIES: | NATIONAL INJURY INSURANCE AGENCY, QUEENSLAND (applicant) v JOSHUA ATEREA SYDNEY HARRISON by his Litigation Guardian DEBORAH WHITE (respondent) |
FILE NO/S: | BS 9618 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 8 October 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 September 2021 |
JUDGE: | Kelly J |
ORDERS: |
|
CATCHWORDS: | INSURANCE – CLAIMS GENERALLY – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – OTHER MATTERS – where the respondent suffered serious injuries, including a severe traumatic brain injury, in a car accident – where QCAT had appointed the respondent’s mother as his administrator for all financial matters – where the Court is not bound by that decision – whether the respondent is a person under a legal disability within the meaning of the National Injury Insurance Scheme (Qld) Act 2016 INSURANCE – CLAIMS GENERALLY – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – NOTICES, CLAIMS AND EXTENSIONS OF TIME – QUEENSLAND – where the applicant applied for an order preserving the respondent’s right to later determine whether or not to accept an award of damages for their treatment, care and support needs – where the applicant submits that there is a prospect that the respondent’s contributory negligence will be assessed at 50%, with the result that a claim by the respondent to pursue common law damages may be fruitless – where the applicant submits that regardless, the respondent will be able to recover other components of damage, such as economic loss – where any settlement of the respondent’s common law claim will require supervision of the court – whether sanctioning the preservation notices is in the best interests of the respondent. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN – where the respondent was under a legal incapacity – where they were represented by their relative who was appointed as a financial administrator by QCAT – where the relative had failed to file written consent to being a litigation guardian prior to commencement of proceedings but had nonetheless represented the respondent – where the Uniform Civil Procedure Rules 1999 provide that a person under a legal incapacity may only defend proceedings through their litigation guardian – whether there was a procedural irregularity in the circumstances. Civil Liability Act 2003, s 52B, s 52C Guardianship and Administration Act 2000, s 12, sch 1, sch 4 Motor Accident Insurance Act 1994, s 61A National Injury Insurance Scheme (Qld) Act 2016, s 3, s 8, s 41, s 42, s 44, s 45 Public Trustee Act 1959, s 59 National Injury Insurance Scheme Qld v Ater [2020] QSC 198, applied Nelson v Cyran [2015] QCA 226, followed |
COUNSEL: | J McClymont for the applicant MJ Smith for the respondent |
SOLICITORS: | Moray & Agnew for the applicant Maurice Blackburn for the respondent |
Nature of Application
- [1]Since 11 December 2018, the respondent has been a lifetime participant in the National Injury Insurance Scheme, Queensland (the Scheme).[1] The applicant administers the Scheme which is established by the National Injury Insurance Scheme (Qld) Act 2016 (Qld) (the Act). On 15 December 2018, the respondent gave a written notice to the applicant pursuant to s 41(1) of the Act (the Preservation Notice).[2] The respondent gave the Preservation Notice to Suncorp Insurance (Suncorp) on 20 December 2018. The applicant considers that the respondent is a person under a legal disability and has applied by way of an originating application for an order under s 41(7) of the Act sanctioning the Preservation Notice. The respondent appeared by counsel on the return of the originating application and does not oppose the order. Suncorp has been given notice of the originating application and does not oppose the order.
- [2]Before deciding whether to sanction the Preservation Notice, I am required to be satisfied that the respondent is a person under a legal disability.[3]
Is the respondent a person under a legal disability?
- [3]The term “person under a legal disability” is relevantly defined by Schedule 1 to the Act to mean “a child; or a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000 (Qld) [the GA Act]”. Schedule 4 to the GA Act relevantly includes the following definitions:
“capacity, for a person for a matter, means the person is capable of—
- (a)understanding the nature and effect of decisions about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.
impaired capacity, for a person for a matter, means the person does not have capacity for the matter.”
- [4]The respondent is 24 years old. On 6 January 2017, he was a passenger in a car which left the road and collided with a tree (the accident). The respondent suffered serious injuries in the accident, including a severe traumatic brain injury.[4]
- [5]On 11 March 2020, QCAT, acting pursuant to s 12(1) of the GA Act, appointed the respondent’s mother, Ms Deborah Marie White (Ms White), as his administrator for all financial matters, including decisions about a claim for damages arising from injuries sustained in the accident and instructing lawyers in that claim. To make that appointment, the member of QCAT was required to be satisfied that the respondent had impaired capacity within the meaning of the GA Act.[5] In the present application, the applicant has relied upon a suite of medical reports pertaining to the respondent.[6] Relevantly:
- (a)Ms Lynda Troy, a clinical neuropsychologist, considers that the respondent suffered a major neurocognitive disorder due to the traumatic brain injury with associated behavioural disturbance and has a category 2 impairment at the higher-level equating to 25%.[7]
- (b)Dr John Chalk, a psychiatrist, agrees with Ms Troy’s assessment and considers that “these deficits are permanent and highly unlikely to change greatly”.[8]
- (c)Dr Scott Campbell, a neurosurgeon, has assessed the respondent as suffering a 54% whole person impairment.[9]
- (a)
- [6]Ms Troy’s report also contains the following opinion:
‘[The respondent] showed a broad range of deficits that may impact on his ability to manage his financial and legal affairs, primarily in the area of language and memory, but also in executive processing. His ability to comprehend what he hears is at the level of a child in grade 2, and his level of comprehending what he reads is below that of a child in grade 5. As such, combined with his reduced attention, and his poor memory, he will have difficulty in taking in and comprehending relevant information, and in retaining it sufficiently to guide decision making, both in legal and financial settings. He will tend to focus on small pieces of information, rather than the whole picture, impairing his ability to comprehend complex issues and generate alternative solutions, or to ensure that he is using his own guidelines and rules to guide decision making, easily losing track and drawn to particular issues without an ability to objectively review all relevant factors…he requires others to explain information to him, and help him consider alternatives and consequences, and his lack of insight means he may not recognise when he needs to seek help. …As such, I would consider that his ability to understand complex decisions and the consequences thereof, is impaired, as is his ability to freely and voluntarily make decisions, conflicted by his need to seek clarification from others, his wish to be independent, and reduced insight into his current ability and level of functioning.’[10]
- [7]On the basis of this medical evidence, I find that the respondent is a person under a legal disability within the meaning of the Act.
The Scheme and its relationship to damages claims
- [8]The Scheme is established to ensure that persons who suffer particular serious personal injuries as a result of motor vehicle accidents receive necessary and reasonable treatment, care and support, regardless of fault.[11] The Act defines “treatment, care and support needs” as including, inter alia, medical and pharmaceutical treatment, rehabilitation, attendant care and support services, aids and appliances.[12]
- [9]On 17 February 2017, the respondent was accepted as an interim participant in the Scheme.[13]
- [10]Suncorp is the insurer of the car involved in the accident for the system of compulsory third-party motor vehicle insurance recognised by the Motor Accident Insurance Act 1994 (Qld) (the MAI Act). On 10 April 2017, the respondent commenced a claim for common law damages against the driver of the car involved in the accident. The claim was commenced by the service of a notice of claim for damages pursuant to the MAI Act.[14] Suncorp has admitted that the negligence of the driver caused the accident but contends that the respondent contributed to his injuries to the extent of 50% by travelling with an intoxicated driver.[15] In this respect, following the accident, the driver of the car provided a blood sample which was tested and contained a blood alcohol concentration of 0.118%. The blood sample also contained tetrahydrocannabinol at a concentration of 0.014 mg\kg.[16]
- [11]On 12 December 2018, the respondent was accepted as a lifetime participant in the Scheme.[17] As a lifetime participant in the Scheme, the respondent is entitled to payments from the Scheme to fund his treatment, care and support. He has been assigned an external case manager, his needs have been assessed and a support plan developed in accordance with sections 25 and 26 of the Act.[18] If the respondent remains within the Scheme, his treatment, care and support needs will continue to be provided for, centrally coordinated by the applicant and adapted flexibly according to his needs.[19]
- [12]The respondent’s claim against Suncorp, and his entitlement to recover damages for “treatment, care and support”, is regulated by a combination of the Act, the MAI Act and the Civil Liability Act 2003 (the CL Act). Relevantly, the position may be outlined as follows:
- (a)Section 52B of the CL Act provides that a court cannot award damages in relation to the respondent’s treatment, care or support needs resulting from his personal injuries suffered in the accident and which arise, or arose, while he is or was a participant in the Scheme;
- (b)However, the position as stated in s 52B of the CL Act is expressed to be subject to s 52C. To understand how s 52C of the CL Act operates, it is first necessary to outline some relevant provisions of the Act and the MAI Act;
- (c)Part 4, Division 4 of the Act (which includes sections 40 to 44) deals with the circumstances in which the applicant can be required to contribute to Suncorp’s liability in respect of the respondent’s claim for treatment, care and support damages;
- (d)Part 4, Division 4 of the Act applies to the respondent because he has made a claim against Suncorp for his personal injuries suffered in the accident;
- (e)Section 41(1) of the Act required the respondent to give a notice to the applicant and Suncorp stating whether or not he wished to preserve any right he may have to be awarded treatment, care and support damages under a final judgment of a court or a binding settlement;
- (f)The Preservation Notice was given by the respondent to the applicant and Suncorp under s 41(1) of the Act and stated an intention on the part of the respondent to preserve any right to be awarded treatment, care and support damages under a final judgment of a court or a binding settlement of such rights;
- (g)The respondent made his claim upon Suncorp on 3 May 2017, before he was accepted as a lifetime participant in the Scheme on 12 December 2018, and as a result of these facts, pursuant to s 41(3)(b) of the Act, the Preservation Notice was required to be given to the applicant and Suncorp within 14 days of 12 December 2018;
- (h)The Preservation Notice was given to the applicant on 15 December 2018 and to Suncorp on 20 December 2018;
- (i)Pursuant to s 42(1) of the Act, the giving of the Preservation Notice meant that the applicant became liable to contribute towards Suncorp’s liability, if any, on the respondent’s claim for treatment, care and support damages;
- (j)Pursuant to s 41(5) of the Act, the applicant was required to apply to the court for an order sanctioning the Preservation Notice if the applicant considered the respondent was a person under a legal disability;
- (k)The applicant has submitted before this court that it is “clear that [the respondent] is a person under a legal disability”, and hence has made this application to sanction the Preservation Notice;
- (l)Pursuant to s 42(2) of the Act, the applicant will relevantly stop being liable to contribute towards Suncorp’s liability if:
- (i)The court decides, or the parties to the claim agree by way of binding settlement, that the respondent was guilty of contributory negligence in relation to the claim and the damages to which he would otherwise have been entitled are to be reduced by reason of that contributory negligence by 50% or more; or
- (ii)The court decides not to sanction the Preservation Notice under s 41(7) of the Act;
- (i)
- (m)Turning then to s 52C of the CL Act:
- (i)That section applies in circumstances where the respondent has suffered “serious personal injury” resulting from the accident and the court decides that the respondent has not been contributory negligent at all or at least by less than 50% and the applicant otherwise remains liable under s 42 of the Act to contribute towards Suncorp’s liability on the respondent’s claim for treatment, care and support damages;
- (ii)In those circumstances as articulated in subparagraph (i), the court may award treatment, care and support damages and, if such damages are awarded, the court must not in assessing the amount of the damages take into account any contributory negligence of the respondent.
- (i)
- (n)Section 44 of the Act applies if the respondent is ultimately awarded treatment care and support damages under a final judgement of the court or a binding settlement and the applicant is liable under s 42 to contribute towards Suncorp’s liability on the claim for treatment, care and support damages. In those circumstances, the respondent is required to give notice to the applicant and Suncorp stating whether or not he accepts the award of treatment, care and support damages.
- (o)In the event that the respondent accepts the awarded treatment, care and support damages:
- (i)The applicant has to pay to the respondent the amount of the awarded treatment, care and support damages less any amount that relates to the period of the respondent’s participation in the Scheme and the respondent stops being a participant in the Scheme from the receipt of the payment;
- (ii)Despite the final judgement of the court or the terms of the binding settlement, Suncorp will not be liable to pay to the respondent the amount of the awarded treatment, care and support damages and the applicant is not liable to pay to the respondent any amount of the awarded treatment, care and support damages that relates to the period of the respondent’s participation in the Scheme;
- (i)
- (p)In the event that the respondent does not accept the awarded treatment, care and support damages, despite the judgment of the court or the terms of the binding settlement, there is no liability on the part of the applicant or Suncorp to pay those damages.
- (a)
Should the Preservation Notice be Sanctioned?
- [13]As Brown J observed in National Injury Insurance Scheme Qld v Ater,[20] no particular matters are identified in s 41(7) of the Act as guiding the exercise of the Court’s discretion to sanction a preservation notice. After noting that the explanatory memorandum for the National Injury Insurance Scheme (Qld) Bill 2016 and the Second Reading Speech did not substantively address the provision, her Honour then relevantly observed:[21]
“I consider that in determining whether or not to sanction a preservation notice under s 41(7) of the Act, the Court must determine whether it is in the best interests of the participant under a legal disability to preserve the participant’s right to be awarded treatment, care and support damages in circumstances where they would otherwise receive treatment, care and support as provided for under the Act.”
- [14]In the present case, the applicant submitted that I could be satisfied that it was appropriate to sanction the Preservation Notice having regard to the following considerations:
- (a)Whilst there is a prospect that, given the driver’s blood sample analysis, the respondent’s contributory negligence might be assessed at 50%, in which event the respondent would have wasted legal costs pursuing damages for his treatment, care and support needs, the respondent would still have an entitlement to recover other damages in his common law claim. In particular, it was submitted by the applicant that the respondent would appear to have an entitlement to a substantial award of damages for economic loss, given his age and the fact that he was employed as an apprentice cabinet maker at the time of the accident;
- (b)The effect of a sanction of the Preservation Notice is merely to preserve the respondent’s right to later determine whether or not to accept an award of treatment, care and support damages made on the basis that his contributory negligence was either non-existent or less than 50%;
- (c)Refusing the sanction would deprive the respondent of the opportunity, provided by s 44 of the Act to all participants in the Scheme, to elect whether to accept an amount of damages for treatment, care and support needs or remain in the Scheme;
- (d)It would be premature at this stage to require the respondent to provide a proposal as to how his treatment, care and support needs would be managed if he were to accept a lump sum for his treatment, care and support damages and thereby opted out of the Scheme;
- (e)Should it become apparent to the applicant, at any time prior to the respondent electing to accept a lump sum for his treatment, care and support damages, that it would not be in his interests to accept such a payment, the applicant has the right to apply to the Court under s 43 of the Act for an order preventing the respondent from being awarded such damages;
- (f)Any settlement of the respondent’s common law claim would require the court’s sanction pursuant to s 59 of the Public Trustee Act 1959 (Qld) (the Public Trustee Act), and it might reasonably be expected that, upon any such application the respondent would inform the Court of his intended election and the basis upon which the election to accept a lump sum by way of treatment care and support damages was considered to be in his best interests.
- (a)
- [15]I consider that I should sanction the Preservation Notice and my reasons for my decision may be outlined as follows:
- (a)The respondent, although a person under a legal disability, has the benefit of an administrator appointed for all his financial matters, including decisions about a claim for damages arising from injuries sustained in the accident and instructing lawyers in that claim;
- (b)The Preservation Notice was given in accordance with the requirements of ss 41(1) and 41(3)(b) of the Act;
- (c)There is no submission made that the respondent’s claim to common law damages is misconceived, made without a proper basis or bound to fail. Indeed, the applicant submits, and I accept, that the respondent arguably has an entitlement to a substantial award of damages for economic loss, given his age and the fact that he was employed as an apprentice cabinet maker at the time of the accident;
- (d)On the basis of the material before me, it is a matter of speculation as to what level of contributory negligence on the part of the respondent, if any, might be found to exist in the circumstances of the accident. I am prepared to accept that there is some prospect of a finding of contributory negligence of 50% but I do not regard that prospect as providing a sufficient reason to refuse to sanction the Preservation Notice. Court proceedings have not yet been commenced. A compulsory conference is scheduled to occur in the near future. If the matter does not resolve at the compulsory conference, any decision as to whether Court proceedings should be commenced, will be informed in part by matters canvassed at the compulsory conference;
- (e)Given that there is no submission made that his damages claim is misconceived, made without a proper basis or bound to fail, the respondent, like other participants in the Scheme, should, as matters presently stand, retain the opportunity to preserve his right to claim treatment, care and support damages;
- (f)Refusing the sanction at this stage would deprive the respondent of the opportunity provided by s 44(2) of the Act to elect whether to accept awarded treatment, care and support damages under a final judgment of a court or a binding settlement;
- (g)I regard it as premature at this stage to require the respondent to provide a proposal as to how his treatment, care and support needs should be managed were he to accept lump sum damages and opt out of the Scheme. Any such proposal would very much depend on the amount of the lump sum and I am not convinced that it would be efficient or cost effective to prepare such a proposal for the purposes of this application and in advance of the upcoming compulsory conference. The respondent presently has the benefit of an external case management plan prepared by Edge Rehabilitation. The respondent and his administrator have been involved in the creation of that case management plan. The respondent’s support needs are presently regarded as fairly stable. I am comforted by the administrator’s involvement in the creation of the existing case management plan and I infer that she could reasonably be expected to be involved in any future proposal as to how the respondent’s treatment, care and support needs should be managed were he to accept lump sum damages and opt out of the Scheme;
- (h)In the event that the applicant ever forms the view that it is not in the respondent’s best interests to accept a lump sum for his treatment, care and support damages, the applicant has the right to apply to the court under s 43 of the Act for an order preventing the respondent from being awarded the lump sum;
- (i)Any settlement of the respondent’s common law claim would require the sanction of this Court pursuant to s 59 of the Public Trustee Act and it is reasonable to expect that upon such an application the Court would be informed of the reasons why accepting the lump sum was then considered preferable to the respondent remaining as a participant in the Scheme;
- (j)The respondent and Suncorp do not oppose the sanction of the Preservation Notice.
- (a)
- [16]The court heading for this proceeding described the respondent as “Joshua Aterea Sydney Harrison by his litigation guardian Deborah White”. As I have already noted, on 11 March 2020, QCAT, acting pursuant to s 12(1) of the GA Act, appointed Ms White as the respondent’s administrator for all financial matters, including decisions about a claim for damages arising from his injuries sustained in the accident and instructing lawyers in that claim. Pursuant to r 94(2) UCPR, Ms White is entitled to be the respondent’s litigation guardian, being a person who has been authorised under the GA Act to conduct legal proceedings in the name of the respondent. Pursuant to r 95(1) UCPR, to become the respondent’s litigation guardian, Ms White was required to file her consent to being the respondent’s litigation guardian in the proceeding.
- [17]The originating application was filed at a time when Ms White had not filed the consent required under r 95(1) UCPR. She has since filed that consent. Rule 93(1) UCPR provides that a person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian. Rule 93(2) provides to the effect that anything in a proceeding required or permitted by the UCPR to be done by a party may, if a party is under a legal incapacity, be done only by the party’s litigation guardian. The respondent appeared by counsel instructed by solicitors on the return of the originating application and did not oppose the application. The originating application had been served on, and accepted by, the respondent’s solicitors. The acceptance of service by a solicitor is something permitted by r 115 UCPR but it seems to me to be correct that, applying r 93(2) UCPR, the acceptance should have occurred only after instructions had been obtained from the respondent’s litigation guardian to accept service. Ms White was not the litigation guardian at the time that service of the originating application was accepted because she had not yet consented to her appointment as litigation guardian and did not do so until after the oral hearing of the application.
- [18]After the hearing, the applicant and the respondent jointly submitted in writing that I should regard the absence of Ms White’s filed written consent as an irregularity within the meaning of r 371 UCPR. I find that to the extent that there has been any failure to comply with r 95(1) UCPR in respect of the timing of the filing of Ms White’s written consent to act as litigation guardian, that failure is an irregularity within the meaning of rule 371(1) UCPR.[22]
- [19]The orders I make are as follows:
- (a)Pursuant to s 41(7) of the National Injury Insurance Scheme (Queensland) Act 2016 (Qld), the respondent’s preservation notice dated 15 December 2018 given under s 41(1) of that Act be sanctioned.
- (b)Pursuant to r 371(2) UCPR, declare that anything done by the respondent in this proceeding up until the filing of the document being the Consent of Litigation Guardian dated 6 October 2021 signed by Deborah White be regarded as effectual.
- (a)
Footnotes
[1] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibit GJW-06, p 23.
[2] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibit GJW-08, p 28.
[3] s 41(6) of the Act.
[4] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibit GJW-14 p 92.
[5] GA Act s 12(1)(a).
[6] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibits GJW-01, GJW-10, GJW-11, GJW-12, GJW-13, GJW-14, GJW-15, GJW-16, GJW-17 and GJW-18.
[7] Ibid, exhibit GJW-18 p 197.
[8] Ibid.
[9] Ibid, exhibit GJW-12 p 47.
[10] Ibid, exhibit GJW-14 p 105.
[11] s 3 of the Act.
[12] s 8 of the Act.
[13] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibit GJW-05.
[14] Ibid, exhibit GJW-03 p 14.
[15] Ibid, exhibit GJW-09 p 29.
[16] Affidavit of Gaenor Jean Walker filed 20 August 2021, exhibit GJW-01 p 6.
[17] Ibid exhibit GJW-06 p 23.
[18] Ibid, exbibit GJW-07 p 24.
[19] Ibid, [26].
[20] [2020] QSC 198 [28].
[21] Ibid [30].
[22] Nelson v Cyran [2015] QCA 226[52]-[56].