National Injury Insurance Scheme Queensland v Ater

The issue arising in this recent matter was whether a Preservation Notice issued under s 41 National Injury Insurance Scheme (Queensland) Act 2016 ought be sanctioned on the application of the National Insurance Agency Queensland, which administers the National Injury Insurance Scheme. This is the first time this issue has been considered in Queensland.

Brown J

26 June 2020

The participant in the scheme, the respondent, had suffered catastrophic injury including brain injury when hit on the head by a truck mirror whilst a pedestrian. [5]. Subsequently he became a lifetime member of National Injury Insurance Scheme Queensland. [9]. He had the benefit of a litigation guardian and elected to preserve his right to pursue common law damages for treatment, care and support. Her Honour was required to assess whether a sanction of the preservation notice was in the respondent’s best interests.

The legislation

Section 41(1) National Injury Insurance Scheme (Queensland) Act 2016 provides for a participant to give a “preservation notice” to the National Insurance Agency, indicating whether they wish to preserve their right to be awarded treatment, care and support damages. In the event the Agency considers that the participant is a person under a legal disability, s 41(5) of the Act obliges the Agency to apply to the Court for an order sanctioning a preservation notice. Section 41(7) provides the Court with the discretion to sanction the notice, order that the participant give a new notice or may make any other order it considers appropriate.

Section 42 of the Act provides that if a participant gives a preservation notice, the Agency is liable to contribute towards the insurer’s liability, unless inter alia the participant is guilty of contributory negligence or the damages that they would otherwise be entitled to in the absence of contributory negligence are to be reduced, because of the contributory negligence, by 50 per cent or more.

Section 43 of the Act allows the Agency to apply for an order preventing the participant from being awarded treatment, care and support damages under a final judgment of a Court or a binding settlement, having particular regard to:

(a)the participant’s ability to manage an award of treatment, care and support damages in a way that will not compromise the participants:

a.prospects of improvement and rehabilitation; or

b.future health and wellbeing; and

(b)whether the participant is a person under a legal disability.

The meaning of “person under a legal disability”

Her Honour observed that the requirement of sanction of a preservation notice appears to only exist in Queensland. [22]. The term “person under a legal disability”, as contained in ss 41 and 43 of the Act, is defined to mean a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000: see Sch 1 and 4. For the purposes of the present matter her Honour’s view was that a “person under a legal disability” was intended to refer to someone without the capacity to decide whether to issue the preservation notice, that is to stay within the scheme or to preserve the right to pursue common law damages particularly damages for treatment, care and support. [24].

The test to be applied

In terms of the scope of the Court’s discretion in determining whether to sanction the preservation notice, her Honour noted the complete absence of any guidance from s 41(7) of the Act, the Explanatory Memorandum for the National Injury Insurance Scheme (Queensland) Bill 2016 or the Second Reading Speech. [28]. As such her task was not an easy one.

At the outset, she noted the need to have close regard to the Court’s parens patriae jurisdiction when considering the applicable provisions: see Keryn Mayer as litigation guardian for Ben David McKinlay v Mahoney [2011] QSC 279. She adopted a similar approach to that generally followed under s 59 Public Trustee Act 1978 – namely, whether in all the circumstances it is in the best interest 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. Her Honour further noted that since the Court is endowed with the powers in Ch 3 Guardianship and Administration Act 2000, it is required to address whether the participant requires the benefit of a guardian or administrator in the making of decisions to pursue such actions. [30].

She relevantly noted that, curiously, under the Act it is the Agency which seeks the sanction of the Court instead of the participant who gave the notice – that in itself is unusual since the Agency is not in a position to provide the Court with any advice of the prospects of the success of any action for common law damages and particularly treatment, care and support damages. [31]. It follows that all the Agency is expected to provide relates to evidence as to the participant’s medical condition, needs and impairment together with submissions as to whether the participant requires a guardian or administrator such as would necessitate a Court appointment under Ch 3 Guardianship and Administration Act 2000. [33]. In terms of what material may be required from the participant, that will depend upon their individual circumstances, bearing in mind that the Act does not impose any obligation upon them to obtain the sanction of the Court. In the present matter her Honour forecast that “one would anticipate going forward the guardian will be advised of and give proper consideration to whether any anticipated damages that may be awarded for his treatment care and support will meet Mr Ater’s needs in the way and with the certainty presently offered under the scheme”. [39].

Whether the notice should be sanctioned

After careful consideration, her Honour formed the view that it was in the respondent’s best interests to sanction the preservation notice in circumstances where:

(a)he had the benefit of a litigation guardian whose role was to make decisions in his best interests;

(b)there was no suggestion that he did not have a right to pursue common law damages and would not have a genuine choice between remaining a permanent participant in the Scheme or alternatively accepting damages for treatment, care and support;

(c)his potential exposure to costs was a matter of speculation; and

(d)as with all other participants, he should not be deprived of the opportunity to preserve his right to common law damages, which might offer him enhanced options for his treatment, care and support not presently offered by the Scheme. [43].

A de Jersey