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This is a significant decision which will no doubt have ramifications for future claims for past or future gratuitous care for participants in the National Injury Insurance Scheme (Queensland) Act 2016. The issue to be determined was whether the plaintiff’s election to remain a participant in the insurance scheme established under the Act precluded him from claiming lump sum damages for gratuitous care from the defendant’s insurer. Justice Ryan concluded that it did. The judgment also clarifies the correct interpretation of ss 8 and 9 of the Act, amongst other provisions.
20 October 2020
The plaintiff brought an action for damages for catastrophic personal injury including paralysis against the first defendant and her insurer. Early in the reasons her Honour evaluated the plaintiff’s prospects against the at-fault defendant as sound. . Gratuitous assistance given by family to the plaintiff included nursing services provided by his wife, herself a nurse by profession. .
Whilst liability was admitted the quantum of the claim was in dispute. . Due to the scale of his injuries the plaintiff is a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (the “Scheme”). . The defendant insurer queried whether, due to the plaintiff’s participation in the Scheme, it was liable to compensate him with lump sum damages for past or future gratuitous care. . Some, but not all of the plaintiff’s “treatment, care and support needs” were funded by the National Injury Insurance Agency, Queensland (“the Agency”) under the Scheme. In particular, many of his attendant care services were unfunded. . The issue for the court was whether the plaintiff’s status as a participant in the Scheme precluded him from any entitlement to claim lump sum damages for gratuitous care from the defendant’s insurer on a proper construction of the legislation.
The operation of s 52B of the Civil Liability Act 2003 and the nature of the plaintiff’s participation in the Scheme
This provision, integral to the legal issue of entitlement to damages for past or future gratuitous care, operates to restrict damages available to participants in the Scheme, specifically by preventing a court from awarding damages for the “treatment, care and support needs” of a plaintiff/participant where those needs arose while the plaintiff/participant was a participant in the Scheme, subject to s 52C of the Civil Liability Act 2003.
The scope of the plaintiff’s position under the Scheme was directly relevant. Her Honour noted the following: –:
- The plaintiff whilst initially joining as an interim participant became a lifetime participant some two years later;
- He gave a preservation notice to the Agency but shortly thereafter withdrew same;
- Just shy of six months later he filed his claim and statement of claim against the defendants.
Importantly the plaintiff’s motivation for withdrawing the preservation notice was unknown. . Plainly, had he not withdrawn the preservation notice he could have sued the defendants for “treatment, care and support damages” in a straightforward manner under s 52C of the Civil Liability Act 2003. . That position was altered by his decision to withdraw the preservation notice, subjecting him to s 52B. .
The parties’ positions
The plaintiff sought to argue that gratuitous care was not a “treatment, care and support need” for which the Agency was responsible on the basis that it is literally excluded from s 8 of the Scheme by s 9 of the Scheme, and as such, the legislation preserved his legal entitlement to recover damages for such care from the second defendant. . Treatment, care and support needs are defined in s 8. Section 8 provides:
“8 Meaning of treatment, care and support needs
The treatment, care and support needs of a person are the person’s needs for, or relating to, 1 or more of the following—
(a) medical or pharmaceutical treatment;
(b) dental treatment;
(d) ambulance transportation;
(e) respite care;
(f) attendant care and support services;
(g) aids and appliances, other than ordinary personal or household items;
(i) education or vocational training;
(j) home or transport modification.”
“[A]ttendant care and support services” (in s 8(f)) are defined in Sch 1 of the Scheme as being “services to help a person with everyday tasks”.
“[E]xcluded treatment, care and support” is defined in s 9 as follows
“9 Meaning of excluded treatment, care and support
(1) Excluded treatment, care and support is treatment, care and support that—
(a) is provided without charge; or
(b) if the participant is a child—ordinarily falls within the ordinary costs of raising a child; or
(c) must be provided by a registered provider but is provided by a person who, at the time of provision, is not a registered provider; or
(d) is provided as part of a medical trial or on another experimental basis; or
(e) is provided as part of a public sector health service, as defined in the Hospital and Health Boards Act 2011, schedule 2;
(f) or is provided by State emergency services, including the Queensland Ambulance Service or the Queensland Fire and Emergency Service; or
(g) is prescribed by regulation.
(2) For subsection (1)(c), the following treatment, care and support must be provided by a registered provider—
(a) attendant care and support services that are personal assistance services or services to assist a person to participate in the community;
(b) any other treatment, care or support prescribed by regulation.
(3) However, subsection (2)(a) does not apply if the treatment, care and support is being provided to a person at a hospital(whether as an inpatient or an outpatient) as part of the services provided by the hospital.”
The plaintiff advanced the proposition that s 52B of the Civil Liability Act 2003 only operates as a bar to recovering damages in relation to a person’s “treatment, care and support needs”, that is, matters which fall within s 8 of the Scheme. . He further submitted that when s 8 is read in conjunction with s 9, “gratuitous care, and care provided by an unregistered provider, are excluded from the definition of ‘treatment, care and support needs’” and therefore s 52B does not operate to restrict his entitlement to recover damages for the gratuitous care and support provided by his family. .
Conversely, the second defendant contended that, inter alia, –:
- the plaintiff’s claim for damages for gratuitous care was contrary to the statutory scheme;
- the plaintiff was “seeking to get the best of both worlds” through receipt of a lump sum together with benefits from the Scheme, amounting to a form of “double recovery” not contemplated by the Scheme;
- properly construed, damages for gratuitous care fall within the scope of “treatment, care and support damages” pursuant to ss 8 and 9 of the Scheme;
- reading the Scheme harmoniously entails a non-literal interpretation of the word “excluded” in s 9.
Her Honour did not share the plaintiff’s view that a literal interpretation of s 9 preserved his entitlement to damages for gratuitous care. Indeed, she commented that the plaintiff’s approach did “not align with the distribution of risk and funding intended by the Scheme and has the potential to undermine levy arrangements”. . She also noted that a potentially undesirable consequence of his approach was that the only limit placed upon the damages award for gratuitous care would be the “necessary” limit imposed by s 59(1)(a) of the Civil Liability Act 2003 – conceivably enabling a plaintiff to claim up to and including the whole amount of his/her treatment, care and support costs as a lump sum from an insurer out of a fund which does not include levies for the treatment, care or support of Scheme participants. . Overall, she observed that the plaintiff’s interpretation of s 9 would lead to a number of anomalous results. .
In the result, the Court found that the claim for past and future gratuitous services was precluded because the plaintiff had withdrawn his preservation notice – but the position would have been different had this not occurred. Withdrawal of the notice was a unilateral decision of the plaintiff, which resulted in him depriving himself of “the choice the legislature intended to preserve for him”. . The outcome for the plaintiff was distinct from the default position under the Scheme. . In dispensing of the matter, her Honour clarified that s 9 “does not literally exclude from ‘treatment, care and support’ the treatment, care and support delivered in the circumstances listed in section 9. Rather, section 9 creates a subset of treatment, care and support for the purposes of the Scheme and the CLA”. .
A de Jersey