In it for life – plaintiff bound to Insurance Scheme

03 December 2020

A plaintiff who was a participant to the National Injury Insurance Scheme (Queensland) Act 2016 was prohibited from receiving an award of damages for gratuitous care after withdrawing his preservation notice which protected his rights.

In issue

  • Whether a plaintiff could opt out of the National Injury Insurance Scheme (Queensland) Act 2016 and claim damages for gratuitous care in circumstances where he had failed to submit a “preservation notice” against the Agency.

The background

On 11 August 2016, the plaintiff, Graham Walters, was riding his bicycle on a road in Burpengary. The first defendant, Kathleen Roche, was distracted by her mobile phone and hit the plaintiff with her car. The plaintiff suffered serious injuries, including spinal injury at the level of T10, and psychological injuries. He was previously employed as an emergency rescue paramedic. Liability was admitted, while quantum was disputed.

The plaintiff was a “lifetime participant” in the insurance scheme established by the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (the Scheme) which aims to ensure that the treatment, care and support needs of those who are catastrophically injured in car accidents are met for their lifetime. The plaintiff and his wife found the Scheme’s administrative aspects a burden and they resented their lack of autonomy over decisions about the plaintiff’s treatment, care and support. The plaintiff sought $3.5 million in damages, including $1.7 million for gratuitous care, from the defendants in addition to the ongoing benefits received under the scheme.

QBE asserted that some aspects of the plaintiff’s claim were “excessive and contrary to the medical and other evidence and the application of the Civil Liability Act 2003 (Qld) (CLA) and the Scheme”. Specifically, QBE submitted that, because the plaintiff was a participant in the Scheme, QBE was not liable to compensate him in damages for past or future gratuitous care.

The decision at trial

Application of the Scheme to the plaintiff

Section 52B(2) of the CLA provides that a court cannot award damages in relation to treatment, care and support needs that result from a personal injury sustained in a motor accident where the injured person was a participant in the Scheme.

Under Division 4 National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (NIISQA), a lifetime participant in the Scheme who has made a claim against a relevant insurer may choose to “preserve” any rights they may have to be awarded damages by a court in relation to their treatment, care and support. This must be done by way of submitting a compliant “preservation notice” to the Agency. If successful in a claim for those damages, the plaintiff may elect to receive them as a lump sum payable by the Agency on behalf of the insurer and opt out of the Scheme. If the plaintiff does not accept the awarded damages, then the plaintiff remains in the Scheme, which will thereafter meet the cost of treatment, care and support in accordance with the NIISQA.

The plaintiff submitted a preservation notice to the Agency, however withdrew it a month later. Having withdrawn his preservation notice, the court held that the plaintiff’s claim for treatment, care and support damages was governed by s 52B of the CLA, which precluded the court from awarding damages against QBE in relation to the plaintiff’s treatment, care and support covered by the Scheme.

Whether gratuitous services recoverable

The plaintiff argued that the effect of ss 8 and 9 of NIISQA, which outlined relevant “treatment, care and support needs” covered by the Scheme, was that the Agency was only liable to pay for paid services. As the plaintiff opted to receive gratuitous care from his wife, the plaintiff contended that gratuitous care was not payable by the Agency under the Scheme and therefore he was not barred by s 52B(2) CLA from recovering damages for gratuitous care from QBE.

The court disagreed with the plaintiff’s construction of the NIISQA and CLA, and clarified that s 8 of the NIISQA included gratuitous care within “treatment, care and support needs”, and s 9 did not operate to exclude it. The plaintiff’s choice not to accept funded care from the Agency was not transformed by the legislation into QBE’s liability to pay for it. The court held that QBE was not liable in damages for the plaintiff’s past or future gratuitous care.

Implications for you

Although QBE was not liable for the plaintiff’s gratuitous care, this outcome is not the default position under the Scheme, which is designed to preserve the option of accepting lump sum damages for treatment, care and support, and opting out of the Scheme. Had the plaintiff preserved that option, he could have achieved autonomy over his treatment and the Agency would have paid these costs as a lump sum on behalf of QBE. Instead, the plaintiff chose to remain a participant in the Scheme, and to argue that he was also entitled to claim lump sum damages for gratuitous care from the insurer which was impermissible.

Accordingly, this case demonstrates the extent of insurers’ liability to plaintiffs who are participants under the scheme and wish to claim damages for gratuitous care. This case also serves as a timely reminder to plaintiffs of the importance of preserving their rights by submitting a compliant preservation notice, in circumstances where they wish to opt out of the scheme.

Walters v Roche [2020] QSC 319

Thomas McLaughlin

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