On 28 June 2018, Mr McIntyre (first applicant) and his wife, Ms Ho (second applicant), were involved in a high-speed head on motor vehicle accident (the accident). The applicants both sustained severe and multiple injuries. Their sons were also injured in the accident.
AAI Limited (the respondent) admitted liability on both claims. There was no allegation of contributory negligence. Rehabilitation was accepted pursuant to the Motor Accident Insurance Act 1994 (the Act).
The applicants requested an abundance of rehabilitation services. The respondent accepted some of the requests but denied many of the claimed on the basis that they were not reasonable and appropriate. Of the 26 rehabilitation services requested by the first applicant, 6 items were approved by the respondent and 4 partially approved. As for the second applicant, only 1 of the 19 requested services was approved (not including the joint requests such as nannying and domestic assistance).
The applicants applied to the court pursuant to section 51(5)(b) of the Act for orders that particular rehabilitation services be made available to them by the respondent. This section of the Act provides the court with the power to make orders and directions as to what rehabilitation services, in the current circumstances of the case, are deemed reasonable and appropriate.
The principles that apply in Queensland in relation to rehabilitation services, impose a duty on the CTP insurer, pursuant to section 51 of the Act to provide reasonable and appropriate rehabilitation services and to promote and encourage claimants who sustain personal injury because of motor vehicle accidents.
The court said that the respondent is also bound to the “industry deed” as a CTP insurer. This provides that it is not the insurer’s role to develop treatment and rehabilitation plans, but to facilitate the rehabilitation process.
It was acknowledged that section 51 of the Act refers to the provision of rehabilitation “services” however, the court has found on occasions that the scope of this section is very wide and clearly also contemplates the provision of goods.
The court was critical of the respondent’s position in that it was for the applicants to determine what rehabilitation and treatment services are undertaken, not the respondent (or their experts). The court said that where an applicant produces evidence in support of a claim, it does not fail to be a reasonable and appropriate merely because there is expert evidence to the contrary.
The more notable and contentious items requested by the applicants included:
1. A set of dining room chairs to match the existing table in the home
Ruling: reasonable and appropriate to supply a full set of 9 chairs (at a cost of $925 each) so as not to promote the perception of disability.
2. A Norvacorr tilt and lift chair
Ruling: reasonable and appropriate as it would allow the applicants to sit more comfortably and provides better lumbar support.
3. Supplying of a Stair lift from garage level to top floor of the house and the associated construction and consultations.
Ruling: the applicants claimed a traditional stairlift 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. The court accepted this as reasonable and appropriate to have access to the entirety of the home as the first applicant’s family inhabit higher floors of the home.
4. E-bike
Ruling: reasonable and appropriate as it would allow the first applicant to participate in family activities and improve his quality of life and psychological state.
5. Mobility scooter and wheelchair
Ruling: reasonable and appropriate, even though the first applicant may increase his mobility in the future, does not mean it is unreasonable in the meantime to take steps to increase the first applicant’s mobility and allow him to be independent over short and extended distances.
6. Shower modifications
Ruling: reasonable and appropriate to modify the shower due to instability whilst showering and having to manoeuvre over a hob in the shower.
7. Domestic assistance of up to 3 hours per week and 1 hour per month for linen changes and Nanny services of six (6) hours per week Monday to Friday, in addition to travel allowances
Ruling: reasonable and appropriate to continue the funding of all of the above due to the applicants’ evidence that this should continue for the foreseeable future.
The respondent succeeded on a number of the claimed items, at least in relation to the second applicant.
Ultimately, the court said that the respondent, when determining its attitude towards the rehabilitation services requested, was obliged to recognise that liability had been admitted, the claims for damages were substantial, and there is a right under the Act to offset any expenses against the ultimate damages award.
The court ordered the respondent to pay the costs of the first applicant on an indemnity basis as he was effectively completely successful in his claims. The respondent was only required to pay the second applicant’s costs on a standard basis. The court said that while the respondent successfully opposed a number of the second applicant’s claims, it was not to the extent that would justify the second applicant not recovering her costs.
It is presently unknown whether the respondent will appeal from the decision.
Implications for you
This decision will have a significant bearing on the ability of CTP insurers to reject a rehabilitation request on the basis that it is unreasonable and inappropriate even if that position is supported by expert evidence. Section 51(5) of the Act was interpreted widely. It was found that a request for rehabilitation may be considered reasonable and appropriate if it is required to not promote the perception of disability. The court is likely to consider that a service or the provision of a good will be reasonable if the claimant expresses a need, benefit or a want to engage in the request.
The decision is likely to lead to an increase in applications to the court for an order to either force the relevant CTP insurer to fund the requested rehabilitation or to determine whether the request is an appropriate rehabilitation service or provision of a good.
McIntyre & Anor v AAI Limited [2021] QSC 251
