Court considers reasonable and appropriate rehabilitation services under MAIA

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On June 28, 2018, Mr. McIntyre (first applicant) and his wife, Mrs. Ho (second applicant), were involved in a frontal high-speed car crash (the accident). The applicants both suffered serious and multiple injuries. Their sons were also injured in the crash.

AAI Limited (the respondent) admitted liability in both claims. There was no allegation of contributory negligence. The rehabilitation has been accepted in accordance with the Traffic Accident Insurance Act, 1994 (the act).

The applicants requested an abundance of rehabilitation services. The Respondent accepted some of the requests, but rejected many of them on the grounds that they were neither reasonable nor appropriate. Of the 26 rehabilitation services requested by the first applicant, 6 items were approved by the respondent and 4 were partially approved. As for the second applicant, only 1 of the 19 requested services was approved (excluding joint requests such as childcare and domestic help).

The applicants applied to the court, pursuant to paragraph 51 (5) (b) of the Act, to order that specific rehabilitation services be made available to them by the respondent. This section of the Act gives the court the power to make orders and directions for rehabilitation services, in the present circumstances of the case, which are deemed reasonable and appropriate.

The principles which apply in Queensland with regard to rehabilitation services require the insurer CTP, in accordance with section 51 of the Act, to provide reasonable and appropriate rehabilitation services and to promote and encourage applicants who sustain bodily injuries as a result of motor vehicle accidents.

The court said the respondent is also linked to the “industry act” as a CTP insurer. This stipulates that it is not up to the insurer to develop treatment and rehabilitation plans, but to facilitate the rehabilitation process.

It has been recognized that Article 51 of the Law refers to the provision of rehabilitation “services”, however, the court has repeatedly found that the scope of this article is very broad and clearly contemplates the provision of goods as well. .

The court criticized the Respondent’s position in that it was up to the applicants to determine what rehabilitation and treatment services are available, and not to the Respondent (or their experts). The court said that when a claimant produces evidence to support a claim, it does not fail to be reasonable and appropriate simply because there is expert evidence to the contrary.

The most notable and controversial items requested by the applicants included:

1. A set of dining chairs to match the existing table in the house

Decision: reasonable and appropriate to provide a complete set of 9 chairs (at a cost of $ 925 each) so as not to favor the perception of disability.

2. A Norvacorr recliner and lift chair

Decision: reasonable and appropriate as it would allow candidates to sit more comfortably and provide better lumbar support.

3. Supply of a stairlift from the garage level to the top floor of the house and associated construction and consultations.

Decision: the applicants claimed that a traditional stairlift in a prominent position in the house, namely the interior stairs, will promote the perception of a disability thereby impacting their mental health and quality of life. The court found it reasonable and appropriate to have access to the entire house given that the first applicant’s family resides on the upper floors of the house.

4. Electric bicycle

Decision: reasonable and appropriate as it would enable the first applicant to participate in family activities and improve his quality of life and psychological state.

5. Mobility scooter and wheelchair

Decision: reasonable and appropriate, even if the first applicant may increase their mobility in the future, does not mean that it is unreasonable in the meantime to take measures to increase the mobility of the first applicant and allow him to be independent for short and long distances.

6. Shower modifications

Decision: reasonable and appropriate to modify the shower due to instability while pointing and having to maneuver on a hob in the shower.

7. Domestic assistance up to 3 hours per week and 1 hour per month for linen changes and nanny services of six (6) hours per week from Monday to Friday, in addition to travel allowances.

Decision: reasonable and appropriate to continue funding all of the above given evidence from applicants that this is expected to continue for the foreseeable future.

The respondent succeeded in a number of matters claimed, at least with regard to the second applicant.

Ultimately, the court said that the respondent, in determining its attitude towards the rehabilitation services requested, was obliged to admit that liability had been admitted, that the claims for damages were substantial and that there is a right under the Act to deduct any expense against ultimate compensation for damages.

The court ordered the defendant to pay the costs of the first applicant on an indemnity basis, since he had indeed succeeded in his claims. The respondent was only required to pay the costs of the second applicant on a lump sum basis. The court stated that if the Respondent had successfully opposed a number of the second applicant’s claims, this was not to the extent that this would justify the second applicant not recovering her costs.

It is currently unknown whether the respondent will appeal the decision.

Implications for you

This decision will have a significant impact on the ability of CTP insurers to reject a pardon application on the grounds that it is unreasonable and inappropriate even if this position is supported by expert evidence. Section 51 (5) of the Act has been interpreted broadly. It has been found that a request for rehabilitation can be considered reasonable and appropriate if it is required so as not to promote the perception of a disability. The court is likely to consider that a service or the supply of a good will be reasonable if the plaintiff expresses a need, a benefit or a willingness to engage in the request.

The decision is likely to lead to an increase in applications for court orders to force the relevant CTP insurer to fund the requested rehabilitation or to determine whether the request is an appropriate rehabilitation service or the provision of a good.

McIntyre & Anor v AAI Limited [2021] QSC 251

This article was written by Alexandra Purvey, graduate.


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