Australia: Effect of withdrawing National Injury Insurance Scheme Queensland

The National injury insurance scheme, Queensland (NIISQ) is a no-fault statutory scheme that provides funding for reasonable and necessary treatment care and support to people who suffer defined serious injuries in a motor vehicle accident in Queensland on or after 1 July 2016.

The 2020 National Injury Insurance Scheme annual report identifies a total of 266 scheme participants with 206 participants suffering traumatic brain injury and 50 participants suffering permanent spinal cord injury.

Treatment care and support services include medical and pharmaceutical treatment (e.g. doctors appointments, medication), dental treatment, rehabilitation (e.g. physiotherapy, occupational therapy, speech therapy), respite care, aids and appliances (e.g. wheelchairs) other than ordinary personal or household items, prostheses, educational and vocational training, home and transport modifications (e.g. ramps or bathroom rails), attendant care or support services (e.g. personal care and domestic services) and ambulance transportation.

A recent Supreme Court decision in the case of Walters v Roche & QBE [2020] QSC 319 has some important ramifications regarding recovery of damages in a CTP claim.

In that case, the plaintiff, Mr Walters sustained a spinal injury whilst cycling when he was hit from behind by a negligent driver. The driver was distracted by her mobile phone.

Mr Walters was initially accepted into the NIISQ scheme as an interim participant.

Mr Walters was later accepted as a lifetime participant in the scheme. He issued a preservation notice which gave him the option of accepting from NIISQ monetary damages for his lifetime treatment care and support and opting out of the statutory scheme.

Mr Walters subsequently withdrew the preservation notice.

Mr Walters separately made a claim for damages against the CTP insurer, QBE.

Liability was admitted.

Principal Issues

One of the principal issues in the case was whether Mr Walters could recover from the CTP insurer damages for gratuitous care provided by family members. He argued that such treatment care and support which was provided without charge was specifically excluded as a treatment care and support need. The CTP insurer argued that all treatment care and support needs, including services provided gratuitously fell within the scope of coverage under the National injury insurance scheme and as Mr Walters had withdrawn his preservation notice he was restricted to lifetime treatment care and support provided under that scheme. He was not separately entitled to claim damages from the CTP insurer.

The court determined that lifetime treatment care and support was the responsibility of NIISQ and if Mr Walters had not withdrawn the preservation notice he could have opted to have claimed damages (which would have been payable by NIISQ) and opted to leave the scheme. Those damages would have included the gratuitous care provided. He could not separately claim a component of treatment care and support ie gratuitous care from the CTP insurer.

The court noted that the NIISQ scheme is funded via a levy on motor vehicle registration payments. In 2019/20 the levy on a class 1 vehicle (car or station wagon) was $90.50 and the total amount collected was $421.3m.

As he had withdrawn his preservation notice Mr Walters continued to be covered under the NIISQ scheme as a lifetime participant.

The NIISQ scheme extends coverage to people who suffer eligible serious injuries in motor vehicle accidents who may have been at fault and therefore unable to make a CTP claim. Only claimants who are less than 50% contributorily negligent have the option of claiming monetary damages for treatment care and support and opting out of the NIISQ scheme.

The court went on to scrutinise the claims for past and future gratuitous care and disallowed a number of services as not being "necessary" as they were the responsibility of NIISQ.

Other Issues Dealt With by the Court

Another issue dealt with by the court was the recoverability of damages for past out-of-pocket expenses, future holiday expenses, future aids and equipment, and future motor vehicle expenses.

Consistent with its reasoning in relation to the non-recoverability from the CTP insurer of damages for gratuitous care the court determined that the CTP insurer was not liable for any damages which could have been classified as treatment care and support and therefore covered under the NIISQ scheme. It follows that the withdrawal of the preservation notice would have also precluded Mr Walters from recovering as damages from NIISQ items which were categorised as treatment care and support needs. Again, Mr Walters was restricted to ongoing coverage under the scheme as a lifetime participant.

The court closely scrutinised the claim for out-of-pocket expenses to determine whether there was sufficient evidence that they were incurred because of an accident related need. The court then determined which expenses fell to NIISQ and which fell to QBE.

The court determined that future holiday expenses including additional costs associated with Mr Walters reduced driving capacity, the cost of an upgrade to business class for flights in excess of 3 hours and the cost of hire of a power wheelchair accessible vehicle fell within "support" or "care" or "aids and equipment" and were the responsibility of NIISQ. Similarly a claim for an electric recliner chair was "equipment" within the scope of coverage by NIISQ. Whereas a partial allowance for a frontloading washing machine and dryer and additional running costs fell to QBE as did the additional cost of Mr Walters upgrading to motor vehicles which were suitable for modification.

Main Takeaway

The case highlights the difficulties when there is an interaction between different legislation/schemes. The main takeaway is that not withdrawing the preservation notice would have given Mr Walters the option of lump sum damages (payable by NIISQ) for treatment care and support needs and the option of opting out of the NIISQ scheme. There are also some important lessons about the evidentiary burden on any claimant in proving various components of the claim for damages.

Bennett & Philp has a team of experts who regularly deal with catastrophic injury claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.