On 8 October 2021, in McIntyre & Anor v AAI Limited [2021] QSC 251 Justice Davis ordered Suncorp Insurance to pay for almost all the rehabilitation expenses requested by motor accident victim Mark McIntyre. Suncorp was also ordered to pay for a large part of the rehabilitation expenses of his wife Su Kim Ho. On top of that, Suncorp was then ordered to pay Mr McIntyre’s legal costs for obtaining the rehab funding order on the indemnity basis and Mrs Ho’s costs on the standard basis. Mr McIntyre had been virtually entirely successful in obtaining the rehab funding orders he sought and had also made an offer to repay Suncorp with 10% pa interest any rehab they funded that was subsequently found at trial not to be a form of damages awarded for the motor accident.
Serious injuries
Mr McIntyre had numerous fractures including to his spine. There was no question that he was seriously injured in the motor accident and was going to end up with a large pay out. Mrs Ho also had fractures including to her spine and was also seriously injured.
Legislation
Section 51 of the Motor Accident Insurance Act 1994 (Qld) (‘MAIA‘) states that one of its objects is:
(h) to promote and encourage, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents;
Motor Accident Insurance Act 1994 (Qld) s 51(h)
‘Rehabilitation‘ is defined in the MAIA as:
rehabilitation means the use of medical, psychological, physical, social, educational and vocational measures (individually or in combination) –
(a) to restore, as far as reasonably possible, physical or mental functions lost or impaired through personal injury; and
(b) to optimise, as far as reasonably possible, the quality of life of a person who suffers the loss or impairment of physical or mental functions through personal injury.
Motor Accident Insurance Act 1994 (Qld)
Section 51 of the MAIA explains that a CTP insurer can either offer to pay for rehab expenses on a without prejudice basis, or must pay for rehab if liability for the accident is admitted. Rehabilitation services that are not awarded as damages at trial must be paid back to the CTP insurer. When a dispute about rehab expenses or funding arises, the parties can apply to the Court for orders deciding what the CTP insurer must pay. There is also a mediation facility but there is an advantage to the enforceability and greater finality of a Court order although it may be more expensive (or cheaper if mediation goes nowhere and you end up in Court anyway).
Rehab not organised or decided by CTP insurer
Section 65 of the MAIA provides that CTP insurers, such as Suncorp, are bound by the ‘industry deed‘ which relevantly states:
It is not the insurer’s role to develop treatment and rehabilitation plans, but to facilitate the rehabilitation process.
Motor Accident Insurance Regulation 2018 (QLD) schedule 4
That must mean that ‘facilitate’ essentially means ‘pay for.’ The test for whether a rehabilitation expense must be paid by a CTP insurer is not the same as the test for whether that expense should be awarded as damages at trial.
At [26] His Honour said:
Where an applicant produces evidence in support of a claim, the claim does not fail to be a reasonable and appropriate one merely because there is expert evidence to the contrary. In oral argument, Mr Matthews QC conceded as much.
McIntyre & Anor v AAI limited [2021] QSC 251
Factors to decide whether ‘reasonable and appropriate’
It is also relevant to whether a rehab expense is reasonable and appropriate, that the CTP insurer can offset what they paid for rehab from the damages awarded at trial. This means whether liability is admitted, how serious the injuries are, how large the claim is likely to be, whether the claimant was contributory negligent are all relevant considerations for whether a rehab expense is ‘reasonable and appropriate‘: s 51(5D) MAIA. The claimants had also offered to repay Suncorp all rehab expenses funded by Suncorp that were not awarded as damages at trial, plus 10% pa interest and Suncorp did not accept that offer.
The regulations to the MAIA provide for a system where the CTP insurer must reimburse a claimant for blocks of $200 or more of rehab expenses if they have been certified by a doctor. Expenses of less than $200 must be reimbursed if it is unlikely that any further rehab funding will be needed.
Practical application
An injured motor accident claimant’s legal rights to CTP insurer funded rehabilitation can therefore be efficiently enforced by:
- Obtaining a GP referral to specialists and rehab providers that make it clear the referral is required because of the accident (go as far as listing accident injuries, the date of the accident and acknowledge any pre-existing conditions the CTP insurer might try to argue are relevant even if they are not);
- Seeking the CTP insurer’s agreement (once rehab funding has been offered or liability admitted) to pay for the initial consultation with each rehab provider and then approve further consultations in blocks of 6 or 12 etc;
- For self-funded expenses, have them certified by a doctor and reasonable and appropriate for accident injuries, in blocks of $200 or more;
- Keep a spreadsheet log of every rehab expense, whether it has been certified by a doctor etc so that the CTP insurer’s outstanding liability for rehab expenses can be efficiently calculated at all times
- If the insurer will not agree, after exploring all rehab needs and obtaining the necessary referrals and expense certificates, apply to the Court for orders;
- It may be advisable to make an offer to increase the CTP insurer’s security for offsetting their rehab funding from the final damages award (for example in this case the Applicants offered to repay any rehab expenses not awarded at trial with 10% pa interest).
It may also be advisable to consider in a case that might have quantum close to the recoverable costs threshold, whether it would be advantageous to self fund rehabilitation to avoid the insurer reducing your damages and avoiding liability for standard costs. But this will often not be an option for an injured claimant with no money who is just trying to get better.
McIntyre & Anor v AAI Limited [2021] QSC 251
McIntyre & Anor v AAI Limited (No 2) [2021] QSC 286