Insurance Australia Limited v Scott [2016] NSWCA 138 – Episode 2; The return of gratuitous attendant care before the Courts

Published 22 Sep 2016

The highly controversial judgment in Scott v Insurance Australia Limited [2015] NSWSC 1249, delivered by Campbell J last year has been appealed and overturned in the NSW Court of Appeal. In Campbell’s J judgement, His Honour held that “attendant care services”, as defined in section 42 of the Motor Accidents Compensation Act (“the Act”), related to such services professionally provided.

Campbell J construed that the forms of treatment in section 42 were placed in a somewhat more focused context, namely these being professionally provided. In determining this question, the Court looked to section 3 and 42 of the Act. Section 3 provides a rather broad definition for attendant care services:

The section states that attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services

However, section 42 expressly defines that treatment means “the provision of attendant care services“, whether or not at a hospital.

Under section 42, treatment would also mean:

(a)  medical treatment, or

(b)  dental treatment, or

(c)  the provision of rehabilitation services, or

 (e)  the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses, whether or not at a hospital.

Accordingly, Campbell J held that “attendant care services“, as defined in section 42 of the Act only related to such services professionally provided. This was to be derived through reading the other associated forms of treatment listed in section 42, which all appeared to be professionally provided.

On this reasoning, Campbell J concluded that gratuitous care, and care provided by unqualified relatives, is not “treatment” in a medical sense that would enable it to be referred as a medical assessment matter for the purposes of treatment dispute in section 58 of the Act.

Therefore, Campbell J found that a dispute on whether gratuitous and attendant care provided was reasonable and necessary was not a matter to be referred to the Medical Assessment Authority.

On Appeal

The case was appealed in the NSW Court of Appeal before Ward JA, Basten JA and Gleeson JA. The Court was unanimous in its judgment on the issue that Campbell J erred in construing and interpreting the word “treatment” in section 58 as being confined to treatment professionally provided and paid, which were to be disputed.

The Court of Appeal considered the definition of “attendant care services” in section 3 and held that the definition was not so restrictively confined and that the itemisation of particular types of treatment in section 42 did not expressly draw a distinction between paid/gratuitous or professional/voluntary services.

Therefore, to suggest that “attendant care services“, as defined in section 42 of the Act, related to only services professionally provided and not those gratuitously provided was erroneous.

The Court at paragraph 14 of the appeal held that the approach of Campbell J would not serve the intended purpose of the legislation in treating “attendant care services” as having its defined meaning in one part of the Act, but not another.

Nor, was it justified to exclude gratuitous attendant care services from assessment on the basis that it was not treatment for the purposes of a medical treatment dispute, but allowing such an assessment when the same services are provided professionally (at 14). 

Points to take home

The development of the law on this issue is unfavorable news for claimants as insurers can now resume referring disputes over the level of gratuitous attendant care provided to be assessed by the medical assessment authority. However, irrespective of the developments in the law, Gerard Malouf and Partners, will always exercise every effort in ensuring that your motor vehicle accident claim will be fought and protected.