'Great Scott!'– gratuitous care is back in town – Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138

The claimant was involved in a rear end collision in May 2010, suffering injuries to her cervical and lumbar spine, as well as a psychological injury in the form of major depression.
A dispute arose between the parties, centering on the claimant's entitlement to treatment and care and the corresponding interpretation of these terms.

• Section 42 of the MACA defines "treatment" to include the "provision of attendant care services".
  
  
• The term "attendant care services" itself is defined in s3 of the MACA to include those services that "aim to provide assistance to people with everyday tasks, and includes for example personal assistance, nursing, home maintenance and domestic services".
  
  
• Section 58 of the MACA also classifies disputes over "treatment" as being a "medical assessment matter."

On 22 April 2013, the claimant's solicitors provided s 85A particulars which outlined their client's care requirements as follows:

• 40 hours of care per week in the initial 24 weeks following the accident (15 May 2010 to 3 October 2010).
  
  
• 10.5 hours of care per week in the following two years (to the date of the above letter).
  
  
• 10 hours of care per week for the remainder of the claimant's life expectancy.

In response, the insurer sought further particulars as to the types of care provided and those allegedly needed for the future.
There was no immediate answer to this request, which prompted a further letter from the insurer on 15 May 2013. This correspondence confirmed that:

• An agreement regarding the claimant's entitlement to domestic assistance and attendant care had "still not been reached".
  
  
• The claimant's request for domestic assistance and attendant care "continues to be disputed".
  
  
• The insurer declined to make any payments in relation to these matters.

The insurer also advised of its intention, should the dispute not be resolved, to lodge an Application for an Assessment of a Treatment Dispute. As no response was received to this letter, the insurer duly lodged its Application.
However, the claimant sought to have the Application dismissed on the basis that:

• A referral to the MAS could not apply to gratuitously provided services since it was not a form of "treatment" within the meaning of s 58 of the MACA
  
  
• The procedural hurdles in establishing a "genuine dispute" had not been satisfied.

The MAS subsequently arranged for three medical assessments, which cumulatively found that gratuitous assistance was not reasonable and necessary in the circumstances.

The claimant sought judicial review of these findings, along with the decision by the MAS to refer the matter for assessment.
The trial judge upheld the claimant's review, finding that the MAS did not have the jurisdiction to hear disputes involving gratuitous assistance. Further, the trial judge found that the procedural aspects of there being a "genuine dispute" between the parties had not been satisfied.

The insurer appealed on both grounds, submitting that:

• In this statutory context, the definition of "treatment" should not be restricted to those services rendered by a trained, qualified or professional person.
  
  
• A "genuine dispute" did exist between the parties.

During the hearing before the New South Wales Court of Appeal (Court of Appeal), discussion also focused on whether the Proper Officer's decision concerning the "genuine dispute" was a jurisdictional fact.

The Court of Appeal unanimously allowed the appeal.

On the first issue of statutory interpretation, Basten JA found that "[t]here is no reason to accept such a restrictive reading"² of the definition of "attendant care services" as put forward by the claimant and that "[i]t would not serve the intended operation of the legislation to treat "attendant care services" as having its defined meaning in one part of the [MACA], but not another."³

With this in mind, Ward JA ultimately found that:

On the second ground of appeal, Ward JA held that the debate surrounding whether there was a genuine dispute "bordered on the farcical."⁵ Indeed, if there was no such dispute, "it would be difficult to see how this matter could properly have ended up in this court."⁶
Finally, the Court of Appeal dealt with the claimant's contention that the Proper Officer's decision that a genuine dispute exists is a jurisdictional fact.

Such a view, in the opinion of Ward JA, would have "the extraordinarily impractical result that every claim of this kind would potentially"⁷ commence with a Supreme Court of New South Wales hearing to determine whether the dispute was genuine or not.

In stronger terms, Basten JA found it "would verge on the bizarre"⁸ to think that, when establishing this administrative scheme, Parliament did not intend that the SIRA should be able to determine whether or not there was a dispute.

As a consequence, the appeal was upheld on every ground and the judgment of the trial judge was set aside.

The Court of Appeal's decision removes the lingering uncertainty surrounding the future of both current and yet to be filed MAS treatment disputes.

The unanimous judgment also seeks to protect the integrity of the administrative scheme, in large part to ensure that the medical disputes outlined in the MACA are typically resolved before a claim reaches the courts.

As a consequence, the MAS remains an independent forum where disputes involving the provision of gratuitous care can be determined.
However, insurers and claimants alike should be mindful that given the current backlog of approximately 60 claims (as at June 2016), disputes involving gratuitous care may still take some time before they can be resolved.