Crase v Dallow & Anor [2020] QDC 52

DISTRICT COURT OF QUEENSLAND CITATION: Crase v Dallow & Anor [2020] QDC 52 PARTIES: IAN WILLIAM CRASE (plaintiff) v BARRIE DALLOW (first defendant) and AAI LIMITED (ABN 48005297807) TRADING AS SUNCORP INSURANCE (second defendant) FILE NO/S: D931/2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Queensland DELIVERED EX TEMPORE ON: 8 April 2020 DELIVERED AT: Brisbane HEARING DATE: 8 April 2020 JUDGE: Sheridan DCJ ORDER: 1. This is an appropriate case for the ordering of the hearing and determination of separate questions. 2. The Court determine the following questions: Question 1: What period of time has the plaintiff’s admittance to full-time residential care been brought forward by the motor vehicle accident?” Question 2: What amount for ‘past nursing home benefits, residential care and home subsidies’ paid by Medicare Australia is properly compensable at the suit of the plaintiff?” 3. The answers to the questions are: Question 1: 18 months Question 2: $107,717.23. 4. The second defendant pay the plaintiff’s costs of the application, as agreed within 14 days of the date of this order or, failing agreement, to be assessed by Mr Paul Garrett, Costs Assessor. -- 1 of 6 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – where application arose from claim by plaintiff for personal injury suffered in motor vehicle accident – where second defendant applied pursuant to Chapter 15 Part 5 Uniform Civil Procedure Rules 1999 (Qld) to decide separately two questions arising in the proceeding – where plaintiff did not oppose that course – where parties agreed questions to be answered – whether appropriate case for ordering hearing and determination of separate questions – whether questions proposed appropriate TORTS – NEGLIGENCE – GENERALLY – OTHER MATTERS – where questions to be determined concerned plaintiff’s admittance to full-time residential care – where payments had been made by Medicare Australia – whether the answers to the separate questions should be as proposed by the applicant Health and Other Services (Compensation) Act 1995 (Cth), s 9, s 10 Uniform Civil Procedure Rules 1999 (Qld), r 5 Callide Power Management Pty Ltd & Ors v Callide Coal Fields (Sales) Pty Ltd & Ors; CS Energy Ltd v Callide Coal Fields (Sales) Pty Ltd & Ors (No. 3) [2015] QSC 295, cited COUNSEL: M. Grant-Taylor QC for the second defendant/applicant M. P. Williams for the plaintiff/respondent SOLICITORS: AAI Limited for the first and second defendant/applicant Taylors Solicitors for the plaintiff/respondent [1] The second defendant has asked the court to decide separately two questions. The plaintiff did not oppose this course. [2] The application arose out of a claim by the plaintiff for personal injury suffered in a motor vehicle accident on 27 July 2017. The plaintiff in the proceedings is 87 and a half years old. [3] The parties have agreed on the terms of settlement of the proceedings subject to the question as to how much is repayable to the Commonwealth Department of Human Services via its instrumentality Medicare Australia. [4] Under a Notice dated 9 December 2019, the Department gave notice of past benefits relating to “past nursing home benefits, residential care and home care subsidies” having been paid in an amount of $177,860.07. The Notice stated that it would become a notice of charge only after an amount of compensation has been fixed under a judgment or settlement or, a reimbursement arrangement has been entered into before the Notice expires. -- 2 of 6 -- 3 [5] The nub of the dispute between the plaintiff and the second defendant is the extent to which the plaintiff’s admittance to full-time residential care has been brought on by the motor vehicle accident. [6] The questions sought by the application were as follows: “Question 1: Is the amount of the charge currently maintained by Medicare Australia in an amount of $179,263.37 properly compensable at the suit of the plaintiff? Question 2: What amount for ‘past nursing home benefits, residential care and home subsidies’ paid by Medicare Australia is properly compensable at the suit of the plaintiff?” [7] The Department is not a party to the proceedings brought by the plaintiff and is not being made a party to the application, nor has it been served with the application. [8] Consistent with the desirability of endeavouring to adjudicate separate questions in order to facilitate the just and expeditious resolution of the real issues as dictated by r 5 of the Uniform Civil Procedure Rules 1999 (Qld) and the principles referred to in Callide Power Management Pty Ltd & Ors v Callide Coal Fields (Sales) Pty Ltd & Ors; CS Energy Ltd v Callide Coal Fields (Sales) Pty Ltd & Ors (No. 3) [2015] QSC 295, in the circumstances and given the current health crisis, it is appropriate that the court endeavour to resolve the remaining dispute between the parties. [9] As currently drafted, Question 1 suggests that the court is being asked to adjudicate on the amount of a charge made by a third party. It would not be appropriate to attempt to adjudicate on the charge made by a third party without the participation of that third party in the argument and hearing. Accordingly, it would not be appropriate to answer the question as formulated. [10] The Court has, however, undoubted power to reformulate the question for the purposes of resolving the issue between the plaintiff and the second defendant and at the oral hearing the issue as to the formulation of the questions was raised with counsel for the second defendant and the plaintiff. [11] In submissions, counsel for the second defendant referred the court to sections 9 and 10 of the Health and Other Services (Compensation) Act 1995 (Cth) and submitted that in any reformulation of the questions, the answers given by the court must include an order as to the amount of nursing home benefits paid as a result of the injury. Counsel for the plaintiff agreed with the submissions made and with the need for the court to make an order as to the amount which has been paid which relates to the injury. [12] It was agreed that the questions could be re-formulated as: “Question 1: What period of time has the plaintiff’s admittance to full- time residential care been brought forward by the motor vehicle accident?” Question 2: What amount for ‘past nursing home benefits, residential care and home subsidies’ paid by Medicare Australia is properly compensable at the suit of the plaintiff?” -- 3 of 6 -- 4 [13] The evidence placed before the court for the purpose of making the decision consisted essentially of all the medical reports that were obtained by and on behalf of the plaintiff or the second defendant. [14] Relevantly, there were reports from two neurologists, Dr O’Sullivan and Dr Paine and a neurosurgeon, Dr Tomlinson. [15] Dr O’Sullivan saw the plaintiff a little over one month prior to the accident on a referral from Dr John, the plaintiff’s geriatrician. His report dated 19 June 2017 provided an assessment of the plaintiff’s neurological condition at that time. Dr O’Sullivan again saw the plaintiff on 24 October 2017, almost three months after the accident, and provided a report to the plaintiff’s current treating practitioner. [16] Dr Tomlinson, at the request of the plaintiff, provided a medico-legal report for the plaintiff dated 1 February 2019 following a consultation on 25 July 2018. It is unnecessary for these purposes to detail his findings as to the plaintiff’s condition. In relation to the matter in issue, Dr Tomlinson stated in a subsequent report dated 5 April 2019: “I believe if he had not been involved in the motor vehicle accident which occurred on 27.7.2017, having regard to his age and other health matters not related to the accident, he would have been able to continue living independently.” [17] At the request of the second defendant, Dr Paine provided a medico-legal report dated 4 June 2019, following a review of available records and a consultation with the plaintiff. The records provided and reviewed by Dr Paine included Dr Tomlinson’s reports dated 1 February 2019 and 4 April 2019 and the reports of Dr O’Sullivan dated 19 June 2017 and 24 October 2017. [18] In his report, in answer to the question, “The level of care and assistance, both physical and supervisory, that would have been required prior to the motor vehicle accident”, Dr Paine opined: “I agree with Dr Tomlinson’s assessment the injuries sustained in the accident have triggered Mr Crase’s placement in nursing home care and if not for the accident Mr Crase would have maintained his independent activity for a period of time. It is difficult to place an estimate on this period of time. As Outlined in the reports by Dr John O’Sullivan, there was a significant pre-existing disabling neurological condition principally affecting Mr Crase’s mobility. Advanced age and the pre-existing neurological condition would have led to the need for substantial care at some point, likely within a few years.” [19] He was also asked: “If care was required prior to the MVA; would that level of care have remained static or would there have been an increase in requirement for care over a passage of time? If this is the case, what levels of care would have been required and over what period of time?” [20] In answer to that question, Dr Paine stated: “There would likely have been an increase in requirement for escalated care for the pre-existing neurological problem. As stated above, there would have been a need for substantial care due to the pre-existing neurological condition at some point, likely within a few years.” -- 4 of 6 -- 5 [21] Dr O’Sullivan was provided with a copy Dr Paine’s report and in a report dated 26 September 2019, after referring to the fact that the plaintiff’s underlying diagnosis was unclear and identifying his pre-existing conditions as he thought them to be, stated: “As I had only seen him on two occasions, and as he had a hospitalisation and motor vehicle accident between those periods, it is difficult for me to determine what the natural progression would have been.” [22] Dr O’Sullivan noted that when he first saw the plaintiff prior to the accident he had not undertaken a detailed assessment of his independent function in activities in daily living. However, he had noted that in the referral and consistent with his notes, he was needing assistance in dressing and he states that he suspected that his partner was doing a number of household chores. He concluded: “I suspect with ongoing support from [his partner], had she not been hospitalised herself, and by mobilising additional resources, he may have been able to live ‘independently’ and not require full-time residential care for a period of 12 to 18 months, though this is likely to have required additional support including to those provided by [his partner] prior to the accident”. [23] The second defendant submitted that the court should conclude that the plaintiff’s admittance to fulltime residential care was only brought on by 12 months. [24] Counsel for the plaintiff submitted that an appropriate period was 15 months. Discussion [25] As submitted by both parties, I accept that the opinion of Dr O’Sullivan, being the doctor who had the benefit of assessing the plaintiff prior to the accident, should be given greater weight, than the reports of Dr Paine and Dr Tomlinson. That does not mean, however, that the reports of Drs Tomlinson and Paine should not be used to guide the court in a consideration of the opinions of Dr O’Sullivan. In oral submissions, counsel for both parties did not dispute that course. [26] Drs Tomlinson and Paine provide a much higher level of time than the upper range of 18 months provided by Dr O’Sullivan. That evidence would suggest that the time estimated in the opinion of Dr O’Sullivan should be at the higher end, rather than the lower end of that range. [27] I do not accept that Dr Paine’s opinion should be given less weight because he was not given the benefit of Dr O’Sullivan’s final report. [28] Although the plaintiff has submitted that 15 months is the appropriate time period, that submission is little more than a compromise of the lower end and the higher end of the range opined by Dr O’Sullivan. [29] I accept, as was submitted by the plaintiff, that in this case, the opinion of Dr Tomlinson is “overly optimistic”. However, I consider that Dr Paine has given a carefully considered opinion and that opinion needs to be factored in assessing the range nominated by Dr O’Sullivan. In Dr O’Sullivan’s pre-accident report there is no suggestion of any need for the plaintiff to move to full-time residential care nor any suggestion of any discussion in that regard. -- 5 of 6 -- 6 [30] On the balance of probabilities, I consider that the plaintiff would have been able to live independently and not require full-time residential care for a period of 18 months from the date of the accident had it not been for the accident. [31] Further information provided by the department as to the breakup of the sum of $177,860.07 has enabled the solicitor employed by the second defendant to calculate the amount said to have been expended by Medicare on the plaintiff for the different potential periods in issue, namely 12 months, 15 months and 18 months. [32] On the basis of the information provided, concluding as I have that the appropriate period is 18 months, the amount that was expended by Medicare which is compensable at the suit of the plaintiff is $107,717.23. [33] The second defendant has agreed to pay the plaintiff’s costs of the application. [34] The orders of the court are: 1. This is an appropriate case for the ordering of the hearing and determination of separate questions. 2. The Court determine the following questions: Question 1: What period of time has the plaintiff’s admittance to full-time residential care been brought forward by the motor vehicle accident?” Question 2: What amount for ‘past nursing home benefits, residential care and home subsidies’ paid by Medicare Australia is properly compensable at the suit of the plaintiff?” 3. The answers to the questions are: Question 1: 18 months Question 2: $107,717.23. 4. The second defendant pay the plaintiff’s costs of the application, as agreed within 14 days of the date of this order or, failing agreement, to be assessed by Mr Pau Garrett, Cost Assessor. -- 6 of 6 --