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Reasonable and Appropriate Rehabilitation

17 September 2013

Rogers v Suncorp Metway Insurance Limited [2013] QSC 230

Background

The 23-year-old Applicant suffered a severe traumatic brain injury following a motor vehicle accident on 20 September 2011, resulting in profound mobility, visual and communication impairments.

The Applicant also developed a severe behavioural impairment in which he exhibited aggression towards others and behaved inappropriately, including in a sexualised way. These behaviours had placed others at risk of physical harm on occasion.

After one of these incidents, the Applicant was removed from shared accommodation and placed in another facility where he was cared for on a one-on-one basis.

The Applicant sought various orders, including that the CTP insurer (the Respondent) construct a purpose-built residence for him with associated attendant care and services. The Applicant made his Application through his mother, his Litigation Guardian.

The Respondent opposed any order for the construction of a purpose-built residence on the basis that it was not reasonable, nor appropriate, on the current medical evidence.

Medical opinion was split on the question of the best care environment for the Applicant. Some experts considered that the best solution for the Applicant was to reside in his own home. Other experts considered that placement in a shared facility allowed the opportunity for socialisation and would allow a greater number of trained staff to cope with any behavioural difficulties.

Decision

Boddice J quoted at length from a leading decision on rehabilitation services, Aldridge v Alliance Australia Insurance Limited [2009] QSC 257 (Applegarth J). This decision discussed the "remedial intent" of a CTP insurer's obligation to provide rehabilitation services which allows the Court flexibility in deciding what is reasonable and appropriate. It was not necessary to match rehabilitation services with a particular head of damage to be decided at a future trial, or to be constrained by the notions of a "short-term solution" or a "long-term solution".

His Honour noted that there was a fear that if the Applicant was in his own home, he was at significant risk of exploitation, or of having access to illicit substances. The background to this fear was not explained in detail in the reasons for decision.

Further, other residents in the home (eg. family members) would be at significant risk of harm as the available staff providing care would be less than in a shared facility.

Boddice J was not satisfied that it was reasonable or appropriate for the Applicant to be accommodated in his own purpose-built residence. He was satisfied that the one-on-one accommodation and care services presently being funded by the Respondent were reasonable and appropriate.

There was also a possibility that the Applicant would experience improvement in his function in the coming years and be capable of returning to a shared facility in the future.

His Honour therefore adjourned the Application to a date to be fixed to allow for future consideration of ongoing rehabilitation expenses depending on any improvement in the Applicant's function.

For more information please contact:

 

Daniel Sullivan| Associate
Mullins Lawyers
t +61 7 3224 0358
f +61 7 3224 0333
dsullivan@mullinslaw.com.au

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