When past aged care costs meet causation in CTP When past aged care costs meet causation in CTP

When past aged care costs meet causation in CTP

22 November 2021 | Compulsory Third Party (CTP)
Tags CTP

In this matter, the SA District Court was asked to consider two questions in a case-stated.

The Court was asked to consider whether the applicants need for residential aged care was brought forward because of the injuries she sustained in the collision. If the answer to that question was yes, the Court was asked to consider whether the applicant would have required residential aged care irrespective of her injuries from the motor vehicle accident.

The decision of the Court related only to those two questions on the basis that the parties had reached an agreement in relation to general damages (save for the aged care costs). The general damages have been agreed by the parties at $27,550.00.

The applicant had been discharged into aged care from hospital after the MVA.

The CTP Insurer had made significant payments for the gap between government aged care benefits and the total costs of the applicant’s nursing home care following the motor vehicle accident.  The had ceased making payments of the gap amounts on 31 July 2020 on the basis that the applicant would have required aged care accommodation at this time in any event.

In addition to those amounts paid by the CTP Insurer direct to the nursing home, there was an aged care benefits recovery by Medicare Australia in the sum of $219,644.15. This amount was calculated from the date of the motor vehicle accident to 14 May 2020. 

As part of the case stated proceedings, the CTP Insurer had agreed not to seek recovery of any amounts overpaid from the applicant, as an offset against the judgment sum or an offset against liability for Medicare Australia’s Notice of Charge once the Court made findings on this issue. Therefore, the Court’s decision would only be relevant to the amount of the Medicare Australia charge that would be payable by the CTP insurer on settlement.

Background

Prior to the motor vehicle accident, the applicant was 98 years of age but resided semi-independently within a retirement village. She received some assistance from staff of the retirement village with cleaning, laundry services and preparation of lunches and dinners.

Despite her advanced age, the applicant was relatively independent and Judge Deuter found that the applicant had remained relatively independent and there were no plans for her to move into residential aged-care accommodation at the time of the collision.

However, the applicant had a history of falls in the years leading up to the MVA.  It appears that she had experienced 10-15 falls in the three years before the MVA, making her a high falls risk.

The applicant sustained relatively significant injuries in the motor vehicle accident including a sub-galeal hematoma to her brain, multiple fractured ribs, a lacerated spleen and crush fractures of her L1 and L3 vertebrae.

The records from the Royal Adelaide Hospital (where the applicant was taken after the MVA via Med Star Flight) showed a decline in her general physical condition, mental state and cognition as a result of the motor vehicle accident.

Expert Evidence

The Court considered evidence from a rehabilitation physician, Dr John Bastian and a pre-eminent geriatrician, Dr Jane Hecker.

Dr Bastian, Rehabilitation Physician assessed the applicant in person and met her daughter and gleaned detailed history at the assessment. Dr Bastian concluded that the motor vehicle accident had caused deterioration in the applicants cognitive and physical function. However, he expressed difficulty in being absolute regarding the likelihood of aged care assistance being required in any event and the timeframe that it would have been required. 

Dr Hecker did not assess the applicant in person (noting her report was prepare in May 2020 and COVID-19 restrictions were in place) but provided an opinion on the papers (including the full hospital records and GP records). Her view was that the applicant would have required fully supportive aged care residential accommodation, within a year or two from the date of the motor vehicle accident, in any event.

Judge Deuter accepted and preferred the evidence of Dr Hecker and chose the mid-point in her assessment, at 18 months after the MVA. Accordingly, it was found that the applicant would have required residential aged care assistance in or around late 2019, in any event.

What we know

In this case, the Court accepted the evidence of an expert called by the insurer that had not personally assessed the applicant, as a result her considerable expertise and considered assistance to the Court in placing a time period for the need for aged care on the balance of probabilities. In the current times, where face-to-face assessments can be difficult to organise, the appropriate expert that provides considered assistance to the Court in making their decision need not have personally assessed the claimant to have their evidence accepted.  

Further we note that a case-stated approach may be of significant assistance to a CTP insurer, in relevant matters, where the issues in dispute might be limited to a considerable statutory charge (in this case Medicare Australia aged care benefits). 


Audrey Elliott (by her litigation Guardian Shirley Peter) v Michael Cottrell [2021] SADC 103 [2 September 2021]

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Fiona Brady

Fiona Brady

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