NIIS – Preservation Notice (sanction)

National Injury Insurance Agency, Queensland v Harrison [2021] QSC 253

The applicant, the administrator of the National Injury Insurance Scheme, Queensland, under the National Injury Insurance Scheme (Queensland) Act 2016 (NIIS) filed an originating application under s.41(7) of the NIIS to sanction the “Preservation Notice” given by the respondent to the insurer (Suncorp) of the motor vehicle accident (MVA). The purpose of the notice was to preserve the respondent’s right to damages for treatment, care and support arising out of the MVA.

It was accepted that the respondent was a person under a legal disability, which arose from a traumatic brain injury as a consequence of the MVA. The insurer had accepted liability but claimed contributory negligence of 50% because of the intoxication of the driver (BAC 0.118%) together with the influence of tetrahydrocannabinol.

Kelly J referred to Brown J in National Injury Insurance Scheme v Ater (2020) 5 QR 210, [28] and stated the court:
must determine whether it is in the best interests of the participant under a legal disability to preserve the participant’s right to be awarded treatment, care and support damages in circumstances where they would otherwise receive treatment, care and support as provided for under the Act.” [13].

His Honour noted that there was likely to be a substantial award of damages because the respondent was young and an apprentice cabinet maker at the time of the MVA. As to the reduction for contributory negligence, Justice Kelly stated it was a matter of speculation as to any reduction and the claim was not misconceived or bound to fail.

His Honour noted that if it transpires that the applicant forms the view it is not in the respondent’s best interests to accept a lump sum for treatment, care and support damages, the applicant can apply to the court to prevent the respondent from being awarded the lump sum. Likewise, any settlement will require the sanction of the respondent’s claim of the court under s.59 of the Public Trustee Act.

The insurer and respondent did not oppose the application.  Accordingly, the Preservation Notice was sanctioned.

David Cormack

Brisbane Barrister and Mediator

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