Walters v Roche & Anor

Graham Walters was riding his bicycle at Burpengary in August 2016 when a driver distracted by her mobile phone hit him from behind, throwing him 15 metres. He suffered a spinal cord injury at the T10 level and is now in a wheelchair, and he also developed depression. Because his injuries were catastrophic, he became a lifetime participant in Queensland's National Injury Insurance Scheme, which funds care for life. Liability was admitted, so the fight was about how much he could recover - he claimed about $3.5 million and about half of this was for gratuitous care.

The main legal question was whether he could still sue the insurer, QBE, for the cost of care his wife and family provided for free, on top of the scheme's funded care. The court decided he could not.

Walters had initially served a preservation notice under the NIISQ legislation, preserving his ability to pursue treatment, care and support damages through his common law claim. He withdrew it approximately one month later for reasons that were not explained. The effect of the withdrawal was that the NIISQ Agency ceased to be liable to contribute towards QBE's liability for those damages. This meant Walters could no longer satisfy the statutory exception in s 52C of the Civil Liability Act 2003 (Qld), leaving the prohibition in s 52B to apply.

In other words, because he had withdrawn a 'preservation notice' that would have let him claim a lump sum, the Civil Liability Act barred the court from awarding care damages against QBE. The Court held that the prohibition extended to gratuitous care. It did not matter that the care had actually been provided by Walters' wife or family without charge rather than by a paid carer funded through NIISQ. The legislation expressly prevented an award for treatment, care and support needs arising during NIISQ participation even where the particular service was provided gratuitously. Accordingly, Walters could not recover those care costs from QBE in addition to retaining his lifetime entitlement to treatment, care and support through NIISQ.

The case therefore establishes an important distinction between merely avoiding double recovery and a statutory bar on damages. Once Walters withdrew his preservation notice, the relevant care damages were not simply reduced by the value of NIISQ benefits. The Court was prohibited from awarding them against QBE at all.

Some substantial heads were already agreed between the parties, including general damages, past and future economic loss, and past and future superannuation loss. The Court then determined the principles and disputed items, including the rejection of the care claim, and directed the parties to perform the arithmetic and submit draft final orders.