Peter Hunt
Principal
CTP Insurance, Insurance
Can Preparing a House for Sale be an “Attendant Care Service”?
3 February, 2025
In Brief
- The definition of “treatment care” in s 1.4 of the Motor Accident Injuries Act 2017 (MAIA) includes “attendant care services“.
- Pursuant to the definition in s 1.4 of MAIA, a task is only an “attendant care service” if it is an “everyday task“.
- Whether a task is an “everyday task” turns on the scope of the undertaking and whether it is commonplace and routine or not.
Facts
The Personal Injury Commission (PIC) published its decision in Lau v QBE Insurance (Australia) Limited [2024] NSWPIC 724 on 31 January 2025.
The Claimant was injured in a motor accident on 18 January 2023. He sustained a number of serious injuries including a burst, compression fracture of his thoracic spine, together with other thoracic fractures.
The Claimant sought reimbursement of commercial house painting costs and other handyman services, including the installation of thirteen oyster lights. The Insurer declined to meet the house painting and handyman costs on the grounds they did not constitute “treatment and care” as defined by s 1.4 of MAIA. That decision was affirmed on Internal Review.
The Claimant sought a Miscellaneous Claims Assessment.
Relevant Definitions
The definition of “treatment and care” s 1.4 of MAIA includes an exhaustive list of what constitutes “treatment and care” and that list includes “attendant care services“.
The full definition of “attendant care services” reads as follows:
“…services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.“
The Member’s Decision
The Member determined that neither the claimed house painting or the replacement of the oyster lights were an “attendant care service” and were, therefore, not “treatment and care” for the following reasons:
- Neither the interior painting nor the replacement of thirteen oyster lights were a form of “home maintenance” as that term is used in the definition of “attendant care services“. Both the interior house painting and the replacement of thirteen oyster lights were more in the nature of home improvement.
- To qualify as an “attendant care service“, the service must be an “everyday task“ even if it falls within one of the four examples in the definition. The PIC Member gave the following useful example:
“I do not accept the claimant’s argument that if a task comes within the meaning of one of the examples provided for in the definition of attendant care services that no consideration needs to be given to the words “everyday tasks.” The definition of attendant care services is services that aim to provide assistance with everyday tasks and gives examples. However, there are home maintenance tasks that are everyday tasks just as there are everyday domestic service tasks and domestic service tasks that are not everyday. For example, cleaning the interior of a skylight might be an everyday task, but cleaning the exterior of a skylight on a second story roof requiring a safety harness and rigging might not be. Assistance with preparing dinner on a weeknight might be an everyday domestic activity but assistance with preparing a birthday dinner for two dozen family members might not.”
- The scope of the task, in question, is relevant to whether the task is an “everyday task” or not. The PIC Member gave the following further useful example:
“I reject the claimant’s submissions that the scope of the work is irrelevant and that allowable painting services should not be limited to just small painting jobs. Each case will be determined on the facts and circumstances of that case and the scope of the work is relevant. For example, painting the interior of a 12-room house would be an enormous undertaking if it was undertaken by a homeowner all at once, however if the injured homeowner was a professional painter who had, five years before the accident, painted a different room of his own home over the course of one weekend every month and had intended to paint every room again on the same basis the year after the accident that might possibly be something contemplated by the term `home maintenance'”
- Furthermore, in this particular dispute, there was evidence that the house painting and the installation of the thirteen oyster lights was not required as part of the Claimant’s treatment and care because it was required to freshen up the house in preparation for its sale.
- In this dispute, the task of painting the whole of the interior of the Claimant’s house was not an “everyday task” given the significant scope of the undertaking.
- Furthermore, whilst the replacement of one oyster light might constitute “everyday household maintenance“, the replacement of thirteen lights was not given the scope of the task and the inference that the lights were being replaced to improve the dwelling in preparation for the house sale.
The PIC Member therefore certified that the cost of interior house painting and the light replacements could not be recovered a treatment expense pursuant to Part 3.4 of MAIA.
Why This Case is Important
The decision in Lau follows a series of decisions, including BLI v Allianz,which have determined that a major project, like internal or external house painting, is not an “attendant care service” and, therefore, not “treatment and care” because the house painting is not an “everyday task”.
The decision in Lau, however, adds some further commentary on the issue
The PIC Member made the observation that every dispute of this nature turns on its own facts, but the focus is on whether the scope of the task takes the task outside the realm of being routine or commonplace. Whether the task is for the Claimant’s treatment and care or whether the task has some other purpose is also relevant.
If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.
