In Brief
- A claim for the cost of transporting an injured child to school, via private transport, could be a claim for "treatment and care" because it is a claim for "transport modification" and/or a claim for "rehabilitation" and/or a claim for "attendant care services".
- A claim for the cost of transporting an injured child to school, via private transport, is not a claim for "education and vocational training" because that term is limited to education and vocational training required as a consequence of an injury, not to the compulsory education of a child.
Facts
The PIC published its decision in Phothisenh v AAI Limited t/as AAMI [2025] NSWPIC 338 on 25 July 2025.
The Claimant was only five and a half years old when she was involved in a motor accident on 18 July 2023. On that day, she was crossing the road with her mother. She was riding a scooter and she was crossing under the protection of a pedestrian crossing. One motorist stopped to allow the Claimant and her mother to cross the road. The Insured, however, failed to stop and collided with the Claimant.
The Claimant sustained facial injuries together with fractures of both her left and right femurs. She was restricted to a wheelchair for some period post-MVA.
A dispute subsequently arose between the Claimant and the Insurer regarding the Claimant's need for private transport to and from school.
The dispute was initially allocated to a Member, as a Miscellaneous Assessment Matter, to determine whether the claim for private transport constituted a claim for treatment and care within the meaning of section 1.4 of the Motor Accident Injuries Act 2017 (MAIA).
Relevant Definitions
The definition of "treatment and care" in section 1.4 of MAIA includes, amongst other items, "education and vocational training", "rehabilitation", "home and transport modification" and "attendant care services".
The term "rehabilitation" is separately defined in s 1.4 as follows:
"...the process of enabling or attempting to enable the person to attain and maintain—
(a) the maximum level of independent living, and
(b) full physical, mental, social and vocational ability, and
(c) full inclusion and participation in all aspects of life."
The term "attendant care services" also has its own definition s 1.4 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 addressed the multiple arguments advanced by the parties as follows:
- Is Education Treatment?
The term "education and vocational training" in the definition of "treatment" in s 1.4 of MAIA does not include the compulsory education of children. The term is directed to additional education and vocational training required as a consequence of an injury. For example, a hypothetical Claimant with a head injury might require specialised education and training as a consequence of that injury. It follows that transport to and from school is not transport for the purpose of obtaining "treatment". - Is Travel to School Rehabilitation?
If a hypothetical Claimant needed assistance to access the school grounds and enter the classroom, that assistance would be part of the Claimant's rehabilitation because it would be part of a process which helps the Claimant attain and maintain full inclusion in their school life. The same applies, in this claim, to getting the Claimant to school in the morning and home again in the afternoon. Whether the process of the Claimant's rehabilitation has ended is a Medical Assessment Matter to be determined by a Medical Assessor. - Is Uber Travel a Form of Transport
Modification?
Travelling to school via Uber rather than public transport is a form of "transport modification" as that term is used in the definition of "treatment and care" in section 1.4 of MAIA. "Transport modification" refers to a change or an alteration in the way the Claimant was transported before the accident. In this case, the Claimant used public transport before her accident. Following the accident, she claims she needed to modify that arrangement and use private vehicles. - Is Taking a Child to School an Attendant Care
Service?
Taking a child to school is an "everyday task" in the sense that it is routine or commonplace. Furthermore, given that the Claimant could not go to and from school by herself, given her age, accompanying her to school is a form of "personal assistance". Whilst the Claimant's mother would have assisted her to get to and from school, irrespective of her injury, the change in transport from public transport to a private vehicle is a form of treatment and care provided to the Claimant because of her injury.
As such, the Member found that the claim for private travel was a claim for treatment and care within the meaning of sections 1.4 and 3.24 of MAIA because it was a claim for transport modification and/or a claim for attendant care services and/or a claim for rehabilitation.
Whether the private transport was reasonable and necessary and related to the injuries the Claimant sustained in her accident was a Medical Assessment Matter. Any subsequent dispute about the cost would be a Merit Review Matter.
Why This Case is Important
The decision in Phothisenh is instructive because it demonstrates the overlap that exists between the twelve items listed in the definition of "treatment and care" in s 1.4 of MAIA. In this claim, the Member found that the private transport sought by the Claimant fell within three separate items in the definition.
It is important to understand, however, that the Member's role was limited to deciding whether the claim for private transport was a claim for "treatment and care" within the definition. It was not the Member's role to decide whether the claim for private transport was reasonable and necessary, in the circumstances, and whether the claim related to the injuries the Claimant sustained in the accident. Those issues were to be decided in a subsequent medical assessment conducted by a Medical Assessor.
If you would like to discuss this case note, please don't hesitate to get in touch with CTP Insurance Principal Peter Hunt today.
Additional McCabes Resources
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