(a) (b) (c) (d) (e) (f) Medium Neutral Citation Hearing Dates Decision Date Jurisdiction Before Decision Catchwords
Supreme Court
New South Wales
Thiering v Daly [2011] NSWSC 1345
29/08/2011; 30/08/2011
11/11/2011
Common Law
Garling J
The plaintiff is to bring in Short Minutes of Order. The proposed short minutes are to be filed and served within seven days of the date of judgment.
If any party disagrees with the plaintiff's proposed short minutes of order, then that party is to file and serve any proposed short minutes of order within 14 days of the date of judgment. Within 21 days of the date of judgment, each party is to file and serve such written submissions as they wish with respect to the proposed short minutes of order, including any submissions as to costs.
Proceedings listed for further hearing on any outstanding matters arising from the short minutes of order and submissions at 9.15am on Friday 9 December 2011.
Liberty to apply on 24 hours' notice.
Filing of the short minutes of order and submissions is to take place electronically to my Associate.
PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings Plaintiff catastrophically injured in motor vehicle accident -Assessment of damages detailed and complex - Clarifying legal basis of determining damages will assist parties - Promotion of settlement
STATUTORY INTERPRETATION - Damages - Personal injury proceedings - Motor vehicle accident - Whether Motor Accidents (Lifetime Care and Support) Act 2006 abolished damages pursuant to s128 Motor Accidents Compensation Act 1999 - No clearly expressed intention to abolish damages for gratuitous attendant care services -Statutory expectation that attendant care services will be provided as part of Lifetime Care and Support Scheme
DAMAGES - Personal injury proceedings - Motor vehicle accident - Lifetime participant of Lifetime Care and Support Scheme (LCS Scheme) - Whether LCS Scheme or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided
gratuitously - LCS Authority obliged to make assessment of all treatment and care needs of a participant - Subject to questions of reasonableness and causation - Motor vehicle tortfeasor/CTP insurer remains obliged to pay LCS Authority for treatment and care costs of LCS participant - Griffiths v Kerkemeyer damages up to date of judgment recoverable if LCS Authority does not accept obligation to pay for gratuitous services - Services have not
Legislation Cited
Cases Cited
been provided for up to date of judgment - Question of fact if attendant care services provided for - Future attendant care services are excluded from damages
STATUTORY INTERPRETATION - Motor Accidents (Lifetime Care and Support) Act 2006 LCS Guidelines subordinate to LCS legislation and cannot derogate from obligations -Total ban on inactive sleepover payments cannot be justified by legislation - LCS Guidelines regarding inactive sleepovers valid insofar as inactive sleepovers do not form care plan of participant - Question of fact
Civil Procedure Act 2005 Interpretation Act 1987
Motor Accidents (Lifetime Care and Support) Act 2006 Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment Act 2006 Social Security Act 1991 (Cth)
Uniform Civil Procedure Rules 2005
Carr v Western Australia (2007) 232 CLR 138
Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Doherty v Liverpool District Council (1991) 22 NSWLR 284 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Eastman v The Queen (2000) 203 CLR 1
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 Figueroa v New South Wales Insurance Ministerial Corporation (NSWSC, 18 March 1998, unreported)
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Gilchrist v Estate of the late Sara Taylor [2004] NSWCA 476 Griffiths v Kerkemeyer (1977) 139 CLR 161
Harrison v Melhem (2008) 72 NSWLR 380
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
McCann v Sheppard [1973] 2 All ER 881 Mulholland v Mitchell [1971] 1 AC 666 Nolan v Clifford (1904) 1 CLR 429
Perre v Apand Pty Ltd (1999) 198 CLR 180 Pettersen v Bracha (1995) 21 MVR 71
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v PLV (2001) 51 NSWLR 736
Re Bolton; Ex Parte Beane (1987) 162 CLR 514
Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58 Ross v The Queen (1979) 141 CLR 432
Simpson v Diamond [2001] NSWSC 925
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Van Gervan v Fenton (1992) 175 CLR 327 Wik Peoples v Queensland (1996) 187 CLR 1
Category Parties Representation File Number(s) Publication Restriction 1 2 3 4 5 Interlocutory applications Alexander Thiering (P1) Rose Thiering (P2) John Daly (D1)
Lifetime Care and Support Authority of New South Wales (D2)
Solicitors:Slater & Gordon (P1-2) Moray & Agnew (D1)
Workcover NSW (D2)
Counsel:D A Wheelahan QC / E Romaniuk (P1-2) K Rewell SC / Mr D Wilson (D1)
C Needham SC (D2)
SC 2010/22260
Nil
JUDGMENT
For about 35 years, ever since the decision of the High Court of Australia in Griffiths v Kerkemeyer (1977) 139 CLR 161, an injured plaintiff has been entitled to damages which represent the cost, or else the value, of nursing and attendant care services provided to him or her to meet the needs arising from his or her injuries and disabilities.
In undertaking the assessment of these damages, the law has always disregarded the question of whether the services in question have been provided gratuitously, that is, free of charge or else free of any legal obligation to pay for the services.
Literally hundreds, if not thousands, of injured plaintiffs have included a claim for " damages in accordance with Griffiths v Kerkemeyer " in their claims. So well known is the decision, and so frequently is it mentioned in courts and in cases, that a shorthand description is regularly used: " G v K damages " is the common rubric.
It may therefore have come as a surprise to Mr Alexander Thiering, the injured first plaintiff in this case, and his mother, the second plaintiff, Mrs Rose Thiering, to be confronted with the
submission that G v K damages had been abolished and that his care needs, which are being met by Mrs Thiering, ought go uncompensated.
The submission in this case came from a motor vehicle tortfeasor, Mr John Daly, who is indemnified by a compulsory third party (CTP) insurer, which in New South Wales is supervised and licensed by a statutory body, the Motor Accidents Authority, and which provides indemnity against claims made in accordance with the statutory scheme of limited damages fixed under the Motor Accidents Compensation Act 1999 (MAC Act).
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The submission undoubtedly caused both plaintiffs surprise having regard to the fact that the statutory scheme for damages under the MAC Act makes specific provision for the payment of such damages by s 128, which is entitled " Damages for economic loss - maximum amount for provision of certain attendant care services ".
This was not the only matter of surprise for the plaintiffs. Mr Thiering is an accepted lifetime participant in the Lifetime Care and Support Scheme created by the New South Wales Government ("LCS Scheme"), which is managed and overseen by another government authority, the Lifetime Care and Support Authority of New South Wales ("LCS Authority"), the second defendant, which provides for the lifetime care and support of catastrophically injured individuals who suffered their injuries in motor vehicle accidents. As such, Mr Thiering was no doubt astonished to be told by the LCS Authority that even though his mother was to provide care to him for at least eight hours each day, during the evening period, as part of the care plan formulated in accordance with the LCS Scheme, she was not entitled to be paid for providing his care, and he is not entitled to be compensated by way of damages so as to be able to reimburse her and thereby discharge any moral obligation he may feel towards her.
The motor vehicle tortfeasor (or at least his CTP insurer) submits that G v K damages have been abolished and that the LCS Scheme is now responsible for this component of damages.
The LCS Authority which manages the LCS Scheme denies any obligation to pay a family member for these freely provided services. All of the parties submit that the Court should determine whether these respective positions, each seemingly adopted as a matter of policy, are legally correct. The position will affect other claimants who are in a position similar to that of Mr Thiering.
Whilst Mr and Mrs Thiering may be surprised to be confronted by the issues to which I have just referred, the public is entitled to question whether it is appropriate for this Court to be
required to deal with this matter. This is because it is in essence a question of government policy. The Motor Accidents Authority, which licenses and regulates CTP insurers to issue policies which indemnify against claims under the MAC Act, is a statutory authority which is part of a division of the New South Wales Government known as the Compensation
Authority Staff Division which, since 2009, has been a principal agency of government. As well, the LCS Authority is also part of the Compensation Authority Staff Division.
The Compensation Authority Staff Division has a single Chief Executive Officer and the Division, and hence the two authorities, report to a single Minister of Government, namely, the Minister for Finance and Services.
No doubt, the public would question the need for this dispute about a fundamental issue of Government policy and legislation to occupy a number of days of the Court's time and three sets of lawyers, when the dispute ought to be determined by the Government setting out clearly what the policy is, and then providing legislation which is sufficient to enable the policy to be implemented.
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Be that as it may, the parties seek that the Court determine the dispute and that is what the Court will do.
The Essence Of The Dispute
The essence of the dispute before the Court can be encapsulated in two questions of significance to the parties in the proceedings. They are:
Has the right of an individual who is catastrophically injured in a motor vehicle accident, and who becomes a lifetime participant in the LCS Scheme, to damages in accordance with s 128 of the Motor Accident
Compensation Act 1999, been completely abolished; and
If not, who, as between the LCS Authority and a motor vehicle tortfeasor (in reality the CTP insurer) is responsible for paying the appropriate compensation either by way of damages, or other payments, for the provision of services which are otherwise gratuitous as that expression is to be understood from G v K.
Both of these questions involve an exercise in statutory interpretation. But that exercise takes place in a context within which there are two principal components. The first is the Notice of Motion by which the dispute is brought before the Court and about which it will be
necessary to say something. The second is the context of the pleadings and agreed (or else undisputed) facts which must be identified and addressed.
A Separate Question
The second defendant, the LCS Authority, has filed an Amended Notice of Motion for the hearing and determination, separately and in advance of all other questions in the
proceedings, of the following matters, which for convenience, I have amended to reflect the terms used in this judgment:
1. Does the LCS Authority have an obligation under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) to pay for gratuitous care and assistance provided by the second plaintiff ('the mother') to the first plaintiff ('the injured person') up to the date of judgment?
Is the mother's care and assistance 'expenses incurred by or on behalf of the injured person' within the meaning of section 6(1) of the Act?
(c) Do the Lifetime Care and Support Guidelines (Part 8) authorise the LCS Authority to decline payment of the mother on the basis that she is a family member and alternative care is available?
(d) Do the Guidelines (Part 8) authorise the LCS Authority to decline payment of the mother for: care provided to or visiting the injured person while an inpatient in hospital?
inactive sleepovers (after 8 October 2010)?
(e) Alternatively to 1(d), are these 'reasonable expenses' within the meaning of section 6 of the Act?
2. If there is an obligation to pay the mother, on what basis should an appropriate hourly rate be determined?
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3. Does the mother have standing to bring and maintain these proceedings against the LCS Authority?
4. If so, issues 1 and 2 above also arise for determination in the mother's claim against the LCS Authority.
First Plaintiff v First Defendant
5. Whether on proper construction of section 130A of the Motor Accidents
Compensation Act 1999 , the first plaintiff has any entitlement as against the first defendant other than damages for non-economic loss and loss of earning capacity. The other parties agree that these issues ought to be heard and determined separately. However, rule 28.2 of the Uniform Civil Procedure Rules 2005, invests the Court with a discretion as to whether it ought make such an order. It is necessary therefore to consider whether, in light of the agreement of the parties, it is appropriate for the Court to exercise its discretion to hear and determine these questions separately and in advance of all other questions. The rule is in the following form:
" 28.2 Order for decision
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings."
This rule is in identical form to the previous r 31.2 of the Supreme Court Rules, which it has replaced.
Principles Relating to Separate Question Orders
In exercising the discretion which exists in r 28.2 to make an order of the kind under
consideration here, it is essential that the Court gives effect to the provisions of s 56 of the
Civil Procedure Act 2005. By s 56(2), the Court is obliged to seek to give effect to the overriding purpose of the Civil Procedure Act and Rules of Court when exercising any power given to it by the Act or Rules of Court.
Section 56(1) provides that:
"The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings."
The commencing point for the consideration of a motion such as this is that it is ordinarily appropriate that all issues in proceedings should be disposed of at the one time:
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5] per Johnson J. In Perre v Apand Pty Ltd (1999) 198 CLR 180 at 332 [436], Callinan J said:
"Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages
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of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will be generally be
undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be".
In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55, Kirby and Callinan JJ said at [168]-[170]:
"168. The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full
preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
169. The second and related comment is this. A party, whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an
abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests.
170. Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question."
Although these remarks were made prior to the introduction of the Civil Procedure Act , and whilst there may be room for a different view as to whether the Court should take a more interventionist role in particular cases, in identifying and separating issues which can resolve significant parts of litigation expeditiously : see Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6], I am satisfied that it remains the case that determination of separate questions is an unusual, perhaps exceptional, course which is only to be taken when the benefit can be seen to clearly outweigh the disadvantages of the kind discussed by Kirby and Callinan JJ in Tepko .
Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 has helpfully summarised the principles to be applied by a Court in considering whether to order the determination of separate questions. I will not set out the entirety of those principles. I derive from his Honour's judgment, with which I express respectfully, my agreement, the following principles of relevance in this case:
(a) it is for the party seeking the order to show to the Court that it is desirable for the determination of the separate question to occur: Idoport at [7(3)];
(b) the determination of a separate question may be appropriate where the resolution of the separate issue carries with it a strong prospect that the parties will be able to resolve their dispute themselves: Idoport at [7(4)(b)];
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(c) the determination of a separate question will be unlikely to be appropriate where there is a commonality of witnesses and issues of credit as between the separate issue and the other issues in the case which will, or may, necessitate a ruling on the credit of one or more witnesses: Idoport at [7(5)(b)]; and
(d) a determination of a separate question is unlikely to be appropriate unless it is possible to clearly see that the determination will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings: Idoport at [7(6)];
Giles CJ in Comm Div (as his Honour then was) said in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142:
"Part 31 r 2 of the rules empowers the court to make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings, and for the statement of a case and the question for decision. In the ordinary course all issues in proceedings should be decided at the one time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the
proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties' dispute."
Although the judgment was dealing specifically with r 31.2 of the Supreme Court Rules, the principles that are articulated, and the approach taken, are directly applicable to these proceedings.
I have decided that this is one of those unusual cases where it is in the interests of all of the parties, and the efficient disposition of the proceedings for the Court to hear and determine such of the identified and separate issues as relate to the issues surrounding the provision of unpaid care by Mrs Thiering to Mr Thiering.
I am of the view that to do so will positively promote settlement in these proceedings. As is clear, the plaintiff is catastrophically injured. Assessments of damages are usually detailed and complex. It will obviously assist the parties to know the proper legal principles upon which the assessment is to be based.
As well, given the likely effect that the determination of this issue will have on other cases, the sooner that these questions are determined, the better.
However, as will become apparent, it will be for the parties to provide by way of short minutes of order, the answers to the respective questions which are contained within the Notice of
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Motion, upon publication of these reasons.
The Pleadings
First Plaintiff v First Defendant
The current pleading of the first plaintiff, Mr Alexander Thiering against the first defendant is the Further Amended Statement of Claim filed on 27 April 2011.
That pleading so far as the first plaintiff is concerned, informs the Court and the parties of the following allegations:
Mr Thiering was injured on Sunday 28 October 2007 whilst riding a registered motorcycle in Elouera Road, Cronulla;
Mr John Daly, the named first defendant, was driving a registered motor vehicle, a Holden Commodore, out of a driveway at that time and made a right hand turn across the path of the plaintiff and his motorcycle; A collision occurred, as a result of which Mr Thiering suffered severe injuries which were particularised (albeit in a separate document), as being a complete spinal cord injury at the C5 level, and a C6/7 vertebral
fracture. Other injuries and disabilities were particularised and to which it is unnecessary to refer;
As a consequence of the complete spinal injury, the plaintiff is totally paralysed in the upper and lower limbs and trunk, with only elbow flexion, shoulder and neck movement possible;
The collision and Mr Thiering's injuries were the result of negligence on the part of Mr Daly.
In his defence, Mr Daly admits that he was negligent and alleges that the plaintiff was guilty of contributory negligence in a number of specified ways. Mr Daly admits that Mr Thiering was severely injured but does not admit the full extent of his injuries and disabilities.
Paragraph 6 of the defence is in the following terms:
"Further, the defendant says that, as a result of s 130A of the Motor Accidents Compensation Act 1999 the plaintiff is not entitled to damages for treatment and rehabilitation expenses and/or domestic assistance and attendant care whilst he is
participating in the Lifetime Care and Support Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006."
The second plaintiff makes no claim against the first plaintiff.
First and Second Plaintiffs v Second Defendant
The claims against the second defendant, although pleaded in the same statement of claim, and related to some common questions of fact, are entirely discrete from those made by the first plaintiff against the first defendant.
The agreed context in which the claims are made is that Mr Thiering has been accepted into the LCS Scheme as a lifetime participant.
Both of the plaintiffs claim that the LCS Authority owed a statutory obligation to them to pay for such of the care services, which it assessed as reasonable, and certified by including the services on a case plan, as provided by Mrs Thiering to Mr Thiering.
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The plaintiffs claim damages in an amount which represents the value of the care services provided. The Further Amended Statement of Claim notes that the full particulars of the care services (and the claim) are to be provided.
In the Fourth Amended Statement of Particulars, the following particulars of the care services are provided:
"76B. On 18 April 2008 the [LCS Authority] conducted a care needs assessment for when the First Plaintiff was to be discharged from hospital. The total paid and unpaid care was assessed at 115.5 hours per week approving 59 hours of unpaid care and 56.5 paid care per week. The unpaid care was provided to the First Plaintiff by the Second Plaintiff. ...
76F. On 7 April 2009, [LCS Authority] approved 135 hours of care per week, 59 hours of unpaid care and 76 [hours] of paid care per week until 10 July 2009. The unpaid care to be provided to the First Plaintiff by the Second Plaintiff.
...
76J. On 22 December 2009, [LCS Authority] conducted a care needs assessment
approving 152 hours of paid care and 30 hours unpaid care, a total of 182 hours of care per week until 7 April 2010. The unpaid care to be provided to the First Plaintiff by the Second Plaintiff. The First Plaintiff advised [LCS Authority] that he preferred the care provided by the Second Plaintiff and for the Second Plaintiff to be paid for her services."
The LCS Authority does not dispute the facts in these paragraphs, but it reserves its position, and any admission as to whether the " unpaid care" was actually provided for the approved number of hours by Mrs Thiering. It does not dispute that some care was provided.
Ultimately, the particularised claim is as follows:
"77. When the First Plaintiff's carers are not in attendance his mother, the Second Plaintiff, has to do everything for him. She feeds him, she operates the television set for him, she puts on DVDs, and she massages the First Plaintiff and cleans his teeth. She opens doors for him and does the entire First Plaintiff's laundry and ironing. The Second Plaintiff also attends to his personal hygiene.
...
79. For the period 29 September 2008 until 17 January 2011 the maximum amount that may be claimed is $931.40 per week. The calculation therefore is as follows:
181 weeks x $931.40 = $168,583.40
...
88. A claim is made for the duration of the First Plaintiff's life expectancy and the amount claim[ed] is $5,650.25 per week x 988.9 = $5,587,532.22."
The LCS Authority's defence is lengthy. It is not necessary to set it all out in this judgment. As I understand it, the LCS Authority's position in that defence can be adequately summarised in this way:
(b) (c) (d) (e) (i) (ii) (iii) (iv) (f) 44 45 46
plans which provide for meeting these treatment and care needs;
It has made determinations as to which of Mr Thiering's treatment and care needs are reasonable and necessary, and it has certified such needs by the issuing of a certificate regarded by the legislation as final;
It admits that certain gratuitous care and assistance has been provided to Mr Thiering by his mother Mrs Thiering at his request and without any agreement for her remuneration;
It pleads that the gratuitous care and assistance provided by Mrs Thiering is not 'a reasonable expense' within the meaning of s 6(1) of the Motor Accidents (Lifetime Care and Support) Act ;
It pleads that Mrs Thiering:
is not an approved provider of care nor is she employed by an approved provider; is not appropriately trained or qualified to provide attendant care;
does not meet the employment criteria of approved providers;
is unsuited for employment as an attendant care provider because of her physical limitations and psychological impairment.
It denies, for a variety of reasons, the existence of any statutory obligation to pay for the care provided by Mrs Thiering.
In completing the review of the pleaded causes of action, it is relevant to note that in the course of both written and oral submissions, senior counsel for the LCS Authority acknowledged
that it understood the claim against it by the plaintiffs to include an action for a debt due rather than a claim for general law damages.
The LCS Authority submitted that there could not be a debt due in the absence of an express agreement entered into by it, or else in the absence of an agreement which was implied, such that there would be " ...a right to a quantum meruit recovery ." (T85.31-85.42)
Agreed and undisputed facts
The parties agreed the facts upon which the Court would proceed with this determination. They were:
1. The first plaintiff was born on 18 August 1978 and was involved in a motor accident on 28 October 2007. As a result of the motor accident the first plaintiff suffered catastrophic injuries rendering him a high level quadriplegic.
2. The second plaintiff is the first plaintiff's mother ('mother').
3. The first plaintiff is a lifetime participant in the scheme established by the Motor Accidents (Lifetime Care and Support) Act 2006 ('the LCS Act'). He was provisionally accepted to the scheme on 6 December 2007 as an interim participant and subsequently was accepted as a lifetime participant.
4. At all material times Guidelines were in force under the LCS Act, relevantly the Lifetime Care and Support Guidelines gazetted 8 October 2011 and as amended.
5. The first plaintiff was admitted to the Prince of Wales Hospital from the day of the accident and was discharged on 29 September 2008 to reside at 37 Bundanoon Road, Woronora Heights, NSW.
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(a)
(b) (c)
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6. While the first plaintiff was hospitalised his mother visited him in hospital.
7. Since his discharge from hospital the first plaintiff has lived in rented accommodation with his mother at Woronora Heights. His father resided there for a time but not longer lives at that address.
8. Since becoming a scheme participant, the LCS Authority has provided and paid for the first plaintiff to receive attendant care and domestic assistance from commercial providers, medical and nursing treatment, equipment and other items needed by reason of his injury. The first plaintiff's current (paid) attendant care provider is Australian Homecare Services Pty Limited.
9. Since his discharge from hospital, the mother has provided care and domestic assistance to the first plaintiff on a gratuitous basis. The first plaintiff and the second plaintiff have not negotiated any agreement in respect of the terms and conditions for payment of monies to the second plaintiff in respect of the provision of services to the first plaintiff by the second plaintiff.
10. The LCS Authority has declined to pay the mother as an attendant carer. The mother is in receipt of a carer's allowance from the Commonwealth Government for the care and assistance that she provides to the first plaintiff.
14. The first plaintiff has commenced proceedings No 2010/00022260 in the Supreme Court of New South Wales Common Law Division against the motor vehicle driver and the LCS Authority. By his Further Amended Statement of Claim the first defendant claims damages for negligence from the driver as the first defendant. The first defendant by his Defence filed 23 April 2010 admits breach of duty and alleges contributory negligence. The first defendant also relies on section 130A of the Motor Accidents Compensation Act 1999 (NSW).
15. By the Further Amended Statement of Claim the first plaintiff and the mother claim that the LCS Authority has a statutory obligation to pay for the mother's services to him 'in the order of' 106 hours per week and makes allegations of invalidity concerning Part 8 of the Guidelines made under the Act. The LCS Authority denies that it has an obligation as alleged and relies in particular on sections 6 and 10 of the Act and the Guidelines made under it. The LCS Authority also denies that the mother has locus standi .
16. The mother has also commenced proceedings [n]o 2010/351580 in the Supreme Court of New South Wales against the motor vehicle driver alleging psychological impairment, nervous shock and incapacity for work, and has submitted numerous expert and medical reports in support of her claim. Those proceedings will be heard together with the
negligence proceedings.
In addition, as I have noted above, by reference to the plaintiffs' Fourth Amended Statement of Particulars, these further facts were not disputed by the LCS Authority:
The care needs assessment carried out by the LCS Authority with respect to Mr Thiering included, although the details varied from time to time, an assessment of a number of hours each week of approved paid and unpaid care;
A care needs assessment particularised that the unpaid care was to be provided by Mrs Thiering; No individual other than Mrs Thiering has been identified as providing any unpaid care to Mr Thiering.
As to the undisputed fact in sub-paragraph (b) above, understandably, in the absence of evidence, the LCS Authority did not concede that the care had actually been provided for the precise number of hours contained in the approved care needs assessment, but as is
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agreed in fact 9 above, Mrs Thiering did provide care gratuitously to her son.
Principles of Statutory Interpretation
Against the context of the pleadings and the admitted and undisputed facts, it is necessary to proceed with an exercise of statutory interpretation, involving the MAC Act and the LCS Act.
In undertaking this exercise, I will apply the principles of statutory interpretation, as I understand them to be, which are:
(a) The commencing point is to engage in a purposive construction. That is, in the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying an act, is to be preferred to a construction that would not promote that purpose or object: Carr v Western Australia (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ;
(b) What is involved in an exercise of statutory construction is a search for the objective intention of Parliament and not the subjective intention of the Parliament, if one exists, or of Ministers: Eastman v The Queen (2000) 203 CLR 1 at [146]-[147] per McHugh J; Harrison v Melhem (2008) 72 NSWLR 380 at [14] per Spigelman CJ, [159] per Mason P, Beazley and Giles JJA agreeing; Wilson v State Rail Authority of NSW [2010] NSWCA 198 at [12] per Allsop P;
(c) A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischief to be addressed by the legislation, and the purpose to be served by the legislation, when contained in a
Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P;
(d) Legislation must be construed by reference to the language which Parliament has used in the enactment as distinct from what others, including Ministers, may wish or think that the Parliament intended: Nolan v Clifford (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P; Wilson at [12] per Allsop P;
(e) The courts in exercising judicial power, interpret legislation by determining what Parliament intended to mean by the words it used. The Court does not determine what Parliament intended to say or make any attempt to divine the intention of Parliament: Wik Peoples v Queensland (1996) 187 CLR 1 at 169; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [10]; R v PLV (2001) 51 NSWLR 736 at [82]; Harrison at [16] per Spigelman CJ;
(f) In interpreting legislation, the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] per McHugh, Gummow, Kirby and Hayne JJ;
(g) Legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears between provisions, it must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. This adjustment may require a Court to determine a hierarchy of provisions: Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ; Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J; Wilson at [13] per Allsop P;
51 52 53 54 55 56
need for ambiguity to be established: Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 at [86];
(i) The contextual material, to which reference may be made, includes the history of the particular enactment, and the state of the law when it was enacted, namely, the legal and historical context of the legislation. This may include an examination of reports of law reform bodies (or the like): Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Wilson at [12] per Allsop P;
(j) It is an established principle that a statute should not be presumed to abrogate existing fundamental or common law rights in the absence of clear language. The nature of the right being abrogated will determine whether the principle is strong or weak: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36] per McHugh J; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at [19] per Gleeson CJ; Harrison at [209]-[221] per Basten JA, Spigelman CJ agreeing at [2].
The Relevant Legislation
There are two Acts which are relevant to be examined.
Motor Accidents Compensation Act 1999
The MAC Act was introduced in 1999. In addition to creating the Motor Accidents Authority and providing for the licensing and regulation of CTP insurers, the Act provided for a regime of damages to be awarded to individuals injured in motor vehicle accidents as a result of the fault of the owner or driver of the motor vehicle. In so doing, it altered some of the common law's approach to damages.
The objects of the MAC Act are set out in s 5. Included in those objects are:
"(a) ... and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents ...
...
(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities"
The provisions of s 6(1) of the MAC Act are of importance. That section reads: " 6 Interpretation and application of Act by reference to objects
(1) In the interpretation of a provision of this Act ... a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects."
This seems to be a statutory encapsulation (albeit truncated) of the purposive construction approach to statutory interpretation to which I have earlier made reference.
57 58 59 60 61 62 63 64 65
economic loss " with the permissible calculation of a sum for damages to which an injured plaintiff may be entitled as a result of the provision to him or her, of gratuitous attendant care services. I note that the term "gratuitous care" which found fashion in G v K is not actually used in s 128. Rather the section describes the relevant services as being
"...[services] for which the person in whose favour the award is made has not paid and is not liable to pay."
Generally speaking, s 128 accepts the right of an injured plaintiff to recover G v K damages, but seeks to limit the sums of money which may be recovered. In so doing, it is seeking to fulfil the object in s 5(e) of the MAC Act, namely, to keep premiums affordable.
Of particular importance to the issues in this case, is s 130A. It reads:
" 130A No damages for expenses covered by Lifetime Care and Support Scheme
No damages may be awarded to a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 for economic loss in respect of the treatment and care needs (within the meaning of that Act) of the participant that relate to the motor accident injury in respect of which the person is a participant in that Scheme and that are provided for or are to be provided for while the person is a participant in that Scheme."
Section 130A was introduced by the Motor Accidents (Lifetime Care and Support) Act 2006 which was assented to on 8 May 2006.
The Motor Accidents (Lifetime Care and Support) Act established the Lifetime Care and Support Scheme. It was introduced into Parliament as a cognate bill with the Motor Accidents Compensation Amendment Bill which was also assented to on 8 May 2006 .
Motor Accidents (Lifetime Care and Support) Act 2006
The LCS Act was passed in 2006 to create, and give effect to, a Scheme which provided for the reasonable lifetime care and support needs of catastrophically injured people, to be met by the LCS Authority, provided that the injuries arose out of a motor vehicle accident.
This Act contains no statement of purpose, nor a list of the objects to be achieved by the legislation.
Attendant care services are defined in s 3(1) in this way, namely, services
"...that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services."
This definition of attendant care services incorporates all of the services which have traditionally been compensated by awards of damages, including those instances where services are
provided gratuitously to fulfil needs created by injuries and disabilities which were "tortiously" sustained in a motor vehicle accident.
It is the existence of the need for these services, and the gratuitous fulfilment of that need, which is covered by the principles in G v K .
66
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Section 5 is a provision which provides some limited assistance in the interpretation of the LCS Act. It reads:
"Words and expressions used (but not defined) in this Act have the same meanings as in the Motor Accidents Compensation Act 1999. "
It is appropriate to note, and make some observations about, the other provisions which are relevant to the present issues:
" 6 Scheme participants' treatment and care needs to be paid for by Authority
(1) The Authority is to pay the reasonable expenses incurred by or on behalf of a person while a participant in the Scheme in providing for such of the treatment and care needs of the participant as relate to the motor accident injury in respect of which the person is a participant and as are reasonable and necessary in the circumstances.
(2) For the purposes of this Act, the treatment and care needs of a participant are the participant's needs for or in connection with any of the following:
(a) medical treatment (including pharmaceuticals), (b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation, (e) respite care,
(f) attendant care services, (g) domestic assistance, (h) aids and appliances,
(i) artificial members, eyes and teeth, (j) education and vocational training, (k) home and transport modification,
(l) workplace and educational facility modifications,
(m) such other kinds of treatment, care, support or services as may be prescribed by the regulations.
(3) As an alternative to paying the expenses for which it is liable under this section as and when they are incurred, the Authority may pay those expenses by the payment to the participant of an amount to cover those expenses over a fixed period pursuant to an
agreement between the Authority and the participant for the payment of those expenses by the participant.
(4) The LTCS Guidelines may make provision for or with respect to determining which treatment and care needs of a participant in the Scheme are reasonable and necessary in the circumstances.
7 Eligibility for participation in the Scheme
...
(3) A person is not eligible to be a participant in the Scheme in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, for future economic loss in respect of the treatment and care needs of the participant that relate to the injury."
68 69 70 (a) (b) 71
It is appropriate to notice that s 7(3) denies eligibility to participate in the LCS Scheme, but only to a person who has received damages, by way of a court order or settlement, for future
economic loss. That is, economic loss calculated as arising after the date of judgment or settlement (as the case may be). There is no mention of damages for past attendant care needs as a ground for lack of eligibility for the LCS Scheme.
Section 9 deals with participation in the LCS Scheme in this way: "9 Acceptance as a participant
(1) A person becomes a participant in the Scheme if the Authority is satisfied that the person is eligible to be a participant and accepts the person in writing as a participant in the Scheme, either as a lifetime participant or an interim participant (according to the person's eligibility).
(2) If the Authority is satisfied that a person is eligible to be a participant and that
application for the person's acceptance as a participant has been duly made, the Authority must accept the person as a lifetime participant or an interim participant (according to the person's eligibility).
(3) A person accepted as an interim participant must be accepted as a lifetime participant if the Authority becomes satisfied during the person's interim participation in the Scheme that the person is eligible for lifetime participation in the Scheme.
(4) A person accepted as a lifetime participant in the Scheme remains a participant for life." I note that the effect of this section is that if a person, by reason of the extent of their injury (which by its nature is permanent and unlikely to improve) and it being caused wholly or partly by a motor vehicle accident, is eligible to participate in the LCS Scheme then:
the LCS Authority must accept the person into the LCS Scheme either as an interim or lifetime participant; and
the person, once a lifetime participant, remains a participant for life.
Whilst the LCS Authority has a limited discretionary decision as to whether it is satisfied that a person is "eligible", once that determination is made the inclusion of a person into the scheme is mandatory and not the subject of a further discretion.
The provisions which affect the assessment by the LCS Authority of the needs of a participant are these:
"23 Assessment of treatment and care needs of participants
(1) The Authority is to make an assessment of the treatment and care needs of a participant in the Scheme.
(2) The assessment is an assessment of the participant's treatment and care needs that are reasonable and necessary in the circumstances, and as relate to the motor accident injury in respect of which the person is a participant in the Scheme.
(3) An assessment of treatment and care needs is to be made in accordance with the LTCS Guidelines.
72 73 74 75 76 77 78
(4) The Authority is to certify in writing as to its assessment of the treatment and care needs of the participant including its reasons for any finding on which the assessment is based, and is to give a copy of the certificate to the participant.
26 Effect of assessment
(1) The Authority's assessment of the treatment and care needs of a participant is final and binding for the purposes of this Act and any proceedings under this Act.
...
28 LTCS Guidelines
(1) The LTCS Guidelines may make provision for or with respect to the assessment of the treatment and care needs of a participant in the Scheme."
Some features of these provisions which make provision for the administration of the LCS Scheme, should be here noted.
Section 6 requires the LCS Authority to pay expenses incurred in providing, inter alia, for attendant care needs.
Section 23 provides for a preceding and essential step to be taken, namely, the making of an assessment of the treatment and care needs of a participant. This section does not deal with costs or expenses. It simply deals with an assessment of needs.
I note that there is no provision which specifically obliges the LCS Authority to provide or pay for all of the assessed needs of a participant. It seems to be assumed by the Act, that the LCS authority will provide for all the assessed needs of a participant. This is a significant lacuna in the legislation which seems, at least in part, to have given rise to the current dispute. Nor does the LCS Act articulate any objects or purposes, the equivalent of those in s 5(a) and s 5(e) of the MAC Act.
Although s 54 was not referred to by any of the parties, it seems to be relevant to the
consideration of how it was envisaged that the Scheme would work. It is unnecessary to set out the section verbatim. It provides that the LCS Authority is entitled to recover from a motor vehicle tortfeasor, or if insured, the CTP insurer, the present value of the Authority's treatment and care liabilities in respect of the motor vehicle accident. That present value is defined as including the Authority's past expenses and the present value of the amounts which:
"...the Authority estimates will become payable...in the future...in respect of the treatment and care needs."
There is no identified exclusion from the recovery. The section envisages that the present value of all of the future treatment and care needs of an individual will be recovered where a
motor vehicle tortfeasor is identified.
The section also makes provision for a limited recovery if the identified motor vehicle tortfeasor is only partially liable, either because of the negligence of another person, or because of
79 80 81 82 83 84
the contributory negligence of the injured plaintiff.
The consequence of s 54 is that the position of the CTP insurer is no different, in principle, from that which exists under the MAC Act, or else where an injured plaintiff is accepted as a
participant in the LCS Scheme. That is because the motor vehicle insurer will have to pay a sum of money that fully compensates for the injuries and disabilities suffered, and all of the treatment and care needs which are properly to be provided.
There will be a difference in terms of to whom the money will be paid, namely either to the injured plaintiff directly, or else to the LCS Authority. Another difference which may be monetarily significant, is that the sum to be paid by the insurer to the LCS Authority is determined by the Authority's estimates and not a sum fixed by the Court in accordance with common law principles, as amended by the MAC Act.
It is unclear from the terms of s 54, whether the CTP insurer is entitled to have the Authority's estimates of G v K damages calculated in accordance with s 128 of the MAC Act. That is an issue which it is unnecessary for me to resolve.
The Second Reading Speech
The Second Reading Speech was delivered in the Legislative Assembly on 9 March 2006 by Mr John Watkins who was the Deputy Premier and Minister for Transport.
The Speech referred to both of the cognate Bills which became the legislation to which I have earlier made reference namely, the LCS Act and the MAC Amending Act. The Bills were moved and debated together.
The Speech includes these remarks:
"The Motor Accidents (Lifetime Care and Support) Bill establishes a scheme to provide lifetime care and support for persons who suffer catastrophic injuries in motor vehicle accidents covered by the Motor Accidents Compensation Act 1999 ... Each year about 125 people will be catastrophically injured in motor vehicle accidents in New South Wales and left with significant disabilities requiring lifetime support. They will have significant daily needs for care, personal assistance, domestic support, and ongoing equipment and medical needs. For those with the most profound injuries, this will extend to requiring 24 hour nursing care.
Under the current Motor Accidents Compensation Act , only 65 of the 125 people catastrophically injured in a motor vehicle accident are likely to be eligible for
compensation. This is because compensation is available only where the accident was caused by the fault of another driver. People who are considered at fault are not entitled to any compensation and must rely upon family and community services to provide support. Even those in receipt of compensation are not guaranteed a lifetime of reasonable care and medical treatment. Typically, the catastrophically injured will be male and predominantly young. More than half will be less than 20 years of age at the time of the injury and more than 70 per cent will be under the age of 30. To address the special circumstances of catastrophically injured motor accident victims, the Government released its lifetime care and support plan in June 2005.
The plan proposed that all people catastrophically injured in motor vehicle accidents in New South Wales would receive the medical care and support services they need throughout
85 (a) (b) (c) (d) (e) 86 (a) (b) (c)
their life, regardless of who was at fault in the accident. ...
A person will not be eligible to participate in the Scheme if the person has been awarded common law damages for his or her treatment and care needs. Acceptance into the Scheme as a lifetime participant will prevent a person from recovering common law damages for treatment and care needs. The scheme will provide for all the reasonable treatment and care expenses of participants. These reasonable expenses include medical treatment, rehabilitation, attendant care services, and home and transport modification. This is consistent with current entitlements in the CTP motor accident scheme which
provides for an injured person's reasonable and necessary medical treatment, rehabilitation and care expenses. The LTCS guidelines will determine what are reasonable and
necessary treatment and care needs for participants. ...
The Bill clarifies that for a participant in the scheme, the CTP insurer dealing with the claim is no longer required to meet any of the person's treatment and care expenses as those expenses are now required to be met solely by the Lifetime Care and Support Scheme. The Motor Accidents Compensation Act is also amended to exclude a lifetime participant in the Scheme from recovering economic loss damages for any treatment and care needs. The current lump sum compensation arrangements for meeting these needs will be replaced by the provision of lifetime treatment, care and support provided by the Lifetime Care and Support Scheme."
Purpose of the Legislation
It seems tolerably clear that it was the intention of the Government to introduce legislation which would establish a scheme with these features:
It would cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured;
The injuries were such that the individuals would require treatment and care for the whole of their lives; The LCS Scheme would provide for all of that treatment and care, including attendant care, for as long as it was necessary on an individually assessed basis;
Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care;
The only limitation on the provision of treatment and care was that it was reasonable in the circumstances, and that the injury was caused in a motor vehicle accident.
The historical context by the time these bills were debated and the legislation assented to included these issues:
The largest component of awards of damages for catastrophically injured plaintiffs were for the costs of future hospital or nursing care, and the costs of future attendant care. One of the essential parameters for the determination of those significant components was the likely life expectancy of the injured claimant. The determination by the Court of a finite life expectancy period for seriously injured plaintiffs was regarded as an exercise in the nature of an 'informed guess'. Often different methodologies, either statistical or clinical, were relied upon by different experts to reach widely divergent views.
The determination, in any one or other case, could be particularly complex because of co-morbidities, unassociated with the tortiously caused injuries. Such co-morbidities may have fallen outside either or
(d) (e) (f) 87 (a) (b) 88 89 90 (a)
both of the statistical and clinical experience. An example of such a case is Roads and Traffic Authority of NSW v Palmer [2003] NSWCA 58 at [105]-[117] per Spigelman CJ, Handley and Giles JJA agreeing. The existence of cases where the death of a seriously injured person occurred at a time much earlier than that determined by the Court, and prior to finalisation of any appeal, so that a question of whether a significant monetary windfall to an estate should be allowed, needed to be determined. Examples of such cases include: Gilchrist v Estate of the late Sara Taylor [2004] NSWCA 476; Doherty v Liverpool District Council (1991) 22 NSWLR 284. I note that the courts of the United Kingdom seemed to take a different approach to that taken in the NSW Court of Appeal: see Mulholland v Mitchell [1971] 1 AC 666, and McCann v Sheppard [1973] 2 All ER 881 at 885-886 per Lord Denning MR.
The determination of a truncated life expectancy by a Court for a seriously injured person may, if proved to be too pessimistic by the individual living longer than determined, mean that such an individual was left
without adequate compensation and thereby in the absence of proper care in a potentially life-threatening situation. This situation was described by Handley JA in Pettersen v Bacha (1995) 21 MVR 71 as perhaps amounting to " ... a sentence of death imposed by a civil court. ".
The issue was best expressed in summary form by Whealy J in Simpson v Diamond [2001] NSWSC 925 at [74]:
"The plaintiff's life expectancy is an issue which bears upon all those heads of
damage which have been claimed ... on a continuing basis for the whole of her life ... This is often a practical assessment but it is ... a most critical and important one. A significant underestimate, for example, could leave a plaintiff without adequate care at a critical later point in his or her life. A significant over estimate, on the other hand, could result in a windfall for others."
As well, problems had been identified in a number of cases about whether lump sum damages had been an adequate methodology where the claimant was a young person because:
the costs of nursing care, and commercially provided attendant care, had risen dramatically over time, so that sums awarded for damages had, by the elapse of time, proved to be wholly inadequate; or
in a small number of cases, imprudent investment of damages sums had resulted in the loss of the majority of the sum, and the injured claimant was left without adequate support.
Legislative change had been called for to avoid what was perceived to be a lottery in some cases, and significant uncertainty in many other cases. Various models had been
suggested. These pieces of legislation were the first in Australia to propose such a lifetime scheme as the solution to the issues which were part of the historical context.
The LCS Scheme would, so it was intended, remove both the uncertainties and the windfalls that were an identified part of the historical context. The Scheme did so, in essence, by removing the relevance of a determination of a fixed life expectancy, and by assuming the burden of rising care costs.
It is also appropriate to notice some of the context surrounding the introduction of these Bills. As the Second Reading Speech makes plain, in 1999 the then Government reformed
compensation for those injured in motor accidents by the introduction of the MAC Act. That Act was intended to provide cheaper insurance premiums for CTP insurance. It did so in a number of ways which might be summarised as follows:
(b) (c) 91 92 93 94 95 96
Second, by improving the processes by which injured people obtained compensation; and
Third, by ensuring that people received treatment for their injuries sooner and in a more timely manner.
The MAC Act continued, in s 128, previous similar provisions which are to be found in s 72 of the Motor Accidents Act 1988, that limited the sums of money which could be recovered for the value of gratuitous nursing and domestic services. It is relevant to observe that s 128 did not abolish damages of the kind which the Courts had recognised in G v K , but rather limited the amount of those damages by reference to a series of formulae contained in the section. In fact, s 128 gives statutory recognition to the appropriateness of G v K damages. Hence at the time of the passage of the LCS Act, the existing legislation well recognised (as did the common law) the entitlement of an injured person to recover damages for gratuitous
nursing and domestic services, which are in substance the same as the attendant care services as that expression is used in the LCS Act.
Nowhere in either of the Acts is there a clearly expressed intention to abolish G v K damages. Rather, the expectation seems to be that the attendant care services will be provided as part of the LCS Scheme and that there will be no need for G v K damages to be assessed and paid.
LCS Guidelines
The LCS Authority has issued Guidelines from time to time pursuant to s 58 of the LCS Act. Those Guidelines, whilst they have generally varied, have been largely identical so far as attendant care is concerned. The references to attendant care are to be found in Part 8 of the Guidelines. It is appropriate to note at the commencement of Part 8 that, as with other parts of the Guidelines, the LCS Authority acknowledges that it may waive observance with any part or parts of the Guidelines in any one particular case.
The Guidelines state that the policy with respect to attendant care is:
"The Authority will fund reasonable and necessary attendant care service for participants in relation to the injury sustained in the motor accident."
It describes the background to that policy in the following terms:
"Attendant care services are paid services that assist the participant to perform tasks they would normally be able to do for themselves. Attendant care services focus on maximising the participant's independence across a variety of settings: home, work/vocational activities and community/avocational activities, with the aim of facilitating a return to their former roles or developing new functional skills and roles. Attendant care services should be centred on the participant and their family and be the most age appropriate and least restrictive response to meet their needs.
Attendant care services include personal assistance, domestic assistance, assistance to access the community, gardening, rehabilitation support, registered nursing and home maintenance. The type of assistance provided to the participant may include physical assistance, prompting and/or supervision."
97 98 99 100 101 102
law (and statutory modifications) since at least G v K , namely, that there are personal needs of the kind described which directly relate to tortiously caused injuries, which have to be met by the provision of comprehensive attendant care services, at the cost of the
tortfeasor.
The Guidelines note in Clause 1 that the Authority's decision on whether the attendant care services are reasonable and necessary " ... will be based on the participant's care needs assessment ".
Of importance is Clause 6 of the Guidelines, which deals with the provision of attendant care by family and friends. It is in the following terms:
" 6. Attendant care - family and friends as paid attendant care workers Policy
Employment of family members or friends as paid attendant care workers is not
encouraged by the Authority, but may be necessary in some circumstances, for example, in rural and remote areas where access to attendant care workers may be limited.
Family members or friends will only be employed to provide attendant care services when it is determined by the Authority and attendant care service provider, with input from the participant and their family, to be in the best interests of the participant. This option will only be considered when all other alternative options to provision of attendant care have been exhausted."
The Guidelines further note that in order for a family member to provide the attendant care, and be paid for it, the family member needs to be employed by an approved attendant care
provider and that the family member has met that provider's criteria with respect to skills, knowledge and appropriate attitude. The Guidelines also provide that the family member must meet the provider's standards for service delivery and compliance with occupational health and safety guidelines.
The Guidelines conclude with this paragraph, which seems to be the only one specifically dealing with gratuitously provided attendant care. It is in the following terms:
" The Authority will not fund attendant care services that are provided by family or friends and payment for the services is requested from the Authority, where the Authority has not approved the need for care, or the care provided is not part of the participant's care plan. The Authority will not fund a family member or friend to provide inactive sleepovers."
The parties agreed before me that inactive sleepovers is a term used in the care industry to mean the presence of a person in the same accommodation as the injured person, during the overnight period when the injured person is ordinarily asleep, and circumstances do not require, on average across a period, the care provider to attend more than twice to the injured person in the course of the night.
The issues to be separately determined in this judgment include a number dealing with, in a general sense, the validity or appropriateness of these Guidelines. It will be necessary to return to this question in due course.
103 104 (a) (b) (c) 105 (a) (b) (c) (d) 106 (a)
How Does The Legislation Appear to Work?
Not all of the provisions of these two pieces of legislation sit well together. There are three possible ways of the legislation operating so far as G v K damages are concerned (I use this expression here, as a term of convenience, to include damages calculated and awarded in accordance with s 128 of the MAC Act). It will be necessary to examine each. The three ways are:
G v K damages remain outside the LCS Scheme and are at the direct expense of the CTP insurers in the usual way;
G v K damages are wholly subsumed by the LCS Scheme and are no longer available to a claimant who is also a lifetime participant in the Scheme; or
G v K damages are available but only up to the date of judgment or settlement of the damages claim where gratuitous services have in fact been provided to the claimant, and have not been paid for under the LCS Scheme. They are not available after that time in respect to any services which are to be provided in the future.
Option (a) -
G v K
damages are available in full to an LCS Scheme participant
The argument which supports this position features these steps:The proper analysis of G v K damages is that they are not a payment of expenses but are damages for a non-economic need created by a tortfeasor. In Van Gervan v Fenton (1992) 175 CLR 327 at 333, Mason CJ, Toohey and McHugh JJ said:
"...the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and ... the plaintiff does not have to show ... that the need 'is or may be productive of financial loss'."
Brennan J agreed with this statement at 340 as did Gaudron J at 347.
Their Honours also noted at 337 the claim "... is not one for special damages ... ". In that case, their Honours were using the term " special damages " in contradistinction to the term " general damages " as that was traditionally known in tortious damages claims.
The phrase " expenses incurred " in s 6 of the LCS Act carries the obvious meaning, namely expenses actually incurred and for which accounts exist, or else expenses which either the injured person or the LCS Scheme has a legal liability to pay; and
Since for the claimant, an award of G v K damages does not derive from " expenses incurred ", and the injured person has no legal liability to pay for such services, then such damages fall outside the purview of the LCS Scheme because they are not paid for by the LCS Scheme;
This approach is confirmed by the final words in s 130A of the MAC Act because the G v K damages are not an economic loss which is provided for by the LCS Scheme.
Option (b) -
G v K
damages abolished for LCS Scheme participants
The argument which supports this approach relies on these steps:The clear intention of the LCS Scheme was to " ...provide lifetime care and support for persons who suffer catastrophic injuries in motor vehicle accidents ";
