Amaca Pty Ltd v Novek

[2009] NSWCA 50

New South Wales

Court of Appeal

CITATION:	Amaca Pty Ltd v Novek [2009] NSWCA 50 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 February 2009
JUDGMENT DATE:	17 March 2009
JUDGMENT OF:	Giles JA at 1; Tobias JA at 2; Campbell JA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – negligence – damages – Civil Liability Act 2001 section 15B – meaning of "dependant" – whether relationship of dependency exists between grandparent and grandchild while child’s parents alive and not estranged from child – nature of factual enquiry to establish dependence – relevance of legal obligation to support to whether relationship of dependence exists - TORTS – negligence – damages – Civil Liability Act 2001 section 15B – meaning of "gratuitous domestic services" – whether services "benefited persons in respect of whom damages could not be awarded" – meaning of "benefit" – determining to whom services were provided – whether need for services was "reasonable in all the circumstances" – meaning of "persons in respect of whom damages could not be awarded under subsection (2)" - STATUTES – Acts of parliament – interpretation – permissible use of Second Reading Speech – whether "capable of assisting in the ascertainment of the meaning of the provision" - STATUTES – Acts of parliament – interpretation – use of consequences of legislation as an aid to construction - PROCEDURE – costs – indemnity costs – Calderbank offers – whether indemnity costs available on appeal in absence of new offer of settlement
LEGISLATION CITED:	Civil Liability Act 2002 Civil Liability Amendment Act 2006 Civil Liability Amendment Bill Dust Diseases Tribunal Act 1989 Family Law Act 1975 (Cth) Family Provision Act 1982 Interpretation Act 1987 Motor Accidents Act 1988 Workers’ Compensation Act 1926
CATEGORY:	Principal judgment
CASES CITED:	Aafjes v Kearney (1976) 180 CLR 199 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Ball v Newey (1988) 13 NSWLR 489 Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 Brymount Pty Limited t/a Watson Toyota v Cummins CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 (re Dawson) Novek v Amaca Pty Limited (No 2) [2008] NSWDDT 15 (re Dawson) Novek v Amaca Pty Limited [2008] NSWDDT 12 Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Reports 81-951 Hodgson v West Stanley Colliery [1910] AC 229 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 Middleton v Kiama District Hospital [1970] 3 NSWR 136 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 Petrohilos v Hunter (1991) 25 NSWLR 343 Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No 2) [2006] NSWCA 379 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 Young Shire Council v Cummins (No 2) [2005] NSWCA 69
TEXTS CITED:	Pearce and Geddes, Statutory Interpretation in Australia, 6th ed 2006
PARTIES:	Amaca Pty Limited (Under NSW Administered Winding Up) - Appellant Carina Maria Novek (as legal personal representative of the Estate of the Late Margaret Denise Dawson) - Respondent
FILE NUMBER(S):	CA 40155/08
COUNSEL:	DJ Russell SC; JC Sheller - Appellant A Katzmann SC; D Toomey - Respondent
SOLICITORS:	DLA Phillips Fox, Sydney - Appellant Turner Freeman, Parramatta - Respondent
LOWER COURT JURISDICTION:	Dust Diseases Tribunal of NSW
LOWER COURT FILE NUMBER(S):	DDT 7152/07
LOWER COURT JUDICIAL OFFICER:	Kearns J
LOWER COURT DATE OF DECISION:	12 May 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	(re Dawson) Novek v Amaca Pty Limited [2008] NSWDDT 12

CA 40155/08
DDT 7152/07

GILES JA
TOBIAS JA
CAMPBELL JA

17 MARCH 2009

AMACA PTY LIMITED (UNDER NSW ADMINISTERED WINDING UP) v CARINA MARIA NOVEK (AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE MARGARET DENISE DAWSON)

Judgment

1 GILES JA: I agree with Campbell JA.

2 TOBIAS JA: I agree with Campbell JA.

3 CAMPBELL JA:

Nature of the Case

4 Mrs Margaret Dawson contracted mesothelioma because of the negligence of the Appellant. She began an action in the Dust Diseases Tribunal of NSW against the Appellant, but died before it had been decided. The Respondent, who is Mrs Dawson’s daughter and the legal personal representative of her estate, continued the action. His Honour Judge Kearns gave a judgment for the Respondent: (re Dawson) Novek v Amaca Pty Limited [2008] NSWDDT 12.

5 The only dispute in this appeal concerns one head of damage that the learned judge allowed. Before she became ill with mesothelioma, Mrs Dawson lived in the same household as the Respondent and the Respondent’s husband, Neale. The Respondent and Neale worked full-time, and Mrs Dawson cared for their two young children. The judge found that it was intended that, but for her illness, Mrs Dawson would have continued to look after the children. The judge found that the grandchildren were dependants of Mrs Dawson. He included in the damages awarded an amount of $193,307 as compensation for Mrs Dawson’s loss of capacity to provide gratuitous domestic services to the grandchildren. The Judge based his allowance of that head of damages on section 15B Civil Liability Act 2002 (“CLA”).

6 Section 32(1) Dust Diseases Tribunal Act 1989 provides:

“A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court.”

No question is raised in the present appeal as to the admission or rejection of evidence. Thus the present appeal can legitimately be brought only to the extent to which it alleges error on the part of the Tribunal “in point of law”.

7 The Appellant submits that the judge erred in construing section 15B CLA, and that had he construed the section correctly he would have found that:

(1) The grandchildren were not dependants of Mrs Dawson;

(2) Mrs Dawson’s services were not provided to the grandchildren, but to their parents; and

(3) The provision of the services was not reasonable.

8 The Appellant also submits that, in consequence of an error in the construction of section 15B(11)(b), the trial judge failed to take into account two benefits that provision of the services conferred on the Respondent and Neale. One was freeing them to work and earn money, the other was the performance of household tasks during parts of the day when childcare did not take up the whole of Mrs Dawson’s time and attention. The Appellant submits that had the judge taken those benefits into account the damages would have been reduced.

9 The Respondent contests each of these propositions.

10 The Respondent also submits that the detail of the Appellant’s argument shows that the Appellant is really alleging that the Tribunal made errors of fact, not errors of law.

Factual Findings About the Family

11 Mrs Dawson was born in September 1943. Thus she was aged 64 at the time of her death in January 2008. She was previously married but had been divorced from her husband for nearly 30 years at the time of her death. The Respondent, who was born in July 1977, was her only child.

12 From 1977 to 1989 Mrs Dawson was out of the paid workforce, being a full-time mother to the Respondent. In 1989 she returned to work, and continued to work until (as the judge found) 2003.

13 Up to 2001 Mrs Dawson had been living in rented premises, but in 2001 she began living with the Respondent and Neale. She continued to do so, except for periods of hospitalisation, until she died.

14 The Respondent and Neale have two children who are relevant to the present claim – Nicholas (born February 2002) and Chelsea (born June 2004).

15 From a time in 2005 until he died in 2007 Mrs Dawson’s father also lived in the same household, with Mrs Dawson being his primary carer.

16 Neale is a speculative builder. The judge found:

“He often works 7 days a week, starting at any time from 6.00 to 8.00 in the morning. During the week, he does not get home until 5.00pm. It is unlikely that he maintains those hours on Saturdays and Sundays …”

17 The judge found that the Respondent “has always been an industrious worker”. She:

“… had been in regular work with different employers since leaving school up until 2000. From 2000, she worked in her husband’s business.”

18 She did all the paperwork for her husband’s business. She also dealt with his customers allowing him to work full-time on the building of houses.

19 In March 2003 the Respondent purchased a business franchise for Donut King and she worked long hours in that business. She sold the franchise at the end of 2004. At the beginning of 2005 she opened a restaurant, and worked in it on Friday, Saturday and Sunday nights and on occasional days. The business was sold in January 2006, but the Respondent continued to do the night work.

20 The Respondent:

“… obtained a licence as a conveyancer in December 2006. She commenced business as such in Camden from February 2007. The business has taken off and been very successful. She works odd hours, operating from premises in Camden, from home and also travelling to people’s places.”

21 Mrs Dawson retired from work so that she could look after Nicholas, to enable the Respondent to start a new business, and so that both the Respondent and Neale could continue to work.

22 Mrs Dawson first became ill in December 2006.

23 The judge’s findings about Mrs Dawson’s involvement in the care of the children before she became ill were:

“67 Nicholas started pre-school in 2006. He went on Mondays and Tuesdays during school term. He started kindergarten in 2008. In 2008, Chelsea started going to pre-school on Wednesdays.
68 Before she became ill, Mrs Dawson usually woke around 7.00 to 7.30am. Sometimes, she would make Milo for breakfast for Nicholas in the morning. She made Chelsea’s breakfast and tidied the kitchen.
69 On Mondays and Tuesdays, Mrs Novek would take Nicholas to pre-school at around 9.00 to 9.30am and Mrs Dawson then looked after Chelsea for the rest of the day. She used the time, apart from attending personally to Chelsea, to tidy and clean the house, cook, shop, run errands and do washing and ironing. The routine was much the same on days when Nicholas was not at pre-school.
…
71 On days when Nicholas was at pre-school, Mrs Novek would arrive home around 3.00 to 3.30pm. Mrs Dawson would start dinner, give the children a snack and continue supervision while Mrs Novek worked. Mrs Dawson did the cooking for the whole family the majority of the time.
72 Mrs Dawson usually made the dinner. The family ate together. Mrs Novek then bathed the children. If Mrs Novek worked late, Mrs Dawson settled the children down and put them to bed.
73 Before she became ill, Mrs Dawson had Chelsea full time on Mondays and Tuesdays between about 9.00 or 9.30am through to about 3.00 or 3.30pm. She had both of them full time between those hours on Wednesdays, Thursdays and Fridays. When Mrs Novek worked late, which was about three nights a week, she supervised the children from about 3.30pm, settled them down and put them to bed around 7.30 to 8.00pm. Mrs Dawson always prepared the meals for the children with the exception of the occasional breakfast for Nicholas. She dressed Chelsea every morning and helped get Nicholas ready for pre-school.
74 On weekends, Mrs Novek and Mrs Dawson usually shared the caring of the children and looking after the house. Mrs Dawson looked after the children if Mr and Mrs Novek went out on the weekends or during the week.
75 It was intended that, but for her illness, Mrs Dawson would have continued to look after the children.”

24 Mrs Dawson received a carer’s pension during the period that she was caring for her father. Later in 2007 she commenced to receive the aged pension. During the period that Mrs Dawson lived with the Respondent and Neale she paid no rent, paid no board, and made no contribution to the household expenses.

The Legislation

25 Section 15B CLA was inserted into CLA by the Civil Liability Amendment Act 2006. Section 15B provides, so far as is relevant:

“(1) Definitions
In this section:
…
dependants , in relation to a claimant, means:
(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises:
(i) the husband or wife of the claimant,
(ii) a de facto partner of the claimant, being a person who has a de facto relationship (within the meaning of the Property (Relationships) Act 1984 ) with the claimant,
(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),
(iv) any other person who is a member of the claimant’s household, and
(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.
gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.
(2) When damages may be awarded
Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:
…
(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
…
(4) Determination of amount of damages
The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.
(5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court:
(a) may only award damages for that loss in accordance with the provisions of this section, and
(b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.
…
(11) Determining value of gratuitous domestic services
In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:
(a) the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and
(b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and
(c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.”

26 Prior to the enactment of the Civil Liability Amendment Act 2006, section 3B(1)(b) CLA excluded claims brought for dust diseases under the Dust Diseases Tribunal Act 1989 from the operation of CLA. The 2006 Amending Act amended section 3B(1)(b) CLA so that (inter alia) section 15B CLA applied to such claims.

The Legislative History

27 In Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 this court held that when tortious conduct injured a plaintiff in a way that prevented the plaintiff from providing care to other members of the plaintiff’s household, the loss of the capacity to provide that care was compensable as “compensation … for the value of services of a domestic nature” under section 72 Motor Accidents Act 1988. In reaching that conclusion the court accepted, and evidently approved of, a concession by counsel that damages of that kind were recoverable under the common law.

28 The High Court in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 overruled Sullivan v Gordon. CSR v Eddy held that, while loss of the capacity to provide gratuitous personal or domestic services was compensable, the compensation should be given as part of the general damages, not as a separate item of damage the quantum of which is assessed, as it had been in Sullivan v Gordon, by reference to the commercial cost of providing the services that the plaintiff cannot provide.

29 The High Court decided CSR v Eddy in October 2005. In May 2006 the Civil Liability Amendment Bill was introduced in the New South Wales Parliament, and in June 2006 the Civil Liability Amendment Act 2006 was assented to and commenced. It is quite clear that one of the purposes of the 2006 legislation was to alter the law as stated in CSR v Eddy, and to reinstate a head of damages akin to, but not in all respects identical to, that which had been recognised in Sullivan v Gordon.

Error in Deciding the Grandchildren were Dependants?

30 Mr Russell SC, counsel for the Appellant, accepts that a grandchild can sometimes be a “dependant” of the claimant, within the meaning of section 15B CLA. That conclusion inevitably follows from the inclusion of “grandchild” in para (a)(iii) of the definition of “dependants”.

31 Mr Russell argues that even though the judge did not articulate any incorrect proposition of law, the conclusion he came to shows that he must have made an error of law. Mr Russell submits that the mere fact that Mrs Dawson provided care to the children does not show that they are “dependent” upon her. Rather, he submits that parents have both a moral and legal duty to feed, clothe, maintain and educate, and generally care for their children, that the children involved in this case were dependent upon their parents for care, and the parents in effect outsourced the actual provision of that care to Mrs Dawson.

32 There was no detailed argument about whether the law recognises a duty of parents to their children as extensive as that for which Mr Russell submits, though Mr Russell referred us to section 60B and 66C Family Law Act 1975 (Cth). I shall assume, without deciding, that parents owe a duty of support of the general nature that Mr Russell submitted.

33 Mr Russell referred us to Aafjes v Kearney (1976) 180 CLR 199. In that case the High Court held that the Workers’ Compensation Commission made no error of law in deciding that a child was wholly dependent upon her father notwithstanding that the child lived with her mother and a stepfather, at the stepfather’s house, and the mother provided some items for the child to use. The stepfather contributed no money towards the child’s maintenance, as the mother paid for the child’s needs from maintenance provided by the father. The reasoning of all the judges shows that the father’s ongoing legal obligation to support the child was a matter of importance in reaching the conclusion that the Commission had committed no error of law.

34 An example is the statement of Mason J, at 212:

“The dominating consideration here and in the United Kingdom is a strong disinclination, founded on common sense, to attribute to the legislature an intention to deprive an applicant of a claim based on total dependency for support where a legal obligation to provide that support exists which has not been abandoned, merely because the applicant is in receipt of benefits from others, whether proceeding from charity or some other motive.”

35 Aafjes shows how the existence of a legal obligation to support is a relevant matter to take into account in deciding whether one person is dependent upon another. It illustrates that sometimes the legal obligation to support can be the decisive factor in reaching a conclusion about whether one person is the dependant of another. However I do not accept that Aafjes is authority for the proposition that if A has a legal obligation to support B, B can never be the dependant of anyone else. One reason why that is so is that in Aafjes it was recognised (at 203 per Barwick CJ, 206 per McTiernan J, and 210-211 per Mason J (with whom Stephen J agreed)) that there may be facts that show that a person has ceased to be dependent upon even someone who has a legal obligation to support him or her.

36 Further, in Aafjes at 202-203 Barwick CJ approved a statement of Lord Haldane in Potts v Niddrie & Benhar Coal Co Ltd [1913] AC 531 at 536-538, which included a statement that the question of whether one person is dependent on another:

“… is always primarily one of fact, on which the conclusion of the arbitrator ought only to be set aside, if it is apparent that there was no evidence to support it, or if error in law appears on the face of it.”

37 In Aafjes at 210, Mason J (with whom Stephen J agreed) quoted with approval the statement of Lord Shaw of Dunfermline in Hodgson v West Stanley Colliery [1910] AC 229 at 239 that “not only whether dependency exists but whether it is whole or is partial are questions of fact”. Mason J went on to say, at 212 (quoting from Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189 per Gibbs J) that, “the question of dependency is governed by factual and not by theoretical considerations.” When dependency of B on A is a question of fact, it cannot be the case that it necessarily does not exist when someone else has an obligation to care for and support B.

38 As well, the statutory provision being construed in Aafjes was relevantly different from the statutory provision involved in the present case. The expression in section 8(1) Workers’ Compensation Act 1926 was “wholly dependent for support”. By contrast, the relevant expression in the present case is “persons as are wholly or partly dependent on the claimant”. Mason J noted, at 211 that:

“… there is much to be said for the view that in s 8(1) the association of the words ‘wholly dependent’ with the words ‘for support’ makes it even more apparent that the existence of a legal obligation to support is an important factor to be taken into account in the application of the section.”

39 In Ball v Newey (1988) 13 NSWLR 489 this court held that an applicant under the Family Provision Act 1982 was “partly dependent upon” his deceased homosexual partner when they purchased a house together and shared the mortgage repayments. That finding was made in circumstances where there was clearly no legal obligation on one partner to support the other. Samuels JA (with whom Hope JA agreed) considered at 490-491 what was involved in being “dependent”:

“His Honour [the trial judge] concluded that “dependent” meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s 6(1) the definition of “eligible person”, par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. “Dependent”, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) 98 LJKB 49 at 53; 21 BWCC 401 at 408, that in “deciding whether or not there is dependency the factors to be considered are past events and future probabilities”. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency.”

40 Samuels JA also said, at 492:

“Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is “the actual fact of dependence or reliance on the earnings of another for support that is the test”: per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. “The standard of support is set by the parties themselves” (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other.”

Similarly here, in deciding whether a relationship of dependency in fact existed between Mrs Dawson and the grandchildren it is irrelevant that the Respondent and Neale could have chosen to have one or other of them stay at home to care for the children.

41 In Petrohilos v Hunter (1991) 25 NSWLR 343 this court resolved the question that had been left open in Ball v Newey whether the fact that A fulfilled certain non-financial needs of B, but provided no financial support, could be sufficient to make B wholly or partly dependent on A. The answer was in the affirmative. Hope AJA (with whom Clarke and Sheller JJA agreed) said, at 346:

“The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of language.”

Thus, the fact that Mrs Dawson provided no financial support to her grandchildren is not necessarily enough to show that they were not her dependants.

42 The finding in Petrohilos was that the plaintiff in that case had been dependent upon her stepmother, in circumstances where as a child the plaintiff had lived with her father and stepmother. The stepmother had no assets or income of any significance, but the stepmother “did all those things for the plaintiff that a mother in her circumstances does for a daughter from the age of five to the age of eighteen.” That case illustrates how a relationship of dependency can exist even when there is not the sort of obligation that a mother has to care for her own child.

43 Mr Russell recognises that the definition of “dependants” in section 15B admits of the possibility that a person who a claimant had no legal obligation to support could nonetheless be a dependant of the claimant. That is because the definition includes, as potential dependants, people in as diverse a set of relationships to the claimant as a de facto partner, a sibling, a niece, and any member of the claimant’s household. However, he submits that, in the case of a child, if there is someone who has the primary legal and moral obligation to care for the child, the child is dependent on that person, unless that person “wasn’t around” and someone else took on that obligation.

44 I see no trace in the legislation of the notion of a “primary legal and moral obligation”.

45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

“Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of “dependants” does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a “dependant” is a member of the workers’ family who was “wholly or partly dependent for support upon the worker at the time of his death”. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts’ Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.”

46 In my view the judge made no error of law in failing to hold that a duty of the Respondent and Neale to care for their children showed that the children were not dependent upon Mrs Dawson. The period of time over which Mrs Dawson provided care to the children, the frequency with which it was provided, and the extensive nature of the care she provided were such that there was an evidentiary base upon which it was legally open to the judge to conclude that the children were dependent upon Mrs Dawson. This challenge to the judgment fails.

Services Not Provided to the Grandchildren?

47 Mr Russell submits that the judge erred in law in concluding that Mrs Dawson provided services to her grandchildren. Rather, he submits, the services were provided to the Respondent and Neale, to fulfil their legal obligations to provide full-time care to their young children.

48 If the Appellant’s submission that the services were provided to the Respondent and Neale “to fulfil their legal obligations to provide full-time care to their young children” is intended to be a submission concerning the motivation of Mrs Dawson in providing the services, the judge has made no finding that she had any such motivation.

49 The judge has found that “By the very nature of what she was doing, she was providing services to her grandchildren”. Mr Russell did not identify any specific error of law that the judge made in arriving at this conclusion. However the judge has accepted as a fact that the Respondent and Neale “have been able to go out and work because Mrs Dawson was available to care for the children as part of the family arrangement”.

50 Even assuming for the moment that carrying out childcare tasks that enabled the Respondent and Neale to work counted as Mrs Dawson providing a gratuitous domestic service to them, there is no legal reason why some particular action could not count as the providing of services to more than one person. There are some sorts of domestic services, such as those involved in the performance of cooking, cleaning or home maintenance, that confer the same type of benefit on all members of a household, or several of the members of a household (sometimes including the person who carries out the services). The fact that several members of the household benefit provides no reason for concluding that it is erroneous in law to say that the person who performed such a service provided a service to some particular one of those household members.

51 I see no legal error in the judge’s conclusion that Mrs Dawson provided services to the grandchildren by looking after them.

Error in Concluding the Need for the Services was Reasonable?

52 The question of the reasonableness of the need for the services arises in section 15B(2)(d). Strictly, what section 15B(2)(d) requires to be reasonable in all the circumstances is the need for the services to be provided for at least six hours per week and for a period of at least six consecutive months. The judge encapsulated this by saying “the need referred to therefore is the "need for the services to be provided for (the threshold periods of time)”.

53 Section 15B(2)(d) is one of the four factual preconditions that must be satisfied before a court is empowered, by the chapeau to section 15B(2), to award damages for loss of a claimant’s capacity to provide gratuitous domestic services to dependants.

54 The trial judge held, correctly in my view, that the condition that must be satisfied under section 15B(2)(d) must have been intended by Parliament to add something to the conditions that emerge from section 15B(2)(a)-(c).

55 Thus, the fact that the dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and the fact that the services would have been provided for the threshold periods of time, are not necessarily enough, even when taken together, to show that the need for the services being provided for the threshold periods of time was reasonable. The judge took the view that section 15B(2)(d) required a consideration of “all the circumstances that brought about the need and reasons for the need.” It was not contended on the appeal that the correct construction of the provision did not require those circumstances and reasons to be considered.

56 The judge gave various examples of how he thought the test in section 15B(2)(d) would operate in practice. Those examples do not embody any statement of legal principle, and I express no opinion concerning them.

57 No error has been shown in the judge’s statement of the task that section 15B(2)(d) required him to undertake. The complaint of the Appellant is, in essence, that the judge came to a conclusion that was not legally open to him about whether the need for the services to be provided for the threshold periods of time was reasonable.

58 The Appellant’s written submissions stated: “ … it cannot have been the intention of Parliament that the Respondent and her husband should, in effect, receive paid childcare from the Appellant for the next 15 years.” In my view it is not clear from the wording of the legislation that Parliament did not have that intention.

59 The consequences that arise from legislation can bear on its construction. A clearly unreasonable outcome of legislation that has been construed in a particular way can be a reason for looking for some other construction. Cases supporting this familiar proposition are collected in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed 2006 at [2.34]-[2.36].

60 I am not persuaded that the outcome of which the Appellant complains is one that is so unreasonable that Parliament could not have intended it to arise. After all, it is a consequence of the factual findings of the judge that, were it not for the negligence of the Appellant, the Respondent and her husband were likely to have had their children looked after throughout their childhood, without the Respondent and her husband making any payment for the children being looked after.

61 Beyond the submission just dealt with, the submissions of the Appellant do not, in my view, amount to alleging that the judge's decision is erroneous in point of law. Deciding whether a particular need for services is “reasonable in all the circumstances” involves the application of a normative standard to facts found. In Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 at [62-[64]; (2006) 68 NSWLR 131 at 147-148 Giles JA (with whom Tobias JA agreed on this point) quoted the familiar observations of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157, and continued, at [63]-[64]:

“Similarly, a conclusion on the application of a normative test will ordinarily be a decision on a question of fact, although if the conclusion was not open to be reached there may be error of law in coming to the decision.
In a jury case, whether the defendant has been negligent is a question of fact for the jury notwithstanding that it involves application of a legal standard of reasonableness with a normative content: see Tobin v Murison (1845) 5 Moo PC 110; 13 ER 431; Municipal Tramways Trust v Buckley (1912) 14 CLR 731 at 737–738, per Isaacs J; Swain v Waverley Municipal Council (2005) 220 CLR 517 at 520 [6]–[8], per Gleeson CJ. In Naxakis v Western General Hospital (1999) 197 CLR 269 at 281 [39], McHugh J stated that whether a defendant has been negligent is a question of fact, without limitation to a jury case. The nature of the application of the standard by a judge in the Tribunal in my view is the same; although of course there may be error in point of law if on the evidence it is not open to the judge to find negligence (cf Swain v Waverley Municipal Council (at 522 [8])).”

62 In the present case, for the judge to decide that the need for the services to be provided for the threshold periods of time was reasonable was not a decision on a question of law, and in making that decision the judge is not shown to have applied an erroneous construction of section 15B(2)(d), or to have arrived at a conclusion that was not open on the evidence.

63 This ground of appeal is not made out.

Failure to take into Account the Benefit to the Parents?

64 Mr Russell submits that the Respondent and Neale have received a benefit from the provision of childcare and childminding services by Mrs Dawson. It has, he submits, enabled them both to go out and work full-time, rather than have one of them spend business hours caring for their children. It has relieved them, he submits, from their legal and moral obligation to care for their own children full-time. As well, the childcare that Mrs Dawson provided cost them nothing. Mr Russell submits that the judge recognised that benefits of these kind were received, but, through adopting an erroneous construction of section 15B(11)(b), the judge failed to take those benefits into account.

65 It is convenient to deal with one matter first, for the purpose of putting it aside. Sometimes parents with young children engage paid childcare if both of them want to work, and there is no family member available to look after the children without payment. That possibility is not relevant in deciding, in the present case, whether the judge has acted in accordance with section 15B(11)(b). That is because what that paragraph requires the court to take into account is the extent to which the provision of the services would actually have benefited people in respect of whom damages could not be awarded under subsection (2). In deciding whether the services would actually have benefited such people one should take into account how they would have acted if the services had not been provided. In the present case, the judge has accepted the Respondent’s evidence:

“… that if Mrs Dawson had not been around, she would have devoted most of her time to caring for the children … [,] that she would not have engaged outside care and that she would not have opened the Donut King or the restaurant and that she may have got her conveyancing licence later when the children were at school.”

66 In other words, if the Respondent would not have engaged paid childcare if Mrs Dawson had not been able to provide the services, the possibility of paid childcare is left out of any consideration of whether the provision of childcare by Mrs Dawson has conferred a benefit that is required to be taken into account under section 15B(11)(b).

The Reasons Below

67 The hearing below proceeded on a basis where counsel for the Appellant relied upon the Second Reading Speech made when the 2006 legislation was introduced into the Legislative Assembly as an aid to construction of the legislation. It seems that no objection was taken to that course in the court below. To understand the judge’s reasons for not making any deduction from the damages by reason of section 15B(11)(b) it is necessary to know of certain portions of the Second Reading Speech.

68 The speech was made by Mr Neville Newell, Parliamentary Secretary, on 10 May 2006 (Hansard, page 23015). Concerning section 15B(11), Mr Newell said,

“The proposed section now also requires the courts to take into account the extent to which a person will benefit from the services in circumstances where an award of damages cannot be made in respect of such a person. Many domestic services are provided on a household basis, rather than being provided to each member of the household individually. For example, cooking a meal for the household or maintaining the house and land will generally benefit all members of the household. For example, the claimant might have prepared family meals both for young children and for his or her spouse, who is not suffering any disabilities. If, following the injury of the claimant, damages are awarded to cover this service, they should be reduced to take account of the fact that the claimant’s loss of the capacity to provide services to his or her spouse would not qualify for assistance under proposed section 15B. The Government has chosen not to be prescriptive as to how damages should be reduced to take account of this issue.”

69 The judge’s reasoning on this topic was:

“I do not think that Mr or Mrs Novek have benefited within the meaning of section 15B(11)(b) by the provision of the services. They have certainly obtained a benefit to the extent that they have both been able to work, yet that is the same benefit the husband and father obtained from his wife looking after the children in the example given in the Second Reading Speech. There is no suggestion that the damages were not available by his receiving that benefit. This is because, in my view, it is a collateral and not a direct benefit that has been received. An example of a direct benefit would be a household task, such as cooking, which is undertaken, not only for the dependant, but also for all members of the household. Such an example was given in the Second Reading Speech. Account needs to be taken of the benefit to the household members in this situation. That sort of example does not arise in this case, because the allowance I shall be making is for the necessary care of the grandchildren and not for general household chores.”

Use of the Second Reading Speech Permissible?

70 On the hearing of the appeal Mr Russell did not rely on the Second Reading Speech, and submitted that it would be inappropriate to do so in light of the principles stated in Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Reports ¶81-951. There was no ground of appeal asserting that the judge was in error in having referred to the Second Reading Speech. On the appeal Ms Katzmann SC, counsel for the Respondent, submitted that it was permissible to look to the Second Reading Speech as an aid to construction of section 15B(11)(b), and that assistance would be derived from so doing. Before proceeding, I shall decide whether it is appropriate for this court to take into account the Second Reading Speech in construing section 15B(11)(b).

71 The relevant statutory statement of when a Second Reading Speech can be used as an aid to construction of an Act appears in section 34 Interpretation Act 1987.

“(1) In the interpretation of a provision of an Act … if any material not forming part of the Act … is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act … and the purpose or object underlying the Act …), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act … and the purpose or object underlying the Act …) leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, … includes:
…
(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,
…
(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act … and the purpose or object underlying the Act …), and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”

72 That provision needs to be applied also bearing in mind the requirement of section 33 Interpretation Act for the court to prefer a construction that would promote the purpose or object underlying the Act.

73 Harrison v Melhem was a case where the court held that the wording of a particular statutory provision was clear in meaning, and its clear meaning could not be cut down by reason of a Minister having stated in Parliament that the provision would operate in a fashion different to its clear meaning. (The statutory provision in question is at [94], the Ministerial statement at [118] and the finding that the meaning of the provision is clear is at [157].) Thus its ratio decidendi is not applicable to the present case, involving construction of a different statutory provision the meaning of which is not (in ways I shall explain) clear. However, Harrison v Melhem contains a valuable discussion of the circumstances in which statements in Parliament could possibly elucidate the meaning of the legislation that Parliament has enacted.

74 Mason P (with whom Spigelman CJ, Beazley and Giles JJA agreed on this point) referred, at [159] to authority to the effect that legislation must be construed by reference to what Parliament has said in the legislation, that the task of courts is to give effect to the intention of Parliament “only as it is expressed in legislation” (at [160] per Mason P), and that the task of courts in construing legislation is to ascertain not what Parliament meant but the true meaning of what Parliament said through its enactment. Mason P then said, at [162]:

“Statements in Parliament, even by ministers during the second reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another.”

75 His Honour said, at [172]:

“However broadly the notion of “purpose” or even “intent” is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the Minister is giving or appears to be giving to it.”

76 Similarly, Spigelman CJ said, at [16] (omitting his Honour’s extensive citation of authority):

“The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. … The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say.”

77 Spigelman CJ had earlier said, at [12]:

“Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, “capable of assisting in the ascertainment of the meaning of the provisions” within s 34(1) of the Interpretation Act 1987 . I only refrain from using the word “never” to allow for a truly exceptional case, which I am not at present able to envisage.”

78 Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material “is capable of assisting in the ascertainment of the meaning of the provision”. The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision involved in the case being decided and the particular item of extrinsic evidence involved in the case being decided. Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister’s understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision.

79 Insofar as the portion of Mr Newell’s speech that deals with section 15B(11) is either a statement of governmental intention about how the legislation will operate, or Mr Newell’s understanding of how it will operate, in my view it does not assist in the ascertaining of the meaning of the provision.

80 There may be some occasions when illustrations of the intended operation of legislation, contained in a Second Reading Speech, serve as reminders to the judge of situations that may fall within the general words of a statutory provision. In the present case, the relevant portion of Mr Newell’s speech can serve as a reminder that the general words in section 15B concerning provision of gratuitous domestic services to a claimant’s dependants can include the provision of domestic services like cooking, cleaning or home maintenance that benefit all the members of the household, or at least more than one member of the household, and thus that there might be occasions when a claimant provided such services to a dependant, and also at the same time has provided the same type of services to someone who was not a dependant.

81 If such examples in a Second Reading Speech (that could just as readily be obtained by talking over with any articulate person what sorts of situations are covered by the general words, or thinking about the matter for one’s self) assist the judge in understanding the meaning of the words of the statute, there is no prohibition on the judge looking there. But the fact that the examples are contained in a Second Reading Speech does not give those examples any special weight, or mean that the judge is entitled to take the view that the examples given exhaust the field of what the general words of the statute are capable of meaning.

82 I shall proceed to consider the construction of the provision without relying on the Second Reading Speech.

Construction of Section 15B(11)(b)

83 An essential part of construction of section 15B(11)(b) is to identify who are “persons in respect of whom damages could not be awarded under subsection (2)”.

84 Subsection (2) states that the law operates in a way different to the way CSR v Eddy held the common law operates. Thus, subsection (2) creates the power of the court to award a separate head of damages for loss for the claimant's capacity to provide gratuitous domestic services. The only person who can be awarded such damages is the claimant.

85 When section 15B(11)(b) talks of “persons in respect of whom damages could not be awarded under subsection (2)” it is referring to the people whose relationship with the claimant is such that subsection (2) does not confer any entitlement on the claimant to recover damages in respect of that person. Such people include (without exhausting all the possibilities) people to whom the claimant provided no services, people to whom the claimant provided services that were not gratuitous, people to whom the claimant provided services that were not domestic, people to whom the claimant provided services who were not dependants, people to whom the claimant provided services but who were capable of providing the services for themselves, and people to whom the claimant provided services who were not capable of providing the services for themselves for reasons other than age or physical or mental incapacity. In short, “persons in respect of whom damages could not be awarded under subsection (2)” is everyone in the world, save only people in respect of whom the claimant had provided services under circumstances such that subsection (2) confers on the claimant an entitlement to receive damages.

86 If it were the case that section 15B(11)(b) required the court to take into account all cases where the provision by a claimant, had he or she been uninjured, of gratuitous domestic services to a dependant would also, as a matter of fact, have caused any benefit (of any kind) to arise on someone in respect of whose relationship with the claimant was such that it gave rise to no damages under subsection (2), the task of the court would be large indeed. Our society is so interconnected that the provision of a service to one person very frequently causes a benefit to arise in some other person, or several other people. An example given by Ms Katzmann is that if provision of childcare “conferred a benefit” (within the meaning of the statute) on the Respondent and Neale by freeing them to work, it would also have conferred a benefit on the Commissioner of Taxation who would thereby become entitled to a payment calculated by reference to the increase in their taxable income from that work. If Mrs Dawson would have taken a child anywhere by bus, her doing so would have conferred a benefit (in the form of the fares) on the bus company. This example can be varied to relate to anything Mrs Dawson did in the course of childcare that involved purchase of goods or services from anyone. If Mrs Dawson would have taken a child to playgroup regularly, it might be established that her doing so would have conferred a benefit on the other children at the playgroup.

87 It will be recalled that section 15B(11) says that the court must take into account the matter identified in para (b). In my view, the enquiry that the court would be compelled to carry out, if section 15B(11)(b) required it to take into account all benefits that were a causal consequence of a claimant providing gratuitous domestic services – namely benefits of all kinds to all people in respect of whom a claim could not be made, is one that could not have been intended. The meaning of section 15B(11)(b) must be one that does not have such clearly unreasonable consequences.

88 Mr Russell's submission proceeds as though the expression “provision of services would … have also benefited [ineligible] persons” means the same as “provision of services would … have also conferred a benefit upon [ineligible] persons”. But in the statutory provision “benefit” is used as a verb, not a noun. When “benefit” is used as a verb it tends to focus attention on what the services themselves do, rather than what consequences they give rise to. It seems to me that the statutory expression requires the provision of services to have itself benefited ineligible persons, simply through the services being provided, before the court must take the fact that they benefit that other person into account.

89 There is also, it seems to me, a related question about whether “provision of the services” has a shade of meaning of “the act of providing the services”, or of “the fact that the services have been provided”. If the former shade of meaning is the correct one, it focuses attention on what the action of the person who provides the services itself does, while the latter shade of meaning would allow the focus to widen to what those actions give rise to. The consequences of the latter shade of meaning are such that, for reasons I have already given, it should not be adopted.

90 When section 15B(11)(b) refers to “the services”, that is a reference back to the expression in the chapeau “any gratuitous domestic services that a claimant has lost the capacity to provide”. That requires a focus on the particular services that the claimant could once provide, but can no longer provide. The definition of “gratuitous domestic services” in section 15B(1), being an exhaustive definition, makes it an essential requirement that the services in question be “of a domestic nature”. That again requires a focus on the services themselves.

91 So far I have concluded that what the court is required to take into account by section 15B(11)(b) is the extent to which the act of providing the services would itself have benefited ineligible persons. In the present case, it seems to be implicit in the judge’s findings that the benefit that the Respondent and Neale derived as a causal consequence of Mrs Dawson being at home looking after the children, in the form of being free to go out to work, derives not only from the act of providing the services, but also from the fact that those services are provided every day, and for sufficient hours in the day to not require the Respondent and Neale to be present during those hours. I take it that that is what the judge means when he says that the benefit of going out to work is a collateral and not a direct benefit. In my view a benefit that derives from not only the act of providing the services, but also from other surrounding circumstances that must exist before the benefit is derived, is outside the scope of section 15B(11)(b).

92 The operation of the provision can be tested by an example different from the present case, of a grandparent who was the principal financial support of a grandchild (so that the grandchild was thereby a dependant of the grandparent) who had minded the child for two or three hours on three or four days of the week (sufficient to overcome the threshold in section 15B(2)(c)). If the grandparent became unable, through the defendant’s tort, to mind the child, damages could still be recovered by the grandparent for loss of the capacity to provide gratuitous domestic services of childminding to the grandchild. In most households provision of child minding by the grandparent for that length of time on a day, and not on all days of the working week, would not enable the parent of the child to go out to work. Thus even if the Appellant’s argument is right no deduction under section 15B(11)(b) would be called for. If a grandparent provided more childcare than this, it would continue to be the case that, on the Appellant’s argument, no deduction was called for, right up to the point at which the frequency and length of time during which the childcare was provided was such that the parent could go out to work.

93 I would not accept that the legislative intention was to create as grossly unfair a situation as would arise if the grandparent who provided not quite enough childcare to enable a parent to go out to work had no deduction from damages, while a grandparent who provided just enough childcare to enable a parent to go out to work would suffer a deduction in damages. It needs to be recalled that what section 15B aims to compensate is the injured claimant, for loss of the claimant's capacity. It would be bizarre if a greater loss of capacity resulted in a smaller award of damages.

94 I mention the possibility that there may be another route to the conclusion that the answer that the judge arrived at is not mistaken in law. A grandparent who provides enough childcare to enable a parent to go out to work is not providing domestic services to the grandchild that are different in nature to those provided by a grandparent who provides not quite enough childcare to enable a parent to go out to work. It might be argued that if the provision of childcare for a length of time per day and with a regularity that is sufficient to enable a parent to go out to work involves a service to the parent at all, providing enough childcare to get over the dividing line between enough, and not enough, childcare to enable the parent to work would involve a financial service, not a domestic service. However, as this argument was not relied on in submissions, I shall not rely on it in this judgment.

95 If one has construed a statute in a particular way, it can be legitimate to check that that construction results in the statutory provision still having work to do, for Parliament is not to be presumed to have engaged in a futility when it included the words in the statute. If one bears in mind that some “domestic services” are ones which the act of providing itself benefits all or some of the members of a household, and that not all members of the household might be persons in respect of whom damages could be awarded under section 15B(2), there is a real operation for section 15B(11)(b) in requiring the court, in such a situation, to take into account that the act of providing the services has benefited not only an eligible person, but also an ineligible person.

96 In my view the decision of the judge, that the benefit of being freed to go out to work is not one that needs to be taken into account, is not erroneous in law.

Take into Account the Incidental Housework Benefit?

97 As the findings of the judge at paras [69] and [71] of his judgment (set out at para [23] above) show, Mrs Dawson was able to fit into her day various household tasks that benefited the entire household. Some of those household tasks were performed simultaneously with childminding, while cooking the evening meal was sometimes done only after the Respondent had arrived home. The trial judge found (at [117]):

“Whilst looking after the grandchildren, Mrs Dawson undertook general household chores, but her prime function and an essential one was the care of the grandchildren. It had to be done. They needed somebody there at all times whether that person was undertaking household chores or simply amusing himself or herself.”

98 The Appellant submits that the judge erred in law in failing to take account of the household task that Mrs Dawson carried out that benefited the Respondent and Neale, who are clearly ineligible persons.

99 In my view, the judge did not commit an error in this respect. The act of performing the childcare did not itself benefit the Respondent and Neale, where that benefit lay in having household tasks done for them. The time when she was carrying out childcare may well have provided Mrs Dawson with the occasion or opportunity to carry out household tasks, but it was not itself a part of the childcare that any household tasks be done. She could have carried out the childcare just as effectively without doing a jot of housework.

100 The judge quantified the section 15B damages (at [116]) on the basis that it was “for the necessary care of the grandchildren and not for general household chores.”

101 The judge was not required by section 15B(11)(b) to take into account, in performing that exercise, that the incidental performance of household tasks benefited ineligible person.

102 This ground of appeal also fails.

103 When all grounds of appeal have failed, in my view the appeal should be dismissed with costs. There remains only a question of on what basis the costs order should be made.

Indemnity Costs

104 After the judgment at first instance had been delivered in this matter, the trial judge granted an application made by the Respondent for an order for indemnity costs: (re Dawson) Novek v Amaca Pty Limited (No 2) [2008] NSWDDT 15.

105 The basis of the Respondent’s application was a Calderbank offer that it had made on 22 January 2008 to settle for $500,000 plus costs. The offer was to lapse on 24 January 2008 at 10:00am.

106 The amount of the judgment that the judge ultimately found in the Respondent’s favour was $547,137. The judge awarded costs on the ordinary basis up to 22 January 2008 and on an indemnity basis from 23 January 2008. The Appellant does not appeal against that indemnity costs order.

107 Ms Katzmann submits that the Respondent should receive an award of indemnity costs concerning the appeal, by virtue of having made the Calderbank offer below. I do not agree. The appeal proceedings were a separate proceeding, in a different court, to the proceedings in the court below. The Calderbank offer made below had lapsed by effluxion of time several months before the appeal was instituted.

108 While the making of an order for indemnity costs on the basis of a Calderbank letter is always a matter of the court’s discretion concerning the circumstances of the individual case, this Court has repeatedly stressed the great importance, in that discretionary exercise, of whether a fresh offer of settlement was made concerning the appeal proceedings: Brymount Pty Limited t/a Watson Toyota v Cummins; Young Shire Council v Cummins (No 2) [2005] NSWCA 69; Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160; Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd(No 2) [2006] NSWCA 379; and Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194; Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15.

109 In the present case, no factor beyond the making of the Calderbank offer in the court below has been pointed to as a reason for a discretionary departure from the ordinary basis for payment of costs. The Respondent should receive her costs of the appeal on the ordinary basis.

Orders

110 I propose that the appeal be dismissed with costs.

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07/09/2011 - Insertion of the word "of" after the word "purchase" in the penultimate sentence. - Paragraph(s) 86