Amaca Pty Ltd v Novek

The New South Wales Court of Appeal considered an appeal by Amaca Pty Ltd (Amaca) against a decision of the primary judge concerning damages awarded to Ms Novek. The dispute arose from Ms Novek's claim for damages for nervous shock, alleging that she suffered psychiatric injury as a result of witnessing the death of her husband, who died from an asbestos-related disease. The primary judge had awarded damages, including for gratuitous domestic services provided by Ms Novek's mother and for the loss of financial support from her deceased husband. Amaca appealed these awards, primarily on the basis that Ms Novek's mother was not a "dependant" within the meaning of section 15B of the *Civil Liability Act 2001* (NSW), and that the gratuitous services provided by the mother did not qualify for an award of damages under that section.

The Court of Appeal was required to determine two main legal issues. Firstly, it had to consider the meaning of "dependant" in section 15B of the *Civil Liability Act 2001* (NSW) and whether a relationship of dependency could exist between a grandchild and a grandparent when the grandchild's parents were alive and not estranged. Secondly, the Court had to determine the meaning of "gratuitous domestic services" under section 15B, specifically whether such services could be awarded if they benefited persons in respect of whom damages could not be awarded, and whether the need for those services was reasonable in the circumstances. The Court also considered the permissible use of a Second Reading Speech in statutory interpretation and the availability of indemnity costs on appeal.

In its reasoning, the Court of Appeal affirmed that the meaning of "dependant" under section 15B required a factual enquiry into the actual relationship of dependency, rather than a mere legal obligation to support. The Court found that the primary judge had correctly applied this principle and that the evidence supported a finding of dependency between Ms Novek and her mother. Regarding gratuitous domestic services, the Court held that the services provided by Ms Novek's mother did not fall within the exclusion in section 15B(3)(b) because they did not solely benefit persons in respect of whom damages could not be awarded. The Court also found that the need for these services was reasonable in all the circumstances. The Court further held that a Second Reading Speech was permissible as an aid to construction if it was capable of assisting in the ascertainment of the meaning of the provision, which it found to be the case here.

The Court of Appeal dismissed Amaca's appeal. The Court ordered that Amaca pay Ms Novek's costs of the appeal, noting that indemnity costs were available in the absence of a new offer of settlement.