Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216 Hearing dates: 17 May 2018 Decision date: 02 October 2018 Before: Meagher JA at [1]
White JA at [2]
Simpson AJA at [107]Decision: In each appeal:
(1) Order that Mr Stephen John Raines be appointed to represent the respondent’s estate for the purpose of the proceedings.
(2) Appeal dismissed with costs.Catchwords: DUST DISEASES – damages for loss of capacity to provide gratuitous domestic services – s 15B Civil Liability Act 2005 (NSW) – whether damages awarded for loss of capacity to provide care for gratuitous domestic services allows for damages for loss of capacity to provide passive care – whether damages can be awarded if care provided by claimant and other person jointly – whether damages can be awarded if alternative carer would provide services in absence of claimant – whether primary judge provided adequate reasons – where primary judge admitted whole of report of geriatrician opining as to number of hours of care provided by claimant – discussion as to construction of s 32(1) Dust Diseases Tribunal Act 1989 (NSW) – appeal dismissed Legislation Cited: Civil Liability Act 2002 (NSW), s 15B
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
Dust Diseases Tribunal Act 1989 (NSW), s 32
Evidence Act 1995 (NSW), s 79
State Insurance and Care Governance Act 2015 (NSW), s 10
Workers Compensation Act 1987 (NSW), s 60AA
Workplace Injury Management and Workers Compensation Act 1998, s 353Cases Cited: Amaca Pty Ltd v Doughan [2011] NSWCA 169
Amaca Pty Ltd v Phillips [2014] NSWCA 249
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Burnicle v Cutelli [1982] 2 NSWLR 26
CGU Insurance Ltd v AAI Limited [2016] NSWCA 335
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281
Goodwin v Commissioner of Police [2012] NSWCA 379
Ilvariy Pty Ltd t/as Craftsman Homes Northern Rivers v Moss (2009) 74 NSWLR 710; [2009] NSWCA 207
Perez v State of New South Wales [2013] NSWDDT 1
Raines v Amaca Pty Ltd & Seltsam Pty Ltd [2017] NSWDDT 16
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1
State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149
Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338
Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260
Van Gervan v Fenton (1992) 175 CLR 327
Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19
Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45; (2012) 10 DDCR 290Category: Principal judgment Parties: Amaca Pty Ltd (under NSW administered…
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Details
- AGLC
- Amaca Pty Ltd v Raines [2018] NSWCA 216
- Case
- [2018] NSWCA 216
- Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Dust Diseases Tribunal. The appeal concerned damages awarded to the respondent, Mr Stephen John Raines, for the loss of his capacity to provide gratuitous domestic services to his wife, who suffered from a dust-related disease.
The primary legal issues before the Court of Appeal were whether the primary judge erred in awarding damages for the loss of capacity to provide "passive care," whether damages were recoverable when the claimant and another person jointly provided care, and whether damages were available if an alternative carer would have provided the services in the absence of the claimant. The Court also considered whether the primary judge had provided adequate reasons for the decision and whether the admission of the entire report of a geriatrician, which opined on the number of hours of care provided by the claimant, was appropriate.
The Court of Appeal considered the construction of section 15B of the *Civil Liability Act 2005* (NSW) and section 32(1) of the *Dust Diseases Tribunal Act 1989* (NSW). The Court found no error in the primary judge's approach to awarding damages for loss of capacity to provide gratuitous domestic services, including passive care. It was held that damages could be awarded even if care was provided jointly or if an alternative carer existed. The Court also determined that the primary judge's reasons were adequate and that the admission of the geriatrician's report was permissible.
Consequently, the Court of Appeal dismissed the appeals in each matter, with costs awarded to the respondent. The Court also ordered that Mr Stephen John Raines be appointed to represent the respondent's estate for the purposes of the proceedings.
The primary legal issues before the Court of Appeal were whether the primary judge erred in awarding damages for the loss of capacity to provide "passive care," whether damages were recoverable when the claimant and another person jointly provided care, and whether damages were available if an alternative carer would have provided the services in the absence of the claimant. The Court also considered whether the primary judge had provided adequate reasons for the decision and whether the admission of the entire report of a geriatrician, which opined on the number of hours of care provided by the claimant, was appropriate.
The Court of Appeal considered the construction of section 15B of the *Civil Liability Act 2005* (NSW) and section 32(1) of the *Dust Diseases Tribunal Act 1989* (NSW). The Court found no error in the primary judge's approach to awarding damages for loss of capacity to provide gratuitous domestic services, including passive care. It was held that damages could be awarded even if care was provided jointly or if an alternative carer existed. The Court also determined that the primary judge's reasons were adequate and that the admission of the geriatrician's report was permissible.
Consequently, the Court of Appeal dismissed the appeals in each matter, with costs awarded to the respondent. The Court also ordered that Mr Stephen John Raines be appointed to represent the respondent's estate for the purposes of the proceedings.
Orders
Orders of the court
In each appeal:
(1) Order that Mr Stephen John Raines be appointed to represent the respondent’s estate for the purpose of the proceedings.
(2) Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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