Amaca Pty Ltd v Raines

[2018] NSWCA 216

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 353

Cases 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 290

Category:

Principal judgment

Parties:

Amaca Pty Ltd (under NSW administered winding up) (Appellant – 2018/8397; 2nd Respondent – 2018/9678)
Percy Raines (1st Respondent in both proceedings)
Seltsam Pty Ltd (2nd Respondent – 2018/8397; Appellant – 2018/9678)

Representation:

Counsel:
G M Watson SC with J Sheller (Amaca Pty Ltd)
G J Parker SC with A Giurtalis (Percy Raines)
A P Cheshire SC with B Ilkovski (Seltsam Pty Ltd)

  Solicitors:
Mills Oakley (Amaca Pty Ltd)
Maurice Blackburn Lawyers (Percy Raines)
Colin Biggers & Paisley (Seltsam Pty Ltd)

File Number(s):

2018/83972018/9678

 Decision under appeal 

Court or tribunal:

Dust Diseases Tribunal

Citation:

[2017] NSWDDT 16

Date of Decision:

18 December 2017

Before:

Kearns J

File Number(s):

DDT 85/2017

headnote

[This headnote is not to be read as part of the judgment]

The respondent, Mr Percy Raines sued the appellants, Amaca Pty Ltd and Seltsam Pty Ltd for damages arising from his exposure to asbestos and asbestos dust in approximately 1967 and late 1975 to early 1976. Percy was diagnosed with mesothelioma in August 2016. He was married to Mrs Robin Raines with whom he had two now adult children, Stephen Raines (now the executor of Percy’s estate) and Richard Raines. In 1996, Richard had suffered a catastrophic motor vehicle accident which led to his parents commencing the provision of around-the-clock care. He was entitled to compensation under the Workers Compensation Act 1987 (NSW). Robin sustained an injury in 1981 which led to two lower back operations amongst other health issues.

In the Dust Diseases Tribunal, the parties agreed that Percy should be paid a sum of $470,000 but disagreed as to the amount that should be paid for the loss of his capacity to provide gratuitous domestic services to Robin and Richard under s 15B of the Civil Liability Act 2005 (NSW). Kearns J awarded damages of $1,479,000 which included damages for lost capacity for both the past and future. In the course of trial, the primary judge accepted evidence of a geriatrician, a Dr Obeid who gave evidence of the number of hours of care Percy was providing to Richard and Robin. Both Amaca and Seltsam appealed. On appeal, the following principal questions arose:

a)   Whether the definition of “gratuitous domestic services” under the Act allowed for damages for loss of capacity to provide “passive care”?

b)   Whether Percy was entitled to damages for loss of capacity to provide care to Richard if “passive care” for Richard was provided by him and Robin jointly?

c)   Whether damages could not be awarded for Percy’s loss of capacity to provide services to Richard if the services would be provided by Richard’s workers’ compensation insurer?

d)   Whether the trial judge erred in admitting the whole of the report of Dr Obeid?

e)   Whether the primary judge provided adequate reasons?

f) The nature of the appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW)

The Court (Meagher and White JJA, Simpson AJA) dismissed the appeal:

In relation to (a):

1. The primary judge did not err by including passive care in the award of damages for “gratuitous domestic services”. Passive care included forms of “protective attention” such as constant supervision and availability to step in in case of emergency (Simpson AJA, Meagher JA agreeing with Simpson AJA, White JA): [160]-[163], [67]-[70].

Van Gervan v Fenton (1992) 175 CLR 327 referred to.

2. It may be arguable that for the purposes of s 15(2)(b) that services by way of supervision or protective attention by their very nature cannot be capable of performance by the dependant himself or herself but that question was not raised (White JA): [71].

In relation to (b):

3. Even if gratuitous domestic services are provided jointly, the task remains one of identifying both the number of hours of the services provided by the claimant and the reasonable need of the dependants for those services to be provided by the claimant. Section 15B(2)(d) is not directed to the identity of the provider of services being either the wife or the potential workers’ compensation insurer (Simpson AJA, Meagher JA agreeing with Simpson AJA, White JA): [147]-[148], [83]-[84] [92]

Dionisatos v Acros Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 applied; State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 considered.

In relation to (c):

4. The availability of alternative care from Richard’s workers’ compensation insurer is not relevant to the question of the need of the dependant for the services previously rendered by the claimant (Simpson AJA, Meagher JA agreeing): [147]-[148], (White JA): [92], and the evidence did not establish that such care would be provided by the insurer (Simpson AJA, Meagher JA agreeing): [152], (White JA): [93]-[94].

State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 considered.

In relation to (d):

5. The primary judge erred in admitting part of the report of Dr Obeid. Dr Obeid was not qualified to give any expert opinion on the number of hours of care provided by Percy to Richard. However, this error was of no moment as the primary judge was not misled. Once the primary judge had concluded that the amount claimed was below the amount in the report, he did not need to determine the exact number of hours (White JA, Meagher JA and Simpson AJA agreeing) [47] [50] [154].

In relation to (e):

6. The primary judge provided adequate reasons for the damages given for loss of capacity to provide services to Robin and Richard (Simpson AJA, Meagher JA agreeing with Simpson AJA, White JA): [156]-[158], [56]-[57] [88].

In relation to (f)

7. In construing s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) it is not necessary to identify an explicit or implicit decision in relation to a question of law which has been raised or determined by the Court. An appeal lies where a party is dissatisfied in point of law with a decision of the Tribunal. If an issue were not in dispute at trial, it might not give rise to an error or point of law on appeal but this question was not raised (White JA): [14]-[17]

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 applied.

Judgment

1. MEAGHER JA: I agree for the reasons given by Simpson AJA that the appeal should be dismissed with costs and, in view of the respondent’s death subsequent to the completion of argument, that a person be appointed to represent his estate. Had it been necessary to decide, I would agree with White JA’s conclusion that failure to give adequate reasons was a ground of appeal available to Seltsam under Dust Diseases Tribunal Act 1989 (NSW), s 32.

2. WHITE JA:   These are appeals from a judgment of the Dust Diseases Tribunal (Kearns J) given on 18 December 2017 in favour of the respondent in the sum of $1,479,000 (Raines v Amaca Pty Ltd & Seltsam Pty Ltd [2017] NSWDDT 16).

3. The respondent, Mr Percy Raines, sued Amaca Pty Ltd (under NSW administered winding up) (“Amaca”) and Seltsam Pty Ltd (“Seltsam”) for damages arising from his exposure to asbestos and asbestos dust in approximately 1967 and late 1975 to early 1976. He was diagnosed with mesothelioma in August 2016.

4. Amaca and Seltsam were manufacturers, suppliers or distributors of the products to which Mr Raines was exposed. During the course of the hearing both defendants admitted liability. The Tribunal was informed that the defendants had agreed on questions of apportionment between them. The parties resolved all aspects of the quantification of damages, except for Mr Raines’ claim for damages under s 15B of the Civil Liability Act 2002 (NSW) for loss of his capacity to provide gratuitous domestic services to his wife Robin and his son Richard. This appeal concerns the award of damages under s 15B.

5. In these reasons I will refer to Mrs Robin Raines, Mr Richard Raines and to Mr Raines’ other son, Steven, and Steven’s wife, Elaine, by their first names. I will also refer at times to Mr Raines by his first name, Percy. I use the names Mr Raines and Percy interchangeably. I use first names for ease of reading and intend no disrespect.

6. Richard suffered a work-related injury in a motor accident on 11 December 1996 . As a result of the accident he suffered a severe traumatic brain injury. At the time of the accident he was married, but the marriage did not survive. Steven was appointed as Richard’s financial manager. At the time of Richard’s injury he was living in Coonamble. At that time Percy and Robin lived at Lightning Ridge. They moved to Coonamble to look after Richard as he was no longer capable of looking after himself. With money obtained from a lump sum workers’ compensation payment Richard (through his financial manager, Steven) acquired a property at Muswellbrook to which he moved with his mother and father. Steven gave unchallenged evidence that Richard received some commercial care paid for by his workers’ compensation insurer, but otherwise required around-the-clock care which his parents provided.

7. Mr Raines deposed that Richard received professional care managed by HB Rehab and paid for by CGU Workers Compensation. The commercial carers took Richard into town from 10.00 am to 3.00 pm on Monday, Wednesday and Friday and also provided him with care on Friday evenings from 6.00 pm to 10.00 pm. He also received about four hours of paid cleaning on Wednesdays from 10.00 am to 2.00 pm. When Percy and Robin were away for any period they arranged for a carer to provide Richard with 24-hour supervision and care.

8. Robin was also injured in a motor vehicle accident. She suffered her injury in 1981. It led to two operations on her lower back. She has other medical issues. She was 77 years at the time of the hearing. Percy also provided gratuitous domestic services to Robin. Percy deposed that Robin was unable to exert herself because she is restricted by pain in her legs, joints and lower back and that she needed assistance with anything that required strength and physical exertion.

9. Section 15B of the Civil Liability Act provides that damages can be awarded for the loss of a claimant’s capacity to provide gratuitous domestic services to a dependant. The section was passed in response to the High Court’s decision in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, that held that such loss of capacity could only be compensated by an award of general damages for non-economic loss. Section 15B(5) provides that damages cannot be awarded on that basis but can be awarded as compensation for economic loss if the conditions of the section are satisfied and subject to the limitations on quantum for which the section provides.

10. The primary judge held that the amount of damages to be awarded for the loss of Mr Raines’ capacity to provide gratuitous domestic services to Richard and Robin should be assessed on the basis that he provided such services to Robin for eight hours per week and to Richard for 73 hours per week. In Richard’s case the 73 hours per week was calculated as nine hours per week of what was called active care and 64 hours per week of what was called passive care. The primary judge calculated that at the hourly rates of $30.15 per hour, being the maximum hourly rate allowed, the amounts to be allowed for loss of capacity to provide past care to Robin and Richard for the period from 30 July 2016 to 18 December 2017 was $102,570. For the future, the primary judge applied a discount of 10 per cent for vicissitudes and assessed damages in the sum of $89,524 for Percy’s lost capacity to provide gratuitous domestic services to Robin, and $716,191 for his lost capacity to provide gratuitous domestic services to Richard. The primary judge noted that the parties had agreed that in respect of all other issues Mr Raines should be paid a sum of $470,000. In the result his Honour said that there would be a verdict and judgment for the plaintiff in the sum of $1,479,000.

11. Section 15B of the Civil Liability Act provides:

“15B   Damages for loss of capacity to provide domestic services

(1)    Definitions

In this section:

assisted care, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously):

(a)     any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),

(b)     if the dependant is a minor (but without limiting paragraph (a))—any care that is provided to the dependant by a person other than the claimant where:

(i)     the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of dependants in this subsection, adoption or otherwise), and

(ii)     the care includes the provision of accommodation to the dependant.

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,

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(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:

(a)     in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(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.

Note.  Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

(3)     If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2) (c) (ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may:

(a)     in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2) (c) (i), disregard the week if assisted care was (or will be) provided during that week, and

(b)     in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2) (c) (ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period,

but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total.

(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.

(6)    Circumstances when damages may not be awarded

The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(7)     A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.

(8)     If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that):

(a)     the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and

(b)     the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants.

(9)     Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a)     the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and

(b)     an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act.

(10)    Damages may not be awarded if they can be recovered as damages for attendant care services

Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a)     the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and

(b)     the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide.

(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.”

12. Amaca and Seltsam appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW). Section 32(1) provides:

“32   Right of appeal to Supreme Court

(1)     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.”

13. Neither party addressed the limitations arising from the right of appeal being available to a party dissatisfied with a decision of the Tribunal in point of law.

14. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Basten JA said that the preferable construction of s 32(1) of the Dust Diseases Tribunal Act is that the right of appeal is not confined to a case where the Tribunal has made a decision on a point of law, but that an appeal lies where a party is dissatisfied in point of law with a decision of the Tribunal (at [149]). On the former reading the Tribunal would have to have decided the point of law for an appeal to lie. In the latter case it would be sufficient if the final conclusion of the Tribunal were affected by an error of law (Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 at [14]). In Amaca Pty Ltd v Doughan [2011] NSWCA 169 Sackville AJA with whom Giles and McColl JJA agreed said (at [27]):

“... if a party appeals pursuant to s 32(1) of the DDT Act, it has generally been thought necessary to identify:

a decision, whether explicit or implicit, in relation to a question of law which has been raised or determined by the Court or tribunal from which the appeal is brought. The subject matter of the appeal is that specific decision rather than the final order, which will usually involve issues of law, fact and evaluation.

Goodwin v Cmr of Police, at [10]: cf Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19, at [14], per Basten JA.”

15. With respect, I would have thought that the reasoning of Basten JA in Seltsam Pty Ltd v Ghaleb which was referred to with approval by Allsop P in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [47] ff would indicate that it is not necessary to identify an explicit or implicit decision in relation to a question of law which has been raised or determined by the court from which the appeal or tribunal from which the appeal is brought. In Goodwin v Commissioner of Police [2012] NSWCA 379, Basten JA made it clear (at [10]) that it is where an appeal is permitted from a decision of the tribunal on a question of law that the appellant must be able to identify an express or implicit decision of the tribunal in relation to the question of law that had been raised before it or determined by it. If there is a right of appeal on a question of law (as distinct from a right of appeal from a decision on a question of law) the right of appeal is wider. Basten JA’s reasons in Seltsam Pty Ltd v Ghaleb demonstrated a preference for the wider right of appeal.

16. In Amaca Pty Ltd v Doughan the Court of Appeal held that an appeal lay under s 32(1) on the ground of denial of procedural fairness (at [33]) thereby implicitly endorsing the wider construction of s 32(1) preferred by Basten JA in Seltsam Pty Ltd v Ghaleb. The wider construction was also adopted in Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 at [305]; and CGU Insurance Ltd v AAI Limited [2016] NSWCA 335 at [27] and [31]).

17. The wider construction has been adopted in the case of appeals to this Court from a decision of the Presidential member of the Workers Compensation Commission under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 which confers a right of appeal on a party “... aggrieved by a decision of the Presidential member in point of law ...” (Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45; (2012) 10 DDCR 290 at [75] per Bathurst CJ; Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [297]-[299]).

18. The nature of the appeal is relevant in two ways.

19. First, Seltsam contended that the primary judge failed to give adequate reasons for his decision. There was no dispute that failure to give adequate reasons can be an error of law, but it may be doubted that it is a decision on a point of law. Mr Raines did not argue that this ground of appeal was not available on an appeal under s 32(1). Generally for a failure to give adequate reasons to raise a point of law, the decision maker must have constructively failed to exercise his or her jurisdiction to make a necessary decision (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]; State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12]; Goodwin v Commissioner of Police [2012] NSWCA 379 at [20]; Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [298]) or failed to disclose a path of reasoning to enable an appellate tribunal or court (when an appeal lies in point of law) to determine whether the decision maker did err in law in reaching the decision (Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274, 281-2).

20. Secondly, Seltsam argued that what the parties and the judge characterised as passive care (Mr Raines’ being on hand if needed or providing companionship) was not a gratuitous domestic service within the meaning of s 15B. This point had been conceded in argument before the primary judge. The primary judge assumed but did not decide that it was a gratuitous domestic service.

21. It has been held in statutory contexts not dissimilar from the one presently before the Court that if an issue were not in dispute at trial, it cannot be said to give rise to an error or point of law on appeal. Section 67(1) of the Consumer, Trader and Tenancy Tribunal Act2001 (NSW) provided that if the Tribunal decided a question with respect to a matter of law, a party who was dissatisfied with the decision might, subject to the section, appeal to the Supreme Court against that decision. The section was framed more narrowly than s 32(1) of the Dust Diseases Tribunal Act. In relation to s 67(1) it has been held that if a point of law was not raised before the Tribunal it cannot be raised on appeal (Ilvariy Pty Ltd t/as Craftsman Homes Northern Rivers v Moss (2009) 74 NSWLR 710; [2009] NSWCA 207 at [27]). Section 32 of the Compensation Court Act 1984 (NSW) provided that a party might appeal to the Supreme Court if there were “a point of law”. Handley JA (Clarke and Meagher JJA agreeing) held in Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148 at 154 that if the exercise of a discretion were not in dispute at first instance, it could not then be said to be an error of law for the judge not to give reasons for exercising the discretion.

22. However, Mr Raines did not contend that the point was not available because of the limited nature of the right of appeal. Accordingly, in the absence of prejudice, and none was suggested, and in the absence of contrary argument, I proceed on the basis that it is open to Seltsam to rely on its contention that passive care was not a gratuitous domestic service within the meaning of s 15B.

Amaca’s grounds of appeal

23. Amaca identified three grounds of appeal as follows:

“1. The trial judge erred in law in the construction of s15B of the Civil Liability Act 2002:

a.   By failing to treat as determinative, or relevant, that any care which might be needed will be provided by an alternative carer;

b.   By failing to treat as determinative, or relevant, the fact that the dependant’s care needs were, by law, required to be met by another source.

2.   The trial judge erred in law in the construction of the expressions ‘need for the services’ and ‘that need is reasonable in all the circumstances’ in s15B of the Civil Liability Act 2002:

a.   By failing to take into account that the ‘need’ for care would be met by an alternative carer;

b.   By assessing the damages by reference to the amount of time spent by the carers, rather than by reference to the amount of care which was actually needed.

3.    The trial judge erred in law in the way in which s15B damages were allowed and assessed for the period between 31 July 2016 and 18 December 2017.”

24. The third ground did not identify any question of law, merely asserting that there had been error. In oral submissions it emerged that the third ground was in respect of Mr Raines’ loss of capacity to provide past gratuitous domestic services; Mr Raines had conceded in his calculation of claimed damages that he had retained 70 per cent capacity from late October 2017 to shortly before the trial. But instead of awarding 30 per cent of the calculated hours of provision of such services, the primary judge calculated damages on the basis that Mr Raines had lost the capacity to provide all of those hours of domestic services before trial. The primary judge erred in this respect. But the error was an error of fact. There was no ground of appeal that Amaca had been denied procedural fairness.

25. Amaca’s appeal was otherwise confined to the allowance of damages for the loss of Percy’s capacity to provide gratuitous domestic services to Richard. The reference in ground 1(b) of the notice of appeal to Richard’s care needs being required to be met by another source is to s 60AA of the Workers Compensation Act 1987 (NSW) (“the WC Act”). Section 60AA(1) provides:

“60AA   Compensation for domestic assistance

(1)     If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:

(a)     a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and

(b)     the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and

(c)     the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and

(d)     the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.

(2)    Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:

(a)    it is provided for not more than 6 hours per week,

(b)    it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,

(c)    it is provided pursuant to the requirements of the relevant injury management plan.

(3)   Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.

(4)    Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.

(5)    The following requirements apply in respect of payments under this section:

(a)    payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,

(b)    payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),

(c)    payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6)    In this section:

gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”

Seltsam’s grounds of appeal

26. Seltsam’s grounds of appeal were wider. They were:

“1.    The trial judge erred in admitting the Report of Dr John Obeid.

2. The trial judge erred in failing to make proper findings to give adequate reasons in respect of the loss of the First Respondent’s capacity to provide gratuitous domestic services to Richard Raines and Robin Raines pursuant to section 15B(2) of the Civil Liability Act 2002, both to date and in the future as to:

(a)   the services provided by the First Respondent up to July 2016;

(b)   the extent to which Richard and Robin Raines were not, have not been and will not be capable of providing those services themselves by reason of their age or physical or mental incapacity.

(c)   there was a reasonable expectation that, but for the First Respondent’s injury, he would have provided those services to Richard and Robin Raines and that it would have been for at least 6 hours per week for at least 6 consecutive months; and

(d)   there has been and will be a need for those services to be provided for those hours per week and that consecutive period of time, which need is reasonable in all the circumstances.

3. The trial judge erred in the construction of section 15B of the Civil Liability Act 2002 by assessing ‘active care’ and ‘passive care’ rather than ‘gratuitous domestic services’.

4. The trial judge erred in the construction of section 15B of the Civil Liability Act 2002 by failing to treat as determinative, or relevant that:

(a)   any services which might be needed were, or would be, provided by an alternative person;

(b)   any services which might be needed were, by law, required to be met by another source.

5. The trial judge erred in the construction of the expressions ‘need for services’, and ‘that need that is reasonable in all of the circumstances’ in section 15B(2)(d) of the Civil Liability Act 2002 by:

(a)   failing to take into account that any ‘need’ for services had been, and would be, met by an alternative care;

(b)   assessing damages by reference to the amount of time spent rather than the amount of services needed.

6. The trial judge erred in the way in which he allowed and assessed damages under section 15B of the Civil Liability Act 2002 for the period between 31 July 2016 and 18 December 2017.”

27. It is convenient to deal first with Seltsam’s grounds of appeal.

28. The primary judge did describe the services provided by Mr Raines to Robin and Richard by reference to Dr Obeid’s report. Seltsam had objected to the admissibility of Dr Obeid’s report. That objection is dealt with below. Part of Dr Obeid’s report was inadmissible. But on the issues as they were litigated, the objection goes nowhere.

29. The asserted need for the primary judge to have identified more specifically than he did the services provided by Mr Raines to his wife and son has to be assessed against the fact that Mr Raines described the services he performed in detail. He was not challenged on his evidence either as to the services provided, nor the time taken in their provision. Two occupational therapists also gave evidence on those matters. The primary judge preferred the evidence of the occupational therapist called by Mr Raines, a Ms Kahren White. Her reports were admitted without objection and also described the services provided by Mr Raines and the amount of time taken in the provision of the services. Seltsam’s ground of appeal that the primary judge failed to give adequate reasons as to the amount of domestic care provided by Percy should be rejected. The primary judge did so in part by reference to Dr Obeid’s and Ms White’s reports (judgment [17]-[22]) and in part by his summary of the “passive care” Percy provided Richard (judgment [46]). The balance of Seltsam’s grounds of appeal are addressed below.

Evidence before the Tribunal

30. In his first affidavit Mr Raines described the care he provided for Robin and Richard in general terms without attempting to identify how much time was spent in providing the care. He said that he was caring for Robin since the time of her accident in the 1980s. The accident had left her with terrible back problems. She has a detached retina and poor eyesight and a lot of joint pain and is frail when walking or doing any physical tasks. Mr Raines deposed that he used to drive Robin to and from her medical appointments, run errands into town, such as picking up her medication and attending to the washing on top of other domestic chores, such as cleaning, vacuuming, emptying the rubbish and taking the bins out. He said that anything that was overly physical he had to do. Robin could not do heavy jobs like lifting cooking pots or rubbish bags or pushing the vacuum cleaner. Robin could not push the trolley or lift heavy bags. These were things that Mr Raines did before he became too fatigued and breathless as a result of contracting mesothelioma. In his first affidavit Mr Raines deposed that before he became unwell he assumed most of the household duties, including washing and ironing clothes, vacuuming, cleaning and driving around to complete errands. Shopping took two to three hours per week. He took Richard and Robin to their medical appointments. His disease meant that he was unable to do these things.

30. In his second affidavit dated 9 October 2017 Mr Raines provided a more detailed description of the services he provided to Richard and to Robin. It is not necessary to set out the whole of that evidence, but it is necessary to set out some of it to appreciate the submissions made by Seltsam.

31. Mr Raines deposed that Richard got up every morning at about 6 am and would usually have a shower. Mr Raines deposed that he always had to stand around and keep an ear out for Richard whilst he was showering because he might need assistance. Richard usually took about an hour to shower and dress himself. Every morning Percy prepared Richard’s breakfast and then washed up for him. Because of Richard’s condition Richard was unable to sense when he needed food or fluids and he required Percy’s guidance and care in that regard. Every day Percy hung out Richard’s washing and took it off the line and cleaned his boots. Richard lacked the ability to complete tasks with full competency. He had trouble moving about with his walking stick as he lacked balance. He would leave taps running. When shaving he often left the plug in the sink and sometimes with the tap running, causing it to overflow. Percy had to keep an eye or ear out for what Richard was doing and check that everything was in order after he had finished a task.

32. That short description sets out the kind of care that the parties and the primary judge identified as either active or passive. Percy’s standing around to keep an eye and ear out for Richard when he was showering was considered passive care. When he had to keep an eye or ear out for what Richard was doing and check that everything was in order after he finished a task, that was also considered passive care. When he prepared breakfast or hung out Richard’s washing, that was active care.

33. There was a lot of other evidence as to the care provided for Richard. Passive care also included checking Richard’s prescriptions and noting things to chase up after his visits to the bank or to doctors, spending time with him whilst he was watching television to make sure he was alright and generally keeping him company, and being near him when he went to bed and slept.

34. Percy deposed that when Richard went to bed, he removed Richard’s cochlear implant and charged it overnight. That rendered Richard completely deaf throughout the night. Percy ensured that he was close by in case he needed help. The primary judge allowed as hours of passive care the hours when both Richard and Percy were asleep but when even still Percy was available in case of need.

35. Seltsam argued that this was not the provision of gratuitous domestic services that were to be assessed on an hourly basis under s 15B. Likewise it submitted that Percy’s spending time with Richard watching television and generally keeping him company or standing outside the bathroom whilst Richard was showering was also not the provision of gratuitous domestic services within the meaning of the section.

36. Robin also provided similar passive care to Richard. She also would keep him company. Percy deposed that after Richard’s accident Richard became very emotionally attached to Robin. Ms White reported that Richard was dependent on Robin to complete his shopping, to prepare his meals and to complete his laundry. She said that whilst Percy was responsible for all heavy domestic activities of daily living, such as hanging washing on the line or washing dishes, changing linen, lifting or carrying anything inside the house, vacuuming, mopping and other heavy cleaning tasks, Robin was responsible for meal preparation, putting on laundry and general light cleaning tasks. Richard was fully dependent on Percy for the provision of transport. Ms White reported that both Percy and Robin provided passive as well as active supervision for Richard since he was discharged from rehabilitation for his traumatic brain injury in December 1997. An example of the passive care provided by Robin for Richard is that if Richard used the stove in the kitchen, Robin would check to ensure that the stove was turned off when he finished cooking.

37. Seltsam submitted that when Richard was asleep and Percy and Robin were also asleep, then if it could be said that Percy and Robin were then providing any service that could be characterised as a gratuitous domestic service, which it denied, then such a service was provided by Percy and Robin jointly. That might be doubted. Robin could not get out of bed without Percy’s assistance. However, this is a question of fact. For the reasons which appear below, the primary judge did not consider it necessary to resolve the question. That is a ground of appeal

38. Percy spent some time working on the farm at which time he did not provide any supervision for either Robin or Richard. These hours have been excluded from all calculations of the number of hours spent by Percy in providing gratuitous domestic services.

39. As noted above at [7], as a result of his entitlement to care under s 60AA of the WC Act, Richard was provided with carers who came three days a week on Mondays, Wednesdays and Fridays. Percy deposed that on those days he usually spent about an hour with Richard keeping an eye on him and keeping him company (an example of passive care) before he was picked up by the carers and taken into town. Percy deposed that on the days when Richard was with his carers he estimated that he spent about seven to eight hours each day caring for Richard, looking after him, supervising him and helping him with things as he described. This estimate did not include the hours when both Richard and Percy were asleep. He deposed that on Tuesdays, Thursdays and the weekends when Richard was not with carers, he estimated that he spent about 10-11 hours each day caring for Richard and supervising him. Again, that estimate did not include the times at which everyone was asleep.

40. In her report of 23 October 2016 Ms White reported that Richard received 18 hours of care from professional carers each week.

Dr Obeid’s report

42. Dr Obeid was provided with the affidavits of Mr Raines and the reports of Ms White amongst other materials. Dr Obeid was an experienced geriatrician. He did not meet or examine any of the persons concerned. From the reports and affidavits with which he was provided Dr Obeid summarised and drew his own conclusions as to the number of hours of care provided by Percy to Robin and to Richard before his diagnosis of mesothelioma. Objection was taken at trial to the whole of Dr Obeid’s report. On appeal it was this part of Dr Obeid’s report to which objection was taken. That objection was well taken. Dr Obeid was qualified to express other opinions in his report, including opinions as to the level of disability revealed in the medical records of Robin and Richard, and the degree of care and domestic assistance they would require in the future, but his opinions as to the number of hours of care provided by Percy to Robin and Richard prior to Percy’s diagnosis of mesothelioma were not based on his knowledge, training or experience, but on his assessment of the affidavits and reports provided to him.

43. It is necessary to set out the whole of the relevant part of Dr Obeid’s report that is the subject of challenge to show that although the primary judge admitted that part of Dr Obeid’s report, he did not rely on it. Dr Obeid said:

“6. Care and Domestic Services Percy Provided to Robin and Richard Prior to his Diagnosis of Mesothelioma

6.1 In calculating the number of hours of care provided, I have assumed that care provided by Percy to both Robin and Richard was provided equally to both of them. I have not included the care provided to Richard under the Workers Compensation Act. In the absence of not being able to ascertain the information myself, I have relied heavily on the reports of Ms White and Ms Hammond.

6.2    According to Percy’s affidavits and the reports provided, Percy provided the following services to Robin;

6.2.1    Garden, property and farm, maintenance; Percy states that cattle rearing alone took 5-6 hours on some days, but 7-8 hours per week on average (paragraph 28 of affidavit dated 09/10/2017). Additional tasks included gardening, general property maintenance and rubbish removal (either to a local tip or disposed of on the property). On average, Percy would have needed to spend 4 hours per week to provide such care to Robin.

6.2.2    Domestic cleaning tasks: 2 hours per week (assuming Robin was able to undertake some tasks such as laundry, as per Ms Hammond’s report).

6.2.3    Handyman tasks; Approximately 0.5 hours per week

6.2.4    Meal preparation: not included as it is not clear that Percy undertook this task prior to the diagnosis of mesothelioma.

6.2.5    Morning assistance: due to her arthritis and chronic pain, Percy has to assist Robin each morning get out of bed and to prepare her tea or coffee. Although Percy, in his affidavit of 09/10/2017 (paragraph 64) indicated this took one hour per morning, this task is likely to only require 20 minutes per day, or approximately 2 hours per week.

6.2.6    Cleaning up after meals: the report of Ms Hammond suggests that this was undertaken fully by Percy. This would require approximately 2 hours per week.

6.2.7    Shopping (including travel time to and from the shops to Muswellbrook): 1 hour per week. (Robin and Percy went to the shops together according to Ms Hammond’s report. I have assumed that Percy’s contribution was 1 hour as it is unlikely that Robin would have been able to undertake the shopping on her own).

6.2.8    Driving and transportation (excluding travel to shops): 1 hour per week.

6.2.9    Financial management: 0.5 hours per week.

6.3    Overall, Percy probably provided 13 hours of care per week to Robin. This appears reasonable as there is no indication that Robin would have been able to undertake these tasks. Although Percy indicated that he provides 27 hours of care per week in his affidavit of 09/10/2017 (paragraph 67), this likely reflects the current situation, rather than the situation that existed before he was diagnosed with mesothelioma in mid-2016.

6.4    According to Percy’s affidavits and the report of Ms White, Percy provided the following services to Richard:

6.4.1    Garden, property and farm maintenance: 4 hours per week.

6.4.2    Domestic cleaning tasks: 2 hours per week.

6.4.3    Handyman tasks: Approximately 0,5 hours per week

6.4.4    Meal preparation; Not applicable with regard to evening meal, however Percy usually attends to Richard’s breakfast each morning (see paragraph 44 of affidavit dated 09/10/2017), requiring 3.5 hours per week.

6.4.5    Cleaning up after meals; Approximately 2 hours per week.

6.4.6    Shopping (including travel time to and from the shops to Muswellbrook): 1 hour per week.

6.4.7    Driving and transportation (excluding travel to shops): 1 hour per week.

6.4.8    Financial management: 0.5 hours per week.

6.4.9    Personal care and supervision with specific ADL tasks: 7 hours per week (see paragraph 43 of affidavit dated 09/10/2017).

6.4.10    General supervision (shared with Robin, but excluding respite hours provided under Workers Compensation and hours Percy spent working outside on farm and hours during which Richard was asleep): 43 hours per week.

6.5    Overall, Percy provided 64.5 hours of care to Richard, The 21.5 hours of care Percy provided (other than the 43 hours of super-vision) were as a result of the disabilities Richard sustained in the motor vehicle accident. In my opinion, there is little or no doubt that such care (21.5 hours) was both reasonable and necessary given Richard’s disabilities and functional impairments. Regarding the 43 hours of supervision, Richard would clearly require 24-hour-per-day supervision if not for Percy and Robin’s presence, hence the 60 hours of supervision is reasonable.”

44. It should be noted that Dr Obeid’s assessment that Percy provided 64.5 hours of care to Richard per week prior to his diagnosis of mesothelioma did not include hours during which Richard was asleep. Dr Obeid made his own conclusion from the reports of the occupational therapist and from Percy’s affidavit that Percy provided 21.5 hours of active care for Richard. Some of those hours of care were not provided to Richard alone, but to both Richard and Robin.

45. The primary judge did not allow 21.5 hours per week of active care. Instead the primary judge allowed nine hours per week.

46. Dr Obeid allowed 43 hours per week for supervision. He excluded hours during which Richard was asleep. The primary judge did not act on that basis. The primary judge allowed 64 hours per week for passive care, including times during which Richard was asleep.

47. Dr Obeid was not qualified to give any expert opinion on the number of hours of care provided by Percy to Richard. That was not a question requiring expert opinion which could be admitted under s 79 of the Evidence Act 1995 (NSW). In so far as it might have been relevant to other opinions that he expressed, Dr Obeid could have assumed that that was the level of care provided by Percy to Richard. That was not how his conclusions were expressed. That part of Dr Obeid’s report should have been rejected on objection being taken. However, because the primary judge did not act on Dr Obeid’s opinion as to the number of hours of care provided by Percy to Richard, the rejection of that part of Dr Obeid’s report is of no moment.

48. In its written submission for calculation of damages Percy’s solicitors relied upon Dr Obeid’s estimates that prior to the diagnosis of Percy’s condition he provided about 64.5 hours of care per week to Richard. The fact that Percy’s solicitors relied upon Dr Obeid’s report for that purpose does not show that the primary judge used it for that purpose. As will appear further below, he did not.

49. In the course of submissions of Mr G J Parker SC who appeared for Mr Raines, the primary judge asked “Why is it not 168 hours supervisory?”. (There are 168 hours in a week.) Mr Parker said that there were 15 hours of supervision provided by other carers and then said that “the 64 hours comes from Dr Obeid and it is a straight calculus, your Honour, it is just a division, basically. Robin is doing half and Percy does half.”

50. This was wrong. The primary judge was not misled. He did not find that Percy provided 76.5 [1] hours of gratuitous domestic services per week to Richard. He did not find that Percy provided 64.5 hours of passive care per week to Richard. He found that Mr Raines provided at least that number of hours as passive care and that because no greater number of hours was claimed, the number of hours claimed should be allowed.

    1. (168-152).

51. In dealing with damages under s 15B for Mr Raines’ lost capacity to provide gratuitous domestic services to Richard, the primary judge said:

“46    I am satisfied that before his diagnosis it was Percy who was the provider, or at least the principal provider of the passive care to Richard. There are several reasons for this:

(1)    Percy was a well and fit man before his diagnosis;

(2)    Percy was fit and able to attend to the needs that might arise in any emergency, should one arise;

(3)    Robin was capable of attending to some needs that might arise in emergency, but because of her several medical conditions, not all;

(4)    as to the last two points, should any need arise in an emergency requiring physical effort, Percy would have been able to provide it and would have been the one to provide it;

(5)    Percy has provided passive care to Richard each morning at shower time; Percy has been around when Richard uses taps as he is liable to leave them running; on days when Richard is taken into town by carers, Percy keeps him company and keeps an eye on him for about an hour before he goes;

(6)    after dinner Percy spends about one and a half hours with Richard watching television, keeping him company and making sure he is okay;

(7)    Percy is close by and keeps an eye on Richard before he goes to bed;

(8)    Percy always ensures that he is physically close to Richard and available to him;

(9)    between breakfast and lunch on non-carer days, Percy spends two to three hours keeping Richard company and helping him with anything he needs and the same goes between lunch and dinnertimes;

(10)    Percy plays pool with Richard for one to two hours on non-carer days;

(11)    Percy stated in his affidavit of 9 October 2017, ‘Usually, I am the person who is supervising Richard’ - Exhibit PX4, p 74, para 59.

47    Not all of the above matters are undertaken by Percy every day but the thrust of it is that Percy is the principal carer for Richard. Although many of the above items are expressed in the present tense, and were so expressed in Percy’s affidavit of 9 October 2017, it is evident that that expresses the position before Percy's diagnosis and had been the position for a long time.

48    Before Percy was diagnosed, Richard needed around-the-clock care. It was being provided by carers and by Percy and Robin. When one excludes the care time provided by outside carers and also Percy's time of active care, one is left with 136 hours of passive care that was being provided by Percy before he was diagnosed. There may have been another six hours a week I mentioned not far back which was not included in that, which would reduce the hours to 130 hours a week.

49    This approach is not the approach taken in the plaintiff’s schedule of damages put forward for Percy's claim. It is nevertheless an appropriate approach in its own right. It also serves another useful function. It can be used to test the reasonableness or otherwise of the claim in the schedule of damages. On this approach the total hours of passive care provided by Percy and/or Robin is at least 130 hours per week. That far exceeds the claim of 64 hours per week that is claimed. The claim of 64 hours per week, whether intentionally or not, makes allowance, more than enough, for any passive care provided by Robin and not by Percy, or even provided by Robin together with Percy.”

52. The primary judge’s calculation in para [48] of the number of hours of passive care being provided by Percy contained an arithmetical error. When one deducts from 168 hours per week the number of hours of care provided by outsider carers (25 hours) (judgment at [22]) and the number of hours of active care that the primary judge found Percy was providing to Richard (nine hours) (judgment at [22]), that is, a total of 34 hours, one is left with 134 hours of passive care. After excluding the further six hours a week to which the primary judge referred in para [48] the number hours would reduce to 128 hours a week. This arithmetical error did not affect the primary judge’s conclusion that the number of hours of passive care provided by Percy to Richard easily exceeded the number of hours claimed.

53. The primary judge explained his process of reasoning. Contrary to the submissions of the appellants, it was not necessary for the primary judge to reach a conclusion as to the precise number of hours of gratuitous domestic service provided by Percy to Richard per week when he was satisfied that they exceeded the number of hours claimed for reasons which he gave. If it be accepted, as the primary judge found, that Percy provided gratuitous domestic services to Richard by providing passive care by being on hand to help Richard if required, including at times when they were both asleep, then no further findings were required to identify more specifically the services provided by Percy to Richard. I do not accept Seltsam’s submission that the primary judge failed to engage with the case presented by Seltsam.

Seltsam’s ground 2 in relation to services provided to Robin

54. The primary judge referred to Dr Obeid’s estimate that Percy provided 13 hours per week care to Robin before his diagnosis and that these hours covered garden, property and farm maintenance, domestic cleaning, handyman tasks, morning assistance, cleaning up after meals, shopping and driving (Judgment [17]). The primary judge said that he accepted Dr Obeid’s evidence of 13 hours per week (Judgment [17]), but added that the evidence was well based on the source material provided to Dr Obeid and that it accords with reality and common sense. Nonetheless, the primary judge rejected some of the claimed number of hours that Dr Obeid allowed in respect of Robin on the basis that they involved services provided by Percy in the maintenance of the home which was Richard’s property and should have been accounted for as hours of active care provided to Richard. He concluded that Percy provided eight hours per week of gratuitous domestic service to Robin before his diagnosis. That was the figure he allowed (at [19]).

54. Amaca did not challenge the assessment of damages in respect of loss of capacity to provide gratuitous domestic services to Robin. Seltsam did challenge the primary judge’s findings in relation to services provided by Percy to Robin in ground 2 of its notice of appeal referred to above.

55. As noted above Percy’s evidence and Robin’s evidence as to the services provided by Percy were unchallenged. In my view the primary judge gave adequate reasons for his decision in respect of the services provided by Percy to Robin. The extent of the obligation to give reasons depended upon what was truly in issue. Percy gave evidence as to the services which he provided to Robin. There was no challenge to that evidence.

56. The primary judge’s conclusion that Percy was providing eight hours per week of gratuitous domestic service to Robin before his diagnosis (Judgment at [19]) and his allowance of that time for the future for nine years (Judgment at [23]) was a finding of fact. His Honour applied a ten per cent discount for vicissitudes and allowed this period of care for nine years, although Percy’s life expectancy was almost 10 years, to make allowance for the likelihood that at the end of the period Percy might have had difficulty performing some of the care tasks by reason of age and advancing frailty (judgment at [23]).

57. There was an implicit finding that if Percy had not suffered his disease the care he would have provided to Robin would not have decreased. There was no basis to think that it would. It was not put to either Percy or Robin that it might. In any event, it is a question of fact, not law.

58. The submission made by Seltsam before the primary judge was that the demonstrated assistance given by Percy to Robin was no more than three hours a week and there was accordingly no basis for a finding that there was a reasonable expectation that Percy would have provided services to Robin for at least six hours per week for a period of at least six consecutive months. The primary judge rejected Seltsam’s submission as to the number of hours per week of assistance Percy provided to Robin. Seltsam did not make any other submission that needed to be addressed. It did not say that Robin’s needs could be expected to reduce over time.

Was “passive care” a gratuitous domestic service?

60. This issue was not separately identified in a ground of appeal but was fully argued and is sufficiently encompassed by ground 3 of Seltsam’s notice of appeal.

61. Seltsam submitted on appeal that the passive care identified by the primary judge was not a gratuitous domestic service. It submitted that one of the preconditions for a claim for damages for lost capacity to provide a gratuitous domestic service is that the dependant was not (or will not be) capable of performing the service himself or herself by reason of age or physical or mental incapacity (s 15B(2)(b)). It submitted that “the actual service performed by the claimant needs to be identified and a finding made that the dependant was not (or will not be) capable of performing the identified service because of the types of incapacity referred to in s 15B(2)(b)”. Seltsam argued that the distinction between active and passive care did not appear in s 15B. It submitted that a person who is able to come to another’s aid but is not required to do so does not provide a service and that a readiness to provide a service does not equate to providing a service. This way of framing the submission, which was the way in which the case was presented, was that mere passive care, being a readiness to provide a service if needed or being on standby did not amount to the provision of gratuitous domestic services within the meaning of s 15B. As it was put in Seltsam’s written submission:

"54. Mr Raines lived in the same household as Richard and Robin. There is no dispute that at times, he provided ‘active care’ in the form of ‘services’ within the meaning of section 15B. At other times, however, such as when Mr Raines was attending to his own personal needs, going about his own life or sleeping, he was not providing services to either Richard or Robin. Further, there would have been some things that Mr Raines would have done for Richard or Robin in any event, such as making a cup of tea, keeping them company or playing pool. Those would not be captured by section 15B. Yet further, other things would be incidental to the domestic arrangement rather than arising out of the dependants' incapacity and again outside of section 15B.”

62. Neither Seltsam nor Amaca argued that even if such protective attention came within the definition of “gratuitous domestic services” in s 15B, the services were not of a kind that the dependants were not capable of performing themselves by reason of their age or physical or mental capacity and did not fall within s 15B(2)(b) because a capable person does not perform a service of supervising or otherwise attending on himself or herself.

63. Before the primary judge Amaca did not submit that the provision of passive care in the form of supervision, or being on hand when needed, or providing company, was not a “gratuitous domestic service” as defined.

64. At trial, counsel for Seltsam flirted with the notion by submitting that:

“... passive supervision of its nature is latent. It is not actual, may never have been actual, your Honour has had no evidence of any actual need arising for intervention in Richard’s care other than there being [present].”

65. That may have been a submission that supervision or protective attendance was not required. If so, that submission was rejected and raises only a question of fact. It was not a submission that such passive care was not capable of being a gratuitous domestic service, nor that it did not fall within the terms of s 15B(2)(b). Later, counsel for Seltsam said:

“... There are two people providing it [passive care], only one person needs to provide it, your Honour does not (?) need to know [scil. needs to know] who is actually providing and whether an actual service is required. It is of its nature passive and redundant.

HIS HONOUR: But an actual service is being provided even if nothing is being done.

MR ILKOVSKI: Correct, jointly by two persons.”

66. The contention that passive care was a service provided jointly raises a different issue, embraced by both Seltsam and Amaca, that is dealt with below. On appeal Seltsam contended that what the parties and the primary judge had called passive care was not a gratuitous domestic service within the meaning of the definition of that term in s 15B(1).

67. I do not agree. When Richard was injured Percy and Robin left their home to move to his in order to provide around-the-clock care. That care included what Deane and Dawson JJ described as “protective attention” (Van Gervan v Fenton (1992) 175 CLR 327 at 344). Their Honours said (at [5]):

“It is clear that, in the present case, the additional services which are being and will be provided by the wife to attend to the appellant's accident-caused needs during the relevant period are very extensive. They involve both active care and protective attention to an extent that represents an oppressive restraint upon the wife's freedom of activity. It was clearly reasonable that the appellant's damages for loss of capacity include a substantial amount calculated by reference to the value of those additional services and that, in ascertaining the extent of the wife's additional services, account be taken of the drastic curtailment of the appellant's ability to do things for his wife (and himself) in return. Nonetheless, it would be illegitimate to treat the burden of additional care which the wife has assumed in the context of a devoted marriage and in the environment of her own home as converting her into the equivalent of a full-time live-in housekeeper to be remunerated not only for the active services which she renders to her husband but on the basis that time spent with her husband in her own home is to be treated as if it were services rendered to a stranger in a strange environment ...”

68. It is clear from that passage that in their Honours’ view “protective attention” was a service. It also appears that if a full-time live-in housekeeper were required the time spent by the housekeeper by being on-hand to deal with any calls that might be required on her or him would amount to the rendering of a service.

69. In Van Gervan v Fenton Mason CJ, Toohey and McHugh JJ (at 338-340), Brennan J (at 340-341) and Gaudron J (at 346-347) also characterised the constant care and attention provided by the injured plaintiff’s wife as the provision of services.

70. There is no reason that supervision or protective attention should not be a service that falls within the definition of “gratuitous domestic services” in s 15B(1). Whether it is a service of a kind that the claimant’s dependants were not capable of performing by reason of their age or incapacity within the meaning of s 15B(2)(b) is a different question that was not raised before the Tribunal. The primary judge recorded that it was not in issue that the dependants were not capable of performing the services themselves by reason of age or physical or mental infirmity (judgment [5(3)]).

71. It may be arguable that services by way of supervision or protective attention, by their very nature cannot be capable of performance by the claimant’s dependant himself or herself, and therefore fall outside s 15B(2)(b). This issue was not argued. Seltsam’s ground of appeal 2(b) and its written submission referred to at [60] above might be wide enough to encompass it, but it was not articulated in that way on appeal. I express no view on it.

Protective attention provided by Percy and Robin jointly

72. The submissions under this heading were raised by ground 1(a) of Amaca’s notice of appeal and ground 4(a) of Seltsam’s notice of appeal.

73. Both Seltsam and Amaca argued that the primary judge was obliged to make findings about how much care Percy was providing to Richard and then to apply s 15B(2)(d) to determine whether the need for those services was reasonable in all the circumstances. Thus, Amaca submitted that the primary judge did not address Amaca and Seltsam’s principal submission:

“... which was that, in the circumstances, Percy was not entitled to s15B damages for the care he provided because the same care had been provided to Richard by Robin and the same care would continue to be provided by Robin.”

74. Both Amaca and Seltsam relied upon the decision of this Court in State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 which was said to be analogous to the present case. There the claimant had contracted mesothelioma and was entitled to an award of damages for his loss of capacity to provide gratuitous domestic services to his wife and grandchildren. The appeal concerned his loss of capacity to provide gratuitous domestic services to his grandchildren. He provided such services to the grandchildren aged four and 13 years who were the children of his daughter and to twin boys who were children of his son. Some of those services were provided jointly by him and his wife. In the case of the children of Mr Perez’s daughter, the children stayed three nights each week with Mr and Mrs Perez who provided full-time care (at [10]). Before his disease, Mr Perez had also been responsible for transporting one of the children to extra-curricular activities and providing other assistance to her (at [10]). Of the children of Mr Perez’s son, both Mr and Mrs Perez attended at the son’s home on three days each week to care for the children. After Mr Perez was no longer able to provide care those children’s maternal grandmother took over. After Mr Perez’s expected death, Mrs Perez would be able to resume caring for her son’s children (at [11]).

75. In Perez the primary judge rejected the defendant’s contention that no care was needed while the children were sleeping because they were too young to be left alone at night (Perez v State of New South Wales [2013] NSWDDT 1). That conclusion does not appear to have been challenged on appeal. The primary judge held, with serious misgivings, that the only remaining question was that posed by s 15B(2)(d), that is, whether the need for the claimant’s services was reasonable in all the circumstances. His Honour held (at [60]):

“The word reasonable here qualifies only the word need. It does not, as does the common law, impose a requirement that in all the circumstances it be reasonable to replace services at a cost.”

76. The primary judge observed that despite the illness of Mr Perez, the children of his daughter continued to stay with Mr and Mrs Perez for three days each week and that she attended to their needs (at [65]). Their father had adjusted his schedule so that he was able to drive the children to school on most occasions (at [65]). The primary judge noted that nonetheless Mr Perez claimed damages of $841,948.94 for the future until the younger child (then aged four) (at [41]) turned 16. His Honour said:

“67.   I am of the opinion that it is entirely unreasonable to provide the services to the children at a cost because of the incapacity of Mr Perez. Mrs Perez has continued to stand willing and able to provide such care that only a grandmother can provide to her grandchildren. She formerly provided that care by her presence at the same place, and for the same hours, in the company of her husband.

68.   The idea that it is reasonably necessary that a paid assistant intrude upon the home, day and night, to stand by Mrs Perez, replacing the lost capacity of Mr Perez, is to my mind strange. Similarly strange is the idea that the incapacity of Mr Perez has somehow transformed the services previously rendered by Mrs Perez into post injury subventions that should not be brought into account in relief of the wrongdoer.”

77. Nonetheless, the primary judge felt constrained by the terms of s 15B(2) to award the damages claimed.

78. On appeal, this Court held that the primary judge was in error in his construction of s 15B(2)(d) that provides that it is a condition for an award of damages under the section that the Court is satisfied that:

“[T]here 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.”

79. Basten JA with whose reasons Ward JA agreed, held that the trial judge had accepted that the concept of “need” referred to the circumstances of the dependant who, if a young child, had many objectively ascertainable needs which could properly be identified, without reference to the availability of some person to satisfy them (at [16]).

80. This led to Basten JA’s concluding that the primary judge was in error in finding that the dependants reasonably had a need for the services to be provided by Mr Perez when the services had been provided in the past jointly by Mr and Mrs Perez, and after Mr Perez’s incapacity by Mrs Perez alone, or by their son’s mother-in-law. His Honour said:

“[25]    ... there was no finding either that these children had a need for multiple carers, or could be adequately cared for by one person at a time. Nor was there any finding as to whether it would be reasonable in the circumstances for all four grandchildren to be minded together.

[26]    Secondly, the fact that the need is (presumably now, after the respondent developed his current incapacity) satisfied by others was not irrelevant. On the one hand, that fact may demonstrate the genuineness of the need; on the other, to the extent that it was satisfied by Mrs Perez alone in circumstances in which she and her husband had been jointly responsible in the past, it may call into doubt the need for the respondent’s services.

...

[29]    ... Having assessed the period of school hours at 12, the Tribunal awarded damages calculated on 60 hours of domestic services per week despite, as he noted on more than one occasion, that those services (other than the driving) were now provided entirely by Mrs Perez.

[30]    Findings that Mr Perez assisted the older girl with her homework and drove her to various activities, as well as driving both children to school, demonstrate that some amount should have been allowed for his incapacity to provide such services in the future. The finding that the services he was providing during the time the two children were at his home, are now provided entirely by Mrs Perez, shows that at least one carer was needed; it does not show that two carers were not needed. Thus, the children may have needs which can reasonably require two carers; however, it is implausible that two carers were needed throughout the 60 hours and that conclusion cannot stand in the absence of specific findings as to the tasks he undertook.

...

[32] There was considerable discussion in the course of argument as to whether the role played by Mr Perez was, after his illness developed, taken up by another family member and, if so, whether that demonstrated that there was no relevant ‘need’ for his services. However, the fact that one service provider has been replaced with another may well provide cogent evidence of the ‘need’ for the particular services. The point is rather that if, after he became incapacitated, the services supplied by Mr and Mrs Perez to their son’s children were supplied by their son’s mother-in-law, a question would arise as to whether the very young twins had previously been dependent on Mrs Perez, rather than Mr Perez. Even if they had been partly dependent on him, the calculation of damages depended on the hours he had spent, but was no longer capable of spending: s 15B(2)(a), (4) and (11)(a).”

81. Macfarlan JA agreed with the orders of Basten JA but provided his own reasons stating:

“[39] Sense can only be given to the paragraph [viz. s 15B(2)(d)] by construing it as referring to the needs of the dependants that would, but for the claimant’s injury, have been satisfied by the claimant. In conformity with the provision as so construed, the court must determine whether the dependants’ needs for the services that would have been provided by the claimant are “reasonable in all the circumstances”. Thus, to take an obvious example, a child is unlikely to be considered to have a need, that is “reasonable in all the circumstances”, for care to be provided by a grandparent claimant if the child lives with his or her parents and the parents are readily available to provide that care. On the other hand, if, by reason of the claimant’s injury, another relative has had to give up paid employment to provide services to the dependants, the view may be taken that the dependants have a need for services to be provided by the claimant that is “reasonable in all the circumstances”.

82. The matter was remitted to the Tribunal for consideration of the outstanding claims in respect of the gratuitous domestic services for determination according to law.

83. Seltsam submitted that State of New South Wales v Perez decided that damages for loss of capacity to provide gratuitous domestic services were not allowable under s 15B if the services had been provided by the claimant with another person jointly. That is to say, according to Seltsam’s submission s 15B applied only to a claimant’s loss of capacity to provide gratuitous domestic services that had been provided by the claimant to his or her dependants alone and not jointly with another.

84. There is nothing in the text of s 15B that would warrant such a limitation. Nor did Basten JA or Macfarlan JA so decide. To the contrary, in para [32] of his Honour’s judgment in Perez quoted at [80] above, Basten JA expressly contemplated that if Mr Perez’s son’s very young children had been partly dependent on Mr Perez as well as on Mrs Perez, the calculation of damages to which he would be entitled would depend upon the hours he had spent on their care and was no longer capable of spending. However, a finding needed to be made whether those children had been partly dependent on Mr Perez or whether they had been wholly dependent on Mrs Perez.

• erroneous admission of an expert report provided by Dr John Obeid;

• failure to make adequate findings of fact to expose the reasons for the determination in specific respects;

• error in the construction of s 15B by assessing “active care” and “passive care” instead of “gratuitous domestic services”.

124. As to the second of those grounds, Seltsam identified four areas of what it asserted to be deficient fact finding. They were:

(i)   the services that had been provided by Mr Raines to each of Mrs Raines and Richard prior to his diagnosis;

(ii)   the extent to which Mrs Raines and Richard were not, and would not be, capable of performing those tasks;

(iii)   whether there was a reasonable expectation that Mr Raines would have provided those services (for the requisite time over the requisite period) but for his illness;

(iv)   whether there would be a (continuing) need for those services to be provided, that was reasonable in the circumstances.

Consideration

1. Alternative carer

(ii)   The statutory obligations of the workers compensation insurer

125. These grounds can be dealt with together.

126. In purported support for its first proposition, Amaca relied upon the decision of this Court in the State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149.

127. Perez was a case that had some dispiriting parallels to the present. Mr Perez contracted mesothelioma as a result of his employment. Prior to his diagnosis, he had provided, gratuitously, domestic services to his wife, whose health was poor, and to four grandchildren, the daughters and sons, respectively, of his own daughter and son. The services to the grandchildren were provided in conjunction with his wife, notwithstanding her own impaired capacity.

128. In the Dust Diseases Tribunal Mr Perez claimed and was awarded substantial damages under s 15B as compensation for his loss of capacity to continue to provide these services. His employer, the State of NSW, appealed to this Court.

129. Basten JA, with whom Ward JA expressly agreed, held (at [25]) that in s 15B(2)(d) the phrase “reasonable in all the circumstances” qualified the preceding phrase “that need” and that, accordingly, what had to be assessed as reasonable was, not the need for the services, but the need for the services to be provided for the requisite hours per week (6) over the requisite period (6 months).

130. His Honour then said:

“[26]   Secondly, the fact that the need is (presumably now, after the respondent developed his current incapacity) satisfied by others was not irrelevant. On the one hand, that fact may demonstrate the genuineness of the need; on the other, to the extent that it was satisfied by Mrs Perez alone in circumstances in which she and her husband had been jointly responsible in the past, it may call into doubt the need for the respondent’s services.”

The appellants placed particular reliance on this paragraph.

131. Macfarlan JA, who gave his own reasons for agreeing with the orders proposed by Basten JA, commented on the difficulties of construction of s 15B(2)(d). His Honour said:

“[38]   In my view, it cannot sensibly be understood, as the primary judge held it should be, as referring simply to the dependant’s needs considered in the abstract. If it were so construed, it would have little, if any, operation, because, fortunately, needs of dependants that are satisfied by an injured claimant prior to him or her suffering injury will, after the injury, almost always come to be satisfied by some other means, whether by the assistance of some other relative or friend, or by paid assistance. On this basis, the dependants will not then have any unsatisfied needs that are ‘reasonable in all the circumstances’ and the paragraph will rarely, if ever, be satisfied.

[39]   Sense can only be given to the paragraph by construing it as referring to the needs of the dependants that would, but for the claimant's injury, have been satisfied by the claimant. In conformity with the provision as so construed, the Court must determine whether the dependants' needs for the services that would have been provided by the claimant are ‘reasonable in all the circumstances’. Thus, to take an obvious example, a child is unlikely to be considered to have a need, that is ‘reasonable in all the circumstances’, for care to be provided by a grandparent claimant if the child lives with his or her parents and the parents are readily available to provide that care. On the other hand, if, by reason of the claimant's injury, another relative has had to give up paid employment to provide services to the dependants, the view may be taken that the dependants have a need for services to be provided by the claimant that is ‘reasonable in all the circumstances’.

[40] Support for this construction of the paragraph is to be found in the language of s 15B(2) which refers, in its chapeau, to ‘any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants’. Paragraph (d) speaks of the reasonableness of a need for ‘the services’ to be provided. ‘The services’ are those referred to in the chapeau, that is, those that would have been provided to the dependants by the claimant, not simply those of a type that would have been provided by the claimant, irrespective of who provided them.

[41]   On this construction, the use in the paragraph of the words ‘will be’ makes sense because, after the claimant's injury is suffered, the dependants may, depending on the circumstances, still have a reasonable need for the claimant's services notwithstanding that they receive substitute services from someone else (see the second example given above).” (bold added; italics in original)

132. The proposition relied upon was that Richard’s care (or at least some of it – the argument was not clear) could readily have been provided, and in the past had in part been provided, by Mrs Raines. Mr Raines therefore failed to demonstrate, within s 15B(2)(d), a need for the services to be provided or, alternatively, that any such need was reasonable in the circumstances.

133. The proposition is wrong on a number of levels. First, it was wrong as a matter of fact. As indicated above, there was no issue, and the evidence clearly established, that Mrs Raines was herself significantly disabled, and, while she was able to exercise some degree of supervision over Richard, she was not able to respond in any meaningful way in an emergency. The proposition may be tested by asking whether, in the absence of Mr Raines, Mrs Raines could provide the care Richard needed. The answer to that question, on the evidence, is plainly in the negative.

134. Second, the proposition misconceives the legislation. Section 15B(2)(d) is not directed to the identity of the provider of the services: it is directed to the need for the services. There was, and could have been, no issue that Richard’s need for the services previously provided by Mr Raines was established; nor was there any issue that that need was reasonable in the sense explained by Basten JA in Perez (at [25]), that is that the need exceeded 6 hours a week over more than 6 months. So much was confirmed, in documentation relied upon by the appellants, by the workers compensation insurer.

135. Section 15B came into being for the express purpose of reinstating, with some modification, the availability of a particular category of damages which had been held by the High Court in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 to be unavailable as a separate category. The category of damages was that which had been allowed in this Court in Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338.

136. In the Second Reading Speech introducing the Civil Liability Amendment Bill, Mr Newell, Parliamentary Secretary, representing the Attorney General, said:

“The Bill responds to such cases by providing a right for seriously injured people to recover damages for the domestic services they are no longer able to provide to their dependants in cases of the greatest need….

That is, it provides a partial reinstatement of Sullivan v Gordon damages, with limitations to ensure that those damages are available only in the cases of greatest need.” (NSW Legislative Assembly Hansard, 10 May 2006)

137. It is apparent, then, that construction of s 15B will be aided by recognition of the nature of the category of damages in question.

138. In Sullivan v Gordon the injured plaintiff was a 15 year old girl who suffered from, inter alia, brain damage from a motor vehicle accident. She subsequently had two daughters, one of whom resided in New Zealand with her father. The younger daughter lived with the plaintiff and the plaintiff’s mother. Among the heads of damage she claimed was an allowance for the care of the younger daughter. The claim was advanced on the basis of analogy with an established head of damages recognised by Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45. An earlier decision of this Court, Burnicle v Cutelli [1982] 2 NSWLR 26, had, by majority, held that the need to care for a third party sounded in general damages but was not compensable as a separate category. After considering this and other conflicting authorities, a five judge bench of this Court held to the contrary – that damages to allow for the care of a third party or parties were permissible as a separate category, akin to those available under the principle stated in Griffiths v Kerkemeyer damages.

139. The judgment in Sullivan v Gordon, however, is not specific as to precisely what was, or could be encompassed in, the award. However, Sullivan v Gordon remained the statement of accepted law until it was reconsidered, and reversed, by the High Court in CSR Ltd v Eddy.

140. CSR Ltd v Eddy was yet another case of a plaintiff having suffered mesothelioma as a result of the negligence of his employer. He, too, claimed damages to compensate for the loss of his capacity to continue to provide domestic assistance, as he had in the past, to his disabled wife. Damages were awarded, including a component calculated on the authority of Sullivan v Gordon. The High Court held that the loss of capacity to care for a third party was compensable only as a component of general damages, and not as a separate and specifically quantifiable head. At [16] Gleeson CJ and Gummow and Heydon JJ quoted from the decision of Reynolds JA (one of the majority) in Burnicle in the following terms:

“[A]n assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss. The injured plaintiff has in such a case as this lost part of a capacity, the exercise of which can give to her pride and satisfaction and the receipt of gratitude, and the loss of which can lead to frustration and feelings of inadequacy.”

141. Their Honours went on to say:

“And Mahoney JA spoke to the same effect. The effect of their reasoning was to deny that compensation for this type of loss was to be calculated by reference to the market cost of replacing the services. Hence when those who support Sullivan v Gordon say that an injured plaintiff who loses the ability to care for a disabled relative loses ‘something of real value’ to the plaintiff as well as the relative, they are saying something true, but inconclusive: there is a loss, but it can be compensated as part of general damages…” (internal citations omitted)

142. That is the background to s 15B, which, as the Parliamentary Secretary said in the Second Reading Speech, was intended to reinstate (with modification) the entitlement to recover damages “for the domestic services they are no longer able to provide.” As was made clear in CSR Ltd v Eddy, and in the passage quoted from Burnicle, the loss is the loss of amenity of the injured claimant. That loss remains a loss, even where the services are provided by an alternative provider.

143. There is nothing novel in this analysis. In Amaca Pty Ltd v Phillips [2014] NSWCA 249 Ward JA, with whom Barrett JA and Tobias AJA agreed, referred (at [57]) to what she described as Amaca’s “real complaint” in that case and said:

“That ignores the fact that it is Mr Phillips' loss that is the subject of the award of s 15B damages.”

144. And in Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork and Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281, Gleeson JA (with whom Basten JA and Macfarlan JA agreed) said:

“[314]   As a consequence, the approach adopted by his Honour resulted in calculations being undertaken which focussed on the extent to which Mrs Dionysatos’ need for services is now satisfied by other family members. That approach was erroneous.”

145. It seems that the point needs to be underscored.

146. It is true that the reinstatement of Sullivan v Gordon damages was intended only to be “partial”. The limitation stated by the Parliamentary Secretary was “to ensure that those damages are available only in cases of greatest need”. That limitation is effected by par (c), requiring proof of the expectation that the services would be provided for at least 6 hours per week and for a period of 6 consecutive months, and by par (d), requiring that the need be reasonable in all of the circumstances.

147. It seems, therefore, to me logical that the identity of the person who will, after the plaintiff’s injury, provide services is irrelevant. In this respect, I may be seen to differ from Basten JA who, in Perez (at [26]) saw two potential, but conflicting areas of relevance of the existence of an alternative carer – one area of relevance being to demonstrate the genuineness of the need, the other to call into doubt the need for the services of the injured claimant. If, by that sentence, his Honour intended to say that the availability of an alternative carer is relevant to the question of the need of the dependant for the services previously rendered by the claimant, I would respectfully disagree. Given that (as I see it) the compensation is for loss of the capacity to render services, and given that par (a) of s 15B(2) requires to be established that the injured claimant in fact provided the services before the liability to compensate arose, the identity of the subsequent provider of the services throws no light on whether there has been shown a need, or whether the need is reasonable. As Macfarlan JA pointed out in Perez, in a civilised society such as this, a need for domestic services will, ordinarily, be met. That says nothing about the availability of compensation to the carer who, absent the wrong that caused the incapacity, would have continued to provide the service.

148. The requirement that the need be shown to be reasonable in all the circumstances protects the wrongdoer against claims that are overindulgent or excessive. There was no suggestion in the present case, and could have been none, that the assessment of Richard’s needs was overindulgent or excessive.

149. Section 15B(2)(d) cannot be construed in isolation from s 15B(2)(c): it was not in issue that, except for Mr Raines’ illness, there was a reasonable expectation that he would have continued to provide the services to Richard (as he had until his illness). It was those services for which there was established a continuing need. Section 15B does not require proof of a need for services to be provided by any particular provider; the section is expressed as intended to compensate an injured worker for work-inflicted incapacity to continue to provide services that have previously been provided.

150. All three of Amaca’s grounds of appeal were directed to these propositions. I would reject them. It follows that Amaca’s appeal must be dismissed.

151. Although it was not pleaded as a specific ground of appeal, both appellants contended that the primary judge was wrong to decline to determine the legal obligation of the workers compensation insurer under s 60AA of the Workers Compensation Act to provide care services for Richard.

152. That contention should be rejected. The workers compensation insurer was not a party to the proceedings, and would not have been bound by any findings made by the primary judge. Further, the absence of any participation in the proceedings by the workers compensation insurer meant that the primary judge would not have had available to him any contrary evidence or argument as to the liability or extent of the insurer’s obligations under s 60AA. The primary judge was correct to deal with the submissions as he did.

Seltsam’s remaining grounds of appeal

153. Seltsam’s remaining grounds of appeal raised issues concerning:

(i)   the admissibility of Dr Obeid’s report;

(ii)   an asserted failure on the part of the primary judge to make findings of relevant fact;

(iii)   the distinction drawn between “active care” and “passive care”.

Consideration

(i)   Dr Obeid’s report

154. I agree, for the reasons given by White JA, that parts of Dr Obeid’s report were inadmissible, but were not used to the detriment of Seltsam, and that this ground of appeal should therefore be rejected.

(ii)   Fact finding

155. I have set out above the matters on which Seltsam contended that the fact finding was deficient. In neither the ground of appeal as pleaded nor in the written submissions, did Seltsam distinguish between its complaints in relation to the services provided by Mr Raines to Richard, and those provided by him to Mrs Raines. Yet the factual matters in dispute in the Dust Diseases Tribunal were different. In the case of services provided to Richard, the facts necessary to meet the requirements of s 15B(2)(a)-(c) were not disputed. All that was in issue was whether the requirements of par (d) were met. The primary judge made adequate findings of fact to support his conclusion in that respect. It was unnecessary to do more than state the undisputed background to support the other requirements of s 15B(2).

156. In the case of services provided to Mrs Raines, the area of dispute lay within s 15B(2)(c) – whether the services provided reached the statutory level of 6 hours per week for at least 6 consecutive months.

157. By reference to those parts of Dr Obeid’s report that were not inadmissible, the primary judge found that, prior to his illness, Mr Raines provided Mrs Raines with 8 hours per week of domestic services. That was a clear finding of fact. It was plainly implicit in the finding, and incontestable, that this care had been provided over many years, and could have been expected to continue for well in excess of the required 6 months.

158. The fact finding was sufficient to meet the requirements of the case, taking into account the narrow area of factual dispute. I would reject this ground of appeal.

(iii)   Active care/passive care

159. Seltsam’s submission was that “passive care” as identified by the primary judge is not a gratuitous domestic service for the purposes of s 15B(2).

160. I would reject that contention, at least in the circumstances of this case. It disregards the nature of what was characterised as “passive care”. Essentially, what “passive care” amounted to was constant supervision, and availability to step in in case of emergency. That was the provision of a service. As the poet John Milton said four centuries ago, “They also serve who only stand and wait” (“When I Consider How My Light is Spent”, often referred to as “On His Blindness”).

161. As indicated above, the passive care ensured that Richard was able to continue to live in his house, but with constant supervision. Without that constant supervision, that would not have been the case. It makes no difference that Mrs Raines also provided some supervision. The question is what Mr Raines was providing prior to his illness, and could have been expected to continue to provide but for his illness.

162. However, I would accept that the distinction between “passive care” and “active care” was potentially misleading and certainly unhelpful. It suggested that “passive care” was somehow worth less than “active care” and less worthy of compensation. That was not the case. The “passive care” was a valuable service to Richard.

159. However, this error, if it were an error, was to the benefit of the appellants. I would therefore reject this ground of appeal.

160. It follows from these reasons that Seltsam’s appeal must also be dismissed.

161. I agree with the orders proposed by White JA.

**********

Endnote

Amendments

04 October 2018 - Para [9], "(b)" removed from 15B(5).

Para [14], "court" changed to "Tribunal" in third sentence.

Para [19], comma deleted between “appellate" and "tribunal”.

Para [61], bracket repositioned from after "not" to after "be".

Para [140], "Hayden" changed to "Heydon".

Para [144], bracket replaces comma after “agreed”.

Decision last updated: 04 October 2018