2.Set aside order 2 of the Court of Appeal of the Supreme Court of New South Wales made on 20 February 2013 and, in its place, order that:
(a)the appeal from the Supreme Court of New South Wales to the Court of Appeal be allowed; and
(b)set aside the determination and formulation of Question 5 made by the Supreme Court on 19 December 2011 and, in its place, reformulate and answer that question as follows:
Question 5
Whether on proper construction of section 130A of the Motor Accidents Compensation Act1999 (NSW), Mr Thiering has any entitlement as against Mr Daly other than damages for non‑economic loss and loss of earning capacity.
Answer
On the proper construction of s 130A of the Motor Accidents Compensation Act1999 (NSW), Mr Thiering has no entitlement to recover damages in accordance with s 128 of the Motor Accidents Compensation Act with respect to the provision of gratuitous attendant care services from Mr Daly or his compulsory third party insurer.
3.The appellant pay the first and second respondents' costs of this appeal including the application for special leave to appeal.
On appeal from the Supreme Court of New South Wales
Representation
K P Rewell SC with D M Wilson for the appellant (instructed by Moray & Agnew Solicitors)
B W Walker SC with E G Romaniuk and E E Grotte for the first and second respondents (instructed by Slater & Gordon Lawyers)
S B Lloyd SC with B J Tronson for the third respondent (instructed by WorkCover Authority of New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Daly v Thiering
Statutes – Statutory construction – Whether Court of Appeal erred in construction of s 130A of Motor Accidents Compensation Act 1999 (NSW) – Whether Griffiths v Kerkemeyer damages precluded by s 130A in respect of participants under Scheme in Motor Accidents (Lifetime Care and Support) Act2006 (NSW) – Whether "provided for or are to be provided for" in s 130A means "paid for or are to be paid for".
Words and phrases – "provided for or are to be provided for".
CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ. From 1 October 2006 until 25 June 2012, s 130A of the Motor Accidents Compensation Act1999 (NSW) ("the MAC Act") provided that:
"No damages may be awarded to a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act2006 for economic loss in respect of the treatment and care needs (within the meaning of that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Daly v Thiering [2013] HCA 45
Case
[2013] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Daly, the driver involved in a motor vehicle accident, against Mr Thiering, the injured party. The dispute concerned Mr Thiering's entitlement to recover damages for gratuitous attendant care services provided by his mother, Mrs Thiering, following the accident. Mr Daly contended that section 130A of the *Motor Accidents Compensation Act 1999* (NSW) precluded such a claim, as Mr Thiering was a participant in the Lifetime Care and Support Scheme (LCS Scheme) established by the *Motor Accidents (Lifetime Care and Support) Act 2006* (NSW), and his care needs were provided for under that scheme.
The central legal issue before the High Court was the proper construction of section 130A of the *Motor Accidents Compensation Act 1999* (NSW), specifically whether the phrase "provided for or are to be provided for" encompassed services that were gratuitously supplied. The court was required to determine if Mr Thiering's participation in the LCS Scheme, which arranged for his lifetime care and support, meant that his attendant care needs were "provided for" in a manner that disentitled him from claiming damages for those services from the at-fault driver or his insurer.
The High Court reasoned that the legislative intent behind the LCS Act and section 130A of the *Motor Accidents Compensation Act 1999* was to create a comprehensive scheme for the provision of lifetime care and support for catastrophically injured individuals. The court held that the phrase "provided for or are to be provided for" in section 130A was not limited to services that were paid for, but rather included services that were arranged for or met under the LCS Scheme. Allowing a claim for gratuitous services would undermine the purpose of the LCS Scheme by permitting injured persons to opt out of its provisions and still recover damages, potentially rendering the insurer's choices under the LCS Act nugatory.
Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, and reformulated the answer to Question 5. The court determined that on the proper construction of section 130A, Mr Thiering had no entitlement to recover damages from Mr Daly or his compulsory third party insurer for the provision of gratuitous attendant care services. The appellant was ordered to pay the costs of the first and second respondents in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 2 of the Court of Appeal of the Supreme Court of New South Wales made on 20 February 2013 and, in its place, order that:
(a) the appeal from the Supreme Court of New South Wales to the Court of Appeal be allowed; and
(b) set aside the determination and formulation of Question 5 made by the Supreme Court on 19 December 2011 and, in its place, reformulate and answer that question as follows:
Question 5
Whether on proper construction of section 130A of the Motor Accidents Compensation Act 1999 (NSW), Mr Thiering has any entitlement as against Mr Daly other than damages for non‑economic loss and loss of earning capacity.
Answer
On the proper construction of s 130A of the Motor Accidents Compensation Act 1999 (NSW), Mr Thiering has no entitlement to recover damages in accordance with s 128 of the Motor Accidents Compensation Act with respect to the provision of gratuitous attendant care services from Mr Daly or his compulsory third party insurer.
3. The appellant pay the first and second respondents' costs of this appeal including the application for special leave to appeal.
Background
Background to the litigation
The primary judge summarised the purpose animating the LCS Act and s 130A of the MAC Act[6] in terms which were approved by the Court of Appeal[7] and were not disputed in this Court. It is convenient to adopt that summary here:"It seems tolerably clear that it was the intention of the government to introduce legislation which would establish a scheme with these features: (a)It would cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured; (b)The injuries were such that the individuals would require treatment and care for the whole of their lives; (c)The LCS Scheme would provide for all of that treatment and care, including attendant care, for as long as it was necessary on an individually assessed basis; (d)Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care; (e)The only limitation on the provision of treatment and care was that it was reasonable in the circumstances, and that the injury was caused in a motor vehicle accident."[6]Thiering v Daly (2011) 60 MVR 42 at 60-61 [85].[7]Daly v Thiering (2013) 63 MVR 14 at 29 [47].Factual background Mr Thiering, the first respondent, suffered catastrophic and permanent injuries in a motor vehicle accident on 28 October 2007. Since then he has been, for all relevant purposes, a participant in the Scheme under the LCS Act. Pursuant to arrangements between the Authority and Mrs Rose Thiering (Mr Thiering's mother, the second respondent), a significant part of Mr Thiering's domestic care has been undertaken by Mrs Thiering. She has not been paid for the services she has rendered in that regard. Mrs Thiering offered her services out of concern for her son, and the Authority agreed to her meeting part of his treatment and care needs. These needs were included in those identified by the Authority in its assessments under s 23 of the LCS Act. In the assessments of those needs by the Authority, responsibility for many hours of Mr Thiering's care was "allocated" to Mrs Thiering. The proceedings Mr Thiering sued Mr Daly (the driver of the motor vehicle allegedly at fault) for damages for negligence in respect of the injuries suffered by Mr Thiering on 28 October 2007. His claim included a claim for the value of the services provided by Mrs Thiering in the care of Mr Thiering. Mr Daly's CTP insurer stands behind his liability, if any, to Mr Thiering. Mr Daly denied liability to Mr Thiering for the value of the services rendered by Mrs Thiering. In particular, Mr Daly relied upon s 130A of the MAC Act, contending that Mr Thiering's claim to recover the value of those services was a claim for economic loss in respect of the treatment and care needs of Mr Thiering, a participant in the Scheme whose domestic care needs were provided for while he was a participant in the Scheme. In addition to Mr Thiering's claim against Mr Daly, Mrs Thiering and Mr Thiering brought proceedings against the Authority to recover the value of the domestic services provided by Mrs Thiering. The Authority defended those proceedings on the basis that Mr Thiering and his mother volunteered that she would undertake the provision of part of his treatment and care needs (being needs that the Authority would have arranged to meet but for the efforts of Mrs Thiering) in circumstances which negated any obligation in the Authority to pay for those services.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
That the legislative package consisting of the LCS Act and s 130A of the MAC Act observed no distinction between met needs and unmet needs of the kind for which Mr Thiering contended is hardly surprising. If the interpretation advanced by Mr Thiering's counsel were correct, it would mean that a participant in the Scheme would be free to choose the extent that the Scheme applied to them. Thus an injured person with sufficient means could choose to arrange for his or her treatment and care needs to be met from his or her own resources, and then recover that expense from the CTP insurer unaffected by s 130A. In that way, the choice conferred on the insurer by s 8 of the LCS Act might be rendered nugatory. That is not an outcome countenanced by the legislation. Conclusion and orders The appeal should be allowed and the decision of the Court of Appeal set aside. The appeal to the Court of Appeal should be allowed, and the determination of Question 5 by the primary judge should be set aside. In place of that determination, Question 5 should be answered:"On the proper construction of s 130A of the MAC Act, Mr Thiering has no entitlement to recover damages in accordance with s 128 of the MAC Act with respect to the provision of gratuitous attendant care services from Mr Daly or his CTP insurer." Pursuant to the undertaking given on behalf of Mr Daly as a condition of the grant of special leave to appeal, Mr Daly must pay Mr and Mrs Thiering's costs in this Court. The costs orders made in favour of Mr and Mrs Thiering in the courts below are to stand.
Ratio Decidendi
Legal Principle Established
Established by:
CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ