Daly v Thiering

[2013] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S115 of 2013

B e t w e e n -
JOHN DALY
Appellant
and
ALEXANDER THIERING
First Respondent
ROSE MATILDA THIERING
Second Respondent
LIFETIME CARE & SUPPORT AUTHORITY OF NEW SOUTH WALES
Third Respondent

CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 OCTOBER 2013, AT 10.15 AM

____________________

MR K.P. REWELL, SC: If the Court pleases, I appear for the appellant, with my learned friend, MR D.M. WILSON. (instructed by Moray & Agnew Solicitors)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR E.G. ROMANIUK and MS E.E. GROTTE, for the first and second respondents. (instructed by Slater & Gordon Lawyers)

MR S.B. LLOYD, SC: May it please the Court, I appear with MS B.J. TRONSON, for the Authority. (instructed by Workcover Authority of NSW)

CRENNAN J: Yes, Mr Rewell.

MR REWELL: May I apologise immediately for not having provided to the Court an oral outline; that was an oversight in our camp.

CRENNAN J: We have had the procedure for quite some time, I am bound to say.

MR REWELL: I understand that, your Honour, and I can only apologise. I can give your Honours a brief overview of what I am about to say quite quickly, and I will do that now if that is convenient. First, I thought it would assist the Court to have some more background information about the Lifetime Care scheme in New South Wales because I know it is a novel scheme in some senses, and although it has been in effect in New South Wales for seven years, I think, as of yesterday, it is still in some respects little known in terms of its detail, so I will explain a bit more about that if I may because it is, of course, the legislative context with which we have to deal.

CRENNAN J: Is this common ground what you are about to go to?

MR REWELL: I hope so.

CRENNAN J: Yes, I would have thought so.

MR REWELL: Much of it was explained by the trial judge, Justice Garling, but not all of it, and then the trial judge strayed into error in respect of one part of the scheme, which is actually quite important, and that concerns how the scheme is funded.

Where I intend to start is with the purpose of the scheme about which I believe there is no issue. It was identified by the primary judge, by the trial judge. The Court of Appeal appears to have endorsed the purposes of the scheme as identified by the trial judge and I understand there is little or no issue as to its purposes here. Next, I will say a little about how the scheme is funded because that is also important and it was an area where the trial judge, with respect, went completely wrong and I will explain why. Next, I will explain by reference to the relevant statutory provisions how the scheme works and it is important to understand how it works and there are some unusual aspects of the legislation.

Then, I want to say a little about Griffiths v Kerkemeyer and the former section 128 of the Motor Accidents Compensation Act (NSW) which created a statutory entitlement to damages in the nature of Griffiths v Kerkemeyer subject to some restrictions. In other words, it modified the common law right to damages under Griffiths v Kerkemeyer, and we will submit that it is necessary to understand the extent of the mischief that section 128 was directed towards in order to then understand how section 130A operated and the Court is aware that that section is now consigned to history.

Then I want to deal with where we differ from the third respondent, the Lifetime Care Authority, because we do not differ as to the outcome. We essentially agree as to how the trial judge and the Court of Appeal should have answered the separate question with which we are concerned, subject to some questions of semantics but we ‑ ‑ ‑

CRENNAN J: The third respondent seems to be concerned about the possibility for a finding that all treatment and care needs are covered by the scheme with the underlining of the all. Does it go beyond that, the difference between you?

MR REWELL: I suspect that what concerns the Authority is that if it is required, as we contend it is, to provide for all of the care needs of its participants then it may ultimately have some liability for the care provided by Mrs Thiering and I think that is its concern, where we say ‑ ‑ ‑

CRENNAN J: But that is a matter that is the subject of litigation down the track, is it not?

MR REWELL: Yes, it is. But we say it is actually important to understand and we say there is no doubt that the Lifetime Care Authority does have responsibility, or as the trial judge put it, a statutory mandate “to provide for” – and those words are critical in this appeal – “all” – underline “all” – of the care needs of the participants in the scheme, and I will come fairly shortly to why we say that.

Once I deal with why we differ and how we differ from the Authority in terms of reasons, but not outcome, I will attempt to persuade the Court where the courts below went wrong and that requires a little bit of individualism because while the courts below agreed as to the outcome, they did not agree as to the route by which that outcome should be achieved.

CRENNAN J: In relation to relief, am I right to think that there is really no substantive difference in relation to the answer that you propose should be given to question 5?

MR REWELL: I think I am correct in saying, yes, that is the position. There is no substantive difference.

CRENNAN J: The difference between you is as to the reason which should underpin that answer to question 5.

MR REWELL: Yes, and in a way that mirrors, but with the opposite outcome, what happened as between Justice Garling and the Court of Appeal. They came to the same outcome with which we disagree but by different routes.

CRENNAN J: Reasoning processes.

MR REWELL: And we agree and disagree with part of the route adopted by each of those courts, but disagree with the ultimate result.

GAGELER J: At some stage in your submissions, will you turn to the text of section 130A and explain the competing interpretations and why your interpretation is to be preferred?

MR REWELL: Yes, and I will not take long to get to the text of section 130A. Interestingly, however, I think it is fair to say that Justice Garling and the Court of Appeal dealt with that text in different ways, but in order to get to the same outcome. I will try to explain how each of them did it and why we disagree with each but particularly with the Court of Appeal.

GAGELER J: But we are ultimately concerned with the question of construction.

MR REWELL: Yes, yes. Justice Garling and the Court of Appeal really throw up and seek to justify the constructions with which we differ. So it is useful to look at their Honours’ reasoning because each strives to construe the section in a particular. We say each ultimately makes the same error but for different reasons and I will certainly address your Honour’s questions.

Essentially, the balance will be why the courts below, we say, were wrong. In essence, we say that the courts below were wrong for a series of reasons. Firstly, having correctly identified the legislative purpose underlying section 130A, both courts arrived at a conclusion which defeats that legislative purpose. Secondly, we say the words of section 130A are quite clear and I would add to that section 6(1) of the Lifetime Care legislation because very similar words appear there and we will submit that as a matter of construction those very similar words have to be given the same meaning in the two pieces of legislation which were part of the same legislative package, if I could use that expression.

CRENNAN J: Well, I think attendant care services, that expression is defined identically in the two pieces of legislation.

MR REWELL: It is, but perhaps we would say more importantly the words “provided for” are critical in section 130A and as this Court knows the Court of Appeal said the words “provided for” are to be construed as if they were the words “paid for” and it is there that we strongly part company from the Court of Appeal which made no bones about the fact that that was the construction it was proposing to use. I hope to demonstrate that that difference in meaning cannot work when one looks at the similar words “in providing for” in section 6(1) of the Lifetime Care legislation which is again critical. I will come to that again fairly shortly.

Thirdly, we say that the Court of Appeal in particular erred in taking the words “provided for” and given them a completely different meaning, which although not by any means barred by authority as to statutory interpretation, need not, and there was no warrant for that to be done because giving the words their ordinary and natural meaning happened to achieve exactly the purpose that the legislation had intended, evident by the words of both Acts and the context of both Acts.

Finally, we will say that the outcome reached by both Justice Garling and the Court of Appeal is completely at odds with the legislative context in which section 130A appears. It appears in the context of a fully and separately funded Lifetime Care scheme which is to deal with all the care needs of its recipients, and that fact is embraced in a complete rearrangement of the way in which third party insurance operates in New South Wales.

So that is the outline, and I apologise that that had not been put in writing earlier. Can I take the Court then to the Lifetime Care scheme and introduce it using what Justice Garling said largely, because his Honour, with respect, we say, up to an important point, analysed the legislation succinctly and accurately.

A couple of things by way of background that did not appear in this case because they were all accepted. The Court may or may not know that this is a no‑fault scheme unlike the Motor Accident Compensation Act which is a piece of fault based legislation with some small exceptions in Part 1.2 – small but important exceptions. Lifetime Care is no‑fault, limited to catastrophically injured persons who were injured in motor accidents in New South Wales. Eligibility for the scheme is determined according to certain guidelines which, in effect, define what is meant by “catastrophic injury”. There are some injuries which give rise to eligibility difficulties. This case is not one of them. If one is affected by tetraplegia as is the case here for Mr Thiering, there is no argument about eligibility. He is automatically eligible.

CRENNAN J: Was he a voluntary participant in the scheme?

MR REWELL: Your Honour anticipated exactly what I was about to say. Participation in the scheme, in practice, is not voluntary and there is a reason for that which I will come to when I come to funding. Participation in the scheme may occur in one of two ways; either the injured person may apply to participate in the scheme but that is not compulsory. If the injured person does not apply for participation in the scheme, the relevant compulsory third party insurer may apply on that person’s behalf. If the person is eligible in terms of the person’s injuries then the person will be or will become a participant in the scheme.

Obviously, where the scheme is separately funded from the third party insurers, if someone qualifies by reason of their injuries for participation but does not apply for participation, the insurer will because by applying for the person’s participation, the liability for payment for care, putting it neutrally for the moment, is transferred to the scheme which is separately funded.

CRENNAN J: Is that an application to the Authority?

MR REWELL: Yes, but the Authority has a very limited discretion as to eligibility and in cases such as Mr Thiering has no discretion. If an application was made on behalf of Mr Thiering, he must become a participant because of the nature of his injuries. As I say, if Mr Thiering did not apply, the insurer would and Mr Thiering cannot resist such an application by the insurer except on the grounds of eligibility. Therefore, in every real sense, the scheme is not voluntary and not intended to be voluntary which brings me to – and I will just move ahead for one moment to the basis on which the scheme is funded which curiously enough many people in New South Wales are unaware of even though they pay for it.

In about 2006, the manner in which one paid for third party insurance on registration of a motor vehicle, which as the Court knows is compulsory, changed. Before that time, a premium was paid to a third party insurer which had responsibility under the Motor Accidents Compensation Act to pay damages in respect of any injuries suffered in a motor accident subject to the limitations and constraints of that Act and it is an Act which modifies and limits common law damages and does so deliberately.

When this scheme was introduced a levy was introduced at the same time separate and distinct from the premium payable to third party insurers. The only role third party insurers have in connection with the levy for the Lifetime Care scheme is that they are the collectors, so they are required to collect the separate levy at the same time that they collect their own premiums and then they remit the levy to the Authority which deposits it in the fund that funds the Lifetime Care scheme.

Because the Lifetime Care scheme has certain responsibilities to pay for ‑ putting it neutrally, care of the participants in the scheme ‑ it was expected that the third party insurance premiums received by the insurers would be reduced because that liability was no longer theirs, it was the Lifetime Care’s liability and it was funded by the levy, and that, in fact, happened. So the overall result was that at least for a time the amount one paid for what we call a green slip stayed roughly the same but now it was divided between two different entities: firstly, your third party insurer; secondly, the Lifetime Care and Support Scheme.

There is no doubt that the levy is supposed to fully fund the scheme and the levy is adjustable according to what happens to the scheme, and it has been adjusted, and significantly adjusted since 2007. The third party insurer, on the other hand, is left to calculate its premiums based on its assessment of risk, and its assessment of risk is, of course, affected by the fact that the Lifetime Care scheme has a responsibility which was once the responsibility of the third party insurers.

The problem here is that – and this appears in the papers – that the insurers adjusted their premiums in 2006 or 2007 on the basis that the Lifetime Care Authority was now responsible for all of the treatment and care needs of persons catastrophically injured in motor accidents. When a claim was made against the third party insurer in respect of a part of Mr Thiering’s care, to the insurer that violated the arrangement that it understood existed and directly impacted on the calculation of premiums which by then were historical, and the Court has probably read that there is actuarial material demonstrating that the amount in issue up to the date when the law was amended is about $40 million and that still remains, in effect, on the books.

The reason we are here, to be blunt about it, is that that sum has not been funded by premiums because up to the time of the decision by Justice Garling the interpretation on which insurers worked was that they would not be liable for any of the treatment and care needs of people like Mr Thiering. So that is the funding aspect of it, and that ties in ‑ ‑ ‑

CRENNAN J: That is all common knowledge in New South Wales.

MR REWELL: Yes, it is. I mean, there are many citizens of New South Wales who pay the levy without even knowing they are doing so, they just pay the bottom line on their green slip, but I can assure the Court that it is evident ‑ ‑ ‑

CRENNAN J: But, I mean, there is no debate in this case about premiums were reduced in that context.

MR REWELL: No, I trust not. So that is how the scheme came into existence and the levy was created to fund it and that ties in with the fact that the scheme is, to answer your Honour’s earlier question, not optional. If it was optional the third party insurers could not know where they were going to stand in terms of their responsibilities, vis-à-vis the Lifetime Care scheme, but because they know that every person who is eligible will end up in the scheme either by their own hand or by the insurer’s hand, then they can make an assessment of their residual risk having taken away what the Lifetime Care scheme has to deal with rather than themselves.

The purpose of the legislation was one of the issues at first instance, and if the Court turns to page 206 of the appeal book one will see that Justice Garling was able to distil and we agree accurately the legislative purpose underlying the creation of the schemed. It was done by the package. One was the introduction of the Lifetime Care legislation, as I will call it, and the other was by consistent amendments, we say, with the Motor Accidents Compensation Act. You could not do one without the other and they did not.

CRENNAN J: And you particularly like (d) as I appreciate it from your submissions?

MR REWELL: To be perfectly honest, I also like very much (c):

The LCS scheme would provide for all of that treatment and care –

Justice Garling never backed away from that proposition, and I will come to how he reached the result he did ultimately because in a way – well, we say not in a way but directly the result he achieved was contrary to (c) and (d). (e) is important, too, but it is clarified in other places because there are limitations on what Lifetime Care has to pay for otherwise we would not need section 130A, and I will come to that in just a moment.

We respectfully submit that his Honour was completely right in distilling these legislative purposes and the Court of Appeal took no issue with what Justice Garling had done. His Honour noted something else interesting about the Act at page 203 of the appeal book. At paragraph 75 of the judgment his Honour said:

I note that there is no provision which specifically obliges the LCS Authority to provide or pay for –

we would say that should read “provide for or pay for –

all of the assessed needs of a participant. It seems to be assumed by the Act, that the LCS Authority will provide for all the assessed needs of a participant.

We agree with what his Honour said there but when I come to section 6(1) of the Lifetime Care legislation I will submit that the lacuna that his Honour was concerned about is not in fact a lacuna. It certainly could have been better expressed and more frankly expressed which would have made our job easier to the extent that we probably would not be here but his Honour has, in a way, hit the nail on the head that an oddity of the Lifetime Care legislation is that nowhere does it say what the Lifetime Care Authority has to do in a comprehensive way which is unusual but we say section 6(1) deals with it.

While I am on that topic, the other odd thing about the Lifetime Care legislation is that it does not have a section that sets out the objects of the Act, unlike the Motor Accident Compensation Act, and given the way legislation has been going in New South Wales it is rather odd that no objects were stated in the Act, and again, that is not of much assistance to any of us here and is one of the reasons presumably why we are here. But, how does the scheme work? This is where we get into the legislation and the importance of it.

His Honour goes through the relevant legislative provisions in the judgment and includes most of the relevant provisions. His Honour also identifies that the starting point when looking at the Lifetime Care scheme is to say, what does the Authority have to do first? So the Authority collects its levy, it admits those persons it is required to admit by reason of their eligibility, so it now has participants in the scheme. What does it do next in practice? Section 23 tells us what it does next. It is set out in his Honour’s judgment, just for convenience, at 202 of the appeal book. It is elsewhere in the Court’s materials but we might follow for the moment, if we could, Justice Garling’s judgment. Section 23 provides that:

The Authority is to make an assessment of the treatment and care needs of a participant –

Now, “treatment and care needs” is defined in section 6(2), and I will come to that in a moment. So please bear in mind for the moment that “treatment and care needs” is not a general statement and it is not meant to be an all‑inclusive or comprehensive statement, it is limited by section 6(2) and I will come to it shortly. There are then two further prerequisites, apart from fitting within the definition, the assessment is required of:

treatment and care needs that are reasonable and necessary in the circumstances –

so that is restriction number 2. Then –

and as relevant to the motor accident injury –

in connection with the accident question, prerequisite 3. So there are three prerequisites for what must be assessed and we say then provided for by the Authority. So the first step is an assessment. Now, so that the Court knows what that means we have actually included a number of assessments of Mr Thiering in the appeal book, and I would like to take the Court to a couple of them in very short form because they will enlighten the Court as to how this scheme actually works. Now, could the Court turn to page 54 of the appeal book?

Now, one sees there a document called “Care Needs Assessment”. The care needs assessor is describe as a Ms Nicholls and one sees her qualification is a degree in occupational therapy, and these assessments are routinely carried out by occupational therapists retained for the purpose by the scheme. One sees that this particular assessment was made on 26 February 2009 at Mr Thiering’s home – that is about line 29. At the bottom of page 54 one sees an assessment there by Ms Nicholls of the care needs of Mr Thiering and it specifically reports:

Total hrs of unpaid care per week 59.00

Now, there is no issue that that refers to Mrs Thiering and in later care assessments it makes it very plain that that is the case.

Total hrs of paid care per week 76.00

That is provided by the scheme.

Total hrs of care per week 135.00

What that shows from the first pace is that what is being assessed are all of Mr Thiering’s care needs at that time. Then, as it says at 1.6, “Summary of overall care hours”, there is no argument about it. Then at line 50, there is a division as to how that care is going to be delivered or, to use another word, provided, but we say not provided for. The care is to be delivered by unpaid care and by paid care in the combination set out at line 50.

But the care we say that is provided for in this assessment is 135 hours a week and that makes, we say, complete sense. That is what Mr Thiering needed, according to the occupational therapist. On pages 56 and 57 – I will not take up the Court’s time with it – there are references to Mr Thiering’s mother, Mrs Thiering, and what specific tasks she is actually doing. For example, at page 56, line 34‑odd:

Alex’s mother completes all of Alex’s non paid care.

Then on page 57, the last box is “Instrumental activities of daily living” and what the mother does is referred to in various parts such as shopping, food preparation, housekeeping, laundry but there were certainly many other things than that that Mrs Thiering needed to do. So that was that care assessment.

Another feature of the scheme is that care assessments are reviewed in two ways: one, if the participant is not satisfied with the care assessment, so, for example, if Mr Thiering had said, “I am not satisfied with 135 hours a week, I need more” as he undoubtedly does, the avenue available to him, as the participant, is to seek a review of the assessment within the scheme and the scheme then appoints a reviewer or reviewers to review Ms Nicholls assessment. That may result in alteration of what is provided to him.

CRENNAN J: What if his mother says, “I do not wish to continue providing unpaid care” or “I am sick” or “I am going on holidays”? How does it work then?

MR REWELL: Your Honour is anticipating one of the main points I will make. There is no doubt about what happens if Mrs Thiering says, “I do not want to do this any more”, or “I am sick today”. The Lifetime Care Authority must provide commercial care and do it immediately. Mr Thiering is not in a position where the Lifetime Care Authority can make a new assessment if Mrs Thiering falls ill and is incapacitated from caring for him. He has to be cared for every day and all day, every day. No question about it.

KIEFEL J: These assessments are undertaken in accordance with the guidelines. Is that right?

MR REWELL: Yes. There are guidelines about what should be assessed.

KIEFEL J: The guidelines provide that there should not be paid care in relation to family members?

MR REWELL: Yes.

KIEFEL J: What is the rationale for that?

MR REWELL: I think if I could speak for the Authority, their rationale is that they view their obligation as to provide approved carers – approved and trained carers and unless one is an approved carer – that means a qualified carer – the Authority will not pay for it. But that is not to say that the Authority prevents people like Mrs Thiering who is not trained and qualified from performing care duties. It is obvious ‑ ‑ ‑

CRENNAN J: Does the Authority have a discretion somewhere where it can decide to pay for family care? I mean, many might say that families together can relax more when there is not a stranger to the family in the house 24 hours a day. Of course, I suppose this is a question for Mr Lloyd, ultimately.

MR REWELL: The short answer to your Honour’s question is that the Authority makes the guidelines and, therefore, the Authority can make a guideline tomorrow should it wish, that it will pay family members and prescribe a rate of payment, but it has not done so. In fact, most of the guidelines are in the opposite direction and your Honours may have noticed that Justice Garling struck down one guideline which provided that no payment would be made for overnight care in the family home and his Honour regarded that as ultra vires and struck it down and, with respect, was correct to do so. The short answer is that yes, the Lifetime Care Authority makes the guidelines and, therefore, should it wish to change its policy about family care it can and many people would say it should but it has not as yet.

CRENNAN J: Well, irrespective of its policy there might be a quantum meruit claim, I suppose.

MR REWELL: That is something, of course, with which Mrs Thiering is intimately concerned. One of the issues before Justice Garling was, does Mrs Thiering have standing to bring such proceedings against the Lifetime Care Authority. The Authority argued that she did not, she argued that she did. Justice Garling found that she did.

KIEFEL J: But that aspect of the claim is not before us.

MR REWELL: It is not before your Honours. It was not before the Court of Appeal either. So the law stands that Mrs Thiering has standing to bring proceedings of her own and has done so. Her proceedings – her pleadings need to be reformulated and, no doubt, they will be in future subject to the outcome of this matter but it is referred to in my learned friend, Mr Romaniuk’s submissions, but that is certainly a very live issue and this is not the first time it has been mentioned. Indeed, the Court of Appeal, your Honours may have noticed, sought to give some assistance as to how such a claim may have been formulated.

Could I take your Honours then to a second care needs assessment? This commences on page 74 of the appeal book. This is an assessment made on 20 November 2009 - that appears at line 39 - by a different occupational therapist, Ms Mills, but again, an occupational therapist retained by Lifetime Care. Ms Mills refers to what she calls “a current care dispute” on page 76 at about line 7 and it will give the Court some background to why this litigation has taken the shape it has if one reads paragraph 13 created by Ms Mills.

So one sees that there was beginning to develop something of a dispute as to whether or not Mrs Thiering should be paid by the Authority and the Authority’s position is set out there by Ms Mills, as is Mr Thiering’s position set out at the end of paragraph 13.

GAGELER J: Is this meant to be illustrative of the operation of the Act?

MR REWELL: Yes, it is. This is how things work in practice. Step one, and taking it beyond step one is the making of these assessments and the only other assessment I was going to take the Court to, but I will not take up much time, is one that begins at page 92 of the appeal book and your Honours can look at that yourselves but I think by now your Honours have the idea of how step one takes place.

All right, step two is to put into effect the assessment and this is where we turn to section 6 and again just dealing with Justice Garling’s judgment for the moment because it is easy, page 199, at the foot of page 199, his Honour sets out section 6 of the Lifetime Care legislation and section 6(1) is the subject of different interpretations I think by each of the parties here. The first thing we say about it is of course the context of section 6 is section 23 and the kind of assessments the Court has just looked at. Section 6(1) then says, and the opening words are important:

The Authority is to pay the reasonable expenses incurred by or on behalf of a person while a participant in the Scheme in providing for -

and we would underline those words -

such of the treatment and care needs of the participant -

which are to be defined in a moment and again repeats prerequisites (2) and (3) – they must be reasonable and necessary and relate to the motor accident in question. I will come back to 6(1) in a moment.

Section 6(2) then defines treatment and care needs for the purposes of the Act. In this case there is no doubt at all that Mrs Thiering’s services fall within section 6(2) and in particular (f) and (g). I think I am correct in saying that there is no argument from anyone that Mrs Thiering’s services fall squarely within those provisions.

Now, no doubt other situations will arise where different types of needs are in question, not contained within that list. There is a flexibility provided to the Lifetime Care Authority in (m) in that presumably if it is discovered that something that was intended to be within the scope of the scheme is not listed in (a) to (l) it can be prescribed by regulation as an addition. Now, to the best of my knowledge there have been no such regulations and I do not think that there is any dissent from that, so in the six or seven years since this scheme has operated there have not been any regulations adding anything else.

The importance of 6(2) is that not every possible treatment and care need is dealt with by this legislation but, obviously, the vast majority are when one looks at what is contained in (a) to (l) and, importantly, there is no doubt that Mrs Thiering’s services fall within that prescription.

Can I go back briefly to section 6(1)? As I understand it, both of my learned friends say in different ways that the only way the Lifetime Care and Support Authority can provide for the care needs of a participant such as Mr Thiering is to pay for them, and we take strong issue with that. We say that Justice Garling was right in finding that the purpose of the legislation – and we say its effect – is that the Authority must provide for all of the care needs of the participant, but it may not need to pay for them all because in some circumstances – and this is one – there may not be any cost involved in providing for part of the care needs of the participant.

This goes back to the care assessments that I just discussed with the Court. We say clearly those care assessments provide for all of the assessed care needs of Mr Thiering. The one I showed you where the occupational therapist said, 135 hours a week is what Mr Thiering needs. The plan provides for 135 hours a week paid ‑ ‑ ‑

CRENNAN J: Does not Justice Garling start with the proposition that gratuitous services are not within section 6(1), or am I misremembering?

MR REWELL: I think Justice Garling starts with the opposite proposition, but I am happy to go ahead, but can I just make our point about this? If the Court of Appeal was right, if the words “providing for” should be read as “paying for”, then section 6(1) would start:

The Authority is to pay the reasonable expenses incurred –

in paying for –

such of the treatment and care needs –

It is not sensible reading. What we say is the obligation, clearly enough, as Justice Garling found and the Court of Appeal did not demur, is to provide for all of the care needs identified in the assessment and where there is a cost then the scheme has to pay for it.

To leap ahead so as to, I hope, identify the nub of Justice Garling’s reasons, if the Court could turn to 223 in the appeal book? Justice Garling starting at 221, paragraph 143, expresses a long series of conclusions about the legislation and the features of the scheme, and we have very little issue with most of what his Honour says. If we go to (i) on page 223 of the appeal book, his Honour says:

Where a treatment and care plan –

such as those I have taken the Court to –

includes the provision of attendant care services, whether gratuitous or paid, the plan constitutes an acknowledgment of the reasonableness of those services and the need for the provision of them, and as well, their causal relationship to the motor vehicle accident ‑

prerequisites (1), (2) and (3). His Honour says:

It is an acknowledgment that in order to properly provide for the treatment and care needs of the participant, the attendant care services are an integral feature and should be provided for by the LCS Authority in fulfilment of its mandate.

So his Honour never backs away from the proposition that what he calls the “mandate” assumed by the Authority is to provide for “all” of the assessed treatment and care needs of the participant and we agree with that. Then his Honour takes a different tack, which the Court of Appeal did not take, his Honour says:

Where however, the LCS Authority does not pay for those services, and either does not have or else does not accept an obligation to pay –

this case –

then, within the meaning of s 130A of the MAC Act, the services when delivered prior to an assessment date –

that is an assessment of damages –

have not been “ . . . provided for . . . ” –

His Honour says:

However, since such services are a necessary part of the treatment and care needs of the participant, and since the LCS Authority is obliged to provide for those services in the future, the future attendant care services are excluded –

So what his Honour appears to be saying there is that if at the time of a judgment or settlement of a claim against a third party insurer one can identify areas where the Authority breached its statutory mandate by not paying for services provided to the participant, then those services should be regarded as not provided for and therefore not excluded by section 130A from the damages regime, and that is where we say his Honour erred. The Court of Appeal took a more direct approach and said, look, in section 130A the words “provided for” should be read as “paid for”, and that solves the problem, if they are not paid for they are not excluded.

We would draw attention next – and I am sorry I have taken so long to come to the text of section 130A but I am there now – we would draw attention to the text of section 130A, which is conveniently set out at appeal book page 198, again in Justice Garling’s judgment. The key words are that there is an exclusion in terms of an award of damages under the Motor Accident Compensation Act in respect of treatment and care needs within the meaning of section 6(2) “that are provided for or are to be provided for”.

Now, we say there is great significance in the fact that the words used are “are provided for” and when one looks across to page 199 one sees the words in section 6(1) “in providing for”. Now, this is the same legislative package using words that we contend must take the same meaning. When we read section 6(1) in the context that an assessment has been made of all of the care needs and that this is the method of putting it into effect, we cannot see that the words “in providing for” should be limited in section 6(1) in meaning to “in paying for”.

We say clearly enough what section 6(1) is saying is the Authority has assessed all of the care needs of the participant. Now the Authority has to provide for all of the care needs of the participant, subject only to the three prerequisites, two of which are set out immediately and the other is in the next subsection. Insofar as there are monetary expenses incurred the Authority has to pay for them.

Now, that is, we say, the only sensible reading of section 6(1). Presumably the section perceives that there may be some care needs that can be provided for without an expense being incurred and we know that that is right. Perhaps it will make it even clearer if I explain where we divert from the Authority’s reasons for reaching the same conclusion we do.

GAGELER J: And perhaps how your construction of section 130A, by reference to the language of the section, differs from theirs.

MR REWELL: Yes. I do not believe that our reading of the words “in providing for” or “provided for” to be more accurate, in section 130A, does differ from the Authority’s. I think we read those words in the same way. The nub of the Authority’s argument, as I understand it, is that the only way the Authority can provide for a person’s care needs is by paying for them. Let me put that another way to explain where, as I understand it, the Authority is coming from.

The Authority asserts, as I understand it, that someone like Mrs Thiering is to be treated as a pure volunteer. She has, it is asserted, volunteered to provide her services without charge and in doing so to meet part of her son’s care needs. The Authority says that once Mrs Thiering volunteers for that task it is no longer the responsibility or statutory mandate of the Authority to provide for that part of Mr Thiering’s care needs. That is my understanding of the argument.

KIEFEL J: Does that mean that its assessment of the care needs are altered by reference to what is voluntarily provided?

MR REWELL: I suppose the Authority’s perspective would be to say if you look at the care plan that mentions unpaid care and paid care our responsibility, our statutory mandate, our means – only means of providing for care is to pay for it and therefore that part which is identified in the plan as being unpaid care is excluded from our responsibility to provide for the participant’s care needs.

KIEFEL J: Presumably, reading section 23 with section 10 in the guidelines, prima facie the Authority would pay for what has been assessed to be a need – the services necessary to meet the need.

MR REWELL: Yes.

CRENNAN J: Because otherwise, insofar as you and the Authority are construing “provided for” under section 130A as dealt with, which is my understanding, it cannot sit with it, can it, with making some distinctions between what the Authority pays for and what they do not pay for?

MR REWELL: We say it cannot sit with it. We agree with your Honour and we say that the approach of the Authority in saying – what the Authority is trying to say is yes, we provide for care needs but the only way we can do that in practice is by paying. We say that is wrong both as a matter of fact and as a matter of principle. We say that those care plans that I took the Court to provided for all of Mr Thiering’s needs.

KIEFEL J: Do you say that it is to be implied in sections 23 and 10 or inferred from them that the Authority is to provide for the services necessary in accordance with what it assesses to be a care need and it provides for it by making the services available but not necessarily paying for it. Is that what it comes down to?

MR REWELL: Not necessarily by providing or delivering the services itself but by providing for the services. The point made earlier fits in here. One can provide for Mr Thiering’s care needs by saying “Here is the plan. The plan is we will provide 95 hours per week. Mrs Thiering will provide 40 hours per week.” In that way, all 135 hours are provided for. As was pointed out earlier, what if Mrs Thiering is sick? The Authority cannot say we were not required to provide for the hours that Mrs Thiering was supposed to do but cannot do. The Authority has to jump to it immediately and provide that care. We say it is care for which it already had provided for but now has to change the means of delivery because Mrs Thiering, who was the planned carer, becomes an unavailable carer.

GAGELER J: You have not actually taken us to the guidelines and where they fit within your argument. Could I ask you to just turn to section 6. Section 6 requires:

The Authority is to pay the reasonable expenses incurred . . . in providing for –

something that is the subject of the assessment. It is the words that follow that then get assessed under section 23, as I understand it.

MR REWELL: Yes.

GAGELER J: Now, the treatment and care needs of a participant appear to have two elements. One is just the physical element that is referred to in section 6(2) and the other is the qualitative or evaluative question of whether providing those physical things is reasonable and necessary in the circumstances. It appears from section 6(4) that that is the question to which the guidelines are, at least, primarily directed.

MR REWELL: Yes.

GAGELER J: So the rest of the question is this. When one goes to the guidelines, how do we interpret the statement in the guidelines that the Authority will not fund attendant care services that are provided by family or friends? Is that to be read as saying that treatment care needs that are in fact met in that way are not reasonable or necessary in the circumstances and feed that back into section 6(1) so that those treatment and care needs are not properly interpreted as part of what the Authority must provide for? Sorry, that is a very long question but you know where I was going with it.

MR REWELL: Your Honour’s question actually provides part of the answer.

GAGELER J: Yes.

MR REWELL: It would be, with respect to the Authority, absurd for the Authority to suggest that the unpaid care – as it is called – in the plans to which I have taken the Court is not reasonable and necessary. To the contrary, the plans identify the unpaid care as part of the reasonable and necessary care. There is a third element caused by the motor accident, as your Honours would appreciate, in some cases, questions of causation arise, particularly, for example, if a person had pre‑existing care needs or unrelated care needs.

So the purpose of the guidelines and section 6(4) is that the Authority can make guidelines of the kind to which your Honours refers, that is, that the Authority will not pay for care provided by a family member. That does not mean that such care is not reasonable and necessary or not caused by the accident. It is no more nor less than a method of dealing with how the care is to be provided for. If your Honour looks at the words ‑ ‑ ‑

GAGELER J: You will have to explain to me the statutory authority for the Authority to make such guidelines.

MR REWELL: Yes. The guidelines have the status of delegated legislation.

GAGELER J: But they can only have operative effect within the scope of the power conferred on the Authority by the Act. Where do we find the power for the Authority ‑ ‑ ‑

MR REWELL: Yes, your Honour.

GAGELER J: ‑ ‑ ‑ to limit the expenses for which it would pay?

MR REWELL: Your Honour, it is section 58 of the Lifetime Care legislation that empowers the Authority to make guidelines.

KIEFEL J: But section 10 has something to do with its scope, does it not?

MR REWELL: Section 10 has something to do with it as well. But the guidelines are specifically made under section 58. Justice Garling had a problem with one of the guidelines because it contradicted, in his Honour’s opinion, and correctly, the responsibilities the Authority had under the legislation and therefore his Honour struck it down because it went beyond the power conferred in the Authority by the legislation. At page 211 of the appeal book one sees the guideline that your Honour is concerned by. The last part of the guideline:

The Authority will not fund a family member or friend to provide inactive sleepovers.”

was of particular concern to Justice Garling. But yes, the Authority – my learned friend – I may have a typographical error. It may be 28 which is in our materials. Section 28 of the
legislation provides that:

The LTCS Guidelines may make provision for or with respect to the assessment of treatment and care needs –

but I think I am correct in saying that it is 58 which provides the statutory power to make – thank you. Section 58 which is – I do not want to mislead the Court as to page numbers which I do not have.

KIEFEL J: So section 28 responds to section 23(3).

CRENNAN J: Yes.

KIEFEL J: And section 10 relates to who may be approved providers.

MR REWELL: Yes.

KIEFEL J: So going back to section 6(4), what is necessary are provided by the guidelines under section 28, that is the treatment and care needs are what would be necessary. Reasonable would relate to quantum, one would think, of the services, what is to be paid. I am not sure that, perhaps section 10’s provision relating to the guidelines might have something to do with reasonableness, I am not sure.

MR REWELL: My learned friend, Mr Walker, points out that section 32 of the Act allows for fees to be regulated by guidelines, but it still seems to me that the critical section with respect to guidelines is 58 which empowers the Authority, as I have said, to issue the guidelines.

KIEFEL J: That is the authorisation but you have to look for the scope of power as well.

MR REWELL: Yes.

GAGELER J: So section 58 takes you back to some other operative provision of the Act.

MR REWELL: Yes.

GAGELER J: What is the provision that allows the Authority to say not paying family or friend?

CRENNAN J: Do you go to 10(2)?

MR REWELL: We will just find that provision in a moment if we could.

KIEFEL J: That would seem to be the only provision really that could deal with it.

CRENNAN J: The chain of reasoning seems to be only approved carers and family members - there is a policy to discourage, but as understand it they can be approved, and to be approved they would have to, I dare say, be qualified in some way that is analogous with approved care providers.

MR REWELL: I believe that your Honour is correct in all of those propositions.

KIEFEL J: Or that there is no alternative in the particular circumstances to the provision of services by someone who is qualified.

MR REWELL: Yes. I think though that your Honour is correct in that it is, as a matter of policy, the participation of family members is not encouraged and 10(2) enables, or contemplates, that guidelines will require services to be provided only by approved providers and the Authority is not required to pay anyone else.

KEANE J: But you could have approved providers, could you not, who were organised by charitable organisations such as Caritas or ‑ ‑ ‑

MR REWELL: Yes.

KEANE J: So that, so far as the Authority is concerned approved providers are providing services for which it does not pay and so long as they were approved services are being provided in accordance with the Act.

MR REWELL: Yes. “Provided” is the important word in that analysis.

KEANE J: Even though no one is getting paid for it.

MR REWELL: Yes. We keep coming back to the distinction in section 6(1) between the words “expenses incurred” and the words “in providing for”. We contend that section 6(1) itself clearly contemplates a circumstance in which the care that the Authority must provide for may or may not be provided at a cost.

KEANE J: Yes. You would read it as “expenses incurred, if any”.

MR REWELL: Yes. But, to go back to your Honour’s example, let us assume that at the request of the participant, or for any other reason, a charitable organisation agrees to deliver some of the care. That would have to be included in the care plan and if for any reason that arrangement ceased the Authority would have to immediately step into the breach because it had to provide for all of those care needs. If it provided for them in a way that ceases to be effective then the responsibility falls straight and immediately back on the Authority.

That is the difference between the word “provided” and the words “provided for”. “Provided” means delivered, “provided for” means that the Authority had to make provision for all of the care needs of the participant and did so by whatever means. As we say in our reply, frankly, it is the Authority’s business how it provides for all of the care needs of a participant and at what cost, and presumably there is an incentive in one way for the Authority to provide for all of the care needs at less than maximum costs, because otherwise the levy will have to be adjusted to meet maximum costs, and no doubt it is the role of members of the Authority to ensure that the care needs of a participant, all of them, are provided for at what the Authority regards as a reasonable cost.

KEANE J: To the extent that it involves a payment, it is met by the Authority, not by the person who is receiving the services.

MR REWELL: Yes.

KEANE J: That is what it looks to me like 6(1) is about; 6(1) is about ensuring that the Authority pays anything that has to be paid by or on behalf of the person.

MR REWELL: Yes, but always within the framework, or what Justice Garling called the statutory mandate, that the Authority and no one else must provide for all of the care needs of the participant. We would put that as a non‑delegable responsibility. So, for example, the Authority cannot say, “All right, we have the responsibility for or to provide for all of Mr Thiering’s care needs but we have delegated part of that to Mrs Thiering and it is no longer our responsibility”. Well, that falls over the moment Mrs Thiering becomes ill. The error in that approach is apparent.

KIEFEL J: That might be giving effect to the assessment of what is necessary, but are not the words “expenses incurred” in section 6(1) important because that is what the Authority is to pay for? If there is no expense incurred for the provision of the services the Authority does not pay for it; that is how it must work.

MR REWELL: We agree with that, but that does not mean the Authority does not have to provide for the services. It means they do not have to pay ‑ ‑ ‑

KIEFEL J: No, they might be two different things. That is what you are saying.

MR REWELL: That is exactly what we are saying and it is exactly where we say the Court of Appeal went wrong.

BELL J: The statutory mandate of which you speak, you raised a little earlier Justice Garling at appeal book 203, paragraph 75 noted the absence of a provision specifically obliging the Authority to provide for. I think you may have flagged that you were going to explain where, on your submission, the obligation or statutory mandate arises. Is that in the provision of section 23 with 6(1)?

MR REWELL: Yes.

BELL J: Yes.

MR REWELL: In particular, when one reads 6(1) in the context of section 23 and its assessments in the words “in providing for”. So, basically, what section 6(1) says, we say in reasonably plain English, is that the Authority must accept the responsibility of “providing for such of the treatment and care needs of the participant as” satisfy the three prerequisites, and in the event that there is a cost, it must pay it. If there is no cost, well, there is nothing to pay. The words “in providing for” and then it goes on to refer to “treatment and care needs” that satisfy the three prerequisites, when read with 6(2) must mean in providing for all of the treatment and care needs of participants that meet the three pre‑requirements.

KEANE J: Section 26 does that, does it not? Section 26(1) says:

The Authority’s assessment of the treatment and care needs of a participant is final and binding for the purposes of this Act –

That has the effect, does it not, of saying that once the assessment under 23 has been performed it is binding, presumably upon the Authority, and that obliges the Authority to then provide all that treatment?

MR REWELL: To provide for all of that treatment and care.

KEANE J: Yes.

CRENNAN J: As in make provision for.

MR REWELL: As in make provision for.

GAGELER J: Well, does not the section say that all that the Authority has to do is pay the reasonable expenses, insert “if any”, incurred by or on behalf of a person in providing for?

MR REWELL: Yes.

GAGELER J: I just do not see why you read the Authority as having to provide for.

MR REWELL: The words “in providing for” relate only to the Authority. In section 6(1) one, with respect, cannot suggest anyone else to which or to whom the words “in providing for” can attach.

GAGELER J: Well, why not the person who incurs the expenses?

MR REWELL: But it is the treatment and care of that person that is being provided for. The words say that the Authority is to do something “in providing for”, so it is the Authority that must provide for and then there is no limitation after the words “in providing for” other than the three prerequisites already identified in section 23.

We say it is absolutely key to look at the words “the Authority” and then the words “in providing for” because they can only mean that it is the Authority that must provide for and the intervening words mean no more and no less than that the Authority must pick up expenses, if any, incurred in that process but one cannot, with respect, read into section 6(1) that there is any contemplation of anyone else providing for as distinct from providing that care.

The other example that comes from the third respondent’s submissions which I would suggest reinforces the proposition is it is suggested in the submissions that a participant in the scheme who has substantial means may wish to pay for his or her own care, presumably at a higher level than the scheme would be prepared to fund. There is no doubt that a person of means can if he or she wishes choose to do that, but it is the same situation as Mrs Thiering. If the person suddenly runs out of money or changes his or her mind, the Lifetime Care Authority must immediately fill the breach because, again, all it is doing by permitting, if I could use that word, the participant to pay for his or her own care is including that care in what it is providing for. It is not providing any longer that part of the care.

CRENNAN J: Would it still have to do a section 23 assessment in circumstances where a participant says, “Well, I want to organise my own doctor and I want to pay at a higher level”?

MR REWELL: We would say absolutely. Section 23(1) is mandatory.

KIEFEL J: Could I just take you back to Justice Gageler’s point about whether it is only the Authority who provides and your reliance on “in providing for” in section 6(1)? Could I take you section 10(2)? It says that:

If the LTCS Guidelines require services to be provided only by approved providers, the Authority is not required to pay any expenses incurred by or on behalf of a participant in the Scheme in providing the services concerned –

In providing the services concerned there seems to relate to the participant.

MR REWELL: Indeed, but can I respectfully draw your Honour’s attention to the very careful use of the word “provided” several times during that subsection – never the expression “provided for”.

KIEFEL J: Yes, but it does not say by the – “provided” there is only by the approved provider.

MR REWELL: Yes.

KIEFEL J: So the Authority has been given power to limit the persons who may provide services and it would follow who are to be paid for services. But my point is subsection (2) appears to contemplate not just that the Authority is making provision for services but that a participant might be organising them – organising their delivery.

MR REWELL: With respect, I differ from your Honour in one matter. Section 10(2) deals only with the obligation for payment, nothing else. All the subsection says is that if a guideline is made – and it has been made – that only approved providers are to be paid, then the Authority does not have to pay anyone else. But that has nothing to do with providing for the care. All that section is concerned with is who needs to be paid and who the Authority can say we will not pay – for example, Mrs Thiering.

So it comes back to the same point. It is probably easier if one substitutes for the word “provided” the word “delivered”. The difference will become more stark. If the guidelines require services to be delivered only by approved providers, the Authority is not required to pay any expenses incurred in delivering the services unless delivered by an approved person.

So that subsection has nothing to do with anything but payment. Obviously, payment is a critical aspect of the scheme but it does not undermine the responsibility of the scheme to provide for all the needs because that is what the assessment deals with. The assessment under section 23 has nothing to do with payment. It is an assessment of all of the care needs that meet the three prerequisites. Then we go back to section 6(1) which says, well, in providing for the care needs that meet the three prerequisites, the Authority must pick up the cost, if any. Section 10(2), we say, does nothing more than deal with the cost, if any, by saying that unless the providers – the deliverers of care services – are approved, there will be no cost to the Authority.

CRENNAN J: There is nothing in the Act, is there, that confines attendant care services to paid care services?

MR REWELL: Nothing, certainly not. If my learned friends were correct, there would be but there is not. The situation, in practice, is actually straightforward we say. The Authority has an obligation to provide for all of the care needs, so it must turn up at the door and say we are making an assessment of all of the care needs and here it is. Section 23 requires the Authority to give a copy of the assessment to the participant with a certificate as to what it concludes.

The Authority is then obliged to say “Well, we are here, ready, willing and able to send in paid carers to provide all of the care needs or provide for all of the care needs and to deliver the care for all of the care needs we have just assessed. Is that what you want?” Now, the participant obviously can say “No, I would rather my mother take care of me on Sunday” or overnight or whatever the case may be, in which case, the Authority is entitled to say “We cannot pay for that under our guidelines but if that is what you want to do, by all means, if you change your mind, if your mother gets sick, if anything befalls anyone, we will immediately fill the breach.”

GAGELER J: It cannot pay for it under the guidelines by reason of section 10(2). Is that right?

MR REWELL: That is right. Alternatively, if the participant says “Thank you for offering to provide care services for all the care I need but I would like to engage my own carer overnight” - or on Sundays or whatever - then the Authority can only say, “You are entitled to make that decision. Nothing changes about our responsibility so if that system falls over or if the carer you have hired becomes sick, we must fill the breach immediately and will”. All it means is that the Authority is making provision for always the same amount, the whole pie has to be made provision for but the Authority has flexibility as to how the care will be delivered, at the same time, never being able to delegate its responsibility to accommodate all of the care needs as and when required to do so.

I promised to say something about Griffiths v Kerkemeyer. As I said, section 128 of the Motor Accidents Compensation Act embodied with modifications and restrictions of the common law entitlement to damages of the kind identified by this Court in Griffiths v Kerkemeyer, we say that one must look at the mischief that section 128 seeks to address insofar as it can be identified and then see whether there is a basis for adopting the restrictive interpretation or construction that the Court of Appeal did, that is, “provided for” means paid for.

First, I think it can be said without debate, although Griffiths v Kerkemeyer has always been – there has always been debate about what underlies Griffiths v Kerkemeyer, and whatever underlies it could only ever be understood by lawyers, but I think it is fair to say that one basis is that the gratuitous care a person might receive who is injured by a tortfeasor’s negligence responds to a need, which the courts have found to be a compensable need, created by that negligence and therefore it is not unreasonable to measure the amount of compensation responding to the compensable need by reference to the care that is provided to meet the need, which probably was not a very simple way of putting it, but it is been held in this Court more than once that it is the need that is being compensated, and that is why the Griffiths v Kerkemeyer damages are recoverable by the injured person rather than by the person who provides the services.

Second, it is sometimes said that if there was no compensation for gratuitous care, if Griffiths v Kerkemeyer did not exist, a tortfeasor, or in a motor accident case more accurately, a tortfeasor’s insurance company, might receive an unjust benefit in the sense that a premium has been collected to pay damages for care, in the end part of the care is met without cost. Either or both of those explanations or mischiefs with which Griffiths v Kerkemeyer dealt with, we say, are accommodated by this legislation.

We say both the mischiefs addressed by section 128 were in fact removed, for participants only, by the Lifetime Care and Support Scheme. The need which was created by the negligence of the tortfeasor now becomes a need that the Lifetime Care and Support Authority must provide for. The so‑called benefit that the tortfeasor’s insurer might have unjustly had is no longer available to it because it had to forsake a part of its premium income in favour of the Lifetime Care levy. So one can understand that there is not any injustice created by the interpretation for which we contend because both of the underlying bases that might otherwise have justified damages for gratuitous care are in fact removed by the Lifetime Care scheme.

I think I may already have covered much of the argument as to why we say the judges below, with respect, went wrong. I would add only one thing in connection with Justice Garling, having, if I may respectfully say so, accurately distilled the appropriate principles of statutory construction and having accurately identified the purposes of this legislation or legislative package.

His Honour allowed himself to be distracted by section 54 of the Act, and I only want to refer to this briefly. There is no doubt, and the Court of Appeal found that his Honour misread section 54 which is a section that provides that in certain cases a tortfeasor or the tortfeasor’s insurer must indemnify the Lifetime Care scheme for all of the costs the scheme incurs for the victim of the tortfeasor’s negligence. His Honour did not notice that that applies only to interstate registered vehicles and unregistered vehicles, and one can easily see why section 54 is there, if you have not registered your vehicle you have not paid the levy, so why should you have the benefit of the scheme. If you have registered your vehicle in another State you have not paid the levy, so why should you have the benefit of the scheme.

Now, his Honour proceeded on the basis that compulsory third party insurers in New South Wales were ultimately required to indemnify the Authority for the whole cost of the scheme so that one way or the other, in the end, those insurers paid for the scheme. That could not, with respect to his Honour, be more wrong. The levy which derogated from the ability of the insurers to attract a premium pays for the scheme.

Now, the Court of Appeal was confident that that error did not affect his Honour’s subsequent analysis of the provisions but we are not so confident. It could scarcely not have affected it when his Honour had taken the view that one way or the other the third party insurers are paying for all of this. That is just not correct.

Can I move on to the nub of the Court of Appeal’s decision because we have a series of areas of disagreement with it. If the Court would turn to page 292 of the appeal book, I think it is fair to say that the nub of the Court of Appeal’s decision is in paragraphs 72, 73 and 74. Justice Hoeben had, up to that point, summarised, if I may say so very accurately, our position. His Honour in paragraph 72 then set out the position of the first and second respondents. The third respondent was not present at the appeal. His Honour said:

The contrary interpretation –

that is, Mr and Mrs Thiering’s interpretation -

is that s 130A of the MAC Act excludes recovery of damages under s 128 only to the extent that the participant’s needs “are provided for or are to be provided for: while in the Scheme.

Now, it is the next sentence that troubles us:

This means that for the exclusion to operate, the participant must be entitled to compensation for those needs under the Scheme.

The first difficulty is that the scheme cannot provide compensation for anything. The scheme either provides services – well, the scheme provides services, whether it be treatment or care. The scheme has nothing to do with compensation. I understand what his Honour is getting at and in fairness will come to it. What his Honour is concerned about is what might be called “double recovery”. In other words, the Lifetime Care scheme provides services and then the person claims damages for them and that cannot be permitted. We accept that. That does not answer the question that we are here to pose. His Honour continues:

Otherwise, what is apparently a provision to prevent the double recovery of damages, would have the effect of depriving the participant of compensation in certain circumstances. Explicit language would have to be used to achieve that result.

In our submissions, we speak of the principle, if it be a principle still remaining, that explicit language is required to remove common law rights, has these days taken on a different character and a weak one when it comes to motor accident cases.

One clear illustration of that is the reasons that the former Chief Justice of New South Wales, Justice Spigelman, in Harrison v Melhem, at the commencement of the judgment starting at paragraph 2. His Honour in some detail explains why that principle has little if any weight in this particular context. No one is disputing that where fundamental rights such as the right to freedom or the right to non‑invasion of property are concerned, it remains the case that explicit language is required to remove those rights.

But in the area of compensation for motor accidents and other torts, as the Chief Justice said, the interference by legislation with those rights is now so frequent that to assert that there is some form of principle which still requires explicit language to be used is perhaps no longer as powerful as it was, if it has any power at all. In the same case, Justice Basten had more to say about the same situation. It begins at paragraph 209 of the judgment. His Honour at first identifies the continuance of the principle so far as fundamental rights are concerned. Then his Honour says at paragraph 217:

Not all rights which arise under the general law fall into that area of discourse. The right of one citizen to obtain compensation from another for an injury suffered by the negligence of the other is significantly removed from a right to remain at liberty –

and so forth. What his Honour is getting at there is what the Chief Justice also said, that any such inference these days is weak. We point out in our submissions that Justice McHugh said the same thing in Gifford and we have extracted the relevant part. So that is paragraph 72. Justice Hoeben goes on to say:

The submission –

and he is speaking of the submission of Mr and Mrs Thiering –

proceeds that for the reasons already indicated, if the participant is not liable to pay a family member or friend for the attendant care services, there are no relevant expenses under the Scheme to be reimbursed –

correct. But then his Honour says:

The needs fulfilled by the friend or family member are thus not ones “provided for under the Scheme” –

We respectfully submit that that is a non sequitur for the reasons I have gone into and will not repeat. His Honour concludes that they are not excluded. What his Honour has done there is to equate services for which payment has been made with services provided for and to exclude from services provided for services for which no payment has been. That is where the error is, we say. His Honour frankly says in the next sentence:

This would require that the words “are provided for” or “are to be provided for” as used in s 130A be given the meaning “are paid for or are to be paid for”.

And I think, or I hope that I have already explained at some length why we say that the two are completely distinct. That, in a nutshell, is where we say the Court of Appeal erred. I explained at the very outset of these submissions the various bases on which we say that error evidences itself. The other remark with which I will deal briefly is in paragraph 74. His Honour says that:

Such an interpretation –

that is the restricted meaning of the words “provided for” –

fits more easily with a provision to prevent double recovery of damages.

We, frankly, do not see why that is the case. Both interpretations fit within an exclusion of double recovery. His Honour then says:

It also fits more easily with a provision which is specifically referring to “damages”, i.e. a monetary amount.

Section 130A could not refer to anything else but damages because it is only with the award of damages that the Motor Accidents Compensation Act and in particular that part of the Act is concerned, so we say that there is no significance at all to be drawn from the use of the word “damages” in section 130A and that it certainly does not provide any colour or character to the words “provided for”. Unless the Court has any further question of me, those are our submissions.

CRENNAN J: Thank you.

MR REWELL: Thank you, your Honour.

CRENNAN J: Mr Lloyd.

MR LLOYD: The central question in this matter turns on the correctness of the answer to question 5 by Justice Garling, upheld by the Court of Appeal. That turns almost entirely upon the proper construction of section 130A. I go to that provision now which is, as my friend indicated, conveniently located on page 198, convenient because it has section 6 on the opposing page.

I should indicate that some things that my friend, Mr Rewell, said about my client’s position is not accurate. Obviously, our writing was not as clear as it should be. I will try and be clearer in stating what the Authority’s position is orally. We say that section 130A has three key elements. The first element is as to the nature of its principal effect and that is it provides that:

No damages may be awarded to a person –

in a particular category –

for economic loss in respect of [that person’s] treatment and care needs.

The second aspect is that it identifies the particular category of persons who are covered by it and that is in the words:

a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act –

and that is to say a person who by reason of being a participant is entitled to make claims on a specific fund which is maintained for the benefit of such persons. The third element of section 130A is that it is not a comprehensive limitation on the awarding of damages:

for economic loss in respect of the treatment and care needs –

It is only when two further criteria are met. The first criteria is that it must –

relate to the motor accident injury in respect of which the person is a participant in that Scheme –

and so that fairly self‑evidently means that if a person was involved in more than one accident they would be still able to get all their medical needs and including Griffiths v Kerkemeyer damages in respect of the other accidents which did not put them on to the scheme. The second limb, so that to pass that out one has after the identification of the needs, which is the “treatment and care needs” of the applicant, it is that, and to the first limb is “that relate to the motor accident injury” and in the second limb is “that are” so it is the needs “that are provided for or are to be provided for while the person is a participant in that Scheme”.

What we say this does, it is a temporal constraint so that prior to the person being a participant in the scheme they are able to make claims against the insurer. It is only from the point when they become a participant of the scheme. Now, we say there is nothing in this section that says that it is, as the appellants would have it, “provided for” means provided for by the Authority. There is no reason to read “provided for” in that way.

CRENNAN J: Is it limited to expenses as distinct from the award of damages for the value of attendant care services, the Griffiths v Kerkemeyer analysis?

MR LLOYD: No, we say “provided for” means the same – and to this extent we agree with the appellant – that “provided for” means the same thing as “providing for” in section 6, but we differ from them as to what that means. They say that we provide for it when we do a care plan and make provision for it, but we say that when one reads 6(1) it is palpably clear that the “in providing for” flows on from the “reasonable expenses incurred”. So it is the “reasonable expenses incurred” then there is a break because of the identification of who incurs the expenses, but it is incurred “in providing for such . . . needs”.

Now, we say that that – how does one provide for needs? One does things to meet and satisfy the needs that the person has. Now, I am not saying that that is not broad enough to include paying someone to do things, but it certainly of itself includes the doing of the things. So I think to answer ‑ ‑ ‑

CRENNAN J: As well as paying for the doing of the things.

MR LLOYD: As well as paying for the doing of things. So to the extent, to go back to section 130A, what we are saying is, to the extent that anyone has done anything to satisfy the needs of a person to which 130A applies, they cannot go to the insurer. So our position is actually, we say, more favourable for the insurer than the insurer’s position because they say everything has to be provided for by us and so therefore catches everything but their construction turns upon the Court accepting that everything has to be provided for by my client. If they are wrong about that, then on their construction, if it is not provided for by my client, then they have to pay it.

We say that is wrong, that it just means it is natural language. Has somebody done something during that period? There is a period identified. While the person is a participant then in respect of anything done to meet needs of that description, that is no longer to be paid for by an insurer and that in a sense is the beginning and the end of the construction question but because it sort of begs the question well who does do things, we say that these needs can be provided for in any number of ways. One way is that service providers can do services that meet the needs. That is one way. My client can pay those service providers. That in a sense is also providing for the needs. Another way is for a family member to do the things that meet the needs. All of that ‑ ‑ ‑

CRENNAN J: Do you accept that the services that the mother has provided fall within the definition of attendant care services, both in section 3 and section 6(2)(f) and (g)?

MR LLOYD: Yes.

GAGELER J: If you look at the concluding words of section 130A:

and that are provided for or are to be provided for while the person is a participant in that Scheme -

does that pick up the concluding words of section 6, that is ‑

as are reasonable and necessary in the circumstances.

MR LLOYD: Yes, it does.

GAGELER J: And with it, any attendant limitation on those words that might be a consequence of the guidelines?

MR LLOYD: That is so. Having said that, we do not apprehend that a person would be able to get under the MAC Act anything beyond what is reasonable and necessary in the circumstances so in answering the question I do not want to give your Honour the suggestion that I am suggesting that there is something else out there.

CRENNAN J: So you are not suggesting that a participant can opt out?

MR LLOYD: Your Honour’s question raises a number of issues.

CRENNAN J: Well, not accepting.

MR LLOYD: A participant can opt out in the sense of - they can say we do not want your service providers. We will do it ourselves. They can certainly do that. We have no power under the Act to force them to have our service providers so to that extent they can opt out and if they do ‑ ‑ ‑

CRENNAN J: But what about “We do not want your services, we would prefer to approach the court in relation to damages” - including damages for the value of gratuitous services?

MR LLOYD: They cannot opt out in that sense, if that is what your Honour is asking. No. Under section 8, as my friend has indicated, it is a compulsory scheme to the extent that the insurer has the capacity to enlist someone on the scheme and what the insurer gets from that, we say, is the benefit of section 130A. That is why they do it because then they do not have to pay everything that falls within section 6(2) and that was the intention. We quite clearly say that it is clear that that is what it does. Where we depart from the appellant is we say it is not right to say that “provided for” means provided for by the Authority. That is their first proposition and their second proposition is “and the Authority has to provide for everything”.

Those two propositions are not in section 130A and they are unnecessary for the analysis. The simpler analysis is “provided for” means its normal meaning and it is in respect of needs. How do you provide for needs? You do things that satisfy or ameliorate the needs, and so what this is simply saying is from the point in time when a participant is on the scheme the insurer has to pay nothing in respect of anything done by anyone to ameliorate those kind of needs.

KIEFEL J: So the authority determines what is necessary in terms of care needs by reference to the guidelines and then the person, or someone on their behalf who is a participant in the scheme, can go and obtain the services necessary to meet that need, and as long as the person providing the services is an approved provider, the Authority meets the payment, is that correct? Is that how it works?

MR LLOYD: Not entirely, but substantially. The notion about section 10 is that I think at the time of this incident the guidelines have changed now, but at the time of this incident there were no guidelines under section 10(2) or section 10(1) providing limiting payment to approved providers, at least not in respect of attendant care services. So to that extent, it is not correct to say that that is so, but there was the power to do that and subsequently there are now guidelines that say that. So to the extent that my friend said there were guidelines, that is not right, and not in our view, but there are now guidelines that do now allow my client to specify approved providers of services.

CRENNAN J: Is there a need for you to provide us with the relevant guidelines? Were you planning to do that?

MR LLOYD: Well, I was not planning to and they were not applicable at the time, so we say it does not ‑ ‑ ‑

CRENNAN J: Very well.

MR LLOYD: There are some ‑ ‑ ‑

GAGELER J: There are guidelines in the appeal book, are they just irrelevant?

MR LLOYD: Yes, and perhaps I might answer one of the questions that came from the Court during my friend’s submissions. At page 156 there is a set of guidelines, and there was a question as to what is the rationale for my client’s policy of not favouring the provision of family members as care‑providers, and to a certain extent that is explained in paragraph 3.1 on page 156.

But ultimately, and perhaps more broadly, my client’s position is that – and I should say, those principles are developed with the – so I am instructed – so‑called disability sector, and it is seen as being beneficial that family members are not financially dependent in relation to providing this kind of care. So to that extent they can provide it if they choose to, but if they choose not to my client will then provide the needs which it has identified as needing to be done.

CRENNAN J: Just on that set of guidelines, looking at page 154 at about line 19, there is a statement that “Attendant care services are paid services”. Attendant care services are not confined to paid services, are they?

MR LLOYD: In relation to the guidelines they are dealing with the services that my client will pay for.

CRENNAN J: Is what is intended to convey is that attendant care services include paid services?

MR LLOYD: Perhaps - if it is understood in this way, that the guidelines are indicating what my client’s policy is in respect of when it will pay for attendant care services. That is not to say that somebody cannot do things which fall within the definition of attendant care services and not be paid for outside of what my client will pay for and, obviously, to that extent, that is what Mrs Thiering has done. She is somebody who is providing attendant care services outside of what my client will pay for, in the sense that she is not somebody who my client thinks is appropriate to do those services or to pay to do those services. But Mr Thiering and Mrs Thiering are at liberty and under the Act intended to be at liberty to for themselves decide, in Mr Thiering’s case, does he want his mother to do it rather than somebody who we will pay to do it and in Mrs Thiering’s case whether she wants to do it for free. They are free to do that.

My client has made it clear that it will and there was a suggestion put earlier that somehow my client is trying to avoid its obligations to pay. That is completely baseless. There is a letter in the appeal book on page 263 which shows that my client stands ready, at any time, when either Mr Thiering’s mother no longer wants to provide the services she is providing or if Mr Thiering does not want her to provide them. My client in paragraph 2 of that letter will pay people to do those services but they are free to not use my client.

CRENNAN J: What is the rationale for the exclusion of family members in the circumstance that it would be commonly thought that family members can relax more when there is not a stranger to the family in the house? I just do not quite understand the rationale.

MR LLOYD: The thinking is that the best practice is that family members should be allowed to continue on their relationships as family members, not in a situation where a kind of financial dependency arises from people providing services to their other family members.

CRENNAN J: It is a sort of managerial point, is it, that if attendant care services are provided they must be regulated. Is that the point?

MR LLOYD: It is not that they must be regulated but that it is in the best interests of the person to have somebody who is fully equipped and fully trained to do it. If they want somebody who is not fully equipped and fully trained to do it then they can choose that and they are entitled to choose that but my client will not see that as a reasonable expense because it will pay for somebody who is a trained person to do it.

If I can indicate this, my client is quite content for – let us say, it has a contract with a care provider, if a family member wants to become employed by the care provider so that they are properly insured, properly trained, that has happened, I am instructed, and that is seen as appropriate because then there is somebody there to ensure that they are doing the right things and meeting standards whereas if it is not done that way, my client believes that it is not in the best interests of people in the scheme to have this financial interdependency whereby their parents or spouses or children become financially dependent on looking after them.

CRENNAN J: What if the parent is happy to undergo training but does not wish to be an employee? That is not approved by your client? In other words, they have satisfied the regulatory requirement, happy to undergo training.

MR LLOYD: Well, there would be further questions about having insurance and things. My client does not have a carte blanche rule against family people, as your Honour, I think, indicated this morning. There was one policy which was obviously strictly adhered to at the time that the decisions were made, which Justice Garling held to be unlawful, which was the policy to not have family members do inactive sleepovers, and that has now changed. That was held to be unlawful and the policy in respect of that has now changed.

KIEFEL J: Could I just clarify with you your position in relation to the provision of services that have been assessed as necessary to meet a need? Is it your position that the Authority does not have a statutory obligation to provide services once it has made the assessment?

MR LLOYD: Your Honour, I put it that way. My submission is that my client has a statutory obligation, which is the one specified in section 6, which is:

to pay the reasonable expenses incurred . . . in providing for such ‑ ‑ ‑

KIEFEL J: But what is the answer to my question?

MR LLOYD: It does not have an obligation itself to provide for them. It has an obligation ‑ ‑ ‑

KIEFEL J: The fact that it may in practice do it is not necessarily responding to a statutory obligation. Is that the case?

MR LLOYD: That is so, and that is clearly the position under the Act, because under section 10(2), 10(1) and 10(2), there is a capacity which has now been engaged by my client to approve service providers and it says in section 10(2) that it is precluded from – it is not required to pay in respect of ‑ ‑ ‑

KIEFEL J: So it controls who may provide the services by the guideline power to approved providers?

MR LLOYD: No, it controls who is obliged to pay because it is not obliged to provide any services. It is obliged to pay for services that are provided.

KIEFEL J: So the participant in the scheme could obtain services and as long as they are approved providers the Authority will pay them. Is that how it works?

MR LLOYD: Well, they probably would be bound to pay if the person was providing for an approved need, so it has been assessed and it is an assessed need and it is by an approved provider, then the Authority is bound to pay. That is what section 6(1) does. The point that I was seeking to make is that under section 10(2) it says that the Authority is not required to pay, but that has a further significance because it is connected to section 48 which relates to the fund, and under subsection (3):

The following is to be paid from the Fund:
(a)all payments required to be made by the Authority under Part 2 -

So the significance of section 10(2) is that if a guideline is made that says that only approved service providers should be used, that means my client is not required to pay for it and, indeed, by operation of section 48(3) cannot even access the funds to pay for it. That shows, we say, quite clearly, that the Act does not envisage that my client will provide all the services because if somebody does not want an approved service provider, they are free to do it themselves or to arrange somebody else who they would prefer to do it.

That is, ultimately, one of the points we make as to why your Honour should reject the motion that “providing for” in section 130A mean, as I think my friend put it, one looks at section 6 and section 23 and together – one somehow reads them together, to say that my client is bound to provide for everything and we provide for everything by having a care plan. We say, well, we do not have to provide for everything. If we nominate approved providers and they do not want someone, then we literally do not have to provide that, so that cannot be right. We also say that another reason ‑ ‑ ‑

CRENNAN J: How does that bear on the exclusion of double recovery idea? You are with the appellant in relation to that aspect of the construction of section 130A, are you not?

MR LLOYD: Well, as your Honours will see from my outline, I have a point towards the end which is to say we say there is false dichotomy posited by the first and second respondents between there being a choice between is section 130A about avoiding double recovery or, alternatively, is it about extinguishing entitlements. We say, undoubtedly, it avoids double recovery in many instances.

Perhaps I should in answering that question say, if one imagines section 130A was not there and one just had the normal principles of common law damages, but there was a Lifetime Care Authority that was going to pay for everything, the person even without 130A would come up and say, “I should not have to pay for all the medical cares. He has not suffered a loss because he is on the scheme now and he has got everything”. So even without 130A it would do it. Section 130A is to, in effect, clarify that you do not get to have all your medical costs paid for by the insurer and/or your medical costs paid for by the Lifetime Care Authority.

So to that extent it certainly has a function of avoiding double recovery. But also, we say, insofar as Griffiths v Kerkemeyer was responding to this concern, the concern was – or at least a concern which led to it was the possibility that if damages are not given, including into the future, so that a victim of a tort can themselves afford attendant care services going forward, if the person who has been providing free care stops, they will be left in a hole where they will not have enough money. So, Griffiths v Kerkemeyer responded to that by saying, “It is really your loss, it is your need. You get all of that. If someone wants to give you care for free, well, that is good for you, but that is that”.

This scheme does something different. It says, well, henceforth the Lifetime Care Authority will make arrangements to cover all the reasonable and necessary needs in the circumstances, and if somebody wants to provide free care, they can, and you can do it as much as you want. If you do not want to do it any more, then the Lifetime Care Authority will pay for an approved person or a professional person to do that. So it meets the need of the common law in a different way. Now, we say it is not helpful to create this dichotomy between is it about double recovery or is it about extinguishing rights? It is about meeting kind of a public acknowledged need in a different statutory way.

BELL J: Just coming back to the notion of the statutory mandate that Justice Garling referred to, the difference between you and Mr Rewell is the sole statutory mandate is found in 6(1) on your submission, section 23 and the scheme for review of assessments and the like establishes what is the reasonable care need but the mandate is the obligation to pay under 6(1)?

MR LLOYD: That is so. In essence, we say section 23 is an obligation on my client, so to that extent it is a mandate; it has to do an assessment. It has to identify what it thinks the care needs are and it has the consequence ‑ ‑ ‑

BELL J: That mechanism serves solely to enable your client to determine when it is required to pay expenses in the event expenses are incurred.

MR LLOYD: It does do that, but it does more than that in that it is final and binding – as I think Justice Keane pointed out – under section 26, and final and binding for the purposes of the Act. So if my client had identified a care need and my client somehow did not pay, then someone could come to a court and say, well, this is a care need, I have got a certificate, or that is a need I have, you are not paying for it, and so it does more than just be what my client – work out what my client has to do, it determines what my client is bound to do and ‑ ‑ ‑

BELL J: Bound to pay for on your analysis.

MR LLOYD: Bound to pay for; sorry, yes.

GAGELER J: Mr Lloyd, you took us to the guidelines at page 357 of the appeal book some time earlier, are they the relevant guidelines? Are they the guidelines applicable at the relevant time?

MR LLOYD: Well, I think there are multiple guidelines that varied over time, so you ask us, are they the guidelines, because there is an assessment done every, I think, year or so, or six months, then there is different guidelines for each assessment.

GAGELER J: Well, this is not an appeal in a strict sense from the decision of the Court of Appeal, so we are looking at a point in time. I think you said at the relevant time section 10(2) was not engaged by the guidelines.

MR LLOYD: That is so.

GAGELER J: If it is relevant for present purposes to be looking at the guidelines at page 357, what is the statutory anchor for the provision of the guidelines at about line 48 that says, “The Authority will not fund attendant care services that are provided by family or friends”?

MR LLOYD: Can I ask your Honour the page number? I think your Honour is not using the AB page number.

GAGELER J: I am sorry, it is – well, there are numbers everywhere.

CRENNAN J: Page 157.

GAGELER J: Page 157.

MR LLOYD: Page 157, sorry, and at line which?

GAGELER J: Line 48 or so. It need not be that particular sentence, but really what is the – if the guidelines say, as I understand them to say, we will not pay for gratuitously provided attendant care services, we will not meet that ‑ ‑ ‑

MR LLOYD: Yes, I think I understand.

GAGELER J: Where do we find the provision of the Act that allows for guidelines to so provide and what is its effect?

MR LLOYD: I think in part it is section 28:

The LTCS Guidelines may make provision for or with respect to the assessment of the treatment and care needs of a participant –

GAGELER J: Mr Lloyd, really why I am asking, there is no trick in this, I am just trying to establish whether it goes to the assessment of what treatment and care needs are reasonable and necessary in the circumstances for the purposes of section 6(4). It is a 6(4) assessment, is it?

MR LLOYD: It is a 6(4) assessment, yes, your Honour.

GAGELER J: So at the time, just spelling this out, the assessment is made under section 23 which is binding under section 26 for the purposes of section 6(1) that a certain category of treatment and care is not reasonable and necessary in the circumstances. Is that the way we should characterise what happened?

MR LLOYD: I think there are two things, your Honour. The first thing is that there is an identification of what the care needs are, and insofar as my friend took the Court to the assessment referred to both the unpaid and the paid needs. So there is a recognition that what the mother was doing was a need, which is why my client would, if she did not do it, pay for somebody to do it.

GAGELER J: But was there a further assessment in accordance with the guidelines that what was provided by the mother was not reasonable and necessary in the circumstances, within the meaning of section 6(1)?

MR LLOYD: No, because it is accepted that if she does not provide it, someone will provide it because it is reasonable and necessary for that work to be done. This is more of a reflection of a policy of my client to not want to pay family members because it is perceived to be not in the best interests of the participants.

GAGELER J: So it is not anchored in section 6(4)?

MR LLOYD: Not in that way. As far as I am aware, there is no finding that the work that the mother is doing is in respect of a need that is not reasonable and necessary in the circumstances. Quite the contrary, there is an acceptance that it is a need that is reasonable and necessary in the circumstances, but that my client does not think she is the appropriate person to do it for various reasons.

KIEFEL J: And I am sorry, where do we find that expression of policy in the guidelines as operative for the time that we are looking at? Where is it?

MR LLOYD: The expression of policy about family members? Well, in relation to the period from 28 September 2007, it is on page 156 to 157. Then on page 158, there is guidelines from 1 October 2009 and the relevant portion of it is on page 164 to 166. Then from 8 October 2010 it starts at 167, the relevant portion is at page 172 to 174.

GAGELER J: I am really sorry to keep asking this question but if it is not section 6(4) and it is not section 10(2), what is the statutory basis?

MR LLOYD: For not wanting to pay the mother?

GAGELER J: Not wanting, for having a guideline that says “we won’t”.

MR LLOYD: Perhaps it is not a statutory basis for that. It is a reflection of the policy of the Authority.

CRENNAN J: But how does it fit with approving the need for the mother’s care and making it part of the participant’s care plan, all of which are done as I would it understand it under – or at least starting with section 23. Where in the Act do you go from that, approving the mother’s care - she is part of the care plan - to being empowered to have a policy not to pay for it?

MR LLOYD: In terms of section 23 there is identification for the needs and that is, in effect, not with respect to whoever provides for the needs, it is just an identification of what needs to be done so that ‑ ‑ ‑

CRENNAN J: Is that an approval in terms of the guidelines of the care because if it is in the care plan it is recognised, I think you said, as reasonable and necessary?

MR LLOYD: If it is in the assessment under section 23 it is then recognised as reasonable and necessary, yes. And so that is done. In this case my client, as I have indicated, had the policy of not paying for family members. As I understand it, Mrs Thiering was not paid for by Mr Thiering and there was no contract between them at any relevant point in time and as a result of which the way my client says it is not obliged to pay under section 6(1) is because there are no expenses incurred.

I accept, and perhaps maybe this what your Honour Justice Gageler and perhaps the whole Bench is getting at, is if there was a contract between Mr Thiering and Mrs Thiering and so expenses were in fact being incurred and my client recognised what Mrs Thiering was doing was reasonable and necessary that would probably engage section 6(1).

KIEFEL J: Subject to the approved care provider’s guidelines.

MR LLOYD: But if that is not engaged because I think at that point in time there was no requirement in respect of approved care provided.

KIEFEL J: There was not, I see. Yes.

MR LLOYD: It is not this appeal but our answer to the next bit of the case is there was not a contract, we never asked you to do it so there is no quantum meruit and it is not an expense incurred, and now since what has happened perhaps in this case and other cases ‑ ‑ ‑

CRENNAN J: What about it being a need that some might say could not go unmet?

MR LLOYD: I am sorry, your Honour?

CRENNAN J: What about it being a need which could not go unmet? That, in other words, was a necessary part of the treatment needs.

MR LLOYD: Yes, and as I have indicated on the letter of page 263, my client has stood willing to make provision for those needs. My client, however, is not willing to pay for the mother to do it and has not been willing, and she has been willing to do it – at least I put it as she is a pure volunteer. I mean, we do not have to put it as she is a pure volunteer. In the circumstances where my client has said it is not willing to pay her and she is still doing it, she is doing it. Mr Thiering wants her to do it, so my client does not send people to knock on the door to do work that the mother is in fact already doing, they do not want those people so my client does not send those people. My client would send those people if Mrs Thiering did not want to do it or if Mr Thiering wanted someone else to do it.

GAGELER J: But the assessment is that the provision by Mrs Thiering of the services is reasonable and necessary in the circumstances.

MR LLOYD: The assessment is that the work that she is doing, or at least insofar as it is included in the assessment, the bits that are called “unpaid work” in the assessments is recognised as being reasonable and necessary in the circumstances. So I think I was still only up to about point 1 or point 2 on my list, but I think I have done a few others. I think I got to the point of saying that we say the Court should not read in the words by the Authority in section 130A. We say, in relation to the words “in providing for” in section 6(1), which is on page 199 of the book, it is clear that that is not referring to the process of undertaking a care plan or a care assessment because it would make no sense.

The Authority is to pay the reasonable expenses incurred by or on behalf of a person while a participant in the Scheme in providing for –

that is, in making a care plan for –

the needs.

It is my client who makes the care plan. We are not going to pay ourselves to make the care plan. This is about us paying other people who are doing things. That is what “in providing for” is talking about, us paying other people who are doing things. We say “provided for” in section 130A has exactly the same meaning as that.

Then another add on to section 130A, apart from concerning the idea of the Authority, Justice Hoeben, in a passage to which the Court was taken already on page 293, the second line of page 293, the Court will see his Honour apparently quoting something:

“provided for under the Scheme” –

There is nothing, there is nowhere that says provided for under the scheme. It does not say that and we say that is where his Honour goes wrong. His Honour gets that in paragraph 72, as my friend Mr Rewell has pointed out, where he in effect equates the motion that while in the scheme means provided for under the scheme, but for reasons I have already indicated we say, with respect, that that is wrong and it does not have that meaning.

Then there is the third construction which is also embraced by Justice Hoeben and the first and second respondents, which is that “provided for” means something like paid for and we say in that respect we are happy to adopt Mr Rewell’s analysis that it cannot mean paid for. That does not make any sense in section 6(1) at all, so unless you make the very similar expression in section 130A means something different, which we say your Honours should not do.

So the gist of it then is that 130A, read in its normal, natural meaning, is to exclude from an obligation of an insurer, under the MAC Act, paying for, or paying damages in respect of anything done by anyone that is provided for or to be provided for – which deals with the future – in respect of a participant’s treatment and care needs. I think I have covered most of what I want to say on that topic.

I have already, I think, addressed why we say the Act does not have a mandate for us as to why we have to provide for everything in the sense that my friend, Mr Rewell, says. We accept that we have to pay for everything that we have assessed that falls within section 6(1) that is a reasonable expense incurred by the participant or someone on the participant’s behalf, but not in the language that was repeatedly advanced by the appellant.

KEANE J: Do you accept that you have an obligation to pay for all expenses incurred in respect of the services that are provided under or pursuant to the assessment under section 23?

MR LLOYD: No. If, for example, were the…..expenses incurred, if they are expenses incurred in providing for them and they are reasonable – so it is reasonable expenses incurred, then, yes, we have to pay the reasonable expenses incurred in providing for those treatments, yes.

CRENNAN J: But in the final analysis, you are contending, are you not, that 6(2)(f) and (g) include what the mother has done but that 6(1) does not cover those services when provided gratuitously? Is that how it works?

MR LLOYD: We say 6(2) is simply defining an expression and we accept that what the mother has done falls within that expression so, yes, I think, is the answer to that much of the question.

CRENNAN J: You have accepted, I think, that what she has done can be approved as part of the treatment plan under section 23?

MR LLOYD: Yes, perhaps I should indicate this. There is no such thing as a treatment plan under section 23 ‑ ‑ ‑

CRENNAN J: A care plan.

MR LLOYD: Or a care plan. There is an assessment under section 23 of what the needs are. A care plan is something my client administratively does to make it all work but it is not something required by the Act. The Act requires my client to assess what needs are reasonable and necessary in the circumstances.

CRENNAN J: But you have accepted in that setting that what the mother does has been assessed as reasonable and necessary in the circumstances, I think in answer to Justice Gageler.

MR LLOYD: Yes, I do accept that.

CRENNAN J: But, the next step in the argument as I understand it, and tell me if I am wrong, is that 6(1) in its terms does not cover gratuitous attendant care services or domestic assistance, is that right? Is that right?

MR LLOYD: That is right. It does not in its terms cover in the same way. It does not have to be the mother. If the Commonwealth said, “We have this new National Disability Scheme and we are going to do all this stuff for free for disabled people” my client could say, “That’s good. Then we’ll get the Commonwealth to do that stuff at the Commonwealth’s expense” my client will not have to pay for that and then my client can lower the levy on New South Wales drivers or New South Wales car owners in any event.

So, yes, insofar as no one incurs it – I mean there might be a question, I suppose, as to whether or not that was an expense incurred by the Commonwealth and maybe the Commonwealth would come to us and say, “Well, we are providing it. That might have to be sorted out.” But, subject to that proviso – if a charitable organisation did it as well, if no one is incurring an expense then section 6(1) does not oblige my client to pay for it. I certainly embrace that proposition. I think then on my list I am now down to the fully funded issue and so I do not anticipate being much longer. I might be slightly longer than five minutes.

The appellant, as we apprehend it, seeks to support their submission by the notion that the scheme is fully funded. Can I first of all say, we agree that the scheme is designed to be fully funded and that it expressly says that and our submissions on that are at paragraphs 45 to 49. We also agree that the levy for the scheme was set on the premise that there was no liability to pay under section 6 for gratuitous services. So insofar as my client would have known that some people got gratuitous services, it would have set a levy on that assumption. We also accept what is perhaps implicit in the appellant’s submission that their premiums were probably in all likelihood set, we would say, properly on the assumption that they will not have to pay anything in this context because of section 130A and we agree that that is the correct result.

All that we do not agree with is that any of that helps your Honours to construe anything in the Act, because maybe the Act means something different and we have all set our levies wrong. That does not really help the construction of the Act. So that is our only point there.

I think, perhaps, coming back to something your Honour Justice Crennan asked me, the first respondents say in their submissions at paragraph 16, that we say that to pay expenses incurred in section 6 covers unpaid services. I am not sure why they think we say that but let me be very clear. We say the exact opposite of that. We say it does not cover unpaid services. But we do say that the notion of providing for in section 130A, because it has nothing to do with whether it is paid or not, it is just whether or not the services are done. We do say that falls within the notion.

The next issue I was going to touch was the double recovery point, but I think I have dealt with that. There is nothing particularly important about this next issue save that we say that the respondents in the two courts below are wrong and we do not want the High Court to give it the imprimatur of this Court when it is wrong.

It was said by Justice Garling, perhaps most clearly at page 213 to 214 in paragraphs 109 to 110 that section 7(3) has the effect that if somebody has been awarded damages in respect of future economic loss, the notion is that the person could become disqualified. So a person on the scheme could become disqualified because of that. We say that that is wrong.

Your Honours will see that - and I just note it for the transcript - it is referenced also at paragraphs 124, 143(k), 150 and it is quoted generally without disapproval by the Court of Appeal at paragraphs 50 to 52 and it is in the first and second respondent’s submissions at paragraph 19. We say that the notion of eligibility under the scheme which is referred to in section 7(3) pertains to the decision in section 9(1) which is you become a participant if the Authority is satisfied that you are eligible and then the Authority accepts the person under section 9(1).

We say that once you are accepted, as section 9(4) says, you are in for life. You never get out. If we made a mistake for putting you in, that does not matter, you are in. Now, that does not mean that we are supporting the notion of double recovery. The whole point of section 130A is if you are in the scheme, then when you are before the court hearing the damages claim, you say you cannot get those damages because of section 130A. It is not a reason to say well you would be kicked out the scheme. You are not going to be kicked out of the scheme but it is the reason why they should not have to pay anything.

KIEFEL J: Section 7(3) applies as a criterion before the decision is made. Once a decision is made it remains in force. Is that what you are saying? It is an eligibility ‑ ‑ ‑

MR LLOYD: Well, section 7(3) is a criteria for the decision in section 9 ‑ ‑ ‑

KIEFEL J: Yes, and once it is made, it remains.

MR LLOYD: Exactly. So to not be eligible any more has no ongoing significance. It does not result in someone being brought back. The only reason why I draw it to the Court’s attention, apart from the fact that we do not want it continued as a notion, is that it was important to Justice Garling’s notion that the first and second respondents could have Griffiths v Kerkemeyer damages up to the date of the decision and no longer so that is why he said it stops at the date of judgment because of section 7(3) because they would become disqualified.

On our view, the first and second respondents do not get them, for reasons I have already said, because they do not get them but if we are wrong about that we say Justice Garling and the Court of Appeal are still wrong and if they get them they should get them into the future, except for the fact the Act has changed, on the construction of this, that there is not a basis for saying that because you would be disqualified, therefore you cannot get damages going into the future.

CRENNAN J: Your relevant date for answering question 5 is the date of first entry into the scheme.

MR LLOYD: Sorry, for answering section 9?

CRENNAN J: Question 5 of Justice Garling, that is, it is not up to judgment or up to settlement. It is the date of the first participation in the scheme. That is the correct starting point.

MR LLOYD: Yes, that is so because, as we say, that is literally what section 130A says. Section 130A says:

while the person is a participant in that Scheme –

So as soon as you have become accepted as a participant in the scheme, then from that point on, you cannot get damages of this variety. But prior to, you can. So technically, I suppose, we would say that the suggested answer by the appellant, at least in their notice of appeal, is wrong because it does not recognise that on any view of section 130A someone could get Griffiths v Kerkemeyer damages prior to the person becoming the scheme, although perhaps to be fair to the appellants I am not sure that there were at this point any services done prior to this particular person becoming in the scheme, so it might not be significant.

CRENNAN J: You have gone a little over time, Mr Lloyd, but if you are about to finish – I do not wish to rush you at all.

MR LLOYD: Well, because I have said various things about what my client has said, and it is within the realms of possibility – sorry, what my client’s policy is - as it is not beyond the realms of possibility I have said something wrong, I might finish my last three very short points after lunch and correct anything I should not have said.

CRENNAN J: That is a convenient time then, thank you.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

CRENNAN J: Yes, Mr Lloyd.

MR LLOYD: Thank you, your Honour. I am happy to say that I do not need to withdraw anything that I said. I might just try one further better explanation of the rationale – although perhaps I should make this clear. For my client’s part, we say the rationale for my client’s preference against funding parents and any basis upon which that is in the guidelines is not a - is not a matter that is relevant for the answer to question 5 and whether it exceeded or not exceeded the guidelines cannot be relevant to the construction of section 130A.

Subject to that, the view that family members should not – or at least one reason against family members being funded to do this work is that it creates a distorting effect within the family. So if a son maybe might come a day when he wants somebody else to take care of his hygiene services is placed in a position that he then has to fire his mother, which is an unattractive situation, it creates a situation where family members or families can become dependent upon the income and that can create bad outcomes where if it is done in a different way then there is an incentive for people to be as independent as they can be. That is not to say these people, especially these people, will ever be completely independent, but at least there is an incentive for them to be as independent as possible, and I just did not want the Court to think that it is a spurious policy or a policy that is unsupported in the disability industry.

Apart from that I have only four matters to say. One relates to the first and second respondent’s submissions at paragraphs 34 and 35. In those submissions one might be apprehended to think that we are saying that by, as they put it, “allocating work” to Mrs Thiering that we had provided for Mr Thiering’s treatment and care needs. There is a quote there in 34 and also in 35 to paragraph 27 of our submissions.

In paragraph 27 of our submissions we were saying that is what the appellant’s argument is and in paragraph 28 of our submissions we say that argument is wrong. So I just want to clarify that we are not saying the things which are attributed to us in paragraphs 34 and 35. We do not say we allocate work to Mrs Thiering but we accept that we know she is going to do the work and we respond accordingly to the fact that she is going to do the work by not paying other people to do the work.

The third‑last factor is the appellants, I think in the court below and in the special leave application and today, have repeatedly asserted that there is an unfunded liability of $40 million. For my client’s part, that is a very contentious proposition and while we accept that if the decision of the Court of Appeal was upheld there would be some measure of unfunded liability we would say the Court should not adopt the $40 million number as if it is uncontroversial or has been proved in face of a challenge to that.

KIEFEL J: It is not really relevant to our purposes. It was relevant to special leave, was it not?

CRENNAN J: Special leave.

MR LLOYD: I accept - it is just that it has come back again and ‑ ‑ ‑

KIEFEL J: You do not want it appearing in the judgment, is that what you are saying?

MR LLOYD: That is what I am saying, your Honour. The penultimate matter is a matter that Mr Rewell asked me to bring to the Court’s attention. I am not sure the Court needs me to do this but let me say this. Section 35 of the Interpretation Act (NSW) provides that headings to chapters, parts, divisions and schedules are part of the Act but not headings to sections. That should be treated accordingly if your Honours were thinking not to do that.

CRENNAN J: I think that point was also made at the special leave application.

MR LLOYD: I think so. I was asked to again note that. Lastly, as it is mentioned in the submissions of the appellants and the first and second respondents, my client does not seek any order for costs and will bear its own costs in this matter.

CRENNAN J: Thank you. Thank you, Mr Lloyd.

MR LLOYD: May it please the Court.

CRENNAN J: Yes, Mr Walker.

MR WALKER: May it please your Honours. If your Honours permit, I will venture some particular responses to what my friends have said today as I move through the order of propositions in the outline. I hope, otherwise – of course, subject to your Honours – to stick more or less to that order. Section 130A and, in particular, the last phrase is naturally at the heart of everything and it would be silly for us not to acknowledge at the very outset that there is a textual argument against us. It is relatively easily stated and, with great respect, the written submissions for the Authority have put it and it has certain attractions. In particular, the word “while” with the – I will call it simple, temporal meaning that that conveys – conversely, the absence of phrases such as “by reason of” or “on account of” or “because of” being a participant.

However, in our submission, this is as obvious a scheme as could be come across; that is, a composite of provisions that happens to be in two statutes, albeit cognate statutes, to achieve a political purpose. There is at least as much probably more reason to be sensitive to a purposive approach in such a scheme as in an individual item of statutory provision.

CRENNAN J: Plenty was said about it in the – is recorded as being said about it in the extrinsic material.

MR WALKER: Quite so, and we do not suggest for a moment, however, and I do not think it is persisted in by the appellant – we do not suggest for a moment that you will find in the extrinsic material the answer to the particular problem thrown up. Not for the first time, one is struck when one sees a scheme, the parts of which display, among other things, undoubted redundancy – that is, repetition of elements – it may be that the rather familiar position is revealed here that not all the consequences or ramifications were in fact thought out.

So it is not matter of criticising the drafter so much as though there is a scheme it is not a perfect one. Nonetheless, we submit, for the reasons I am going to attempt to elaborate, that the statutory concept of treatment and care needs, a phrase used in section 130A with an immediate parenthetical reference off to the LCS Act as I will call it, “within the meaning of that Act”, is at the heart of the matter. In that phrase, although it is defined in a fashion to which I am about to come, in that phrase, the notion of need and assessment from time to time is critical. It is explicit in the scheme.

Now, your Honours have already been told a deal of common ground about the way in which the scheme operates, though words which might appear to be indicative of voluntariness are used such as eligibility for participation and the like, though in a provision to which I will come, the word cooperation is used, the truth is, to use the vernacular, persons like my client can be and are shanghaied into it, against their will, without their consent. Many, perhaps nearly all, are only too happy to have it because, in our submission, one of the purposes of the scheme, and that includes 7(3) of the LCS Act and 130A of the MAC Act, one of the purposes not yet touched on and addresses but which is obvious is to attend to the mischief of the once and for all rule, and that is the explanation in many senses, surely, for the way in which section 7(3) has been expressed.

With great respect, the answer our learned friend, Mr Lloyd, gave to our written submission on that point is to large degree accepted by us and I only have very small matters of detail. That is because under 130A, however 130A operates – that is, whoever is right at the Bar table here – it certainly precludes the award of a certain kind of damages and as soon as there is any such award, there has been an event of a kind contemplated by 7(3). To put it another way, 130A prevents the event occurring during participation, and hence 7(3) must, as my learned friend pointed out, be exhausted in its operation as discriminating between who may and may not be in the scheme must be exhausted upon first entry.

Now, before I leave the words of duration at the end of 130A, the phrase introduced by the word “while”, it is to be recalled that not everyone is in for life, there is an interim position, but it can only be once and you can only be made interim once and thereafter, as happened for my client, he was initially interim and then lifetime. But it is possible for there to be a case of interim and then out of the scheme and that gives some explanation for why the expression is phrased starting with the word “while” because it covers interim case. Section 130A will not be, if I could use the phrase, a “once and for all” bar for those who were interim and who ceased to be a participant.

CRENNAN J: What is the force of “past” in the first sentence in paragraph 3 of your outline? We have to be concerned, do we not, with the first date of entry into the scheme, that is the date of entry as an interim participant?

MR WALKER: Without any doubt. Can I try and explain? The claim, the availability for which we are contending here, among the several issues, only one of which is before this Court, that claim is for gratuitous care which has in fact been provided, that is to be in the past at the time of any judgment for it as ‑ ‑ ‑

CRENNAN J: Post the entry to the scheme.

MR WALKER: Well, it just means post – the claim need only say “post injury” and “on account of the injury” and to answer the need created by the defendant’s wrongdoing in the Griffiths v Kerkemeyer sense. It so happens that I think all of it will also be post entry into the scheme. That is a coincidence. It may be a fatal one for us if we are unsuccessful in this argument.

CRENNAN J: We were told that this morning, I think.

MR WALKER: Yes. If it is not all post, it is very largely post.

KIEFEL J: That is probably right because ‑ ‑ ‑

MR WALKER: He was a very early entry.

CRENNAN J: Yes.

KIEFEL J: Early entry into the scheme and he was in hospital for nearly a year ‑ ‑ ‑

CRENNAN J: Yes, that is right.

KIEFEL J: ‑ ‑ ‑ and so the care would have occurred after that time.

MR WALKER: Yes, and I can say this with – of my own personal knowledge. Everything in the papers about my client mother’s work postdates entry into the scheme insofar as it is describing a period of when something has been done or, in some of the documents, a period when it is expected something will be done.

CRENNAN J: Yes, thank you.

MR WALKER: So the case can and should be – our case can and should be approached on the basis that the whole of the claim for past care, past in the sense that it has been provided at the time when we seek Griffiths v Kerkemeyer damages for it, will have been provided by the mother, my client, to the son, my client, during his participation in the scheme.

Now, I think in the exchange with Justice Crennan, in particular, I have covered what I wanted to say about my proposition 2 and the first part of proposition 3. It is important to appreciate that a claim for future Griffiths v Kerkemeyer – that is, future at the time of judgment – will run into quite different circumstances from what obtain for the claim we wish to present. We do not wish to present such a claim. We do not ask for any determination in relation to its availability.

For what it is worth, in seeking to explain how this legislation operates we say it would be prevented because generically the need to which family and friends may respond gratuitously in the future – that is the future possibility in a future Griffiths v Kerkemeyer claim – generically that need will have been assessed by the provisions to which I am about to come and, thus, they will fall within the second of the two limbs, they will be to be provided while a participant in the scheme. It is for those reasons that we have discriminated between past and future in our paragraph 3 of the outline document. I hope that answers Justice Crennan’s question.

Can I go to what I call the definition provisions in relation to this critical phrase “treatment and care needs”? It is not simply as a first quick reading might have indicated to find in subsection 6(2). As I say, at a first reading one sees that its words are:

For the purposes of this Act, the treatment and care needs of a participant are –

and so that sounds as if that is where you are going to find the definition. It is clear, obviously, concluding from 130A itself that that is not the whole of the matter required to understand the meaning of treatment and care needs in order for it to operate within this Act and to have the effect, for example, it must have in 130A. For a start, it must relate to the accident in question. That is required, redundantly, not only by 130A but also by 6(1) and also by 23 to which I will be coming.

They must, in our submission, also be understood pursuant to the references in section 6(1) and section 6(4) to this concept of being reasonable and necessary in the circumstances. That is a qualitative element to the definition of those needs, treatment and care needs. They must be those which are reasonable and necessary in the circumstances and within the meaning of this Act, to adapt the phrase found in parentheses in 130A of the MAC Act, that is a necessary element of the definition.

We know that the guidelines may run into problems of validity depending up, from time to time, the form they take. In the appeal book alas you have only three iterations of one part, Part 8 of the guidelines, but we know that they may butt up against and even infringe limits of power under various heads which give the substantive power to make guidelines with legal effect. Subsection (4), for example, permits them to:

make provision for or with respect to determining which treatment and care needs of a participant in the Scheme are reasonable and necessary in the circumstances.

A question will arise as to whether this, by a combination of the assessment to which I am about to come and the guidelines, the assessment requiring to be in accordance with the guidelines, can produce a fictitious position, that is that the expression “reasonable and necessary in the circumstances” loses any real content and it is simply a question of what is produced by following the guidelines and producing a certificate.

I have referred to the assessment in that regard. It is to be recalled that the processes and stages set out in sections 23 to 26 produce a certificate. That is a certificate which it turns out, although those provisions will not have told you that, proceeds on the basis of assessments and what I am going to call reassessments. That comes from section 28 in a rather backhanded fashion. In section 28(2)(b) the guidelines may make provision for or with respect to:
the intervals at which such assessments are to be carried out –

and you may have seen in the assessment documentation in the appeal book references to review dates. “Review” is an unfortunate word to be found because it has a special meaning under section 25.

This is all kept up to date, as it were, in section 26(3), so the latest assessment rules is what it means. The latest assessment may be the production of the reassessments at intervals, section 28, or an assessor or review of an assessor under sections 24 and 25. It means, of course, that for a lifetime – the word has its real meaning in this scheme – for a lifetime there will be from time to time adjustments every time one of the critical criteria definitional of the needs in question being those which are reasonable and necessary in the circumstances. Clearly, the circumstances are those obtaining at the time of the assessment and one can see that from, as I say, the purpose of meeting needs, the notion of intervals and the way in which there can be a review of it, see section 25(1).

Now, it follows that the assessment you would not expect to contain – it will clearly not contain – an identical list from the first assessment that survives dispute and review to the end of the subject’s lifetime. In other words, “needs” which is a critical word, “needs” is not read as meaning in the abstract, imagining the person has nothing what will he or she need. Rather, in the circumstances, “reasonable and necessary in the circumstances”, plus assessment from time to time, clearly means that the need is something which is presently not enjoyed. You do not need something you have already got.

So if before entry into the scheme in order to make your way to your room upon return from hospital, your father has already done the carpentry necessary to make the ramp and widen the doors, that will not be a need ever assessed, let alone as reasonable and necessary, let alone ever having a prospect of being paid by the Authority under section 23 or falling within the meaning of care and treatment need in section 6 and 23.

Similarly, if before the ramp has been finished, you are admitted into the scheme and, let us say, willy‑nilly, but the assessment which is only made of a participant’s needs, it cannot be assessed previously but an assessment has not yet concluded and the ramp and the doors are finished before the assessment has been finished, then the assessment will, as it were, notice or to use another word found in the appeal book “acknowledge” that people with wheelchairs need ramps and wider doors but this young man does not need it because it has been done.

If that be so, if we are correct in this critical, pivotal meaning of the word “need” which varies according to circumstances, then the example I have just given throws up what can only be regarded as an odd, we would say anti‑purposive approach. Because on the combined approach against us, albeit with their different reasoning, in the first of the examples I gave, the gratuitous care, provided by the carpenter father will, of course, be claimable through the prism of the plaintiff’s need created by the defendant under Griffiths v Kerkemeyer and would not be prevented by 130A because it would have been provided before he was a participant.

In the second example I gave, that is, the ramps and doors were not ready until after entry into the scheme but before assessment, on the arguments against us suddenly the defendant wrongdoer would get the benefit of the father’s natural love and affection, wanting the house ready for the boy’s return from hospital and nothing in the scheme, nothing in the text suggests what would be the purpose of that unless of course one supposes there is some social engineering purpose of discouraging the provision of gratuitous care by family and friends, which need only be raised in order surely to be scotched.

GAGELER J: So is your argument textually that a, what would otherwise be a need, for example, for domestic assistance if met gratuitously is not a need within section 6(2) of the Act?

MR WALKER: That is right. Now, can I stay with that notion and expand it slightly in the following way? Observing, acknowledging or noticing that a need of the injured person is being supplied in a particular way, and I have given the example already of the ramp and the doorways, is certainly not the assessment of that need as reasonable and necessary in the circumstances because it has already been supplied. Mr Lloyd’s walking stick example is a simple but robust one. Certain people will need walking sticks. He has an array, one for every day of the week and they are all in good condition.

GAGELER J: Perhaps that answer slides into my next question. Do you focus on the word “need”, which is the terminology in section 6(2) that feeds into section 6(1), or are you focusing on the words “reasonable and necessary in the circumstances”?

MR WALKER: I do not want to have to choose between them, but I am trying to use both. I think the answer is I am focusing on both but I am trying to make them all do work. Could I remind your Honours that the - perhaps “solecism” is not too strong a word, has been committed in 6(2) of using one of the words to be defined as part of its definition. So “treatment and care needs” are the participant’s needs for, et cetera, so the argument I have been putting is about needs where it second appears in 6(2), where it is part of the defining expression rather than defined expression, and “as are reasonable and necessary in the circumstances” is principally derived from 6(1) of course.

It is because the circumstances are referred to, it is because the scheme, as you would expect, looks to assessments from time to time that it becomes, in the nature of things, irresistible that you will always perform, as part of the exercise of ascertaining a need, an examination of what is already obtained or enjoyed and what is needed in order to be reasonable for what is, I am afraid, more between the lines than anything else in this Act, that is, a decent standard of living.

GAGELER J: So to assess a need you say you first have to look at what a person has.

MR WALKER: That is right. You cannot say that I need a house with ramps and wide doors if I have already got one. In one sense, of course, you can, but if that were true, the assessment would always be the same for the rest of your life.

CRENNAN J: Well, it is a need but not one that is necessary in the circumstances.

MR WALKER: That brings me to the next point. I have finished what I want to say about proposition 3 and I will come back to proposition 4. In order to complete my remarks in answer to Justice Gageler’s question I am jumping, really, to part of proposition 5. I will take you to the passages in just one moment. But it is too compacted and shorthand to talk of the Authority having assessed as reasonable and necessary in the circumstances my client mother’s unpaid services to my client son.

You have to unpack what is meant by assessing her unpaid services as reasonable and necessary because the material I am about to take you to, in certain parts, fleetingly suggests what would be in law truly impossible and as a matter of decency quite revolting, namely, that the Authority, in good faith, could possibly assess it as necessary that these services be gratuitous, that is, unpaid. We cannot resist from adding, for that matter, how could you regard that as reasonable?

We know they in fact did not do that for the reasons I am about to show, not least because of what my friend, Mr Lloyd, pointed out which may be paraphrased thus – we know you want your mother to do certain of this work, but if she does not want to, or if you change your mind, we stand ready to supply paid service accordingly. That puts paid to any notion that they have assessed her unpaid work, that is, in its quality of being unpaid, as being necessary. That is absolutely wrong.

KIEFEL J: Are you distinguishing future and past in what you are saying now?

MR WALKER: I am not there because I am referring to their actual assessments which are always about what I will call “near future based upon recent past”. Yes.

GAGELER J: This comes down to a factual point.

MR WALKER: In a sense it does, yes.

GAGELER J: You are asking us to find that the assessment that has been made does not include as reasonable ‑ ‑ ‑

MR WALKER: And necessary.

GAGELER J: ‑ ‑ ‑ and necessary in the circumstances ‑ ‑ ‑

MR WALKER: Unpaid care by the mother, that is right.

GAGELER J: That is asserted to the contrary against you. There is no finding of fact, as I understand it, in the courts below that goes to this. You want us to make this finding.

KEANE J: Is it not contrary to the assessments that we have actually been shown?

MR WALKER: Not really. I need to take you to that, but if I may go to those now, in an attempt to answer both those questions? Your Honours see the references in our outline. I will take them in that order. Start with page 76. This is November 2009. You have already been shown that passage numbered 13 about the dispute. I will not read it because your Honours saw it this morning, but that is a reference to the difference between the parties; the Authority being understood by this occupational therapist as having reached the position where he was unable to pay family and friends and that they were unable to agree with that. There is nothing there about an assessment that is reasonable and necessary that the mother provide anything gratuitously. Rather reasonableness appears in a somewhat different guise, at the foot of page 82, about line 51:

unreasonable to expect Mrs Thiering to provide this care as it impacts on her ability to participate in her own life roles.

So although the writer is plainly not focused on the statutory concept of reasonable and necessary in the circumstances, with respect to attendant care services, there is a comment made which is rather indicative of a resistance to including that as reasonable. But then on the next page, 83, “it is reasonable” that she provide care. That could not possibly read in the context of the immediately preceding passages making any assertion about it being gratuitous.

On page 86 under the heading, “Summary of overall care need”, and the subheading, “Care needs”, there is a recitation of hours. Now, that is one of the fleeting references which in isolation might be thought to be this remarkable proposition that there is a need for care to be unpaid. Rather, it is noticing or observing or acknowledging that those hours are unpaid. It is certainly not an assessment of that quality of it being unpaid as reasonable or necessary.

KIEFEL J: But it is an assessment that 182 hours of care per week are necessary.

MR WALKER: It is, your Honour.

KIEFEL J: That is confirmed by the letter at page 263 that that is what has been approved.

MR WALKER: It is, and I have to compare that with other references.

CRENNAN J: It feeds into Mr Lloyd’s submission, does it not, that the scheme is intended to cover all needs ‑ ‑ ‑

MR WALKER: Yes.

CRENNAN J: ‑ ‑ ‑ in the circumstances of a catastrophically injured person.

MR WALKER: Yes. Yes, it does. I might as well deal with that question of all now. Needs are needs, not some of the needs. It is really only to emphasise the matter to use the expression all your needs. If you have to assess the needs of a person, you have to comprehensively cover everything which is currently deficient for that person. The whole of the deficiency is the need.

CRENNAN J: Well, I suppose part of his argument is that paying for the care is only one way of providing for the needs.

MR WALKER: Without any doubt. It is the only way the Authority can do it. It can do it in two ways; it can pay someone else or it can pay the participant, section 6 says. To that extent we are, with great respect, with the way Mr Lloyd has put it. But it is to recall, we have yet to come to 23 and 26. It is to be recalled, the needs are the needs assessed for the purposes of the Act, for all purposes of the Act they are as the certificate shows. This, by the way, is not a certificate, this is something that precedes a certificate.

Under 6.2 on that page 86 around line 30, there are statements which are a reference to the desire of my client in relation to his mother. It does not in terms say that that is necessary. At page 91, here is a Notice of Assessment and Certificate. This intervenes before the letter to which you were taken. This is one point of contention. You see that it is introduced. It is in relation to the dispute about the paid hours of care currently approved. I stress, the paid hours of care currently approved.

That presumably is a reference to 86, total hours of paid care. There has been a decision by an assessor that the service or item is reasonable and necessary. That presumably can only be a reference to the paid hours of care. Then under the heading “Services approved” one sees that there is a code and a cost for things which include, the first part of the description, “30 unpaid”:

(currently provided by your mother).

On its face, again, this is a document that appears to commit the absurdity of saying it is reasonable and necessary that there be 30 hours unpaid. That cannot be right. One would not be that uncharitable to the author. Read in context, they are saying it is reasonable and necessary that you get the paid hours currently provided as the assessor has decided is reasonable and necessary. That is what the document says. The paid hours currently approved, the service or item is reasonable and necessary.

The documents are not in uniform fashion, I am afraid. Your Honours, the next thing in order is 263, the letter to which you have been earlier taken. I do not need to dwell on it except to point out that at about line 40 there is a reference to the reasons the Authority is unable to consider payment. Otherwise, it is important to note that the “reasonable and necessary” phrase is used at about line 37. We would invite your Honours to read that paragraph as meaning, in effect, as to your mother’s unpaid work, in some sense it is not reasonable and necessary.

Now, your request, it is said is not – well, you do not need to explain why your request is reasonable and necessary. It is very unfortunate language because it attaches the statutory tag “reasonable and necessary” to the idea of a request but unpacked that presumably means “that your mother be paid” – “that your mother be paid”, that is the dispute. So they are not accepting here, in fact they are saying, “We don’t accept. You will have to explain why it is reasonable and necessary she be paid”.

That is quite revealing because if it were as simple as what my friend Mr Lloyd put then they would have no difficulty with the idea of those hours being paid hours, just not by your mother, but they have not expressed themselves in terms of attend to lack of approval. That was not current then, as we understand it. There was no guideline that prevented it. They had this policy or preference, Part 8 of the guidelines to which I am going to come sets out which is not in absolute terms, by the way. Far from it.

So, unpacked, in our submission at this stage, it cannot be said that the provision of the work by the mother, paid or unpaid, has been assessed by the Authority to be reasonable and necessary. Your Honours know the steps that follow, if not then it cannot be within the category of treatment and care needs, et cetera, provided for while a participant in the scheme.

BELL J: I had understood Mr Lloyd’s position to be that the notice of assessment and certificate on appeal book 91 in the event Mrs Thiering decided not to continue to provide the services would be a sufficient basis for expenditure under 6(1) for an approved provider to provide the 30 hours per week that Mrs Thiering had been providing.

MR WALKER: That is our understanding of the argument as well. For the reasons I have just put it is really not what the Authority has done but I accept that is what is put.

BELL J: Yes. Coming back to the matter that Justice Gageler raised, there is a factual issue.

MR WALKER: Yes.

GAGELER J: Procedurally, is it not a notice of contention issue?

MR WALKER: Yes, your Honour, although I confess I am really answering what has been put against us, and in writing, that these are within what has been assessed and we say they are not within what has been assessed but my answer stands. I am sorry, that is a confess and excuse.

GAGELER J: It is just that ultimately it is a procedural fairness point.

MR WALKER: Yes, it is, and that is why it is significant. What I am doing is answering what is put against us. Indeed, the gravamen of the written submission, not just today’s address, the written submission, by the Authority is all this is covered. It so happens, it has been done gratuitously by your mother but it is all covered by what the Authority has done so, in our submission, it is not inappropriate that I put this argument in answer to that proposition. They are the ones who raised the question ‑ do the dealings show that this has been done? The answer is yes, it does. As we understand it, the same is true for the appellant. They rely upon these documents as showing that this is within the treatment and care needs referred to by 130A because of these documents.

KEANE J: I think perhaps the difference is that their argument was attacking the basis upon which the Court of Appeal decided the case, which was on the basis of a particular view of the text, in circumstances where it was perhaps fair to say that it was common ground that these needs were care and treatment needs and they were not – they have not been focused upon a contention that the needs are needs because they are met needs.

MR WALKER: Yes, your Honour. Yes, with respect, we agree with that. Your Honours, could I show you pages 110 and 111? This is not only for the point I am trying to develop but also apropos an inquiry I think Justice Kiefel made concerning whether attendant care services are paid or not paid, and the answers given are, with great respect, solidly based in the text. There is no reference to paid or unpaid in the text of the statute.

CRENNAN J: Mr Lloyd agreed that attendant care services must include paid or unpaid. What he does not agree is that section 6(1) covers unpaid.

MR WALKER: Yes. There is one reference in the statute to which I am going to come that might affect the issue, but I only have one small point to make about it. Apropos this document at 110, it is a fair example – you will have seen in the guidelines and the like the reiterated form of the Authority will fund, the Authority will not fund, et cetera. Well, these notices of assessments include this one that says, “About: Your care needs assessment”, the Authority has decided “we will pay for”, so that this is very clearly approving – or I should say assessing as reasonable and necessary to be paid for those services. They do not on the face of it say anything about the mother.

One finds that approach continued, if I can take your Honours to 115 at about line 45 you have, “Previous approved paid care hours”. On the other hand, in that very same report, it is not the certificate, at 117, about line 45, there is what I have called the observation, acknowledgement or noticing that he also receives unpaid care from his mother. A similar observation is then found at 121 as previously made, line 25, where, in relation to reasonableness one sees that the provision of Mrs Thiering’s work certainly cannot be regarded there as being considered reasonable and necessary and the explanation for some of that is found, though I do not need to dwell on it, at page 127, about line 45 to the end.

On that same page you will find a similar table as I showed you before, under the same heading “Summary of overall care need and care needs”. You have the breakup of care, unpaid and paid. Can I draw to attention - I think is against us and in favour of Mr Lloyd - the arithmetic that I think I am about to do correctly, I hope so, at the top of 127 you have 21, 147, total 168. Could I draw to your attention at 129 - I am assuming from the dates of these documents that was 23 February and then the notice is dated 17 March, you will see a total of 168 hours per week, “Cost - Fee schedule”. “Fee schedule” seems to be a reference to the one statutory provision I wanted to take you to in relation to payment.

Subsection 32(4) uses the rather odd word in this connection of fees. Fees may but need not be fixed by reference to any schedule of fees, so that is where that expression, I take it, comes from. But you see in 32(1)(d) that the fees in question are payable for any attendant care services provided to a participant in the scheme. Now, that is a textual indication of an expectation, whether it be compulsory or mandatory in all cases is a different question, certainly an expectation that there will be fees payable for that.

Now, in terms of an assessment of what reasonable and necessary, I have to take you back to the immediate previous page, 128, because the opinion with which that document concludes plainly does not extend to saying it is necessary that Alex’s mother provide unpaid care. That could not be right – (a) it does not say that, (b) it would be a very unpleasant thing to say, necessary, and it does not gel with the notice at 129 which accepts as reasonable and necessary payment for the total.

That same pattern is then followed at 131 which is just a similar expression. The only other page I would want to show you is an even more explicit reference to payment found in another notice, a later notice, at 134. That is the one I want to finish with. I will stand corrected, but that says nothing about the mother so far as we can see, or at least it says the Authority agrees to pay Australian Home Care to provide the following attendant care, et cetera. As your Honours know from the facts, there is no employment with my client to mother.

GAGELER J: Mr Walker, can I just understand where this factual proposition fits into your argument? If we were to make the finding of facts ‑ ‑ ‑

MR WALKER: Yes.

GAGELER J: ‑ ‑ ‑ about what the Authority has done in these assessments that you seek. I can see where that goes. If we were to take a different view as to what the Authority has done in fact, what happens?

MR WALKER: The question still remains as to whether the work done by the mother can be seen as fitting within the description of treatment, care, needs, within the meaning of the LCS Act and nowhere is there an assessment of them as reasonable and necessary to be either by the mother at all, let alone unpaid. The gist of the Griffiths v Kerkemeyer claim is that the mother has supplied a need of the plaintiff gratuitously.

GAGELER J: If the proper interpretation of the assessments is that the need met by the mother’s services are reasonable and necessary, then do you attack the validity of the assessment? Is that what you are doing?

MR WALKER: I cannot do that here.

GAGELER J: That is another problem.

MR WALKER: I cannot do that here today. No.

GAGELER J: So you are stuck with the assessments under section 26?

MR WALKER: It would be quite so. Quite so.

KEANE J: So if it becomes a question of construing the assessments when it says total hours 162, unpaid hours 30‑odd, why would not one understand that as meaning not that there is an assessment that there needs to be 30 hours unpaid but that there needs to be 30 hours provided by Mrs Thiering which everyone knows will be unpaid?

MR WALKER: It still has to be reasonable and necessary in the circumstances, your Honour. I am sorry, my answer to your question is because that has to be an assessment of that state of affairs being reasonable and necessary.

CRENNAN J: Why is not the total number of care hours, which as it happens includes unpaid care, why is not that an expression of the care needs, that is to say that this person must have – it is reasonable and necessary for this person to have 162 hours of attendant care services?

MR WALKER: Your Honour, I cannot possibly contend against that. Indeed, our dispute with – my client – the son’s dispute with the Authority is that, “I need this work done. I would like my mother paid for it”.

CRENNAN J: So your assessment argument is a subset argument that the 30 hours has not been assessed as a reasonable and necessary item of the care needs?

MR WALKER: That for which we wish to sue, that which we are – it is being argued that we are precluded from suing for by 130A, we say that does not fall within the expression of “provided for” – being a treatment care needed:

provided for while [he] is a participant in that Scheme.”

Because the mode of provision is, (a) an assessment as reasonable and necessary, and (b) payment of any expense incurred in relation to it.

KIEFEL J: But provision in section 6(1) refers to the services which are provided to meet the need.

MR WALKER: Yes. I was using the expression at the end of 130A, “provided for” or “to be provided for”. It is real pity that they use “provided” in a number of different ways.

KIEFEL J: By the provision of services, you read in brackets, do you not?

MR WALKER: But “provided for” does not mean provided. In fact, for opposite purposes my friend, Mr Lloyd, and I agree on that. “Provided for” involves making the resources available to permit something to be happened. The only resource the Authority has is money and organisation. And so they are not “provided for” by noticing, observing or acknowledging that the mother will do something for nothing, they are ‑ ‑ ‑

CRENNAN J: So “provided for” in 130A on this argument cannot mean make arrangements for.

MR WALKER: They are not making arrangements for the mother to do anyhow. I am sure it was not intended, but it is surely an unattractive suggestion that might have emerged for some of what has been written and said that it is anything in the nature of permission, approval or blessing is necessary for a mother to help her son – an injured son. There is no capacity to compel someone to supply voluntary or gratuitous care and it is absurd to even raise that possibility.

There is no sense in which – the only other thing apart from money which is organisation and statutory power that the Authority has is being used in order to have my client mother attend to my client son. The Authority is not doing that at all. It is not being provided for by, as it were, familial ties, natural love and affection, producing the willingness of both of them so to continue. “Provided for” refers to the manner by which this scheme and the Authority in administering this scheme assists people in these terrible positions. They assist in only one way, by paying the expenses of that which is assessed as reasonable and necessary in the circumstances. Of course, that is more than just paying but the “more” is simply defining what you are going to pay for.

BELL J: The assessment does that, does it not? The fact that some of the hours may then be provided by the mother does not affect the assessment that has been made respecting the reasonable need or the willingness of, indeed, the statutory obligation to pay for those services the moment the election is made by the mother not to provide them.

MR WALKER: Your Honour, that is the most difficult part of the case for me without any doubt. I have taken you to, I hope, the whole of the relevant material in the appeal book and you see that there is some that is better for me than others. What I propose is, the answer to the question which goes right to the heart of it, with respect, from Justice Bell, is this, that the question is whether we are precluded from a certain claim by 130A. The claim has, not as incidental but as critical to its quality, that it is care provided by the mother.

In order to fit within Griffiths v Kerkemeyer it is going to have to be family or friends – so it is by the mother. That is what we want to sue for. It is going to be regulated, we say, by section 128. Why is care provided by the mother a mother’s care, not just any care, in other words, the whole point - after all, my client, the son, whose position is “Look, I do not want all this done by strangers, PS, and I think my mother should be paid” which, after all, is the expectation of which Lord Reid wrote in the passage picked up by Chief Justice Gibbs in Griffiths v Kerkemeyer. It is a deeply felt social position. It is appropriate that the wrongdoer not benefit from the benevolence thus displayed.

It is controlled because after all Griffiths v Kerkemeyer stands, as it were, in place of the spectre of a claim directly by persons in the position of the mother against the negligent driver. That was rejected or regarded as Justice Stephen puts it as unavailable. So, whether it be an anomaly, whatever it be, Griffithsv Kerkemeyer extends just that far. The essence of the claim is for us a mother’s gratuitous care. The question is why is that or what is the text in 130A that precludes it being sued for and it is said, lo and behold, well, the mother’s gratuitous care is a treatment and care need within the meaning of the LCS Act provided for while the son is a participant. We know that in order to be a treatment and care need it must be, among other things, assessed as such because section 26 says the certificate of assessment tells you what has been assessed.

Whether you go to the antecedent reports or not, as I have done, or you confine yourself to the certificates, some of which refer to mother’s unpaid care and some do not, it is quite impossible, in our submission, to read the material as saying it has been assessed as reasonable and necessary that the mother do it for nothing. So that is why we say of these documents, yes – and this is my answer to Justice Crennan earlier – yes, of course I have to accept that when you see the documents, particularly the letter that says if the mother does not do it then we will do that which is reasonable and necessary.

It is necessary for you to have this many hours work. It is reasonable that you have this many hours work. We notice that your mother is doing it. We certainly do not say it necessary she do it. That is to the contrary of the proposition that Mr Lloyd has, with respect, powerfully expounded. So the whole of my argument simply is, on this critical point, that it cannot be said to be provided for as a treatment care need when it does not answer the necessary description of something which has been assessed as reasonable and necessary in the circumstances and it is of the essence of our ‑ ‑ ‑

KIEFEL J: So you are saying assessed as reasonable and necessary for the purposes of payment, reading it with section 6(1), are you?

MR WALKER: I am not sure about for the purposes of payment because, with respect, the statute proceeds by a number of different steps that your Honours already, with respect, well appreciate. I do not want to gloss the language of the statue beyond what section 6(1) and 6(4) say, just reasonable and necessary in the circumstances. Of course, it is for the purposes of defining both by imposing a duty ‑ ‑ ‑

KIEFEL J: What is going to be paid for.

MR WALKER: ‑ ‑ ‑ plus also imposing a cap on the one thing that the Authority actually does executively, that is pay. Everything else the Authority does is making decisions informing the content of its obligation to pay. It is in that sense that all the Authority does is pay. Of course the Authority does all the other things, assess, et cetera, but it works the scheme, it carries out the obligation it has and the purpose of the scheme by paying money.

KEANE J: Mr Walker, just looking at your proposition that a met need is not a need, that would mean, would it not, that in any case where Griffiths v Kirkemeyer – where services are being provided gratuitously, so that the need to be assessed has been met to the extent that the services are being provided gratuitously, a participant could defeat the compulsory intentions of section 8.

MR WALKER: I am sorry, your Honour, I do not think I follow it.

KEANE J: Well, section 8 intends that this shall be the regime that a participant shall be within the LCS Act.

MR WALKER: Section 8 can compel someone willy‑nilly?

KEANE J: Yes, compels them even if they do not want to be.

MR WALKER: Yes.

KEANE J: If you are right, then the participant can choose, albeit it requires the assistance of the family or friend, to exclude himself from the scheme.

MR WALKER: No, from ‑ once only, this once and for all rule applies to a Griffiths v Kerkemeyer claim, exclude himself once only from 130A, not from the scheme. He cannot exclude himself from the scheme, and as Mr Lloyd pointed out, this is not a conscription of people to be looked after by a State agency. This is a facility for people to be looked after by a State agency. There is no element of saying to the very wealthy quadriplegic, you must welcome into your home people who are contracted by the Authority to look after you.

KEANE J: No, but the insurers are placed in a position where they can bring it about that the wealthy injured person may choose to have services provided pursuant to that person’s own choice, but that would be, so the insurers would say, at the expense of that person ‑ ‑ ‑

MR WALKER: Yes.

KEANE J: ‑ ‑ ‑ because the Authority would not be obliged to pay.

MR WALKER: Well, the Authority cannot be obliged to pay for something that has not been provided by a provider who produces an incurred expense. It is a question of whether an expense has been incurred.

GAGELER J: Is your proposition that a met need is not a need – one that needs to be qualified? Is it a gratuitously met need is not a need?

MR WALKER: No, it does not – if it is any good, it will not bear that qualification.

GAGELER J: So it has to be tested against a need being met by paid services?

MR WALKER: Yes, logically that would be so, because it all comes from in the circumstances and reassessment from time to time.

GAGELER J: Yes. So that the wealthy quadriplegic could pay for the services, medical assistance, domestic assistance, et cetera?

MR WALKER: And the Authority would assess by saying, this man has no needs.

GAGELER J: Correct.

MR WALKER: Lives better than I do.

GAGELER J: That is right. Then section 130A would allow that man to sue to recover the cost of self‑providing those services.

MR WALKER: I have not fully thought that out, but I think that must follow, your Honour, yes.

GAGELER J: That would drive a truck through section 130A.

MR WALKER: Yes.

CRENNAN J: Because there is a total preservation on that scenario of access to 128.

MR WALKER: Yes, well, 128 does not provide full compensation for whatever the wealthy person is provided.

CRENNAN J: No, I know, but building in of course that qualification in relation to ceilings and so on.

MR WALKER: No, the claim as it is regulated by 128.

CRENNAN J: Yes.

MR WALKER: Now, your Honours, in our submission there is no double recovery presented by our argument. There is no question of the scheme being called upon and the insurer being called upon and the defendant, the insured defendant being called upon. Finally, our proposition 7, it is plain that that for which both our opponents contend comes down to this consequence. The person in a plaintiff’s position like my client is worse off by this statute than under Griffiths v Kerkemeyer, that is, there is no possibility of claiming, according to the argument against us, at common law regulated by 128, Griffiths v Kerkemeyer as modified, and there is no possibly of getting it from the scheme, the result of Mr Lloyd saying, well, if she does it for nothing she does it for nothing and we do not have to pay.

That would seem odd because it seems to present a perverse incentive against the provision of the kind of benevolence which includes, one would have thought, the social and therapeutic quality of having your mother do things rather than a paid person, someone who does it for love rather than professionally, a perverse incentive against that occurring, and yet there is absolutely nothing in either of the statutes, I know they lack objects relevantly, but there is nothing in the statute to yield any such purpose at all.

Now, it may well be, as I started by addressing, that it is not a perfect scheme and that the consequence I have just referred to is a consequence and that for some reason, perhaps without reason, the Parliament has decided that this social habit of parents helping paralysed children really is just not good enough and it has got to stop and we will force them financially by denying them any – Griffiths v Kerkemeyer we will force them financially to go to the paid providers under the scheme.

Now, in our submission, that is very odd and yet it is a consequence of the combination of the arguments against us. In our submission, the words of the provision simply do not compel that outcome and it ought to be resisted. May it please your Honours.

MR REWELL: If I could deal with that last point first, your Honours? If it be the case that the scheme takes something away in terms of entitlement to damages from someone such as Mr Thiering, in its place it gives something back. First, it ensures that the Authority stands ready to provide all of Mr Thiering’s care needs so that in the event his mother is unable, unwilling or not wanting to provide care any longer, the care is guaranteed. The other thing the scheme provides is care for the whole of life and, assuming that Mr Thiering is likely to outlive his mother, he has that guarantee for the rest of his life and well beyond his mother’s lifespan. So it is not a question of the scheme taking something away but not providing anything.

KEANE J: It provides cover in the case that the needs get greater?

MR REWELL: Yes.

CRENNAN J: Or worse.

MR REWELL: It covers all circumstances which may befall Mr Thiering in terms of having his needs met, but at the same time, it allows Mr and Mrs Thiering the choice that if Mrs Thiering wishes and, only if she wishes, and Mr Thiering wishes for her to be involved in his care, she may. It would be wrong if that choice was not available. But insofar as it changes his entitlement to damages, then there is plenty provided in return.

To come to the second‑last point Mr Walker made, and to pick up something Justice Keane said, what Mr Walker’s submissions would create if they were correct is a situation where a participant in the scheme can avoid, in part, the consequences of participation in the scheme by choosing gratuitous care and then asserting a claim for damages against the third party insurer or by paying for care outside the scheme and claiming the cost as an out‑of‑pocket expense against the third party insurer. This would defeat the essence of the requirement that participation in the scheme is not optional and the consequences of participation in the scheme are not and are not intended to be optional.

If I could quickly deal with the first example Mr Walker provided, the doorways and ramp that might have been constructed partly before participation in the scheme commenced but were finished before the first assessment and therefore were done by the time the occupational therapist came to do the initial assessment. Frankly, the time and cost of that carpentry work would not be provided for by the scheme because the scheme provides for the needs as assessed and there having been no assessment before the work was complete, it would not fit within the scheme and therefore would not be precluded by section 130A. So, for whatever that example is worth, it actually, we would submit, is not precluded.

The real area, though, where we disagree with Mr Walker’s submissions is in his contention that a met need is not a need. The word “need” as it appears in sections 23, in particular, and 6(1) are not qualified in that way in the text and there is nothing to suggest they ought to be qualified in that way. The person’s needs are his or her assessed treatment and care needs subject only to the three prerequisites that I mentioned at the outset.

The needs might be met in different ways but that has nothing to do with whether the need exists and the terms “reasonable and necessary” do not apply at all to the manner of delivery of services, the manner of meeting the needs. If one looks at section 23(2), for example, what is required is that the “needs” be “reasonable and necessary”. In section 6(1) again it is the needs which must be “reasonable and necessary”.

This has nothing to do with how the needs are met. What the assessments do, including the assessments in the appeal book, is to determine the needs, that is the total needs that are reasonable and necessary. The observation that some may be paid and others unpaid has nothing at all to do with the reasonable and necessary test.

KEANE J: In a sense one comes back to think about Griffiths v Kerkemeyer itself and no one could say that the needs that had been met were needs that attracted compensation.

MR REWELL: That is right, and what is compensated is the need whether it is met or not. If I could just run quickly through some of the pages Mr Walker ‑ ‑ ‑

KEANE J: Mr Rewell, just before you go on, can I just ask you this to be clear about it, do you agree with Mr Lloyd that if Justice Garling’s determination of question 5 which the Court of Appeal affirmed were rightly made it should not have been qualified?

MR REWELL: No, we strongly disagree.

KEANE J: You disagree.

MR REWELL: In that respect we agree with Mr Walker. While we have pointed to the errors we say Justice Garling made we strongly disagree with the suggestion made by Mr Lloyd that his Honour erred in not including future gratuitous care as well as past gratuitous care if he was otherwise correct. We disagree with that strongly and may I say that that was no part of the appeal to the Court of Appeal, no part of that court’s consideration because it was not suggested by anybody in that appeal, and of course Mr Lloyd’s client did not participate in that appeal.

Nobody suggested that Justice Garling should have included future gratuitous care and frankly we were surprised when that was raised by Mr Lloyd here because I did not perceive that in his written submissions either but for the reasons that Mr Walker expounded we agree that if Justice Garling was right in his reasoning, and we say his Honour was not, with respect, one thing he was correct about was to limit the matter to past gratuitous care for the reasons Mr Walker stated.

KEANE J: Thanks for that.

MR REWELL: If I can move back to this point that I wish to make that it is the need that must be reasonable and necessary and one should not mislead oneself by looking at how the need is met and applying “reasonable and necessary” to the mode of delivery, that is just not right. Starting at appeal book 91, where I think Mr Walker started, he drew attention to the words at about line 23:

The Lifetime Care and Support Authority (the Authority) has received [an assessment] in relation to the dispute about the paid hours of care currently approved.

It means what it says. It refers to a “dispute” about one element of the care, paid hours, and Ms Mills, it appears, made a decision that the paid hours were reasonable and necessary. So in other words, the part of the need or the need to which the paid care responded was reasonable and necessary. That says nothing about the other part of the need. There was no dispute, it appears, that that was reasonable and necessary.

I think the next page Mr Walker took the Court to was 121. Bear in mind that this document is written by the occupational therapist and there are two instances that Mr Walker drew attention to where the occupational therapist uses, in connection with what Mrs Thiering is doing, whether it was reasonable or unreasonable that she should be doing it. That again has nothing to do with “reasonable and necessary” in the statutory context. This is a comment by the occupational therapist that she did not think that Mrs Thiering should be providing overnight care to her son. A better word would have been “undesirable” but she used the word “unreasonable”, but clearly she did not mean that to have any relationship to the words in the statute.

Same at page 128 where the occupational therapist says:

In my opinion it remains reasonable that Alex’s mother provide some supervision of and assistance to her son –

in other words, unobjectionable, not undesirable; that has nothing to do with reasonable and necessary. The point that should be made about that particular care assessment comes from page 127, if I could take the Court to that as Mr Walker did? He pointed out that at the top of the page the care needs are stated to be a total of 168 hours, including 21 hours unpaid care at that time. On page 129 the Authority says:

The Authority has reviewed this request and has decided that we will pay for the following services –

Total – 168 hours. It follows that the 168 hours is all reasonable and necessary care and, therefore, that the Authority is prepared to pay for it if requested to do so. So again it emphasises the point that what is being assessed is the need – nothing to do with the mode of delivery. The need, plainly, was said to be reasonable and necessary. The same can be said about page 263 of the appeal book. The first paragraph addressed to the solicitor for Mr Thiering says:

I note from your letter that you assert that Alex requires 182 hours of care per week. The Authority has approved 182 hours of care per week and are willing to provide Alex with 182 hours of paid care.

That is, the need – the reasonable and necessary need – is 182 hours per week. Then the very next paragraph points out that the current arrangements are 152 paid and 30 unpaid and then finishes by saying:

If Alex wishes to utilise 182 hours as paid attendant care, Alex is welcome to do so –

In other words, the need for 182 hours care is reasonable and necessary. How it is provided is in part at least a matter for Mr Thiering and Mrs Thiering and they had chosen at that time to split up the 182 hours as appears, no suggestion that somehow the 30 hours provided by Mrs Thiering means that the need is reduced from 182 to 152, but the contrary, the need remains at 182. I think that those are all the matters that I needed to revisit, if the Court pleases.

CRENNAN J: Thank you, Mr Rewell. Yes, Mr Lloyd.

MR LLOYD: In relation to the argument which we had understood even of the first and second respondents about our client having not assessed – made assessments that Mrs Thiering’s contributions were reasonable and necessary, we say that that issue as to whether or not they were reasonable assessed is a disputed question of fact in the court below. Your Honours will see on page 5 at paragraph 9 the plaintiff’s pleading, which is actually inconsistent with what they have told the Court. To be fair, the position that I took might not be entirely consistent with our denial of that, but the bottom line is it is a disputed question of fact.

We do not think that disputed question of fact is in any way relevant to answering question 5 before Justice Garling, but if it is the Court should not make a finding of fact now in relation to that matter. The Court should answer the question that the question should not be answered because for some reason that question of fact is relevant to the proper construction of section 130A. If it please the Court.

CRENNAN J: Do you wish to say anything, Mr Walker? The Court will reserve its decision. Adjourn the Court till 9.45 am tomorrow.

AT 3.46 PM THE MATTER WAS ADJOURNED

[2013] HCATrans 232

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