Daly v Thiering - [2013] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Daly v Thiering [2013] NSWCA 25
Hearing dates: 30 January 2013
Decision date: 20 February 2013
Before: McColl JA at [1]
Macfarlan JA at [2]
Hoeben JA at [3]
Decision:
Leave to appeal is granted.
The appeal is dismissed.
The applicant to pay the first and second respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: STATUTORY INTERPRETATION - interpretation of statute determined as a separate question - Motor Accidents (Lifetime Care and Support) Act 2006 and Motor Accidents Compensation Act 1999 - whether participant in Lifetime Care and Support Scheme entitled to damages pursuant to s 128 Motor Accidents Compensation Act 1999 - whether Lifetime Care and Support Authority or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously pursuant to s 128 Motor Accidents Compensation Act 1999 - motor vehicle tortfeasor/CTP insurer remains liable to make such payments in certain circumstances - liability of Lifetime Care and Support Authority to make payments to person providing gratuitous attendant care to participant in scheme - possible limitations on such an obligation - question of fact as to whether Lifetime Care and Support Authority has such an obligation.
Legislation Cited: Motor Accidents Compensation Act 1999
Motor Accidents (Lifetime Care and Support) Act 2006
Motor Accidents Lifetime Care and Support Schemes Legislation Amendment Act 2012
Cases Cited: Griffiths v Kerkemeyer [1997] HCA 45; 139 CLR 161
Thiering & v Daly & [2011] NSWSC 1345
Thiering v Daly (No 2) [2011] NSWSC 1585
Texts Cited: Mason & Carter's Restitution Law in Australia, 2nd ed, LexisNexis Butterworths: Sydney (2008), p 824
Category: Principal judgment
Parties: John Daly - Applicant
Alexander Thiering - First Respondent
Rose Matilda Thiering - Second Respondent
Lifetime Care and Support Authority of NSW - Third Respondent
Representation: Counsel:
Mr KP Rewell SC/Mr DM Wilson/Ms J Gumbert - Applicant
Mr EG Romaniuk/Ms EE Grotte - First and Second Respondents
Submitting Appearance - Third Respondent
Solicitors:
Moray & Agnew - Applicant
Slater & Gordon - First and Second Respondents
WorkCover Legal Group - Submitting Appearance - Third Respondent

File Number(s): 2012/68384
Decision under appeal

Citation:

Thiering v Daly & [2011] NSWSC 1345
Thiering v Daly (No 2) [2011] NSWSC 1585

Before:

Garling J

File Number(s):

2010/22260

Judgment

McCOLL JA: I agree with Hoeben JA's reasons and the orders his Honour proposes.

MACFARLAN JA: I agree with Hoeben JA.

HOEBEN JA:

Nature of appeal

The first respondent, Alexander Thiering, has brought proceedings in the Supreme Court against two defendants for damages arising from catastrophic injuries suffered by him in a motor vehicle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daly v Thiering

Details

AGLC: Daly v Thiering [2013] NSWCA 25
Case: [2013] NSWCA 25
Decision Date: 20 February 2013

CaseChat Overview and Summary

In *Daly v Thiering*, the New South Wales Court of Appeal considered a dispute concerning the entitlement to damages for gratuitous attendant care services provided to a participant in the Lifetime Care and Support Scheme. The applicant, Ms. Daly, sought to recover costs for such services from the motor vehicle tortfeasor and their CTP insurer under section 128 of the *Motor Accidents Compensation Act 1999* (NSW). The central question was whether the Lifetime Care and Support Authority, or alternatively the tortfeasor/insurer, bore the liability for these services.

The Court was required to determine the proper interpretation of the *Motor Accidents (Lifetime Care and Support) Act 2006* (NSW) and the *Motor Accidents Compensation Act 1999* (NSW) in relation to the provision of attendant care services. Specifically, the issues were whether a participant in the Lifetime Care and Support Scheme could still claim damages under section 128 of the *Motor Accidents Compensation Act 1999* for gratuitous attendant care, and if so, who was liable to pay for those services – the Lifetime Care and Support Authority or the motor vehicle tortfeasor and their CTP insurer.

The Court reasoned that the *Motor Accidents (Lifetime Care and Support) Act 2006* did not extinguish the liability of a motor vehicle tortfeasor and their CTP insurer to make payments for attendant care services in certain circumstances. However, it also held that the Lifetime Care and Support Authority could have an obligation to make payments to a person providing gratuitous attendant care to a scheme participant, subject to factual considerations regarding the existence and extent of that obligation. The Court ultimately found that the tortfeasor/CTP insurer remained liable to make such payments in the circumstances of the case.

Leave to appeal was granted, but the appeal itself was dismissed. The applicant, Ms. Daly, was ordered to pay the costs of the first and second respondents for the appeal.

Orders

Orders of the court

Leave to appeal is granted.

The appeal is dismissed.

The applicant to pay the first and second respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Daly v Thiering [2013] NSWCA 25
Hearing dates:	30 January 2013
Decision date:	20 February 2013
Before:	McColl JA at [1] Macfarlan JA at [2] Hoeben JA at [3]
Decision:	Leave to appeal is granted. The appeal is dismissed. The applicant to pay the first and second respondents' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	STATUTORY INTERPRETATION - interpretation of statute determined as a separate question - Motor Accidents (Lifetime Care and Support) Act 2006 and Motor Accidents Compensation Act 1999 - whether participant in Lifetime Care and Support Scheme entitled to damages pursuant to s 128 Motor Accidents Compensation Act 1999 - whether Lifetime Care and Support Authority or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously pursuant to s 128 Motor Accidents Compensation Act 1999 - motor vehicle tortfeasor/CTP insurer remains liable to make such payments in certain circumstances - liability of Lifetime Care and Support Authority to make payments to person providing gratuitous attendant care to participant in scheme - possible limitations on such an obligation - question of fact as to whether Lifetime Care and Support Authority has such an obligation.
Legislation Cited:	Motor Accidents Compensation Act 1999 Motor Accidents (Lifetime Care and Support) Act 2006 Motor Accidents Lifetime Care and Support Schemes Legislation Amendment Act 2012
Cases Cited:	Griffiths v Kerkemeyer [1997] HCA 45; 139 CLR 161 Thiering & v Daly & [2011] NSWSC 1345 Thiering v Daly (No 2) [2011] NSWSC 1585
Texts Cited:	Mason & Carter's Restitution Law in Australia, 2nd ed, LexisNexis Butterworths: Sydney (2008), p 824
Category:	Principal judgment
Parties:	John Daly - Applicant Alexander Thiering - First Respondent Rose Matilda Thiering - Second Respondent Lifetime Care and Support Authority of NSW - Third Respondent
Representation:	Counsel: Mr KP Rewell SC/Mr DM Wilson/Ms J Gumbert - Applicant Mr EG Romaniuk/Ms EE Grotte - First and Second Respondents Submitting Appearance - Third Respondent Solicitors: Moray & Agnew - Applicant Slater & Gordon - First and Second Respondents WorkCover Legal Group - Submitting Appearance - Third Respondent
File Number(s):	2012/68384
Decision under appeal	Citation: Thiering v Daly & [2011] NSWSC 1345 Thiering v Daly (No 2) [2011] NSWSC 1585 Before: Garling J File Number(s): 2010/22260