Daly v Thiering

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.