Daly v Thiering

The High Court of Australia considered an appeal by Mr Daly, the driver involved in a motor vehicle accident, against Mr Thiering, the injured party. The dispute concerned Mr Thiering's entitlement to recover damages for gratuitous attendant care services provided by his mother, Mrs Thiering, following the accident. Mr Daly contended that section 130A of the *Motor Accidents Compensation Act 1999* (NSW) precluded such a claim, as Mr Thiering was a participant in the Lifetime Care and Support Scheme (LCS Scheme) established by the *Motor Accidents (Lifetime Care and Support) Act 2006* (NSW), and his care needs were provided for under that scheme.

The central legal issue before the High Court was the proper construction of section 130A of the *Motor Accidents Compensation Act 1999* (NSW), specifically whether the phrase "provided for or are to be provided for" encompassed services that were gratuitously supplied. The court was required to determine if Mr Thiering's participation in the LCS Scheme, which arranged for his lifetime care and support, meant that his attendant care needs were "provided for" in a manner that disentitled him from claiming damages for those services from the at-fault driver or his insurer.

The High Court reasoned that the legislative intent behind the LCS Act and section 130A of the *Motor Accidents Compensation Act 1999* was to create a comprehensive scheme for the provision of lifetime care and support for catastrophically injured individuals. The court held that the phrase "provided for or are to be provided for" in section 130A was not limited to services that were paid for, but rather included services that were arranged for or met under the LCS Scheme. Allowing a claim for gratuitous services would undermine the purpose of the LCS Scheme by permitting injured persons to opt out of its provisions and still recover damages, potentially rendering the insurer's choices under the LCS Act nugatory.

Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, and reformulated the answer to Question 5. The court determined that on the proper construction of section 130A, Mr Thiering had no entitlement to recover damages from Mr Daly or his compulsory third party insurer for the provision of gratuitous attendant care services. The appellant was ordered to pay the costs of the first and second respondents in the High Court.