GJ v Protective Commissioner

[2005] NSWADT 66

CITATION:	GJ and Ors v Protective Commissioner [2005] NSWADT 66
DIVISION:	General Division
PARTIES:	APPLICANT GJ and Ors RESPONDENT Protective Commissioner
FILE NUMBER:	033170
HEARING DATES:	08/12/2004
SUBMISSIONS CLOSED:	12/08/2004
DATE OF DECISION:	03/29/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Protected Estates Act - Protective Commissioner - disposition of money - Protective Commissioner - disposition of money
MATTER FOR DECISION:	Preliminary
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	Beasley v Marshall (No 4) (1986) 42 SASR 407 Blundell v Musgrave (1956) 96 CLR 73 ES and the Mental Health Act [1984] 3 NSWLR 341 Goode v Thompson [2002] 2 Qd R 572 Grevett v McIntyre [2002] QSC 106 Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 Huet v Irvine [2003] QSC 387 Jones v Moylan [2000] WASCA 361 (WACA) Kars v Kars (1996) 141 ALR 37 Marsland v Andjelic (1993) 31 NSWLR 162 Protective Commissioner v D (2004) 60 NSWLR 513 Re B [2000] NSWSC 44 Re DJR and the Mental Health Act [1983] 1 NSWLR 55 Re GDM and the Protected Estates Act (Powell J, 11 November 1991) [1992] Aust Tort Reports [81-190] Re N [2001] NSWSC 345 Van Gervan v Fenton (1992) 109 ALR 283 W v Q (1992) 1 Tas R 301
REPRESENTATION:	APPLICANT D Marks, barrister RESPONDENT T Tunbridge, solicitor
ORDERS:	1. The Question is answered ‘yes’; 2. Directions to be made for the final hearing of the application

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 This ruling deals with a preliminary question (the Question) that has arisen in connection with an application for review of a decision of the Protective Commissioner made under the Protected Estates Act 1983 (the Act). The Question is:

Whether it is lawful for the Protective Commissioner to make a payment pursuant to s 28(1)(b) of the Protected Estates Act for past gratuitous care which exceeds the amount of that component of the damages award?
2 The question as formulated refers to s 28(1)(b) as it read at the time of the decision in issue (13 June 2003), i.e.:
‘ 28 Disposition of money in hands of Protective Commissioner

(1) The Protective Commissioner may apply money comprising the whole or any part of the estate of a protected person towards any one or more of the following purposes: …

(b) the maintenance, clothing, medicine and care, past and future, of the protected person and, in the event of the death of the protected person, the protected person’s funeral expenses.’

3 That provision has since been repealed. The equivalent provision now comprises the opening words of s 28(1) and the whole of s 28(1AA):
‘ 28 Disposition of money in hands of Protective Commissioner

(1) The Protective Commissioner may apply money comprising the whole or any part of the estate of a protected person or protected missing person towards any one or more of the following purposes: …

(1AA) In addition to the purposes set out in subsection (1), the Protective Commissioner may apply money comprising the whole or part of the estate of a protected person towards the maintenance, clothing, medicine and care, past and future, of the protected person.’

4 The Question arises in the following circumstances. In December 1996, D, then aged 55 years, was severely injured at work. D commenced a personal injuries action against his employer. In 1998 the Supreme Court made a declaration that he was incapable of managing his own affairs and appointed the Protective Commissioner to manage his estate. In 2002 the action was settled. The Supreme Court entered a consent order in the sum of $6.95m plus costs. D’s family has cared for him on a 24 hour basis since his injury. They did so gratuitously for some time. The family comprises his wife, two daughters and the husband of one of the daughters. They are presently in receipt of over $200,000 per annum for the care they are providing.

5 They applied in May 2003 to the Protective Commissioner for payment of $600,000 from D’s fund in compensation for the gratuitous care they provided covering the period December 1996 to October 1999. They also applied for a payment to enable them to relocate to a new, more suitable home.

6 In his decision on internal review of 13 June 2003, the Protective Commissioner decided:

1. to approve a part payment of $250,000;

2. that, if the D family can locate a suitable property for purchase and modification for a sum less than the currently approved total quantum of $1.2m, then the difference following the purchase and modification is approved for payment towards and/or in full and final settlement of the total (i.e. inclusive of the $250,000 in 1. above) past care payment of $600,000;

3. that, if there is any amount outstanding for past care following 2. above, the payment of same is to be considered in the context of D’s overall financial situation and circumstances in an annual review of his Financial Plan when developed and implemented.

7 The family were dissatisfied with this outcome, and applied on 27 June 2003 pursuant to s 28A of the Act to the Tribunal for review of the decision. .

8 It will be seen from the terms of the decision that the Protective Commissioner was not ill-disposed to the claim for $600,000 but was not prepared to approve it at this stage. In the reasons for decision the Protective Commissioner accepted that the amount claimed was a fair and reasonable one, especially as the plaintiff’s statement lodged with the Supreme Court (by his tutor, the Commissioner) had allowed an amount of $1,001,220 for past gratuitous care. But the Commissioner noted that the original overall damages claim, in the region of $13m, was almost twice the amount recovered. Therefore he calculated the portion of the settlement that should be treated as being for past gratuitous care (allowing also for the effect of discounting) as being $579,973.

9 In not acceding to the request for immediate payment of $600,000 (or a similar amount), the Protective Commissioner’s primary concern was not to deplete the estate to the extent that there was nothing left ahead of the end of the period of D’s estimated life expectancy (then about 17 years). There was also concern that if D’s health deteriorated significantly, there might be additional costs to meet. The reasons stated:

‘In my view the Protective Commissioner has a responsibility to ensure to the extent possible that the estate of a protected person (such as D) at least lasts long enough to fund such a person’s needs during their lifetime. Fulfilling this responsibility is often extremely difficult when a matter is settled for a sum less than what an individual may actually require during his or her lifetime.’
10 Resolution of the application for review has been delayed. In July 2003 pursuant to s 12 of the Act – and despite the apparent assumption to the contrary contained in the reasons for decision – the Commissioner sought a direction from the Supreme Court on the matter of whether he had any power at all under the Act to make a payment for past gratuitous care. The protective jurisdiction judge acknowledged that there was some apparent conflict in the relevant authorities, and referred the matter to the Court of Appeal. The Court of Appeal held that the Commissioner did have the power to make a payment of this kind: see Protective Commissioner v D (2004) 60 NSWLR 513 (5 July 2004, Mason P, Giles, McColl JJA) ( D’s case ).

11 Following that decision, the proceedings before this Tribunal resumed. At this point, the Protective Commissioner raised the further question of whether his discretion to make such a payment was confined to the amount actually allowed for past gratuitous care in the settlement negotiations. The Protective Commissioner filed an advice dated 20 September 2004 from Mr A McSpedden of counsel who had acted for D. Mr McSpedden advised that the value of the gratuitous services provided by the family was about $340,000. He added that, due to s 151Z(2) of the Workers Compensation Act, the component of D’s damages reasonably attributable to past gratuitous care was approximately $200,000. (The Tribunal has some doubts about whether this qualification is accurate, as s 151Z concerns recovery from persons other than the employer; but it may be the advice intended to refer to the old s 151K, which limits compensation for domestic assistance, now replaced by the new s 60AA.)

12 As a consequence on 21 October 2004 the Tribunal directed the parties to file written submissions on the Question, and they did so. A hearing took place on 8 December 2004.

13 The Protective Commissioner’s submission – again in contradistinction to the apparent assumption of his reasons for decision on internal review – is that the Commissioner can not disburse any more, taking a generous view, than an amount approximately equal to the amount allowed for past gratuitous care in the damages award made by the court. Where the matter has been settled, as here, his view is that the same general principle applies, subject to it being necessary to form a view as to what proportion of the settlement is properly attributable to this head of claim. So in the present instance that amount is approximately $200,000 (or, at most, $340,000). (If the figure is around $200,000, the Commissioner on his argument may have to adjust downwards the amount allowed under his decision of 13 June 2003.)

14 At this point it is convenient to note that in these proceedings the head of damages in issue has routinely been described as the ‘Griffiths v Kerkemeyer’ head of damages, after the name of the High Court case that established that such a loss was compensable by way of damages in tort: Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387. (See generally, Luntz, Assessment of Damages for Personal Injury and Death (4th ed. 2002) [4.6.1].)

15 The family has been represented in the proceedings both here and before the Court of Appeal by Mr Marks of counsel. Mr Marks submitted that the Protective Commissioner has read his powers too narrowly. His submission is that the Protective Commissioner is free to disburse to the carers any amount he considers appropriate, subject only to the limit that it should not exceed the actual amount of the commercial value of the services. The amount paid to the carers therefore could be well in excess of the sum allowed under the Griffiths v Kerkemeyer heading, either within the framework of settlement negotiations or in an award of damages formulated by a court.

General Legal Principles

16 As previously noted, it is now settled that the Protective Commissioner has power under the Act to make payment for past gratuitous care out of the estate of the protected person: D’s case.

17 The general case law also establishes that the purpose of an award for past gratuitous care is to compensate the plaintiff for the loss which is evidenced by the need for services; it is a matter for the plaintiff whether the award is used to recompense the person providing the services; and it is not correct to give as the rationale for such an award that it is to enable the carer to receive proper recompense for his or her services: see Kars v Kars (1996) 141 ALR 37 esp per Dawson J at 39; and per Toohey, McHugh, Gummow and Kirby JJ at 49.

18 Though the Protective Commissioner’s power to make payments is discretionary in character, as a trustee the Commissioner should regard himself or herself as subject to the same moral obligation as would attach to the protected person if he or she were not under the disability: Beasley v Marshall (No 4) (1986) 42 SASR 407; W v Q (1992) 1 Tas R 301 at 305.

19 It would seem to follow, therefore, that the Protective Commissioner should, like the protected person, have a wide discretion as to how much of the estate can be expended in one direction or another.

20 The Protective Commissioner’s more cautious view – that the amount that can be spent is limited to the relevant component of the settlement or court award – is based on Supreme Court protective jurisdiction decisions which might be seen as standing for that proposition.

Approving Payments for Past Gratuitous Care: NSW Case Law

21 The Supreme Court first dealt with this question in Re DJR and the Mental Health Act [1983] 1 NSWLR 55 (Powell J). Powell J noted that where a verdict was determined by a judge, the reasons would deal with the proportion of the damages to be attributed to past gratuitous care. His Honour noted that less transparency would be found in situations where there was a jury verdict or where the damages award resulted from a settlement. In the latter instances it would be necessary for the Protective Commissioner to form a view as to the proportion attributable to past gratuitous care based on the available information. In the case of the jury verdict this might, for example, include the record of the proceedings, including exhibits, and the summing up of the trial judge.

22 Powell J stated at 567:

‘[T]he sum allowed for the services gratuitously supplied not only provides a convenient starting point, but, in many, if not all cases, will be the sum appropriate to be allowed.’
23 In the next reported case dealing with this subject, ES and the Mental Health Act [1984] 3 NSWLR 341, the Protective Commissioner applied for approval to pay from the fund created by a damages award an amount for the past gratuitous care provided by the parents of the plaintiff (an adolescent who had been in need of 24 hour care since a motor vehicle accident when aged four and a half years). In this instance there had been a settlement. Powell J referred to Re DJR but indicated he had not contemplated in that case the situation now before him, where the amount received by the plaintiff was well below that which might have been obtained at trial. Counsel for the plaintiff had advised the Commissioner that, although the amount actually attributable to past gratuitous care was about $90,000, the amount allowed in the settlement would have been about half of that sum as the settlement was, in his opinion, ‘on the low side of 50 per cent of a full verdict’.

24 Powell J was satisfied in ES that in principle a payment was appropriate. He did not consider that he had sufficient material before him to assess the amount. In light of the history of the proceedings, he questioned aspects of counsel’s advice. His provisional assessment was that the figure was more like $30,000 not $45,000. He then adjourned the matter and sought further information as to several matters to assist him in forming a final view.

25 In the course of his reasons, Powell J referred (at 343) to the Protective Commissioner’s exercise of discretion as involving an ‘exquisite dilemma’: that being the conflict between the moral obligation to the carer and the duty to ensure that the protected person’s estate is so managed as to serve that person’s best interests. He considered that such a ‘large view’ of what should be done for the benefit of a protected person extended to fulfilling a moral obligation of the person (at 343). This approach was also taken by the Court of Appeal in D’s case, see per McColl JA at [141]-[142], [150]-[156]. King CJ of the South Australian Supreme Court adopted a similar approach in Beasley v Marshall at 410, referring to the plaintiff’s ‘moral obligation to compensate those who have assisted him gratuitously, or will do so in the future, to the extent of the damages which have been awarded under that head.’

26 Returning to the Question before the Tribunal, the decision in ES does not, the Tribunal considers, go so far as to lay down a strict rule that a payment for past gratuitous care can never exceed the amount attributable to that category of damages within the settlement discussions; though it is clear that it was used as the primary reference point by the court. It is also important to note, as Mr Marks emphasised in submissions, that the protective jurisdiction of the Supreme Court forms part of its inherent jurisdiction, and usually the judges have seen themselves as invoking the inherent jurisdiction.

27 The next relevant case is Re GDM and the Protected Estates Act (Powell J, 11 November 1991) [1992] Aust Tort Reports [81-190]. The Protective Commissioner applied for approval to make a payment for past gratuitous care equivalent to the actual costs incurred by the plaintiff’s parents (and the defendants in the personal injuries action). On this occasion, Powell J said that the moral obligation of the plaintiff to reimburse his or her carers (the defendants) for past gratuitous care only arose if ‘an amount representing the value of those services has been included in the plaintiff’s verdict’. The question of whether such a sum had been expressly included in the verdict had become important at this time. The pre-eminent Australian academic commentator (Professor Luntz) had questioned the correctness of making awards of damages of this kind in circumstances where the gratuitous care had been provided by the defendant (a view Professor Luntz later recanted: see ‘Voluntary services provided by the defendant: further developments’ (1996) 4 Torts LJ No 1, p 3).

28 In the particular case, counsel had advised that he had been influenced by the Luntz view (which had gained some support in some Australian decisions) to compromise the overall claim to the extent of about 30% against what might have been obtained at trial. (The original estimate for past gratuitous care had been $100,000.) In his reasons Powell J questioned that commentary. But he acknowledged that it was at least arguable, in light of the advice from counsel, that the settlement could be interpreted as not having a past gratuitous care component at all. Ultimately Powell J left unresolved the question of whether a payment could properly be authorised by the court exercising its inherent jurisdiction if no allowance could be shown to have been made within the settlement for past gratuitous care. In this instance Powell J justified the permission that he ultimately gave, for a disbursement of $50,000, by having regard to s 28(1)(b) of the Act (then in the same terms as it was at the time of the decision in issue in this case).

29 He observed that the s 28(1)(b) power could be exercised ‘without reference to such questions as whether or not the amount proposed to be paid was, or could have been, comprised in any verdict’ (at p 61,690 col 1). He referred in particular to the word ‘maintenance’ in s 28(1)(b), and stated that this was a word of wide import. He noted that an infant, as the plaintiff was in this case, was entitled to ‘receive at least some degree of support, maintenance and care from his parents’. He then said (at 61,690 col 2):

‘If one approaches the question with these matters in mind it seems to me, first, that it would be proper to make some payment in respect of past domestic care, but that it would not be proper for that sum to be calculated by reference to full commercial rates; the approach suggested by the Protective Commissioner which leads to a figure of $50,000 is, in my view, appropriate’.
30 The importance of Powell J’s analysis lies in his preparedness to recognise that a head of power could be found in s 28(1)(b) for reimbursement of the cost of past gratuitous care. He did not explain why it was improper not to have regard to the full commercial value of the services.

31 In Re B [2000] NSWSC 44, Young J dealt with an application by the Protective Commissioner to approve a payment of $400,000 to the mother of the protected person. The Protective Commissioner had calculated the payment by reference to the amount of $370,000 that had been allowed for past gratuitous care in the verdict, and $30,000 related to out-of-pocket expenses incurred by the mother. The mother had claimed more, $600,000 for past care and $30,000 for out-of-pocker expenses. Young J stated at [11]: ‘There is no provision in the Protected Estates Act 1983 to permit payment out of the estate to settle any moral obligation that the protected person may have had, cf s 24. However, it has been held that the Court retains its inherent jurisdiction to authorise payments of this nature in appropriate cases.’

32 Young J noted that the ‘amount awarded … does not necessarily bear any relation to what B’s mother personally lost by providing the services, or any moral obligation of B to compensate her mother for such loss’ (at [13]). He referred to Powell J’s statement in Re DJR, cited earlier, that: ‘[T]he sum allowed for the services gratuitously supplied not only provides a convenient starting point, but, in many, if not all cases, will be the sum appropriate to be allowed.’

33 Young J added: ‘However, his Honour pointed out that various factors may make this amount inappropriate and it must also be borne in mind that the carer would not be paying income tax on the gratuitous amount.’

34 Young J appears to have overlooked Powell J’s later decision, Re GDM, where Powell J did see the Act as providing a basis for such a payment giving a broad interpretation to ‘maintenance’.

35 Young J then went on to examine the nature of the inherent jurisdiction. His conclusion was that there was a clear and ancient history of approving ‘voluntary payments’ to carers where it was probable that the protected person would have done so. In that regard, he commended authority that indicated that a ‘large view’ should be taken as to what the protected person might have done. Young J cautioned in closing:

‘20 However, in all of this it must be remembered that the fund is held by the Protective Commissioner for the benefit of the protected person and no gratuitous payment should be permitted if in any way the money held to provide for the protected person for the rest of her life could be diminished below what is necessary …’.
36 Young J then dealt with the question of what amount should be allowed. He did not closely fix on the amount allowed for past gratuitous care in the award, though ultimately he agreed that the amount proposed to be paid by the Protective Commissioner was appropriate. He said:
‘21 Applying these principles to the present case, if in full control of her faculties, the protected person may very well have reasoned that her mother has suffered a detriment through long term care, and that it would be more likely that her mother would look after her in the future if she made some provision to recompense for that detriment.

22 The amount held to B’s credit by the Protective Commissioner even if the recommended payment were made would still appear to be ample for B’s needs.

23 Both the expectation of B’s mother and the formula used by Master Malpass to calculate the Griffiths v Kerkemeyer damages do not provide an adequate quantification of what a reasonable person in the position of B might consider she should pay her mother. The fact that B is happy to pay her mother $600,000 is of little weight as B is not in a position to make that judgment, and in any event, the chances of her mother having some influence over B in the matter is fairly high.

24 However, doing the best one can it seems that the amount fixed on by the Protective Commissioner is fairly within the range. Accordingly I will approve it and order that that sum be paid out of B’s estate.’

37 This reasoning was applied by Young J in a short judgment given in 2001 ( Re N [2001] NSWSC 345), there approving a payment out of the estate equal to the amount allowed in the verdict for past gratuitous care.

38 Young J has seen the inherent jurisdiction, but not the statutory power of the Protective Commissioner, as providing a degree of freedom in relation to how the discretion to disburse funds from the protected person’s estate might be exercised. On the other hand, Powell J was more cautious about the inherent jurisdiction’s role, if there was no allowance made in the verdict or settlement, but was relatively expansive about the statutory power of the Protective Commissioner.

39 Submissions for Applicants: Mr Marks challenged Powell J’s approach in GDM in so far as it linked the extent of the moral obligation to the fact of a relevant award being made and, broadly, to the amount of that award. In his view, the moral obligation to pay a carer arises once the gratuitous services are provided, and the moral obligation covers the entirety of the amount that might be paid in expiation of that obligation, such amount only being limited by the commercial value of the services rendered. In Mr Marks’s submission, the Protective Commissioner is at liberty, therefore, to disburse funds that reflect the total value of the services even if the amount allowed in the damages award is much less.

40 As to whether the narrower approach said to be reflected in Powell J’s rulings should be followed, Mr Marks submitted that the Tribunal should not regard itself as bound by them. In particular, he emphasised that the Tribunal’s jurisdiction was a statutory one. The Tribunal’s obligation when engaged in the review of reviewable decisions, as here, was to ascertain what the correct and preferable decision was in the circumstances, having regard to all relevant material (see generally Administrative Decisions Tribunal Act 1997, s 63). Mr Marks submitted that the principles developed in the Supreme Court in its inherent jurisdiction did not bind the Tribunal.

41 In support of the view that the moral obligation to compensate exists independently of the fact of the award of damages, Mr Marks drew on statements by the High Court in Griffiths v Kerkemeyer itself. For example, both Gibbs and Mason JJ refer with apparent approval to a statement of Dixon CJ in Blundell v Musgrave (1956) 96 CLR 73 at 79 that it may be that ‘where the situation of the plaintiff is such that as a matter of moral and social obligation he is bound to bear an expense which he could only escape at the cost of his reputation for honest dealing, that is enough’ (139 CLR at 167 and 190; 15 ALR at 392 and 410 per Gibbs and Mason JJ respectively). He submitted that these dicta point towards an obligation arising independently of the payment of damages, even though the sentence is expressed tentatively. This view was recognised by a single judge of the Queensland Supreme Court in Huet v Irvine [2003] QSC 387. In that case, Dutney J considered carers of the injured plaintiff to have a ‘moral claim’ for payment (at [9]), even though the plaintiff had not yet received any verdict.

42 Submissions for the Respondent: The Protective Commissioner referred to Powell J’s statement in Re DJR to support his submission that the amount allowed in a damages award for past gratuitous care was the starting point when considering the payment of a carer, that payments in excess of that amount would not be in accordance with the practice established by the Supreme Court. Further a payment of the amount allowed should only occur if it would not significantly disadvantage the protected person. This approach gains some support from the observations of McKechnie J in Jones v Moylan [2000] WASCA 361 (WACA) at [155]-[156]: ‘Where there is a fund which will be seriously depleted by the payment of gratuitous services, then the balancing exercise as to what may be in the disabled person’s benefit is not able to be so easily calculated.’ McKechnie J accepted that ‘the amount calculated as the value of the gratuitous services is a guide’ (at [160]), but found that the ‘need to preserve a reasonable capital sum in trust for the plaintiff’s benefit’ may require payment of a lesser amount (at [158]).

43 Assessment: In the Tribunal’s opinion, and with due respect to the possibly-narrower view of Powell J in GDM, it is in the nature of a ‘moral’ obligation that it arises once the support begins to be furnished. Those that have provided support (especially loving family members) may not ever have monetary compensation in contemplation. But if a situation arises (such as in the event of a successful damages claim) where the plaintiff is in a position to compensate them, then that person would often be keen to recompense them as a token of appreciation for the impact of their injury on the lives of the carers. For most people, the sense of moral obligation would intensify once monies became available via a damages award.

44 In measuring the amount to be allowed, there may of course be some activities which would have occurred regardless and ought not be treated as falling within the moral obligation (as noted by Dutney J in Huet v Irvine).

45 There is, in the Tribunal’s opinion, no strict rule of the kind canvassed by the Protective Commissioner discernible in the decisions. It is the case, however, that the protective judges had treated the amount allowed as the primary reference point, and have not in practice exceeded it when approving payments.

46 In the Tribunal’s opinion the appropriate approach is to start with the actual value of the services rather than the amount that may have been allowed. This point is, the Tribunal considers, especially important when dealing with, settlements where distortions not present in court verdicts are present – the making of ambit and unrealistic claims as well as risk calculuses to do with losing. In Re DJR Powell J noted that the damages component was a convenient starting point ‘since it represents the value of the services’. Making the actual amount the starting point is also consistent, the Tribunal considers, with the principle that the market cost or value of the services provided is generally the determinant of the appropriate component of damages when a personal injuries award is being made: Van Gervan v Fenton (1992) 109 ALR 283 per Mason CJ, Brennan, Toohey, Gaudron and McHugh JJ; see also Kars v Kars at 49 per Toohey, McHugh, Gummow and Kirby JJ and at 39 per Dawson J; Marsland v Andjelic (1993) 31 NSWLR 162 at 174 and Goode v Thompson [2002] 2 Qd R 572. The next step is to determine whether it is appropriate to make available the whole amount in light of the other needs of the protected person that the Commissioner is obliged to allow for.

47 Mr Marks submitted that the Tribunal need not regard itself as being obliged to apply the principles developed in the inherent jurisdiction. The Tribunal had a statutory jurisdiction, and therefore freedom to develop its own approach. That submission finds some support in the approach taken by Powell J in Re GDM where he saw s 28(1)(b) as empowering the court to award damages for past gratuitous care in circumstances where he saw a doubt as to the ability of the inherent jurisdiction to make such an award. That s 28(1)(b) has a role to play in relation to applications of the present kind was endorsed by McColl JA (who delivered the leading judgment) in D’s case. But her Honour also observed of s 28(1)(b) at [165] that ‘There is every reason to think that the legislature intended to permit payments in respect of ‘past maintenance’ in the same manner as the Courts had permitted such payments to be made in their inherent jurisdiction’. McColl JA’s approach is one that seeks to harmonise the way the inherent jurisdiction and the statutory jurisdiction deals with an issue that could arise in either context. In the Tribunal’s opinion, Powell J’s view that only the statutory jurisdiction is available to deal with cases where there is no allowance in the award or settlement for gratuitous care is not correct, nor, with respect, is Young J’s contrary view that the inherent jurisdiction provides the only basis for making payments in respect of past gratuitous care.

48 Moreover, the Tribunal agrees with Dutney J who noted in Huet v Irvine (QSC) consideration may be given to factors ‘which, singly or in combination, might justify the payment of the value of the past care to a claimant even if the fund is prima facie inadequate’ (at [13]). Thus, Dutney J did not consider himself bound to ‘compromise’ the carer’s entitlement in proportion to the compromise of the whole claim. Similar thinking is reflected in Jones v Moylan. The Court was asked to approve a proposed compromise of an action for personal injuries. It was submitted that the amount payable to the carer should be reduced ‘pro rata’ as the total claim was compromised. McKechnie J rejected such a simple formula, as it did not adequately balance ‘the mix of factors necessary to make an appropriate order for the benefit of a plaintiff’ (at [158]).

49 Both cases emphasise that the court’s discretion ‘is to be exercised solely for the welfare, benefit and advancement of the disabled person’ (Jones v Moylan at [116]) and reject the idea that a payment to a carer can be quantified according to any mathematical formula. This is consistent with the High Court’s view that a person’s moral obligation to a carer arises at the time the care is provided, and is not merely a product of a damages award.

50 In the Tribunal’s view, taking particular account of McColl JA’s observations in D’s case, other recent Australian cases as well as the decisions of Powell J and Young J in New South Wales, the following principles emerge:

· A ‘large view’ should always be taken in seeking to serve the person’s best interests and that includes fulfilment of moral obligations to a carer: D’s case at [141]-[142], [150]-[156] per McColl JA; see also Re ES at 343-44 and Re B at [16].

· The starting point for calculating the value of past gratuitous care is the value of the services as measured by the market cost or market value of such services.

· There is a need to preserve a reasonable capital sum for the protected person’s benefit and future needs, and care must be taken to ensure that any payment does not ‘compromis[e] the future maintenance and care of that person’: Re ES at 344; see also Jones v Moylan.

51 This approach seeks to recognise the discretion of the court or trustee to determine the appropriate payment in the circumstances of the case. While, as noted, the usual outcome in the reported cases has been approval for payment of an amount equal to or less than the amount allowed in the verdict or settlement, a payment in excess of the amount allowed is not precluded if the amount allowed is less than the actual market cost of the services. If the protected person’s estate is large enough to justify such a payment, and it is in the person’s interests to do so, a payment of the full amount of the value of the carer’s services may be appropriate.

52 It will be seen that in this case the Protective Commissioner has been concerned – properly – to make a decision that does not leave the fund depleted, if at all possible, before the remainder of D’s life expectancy (now 15 years) has passed. The Commissioner is trying, so far as possible, to ensure that the fund’s use is spread over the 15 years. As matters stand presently, a cautious approach to depleting the capital base may be appropriate.

53 Were circumstances to change for the worse and D’s life expectancy became much less, then it might be open to take a less cautious approach to depletion of the capital base. For example, unexpectedly a protected person with a long life expectancy might be found to have a life-threatening illness and their life expectancy might be reduced to, say, two years. In such a case it may well be that the capital in the fund far exceeds any expenditure that would be required in the two year period. It might then be possible to recompense carers for the full value of the past gratuitous care that they rendered, even though something less than that amount had only been allowed in the verdict or settlement. Many protected persons, if they could convey their wishes, would – the Tribunal considers – be more than happy for the totality of the moral obligation to be satisfied, even though they were never given the whole amount in the original verdict or settlement.

54 This example, in the Tribunal’s view, underlines the strength of the submissions put by Mr Marks. The question always is one of what the estate can prudently afford.

55 Clearly the Commissioner must balance a variety of considerations. But if the estate can afford to recompense the carers for the totality of their gratuitous services, that should not be prevented on the basis of a rule that constantly refers back to what was allowed in the heads of damages. The only limit should be the one suggested by Mr Marks: it would clearly be irresponsible for the Protective Commissioner to pay a sum that exceeded the value of the services, measured in the way laid down in the case law.

56 The determination of the amount which should be paid to D’s family is a matter of evidence, directed to the above factors. As McKechnie J noted, payment of a reimbursement for past gratuitous services should only be ordered on proper evidence: Jones v Moylan [2000] at [119]; Grevett v McIntyre [2002] QSC 106 at [6]; see also Huet v Irvine at [10]. Such evidence includes ‘details of the nature and extent of the services, evidence of the fair value of those services and an assessment of the risk, if any, that the proposed payments may unacceptably diminish the capital sum required to meet the plaintiff’s future needs’: Huet at [10]. It should be noted that in Grevett’s case the Queensland Supreme Court held that, in a personal injuries settlement, counsel’s opinion on the amount which might have been awarded for past gratuitous care was not sufficient to sustain an adequate foundation for the payments (at [6]).

Order

1. The Question is answered ‘yes’.

2. Directions to be made for the final hearing of the application.