State of New South Wales v Perez

The appeal concerned a claim for damages for loss of capacity to provide gratuitous domestic services, brought by the respondent, Mr. Perez, against the appellant, the State of New South Wales, in the Dust Diseases Tribunal. Mr. Perez had contracted a dust disease and sought damages under section 15B of the *Civil Liability Act 2002* (NSW) for the loss of his ability to provide domestic assistance to his grandchildren.

The primary legal issues before the Court of Appeal were whether the Tribunal had erred in its calculation of damages. Specifically, the court had to determine the correct interpretation of the phrase "that need is reasonable in all the circumstances" within section 15B(1)(b) of the *Civil Liability Act 2002* (NSW), and whether the Tribunal had improperly awarded damages by failing to account for the concurrent provision of similar services by Mr. Perez's wife, and by not reducing the award to reflect the overlap in services provided to different grandchildren.

The Court of Appeal found that the Tribunal had erred in its assessment of damages. The court held that the "need" referred to in section 15B(1)(b) must be assessed in light of the circumstances of the dependants, not solely the claimant. Furthermore, the court determined that the Tribunal had failed to adequately consider the concurrent provision of services by Mr. Perez's wife, which meant that the need for Mr. Perez's services was not as extensive as found. The court also found that the Tribunal had engaged in "double counting" by not accounting for the overlap in services provided to different grandchildren, where the same services were provided at the same time to multiple children.

Consequently, the Court of Appeal allowed the appeal, setting aside the Tribunal's original judgment. The court declared that Mr. Perez was entitled to damages in a reduced amount, with the matter remitted to the Dust Diseases Tribunal for further assessment of outstanding claims regarding gratuitous domestic services. The parties were ordered to bear their own costs of the appeal.