(a)The plaintiff is to bring in Short Minutes of Order. The proposed short minutes are to be filed and served within seven days of the date of judgment.
(b)If any party disagrees with the plaintiff's proposed short minutes of order, then that party is to file and serve any proposed short minutes of order within 14 days of the date of judgment.
(c)Within 21 days of the date of judgment, each party is to file and serve such written submissions as they wish with respect to the proposed short minutes of order, including any submissions as to costs.
(d)Proceedings listed for further hearing on any outstanding matters arising from the short minutes of order and submissions at 9.15am on Friday 9 December 2011.
(e)Liberty to apply on 24 hours' notice.
(f)Filing of the short minutes of order and submissions is to take place electronically to my Associate.
Catchwords:
PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings - Plaintiff catastrophically injured in motor vehicle accident - Assessment of damages detailed and complex - Clarifying legal basis of determining damages will assist parties - Promotion of settlement
STATUTORY INTERPRETATION - Damages - Personal injury proceedings - Motor vehicle accident - Whether Motor Accidents (Lifetime Care and Support) Act 2006 abolished damages pursuant to s128 Motor Accidents Compensation Act 1999 - No clearly expressed intention to abolish damages for gratuitous attendant care services - Statutory expectation that attendant care services will be provided as part of Lifetime Care and Support Scheme
DAMAGES - Personal injury proceedings - Motor vehicle accident - Lifetime participant of Lifetime Care and Support Scheme (LCS Scheme) - Whether LCS Scheme or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously - LCS Authority obliged to make assessment of all treatment and care needs of a participant - Subject to questions of reasonableness and causation - Motor vehicle tortfeasor/CTP insurer remains obliged to pay LCS Authority for treatment and care costs of LCS participant - Griffiths v Kerkemeyer damages up to date of judgment recoverable if LCS Authority does not accept obligation to pay for gratuitous services - Services have not been provided for up to date of judgment - Question of fact if attendant care services provided for - Future attendant care services are excluded from damages
STATUTORY INTERPRETATION - Motor Accidents (Lifetime Care and Support) Act 2006 - LCS Guidelines subordinate to LCS legislation and cannot derogate from obligations - Total ban on inactive sleepover payments cannot be justified by legislation - LCS Guidelines regarding inactive sleepovers valid insofar as inactive sleepovers do not form care plan of participant - Question of fact
[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.
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AGLC
Thiering v Daly [2011] NSWSC 1345
Case
[2011] NSWSC 1345
Decision Date
CaseChat Overview and Summary
Thiering v Daly involved a catastrophic injury sustained by the plaintiff in a motor vehicle accident, resulting in a complex assessment of damages. The court was asked to determine the legal basis for the damages and whether specific questions needed to be resolved to facilitate a just, quick, and inexpensive resolution of the proceedings. The case also considered whether the Motor Accidents (Lifetime Care and Support) Act 2006 had abolished certain damages under the Motor Accidents Compensation Act 1999, and whether the Lifetime Care and Support Scheme or the motor vehicle tortfeasor/CTP insurer was liable for gratuitous attendant care services.
The court addressed several legal issues, including whether the Lifetime Care and Support Scheme or the motor vehicle tortfeasor/CTP insurer was responsible for paying for gratuitous attendant care services. The court found that the Lifetime Care and Support Authority was obliged to assess all treatment and care needs of participants, subject to questions of reasonableness and causation, but the motor vehicle tortfeasor/CTP insurer remained liable for the costs of treatment and care. The court also considered whether the Motor Accidents (Lifetime Care and Support) Act 2006 had abolished certain damages under the Motor Accidents Compensation Act 1999. The court concluded that there was no clearly expressed intention to abolish damages for gratuitous attendant care services, and that the statutory expectation was that such services would be provided as part of the Lifetime Care and Support Scheme. The court found that the Lifetime Care and Support Scheme Guidelines were subordinate to the legislation and could not derogate from the obligations imposed by the legislation, and that a total ban on inactive sleepover payments could not be justified by the legislation.
The court's reasoning led to the conclusion that the proposed set of questions would facilitate the just, quick, and cheap resolution of the proceedings. The court also found that the damages for gratuitous attendant care services were recoverable if the Lifetime Care and Support Authority did not accept the obligation to pay for such services. The court held that the question of whether the services had been provided up to the date of the judgment was a question of fact, and that future attendant care services were excluded from damages. The final orders of the court clarified the legal basis of determining damages and facilitated the promotion of settlement.