Thiering v Daly (No 2)

[2011] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation:

Thiering v Daly (No 2) [2011] NSWSC 1585

Hearing dates:

09/12/2011

Decision date:

19 December 2011

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) That the separate questions be answered in the manner set forth in paragraph [16].

(2) The first and second defendants to pay the costs of the motion and hearing of separate issues of the first and second plaintiffs.

(3) Each of the first and second defendants are to pay their own costs of the motion and hearings.

Catchwords:

CONSEQUENTIAL ORDERS - Answers to separate questions - Availability of declaration
COSTS - No issue of principle

Legislation Cited:

Motor Accidents Compensation Act 1999
Motor Accidents (Lifetime Care and Support) Act 2006
Uniform Civil Procedure Rules 2005

Category:

Consequential orders

Parties:

Alexander Thiering (P1)
Rose Thiering (P2)
John Daly (D1)
Lifetime Care and Support Authority of New South Wales (D2)

Representation:

J McDonald (P1-2)
K Rewell SC (D1)
C Needham SC (D2)
Slater & Gordon (P1-2)
Moray & Agnew (D1)
Workcover NSW (D2)

File Number(s):

SC 2010/22260

Publication restriction:

Nil

Judgment

1. On 11 November 2011, I delivered my principal judgment in this matter: [2011] NSWSC 1345.

1. The principal judgment dealt with certain separate issues which the parties had identified. At the conclusion of the judgment in [169], I set out some tentative views as to the answers which should be given to those separate issues posed for determination and directed that the parties provide proposed short minutes of order and submissions in support of the answers for which they contended. In addition I directed that such submissions also deal with the question of costs.

1. On Friday 9 December 2011, I heard oral submissions from the parties with respect to the answers which each contended the Court should give.

1. This judgment deals with the outstanding issues of the answers to be given and the appropriate orders for costs.

1. This judgment assumes all of the facts and matters dealt with in the principal judgment and I will not repeat those matter unless necessary so to do.

Determination of Separate Issues

1. Broadly speaking, the plaintiffs were in agreement with respect to the answers of the first defendant, the motor vehicle tortfeasor. The second defendant, the Lifetime Care and Support Authority of NSW (the "LCS Authority") submitted that different answers ought be given to the questions.

1. Again, speaking generally, the LCS Authority submitted that as the separate issue questions were posed in the present tense that it was inappropriate for the Court to go outside those questions and give answers in anything more than one or two words.

1. I do not accept the submissions of the LCS Authority that the appropriate way to answer the various questions is confined to a one or two word answer.

1. The basis for the submission that the answers ought be so confined, was that the questions posed for separate determination were phrased in the present tense and that therefore, since the Court had determined the position as it presently stood, there was no purpose to be served by answering in a more expansive way.

1. There are two principal difficulties with this submission. The first is that the parties clearly draw a distinction between the time period up to judgment (or the date of a settlement) of the first plaintiff's claim for damages and the period after such judgment (or settlement) for the future. By way of illustration, Question 1 asked whether the LCS Authority was under an obligation to pay for gratuitous care and assistance up to the date of judgment.

1. In her submissions on 9 December 2011, senior counsel for the LCS Authority, on a number of occasions, accepted that their concept of a claim for past expenses extended up to the date of judgment, which has not yet arrived.

1. At T8.23, Ms Needham SC said:

"And your Honour has seen the particulars which defined, in effect, the claim as a claim for past care only which they say will continue to the date of judgment and which, as I said, all the parties are happy to accept that slight extension."

1. At T9.34, when dealing with Question 4, Ms Needham SC said:

"It focuses on the wording of the [Motor Accidents (Lifetime Care and Support) Act 2006], relevantly s 6, and it focuses on the present rights and the case up to the date of judgment which, as I have said before, your Honour, the parties understand to mean what we have been calling 'past services' and that is the basis on which all the particulars and all the argument has proceeded thus far."

1. Since the time for judgment (or settlement) of the principal proceedings has not yet arrived, it would be inappropriate to limit the answers in the way submitted by the LCS Authority. To do so would be to bar a claim which is presently open to either of the plaintiffs and which they are entitled to make up to the date of resolution of that claim.

1. The second reason is that to answer the questions briefly would be to ignore the complexities of the issues posed. Whilst, in some cases, a single word answer may be appropriate, the questions posed here invite more thoughtful consideration. As well, one of the main reasons why the separate determination of these questions was urged on the Court was that the process would promote early settlement. Full answers are more likely to achieve that object.

Answers

1. Accordingly, I reject the submissions of the LCS Authority, that the questions ought be answered in the way proposed and I will answer them in the following way:

1. Does the second defendant (LCS Authority) have an obligation under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) "LCS Act" to pay for gratuitous care and assistance provided by the second plaintiff ('the mother') to the first plaintiff ('the injured person') up to the date of judgment?

The LCS Authority may have an obligation under the LCS Act to pay for gratuitous care and assistance provided by Mrs Thiering to Mr Thiering up to the date of judgment, but only if it is established that the cost of the provision by Mrs Thiering of attendant care and assistance to Mr Thiering is an expense incurred by or on behalf of Mr Thiering within the meaning of s 6(1) of the LCS Act.

The provision of attendant care services by one person to another without charge and without either an accepted or else a determined legal liability to pay, does not constitute an "expense incurred by or on behalf of the injured person".

(a) Is the mother's care and assistance 'expenses incurred by or on behalf of the injured person' within the meaning of section 6(1) of the Act?

Mrs Thiering's care and assistance is not an expense incurred by or on behalf of the injured person, within the meaning of s 6(1) of the LCS Act, unless or until it has been established by evidence that the LCS Authority has accepted a legal liability to pay Mrs Thiering or else it has been determined that a legal liability rests in the LCS Authority to pay Mrs Thiering.

(c) Do the Lifetime Care and Support Guidelines (Part 8) authorise the LCS Authority to decline payment of the mother on the basis that she is a family member and alternative care is available?

Not appropriate to answer.

(d)   Do the Guidelines (Part 8) authorise the LCS Authority to decline payment of the mother for:

(i) Care provided to or visiting the injured person while an inpatient in hospital?

Not appropriate to answer.

(ii)   Inactive sleepovers (after 8 October 2010)?

To the extent that Part 8 of the Guidelines states as a policy that the LCS Authority will not fund family members or friends to provide inactive sleepovers, the Guideline is invalid, and therefore cannot alone authorise the LCS Authority to decline payment of a family member, including the second plaintiff.

(e) Alternatively to 1(d), are these 'reasonable expenses' within the meaning of section 6 of the Act?

Any attendant care services can constitute " reasonable expenses " within the meaning of s 6 of the Act, provided that:

(a)   they constitute part of the treatment and care needs determined by an assessment under s 23 of the LCS Act; and

(b)   there exists a legal liability resting on the LCS Authority to pay for those services or else if the services have been paid for.

2. If there is an obligation to pay the mother, on what basis should an appropriate hourly rate be determined?

Inappropriate to answer.

3. Does the mother have standing to bring and maintain these proceedings against the LCS Authority?

Mrs Thiering has standing to bring a claim against the LCS Authority, including maintaining these proceedings. The strength of that claim, including her likelihood of success, has not been assessed.

4. If so, issues 1 and 2 above also arise for determination in the mother's claim against the LCS Authority.

If the second plaintiff, Mrs Thiering, establishes a legal liability resting in the LCS Authority, such as one in accordance with the principles of quantum meruit, to pay her for the attendant care services which she has provided, the LCS Authority would be obliged to pay Mrs Thiering for the fair and reasonable value of the attendant care services she has provided, where those attendance care services are included in an assessment of the reasonable treatment and care services of Mr Thiering produced in accordance with s 23 of the LCS Act. Mrs Thiering, in propounding such a claim, is not limited to the formula contained within s 128 of the MAC Act for the recovery of a reasonable value of her services.

5. Whether on proper construction of section 130A of the Motor Accidents Compensation Act 1999, the first plaintiff has any entitlement as against the first defendant other than damages for non-economic loss and loss of earning capacity.

Mr Thiering, as a participant in the LCS Scheme is entitled to recover from the first defendant, motor vehicle tortfeasor (or its CTP insurer) damages in accordance with s 128 of the MAC Act for the period from the accident to the date of judgment, or settlement, as the case may be, unless the LCS Scheme has incurred an expense under s 6(1) of the LCS Act with respect to the provision of such gratuitous attendant care services.

Declarations

1. The first defendant sought that the answers given to Question 1(d)(ii) and also Question 5 ought be given in the form of a declaration. It was submitted that the making of a declaration would more readily articulate the rights of the parties as determined by the Court.

1. I note that in the motion for the questions to be heard and disposed of as a separate issue, there was no relief claimed by way of declaration.

1. Ordinarily, in matters of this kind, it would be inappropriate to make a declaration. That is because what the Court is determining is not merely rights between parties, but rather whether one or other plaintiff is entitled to a judgment in money terms against one or other of the defendants. Declaratory relief generally has no role to play in such proceedings.

1. The parties are not in agreement about whether declarations should be made. Although, initially there was confusion about it, it seems that the position of the second defendant is that it opposes both declarations being made. I will, at least, in the presence of confusion, take that to be the case.

1. Each of the facts, that there was no claim for a declaration made initially in the proceedings, that not all parties agree to the making of declarations and declarations are sought to be made in proceedings in which the main claim is for damages for personal injury, in combination persuade me that sufficient reason has been shown to decline to exercise my discretion to grant the declaratory relief sought.

1. Accordingly, in my discretion, I decline to make declarations which reflect the answers to Questions 1(d)(ii) and 5.

Costs

1. The first and second plaintiffs submitted that they should have their costs of and incidental to the motion paid by the first and second defendants jointly.

1. The first defendant submitted that the plaintiffs should have their costs of the motion and that the first and second defendants should each pay their own costs of and incidental to the motion.

1. The second defendant submitted that its costs of the motion should be paid by the first defendant and that the first defendant should pay the plaintiff's costs of the motion.

1. The general rule is that costs follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005.

1. A costs order, which is compensatory in nature, should be made to reflect the underlying considerations of what is fair, or just and reasonable, in all of the circumstances. What is essentially involved is a broad based, evaluative judgment.

1. It seems to me that the plaintiffs have been substantially successfully and, accordingly, ought have their costs of the motion.

1. Each of the defendants have been comparatively less than successful in their arguments as to what the answers should be and, accordingly, it seems appropriate that the plaintiff's costs should be paid equally by each of the first and second defendants, and that the first and second defendants should bear their own costs of the motion.

Orders

1. The formal orders of the Court are:

(1) That the separate questions be answered in the manner set forth in paragraph [16].

(2)   The first and second defendants to pay the costs of the motion and hearing of separate issues of the first and second plaintiffs.

(3)   Each of the first and second defendants are to pay their own costs of the motion and hearings.

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Decision last updated: 19 December 2011