Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines

MEAGHER JA: I agree for the reasons given by Simpson AJA that the appeal should be dismissed with costs and, in view of the respondent’s death subsequent to the completion of argument, that a person be appointed to represent his estate. Had it been necessary to decide, I would agree with White JA’s conclusion that failure to give adequate reasons was a ground of appeal available to Seltsam under Dust Diseases Tribunal Act 1989 (NSW), s 32.

WHITE JA: These are appeals from a judgment of the Dust Diseases Tribunal (Kearns J) given on 18 December 2017 in favour of the respondent in the sum of $1,479,000 (Raines v Amaca Pty Ltd & Seltsam Pty Ltd [2017] NSWDDT 16).

The respondent, Mr Percy Raines, sued Amaca Pty Ltd (under NSW administered winding up) (“Amaca”) and Seltsam Pty Ltd (“Seltsam”) for damages arising from his exposure to asbestos and asbestos dust in approximately 1967 and late 1975 to early 1976. He was diagnosed with mesothelioma in August 2016.

Amaca and Seltsam were manufacturers, suppliers or distributors of the products to which Mr Raines was exposed. During the course of the hearing both defendants admitted liability. The Tribunal was informed that the defendants had agreed on questions of apportionment between them. The parties resolved all aspects of the quantification of damages, except for Mr Raines’ claim for damages under s 15B of the Civil Liability Act 2002 (NSW) for loss of his capacity to provide gratuitous domestic services to his wife Robin and his son Richard. This appeal concerns the award of damages under s 15B.

In these reasons I will refer to Mrs Robin Raines, Mr Richard Raines and to Mr Raines’ other son, Steven, and Steven’s wife, Elaine, by their first names. I will also refer at times to Mr Raines by his first name, Percy. I use the names Mr Raines and Percy interchangeably. I use first names for ease of reading and intend no disrespect.

Richard suffered a work-related injury in a motor accident on 11 December 1996 . As a result of the accident he suffered a severe traumatic brain injury. At the time of the accident he was married, but the marriage did not survive. Steven was appointed as Richard’s financial manager. At the time of Richard’s injury he was living in Coonamble. At that time Percy and Robin lived at Lightning Ridge. They moved to Coonamble to look after Richard as he was no longer capable of looking after himself. With money obtained from a lump sum workers’ compensation payment Richard (through his financial manager, Steven) acquired a property at Muswellbrook to which he moved with his mother and father. Steven gave unchallenged evidence that Richard received some commercial care paid for by his workers’ compensation insurer, but otherwise required around-the-clock care which his parents provided.

Mr Raines deposed that Richard received professional care managed by HB Rehab and paid for by CGU Workers Compensation. The commercial carers took Richard into town from 10.00 am to 3.00 pm on Monday, Wednesday and Friday and also provided him with care on Friday evenings from 6.00 pm to 10.00 pm. He also received about four hours of paid cleaning on Wednesdays from 10.00 am to 2.00 pm. When Percy and Robin were away for any period they arranged for a carer to provide Richard with 24-hour supervision and care.

Robin was also injured in a motor vehicle accident. She suffered her injury in 1981. It led to two operations on her lower back. She has other medical issues. She was 77 years at the time of the hearing. Percy also provided gratuitous domestic services to Robin. Percy deposed that Robin was unable to exert herself because she is restricted by pain in her legs, joints and lower back and that she needed assistance with anything that required strength and physical exertion.

Section 15B of the Civil Liability Act provides that damages can be awarded for the loss of a claimant’s capacity to provide gratuitous domestic services to a dependant. The section was passed in response to the High Court’s decision in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, that held that such loss of capacity could only be compensated by an award of general damages for non-economic loss. Section 15B(5) provides that damages cannot be awarded on that basis but can be awarded as compensation for economic loss if the conditions of the section are satisfied and subject to the limitations on quantum for which the section provides.

The primary judge held that the amount of damages to be awarded for the loss of Mr Raines’ capacity to provide gratuitous domestic services to Richard and Robin should be assessed on the basis that he provided such services to Robin for eight hours per week and to Richard for 73 hours per week. In Richard’s case the 73 hours per week was calculated as nine hours per week of what was called active care and 64 hours per week of what was called passive care. The primary judge calculated that at the hourly rates of $30.15 per hour, being the maximum hourly rate allowed, the amounts to be allowed for loss of capacity to provide past care to Robin and Richard for the period from 30 July 2016 to 18 December 2017 was $102,570. For the future, the primary judge applied a discount of 10 per cent for vicissitudes and assessed damages in the sum of $89,524 for Percy’s lost capacity to provide gratuitous domestic services to Robin, and $716,191 for his lost capacity to provide gratuitous domestic services to Richard. The primary judge noted that the parties had agreed that in respect of all other issues Mr Raines should be paid a sum of $470,000. In the result his Honour said that there would be a verdict and judgment for the plaintiff in the sum of $1,479,000.

Section 15B of the Civil Liability Act provides:

Amaca and Seltsam appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW). Section 32(1) provides:

Neither party addressed the limitations arising from the right of appeal being available to a party dissatisfied with a decision of the Tribunal in point of law.

In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Basten JA said that the preferable construction of s 32(1) of the Dust Diseases Tribunal Act is that the right of appeal is not confined to a case where the Tribunal has made a decision on a point of law, but that an appeal lies where a party is dissatisfied in point of law with a decision of the Tribunal (at [149]). On the former reading the Tribunal would have to have decided the point of law for an appeal to lie. In the latter case it would be sufficient if the final conclusion of the Tribunal were affected by an error of law (Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 at [14]). In Amaca Pty Ltd v Doughan [2011] NSWCA 169 Sackville AJA with whom Giles and McColl JJA agreed said (at [27]):

With respect, I would have thought that the reasoning of Basten JA in Seltsam Pty Ltd v Ghaleb which was referred to with approval by Allsop P in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [47] ff would indicate that it is not necessary to identify an explicit or implicit decision in relation to a question of law which has been raised or determined by the court from which the appeal or tribunal from which the appeal is brought. In Goodwin v Commissioner of Police [2012] NSWCA 379, Basten JA made it clear (at [10]) that it is where an appeal is permitted from a decision of the tribunal on a question of law that the appellant must be able to identify an express or implicit decision of the tribunal in relation to the question of law that had been raised before it or determined by it. If there is a right of appeal on a question of law (as distinct from a right of appeal from a decision on a question of law) the right of appeal is wider. Basten JA’s reasons in Seltsam Pty Ltd v Ghaleb demonstrated a preference for the wider right of appeal.

In Amaca Pty Ltd v Doughan the Court of Appeal held that an appeal lay under s 32(1) on the ground of denial of procedural fairness (at [33]) thereby implicitly endorsing the wider construction of s 32(1) preferred by Basten JA in Seltsam Pty Ltd v Ghaleb. The wider construction was also adopted in Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281 at [305]; and CGU Insurance Ltd v AAI Limited [2016] NSWCA 335 at [27] and [31]).

The wider construction has been adopted in the case of appeals to this Court from a decision of the Presidential member of the Workers Compensation Commission under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 which confers a right of appeal on a party “... aggrieved by a decision of the Presidential member in point of law ...” (Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45; (2012) 10 DDCR 290 at [75] per Bathurst CJ; Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [297]-[299]).

The nature of the appeal is relevant in two ways.

First, Seltsam contended that the primary judge failed to give adequate reasons for his decision. There was no dispute that failure to give adequate reasons can be an error of law, but it may be doubted that it is a decision on a point of law. Mr Raines did not argue that this ground of appeal was not available on an appeal under s 32(1). Generally for a failure to give adequate reasons to raise a point of law, the decision maker must have constructively failed to exercise his or her jurisdiction to make a necessary decision (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]; State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12]; Goodwin v Commissioner of Police [2012] NSWCA 379 at [20]; Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [298]) or failed to disclose a path of reasoning to enable an appellate tribunal or court (when an appeal lies in point of law) to determine whether the decision maker did err in law in reaching the decision (Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274, 281-2).

Secondly, Seltsam argued that what the parties and the judge characterised as passive care (Mr Raines’ being on hand if needed or providing companionship) was not a gratuitous domestic service within the meaning of s 15B. This point had been conceded in argument before the primary judge. The primary judge assumed but did not decide that it was a gratuitous domestic service.

It has been held in statutory contexts not dissimilar from the one presently before the Court that if an issue were not in dispute at trial, it cannot be said to give rise to an error or point of law on appeal. Section 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) provided that if the Tribunal decided a question with respect to a matter of law, a party who was dissatisfied with the decision might, subject to the section, appeal to the Supreme Court against that decision. The section was framed more narrowly than s 32(1) of the Dust Diseases Tribunal Act. In relation to s 67(1) it has been held that if a point of law was not raised before the Tribunal it cannot be raised on appeal (Ilvariy Pty Ltd t/as Craftsman Homes Northern Rivers v Moss (2009) 74 NSWLR 710; [2009] NSWCA 207 at [27]). Section 32 of the Compensation Court Act 1984 (NSW) provided that a party might appeal to the Supreme Court if there were “a point of law”. Handley JA (Clarke and Meagher JJA agreeing) held in Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148 at 154 that if the exercise of a discretion were not in dispute at first instance, it could not then be said to be an error of law for the judge not to give reasons for exercising the discretion.

However, Mr Raines did not contend that the point was not available because of the limited nature of the right of appeal. Accordingly, in the absence of prejudice, and none was suggested, and in the absence of contrary argument, I proceed on the basis that it is open to Seltsam to rely on its contention that passive care was not a gratuitous domestic service within the meaning of s 15B.

Amaca identified three grounds of appeal as follows:

The third ground did not identify any question of law, merely asserting that there had been error. In oral submissions it emerged that the third ground was in respect of Mr Raines’ loss of capacity to provide past gratuitous domestic services; Mr Raines had conceded in his calculation of claimed damages that he had retained 70 per cent capacity from late October 2017 to shortly before the trial. But instead of awarding 30 per cent of the calculated hours of provision of such services, the primary judge calculated damages on the basis that Mr Raines had lost the capacity to provide all of those hours of domestic services before trial. The primary judge erred in this respect. But the error was an error of fact. There was no ground of appeal that Amaca had been denied procedural fairness.

Amaca’s appeal was otherwise confined to the allowance of damages for the loss of Percy’s capacity to provide gratuitous domestic services to Richard. The reference in ground 1(b) of the notice of appeal to Richard’s care needs being required to be met by another source is to s 60AA of the Workers Compensation Act 1987 (NSW) (“the WC Act”). Section 60AA(1) provides:

Seltsam’s grounds of appeal were wider. They were:

It is convenient to deal first with Seltsam’s grounds of appeal.

The primary judge did describe the services provided by Mr Raines to Robin and Richard by reference to Dr Obeid’s report. Seltsam had objected to the admissibility of Dr Obeid’s report. That objection is dealt with below. Part of Dr Obeid’s report was inadmissible. But on the issues as they were litigated, the objection goes nowhere.

The asserted need for the primary judge to have identified more specifically than he did the services provided by Mr Raines to his wife and son has to be assessed against the fact that Mr Raines described the services he performed in detail. He was not challenged on his evidence either as to the services provided, nor the time taken in their provision. Two occupational therapists also gave evidence on those matters. The primary judge preferred the evidence of the occupational therapist called by Mr Raines, a Ms Kahren White. Her reports were admitted without objection and also described the services provided by Mr Raines and the amount of time taken in the provision of the services. Seltsam’s ground of appeal that the primary judge failed to give adequate reasons as to the amount of domestic care provided by Percy should be rejected. The primary judge did so in part by reference to Dr Obeid’s and Ms White’s reports (judgment [17]-[22]) and in part by his summary of the “passive care” Percy provided Richard (judgment [46]). The balance of Seltsam’s grounds of appeal are addressed below.

In his first affidavit Mr Raines described the care he provided for Robin and Richard in general terms without attempting to identify how much time was spent in providing the care. He said that he was caring for Robin since the time of her accident in the 1980s. The accident had left her with terrible back problems. She has a detached retina and poor eyesight and a lot of joint pain and is frail when walking or doing any physical tasks. Mr Raines deposed that he used to drive Robin to and from her medical appointments, run errands into town, such as picking up her medication and attending to the washing on top of other domestic chores, such as cleaning, vacuuming, emptying the rubbish and taking the bins out. He said that anything that was overly physical he had to do. Robin could not do heavy jobs like lifting cooking pots or rubbish bags or pushing the vacuum cleaner. Robin could not push the trolley or lift heavy bags. These were things that Mr Raines did before he became too fatigued and breathless as a result of contracting mesothelioma. In his first affidavit Mr Raines deposed that before he became unwell he assumed most of the household duties, including washing and ironing clothes, vacuuming, cleaning and driving around to complete errands. Shopping took two to three hours per week. He took Richard and Robin to their medical appointments. His disease meant that he was unable to do these things.

In his second affidavit dated 9 October 2017 Mr Raines provided a more detailed description of the services he provided to Richard and to Robin. It is not necessary to set out the whole of that evidence, but it is necessary to set out some of it to appreciate the submissions made by Seltsam.

Mr Raines deposed that Richard got up every morning at about 6 am and would usually have a shower. Mr Raines deposed that he always had to stand around and keep an ear out for Richard whilst he was showering because he might need assistance. Richard usually took about an hour to shower and dress himself. Every morning Percy prepared Richard’s breakfast and then washed up for him. Because of Richard’s condition Richard was unable to sense when he needed food or fluids and he required Percy’s guidance and care in that regard. Every day Percy hung out Richard’s washing and took it off the line and cleaned his boots. Richard lacked the ability to complete tasks with full competency. He had trouble moving about with his walking stick as he lacked balance. He would leave taps running. When shaving he often left the plug in the sink and sometimes with the tap running, causing it to overflow. Percy had to keep an eye or ear out for what Richard was doing and check that everything was in order after he had finished a task.

That short description sets out the kind of care that the parties and the primary judge identified as either active or passive. Percy’s standing around to keep an eye and ear out for Richard when he was showering was considered passive care. When he had to keep an eye or ear out for what Richard was doing and check that everything was in order after he finished a task, that was also considered passive care. When he prepared breakfast or hung out Richard’s washing, that was active care.

There was a lot of other evidence as to the care provided for Richard. Passive care also included checking Richard’s prescriptions and noting things to chase up after his visits to the bank or to doctors, spending time with him whilst he was watching television to make sure he was alright and generally keeping him company, and being near him when he went to bed and slept.

Percy deposed that when Richard went to bed, he removed Richard’s cochlear implant and charged it overnight. That rendered Richard completely deaf throughout the night. Percy ensured that he was close by in case he needed help. The primary judge allowed as hours of passive care the hours when both Richard and Percy were asleep but when even still Percy was available in case of need.

Seltsam argued that this was not the provision of gratuitous domestic services that were to be assessed on an hourly basis under s 15B. Likewise it submitted that Percy’s spending time with Richard watching television and generally keeping him company or standing outside the bathroom whilst Richard was showering was also not the provision of gratuitous domestic services within the meaning of the section.

Robin also provided similar passive care to Richard. She also would keep him company. Percy deposed that after Richard’s accident Richard became very emotionally attached to Robin. Ms White reported that Richard was dependent on Robin to complete his shopping, to prepare his meals and to complete his laundry. She said that whilst Percy was responsible for all heavy domestic activities of daily living, such as hanging washing on the line or washing dishes, changing linen, lifting or carrying anything inside the house, vacuuming, mopping and other heavy cleaning tasks, Robin was responsible for meal preparation, putting on laundry and general light cleaning tasks. Richard was fully dependent on Percy for the provision of transport. Ms White reported that both Percy and Robin provided passive as well as active supervision for Richard since he was discharged from rehabilitation for his traumatic brain injury in December 1997. An example of the passive care provided by Robin for Richard is that if Richard used the stove in the kitchen, Robin would check to ensure that the stove was turned off when he finished cooking.

Seltsam submitted that when Richard was asleep and Percy and Robin were also asleep, then if it could be said that Percy and Robin were then providing any service that could be characterised as a gratuitous domestic service, which it denied, then such a service was provided by Percy and Robin jointly. That might be doubted. Robin could not get out of bed without Percy’s assistance. However, this is a question of fact. For the reasons which appear below, the primary judge did not consider it necessary to resolve the question. That is a ground of appeal

Percy spent some time working on the farm at which time he did not provide any supervision for either Robin or Richard. These hours have been excluded from all calculations of the number of hours spent by Percy in providing gratuitous domestic services.

As noted above at [7], as a result of his entitlement to care under s 60AA of the WC Act, Richard was provided with carers who came three days a week on Mondays, Wednesdays and Fridays. Percy deposed that on those days he usually spent about an hour with Richard keeping an eye on him and keeping him company (an example of passive care) before he was picked up by the carers and taken into town. Percy deposed that on the days when Richard was with his carers he estimated that he spent about seven to eight hours each day caring for Richard, looking after him, supervising him and helping him with things as he described. This estimate did not include the hours when both Richard and Percy were asleep. He deposed that on Tuesdays, Thursdays and the weekends when Richard was not with carers, he estimated that he spent about 10-11 hours each day caring for Richard and supervising him. Again, that estimate did not include the times at which everyone was asleep.

In her report of 23 October 2016 Ms White reported that Richard received 18 hours of care from professional carers each week.

Dr Obeid was provided with the affidavits of Mr Raines and the reports of Ms White amongst other materials. Dr Obeid was an experienced geriatrician. He did not meet or examine any of the persons concerned. From the reports and affidavits with which he was provided Dr Obeid summarised and drew his own conclusions as to the number of hours of care provided by Percy to Robin and to Richard before his diagnosis of mesothelioma. Objection was taken at trial to the whole of Dr Obeid’s report. On appeal it was this part of Dr Obeid’s report to which objection was taken. That objection was well taken. Dr Obeid was qualified to express other opinions in his report, including opinions as to the level of disability revealed in the medical records of Robin and Richard, and the degree of care and domestic assistance they would require in the future, but his opinions as to the number of hours of care provided by Percy to Robin and Richard prior to Percy’s diagnosis of mesothelioma were not based on his knowledge, training or experience, but on his assessment of the affidavits and reports provided to him.

It is necessary to set out the whole of the relevant part of Dr Obeid’s report that is the subject of challenge to show that although the primary judge admitted that part of Dr Obeid’s report, he did not rely on it. Dr Obeid said:

It should be noted that Dr Obeid’s assessment that Percy provided 64.5 hours of care to Richard per week prior to his diagnosis of mesothelioma did not include hours during which Richard was asleep. Dr Obeid made his own conclusion from the reports of the occupational therapist and from Percy’s affidavit that Percy provided 21.5 hours of active care for Richard. Some of those hours of care were not provided to Richard alone, but to both Richard and Robin.

The primary judge did not allow 21.5 hours per week of active care. Instead the primary judge allowed nine hours per week.

Dr Obeid allowed 43 hours per week for supervision. He excluded hours during which Richard was asleep. The primary judge did not act on that basis. The primary judge allowed 64 hours per week for passive care, including times during which Richard was asleep.

Dr Obeid was not qualified to give any expert opinion on the number of hours of care provided by Percy to Richard. That was not a question requiring expert opinion which could be admitted under s 79 of the Evidence Act 1995 (NSW). In so far as it might have been relevant to other opinions that he expressed, Dr Obeid could have assumed that that was the level of care provided by Percy to Richard. That was not how his conclusions were expressed. That part of Dr Obeid’s report should have been rejected on objection being taken. However, because the primary judge did not act on Dr Obeid’s opinion as to the number of hours of care provided by Percy to Richard, the rejection of that part of Dr Obeid’s report is of no moment.

In its written submission for calculation of damages Percy’s solicitors relied upon Dr Obeid’s estimates that prior to the diagnosis of Percy’s condition he provided about 64.5 hours of care per week to Richard. The fact that Percy’s solicitors relied upon Dr Obeid’s report for that purpose does not show that the primary judge used it for that purpose. As will appear further below, he did not.

In the course of submissions of Mr G J Parker SC who appeared for Mr Raines, the primary judge asked “Why is it not 168 hours supervisory?”. (There are 168 hours in a week.) Mr Parker said that there were 15 hours of supervision provided by other carers and then said that “the 64 hours comes from Dr Obeid and it is a straight calculus, your Honour, it is just a division, basically. Robin is doing half and Percy does half.”

This was wrong. The primary judge was not misled. He did not find that Percy provided 76.5 [1] hours of gratuitous domestic services per week to Richard. He did not find that Percy provided 64.5 hours of passive care per week to Richard. He found that Mr Raines provided at least that number of hours as passive care and that because no greater number of hours was claimed, the number of hours claimed should be allowed.

In dealing with damages under s 15B for Mr Raines’ lost capacity to provide gratuitous domestic services to Richard, the primary judge said:

The primary judge’s calculation in para [48] of the number of hours of passive care being provided by Percy contained an arithmetical error. When one deducts from 168 hours per week the number of hours of care provided by outsider carers (25 hours) (judgment at [22]) and the number of hours of active care that the primary judge found Percy was providing to Richard (nine hours) (judgment at [22]), that is, a total of 34 hours, one is left with 134 hours of passive care. After excluding the further six hours a week to which the primary judge referred in para [48] the number hours would reduce to 128 hours a week. This arithmetical error did not affect the primary judge’s conclusion that the number of hours of passive care provided by Percy to Richard easily exceeded the number of hours claimed.

The primary judge explained his process of reasoning. Contrary to the submissions of the appellants, it was not necessary for the primary judge to reach a conclusion as to the precise number of hours of gratuitous domestic service provided by Percy to Richard per week when he was satisfied that they exceeded the number of hours claimed for reasons which he gave. If it be accepted, as the primary judge found, that Percy provided gratuitous domestic services to Richard by providing passive care by being on hand to help Richard if required, including at times when they were both asleep, then no further findings were required to identify more specifically the services provided by Percy to Richard. I do not accept Seltsam’s submission that the primary judge failed to engage with the case presented by Seltsam.

The primary judge referred to Dr Obeid’s estimate that Percy provided 13 hours per week care to Robin before his diagnosis and that these hours covered garden, property and farm maintenance, domestic cleaning, handyman tasks, morning assistance, cleaning up after meals, shopping and driving (Judgment [17]). The primary judge said that he accepted Dr Obeid’s evidence of 13 hours per week (Judgment [17]), but added that the evidence was well based on the source material provided to Dr Obeid and that it accords with reality and common sense. Nonetheless, the primary judge rejected some of the claimed number of hours that Dr Obeid allowed in respect of Robin on the basis that they involved services provided by Percy in the maintenance of the home which was Richard’s property and should have been accounted for as hours of active care provided to Richard. He concluded that Percy provided eight hours per week of gratuitous domestic service to Robin before his diagnosis. That was the figure he allowed (at [19]).

Amaca did not challenge the assessment of damages in respect of loss of capacity to provide gratuitous domestic services to Robin. Seltsam did challenge the primary judge’s findings in relation to services provided by Percy to Robin in ground 2 of its notice of appeal referred to above.

As noted above Percy’s evidence and Robin’s evidence as to the services provided by Percy were unchallenged. In my view the primary judge gave adequate reasons for his decision in respect of the services provided by Percy to Robin. The extent of the obligation to give reasons depended upon what was truly in issue. Percy gave evidence as to the services which he provided to Robin. There was no challenge to that evidence.

The primary judge’s conclusion that Percy was providing eight hours per week of gratuitous domestic service to Robin before his diagnosis (Judgment at [19]) and his allowance of that time for the future for nine years (Judgment at [23]) was a finding of fact. His Honour applied a ten per cent discount for vicissitudes and allowed this period of care for nine years, although Percy’s life expectancy was almost 10 years, to make allowance for the likelihood that at the end of the period Percy might have had difficulty performing some of the care tasks by reason of age and advancing frailty (judgment at [23]).

There was an implicit finding that if Percy had not suffered his disease the care he would have provided to Robin would not have decreased. There was no basis to think that it would. It was not put to either Percy or Robin that it might. In any event, it is a question of fact, not law.

The submission made by Seltsam before the primary judge was that the demonstrated assistance given by Percy to Robin was no more than three hours a week and there was accordingly no basis for a finding that there was a reasonable expectation that Percy would have provided services to Robin for at least six hours per week for a period of at least six consecutive months. The primary judge rejected Seltsam’s submission as to the number of hours per week of assistance Percy provided to Robin. Seltsam did not make any other submission that needed to be addressed. It did not say that Robin’s needs could be expected to reduce over time.

This issue was not separately identified in a ground of appeal but was fully argued and is sufficiently encompassed by ground 3 of Seltsam’s notice of appeal.

Seltsam submitted on appeal that the passive care identified by the primary judge was not a gratuitous domestic service. It submitted that one of the preconditions for a claim for damages for lost capacity to provide a gratuitous domestic service is that the dependant was not (or will not be) capable of performing the service himself or herself by reason of age or physical or mental incapacity (s 15B(2)(b)). It submitted that “the actual service performed by the claimant needs to be identified and a finding made that the dependant was not (or will not be) capable of performing the identified service because of the types of incapacity referred to in s 15B(2)(b)”. Seltsam argued that the distinction between active and passive care did not appear in s 15B. It submitted that a person who is able to come to another’s aid but is not required to do so does not provide a service and that a readiness to provide a service does not equate to providing a service. This way of framing the submission, which was the way in which the case was presented, was that mere passive care, being a readiness to provide a service if needed or being on standby did not amount to the provision of gratuitous domestic services within the meaning of s 15B. As it was put in Seltsam’s written submission:

Neither Seltsam nor Amaca argued that even if such protective attention came within the definition of “gratuitous domestic services” in s 15B, the services were not of a kind that the dependants were not capable of performing themselves by reason of their age or physical or mental capacity and did not fall within s 15B(2)(b) because a capable person does not perform a service of supervising or otherwise attending on himself or herself.

Before the primary judge Amaca did not submit that the provision of passive care in the form of supervision, or being on hand when needed, or providing company, was not a “gratuitous domestic service” as defined.

At trial, counsel for Seltsam flirted with the notion by submitting that:

That may have been a submission that supervision or protective attendance was not required. If so, that submission was rejected and raises only a question of fact. It was not a submission that such passive care was not capable of being a gratuitous domestic service, nor that it did not fall within the terms of s 15B(2)(b). Later, counsel for Seltsam said:

The contention that passive care was a service provided jointly raises a different issue, embraced by both Seltsam and Amaca, that is dealt with below. On appeal Seltsam contended that what the parties and the primary judge had called passive care was not a gratuitous domestic service within the meaning of the definition of that term in s 15B(1).

I do not agree. When Richard was injured Percy and Robin left their home to move to his in order to provide around-the-clock care. That care included what Deane and Dawson JJ described as “protective attention” (Van Gervan v Fenton (1992) 175 CLR 327 at 344). Their Honours said (at [5]):

It is clear from that passage that in their Honours’ view “protective attention” was a service. It also appears that if a full-time live-in housekeeper were required the time spent by the housekeeper by being on-hand to deal with any calls that might be required on her or him would amount to the rendering of a service.

In Van Gervan v Fenton Mason CJ, Toohey and McHugh JJ (at 338-340), Brennan J (at 340-341) and Gaudron J (at 346-347) also characterised the constant care and attention provided by the injured plaintiff’s wife as the provision of services.

There is no reason that supervision or protective attention should not be a service that falls within the definition of “gratuitous domestic services” in s 15B(1). Whether it is a service of a kind that the claimant’s dependants were not capable of performing by reason of their age or incapacity within the meaning of s 15B(2)(b) is a different question that was not raised before the Tribunal. The primary judge recorded that it was not in issue that the dependants were not capable of performing the services themselves by reason of age or physical or mental infirmity (judgment [5(3)]).

It may be arguable that services by way of supervision or protective attention, by their very nature cannot be capable of performance by the claimant’s dependant himself or herself, and therefore fall outside s 15B(2)(b). This issue was not argued. Seltsam’s ground of appeal 2(b) and its written submission referred to at [60] above might be wide enough to encompass it, but it was not articulated in that way on appeal. I express no view on it.

The submissions under this heading were raised by ground 1(a) of Amaca’s notice of appeal and ground 4(a) of Seltsam’s notice of appeal.

Both Seltsam and Amaca argued that the primary judge was obliged to make findings about how much care Percy was providing to Richard and then to apply s 15B(2)(d) to determine whether the need for those services was reasonable in all the circumstances. Thus, Amaca submitted that the primary judge did not address Amaca and Seltsam’s principal submission:

Both Amaca and Seltsam relied upon the decision of this Court in State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 which was said to be analogous to the present case. There the claimant had contracted mesothelioma and was entitled to an award of damages for his loss of capacity to provide gratuitous domestic services to his wife and grandchildren. The appeal concerned his loss of capacity to provide gratuitous domestic services to his grandchildren. He provided such services to the grandchildren aged four and 13 years who were the children of his daughter and to twin boys who were children of his son. Some of those services were provided jointly by him and his wife. In the case of the children of Mr Perez’s daughter, the children stayed three nights each week with Mr and Mrs Perez who provided full-time care (at [10]). Before his disease, Mr Perez had also been responsible for transporting one of the children to extra-curricular activities and providing other assistance to her (at [10]). Of the children of Mr Perez’s son, both Mr and Mrs Perez attended at the son’s home on three days each week to care for the children. After Mr Perez was no longer able to provide care those children’s maternal grandmother took over. After Mr Perez’s expected death, Mrs Perez would be able to resume caring for her son’s children (at [11]).

In Perez the primary judge rejected the defendant’s contention that no care was needed while the children were sleeping because they were too young to be left alone at night (Perez v State of New South Wales [2013] NSWDDT 1). That conclusion does not appear to have been challenged on appeal. The primary judge held, with serious misgivings, that the only remaining question was that posed by s 15B(2)(d), that is, whether the need for the claimant’s services was reasonable in all the circumstances. His Honour held (at [60]):

The primary judge observed that despite the illness of Mr Perez, the children of his daughter continued to stay with Mr and Mrs Perez for three days each week and that she attended to their needs (at [65]). Their father had adjusted his schedule so that he was able to drive the children to school on most occasions (at [65]). The primary judge noted that nonetheless Mr Perez claimed damages of $841,948.94 for the future until the younger child (then aged four) (at [41]) turned 16. His Honour said:

Nonetheless, the primary judge felt constrained by the terms of s 15B(2) to award the damages claimed.

On appeal, this Court held that the primary judge was in error in his construction of s 15B(2)(d) that provides that it is a condition for an award of damages under the section that the Court is satisfied that:

Basten JA with whose reasons Ward JA agreed, held that the trial judge had accepted that the concept of “need” referred to the circumstances of the dependant who, if a young child, had many objectively ascertainable needs which could properly be identified, without reference to the availability of some person to satisfy them (at [16]).

This led to Basten JA’s concluding that the primary judge was in error in finding that the dependants reasonably had a need for the services to be provided by Mr Perez when the services had been provided in the past jointly by Mr and Mrs Perez, and after Mr Perez’s incapacity by Mrs Perez alone, or by their son’s mother-in-law. His Honour said:

Macfarlan JA agreed with the orders of Basten JA but provided his own reasons stating:

The matter was remitted to the Tribunal for consideration of the outstanding claims in respect of the gratuitous domestic services for determination according to law.

Seltsam submitted that State of New South Wales v Perez decided that damages for loss of capacity to provide gratuitous domestic services were not allowable under s 15B if the services had been provided by the claimant with another person jointly. That is to say, according to Seltsam’s submission s 15B applied only to a claimant’s loss of capacity to provide gratuitous domestic services that had been provided by the claimant to his or her dependants alone and not jointly with another.

There is nothing in the text of s 15B that would warrant such a limitation. Nor did Basten JA or Macfarlan JA so decide. To the contrary, in para [32] of his Honour’s judgment in Perez quoted at [80] above, Basten JA expressly contemplated that if Mr Perez’s son’s very young children had been partly dependent on Mr Perez as well as on Mrs Perez, the calculation of damages to which he would be entitled would depend upon the hours he had spent on their care and was no longer capable of spending. However, a finding needed to be made whether those children had been partly dependent on Mr Perez or whether they had been wholly dependent on Mrs Perez.

In Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd Gleeson JA with whose reasons Basten and Macfarlan JJA agreed, summarised the propositions of law arising from the decision in State of New South Wales v Perez as follows:

In Dionisatos the Tribunal had reduced damages payable under s 15B because, after the claimant had lost capacity, gratuitous domestic services that he formerly had provided were provided by other family members who had not provided such services in the past. This was erroneous (at [313]-[314]).

The task identified in Perez is to identify both the number of hours of gratuitous domestic services provided by the claimant and the reasonable need of the dependants for those services to be provided by the claimant. Dionisatos holds that the fact that after the claimant has lost capacity another family member provides gratuitous domestic services that the claimant had formerly provided does not mean that there is not a reasonable need for the services formerly provided by the claimant.

The primary judge addressed this issue in his findings at [46]-[49] quoted at [51] above. He found that Percy was Richard’s principal carer. He found that the claim of 64 hours per week for passive care made more than enough allowance for any passive care provided by Robin alone or by Robin together with Percy. There was no question but that Richard had a reasonable need for the care provided by Percy. The finding that the claim of 64 hours per week made more than enough allowance for passive care provided by Percy, excluding passive care provided by Robin jointly with Percy, satisfied the requirement to demonstrate Richard’s reasonable need for Percy’s services, even if those services were to be provided by Percy alone. In any event, even to the extent Robin and Percy provided passive care jointly, the finding that Percy was Richard’s principal carer demonstrates that Richard was dependent on him and the calculation of damages required account to be taken of the hours that Percy spent.

Accordingly, I do not accept the appellants’ submission that the primary judge erred in his application of s 15B in assessing the number of hours of gratuitous domestic services Percy provided to Richard that was compensable under s 15B.

As noted above, Amaca’s first ground of appeal was that after Percy’s incapacity, the care that Percy provided for Richard would have to be provided by Richard’s employer or its insurer pursuant to s 60AA of the WC Act (Amaca’s notice of appeal grounds 1 and 2(a)). Seltsam adopted this contention by ground 5(a) of its notice of appeal. The primary judge said that he could not make any determination about the obligations of Richard’s workers’ compensation insurer (at [26]). His Honour said that he did not know whether the workers’ compensation insurer would provide around-the-clock care for Richard. He said:

Amaca submitted that this was an error. It submitted that although Richard’s employer’s workers’ compensation insurer would not be bound by any determination made by the Tribunal, nonetheless the Tribunal was required to assess what was the reasonable need for Percy’s continued gratuitous domestic services by finding what services Richard’s employer’s workers’ compensation insurer was required to provide when Percy could not provide those services.

I do not accept that submission. First, as Mr Raines submitted, damages are awarded under s 15B for his loss of capacity to provide gratuitous domestic services to Richard. If it be the fact that Richard’s employer’s workers’ compensation insurer will be required to provide services that Mr Raines had formerly provided to Richard, that does not affect the fact that it is Mr Raines’ loss of his capacity to provide services to Richard that is the subject of the award of damages under s 15B (Amaca Pty Ltd v Phillips [2014] NSWCA 249 at [56]-[57]).

In Dionisatos it was held that the fact that family members who had not provided services to the claimant’s dependants before the claimant lost capacity, did so after he lost capacity, did not mean that there was no need for the provision of the claimant’s services or that that need was not reasonable in all the circumstances. The fact that the services of the family members were provided voluntarily after Mr Dionysatos’ incapacity whereas it is said that Richard’s employer’s workers’ compensation insurer will be compelled by law to provide such services, is not a ground of distinction.

In any event, Amaca has not demonstrated that Richard’s employer’s workers’ compensation insurer would be legally obliged to provide the services that Mr Raines had provided to Richard, or, if it were so obliged, that it would do so.

Under s 60AA(1)(b) a worker’s employer is liable to pay domestic assistance provided for an injured worker if the assistance would not be provided for the worker but for the injury “(because the worker provided the domestic assistance before the injury)”.

This Court was not referred to any authorities on the application of s 60AA(1)(b), and in particular the effect of the words in brackets quoted above. The guidelines for claiming workers’ compensation published in the Gazette on 17 June 2016 relevantly state that:

It is arguable that domestic assistance in the form of protective attention of the kind provided by Mr Raines to Richard does not fall within s 60AA(1)(b) because that was not a form of domestic assistance that Richard provided before his injury. Amaca advanced no argument on this question. Instead, it submitted that Richard’s employer’s workers’ compensation insurer had accepted that Richard was entitled to around-the-clock care and had proposed a scheme under which that care would be provided to Richard by the insurer. It submitted that the insurer was providing domestic assistance for Richard that included, when necessary, around-the-clock care, although because of their domestic arrangements and preferences, the Raines’ had only requested a limited amount of care to be provided by the insurer.

Amaca referred to a “Care Needs Report” of “iCare” prepared by a “Care Needs Reviewer” being an occupational therapist from an organisation called “HB Rehab” following a review on 8 June 2017 as requiring 168 hours per week of “total care needs related to the workplace injury”.

Amaca submitted that notwithstanding the report that Richard required 168 hours per week of care, the care requested by Robin and Percy from the workers’ compensation insurer was 43 hours per week. (The request was for 29 hours of attendant care which involved 10 hours of travel). Approval was given for 31 hours of attendant care.

There was no evidence that iCare (whatever its role) had accepted the opinion of HB Rehab that the insurer would be required to pay for full-time care for Richard when Percy was unable to provide care.

For these reasons Amaca’s submission that s 15B(2)(d) was not satisfied because Richard’s employer (or its workers’ compensation insurer) was required to pay for the care formerly provided by Mr Raines, should not be accepted.

Ground 2(b) in Amaca’s notice of appeal and ground 5(b) in Seltsam’s notice of appeal is that the primary judge erred by assessing damages by reference to the amount of time spent rather than the “amount” of care (or services) needed. They did not elaborate on this ground.

Section 15B(2)(c) requires an assessment of the periods of time for which the claimant’s services would have been provided to the claimant’s dependants but for the claimant’s injury and s 15B(2)(d) requires the dependants to have a need for services to be provided for those hours. Section 15B(4) provides for a monetary cap calculated at an hourly rate. As stated in Dionisatos at [299] quoted at [85] above, s 15B(2)(c) requires an assessment of the time over which the services would have been provided to the dependants. There was no error in the judge’s calculating damages under s 15B by reference to the time that would have been spent by Mr Perez but for his incapacity, nor in making that assessment by reference to the time that had been spent. The primary judge discounted the allowance for future services by 10% (judgment [51]). He found that it had been Percy’s intention to provide care for Richard indefinitely (judgment [43]). The reasonableness of the allowance does not raise a question of law.

Ground 6 of Seltsam’s notice of appeal did not identify a point of law. Seltsam did not elaborate on that ground. I understand it to refer to the same point raised by ground 3 of Amaca’s appeal. That ground is dealt with at [24] above.

The Court has been informed that Mr Raines died after the hearing of the appeal. The executor of his estate has consented to the making of an order under r 7.10(2)(b) of the Uniform Civil Procedure Rules appointing the executor to represent Mr Raines’ estate.

For these reasons the appellants have not established that the Tribunal erred in point of law. I propose the following orders in each appeal:

SIMPSON AJA: I have had the advantage of reading in draft the judgment of White JA. For the following reasons, I agree with the orders proposed by his Honour. As the relevant facts are fully set out by White JA, it is unnecessary that I do more than give a brief outline of those that are necessary to explain my conclusions. The salient facts are:

The relevant legislation, and the grounds of appeal, are fully set out in the judgment of White JA. I do not repeat them.

It was not in issue that Richard was unable to care for himself and required fulltime care. While Mr and Mrs Raines provided a range of domestic services to him, such as providing meals, cleaning, laundry, supervision of showering, and attending to medical aids such as cochlear implants, they also provided a service by being present and available to step in and take action should any emergency or other circumstance so require. The primary judge referred to the latter as “passive care”, which he distinguished from the “active care” constituted by cooking, cleaning and other household and personal assistance.

Mr Raines’ claim under s 15B of the Civil Liability Act 2002 (NSW) with respect to the domestic services he provided to Richard required proof of the following propositions:

Amaca did not contest any of propositions (i) to (iv) with respect to the services provided by Mr Raines to Richard. The sole issue raised by Amaca was whether Mr Raines had established, in accordance with s 15B(2)(d), that there would be a (continuing) need for those services to be provided to Richard and that that need was reasonable in the circumstances.

Seltsam made similar concessions in relation to the services provided by Mr Raines to Richard.

The argument advanced in the Dust Diseases Tribunal in respect of Richard’s future need (and the reasonableness of any such need) for the services provided by Mr Raines depended entirely on what was asserted to be the statutory obligation of the workers compensation insurer under s 60AA of the Workers Compensation Act to provide for Richard’s care.

The primary judge disposed of that argument, by saying, inter alia:

Mr Raines’ claim in respect of the domestic services he provided to Mrs Raines required proof of a corresponding set of propositions.

The focus in the Dust Diseases Tribunal was on Mr Raines’ claim for damages in relation to services he provided to Richard. Little attention was paid by any party to the claim in relation to the services he provided to Mrs Raines. Amaca did not advance any submission in opposition to that claim; Seltsam challenged the claim on the basis that the evidence did not establish that the services previously provided by Mr Raines reached the s 15B(2)(c) threshold of 6 hours per week, and that, therefore, there was a reasonable expectation that, but for his illness, he would have provided services for that period.

On appeal, Amaca did not contest the award made in respect of services provided by Mr Raines to Mrs Raines.

Amaca’s grounds of appeal were limited to two essential propositions. The first was that the primary judge failed to treat as determinative or relevant that Richard’s needs would be met by “an alternative carer”. The proposed alternative carer was Mrs Raines. Contrary to Amaca’s written submissions, this argument does not appear to have been put on behalf of Amaca, at least with any clarity, in the proceedings in the Dust Diseases Tribunal.

On appeal, Amaca submitted that:

The second proposition was that the primary judge failed to treat as determinative or relevant that Richard’s needs would, in the future, be met by “another source”. The “other source” was the workers compensation insurer.

The position taken by Amaca (and essentially adopted by Seltsam) was clearly encapsulated in its written submissions filed for the purposes of the appeal. It was:

Seltsam contested the award made in relation to services provided both to Richard and Mrs Raines.

With respect to services provided to Richard, it relied on the same two grounds as Amaca had advanced. It also relied on additional grounds:

As to the second of those grounds, Seltsam identified four areas of what it asserted to be deficient fact finding. They were:

These grounds can be dealt with together.

In purported support for its first proposition, Amaca relied upon the decision of this Court in the State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149.

Perez was a case that had some dispiriting parallels to the present. Mr Perez contracted mesothelioma as a result of his employment. Prior to his diagnosis, he had provided, gratuitously, domestic services to his wife, whose health was poor, and to four grandchildren, the daughters and sons, respectively, of his own daughter and son. The services to the grandchildren were provided in conjunction with his wife, notwithstanding her own impaired capacity.

In the Dust Diseases Tribunal Mr Perez claimed and was awarded substantial damages under s 15B as compensation for his loss of capacity to continue to provide these services. His employer, the State of NSW, appealed to this Court.

Basten JA, with whom Ward JA expressly agreed, held (at [25]) that in s 15B(2)(d) the phrase “reasonable in all the circumstances” qualified the preceding phrase “that need” and that, accordingly, what had to be assessed as reasonable was, not the need for the services, but the need for the services to be provided for the requisite hours per week (6) over the requisite period (6 months).

His Honour then said:

Macfarlan JA, who gave his own reasons for agreeing with the orders proposed by Basten JA, commented on the difficulties of construction of s 15B(2)(d). His Honour said:

The proposition relied upon was that Richard’s care (or at least some of it – the argument was not clear) could readily have been provided, and in the past had in part been provided, by Mrs Raines. Mr Raines therefore failed to demonstrate, within s 15B(2)(d), a need for the services to be provided or, alternatively, that any such need was reasonable in the circumstances.

The proposition is wrong on a number of levels. First, it was wrong as a matter of fact. As indicated above, there was no issue, and the evidence clearly established, that Mrs Raines was herself significantly disabled, and, while she was able to exercise some degree of supervision over Richard, she was not able to respond in any meaningful way in an emergency. The proposition may be tested by asking whether, in the absence of Mr Raines, Mrs Raines could provide the care Richard needed. The answer to that question, on the evidence, is plainly in the negative.

Second, the proposition misconceives the legislation. Section 15B(2)(d) is not directed to the identity of the provider of the services: it is directed to the need for the services. There was, and could have been, no issue that Richard’s need for the services previously provided by Mr Raines was established; nor was there any issue that that need was reasonable in the sense explained by Basten JA in Perez (at [25]), that is that the need exceeded 6 hours a week over more than 6 months. So much was confirmed, in documentation relied upon by the appellants, by the workers compensation insurer.

Section 15B came into being for the express purpose of reinstating, with some modification, the availability of a particular category of damages which had been held by the High Court in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 to be unavailable as a separate category. The category of damages was that which had been allowed in this Court in Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338.

In the Second Reading Speech introducing the Civil Liability Amendment Bill, Mr Newell, Parliamentary Secretary, representing the Attorney General, said:

It is apparent, then, that construction of s 15B will be aided by recognition of the nature of the category of damages in question.

In Sullivan v Gordon the injured plaintiff was a 15 year old girl who suffered from, inter alia, brain damage from a motor vehicle accident. She subsequently had two daughters, one of whom resided in New Zealand with her father. The younger daughter lived with the plaintiff and the plaintiff’s mother. Among the heads of damage she claimed was an allowance for the care of the younger daughter. The claim was advanced on the basis of analogy with an established head of damages recognised by Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45. An earlier decision of this Court, Burnicle v Cutelli [1982] 2 NSWLR 26, had, by majority, held that the need to care for a third party sounded in general damages but was not compensable as a separate category. After considering this and other conflicting authorities, a five judge bench of this Court held to the contrary – that damages to allow for the care of a third party or parties were permissible as a separate category, akin to those available under the principle stated in Griffiths v Kerkemeyer damages.

The judgment in Sullivan v Gordon, however, is not specific as to precisely what was, or could be encompassed in, the award. However, Sullivan v Gordon remained the statement of accepted law until it was reconsidered, and reversed, by the High Court in CSR Ltd v Eddy.

CSR Ltd v Eddy was yet another case of a plaintiff having suffered mesothelioma as a result of the negligence of his employer. He, too, claimed damages to compensate for the loss of his capacity to continue to provide domestic assistance, as he had in the past, to his disabled wife. Damages were awarded, including a component calculated on the authority of Sullivan v Gordon. The High Court held that the loss of capacity to care for a third party was compensable only as a component of general damages, and not as a separate and specifically quantifiable head. At [16] Gleeson CJ and Gummow and Heydon JJ quoted from the decision of Reynolds JA (one of the majority) in Burnicle in the following terms:

Their Honours went on to say:

That is the background to s 15B, which, as the Parliamentary Secretary said in the Second Reading Speech, was intended to reinstate (with modification) the entitlement to recover damages “for the domestic services they are no longer able to provide.” As was made clear in CSR Ltd v Eddy, and in the passage quoted from Burnicle, the loss is the loss of amenity of the injured claimant. That loss remains a loss, even where the services are provided by an alternative provider.

There is nothing novel in this analysis. In Amaca Pty Ltd v Phillips [2014] NSWCA 249 Ward JA, with whom Barrett JA and Tobias AJA agreed, referred (at [57]) to what she described as Amaca’s “real complaint” in that case and said:

And in Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork and Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281, Gleeson JA (with whom Basten JA and Macfarlan JA agreed) said:

It seems that the point needs to be underscored.

It is true that the reinstatement of Sullivan v Gordon damages was intended only to be “partial”. The limitation stated by the Parliamentary Secretary was “to ensure that those damages are available only in cases of greatest need”. That limitation is effected by par (c), requiring proof of the expectation that the services would be provided for at least 6 hours per week and for a period of 6 consecutive months, and by par (d), requiring that the need be reasonable in all of the circumstances.

It seems, therefore, to me logical that the identity of the person who will, after the plaintiff’s injury, provide services is irrelevant. In this respect, I may be seen to differ from Basten JA who, in Perez (at [26]) saw two potential, but conflicting areas of relevance of the existence of an alternative carer – one area of relevance being to demonstrate the genuineness of the need, the other to call into doubt the need for the services of the injured claimant. If, by that sentence, his Honour intended to say that the availability of an alternative carer is relevant to the question of the need of the dependant for the services previously rendered by the claimant, I would respectfully disagree. Given that (as I see it) the compensation is for loss of the capacity to render services, and given that par (a) of s 15B(2) requires to be established that the injured claimant in fact provided the services before the liability to compensate arose, the identity of the subsequent provider of the services throws no light on whether there has been shown a need, or whether the need is reasonable. As Macfarlan JA pointed out in Perez, in a civilised society such as this, a need for domestic services will, ordinarily, be met. That says nothing about the availability of compensation to the carer who, absent the wrong that caused the incapacity, would have continued to provide the service.

The requirement that the need be shown to be reasonable in all the circumstances protects the wrongdoer against claims that are overindulgent or excessive. There was no suggestion in the present case, and could have been none, that the assessment of Richard’s needs was overindulgent or excessive.

Section 15B(2)(d) cannot be construed in isolation from s 15B(2)(c): it was not in issue that, except for Mr Raines’ illness, there was a reasonable expectation that he would have continued to provide the services to Richard (as he had until his illness). It was those services for which there was established a continuing need. Section 15B does not require proof of a need for services to be provided by any particular provider; the section is expressed as intended to compensate an injured worker for work-inflicted incapacity to continue to provide services that have previously been provided.

All three of Amaca’s grounds of appeal were directed to these propositions. I would reject them. It follows that Amaca’s appeal must be dismissed.

Although it was not pleaded as a specific ground of appeal, both appellants contended that the primary judge was wrong to decline to determine the legal obligation of the workers compensation insurer under s 60AA of the Workers Compensation Act to provide care services for Richard.

That contention should be rejected. The workers compensation insurer was not a party to the proceedings, and would not have been bound by any findings made by the primary judge. Further, the absence of any participation in the proceedings by the workers compensation insurer meant that the primary judge would not have had available to him any contrary evidence or argument as to the liability or extent of the insurer’s obligations under s 60AA. The primary judge was correct to deal with the submissions as he did.

Seltsam’s remaining grounds of appeal raised issues concerning:

I agree, for the reasons given by White JA, that parts of Dr Obeid’s report were inadmissible, but were not used to the detriment of Seltsam, and that this ground of appeal should therefore be rejected.

I have set out above the matters on which Seltsam contended that the fact finding was deficient. In neither the ground of appeal as pleaded nor in the written submissions, did Seltsam distinguish between its complaints in relation to the services provided by Mr Raines to Richard, and those provided by him to Mrs Raines. Yet the factual matters in dispute in the Dust Diseases Tribunal were different. In the case of services provided to Richard, the facts necessary to meet the requirements of s 15B(2)(a)-(c) were not disputed. All that was in issue was whether the requirements of par (d) were met. The primary judge made adequate findings of fact to support his conclusion in that respect. It was unnecessary to do more than state the undisputed background to support the other requirements of s 15B(2).

In the case of services provided to Mrs Raines, the area of dispute lay within s 15B(2)(c) – whether the services provided reached the statutory level of 6 hours per week for at least 6 consecutive months.

By reference to those parts of Dr Obeid’s report that were not inadmissible, the primary judge found that, prior to his illness, Mr Raines provided Mrs Raines with 8 hours per week of domestic services. That was a clear finding of fact. It was plainly implicit in the finding, and incontestable, that this care had been provided over many years, and could have been expected to continue for well in excess of the required 6 months.

The fact finding was sufficient to meet the requirements of the case, taking into account the narrow area of factual dispute. I would reject this ground of appeal.

Seltsam’s submission was that “passive care” as identified by the primary judge is not a gratuitous domestic service for the purposes of s 15B(2).

I would reject that contention, at least in the circumstances of this case. It disregards the nature of what was characterised as “passive care”. Essentially, what “passive care” amounted to was constant supervision, and availability to step in in case of emergency. That was the provision of a service. As the poet John Milton said four centuries ago, “They also serve who only stand and wait” (“When I Consider How My Light is Spent”, often referred to as “On His Blindness”).

As indicated above, the passive care ensured that Richard was able to continue to live in his house, but with constant supervision. Without that constant supervision, that would not have been the case. It makes no difference that Mrs Raines also provided some supervision. The question is what Mr Raines was providing prior to his illness, and could have been expected to continue to provide but for his illness.

However, I would accept that the distinction between “passive care” and “active care” was potentially misleading and certainly unhelpful. It suggested that “passive care” was somehow worth less than “active care” and less worthy of compensation. That was not the case. The “passive care” was a valuable service to Richard.

However, this error, if it were an error, was to the benefit of the appellants. I would therefore reject this ground of appeal.

It follows from these reasons that Seltsam’s appeal must also be dismissed.

I agree with the orders proposed by White JA.