Amaca's appeal
23As noted, Amaca does not dispute that the conditions required to be satisfied for an award of damages under s 15B were satisfied in this case. In particular, it accepts that there will be a need on the part of Mrs Phillips for 24 hour care for the rest of her life and that this need is reasonable in all the circumstances. Its contention is that his Honour erred, as a matter of law, in finding that the commercial cost of care in a nursing home was irrelevant in determining the proper measure of s 15B damages.
24The particular error of law by his Honour that Amaca contends enlivens this Court's appellate jurisdiction, was the finding (at [59]) that Mrs Phillips will enter a nursing home after Mr Phillips' death was an irrelevant finding.
25By its amended notice of appeal, Amaca relies on two grounds of appeal:
(1)that his Honour erred in point of law in concluding that the proper measure of damages was a sum calculated by applying the maximum statutory rate to the number of hours which Mr Phillips would have spent caring for his wife if he had not developed mesothelioma; and
(2)that his Honour erred in point of law in not finding that the proper measure of damages in the circumstances was the commercial cost of the care which Mrs Phillips would, on his finding, receive.
26Amaca seeks to have the order made below set aside and in lieu thereof the entry of judgment for Mr Phillips in the sum that incorporates, by way of s 15B damages, an amount calculated by reference to the maximum cost that it has conceded will be incurred for nursing home care.
27Amaca submits that the objective commercial cost of care is not irrelevant and hence there was an error in his Honour dismissing it as such. In that regard, Amaca's oral submissions seemed to proceed on the basis that it would have had no complaint had his Honour considered the cost of commercial care, as an alternative to the method of calculation that was in fact adopted, but then gone on to decide that in the present case the commercial cost of care was not the appropriate measure. However, in its written submissions Amaca contends that the finding that Mrs Phillips will enter a nursing home has a "legal effect" in the assessment of s 15B damages ([11]) and in its written and oral submissions argues that it should have been determinative.
28Section 15B does not prescribe the measure of damages to be awarded to a claimant who satisfies the threshold requirements of the section. The only indication that might be able to be gleaned from the section as to the appropriate measure of damages is that the cap on damages that is provided by s 15B(4) is one calculated by reference to an hourly rate provided for in s 15(5). There is, however, no cap based on the number of hours' care for which s 15B damages may be awarded. Amaca submits that the existence of the cap under sub-section (4) or the way it is calculated is irrelevant to the proper measure of damages.
29Amaca does not point to anything in the text of the legislation itself to support its contention that the proper measure of damages is to be determined objectively by reference to the commercial cost of the services that will in fact be provided in future. Rather, it notes that there is nothing in the legislation that prescribes that the measure of damages must be based on the hypothetical situation as to what would have happened if the accident or illness had not intervened.
30It does, however, submit that the requirement for the Tribunal to be satisfied of the reasonableness of the need for the provision of the services (under s 15B(2)(b)) before damages may be awarded informs the proper measure of those damages.
31Broadly speaking, Amaca relies on two matters in support of its contention that the proper measure of s 15B damages is the commercial cost of the services for which the dependant has a need: first, the history leading up to, and purpose of, the introduction of s 15B into the legislation and, second, the need for coherence with the measure of damages available at common law for loss of domestic services in other contexts (such as Lord Campbell's Act damages).
32As to the history leading up to the enactment of s 15B, as already noted, it followed the decision in CSR v Eddy. There, the plurality (Gleeson CJ, Gummow and Heydon JJ) summarised (from [5]-[11]) the legal background against which the submissions for the parties were to be evaluated, referring inter alia to the decisions in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Burnicle v Cutelli [1982] 2 NSWLR 26; Cummings v Canberra Theatre Trust [1980] FCA 209; and Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 - to each of which Amaca referred in the present case.
33Their Honours concluded (at [23]) that a Sullivan v Gordon claim, where the injured plaintiff was seeking to recover for loss of capacity to provide services to another, rested on a different basis from a Griffiths v Kerkemeyer claim, where the injured plaintiff was seeking to recover the monetary value of services for which he or she has a need as a result of the injury, and (at [25]) that no analogy should be drawn between the two types of claim. At [32], the plurality said:
... Thirdly, there is an important difference between the field in which Griffiths v Kerkemeyer applies and the field in which Sullivan v Gordon applies. In applying Griffiths v Kerkemeyer it is relatively easy to estimate the extent of the plaintiff's need for personal care or services, and to calculate, by reference to the costs of professionals providing that care or those services, what the damages should be (even if it is possible or likely that the care will not be provided, either at all or by paid professionals). But the "need" of the plaintiff to care for others is much harder to evaluate. To examine it by reference to what care the plaintiff ought to have provided in the past would trigger invidious inquiries. To examine it by reference to what care the plaintiff in fact provided in the past would require investigation as to whether the intensity of the plaintiff's interests in providing the services might have been likely to change after the tort because of possible future events like divorce or the birth of new children, or for other reasons. The Sullivan v Gordon problem is not the practical one of calculating costs. It is the legal problem of deciding what test should be employed in deciding what costs need to be calculated. To that Sullivan v Gordon problem there is no Griffiths v Kerkemeyer parallel.
34Their Honours then considered whether Sullivan v Gordon was supportable on policy reasons, in the course of which they noted the uncertainty as to how the principle was to be defined (at [55]). Their Honours also acknowledged (at [43]) that a plaintiff recovering such damages would not be obliged actually to use the damages award in order to acquire at commercial rates the services that he or she had gratuitously rendered in the past, just as a plaintiff recovering Griffiths v Kerkemeyer damages is not obliged to spend them on acquiring the provision of care for themselves, there being no trust affecting those damages.
35Reference is made to the second reading speech by the then Parliamentary Secretary, Mr Neville Newell, in relation to the Civil Liability Amendment Bill 2006 (NSW) in May 2006. In that speech, express reference was made to Sullivan v Gordon having been overruled in the High Court and it was said that the bill provided a "partial reinstatement of Sullivan v Gordon damages, with limitations to ensure that those damages are available only in the cases of greatest need."
36In the second reading speech, reference was made to two particular fact situations as illustrative of the potential hardship if such damages were not recoverable and it was said that the bill responded to those cases "by providing a right for seriously injured people to recover damages for the domestic services they are no longer able to provide to their dependants in cases of the greatest need".
37Amaca argues that what can be drawn from the second reading speech and from cases such as Griffiths v Kerkemeyer and Van Gervan v Fenton is that at common law the proper measure of damages recoverable for loss of services that were previously provided gratuitously is based on an objective determination of the monetary value of the loss; that, as a general rule, this will be the market cost of those services, and that Parliament's intention to re-instate "Sullivan v Gordon" damages in effect means that the Griffiths v Kerkemeyer approach should be adopted.
38Amaca acknowledges that if the market cost of provision of the services is unreasonable or disproportionate then commercial cost may not be the appropriate measure (referring to Nguyen v Nguyen 159 CLR 235 - where the High Court looked to the commercial cost of the services and considered whether that was reasonable) but submits that commercial cost should be the starting point.
39As to the need for coherence, it is submitted by Amaca that there is every reason, when determining s 15B damages, to adopt the same principles as applicable in Van Gervan v Fenton, where the quantum of damages is assessed on an objective scale, since otherwise the outcome would be capricious. Reference is also made to ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 at [63] for the proposition that there is an entitlement to claim commercial care in circumstances where there is a need and gratuitous assistance is unavailable. Amaca argues that the "compensation principle" should apply and that his Honour should not have ignored what is known about how the care needs will be satisfied in the future.
40Amaca notes that s 15B(2)(d) has been said to contain difficulties in interpretation (State of New South Wales v Perez [2013] NSWCA 149; (2013) 84 NSWLR 570 at [14]) and that in Perez consideration as to what was involved in the replacement of the services was said not to be irrelevant (at [26]). It is submitted that the principled exercise of determining the proper measure of s 15B damages requires enquiry as to what is reasonable in the circumstances consistent with the enquiry mandated by s 15B(2)(d).
41In summary, Amaca contends that, absent specification in s 15B as to how damages are to be calculated, the compensation principle should apply and that in applying that principle it is necessary to apply the limitations inherent in s 15B(2)(d), namely that the services which will in fact be provided are objectively reasonable. It is submitted that it is both logical and consistent with previous common law authority, where a need will be satisfied by commercial care at known rates, that damages be assessed by reference to that amount.
42Amaca acknowledges that if it is correct in its contention that it was wrong, as a matter of law, for the Tribunal to treat as irrelevant the commercial cost of the services, then the question might arise as to whether the matter should be remitted to the Tribunal, but argues that there was no point in doing so where the only evidence as to commercial cost of care before the Tribunal was by reference to the nursing home costs.
43For Mr Phillips, emphasis is placed on the fact that the loss being compensated by s 15B damages is the loss of his capacity to care for his wife at home. It is submitted that what the Court is here being asked, in effect, to do is to utilise the common law as a basis for awarding commercial care to a dependant, provided in an institutional setting, on the basis that special damages are permitted to recover a loss where the cost of professional services provided to others are or are to be borne by the injured person.
44Mr Phillips submits that there is no evidence that those costs would be borne by him and hence it cannot be said that the injury is productive of financial loss to him in this sense. Further, it is submitted that it is incorrect to suggest that there is a common law head of Sullivan v Gordon damages, since that was held by the High Court not to exist. Third, it is submitted that such an award would defeat the purpose for which s 15B was introduced, namely to make available a limited allowance "based on gratuitous care rates" for damages for loss of capacity to provide domestic services that had been provided in the past and would reasonably continue to be provided in future ([20]).
45Emphasis is placed on the fact that the loss to be compensated is a loss on the part of the care-giver, not the family, even though the award of damages may indirectly benefit the family, and that there is no requirement that the damages be expended in a particular way. Hence, it is submitted that it cannot be said that there is any windfall to the family. It is submitted that how the services are to be replaced after death of the care-giver is largely irrelevant to the measure of damages to be awarded.
46Mr Phillips notes that in Perez Basten JA, with whose reasons I agreed, noted that the calculation of the damages was dependent on the hours that the plaintiff had spent but was no longer capable of spending in the provision of the care of his grandchildren. Similarly, reference is made to what was said in Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288 by Hoeben J (as his Honour then was) at [316]-[318], as contemplating that an award of s 15B damages based on the number of hours actually spent in the provision of care could be made.
47For Mr Phillips it is emphasised that there is no common law right to damages for loss of capacity to provide gratuitous services, other than as a loss of amenity. It is submitted there is no need for coherence between s 15B damages and other damages at common law.
48As to the reliance placed by Amaca on Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370, it is submitted that it takes the matter no further since this was a claim for paid domestic assistance, not a claim with respect to s 15B.
49Reliance is also placed by Mr Phillips on the observation by Macfarlan JA in Perez at [40] that:
Support for this construction of the paragraph is to be found in the language of section 15B(2) which refers, in its chapeau, to "any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants". Paragraph (d) speaks of the reasonableness of a need for "the services" to be provided. "The services" are those referred to in the chapeau, that is, those that would have been provided to the dependants by the claimant, not simply those of a type that would have been provided by the claimant, irrespective of who provided them. [Emphasis original.]