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austlii:nsw/NSWDDT/2026/4
General information, not legal advice.
NSWDDT
2026-04-17
Scotting J
Original judgment source is linked above.
(1) Is the plaintiff entitled to an award of damages for future commercially provided domestic assistance, if he is entitled to compensation for medical and related treatment under the 1942 Act?
(2) What is the revised figure in [279] PJ, after consideration of the claims for future out-of-pocket expenses and deducting the correct figure for the unused amount of the statutory caps in [176]-[182] PWS?
(1) The posed question should be answered "No". The plaintiff is not entitled to an award of future commercially provided domestic assistance because such assistance comes within the definition of "medical and related treatment" under the 1942 Act, and for the same reasons set out when dealing with Issue 3 of the primary judgment, the plaintiff is entitled to make a claim for those expenses from the DDA under the 1942 Act and is required to do so to mitigate his loss. If I am wrong on this conclusion, the appropriate award of damages for future commercially provided domestic assistance and the supply of medical aids is $610,811, which has not been reduced for the unused portion of the statutory caps or the empty chair exposure.
(2) The figure of $610,540 referred to at [297] PJ for the cost of the plaintiff's bilateral lung transplant is correct. To that should be added the sum of $132,610 for the future medical and related treatment expenses referred to at [94]-[100] below, that comes to a figure of $743,150, which has not been reduced for the unused portion of the statutory caps or the empty chair exposure.
Issue 1 The plaintiff's claim for future commercially provided domestic assistance
(a) if the domestic assistance sought becomes necessary that the plaintiff will be able to seek compensation from the DDA for that assistance;
(b) the likelihood of the DDA paying reasonable domestic assistance expenses is very high, if not certain;
(c) it is reasonable that the plaintiff should mitigate his loss by pursuing the payment of domestic assistance expenses to which he is entitled under the 1942 Act from the DDA; and
(d) for these reasons, I will not make an award for this head of damage.
Assessment of future commercially provided domestic assistance
(a) showering assistance must be provided for by a qualified carer and that the minimum charge for that assistance is one hour at the higher rate of $79.20 per hour; and
(b) the Anglicare FFS rates are charged for a minimum of 30 minutes, increasing in 15 minute increments, but most providers charge for a minimum of one hour.
Issue 2 What is the revised figure in [279] PJ, after consideration of the claims for future out-of-pocket expenses in [176]-[182] PWS?
Provisional assessment of future out-of-pocket expenses and commercially provided domestic assistance
Cost of commercially provided domestic assistance and medical aids
(a) the applicant(s) is to notify all other parties and to serve any evidence in support of the application together with written submissions (limited to no more than five pages in length) in support of the application within 14 days of the entry of final orders;
(b) the respondent(s) to the application is to serve any evidence in response to the application together with written submissions (limited to no more than five pages in length) in support of the response within a further 14 days;
(c) The applicant(s) and the respondent(s) are to provide the documents referred to in (a) and (b) to my Associate at the same time as serving them; and
(d) The application will be dealt with on the papers.
[1] Support at Home Manual: A guide for registered providers, Department of Health, Disability and Ageing, Canberra, December 2025.
[3] 3.5 hours x $71.21 (domestic assistance) 0.5 x $87.68 (gardening) - with some rounding.
[6] 5 hours at $79.20 (M-F am), 5 hours at $80.24 (M-F pm), 2 hours at $106.92 (Sat) 2 hours at $134.13 (Sun), 4.75 hours at 71.61 (cleaning), 0.5 hours at 87.98 (gardening), 1 hour $71.61 (transport) - with some rounding.
Bennett
Workers Compensation Nominal Insurer
(1992) 175 CLR 327
(1940) 64 CLR 1
(1973) 1 ALR 269