Daly v Thiering

Judgment 1McCOLL JA: I agree with Hoeben JA's reasons and the orders his Honour proposes. 2MACFARLAN JA: I agree with Hoeben JA. 3HOEBEN JA: Nature of appeal The first respondent, Alexander Thiering, has brought proceedings in the Supreme Court against two defendants for damages arising from catastrophic injuries suffered by him in a motor vehicle accident on 28 October 2007. The applicant, John Daly, was the driver of the motor vehicle alleged to have been at fault in the motor vehicle accident and is the first defendant in those proceedings. 4The second respondent is the first respondent's mother, who has provided and continues to provide attendant care services to him. She is the second plaintiff in those Supreme Court proceedings and seeks payment from the third respondent, the Lifetime Care and Support Authority of NSW (LCSA), for the provision of those attendant care services. 5The first respondent is a lifetime participant in the scheme established under the Motor Accidents (Lifetime Care and Support) Act 2006 (the LCS Act) which is administered by the LCSA. 6The primary judge was asked to consider and determine five questions separately and in advance of all other issues in the Supreme Court proceedings. His Honour provided answers to those questions in his judgments of 11 November and 19 December 2011. The applicant seeks leave to appeal from those findings by the primary judge. The application for leave to appeal and the appeal were heard together. Factual background 7The first respondent was injured on 28 October 2007 while riding a registered motorcycle. The applicant was driving a registered motor vehicle out of a driveway and made a right turn across the path of the first respondent's motorcycle. A collision occurred in which the first respondent suffered spinal cord injuries at the C5 and C6/7 levels. The first respondent is now a quadriplegic being paralysed in the upper and lower limbs and trunk with only elbow flexion, shoulder and neck movements possible. 8In his defence, the applicant admitted that he was negligent but alleged that the first respondent was guilty of contributory negligence in a number of specified ways. 9Before the commencement of the LCS Act, damages in respect of the first respondent's treatment and care needs were recoverable under the Motor Accidents Compensation Act 1999 (MAC Act). In order to be eligible for such damages, an injured plaintiff had to establish negligence. 10The enactment of the LCS Act created new rights for persons catastrophically injured. The broad aim of the scheme was to provide for the lifetime care and support needs of those who had suffered traumatic spinal cord injury (such as paraplegics and quadriplegics) and those who had suffered severe traumatic brain injury. 11The LCS Act created the LCSA to administer the scheme. The LCSA is part of a division of the New South Wales Government known as the Compensation Authorities Staff Division which since 2009 has been a principal agency of government. The Motor Accidents Authority (MAA), which licenses and regulates CTP insurers, is also a part of the Compensation Authorities Staff Division. Both the MAA and the LCSA share a single chief executive officer and the two authorities report to a single minister of government, i.e. the Minister for Finance and Services. 12Ostensibly the LCS scheme would appear to be voluntary in nature. A claimant has the opportunity to elect to participate in the scheme (s 8(1)). Similarly, an insurer may nominate a claimant for participation in the scheme. The MAA or the LCSA can also direct an insurer to nominate a claimant to participate in the scheme. The reality is that insurers will nominate all possible eligible claimants for participation in the scheme. This is because it is in an insurer's financial interest to pass on liability for ongoing treatment and care to the LCSA, rather than the insurer having to continue to meet such expenses. 13A claimant cannot resist an insurer's decision to nominate him or her for participation in the scheme except on grounds that they do not meet the eligibility criteria (s 8(2)). Eligibility for the scheme applies irrespective of fault. The only legal impediment to eligibility is where there is a dispute as to whether the injury arose from a motor accident as relevantly defined in the MAC Act. 14The LCS Act provides that the claimant will not be eligible to participate in the scheme if he or she has been awarded common law damages for their treatment and care needs (MAC Act - s 7(3)). A claimant who can establish fault (whether discounted for contributory negligence or not) preserves the right to recover all other heads of damage that are not covered by the scheme, i.e. such a claimant can still recover a lump sum for general damages and damages for economic loss. 15The following facts were agreed before the primary judge. "1. The first plaintiff was born on 18 August 1978 and was involved in a motor accident on 28 October 2007. As a result of the motor accident the first plaintiff suffered catastrophic injuries rendering him a high level quadriplegic. 2. The second plaintiff is the first plaintiff's mother ('mother'). 3. The first plaintiff is a lifetime participant in the scheme established by the Motor Accidents (Lifetime Care and Support) Act 2006 ('the LCS Act'). He was provisionally accepted into the scheme on 6 December 2007 as an interim participant and subsequently was accepted as a lifetime participant 4. At all material times Guidelines were in force under the LCS Act, relevantly the Lifetime Care and Support Guidelines gazetted 8 October 2011 and as amended. 5. The first plaintiff was admitted to the Prince of Wales Hospital on the day of the accident and was discharged on 29 September 2008 to reside at 37 Bundanoon Road, Woronora Heights, NSW. 6. While the first plaintiff was hospitalised his mother visited him in hospital. 7. Since his discharge from hospital the first plaintiff has lived in rented accommodation with his mother at Woronora Heights. His father resided there for a time but not longer lives at that address. 8. Since becoming a scheme participant, the LCS Authority has provided and paid for the first plaintiff to receive attendant care and domestic assistance from commercial providers, medical and nursing treatment, equipment and other items needed by reason of his injury. The first plaintiff's current (paid) attendant care provider is Australian Homecare Services Pty Limited. 9. Since his discharge from hospital, the mother has provided care and domestic assistance to the first plaintiff on a gratuitous basis. The first plaintiff and the second plaintiff have not negotiated any agreement in respect of the terms and conditions for payment of monies to the second plaintiff in respect of the provision of services to the first plaintiff by the second plaintiff. 10. The LCS Authority has declined to pay the mother as an attendant carer. The mother is in receipt of a carer's allowance from the Commonwealth Government for the care and assistance that she provides to the first plaintiff. 14. The first plaintiff has commenced proceedings No 2010/00022260 in the Supreme Court of New South Wales Common Law Division against the motor vehicle driver and the LCS Authority. By his Further Amended Statement of Claim the first defendant claims damages for negligence from the driver as the first defendant. The first defendant by his Defence filed 23 April 2010 admits breach of duty and alleges contributory negligence. The first defendant also relies on section 130A of the Motor Accidents Compensation Act 1999 (NSW). 15. By the Further Amended Statement of Claim the first plaintiff and the mother claim that the LCS Authority has a statutory obligation to pay for the mother's services to him 'in the order of' 106 hours per week and makes allegations of invalidity concerning Part 8 of the Guidelines made under the Act. The LCS Authority denies that it has an obligation as alleged and relies in particular on sections 6 and 10 of the Act and the Guidelines made under it. The LCS Authority also denies that the mother has locus standi . 16. The mother has also commenced proceedings [n]o 2010/351580 in the Supreme Court of New South Wales against the motor vehicle driver alleging psychological impairment, nervous shock and incapacity for work, and has submitted numerous expert and medical reports in support of her claim. Those proceedings will be heard together with the negligence proceedings." (WB 37) 16Examples of "care plans" prepared by the LCSA in respect of the first respondent were placed before the Court. These care plans were dated respectively 18 April 2008, 7 April and 22 December 2009. Each care plan set out a regime of paid and unpaid care. For example, that prepared on 22 December 2009 provided for a total of 182 hours of care per week, comprising 152 hours of paid care and 30 hours of unpaid care to be provided by the second respondent. Those "care plans" were made available to the first and second respondents. 17The principal issue which arose before the primary judge and to which the separate questions were directed was from which of the applicant or the third respondent, if either, the value of the gratuitous attendant care services provided by the second respondent to the first respondent could be recovered. 18It is for that reason that the first respondent brought proceedings against the third respondent for damages, including the value of care provided to him by the second respondent, and alternatively against the applicant by his CTP insurer, for damages under s 128 MAC Act for the value of that care. The second respondent brought proceedings against the third respondent for damages for the value of the care which she had provided for the first respondent on a basis not yet pleaded. Before the primary judge the basis identified was that of quantum meruit. 19The preliminary questions raised before the primary judge were: