Piatti v ACN 000 246 542 Pty Ltd

Court of Appeal (NSW)|2020-03-23|Before: Basten JA, McCallum JA

t or tribunal: Dust Diseases Tribunal Citation: [2019] NSWDDT 7 Date of Decision: 23 August 2019 Before: Russell SC DCJ File Number(s): DDT 102/2018 DDT 102/2018/1 DDT 102/2018/2

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BASTEN JA: Shortly before his death from mesothelioma on 22 April 2018, Charles Rene Abegglen commenced proceedings against the present respondents in the Dust Diseases Tribunal. On 23 August 2019 Russell DCJ gave judgment for the plaintiff (on behalf the deceased's estate) in an amount of $1.058 million.
The present appeal, brought on behalf of the estate, concerns one component of the award of damages. That component was a claim for loss of capacity to provide domestic services, being services which Mr Abegglen had been providing to his wife. The damages were assessed pursuant to s 15B of the Civil Liability Act 2002 (NSW).
Ms Piatti suffered from dementia. At the time when Mr Abegglen's condition became manifest (and liability on the part of the respondents arose) he was providing gratuitous domestic services to his wife for 16 hours a day, as the judge found. However, the judge also found that since January 2018 Ms Piatti has required 24 hour care and supervision, and will require that for the rest of her life. The judge held, however, that he was not entitled to assess damages by reference to a need which had increased since the time liability arose, namely in mid-2016. He held that this constraint arose from a construction of s 15B of the Civil Liability Act adopted by this Court in State of New South Wales v Perez. [1] The question on appeal is whether the judge was correct in adopting this constrained approach.
For reasons explained by below, it is understandable that the judge, who correctly considered himself bound by the reasoning in Perez, would adopt that conclusion. However, the factual circumstances which arise in the present case were not present in Perez. Properly understood, s 15B does not prevent damages being assessed by reference to the actual needs of the dependant prior to trial, assuming the needs existed at the time liability arose, nor does it prevent a similar assessment with respect to the expectation of future needs. It is the need, rather than the number of hours over which services are required, which is to be identified at the time liability arose.
The second issue was raised by way of a cross-appeal filed by each respondent alleging error on the part of the trial judge in awarding damages calculated by reference to the period after Mr Abegglen's death.
The factual background has been set out by McCallum JA and will not be repeated. Given that the trial judge considered he was bound by an aspect of my reasoning in Perez, it may be helpful if I address that reasoning first.

Increased intensity of need

The entitlement to damages for loss of capacity to provide domestic services is governed by s 15B of the Civil Liability Act. Although the substance of the provision has not varied since its commencement on 20 June 2006, there have been minor variations in the language and form of the provision; it is appropriate to consider it in its terms at the time liability arose, namely mid-2016. At that time, the definitions and operative provision read as follows: 15B Damages for loss of capacity to provide domestic services (1) Definitions In this section: … dependants, in relation to a claimant, means: (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises: (i) the husband or wife of the claimant, (ii) a de facto partner of the claimant, Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants.
As noted in Perez, there are awkward aspects of the drafting of s 15B, including the occasional use of a disjunctive "or", where a conjunctive might have been expected, and by reason of changes in tense within a particular provision. A model for s 15B is found in s 15, dealing with damages for gratuitous attendant care services. The temporal structure of the two provisions differs, however, because s 15 deals with the claimant's need for services, caused by the injury, whereas s 15B deals with the claimant's capacity to provide services to others, which is lost as a result of the injury.
Further, as explained in Perez, the power to award such damages, and hence the entitlement of the claimant, depends on a pre-existing state of affairs, namely the services being provided by the claimant at the time the liability arose: subs (2)(a). (There is an exception with respect to any unborn child of the claimant, as identified in the definition of "dependants", par (b); it appears that the child must have been conceived, but not born, at the time liability arose.) Thus, the first of the four conditions specified in subs (2) is generally backward looking, as reflected in the past tense ("the claimant provided the services …").
Paragraph (b) is also backward looking to the time that liability arose, adding the additional requirement that the services were, in effect, needed. (The forward looking element, "(or will not be)" is evidently designed to address the case of the unborn child.) Thus, leaving to one side the case of the unborn child, both pars (a) and (b) deal with circumstances as they existed at the time liability arose.
By contrast, pars (c) and (d) require a prospective assessment, to be undertaken, as with par (a), by reference to the time that liability arose. Paragraph (c) requires an assessment of the counterfactual, namely what the claimant might reasonably be expected to have done, but for the injury. Paragraph (d) requires that the intensity and period for which the services would be provided is reflected in the need of the dependant and that the need "is reasonable". The fact that par (d) uses the future tense ("there will be a need") does not, in my view, refer to a future assessment as at the date at which the court determines the availability and quantum of damages.
Read as a whole, the four paragraphs in subs (2) impose dual conditions on the award of damages for the loss of capacity to provide domestic services, namely that (i) the claimant was in fact providing services to a dependant who had a need for such services at the time the liability of the tortfeasor arose, and (ii) absent the injury, the claimant would have continued to provide such services in respect of a continuing need of the dependant. These conditions require the identification of a relevant need (being met by the provision of services) and an activity (the provision of such services by the claimant). Damages are available where that activity is interrupted by the injury.
These limitations demonstrate that (except in the case of the unborn child) in the case of a predictable future need for which services were not being provided by the claimant at the date liability arose, whether because the need had not yet arisen or because the services were being provided by others, no damages will be available for any loss of capacity on the part of the claimant with respect to the provision of such services. Similarly, where a dependant had a particular need for services which were being provided by the claimant, damages may be awarded for that need, but not for some further and separate need, not then being serviced by the complainant.
If this analysis is correct, there may be nice cases in which it will be necessary to determine whether there has been a deterioration of an existing condition or disability of the dependant, requiring more intense services, or a separate need, based on a different condition or disability, may have arisen. In the present case that issue did not arise; there is no doubt that the need which was identified and the services which were required by Ms Piatti remained the same both before and after liability arose.
It may be expected that the needs of a child will diminish over time, but the needs of an infirm older person may increase over time. There is nothing in the language of s 15B to suggest that the assessment of damages cannot take into account such variables. The minimal requirement of "at least" six hours of services per week for a period of "at least" six consecutive months, required by par (c) identifies a necessary condition of recovery, but one which is not required to remain invariable, nor one which sets a ceiling as opposed to a floor on recoverable damages.
It follows that I agree with McCallum JA that the appeal should be upheld.
The last sentence in the reasoning in Perez at [14] read as follows: "The activities of the claimant prior to that time [the date at which the liability arose] will set the upper limit of what can be claimed, subject to satisfaction of the subsequent paragraphs."
The sentence could have been more precisely formulated. However, so long as the reference to the "activities of the claimant" is understood to refer to the services provided in response to particular needs, the sentence is consistent with the reasoning set out above.
The circumstances in Perez involved child care responsibilities of grandparents for grandchildren. One problem was that both grandparents were involved in care of the grandchildren, so that the services in question were not solely provided by the claimant. Thus, to the extent that the requirements for care were satisfied either by one of the children's own parents or by both grandparents, the basis of calculation required refinement. The focus of the case was not the deterioration of the condition of a dependant for whom only the claimant provided services, as in the present case.

Whether incapacity ended with the death of the claimant

The cross-appeal took issue with an allowance made by the trial judge for loss of capacity to provide services for a period which extended beyond the death of the claimant. The question whether the claimant's estate can claim damages pursuant to s 15B of the Civil Liability Act turns on the interrelationship between the provisions of three statutes.
First, although the deceased died from a "dust-related condition" attributable to breaches of duty by former employers, and the Dust Diseases Tribunal had exclusive jurisdiction with respect to such claims, [2] it is not in doubt that the cause of action survived his death and could be pursued for the benefit of his estate, pursuant to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ("the 1944 Act"). However, the 1944 Act also excludes certain heads of damage from those recoverable for the benefit of the estate: s 2(2). In particular, it excludes damages for the loss of capacity of the deceased to earn, or the loss of future probable earnings, for the period after his death (s 2(2)(a)(ii)); and, where the death was caused by the act or omission giving rise to the cause of action, damages "shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life": s 2(2)(d).
The last exclusion does not, however, operate in relation to a claim caused by a dust-related condition, by reason of s 12B in the Dust Diseases Tribunal Act 1989 (NSW): 12B Damages for non-economic loss after death of plaintiff (1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition.
Further, with respect to claims for loss of earnings, the exclusion of the estate from recovery of economic loss must be understood in the context of the Compensation to Relatives Act 1897 (NSW) ("the 1897 Act"), which provides for relatives of the deceased, where the death was caused by the wrongful act of another party, to recover damages for their own benefit. As the High Court held in Nguyen v Nguyen, [3] such claims may extend to "recompense for some tangible advantage which has been lost by reason of the death of the deceased." The joint judgment continued: [4] "Commonly the claim is based upon the loss of the financial contribution made by the deceased to the household and is referred to as a claim for the loss of a breadwinner. But the deceased may have made a contribution in services rather than money in which case damages are recoverable for their loss, whether or not they are, or are to be, replaced, provided that a pecuniary value can be placed upon them."
It is a premise of s 15B of the Civil Liability Act that the loss of services provided by the deceased can be valued. It would appear, therefore, that relatives of the deceased (including his wife) entitled to the benefit of the services he had provided would be entitled to recover an amount under the Compensation to Relatives Act. Section 11(5) of the Dust Diseases Tribunal Act expressly includes such a claim within the exclusive jurisdiction of the Tribunal.
This understanding may be doubled-edged for the cross-appellants. If they succeed on the cross-appeal, it may merely increase the expense of proceedings by requiring the deceased's wife to bring proceedings under the 1897 Act. Nevertheless, the present question is whether the deceased's estate can recover an amount by way of loss resulting from the injury to and death of Mr Piatti.
The question whether such damages may be recoverable by the deceased's estate will depend on the operation of s 2(2)(a) of the 1944 Act. The relevant provision excludes "any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person". An award under s 15B has no element of loss of earning capacity; it is a discrete head of damages which, as the High Court stated in CSR v Eddy, [5] was unrecoverable at common law, other than as an element of general damages for non-economic loss. In so far as s 2 of the 1944 Act sought to exclude damages for non-economic loss, that effect arose from the operation of s 2(2)(d), which was expressly disapplied with respect to proceedings in relation to dust-related conditions.
For completeness it should be noted that s 3B(1)(b) of the Civil Liability Act excludes the operation of that Act with respect to claims brought in the Dust Diseases Tribunal, other than s 15A, s 15B and s 18(1)(c), the effect of the last provision being to deny a claimant interest on damages awarded under s 15B.
Accordingly, there is no provision limiting the award of damages under s 15B for loss occurring after the claimant's death. Given that the loss is suffered by dependants, it does not cease with the claimant's death.
For these reasons, I agree with the conclusion reached by McCallum JA that the cross-appeals by the respondents must be dismissed with costs. I therefore agree with the orders proposed by McCallum JA.
McCALLUM JA: This appeal raises a narrow but important question concerning the proper construction of s 15B of the Civil Liability Act 2002 (NSW), which allows the court to award damages for loss of a claimant's capacity to provide gratuitous domestic services to his or her dependants. The question is whether there is an upper limit on the amount of damages that may be awarded, fixed by reference to the level or kind of services that were being provided by the claimant at the time the defendant's liability in negligence arose.

Circumstances in which the appeal is brought

There is no dispute as to the relevant facts. Mr Charles Abegglen was exposed to asbestos dust for over 20 years during his employment by the two respondents over separate periods. He contracted mesothelioma from which he died on 22 April 2018. Shortly before his death, Mr Abegglen brought proceedings in the Dust Diseases Tribunal. Pursuant to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), the cause of action survived his death for the benefit of his estate. The action was subsequently prosecuted by his step-son, Mr Roland Piatti, in that representative capacity.
Neither respondent disputed causation in the event that exposure to asbestos dust was proved. The primary judge found that Mr Abegglen was exposed to causally-significant levels of carcinogenic asbestos dust by each respondent, that negligence was established and that there should be judgment for the appellant against each respondent: Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7 at [27]-[28].
A substantial component of the claim was for damages for loss of Mr Abegglen's capacity to care for his long-term partner, Mrs Piatti, who suffered from Alzheimer's disease and vascular dementia. The symptoms of Mr Abegglen's disease emerged in mid-2016. That is taken to be the time when the respondents' liability for the disease arose. At that time, Mr Abegglen was providing virtually full-time care for Mrs Piatti. She had been suffering from her conditions since 2013 and had deteriorated over time. By mid-2016, she was entirely dependent on Mr Abegglen. He did all the cooking, housework and maintenance. He also supervised her showering and getting dressed. She would not have been able to continue living at their home without his care. The only time she did not require care or supervision was when she was asleep. The primary judge assessed the level of gratuitous domestic services being provided by Mr Abegglen at that time to be 16 hours per day: at [114].
By January 2018, Mr Abegglen's disease had progressed to a point where he was no longer capable of caring for Mrs Piatti. He asked her son (the appellant) to travel from Brisbane to Sydney to care for them both. By that time, Mrs Piatti's condition had also deteriorated further. The primary judge found that she then required 24-hour care and supervision. His Honour would have awarded damages on that basis: [117] and [127]. However, he took the view that he was "constrained" by decisions of this Court to awarding damages limited to the lower level of services being provided at the time liability for the disease arose in mid-2016. The decisions his Honour understood to compel that approach were State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 and Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281.
The primary judge awarded damages in the sum of $1,057,748.84 of which the component for damages under s 15B was $611,719. His Honour explained his calculation of the damages he felt constrained to award and the damages he would otherwise have awarded as follows: "[124] Based upon the above findings, the calculation of past s 15B damages, to reflect the period between January 2018 (when Mr Abegglen could no longer provide any services) and August 2019 (a period of 82 weeks) is: 16 hours x 7 days x 82 weeks x $31.54 = $289,663. [125] For future s 15B damages, the 3% multiplier for two years, to reflect the life expectancy of Ms Piatti, is 101.3. There will be a 10% discount for vicissitudes. [126] The calculation for future damages pursuant to s 15B is: 16 hours x 7 days x $31.54 x 101.3 x 0.9 = $322,056. [127] But for the interpretation of the Court of Appeal, which restricts the assessment of damages to the number of hours being provided as at the date the liability for the disease arose (mid-2016) I would have awarded 24 hours per day for the past and the future. In case I am in error in the way I have understood the Court of Appeal, and my error is later corrected by that Court, I find that s 15B damages calculated at 24 hours per day would be: Past s 15B damages: 24 hours x 7 days x 82 weeks x $31.54 = $434,495 Future s 15B damages: 24 hours x 7 days x $31.54 x 101.3 x 0.9 = $483.084."
The difference is $305,860.

Issues raised by the appeal

The appeal is brought under s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW), which confers an appeal as of right on a party who is dissatisfied with a decision of the Dust Diseases Tribunal in point of law. The single ground of appeal is that the primary judge erred in point of law in the assessment of damages under s 15B of the Civil Liability Act by restricting those damages to the number of hours of service provided by Mr Abegglen to Mrs Piatti as at the date the liability for the disease arose.
Each of the respondents cross-appeals on the ground that the primary judge erred in point of law in awarding damages under s 15B for the period after Mr Abegglen's death.
I am of the view that the appeal should be allowed and the cross-appeals dismissed for the following reasons.

Section 15B of the Civil Liability Act

The meaning of the section is to be determined by considering the statutory text as a whole and in its context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].
The section begins in subs (1) with definitions for the purpose of the section. Importantly, the term "dependants" is defined to include two classes of dependant. Paragraph (a) of the definition defines a class of what might be termed "existing" dependants. Paragraph (b) extends the definition to include unborn children of the claimant, who might be regarded as future dependants as at the time liability arises: "dependants", in relation to a claimant, means-- (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises-- (i) the person to whom the claimant is legally married (including a husband or wife of the claimant), (ii) a de facto partner of the claimant, Note: "De facto partner" is defined in section 21C of the Interpretation Act 1987. (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a)(i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.
It may be noted that, in each case (that is for both existing dependants and unborn children), the time at which the definition must be met is at the time the liability in respect of which the claim is made arises.
The substantive enactment is subs (2), which provides: (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that-- (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in subsection (1)--the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants-- (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
The logic of the section is to provide that damages may be awarded for "any" loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied of four conditions. There is nothing in the language or structure of the section to suggest that, if the court is satisfied as to those four conditions, there is any upper limit on the damages that may be awarded. On the contrary, the section allows an award of damages for "any loss of capacity". The word "any" must be allowed to do its work.
In accordance with ordinary principles of assessment of damages, the loss of capacity would be assessed by the court at the time of judgment and would extend to both past and future loss as at that time. There is nothing in the language of the section to suggest that this particular head of damages was intended to be frozen at an earlier point in time. With respect, the respondents' submissions on this issue confuse conditions of recovery with the notion of a cap on the quantum of damages that may be recovered. Again, the word "any" in the opening words of subs (2) militates against the respondents' construction.
The four conditions as to which the court must be satisfied may be seen to serve two primary purposes: to exclude opportunistic claims and to impose something in the nature of a threshold of seriousness before damages may be awarded. However, to reiterate, there is nothing in the statutory text to suggest the existence of an upper limit or cap on the amount that may be awarded in cases where the four conditions are met.
The first condition is that the claimant was providing the services to the dependant "before the time that the liability in respect of which the claim is made arose": subs (2)(a). That condition applies only in respect of the first class of dependants defined in the definition clause in s 15B(1), namely, existing dependants. That makes sense because the other class of dependants (unborn children of the claimant), being unborn at the time liability arose, would not have been in receipt of any gratuitous domestic services at that time. The language is cumbersome but the meaning is tolerably clear. It may be inferred that the intention was to confine awards (in the case of existing dependants) to any loss of capacity to provide services that were actually being provided before the disease emerged, so as to exclude opportunistic claims.
The second requirement applies to all dependants, both the existing and the unborn. That accounts for the curious mix of tenses in the provision: (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity (emphasis added).
Again, the language is cumbersome but the meaning is tolerably clear. It is cumbersome because it attempts to deal in the same clause with the capacity of both dependants who existed at the time liability arose ("were not…capable of performing the services themselves") and dependants who were unborn at that time ("will not be capable of performing the services themselves"). The section makes more sense if it is read as a whole and in accordance with the approach approved by McHugh J in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103], that is, reading the words of the definition into the substantive enactment. Thus, carrying the definition of the two classes of "dependants" into the operative clause, it would read "the claimant's existing dependants (or unborn children) were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity." The burden of the requirement is to satisfy the court that the gratuitous domestic services in respect of which the claim is made meet a genuine need rather than being, for example, services provided by an overly attentive parent to a healthy adult child still living at home.
The third condition requires the court to be satisfied that "there is a reasonable expectation" as to the level of services the claimant "would have" provided "but for the injury to which the damages relate". Contrary to the analysis in Perez (considered below), I am inclined to think that condition speaks to the court at the time of assessing damages but it is doubtful whether anything turns on the difference between those approaches. The section requires the court to determine whether the services the claimant would have provided (but for the intervention of injury or illness) meet a minimum threshold. The words "would have" are directed to the hypothetical (the situation that would have existed had the claimant not lost the capacity to provide the services) which would appear to allow consideration of services that would have been provided both in the past and in the future as at the time damages are assessed.
Similarly, the fourth condition appears to speak to the court at the time damages are assessed ("the court is satisfied that there will be a need"), requiring the court to consider whether the services the claimant would have provided (on the hypothesis of no injury or illness) meet a genuine and reasonable future need. Again, however, any difference between that analysis and the analysis favoured in Perez is probably immaterial. It would be absurd to construe the section so as to allow an award for services provided in response to an unreasonable "need" during the period between the time liability arose and the time damages are assessed. The tenses used throughout the section tend to conflate those two points in time. In order to make the section workable as a whole, it is necessary for the court to be satisfied of conditions (c) and (d) in respect of both past and future loss of capacity as at the time damages are assessed. The clear purpose of the third and fourth requirements is to impose a threshold of seriousness so as to exclude small claims and confine awards to cases of substantial, genuine need.
The respondents submitted that the phrase "the services" throughout the section should be understood to mean the gratuitous domestic services fixed by reference to the services that were in fact being provided before the time when liability arose. That does not produce a coherent reading of the section, for at least two reasons. First, subss (2)(c) and (d) contemplate variation in the level and kind of services over time and yet still use the expression "the services". Secondly, in the case of an unborn child, the section implicitly recognises that no services were being provided at the time liability arose and yet allows an award of damages for the loss of capacity to provide "the services" after the child is born. The better construction, in my view, is that the phrase "the services" is used throughout the section simply as shorthand for "gratuitous domestic services", which the section recognises will change over time both as to the level of need and the kind of service provided.
Against that analysis, uninformed by authority, I would not construe the section to impose any limit on the damages that may be awarded in cases where the court is satisfied that the four conditions are met. They were clearly met in the present case: 1. before the time liability arose (mid-2016), Mr Abegglen was providing gratuitous domestic services to his partner, Mrs Piatti, who was then wholly or partly dependant on him; 2. at that time, Mrs Piatti was not capable of performing the services herself; 3. at the time damages were assessed (August 2019), Mrs Piatti was assessed to have a life expectancy of two years and to require 24-hour care. There was no suggestion that Mr Abegglen would have stopped providing the services so long as he was in good health. Accordingly, there was a reasonable expectation that, but for his disease, Mr Abegglen would have provided gratuitous domestic services that exceeded the threshold imposed by the section (at least 6 hours a week for at least 6 consecutive months); and 4. at the time damages were assessed, it could be seen that there would be a need for the provision of services at that level and the need was reasonable in all the circumstances.
There is no aspect of the legislative context that alters that analysis. It is well understood that s 15B was introduced in response to the decision of the High Court in CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64. Before that decision, it was understood that loss of the capacity to provide gratuitous care to dependants could be compensated under the common law as a head of special damages in accordance with the decision of this Court in Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338. That decision and all decisions supporting it as a principle of Australian common law were overruled in CSR Limited v Eddy at [68] (Gleeson CJ, Gummow and Heydon JJ) and [122] (Callinan J). The High Court held that the lost capacity of an injured plaintiff to assist his or her family was compensable but only as part of general damages, not as special damages to be calculated by reference to the market cost of replacing the services: at [16] and [61]-[67] (Gleeson CJ, Gummow and Heydon JJ; [114]-[115] (McHugh J); [122] (Callinan J).
In so holding, the plurality remarked at [67] that the conferral of the rights recognised in Sullivan v Gordon on plaintiffs was properly a matter for the legislature. The legislature's response was s 15B.
That legislative context was considered by Simpson AJA in Amaca Pty Ltd v Raines [2018] NSWCA 216. Her Honour said at [146] (Meagher JA agreeing at [1]): "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."
Those remarks provide some support for my conclusion that the section imposes conditions but no cap. The question is whether the remarks of Basten JA in Perez, which were cited with apparent approval in Dionisatos and in Raines (by White JA) require a different approach. I am not persuaded that they do.
First, as submitted on behalf of the appellant, the issue that arises in the present case did not arise for decision in any of those cases. There was no question of there being an upper limit on the amount of damages that could be awarded by reference to the level or kind of services being provided at the time liability arose. The respondents in the present appeal accepted as much but nonetheless submitted that, in Perez, the Court "seems to have been setting out principles for the interpretation of the section more broadly to proceed to determine the issues in the case", with the contended result that the propositions stated and subsequently recited in Dionisatos and Raines must be taken to be the law. With respect, the submission misconceives the proper approach to precedent. If Perez did not decide the point that arises here, it does not provide a statement of binding principle on that point. A remark that is not a statement of binding principle does not harden into binding principle by being repeated in subsequent cases which also did not decide the point.
In saying so, I intend no criticism of the primary judge who, not inappropriately, considered that he should follow what he took to be authoritative (if not binding) statements of principle in judgments of this Court. In fairness to his Honour, it is clear enough that he did not read the statute in the way it was submitted he was bound to apply it.
The passage from Perez cited by the primary judge was at [14], where Basten JA (with whom Ward JA agreed at [42]) said: "There are two aspects of the provisions set out above which give rise to difficulties. First, both in the definition of "gratuitous domestic services" and in sub-s (2)(b), the word "or" is used when one might have expected "and". The use of the disjunctive in sub-s (2)(b) compounds the second difficulty, which arises from shifts between past, present and future tenses. A court assessing damages is apt to think, by reference to the date of trial or judgment, of past losses (which can usually be defined with some precision) and future losses (which are inevitably speculative to a degree). On one view the use of differing tenses could reflect that exercise. However, the preferable reading of sub-s (2) is that it speaks from the date at which the liability arose, as referred to in paragraph (a). The activities of the claimant prior to that time will set the upper limit of what can be claimed, subject to satisfaction of the subsequent paragraphs."
I agree that subs (2)(a) directs attention to the position as at the date on which liability arose. However, as I have endeavoured to explain, in order to make sense of the section, it is necessary to consider subs (2)(c) and (d) in respect of both past and future loss of capacity as at the time damages are assessed. To complicate matters, subs (2)(b) appears to speak from alternating times according to the class of dependant in question. Nevertheless, I see no reason why, in a list of four conditions to the entitlement to an award of damages of a particular kind, each condition must be assessed at a point frozen in time. It is perfectly logical to require the satisfaction of some conditions determined by reference to past events and some by reference to what is likely to be the case in the future. While the use of tenses in s 15B is clumsy, I consider that is how the section must be read.
The submission that s 15B imposes an upper limit or cap (as opposed to a series of threshold conditions) overlooks the fact that the opening words of the section allow damages to be awarded for "any loss" of capacity to provide gratuitous domestic services. It may be accepted, as Basten JA observed in Perez, that there is a link between the "activities" of the claimant prior to the time liability arose and the scope of what can be claimed but that is because nothing can be claimed if no such services were in fact being provided. His Honour's use of the term "upper limit" in that context has been understood to mean the section imposes a cap by reference to that past level of care (the respondents also rely on his Honour's remarks at [31] where he referred to the "ceiling" imposed by s 15B(2)(a)). If that is indeed what his Honour meant, which may be doubted, I respectfully disagree for the reasons set out above.
The decisions in Dionisatos and Raines take the matter no further. The relevant passage in Dionisatos is at [297]-[298] in the judgment of Gleeson JA (with whom Basten and Macfarlan JJA agreed at [1] and [33]). In that passage of the judgment, Gleeson JA went no further than to recite, in terms, what Basten JA had said in Perez at [14]. The issue addressed by the principle recited did not arise for determination in Dionisatos. In Raines, White JA (who published a separate judgment which was not the subject of comment by either Meagher JA or Simpson AJA) in turn set out at [85] the passage from Dionisatos which his Honour understood "summarised the propositions of law arising from the decision in State of New South Wales v Perez". In each case, the principles set out were evidently assumed to be correct without argument. Their repetition did not create binding precedent. If authority is needed to support that proposition, it may be found in the cases cited in the second respondents' own submissions on the cross-appeal: Baker v The Queen [1975] AC 774 at 787-789; cited in CSR Limited v Eddy at [13].
In my view, the proper construction of subs (2) is that, provided the court is satisfied that the four conditions in pars (a)-(d) are met, the claimant is entitled to an award of damages for the entire loss of capacity, past and future, as at the date of assessment of damages (as assessed in accordance with and subject to the balance of s 15B, which imposes other limitations that do not require consideration in the present case).
Since writing this judgment I have read the judgment of Basten JA in draft and refined my analysis in light of what his Honour has written. Whilst there remain subtle differences in our explication of the temporal aspects of the section, I do not perceive any material inconsistency between the position I have reached and the principles stated in Perez, which Basten JA has reiterated in his separate judgment above.

Claim for loss of capacity during "the lost years"

The respondents contend by way of cross-appeal that the primary judge erred in point of law in awarding damages under s 15B for the period after Mr Abegglen's death (referred to as "the lost years"). As already noted, Mr Abegglen died before the trial. The primary judge was satisfied that, but for the debilitating impact of his mesothelioma, he would have continued to provide gratuitous domestic services to Mrs Piatti until one of them died. On that basis, his Honour determined that the period for which s 15B damages could be awarded was to be determined by reference to Mrs Piatti's life expectancy, which his Honour determined to be a period of two years from the date of judgment: [97]-[99]. That finding is not challenged.
The appellant noted that the respondents' argument before the primary judge extended to the contention that, even if Mr Abegglen had been alive at the time his action was determined, no award for damages for the future lost years should be made as a matter of principle. The argument evidently rested on the cynical proposition that there is no compensable loss of capacity after a claimant's death because a dead person has no capacity. As submitted on behalf of the appellant, that overlooks the point that the loss of capacity due to the death of the claimant is a capacity that has been destroyed by negligence. The appellant submitted, and I agree, that the submission failed to grapple with the overriding principle that damages for the consequences of mere negligence are compensatory: Skelton v Collins (1966) 115 CLR 94; [1966] HCA 14 at 128 per Windeyer J; and see Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 at [4].
The respondents acknowledged the observation of Barrett JA in Amaca Pty Ltd v Phillips [2014] NSWCA 249 at [1] that s 15B "permits the award of a species of damages that the common law does not recognise, with the result that the statute alone defines the circumstances in which those damages may be ordered and the way in which they are to be assessed". Indeed, that was a premise of the respondents' argument opposing the appellant's ground of appeal. However, for the purpose of the cross-appeal, it was submitted that "there remains scope for drawing on general principle in the proper application of the section". The "general principle" said to arise was whether damages of a Sullivan v Gordon type should be available for the lost years.
The respondent noted that the High Court considered that question in CSR Limited v Eddy. The Court held at [69] that such damages were not available, but only on the basis that the Australian common law does not recognise an entitlement to Sullivan v Gordon damages at all.
The respondents noted that, since the introduction of s 15B, the availability of damages under that section for the lost years appears to have been assumed and not contested (it was in that context that the authorities referred to above were cited for the proposition that an assumption as to legal principle made without argument does not create binding precedent).
The respondents' argument that damages under s 15B should not be available for the lost years proceeded by reference to the characteristics of the loss of capacity to provide gratuitous domestic services identified in decisions of this Court preceding the introduction of s 15B. In particular, they referred to Bernicle v Cutelli [1982] 2 NSWLR 26 at 28 per Reynolds JA, Sullivan v Gordon at 322 per Mason P and CSR Limited v Eddy at [109]-[113] per McHugh J. However, as acknowledged at the outset of the submissions, "the statute alone defines the circumstances in which [s 15B] damages may be ordered and the way in which they are to be assessed". If damages are excluded for the lost years, the exclusion is to be found in the text of the statute.
I am not persuaded that damages for the lost years are not recoverable. First, the section does not say so. The section deals at length with limitations on the damages that may be awarded. It would have been a simple matter to exclude damages for the period following the death of a claimant.
Secondly, there is a strong textual indication that Parliament did not intend to exclude damages for the lost years. Subsection (6) of s 15B provides: Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.
It is significant that that provision expressly refers to representative claims on behalf of a deceased claimant; imposes a limit on the award of damages in such a case (they may not be awarded if the dependant has previously recovered damages in respect of that loss of capacity) and is silent on the topic of the lost years.
Thirdly, as already noted, the cause of action of a claimant who dies is preserved for the benefit of the claimant's estate by force of s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). That section contains exclusions, including subs 2(a)(ii) which excludes the recovery by the estate of damages for the loss of the capacity of the claimant to earn. However, it is silent as to damages under s 15B of the Civil Liability Act. As submitted by the appellant, it would have been a simple matter for Parliament to insert a provision in that Act similar to subs 2(a)(ii) so as to exclude recovery by the estate of damages for loss of the capacity to provide gratuitous domestic services. There is nothing in either the 1944 Act or s 15B of the Civil Liability Act to suggest that damages for future loss of capacity to provide gratuitous domestic services to dependants should not be awarded in respect of the lost years.

Orders

For those reasons, I propose the following orders: 1. Allow the appeal. 2. Set aside the judgment of the Court below and in lieu thereof order judgment for the appellant against the respondents in the sum of $1,363, 608.84. 3. Order the respondents to pay the appellant's costs of the appeal. 4. Dismiss the cross-appeals. 5. Order the cross-appellants to pay the cross-respondents' costs of the cross-appeals.
SIMPSON AJA: I agree with McCallum JA.

Endnotes

(2013) 84 NSWLR 570; [2013] NSWCA 149.
Dust Diseases Tribunal Act 1989 (NSW), ss 10(1), 11(1).
(1990) 169 CLR 245 at 263 (Dawson, Toohey and McHugh JJ); [1990] HCA 9.
Ibid.
(2005) 226 CLR 1; [2005] HCA 64. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2020

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