Introduction

On 28 August 2020, the NSW Court of Appeal delivered a Judgment clarifying the operation of s15B of the Civil Liability Act 2002 (NSW) (CLA) in its application to anticipated variations in the need for future care of the dependent and considered the availability of damages for losses beyond the premature death of the care provider as consequence of the negligence of the defendant.

The Court of Appeal clarified its Judgment in State of New South Wales v Perez (2013) in holding that s15B damages are appropriately assessed by reference to the varying degree of care as required into the future for an impairment existing at the time the provider became incapacitated rather than limited to the degree of care being provided at the time of the onset of the provider’s incapacity.

Further, the Court held that the entitlement to damages for care is appropriately assessed as continuing beyond the date of the provider’s negligently caused death.

Background

The care provider, Mr Abegglen, developed mesothelioma as a consequence of the negligence of the two respondents. He commenced proceedings in the Dust Diseases Tribunal seeking damages.

At the time of the onset of the mesothelioma Mr Abegglen was providing care to his long-time partner, Ms Piatti, who suffered from dementia. It was uncontroversial that at the time of the onset of symptoms of mesothelioma Mr Abegglen was providing
16 hours per day of care and later, and for the period after his death, Ms Piatti’s dementia had deteriorated such that she required and Mr Abegglen would have provided, 24 hours per day of care had he not developed mesothelioma and died.

The Trial Judge, having found those facts, awarded damages pursuant to s15B of the CLA on the basis of 16 hours per day of care from the date of the onset of Mr Abegglen’s incapacity to provide the required care and into the future beyond his death for the 2 year period of Ms Piatti’s life expectancy. The trial judge held that but for the mesothelioma Mr Abegglen would have outlived Ms Piatti and provided care to her until she died.

In assessing the damages under s15B the Trial Judge considered that he was constrained by the decision of the Court of Appeal in Perez to assess damages at a limit of the number of hours of care which was being provided at the time of the onset of the incapacity to provide the care, being 16 hours per day. Had he not been constrained the Trial Judge calculated that the additional damages would amount to a further $305,000.

The appeal

Mr Abegglen had died by the time of the entry of judgment and his Estate appealed arguing that the entitlement to damages under s15B is appropriately assessed at the reasonable expectation of provision of care regardless of whether that increases or decreases after the onset of the incapacity to provide the care arising from the respondents’ negligence.

Amaca, being one of the respondents, cross-appealed arguing that damages under s15B are not appropriately awarded after the date of the care provider’s death.

Assessment of damages under s15B

The Court of Appeal clarified its earlier decision of Perez. In Perez, the Court grappled with the appropriate assessment of damages for gratuitous care provided to grandchildren and was not required to specifically consider the question of an increasing need for care due to the deterioration of a pre-existing condition for which the care recipient had been receiving care prior to the onset of the provider’s incapacity.

In Piatti the Court of Appeal held that the relevant ‘trigger’ in s15B was a receipt of care for a particular disability. Thereafter, once that entitlement had been established, the damages are assessed by reference to the reasonable expectation of the care which would be provided into the future. That is, whether that need increased or decreased over time.

Basten JA specifically contemplated a potential argument whereby the care recipient subsequently developed a different impairment than that for which care was being provided at the onset of the provider’s incapacity. Regardless of whether it could be reasonably expected that the provider would have provided care for the need arising from the ‘new condition’ the court held that was not a loss contemplated by s15B and, consequently, a case could arise where a dispute arose as to whether the care was required for the compensable as distinct from a non-compensable need.

Damages post-death

Amaca argued that s15B damages should not survive the death of the provider. Rather, Amaca argued that such loss is appropriately compensated as a component of general damages noting the common law position that this class of damages is not recognised following the decision of the High Court in CSR Limited v Eddy [which prompted a number of states and territories introducing analogous provisions to
s15B of the CLA into various tort reform statutes].

The Court of Appeal unanimously held that s15B damages are appropriately assessed beyond the date of the death as a result of negligence of the care provider. Simply put, as the class of loss is not recognised under common law, it is necessary to consider the precise words of the statute in assessing the application of s15B.

The Court of Appeal noted that the section did not expressly state that the entitlement was terminated on death of the provider despite the fact that it would have been straight forward for the drafter to include that had it been the intention of Parliament to do so.

Conclusion

The decision of the Court of Appeal confirms the general practice in assessing damages under s15B. The court’s decision eliminates the potentially unfair result potentially arising from Perez of either under or over compensation depending upon whether the recipients need increases or decreases over time. Whilst this usually has reasonably limited impact in circumstances where care is being provided to an elderly and frail spouse, there is potentially a significantly higher impact for a younger claimant providing care to, for example, children whose needs are likely to reduce rather than increase over time.

Further, the court’s clear identification of the potential issue whereby a different need develops after the onset of incapacity is important. It is necessary to have regard to the timing of impacts of needs arising from different conditions in assessing whether the threshold criteria of six hours per week for more than six months prescribed by s15B is satisfied as regards each need, and further potentially complicated expert evidence will be required to assess the differing supply of care to satisfy the needs arising from different conditions, some of which might be compensable and others not.

Finally, it is evident that the intention of s15B was to provide an entitlement to damages beyond the death of the care provider, at least where that death arises earlier than expected due to the effect of the defendant’s negligence. An issue remains as to the period during which a care provider would be capable of providing care. This particularly arises in situations where the life expectancy of the care provider is less than the life expectancy of the care recipient or, less clearly on the legislation, where there is a reasonable expectation that the care provider would have become unable to provide care to satisfy the recipient’s need due to general aging and/or the anticipated development of a comorbid condition unrelated to the defendant’s negligence, or in circumstances where the condition of the care recipient deteriorates to such a degree that the need would have been beyond the capability of the provider in any event.