Australia: Scope of ‘Domestic Services’ Within the Meaning of s15B of the Civil Liability Act 2002

Liverpool City Council v Altaf Lasker [2010] NSWCA 52

The plaintiff fell on a council footpath on 24 December 2005 and suffered a significant injury to his knee. He sued the Council for damages and was awarded a significant sum in the District Court. The defendant's appeal required the NSW Court of Appeal to consider, among other things, the construction of section 15B of the Civil Liability Act 2002 (CLA).

Issues on appeal

Section 15B(2) provides that damages may be awarded for any loss of a claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the Court is satisfied of certain criteria. The principal matter argued was that the award of damages was not authorised by s15B of the CLA on the basis that the services provided to the plaintiff's daughter were not 'domestic services' within the meaning of s15B(2).

The defendant did not attempt to define the boundaries of the suggested construction of s15B with precision but focussed on whether those care services approached or equated to nursing or palliative care. These types of services, the defendant maintained, were not, upon the proper construction of s15B, domestic services.

Defendant's arguments

The defendant argued that the relationship between ss 15 and 15B of the CLA supported a finding that, as a matter of statutory construction, s15B was incapable of supporting the award of damages in terms of those care provisions being given to a dependant which fell within the notion of nursing or palliative care.

Section 15 is concerned with damages for gratuitous attendant care services (Griffiths v Kerkemeyer damages).

It provides that:

• "Attendant care services" means attendant care services of a domestic nature, services relating to nursing, or services that aim to alleviate the consequences of an injury
• "Gratuitous attendant care services" means services that have been or are to be provided by another person to a claimant, and for which the claimant has not paid or is not liable to pay.

The defendant argued that Parliament plainly intended "attendant care services" to refer to something different from "gratuitous domestic services" where that expression appeared in s15B. Accordingly, there is a clear distinction between matters of a domestic nature on the one hand, and nursing or palliative care on the other. This proposition led to the defendant's fundamental assertion: "gratuitous domestic services" where appearing in s15B) means something different from, and more limited than, "attendant care services".

Plaintiff's arguments

The plaintiff argued that the difference in terminology between ss 15 and 15B was due to differing purposes of the sections. While ss 15 and 15A deal with services provided to a claimant, s15B deals with services which the claimant can no longer provide to others.

The plaintiff argued that Parliament had determined to overturn the effect of the High Court decision of CSR Limited v Eddy, which held that while the loss of the capacity to provide gratuitous personal or domestic services was compensable, the compensation should be allowed as part of general damages.

It was submitted that s15B is clearly directed to damages in respect of the care of persons who cannot care for themselves and in this way, the construction of s15B suggested by the defendant was completely at odds with the statutory intention to benefit those whose damages arose from a loss of capacity to provide for family members with the greatest needs.

Decision and comment

In coming to the decision to dismiss the appeal, Whealy J, who delivered the substantive judgment (with which Beazley JA and Macfarlan JA largely agreed) held the phrase "domestic services" in s15B should be given its ordinary meaning and not a restricted meaning. The Court determined that the Trial Judge was entitled to find that the care allowed for the plaintiff's daughter fell within the meaning of "gratuitous domestic services".

Whealy J made the following observations:

Although, the expression "domestic services" is "defined" in s15B, the definition does not give any indication that the phrase is to be given other than its ordinary meaning. Rather, the definition focuses on the meaning to be given to the word "gratuitous"

While "attendant care services" means any of three services then mentioned, it is clear as a matter of ordinary grammatical construction that none of those services is mutually exclusive of the other. The point of the definition in s15(1) is that it gives content to the notion of "attendant care services" in a context where any one of those services (or any combination of them) will answer the description in the defined phrase

The defendant's argument that in s15B "services of a domestic nature for which the person providing services has not been paid and is not liable to be paid" should be construed as meaning "other than services relating to nursing, and other than services that aim to alleviate the consequences of any injury" necessarily fails to have regard to the very different subject matters of s 15 and 15B.

Whilst damages for gratuitous attendant care services under s15 pre-suppose an injured plaintiff with a need for those care services, the phrase "domestic services" in s15B does not require a claimant's dependants to have been injured or require special care treatment because of physical or mental disability

The meaning to be given to the phrase "domestic services" in any particular context will vary according to the nature of the dependency, the obligations the relationship will normally impose, andthe history of the provision of past domestic services. In the case of children, domestic services must mean at least looking after and caring for those children where they themselves are incapable of performing the services themselves by reason of their age or physical or mental incapacity.

This decision makes it clear that s15B is concerned with the establishment of a real need for domestic services and that, absent injury, an injured plaintiff would have provided those services. In this way, a distinguishing factor between ss 15 and 15B appears to be the way in which damages under s15 are capped at 40 hours per week but the damages for loss of capacity to provide domestic services under s15B are not. Section 15B(4) simply imposes a limit on the hourly rate which can be claimed in respect of domestic services. What seems to be the real difference between the two sections is what is being valued. As identified in Kendrick v Bluescope Steel, in the case of s15B one should not consider the extent to which a plaintiff actually provided such services but his / her preinjury capacity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.