Judgment date: 11 November 2011
Thiering v Daly  NSWSC 1345
Supreme Court of New South Wales1
- G v K damages are recoverable for LCS Scheme participants, but only up to the date of judgment (or settlement).
- Thereafter, damages for gratuitous services are not available to a participant, as they are subsumed within the LCS Scheme.
- However, where gratuitous services are provided by a person, who would not otherwise be entitled to payment under the LCS Scheme, that provider may, in exceptional circumstances, seek payment from the LCS Authority directly as a debt.
The Supreme Court has delivered its seminal decision in relation to whether participants in the Lifetime Care & Support Scheme (LCS Scheme) are entitled to damages for gratuitous attendant care services, which are otherwise unpaid by the Lifetime Care & Support Authority (LCS Authority).
Mr Thiering was involved in a motor vehicle accident on 28 October 2007, as a result of which he suffered catastrophic injuries and was medically diagnosed as a quadriplegic.
Initially he was accepted in the LCS Scheme on 6 December 2007 as an interim participant. He subsequently became a full-time participant.
From April 2008 to December 2009, the LCS Authority conducted a care needs assessment and delivered a care plan, as required by s 23 of the Motor Accidents (Lifetime Care and Support) Act 2006 (LCS Act). The respective plans contained provision for both paid and unpaid services.
Whilst the paid services were paid for by the LCS Authority, the unpaid care was provided for by Mr Thiering's mother. Damages were claimed in relation to this gratuitous care.
The first and second plaintiffs (Mr Thiering and his mother) brought proceedings to determine the following issues:
- Can a catastrophically injured person, who is a lifetime participate in the Lifetime Care & Support Scheme, claim Griffiths v Kerkemeyer damages, as subsumed within s 128 of the Motor Accidents Compensation Act (MACA)?
- If so, who, as between the defendant driver/owner and the LCS Authority, is responsible for paying damages for gratuitous attendant care services?
His Honour Justice Garling delivered an extensive judgment analysing the various provisions of both the MACA and the LCS Act.
Ultimately, his Honour considered that the legislation raised the following possible interpretations:
- "G v K damages remain outside the LCS Scheme and are at the direct expenses of the CTP insurers in the usual way;
- G v K damages are wholly subsumed by the LCS Scheme and are no longer available to a Claimant who is also a lifetime participant in the scheme; or
- G v K damages are available but only up to the date of judgment or settlement of the damages claim where gratuitous services have in fact been provided to the Claimant, and have not been paid for under the LCS Scheme. They are not available after that time in respect to any services which are provided in the future."
The Court preferred the latter interpretation, discussed in further detail below.
G v K damages are permissible for the past but not for the future
His Honour interpreted the relevant legislation and identified a number of principles at para 143 of his Judgment, including the following:
"(i) Where a treatment and care plan includes the provision of attendant care services, whether gratuitous or paid, the plan constitutes an acknowledgement of the reasonableness of those services and the need for the provision of them, as well as, their causal relationship to the motor vehicle accident. It is an acknowledgement that in order to properly provide for the treatment and care needs of the participant, the attendant care services are an integral feature and should be provided for by the LCS Authority in fulfilment of its mandate.
(j) Where however, the LCS Authority does not pay for those services, and either does not have or else it does not accept an obligation to pay for those services, then, within the meaning of s 130A of the MAC Act, the services when delivered prior to an assessment date, have not been "provided for" and damages can still be recovered under the MAC Act for such services. However, since such services are a necessary part of the treatment and care needs of the participant, and since the LCS Authority is obliged to provide for those services in the future, the future attendant care services are excluded from an award of damages to a participant by reason of s 130A of the MAC Act, because they are "... to be provided for ..."
Accordingly, in the past, his Honour held that Mr Thiering was not disentitled to G v K damages. However, the right to such damages depends on whether the LCS Authority has paid, or is liable to pay, a reasonable amount for the gratuitous services already provided.
The Court noted that, depending on the facts and circumstances of the case, the provider may have available against the Authority a claim for those services in accordance with the principle of quantum meruit.
In the future, his Honour found that, Mr Thiering was "entitled ... to have all of his attendant care needs met and provided by the LCS Authority ...". As such, the LCS Authority is obliged to pay future attendant care services as determined under a 'care plan'. If, however, the services are to be provided gratuitously, the service provider may have a claim against the LCS Authority as a debt2.
Full time participants in the LCS scheme are now entitled to recover from CTP Insurers damages for past G v K Care. This is subject to the proviso that the LCS scheme does not have a liability to pay for such care as an expense. The extent to which those expenses will arise in future cases in accordance with the principle of quantum meruit, remains to be seen.
Whilst an insurer may not be directly liable to pay for gratuitous services in the future, the potential exists for the LCS Authority to seek 'reimbursement' pursuant to s 54 of the LCS Act. This aspect of the Judgment is somewhat controversial and is being carefully reviewed by the parties.
1 Garling J
2 For instance, his Honour discussed a possible claim by a service provider on the basis of the principle of quantum meruit.
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