Why this case is important?
- Lifetime Care and Support Scheme (the Scheme) participants are entitled to past Griffiths v Kerkemeyer (G v K) gratuitous care up to the date of judgment (or settlement)
- damages for gratuitous services are not available to a participant after the date of judgment or settlement
- the Scheme is responsible for all future attendant care services and including those provided on a gratuitous basis, if so claimed. The Scheme may seek recovery of the costs of such services from the CTP insurer by increasing the Fund levy.
Mr Thiering suffered catastrophic injuries following a motor vehicle accident on 28 October 2007 which left him a quadriplegic.
Mr Thiering was accepted as a lifetime participant of the Scheme and was provided with paid attendant care services by the Lifetime Care & Support Authority (LCSA). Despite the paid services, the plaintiff claimed past and future gratuitous attendant care services.
The LCSA prepared a care plan in accordance with section 23 of the Motor Accidents (Lifetime Care and Support) Act 2006 (LCS Act) following an assessment of the plaintiff's needs which included provision for both paid and gratuitous care. The gratuitous care was provided by the mother of Mr Thiering.
Mr Thiering submitted that all past and future gratuitous care that is not paid by the LCSA was compensable in accordance with section 128 of the Motor Accidents Compensation Act 1999 (MACA). The first defendant argued that the objects of the LCS Act, specifically section 130A of the LCS Act, were that all care needs of participants in the Scheme are to be covered by the LCSA in accordance with a LCS care plan. The second defendant (the LCSA) maintained that it was not responsible to pay Mr Thiering for any gratuitous attendant care services.
The first and second plaintiffs, Mr Thiering and his mother Mrs Thiering respectively, brought interlocutory proceedings against the defendant (subrogated CTP insurer) and the LCSA in the Supreme Court raising the following issues by notice of motion:
- has the right of an individual who becomes a participant in the Scheme to G v K damages been abolished following the introduction of section 130A of the LCS Act?
- if not, who is responsible for compensating a claimant for gratuitous attendant care services not paid for by the Scheme?
The case involved extensive statutory interpretation and analysis of the interaction between MACA and the LCS Act by his Honour Justice Garling.
Garling J observed that section 6 of the LCS Act requires the LCSA to pay expenses incurred in providing for attendant care needs, following an assessment of the treatment and care needs of a participant in accordance with section 23 of the LCS Act.
Section 54 of the LCS Act provides that the LCSA is entitled to recover from a motor vehicle tortfeasor (or subrogated CTP insurer) the present value of the Authority's liabilities to provide past and future treatment and care needs. Therefore, there is a statutory mechanism available to the LCSA to recover past and future treatment and care expenses that arise out of a need created as a result of the injuries sustained in a motor vehicle accident. This is recovered by collecting a "Fund Levy" from CTP Policy holders via their respective CTP insurers in accordance with Part 7 of the LCS Act.
Garling J also observed that the purpose of the Scheme was to provide all treatment and care, including attendant care, to all persons who are catastrophically and permanently injured in a motor vehicle accident, to the extent that such treatment and care is reasonable and necessary in the circumstances.
At paragraph 93 of the judgment, Garling J states:
The LCS Authority has issued Guidelines from time to time pursuant to s 58 of the LCS Act. The Guidelines state that the policy with respect to attendant care is:
Clause 6 of the Guidelines, which deals with the provision of attendant care by family and friends states the following:
At paragraph 126, Garling J held that the Guidelines issued by the LCSA are valid and binding excluding the guideline in respect of not funding a family member or friend to provide inactive sleepovers. It was reiterated that G v K damages are compensable where the motor vehicle tortfeasor has by his or her negligence created a need for care of the injured claimant, regardless of whether that need is fulfilled by a paid attendant carer or from the conduct of a family member or friend gratuitously.
In circumstances where a Court is called upon to interpret legislation and there is a conflict between Guidelines published by a statutory authority and the Act, a determination is required in respect of whether the Guidelines are valid. In this case, his Honour concluded that Part 8 of the LTCS Guidelines was invalid to the extent that it denied payment to family members and friends who provide attendant care to a Scheme participant by way of inactive sleepovers, and it was necessary for the Court to come to a conclusion which best fulfilled the intended purpose of the Act.
The Court concluded that an assessment of damages made as part of a judgment or settlement requires an application of the following criteria:
- is the injured person a lifetime participant in the LCS Scheme?
- have attendant care services been delivered to the injured claimant up to the date of assessment / judgment?
- where the Scheme has not paid, or accepted an obligation to pay, for attendant care services, then damages up to the date of assessment are recoverable, calculated in accordance with section 128 of MACA from the CTP insurer by the injured claimant.
Therefore, G v K damages are available but only up to the date of judgment or settlement of the damages claim where gratuitous services have been provided to the claimant, and have not been paid for under the LCS Scheme.
In respect of future attendant care, the Scheme is obliged to provide and to pay for attendant care services, where those services are assessed and determined under a plan to be reasonable and necessary for the treatment and care needs of the participant.
Where future attendant services are provided gratuitously, then the provider of the service may, depending upon the facts and circumstances in each case, have an available claim against the LCSA for those services in accordance with the common law principle of quantum meruit 1
Practical relevance of this case to insurers
Insurers ought to make provision in their estimate for all interim and lifetime participants in the Scheme for past care provided on a gratuitous basis. The estimate ought to be based on the factual circumstances of each case and the medical evidence available.
In our view, a buffer ought to be accounted for by your actuaries in respect of future gratuitous care as the LCSA is entitled to seek recovery of the present value of future attendant care expenses pursuant to section 54 of the LCS Act by increasing its Fund Levy. This will no doubt be the subject of future litigation and will most likely be considered by the relevant Law Reform Committee of the New South Wales Government in due course.
1 Quantum meruit is Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. http://legal-dictionary.thefreedictionary.com/quantum+meruit
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