Australia: Valuing gratuitous care services in asbestos-related disease cases

Last Updated: 12 December 2011
Article by Ashley Tsacalos and Lee Corbett

The Court of Appeal in Amaca Pty Ltd v Hicks [2011] NSWCA 295 (16 September 2011), has delivered an important judgment on the valuation of gratuitous domestic assistance for asbestosis sufferers under s 15A of the Civil Liability Act 2002 (NSW) (CLA).


Mr Hicks suffers from asbestosis for which Amaca Pty Ltd (Amaca) admitted liability. The proceedings were heard before Kearns J in the NSW Dust Diseases Tribunal (The Tribunal) to determine the issue of damages, including those pursuant to s 15a(2) of the DA, which provides for the maximum amount of damages that may be awarded for gratuitous domestic assistance. On 30 November 2010, his Honour gave judgment for $354,423.19 in favour of Mr Hicks. On 17 December 2010, his Honour further ordered Amaca to pay Mr Hick's costs.

Amaca appealed to the Court of Appeal. in relation to the three issues raised, its arguments were dismissed by the court (Basten JA; Whealy JA and Handley AJA agreeing).

The first issue concerned whether the trial judge erred in point of law in admitting into evidence the second report of Professor Breslin. This report was faxed to Amaca on 1 October 2010, ten days before the hearing was fixed to commence. It was held by the court that the decision as to whether or not to allow the report into evidence was a matter for the trial judge's discretion. There was no evidence before the court to suggest that the trial judge did not take into account relevant factors which had been put to him in argument in admitting the report, or that procedural fairness had been denied. Thus, the decision to admit the evidence did not, of itself, demonstrate any error of law or of the principles relating to the exercise of the trial judge's discretionary judgment.

The second issue was whether the trial judge calculated the value of gratuitous domestic assistance in the absence of evidence. Before the trial judge, it was Amaca's submission that precision was impossible and that a global figure should be assessed. Alternatively, the calculation needed to discriminate between the different rates of different service providers. The trial judge rejected both approaches, and based his calculations on an hourly rate of average weekly earnings of all employees in nsW, being $24.64 at that date. His Honour accepted that commercial rates can differ, but that in adopting different rates for different care providers, such calculations could prove to be more inherently imprecise. Adopting an average hourly rate, the maximum allowed under s 15a of the cla, would offset the different rates of service.

The court held that no error of law was shown to arise from the approach adopted by the trial judge. It was not a case where the trial judge made findings without evidence. He had before him evidence of average weekly earnings, reduced to an hourly rate. There was no challenge to the accuracy of the figure, only its appropriateness for the relevant calculation. It was therefore open to the trial judge to adopt that figure as the basis to calculate the value of differing services.

The last issue concerned costs, and specifically whether Hicks was entitled to recover costs after the first day of the trial. Amaca's argument was that the second two days of trial were based almost entirely on the lateness and admission of professor Breslin's report. The court held that both factors were considered by the trial judge in awarding costs. As there was no decision identifiable as a point of law for review by the court, and given Amaca was not denied any opportunity to raise any matter it wished, this ground was dismissed.


Of particular significance in this case were the court's comments on what it considered to be the appropriate approach for calculating the value of gratuitous domestic assistance, or at least in determining the ceiling on such awards, pursuant to s 15a of the DA. although it wasn't necessary to resolve that question in the present case, the court appears to have favoured the approach adopted by the trial judge, being to use the maximum hourly rate allowed by s 15a. In particular, it expressed doubt as to whether or not a global figure, as suggested by Amaca, could be properly awarded, given the need at least to identify a ceiling above which no amount can be awarded.

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.

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Ashley Tsacalos
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