The Court of Appeal in Amaca Pty Ltd v Hicks
 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
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
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
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
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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