Australia: Gratuitous Domestic Services - The Question Of Dependancy Of Grandchildren And The Reasonableness Of Services Provided

Last Updated: 26 March 2009
Article by David Chong and Andrew Spearritt

Amaca Pty Limited v Novek [2009] NSWCA 50

Giles, Tobias and Campbell JA

In Brief

  • The Court of Appeal was asked to consider the application of Section 15B of the Civil Liability Act 2002 to a claim in respect to a loss of capacity to provide gratuitous domestic services to grandchildren. In particular, it considered whether the domestic services were provided to the grandchildren or to the parents of the grandchildren, whether the provision of the services was reasonable and what other factors should be taken into account when assessing the level of damages.


  • Margaret Dawson (the "deceased") commenced a claim for damages in the Dust Diseases Tribunal of New South Wales in respect to the condition of mesothelioma. She passed away before those proceedings concluded and the deceased's daughter (the "Respondent") continued the proceedings as the legal personal representative of the deceased's estate.
  • Prior to the deceased's death, she lived with the Respondent and the Respondent's husband, both of whom worked full time. The deceased provided care for her two grandchildren, aged 3 and 5 years at the time of the deceased's death.
  • On 12 May 2008, Kearns J delivered judgment in favour of the estate and included an amount of $193,307 as compensation for the deceased's loss of capacity to provide gratuitous domestic services to grandchildren.

Grounds Of Appeal

  • Amaca Pty Limited (the "Appellant") submitted that the trial judge erred in construing Section 15B of the Civil Liability Act 2002 and should have found that:
  • The grandchildren were not dependants of the deceased;
  • The deceased's services were provided to the Respondent rather than the deceased's grandchildren; and
  • The provision of the services was not reasonable.
  • It was also submitted that the trial judge ought to have taken into account the benefits received by the Respondent and her husband in being free to work full time and if those benefits were taken into account, the amount of damages allowed would have been reduced.

Court of Appeal Proceedings

  • Campbell JA with whom Giles and Tobias agreed, delivered judgment dismissing the appeal.
  • The Appellant argued that the mere fact that care was provided by the deceased to the deceased's grandchildren did not in itself make the grandchildren "dependent" upon her for the purposes of s15B of the Act. It was submitted that the grandchildren were actually dependent upon their parents and that the services that were provided by the deceased were actually services provided to the Respondent and the Respondent's husband, as opposed to the grandchildren.
  • It was held that the question of "dependency" is a complex question of fact that requires consideration of many elements. The Court of Appeal found that the trial judge made no error of law in finding that the grandchildren were dependent upon the deceased.
  • In terms of the recipients of the services, it was found that the fact that several members of the household may benefit from the services is no reason for concluding that such services were provided to a particular household member over another.
  • The Appellant also asserted that it was not reasonable for the trial judge to find that the Respondent and the Respondent's husband would have enjoyed the benefit of care and services provided by the deceased for a further 15 years. The Court of Appeal held that such a finding by the trial judge was not a question of law and the Appellant therefore failed to make out any ground for appeal on this issue.
  • Finally, the Appellant argued that the trial judge ought to have taken into account the benefit received by the Respondent and the Respondent's husband, in being able to maintain full time employment whilst the deceased cared for the children.
  • The trial judge accepted the Respondent's evidence that if the deceased had not been available to provide care and assistance, most of the Respondent's time would have been spent looking after the children.
  • Section 15B(11)(b) of the Act states:

"(11) Determining value of gratuitous domestic services. In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2)..."

  • The Court of Appeal found that the benefit conferred upon the Respondent and the Respondent's husband by being able to go to work, arose not only from the care provided by the deceased but also from other surrounding circumstances including the deceased's ability to perform incidental housework. It was held that those such circumstances were outside the scope of s15B(11)(b).
  • In any event, the trial judge noted that the s15B damages awarded were "for the necessary care of the grandchildren and not for general household chores."
  • The Court of Appeal held that the trial judge had made no error of law in failing to take into account the benefit enjoyed by the Respondent and the Respondent's husband of being free to go out to work.


  • The decision provides a useful examination of s15B of the Civil Liability Act 2002 and the circumstances which should be taken into account when determining the extent of damages to be awarded.
  • The Court has confirmed that s15B(2)(d) is one of the four factual preconditions that must be satisfied before a court is empowered, by the chapeau to s15B(2), to award damages for loss of a Claimant's capacity to provide gratuitous domestic services to dependants.
  • The decision also demonstrates that when determining the reasonableness of services provided, "all the circumstances that brought about the need and reasons for the need" should be considered.

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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