Judgment date: 20 April 2010
Liverpool City Council v Altaf Laskar  NSWCA 52
Court of Appeal1
The phrase "domestic services" in s 15B of the Civil Liability Act should be given its ordinary meaning and not given a restricted meaning and therefore includes services that are nursing or palliative care as opposed to services of a purely domestic nature.
On 24 December 2005 the plaintiff fell on a footpath. The plaintiff sued Liverpool City Council (the defendant). In the fall the plaintiff suffered significant injury to his knee.
One of the plaintiff's daughters, who at the time of trial was 14, suffered Spina Bifida and was wheelchair bound and required a good deal of physical assistance every day.
Part of the plaintiff's claim for damages was pursuant to 15B of the Civil Liability Act. Pursuant to s 15B(2) of the Civil Liability Act:
"Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependents, but only if the court is satisfied that:
- In the case of any dependents of the claimant of the kind referred to in paragraph (a) of the definition of "dependents" in subsection (1) – the claimant provided the services to those dependents before the time that the liability in respect of which the claim arose, and,
- the claimant's dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental capacity, and
- there is a reasonable expectation that, but for the injury
to which the damages relate, the claimant would have provided
services to the claimant's dependents:
- for at least six hours per week, and
- for a period of at least six consecutive months, and
- there will be a need for the services to be provided for those hours per week and consecutive period of time and that need is reasonable in all the circumstances."
Dependents, in relation to a claimant are defined in subsection 1 to mean:
- Such of the following persons as are wholly or partly
dependent on the claimant at the time that the liability in respect
of which the claim is made arises:
- a husband or wife of the claimant,
- a de facto partner of the claimant, being a person who has a de facto relationship (within the meaning of the Property (Relationships) Act 1984) with the claimant,
- a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant...,
- any other person who was a member of the claimant's household, and
- Any unborn child of the claimant...at the time of the liability in respect of which the claim is made arises and who is born after that time."
The phrase "gratuitous domestic services" in s 15B(2) is defined to mean "services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid"
The phrase "attendant care services" is defined elsewhere in section 15 (1) to mean "services of a domestic nature", "services relating to nursing", or "services that aim to alleviate the consequences of an injury" and relate to gratuitous attendant care services that have been or are to be provided by another person to a claimant.
District Court Decision
The trial judge found in favour of the plaintiff and damages were awarded in the sum of $621,325.87. This included damages awarded in respect of a loss of capacity to provide domestic services to his daughter in the sum of $415,786.56, on the basis that his injuries meant that his wife now had to spend an extra four hours care each day because the plaintiff was not able to help as he did before the accident.
Court of Appeal Decision
The defendant's primary grounds of appeal were that the services provided to the plaintiff's daughter (or at least some of them) were not "domestic services" within the meaning of s 15B(2) of the Civil Liability Act (being more properly described as attendant care services), and that the finding of an additional four hours care being required was "glaringly improbable" on the evidence.
Whealy J, who authored the unanimous decision, provided a summary of the legislative history in relation to the alleged loss of services to others. In Sullivan v Gordon2 the Court of Appeal held that when tortious conduct injured a plaintiff in a way that prevented the plaintiff from providing care to other members of the plaintiff's household, the loss of the capacity to provide that care was compensable as "compensation...for the value of services of a domestic nature" under s 72 of the Motor Accidents Act 1988. The High Court overruled Sullivan v Gordon in the case of CSR Limited v Eddy3 where it was held that, while loss of the capacity to provide gratuitous personal or domestic services was compensable, the compensation should be given as part of the general damages, not as a separate item of damage the quantum of which is assessed, as it had been in Sullivan v Gordon, by reference to the commercial cost of providing the services that the plaintiff cannot provide.
As a result of CSR Limited v Eddy s 15B of the Civil Liability Amendment Act 2006 was enacted to once again allow these damages as a separate head of damage separate from general damages but with a cap on damages.
The defendant argued that most of the services that the plaintiff provided to his daughter fell under the heading "Attendant Care Services" as opposed to "Gratuitous Domestic Services" as they were nursing or palliative care as opposed to services of a purely domestic nature. Accordingly in the defendant's submission the plaintiff was not entitled to compensation for services relating to nursing or services that aim to alleviate the consequences of any injury and that the legislature had clearly intended the two forms of services to be dealt with differently as demonstrated by the two definitions in s 15B(1) and s 15(1) the latter relating to "damages for gratuitous attendance care services".
In dismissing this ground of appeal the Court of Appeal held that the phrase "domestic services" in s 15B should be given its ordinarily meaning and not given a restricted meaning as suggested by the defendant's counsel. Whealy J found at its most basic, in the case of children, domestic services must mean at least looking after and caring for those children where they themselves are incapable of performing the services themselves by reason of their age or physical or mental incapacity.
The Court of Appeal did however note that there will be some limits in determining which domestic services to others would be compensable, noting that in CRS Limited v Eddy the joint judgment queried, without deciding, whether domestic services should be extended "to the wide range of educative services healthy parents supply their children of an academic, sporting or cultural kind".
The Court of Appeal also declined to overturn the trial judge's findings that four hours per week extra care had been provided by the plaintiff's wife to their daughter, referring to a number of authorities such as Galea v Galea4 which confirmed that the conclusion of a trial judge may be disturbed only if that conclusion was "glaringly improbable". Such a conclusion would rarely be drawn by an appellate court unless it follows clearly from the inferences to be derived from "incontrovertible facts" (see Yarrabee Coal Company Pty Limited and Anor v Lujans5).
Whilst the Court of Appeal noted that CSR Limited v Eddy suggested that there may be some limits on what compensation could be awarded for services that are no longer able to be provided to others, the decision confirms that there is no relevant distinction between the phrases "attendant care services" and "domestic services" which would restrict damages being awarded under s 15B the Civil Liability Act.
The decision is also further authority for the fact that conclusions and findings derived by the trial judge from facts proved at trial will very rarely be overturned on appeal, and only if the trial judge's conclusion was "glaringly improbable" and unless it follows clearly from the inferences to be derived from "incontrovertible facts".
1 Beazley JA; Macfarlan JA, Whealy J
2 (1999) NSWCA 338
3  HCA 64
4 (1990) 19 NSWLR 263
5  NSWCA 64
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