Daly v Thiering [2013] NSWCA 25

Daly v Thiering [2013] NSWCA 25

The LCSA is not liable under s 6(1) LCS Act for gratuitous attendant care services unless there is a legal obligation to pay. Where no such obligation exists, a participant in the LCS scheme remains entitled to claim damages for such care under s 128 MAC Act against the motor vehicle tortfeasor or CTP insurer, except where and to the extent such needs are or will be paid for or met under the LCS scheme. Section 130A MAC Act operates to exclude only damages that are actually provided for, not merely included in a care plan, by the scheme.

Parties
Applicant: John Daly; First Respondent: Alexander Thiering; Second Respondent: Rose Matilda Thiering; Third Respondent: Lifetime Care and Support Authority of NSW
Jurisdiction
Australia
Judgment Date
20 February 2013
Procedural Posture
Appeal / Court of Appeal Judgment on Application for Leave and Appeal
Outcome
Appeal dismissed; leave to appeal granted; costs ordered against applicant.
Legal Topics
Lifetime Care and Support Scheme, Damages for Gratuitous Attendant Care Services, Liability of Motor Vehicle Tortfeasor and LCSA, Quantum Meruit Claims in Care Provision
Statutory Interpretation Motor Vehicle Accident Compensation Law Lifetime Care and Support Scheme Damages for Gratuitous Attendant Care Services Liability of Motor Vehicle Tortfeasor and LCSA Quantum Meruit Claims in Care Provision

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Parties

John Daly

Applicant

Alexander Thiering

First Respondent

Rose Matilda Thiering

Second Respondent

Lifetime Care and Support Authority of NSW

Third Respondent

Procedural Posture

Appeal / Court of Appeal Judgment on Application for Leave and Appeal

Legal Issues

  1. 1 Whether a participant in the Lifetime Care and Support Scheme is entitled to damages under s 128 Motor Accidents Compensation Act 1999 for gratuitous attendant care services.
  2. 2 Whether the Lifetime Care and Support Authority or the motor vehicle tortfeasor/CTP insurer is liable to pay for gratuitous attendant care services under s 128 MAC Act.
  3. 3 Interpretation of s 6(1) Motor Accidents (Lifetime Care and Support) Act 2006 regarding 'expenses incurred'.

Ratio Decidendi

The LCSA is not liable under s 6(1) LCS Act for gratuitous attendant care services unless there is a legal obligation to pay. Where no such obligation exists, a participant in the LCS scheme remains entitled to claim damages for such care under s 128 MAC Act against the motor vehicle tortfeasor or CTP insurer, except where and to the extent such needs are or will be paid for or met under the LCS scheme. Section 130A MAC Act operates to exclude only damages that are actually provided for, not merely included in a care plan, by the scheme.

Court Disposition

Appeal dismissed; leave to appeal granted; costs ordered against applicant.

Orders

  • Leave to appeal is granted.
  • The appeal is dismissed.