Dear Colleagues;

While the case will be of most direct interest to those in NSW, the High Court of Australia decision today in Daly v Thiering [2013] HCA 45 (6 November 2013) http://www.austlii.edu.au/au/cases/cth/HCA/2013/45.html may be of some general interest to others. It was essentially an exercise in statutory interpretation of the legislation introducing a no-fault scheme for providing care for those who suffer catastrophic injuries in a motor accident in NSW. 

The State effectively still has a “baseline” common law system, but it is adjusted in various situations. One of those situations is that of catastrophic injury, when the Motor Accidents (Lifetime Care and Support) Act 2006 allows a victim of such an accident to be looked after on an ongoing basis by a statutory authority called the Lifetime Care and Support Authority. But as you can imagine the trade-off is that once a person is covered by this scheme they cannot take a common law action for those costs that will be covered by the Authority.

The particular case of Mr Thiering (injured in an accident caused by Mr Daly) was that he was being cared for part of the time on a voluntary basis by his mother (who was not charging the Authority for this.) He then brought the action against Mr Daly to recover an amount representing the cost of this care (under common law principles developed some years ago in Griffiths v Kerkemeyerr (1977) 139 CLR 161.)

The issue was whether the then-relevant provision in the general motor accident legislation, s 130A of the Motor Accidents Compensation Act 1999, by precluding the recovery of “economic loss in respect of the treatment and care needs… provided for or… to be provided for” the victim, excluded these damages. The NSW courts held not; the High Court held that it did preclude such recovery. (The NSW Parliament amended the legislation after the first instance decision to make it clear that they were excluded for the future, but evidence at an earlier stage was that some $40 million was at stake in relation to  possible claims arising before the amendment.)

Colleagues who are interested in seeing the outlines of the NSW scheme by way of comparison with what operates in their jurisdiction can find a brief summary at para [14]. It seems generally like a good scheme, and the decision of the High Court probably represents what Parliament had intended. The question of whether Mrs Thiering, the mother, can now recover money from the Authority for the value of services she has been gratuitously providing previously (or for the future) is deliberately left open by the court at [22]. But neither she nor Mr Thiering can recover the amount from the other driver.

Regards

Neil