Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Amaca Pty Ltd v Phillips [2014] NSWCA 249
• Hearing dates: 16 July 2014
• Decision date: 31 July 2014
• Before: Barrett JA at [1]; Ward JA at [2]; Tobias AJA at [71]

Decision

1. Appeal and cross-appeal dismissed.

2. Appellant to pay respondent's costs of the appeal.

3. No order as to costs of the cross-appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DAMAGES - Dust Diseases Tribunal Act 1989 (NSW) s 15B - compensation for gratuitous care for dependents - whether trial judge erred calculating damages at hourly statutory rate provided by plaintiff as opposed to commercial value of those services; DAMAGES - Dust Diseases Tribunal Act 1989 (NSW) s 15B - compensation for gratuitous care for dependents - whether trial judge erred in determining the life expectancy of plaintiff's wife or number of hours gratuitous care which should be compensated - whether there this was a decision in point of law allowing intervention
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Liability Amendment Bill 2006 (NSW); Dust Diseases Tribunal Act 1989 (NSW); Lord Campbell's Act
• Cases Cited: Amaca v Novek [2009] NSWCA 50; (2009) 9 DDCR 199; [2009] Aust Torts Reports 82-001; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370; Burnicle v Cutelli [1982] 2 NSWLR 26; CSR Ltd v Amaca Ltd [2009] NSWCA 338; CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1; Cummings v Canberra Theatre Trust [1980] FCA 209; ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193; Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373; House v The King [1936] HCA 40; (1936) 55 CLR 499; Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288; Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245; K J Phillips v Amaca Pty Ltd [2014] NSWDDT 2; State of New South Wales v Perez [2013] NSWCA 149; (2013) 84 NSWLR 570; Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
• Category: Principal judgment
• Parties: Amaca Pty Ltd (ACN 000 035 512) (under NSW Administered Winding Up) (Appellant/Cross Respondent); Kevin John Phillips (Respondent/Cross Appellant)
• Representation: Counsel: TGR Parker SC with JC Sheller (Appellant/Cross Respondent); DJ Russell SC with N Ghabar; (Respondent/Cross Appellant); Solicitors: DLA Piper (Appellant/Cross Respondent); Slater & Gordon (Respondent/Cross Appellant)
• File Number(s): 2014/153106
• Publication restriction: Nil

Decision under appeal

• Citation: K J Phillips v Amaca Pty Ltd [2014] NSWDDT 2
• Date of Decision: 2014-05-13 00:00:00
• Before: Kearns J
• File Number(s): DDT367/2013

Judgment

1 BARRETT JA: I agree that the orders proposed by Ward JA should be made on both the appeal and the cross-appeal. I also agree with her Honour's reasons, noting that s 15B of the Civil Liability Act 2002 (NSW) permits the award of a species of damages that the common law does not recognise, with the result that the statute alone defines the circumstances in which those damages may be ordered and the way in which they are to be assessed.

2 WARD JA: Mr Phillips suffers from mesothelioma. He brought a claim in the Dust Diseases Tribunal of New South Wales for damages against Amaca Pty Ltd (Amaca). Amaca did not deny liability. The only issue in the proceedings was as to quantum.

3 Mr Phillips was awarded the sum of $780,713 (K J Phillips v Amaca Pty Ltd [2014] NSWDDT 2). That sum included a component by way of damages for loss of Mr Phillips' capacity to provide care in the future for his wife, who suffers from Alzheimer's dementia and has various other co-morbidities. Damages of that kind may be awarded pursuant to s 15B of the Civil Liability Act 2002 (NSW) if certain pre-conditions are satisfied. Amaca accepts that those pre-conditions were satisfied in the present case. The amount awarded for what I will refer to as "s 15B damages" was calculated by the Tribunal by reference to the number of hours that Mr Phillips would, but for his illness, have spent caring for his wife in the future, having regard to what was found to be Mrs Phillips' life expectancy, namely 2.5 years.

4 By the time of the Tribunal hearing, Mr Phillips' life expectancy was not long. It was accepted that on his death, the remaining family members will not be able to care full-time for Mrs Phillips and she will be placed in a nursing home or other institutional care, something that his Honour found would not have happened but for Mr Phillips' illness.

5 Amaca has appealed from the award of s 15B damages, contending that the amount should have been calculated by reference to the objective commercial cost of nursing home care for the duration of Mrs Phillips' life expectancy. It conceded at the Tribunal hearing that it would be appropriate to award the maximum cost for nursing home care based on evidence put before the Tribunal as to the cost of different levels of nursing home care. It submits that the effect of his Honour's award for this component is to give Mr Phillips' family a significant windfall because the s 15B damages based on the hourly rate calculation is substantially more than the cost of nursing care on the evidence that was before the Tribunal.

6 Mr Phillips has cross-appealed, contending that this component of the award should be increased on the basis that his Honour erred in finding that Mrs Phillips' life expectancy was only 2.5 years and in adopting, for the purposes of the calculation of damages, 18 hours per day as the time that Mr Phillips would have spent caring for her in the future.

7 Pursuant to s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW), an appeal to this Court from the Tribunal lies only from a decision in point of law or, which is not relevant here, on a question as to the admission or rejection of evidence.

Section 15B damages

8 Section 15B(2) of the Civil Liability Act provides that:

Damages may be awarded to a claimant for any loss of a claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)-the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

9 Sub-section 4, headed "Determination of amount of damages", provides:

The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.

10 Section 15(5) provides:

If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires.

11 It is not disputed that s 15B was introduced into the legislation following the decision in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, in which the High Court held (overruling Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319) that a person who, by reason of personal injury, is unable to provide gratuitous personal or domestic services for another cannot recover as damages an amount calculated by reference to the commercial value of those services, though recognising that loss or impairment of the amenity constituted by the capacity to assist others may be compensated as part of general damages.

Primary Judgment

12 The background facts are set out in the primary judge's reasons and are not challenged on appeal. Briefly, Mr Phillips was diagnosed with mesothelioma in September 2013. Up until then he was a person of very good health. Mr Phillips retired from his then part-time employment in August 2013 so that he could care full-time for his wife, who has significant health problems, at home. It was his intention to do so for the rest of her life. Since his illness, Mr Phillips has not been able to care full-time for his wife. After his death, Mrs Phillips will be placed in a nursing home or other institutional care.

13 His Honour summarised various factual findings at [30] and [48]. His Honour was satisfied, and it is not here disputed, that the threshold conditions for an award of s 15B damages had been made out.

14 His Honour noted at [47] that Mrs Phillips' condition was likely to deteriorate but said that this would not have resulted in Mr Phillips ceasing to care for her. Rather, it was likely to have resulted in other members of the family or community nursing or other assistance, to some extent, coming to the aid and care of Mrs Phillips in the home. His Honour accepted that Mr Phillips' provision of services would, in all likelihood, have lessened to some extent even if he had not become ill but did not consider this to be "a factor of major degree" because he did not think the future (presumably referring to Mrs Phillips) was likely to be prolonged; a matter his Honour said he would deal with in considering Mrs Phillips' life expectancy.

15 Relevantly, for the purposes of the cross-appeal, one of the findings made at [48] was that before he became ill, Mr Phillips was providing care to Mrs Phillips to the extent of 22 hours per day (2 hours a day having been deducted to reflect the assistance provided to Mrs Phillips on an occasional basis by the couple's children and grandchildren) but, at [52], his Honour concluded that it was reasonable to assess the loss of capacity of Mr Phillips to care for his wife in the future at 18 hours per day.

16 At [53], his Honour found that Mrs Phillips' life expectancy was another 2.5 years. His Honour had regard to the evidence of the expert geriatric consultant called by Amaca, Professor Caplan, in reaching that conclusion. His Honour understood that evidence, in context, to be to the effect that Mrs Phillips' prospects of survival were less than the "median". His Honour understood Professor Caplan's opinion to be based largely on a Canadian study that his Honour referred to which found that the median survival for dementia patients, adjusted for length bias, was 3.3 years from onset of dementia. The onset of Mrs Phillips' dementia was accepted to be about 12 months before the hearing. Having regard to the time of onset of Mrs Phillips' dementia, and having already noted that she had other co-morbidities, his Honour "rounded out" the estimate for Mrs Phillips' life expectancy to 2.5 years.

17 His Honour determined that s 15B damages should be allowed at the sum calculated by reference to the hourly rate that was provided for by s 15(5) (agreed to be $27.70 per hour) and the 18 hours per day that his Honour had found Mr Phillips would have cared for his wife, but for his illness, multiplied by the relevant multiplier to take into account a 2.5 year life expectancy. Amaca agreed at the Tribunal hearing that this was the applicable hourly rate if its principal submission as to quantification of damages, to which I refer below, was not accepted.

18 His Honour then applied a 15% discount for vicissitudes, pursuant to s 15B(11), on the basis that there was a prospect that Mrs Phillips would have had nursing home care before she died even had Mr Phillips not become ill.

19 Having determined that s 15B damages should be calculated on that basis his Honour referred at [59], to what he described as Amaca's principal submission in relation to s 15B damages, namely, that they should be assessed having regard to what it is known will in fact happen in the future in Mrs Phillips' case, by reference to the objective commercial cost of nursing home care. His Honour said:

It is implicit that what I have done is reject the defendant's principal submission on s 15B. It is likely that Mrs Phillips will enter a nursing home or other institutional care upon the death of the plaintiff. The evidence is clear on that from the plaintiff. No other family member is or will be in a position to care for her. I consider this to be an irrelevant finding in this case, but I make it as the defendant has submitted at least from that time, the quantification of the plaintiff's claim should be determined by the cost of that care. (my emphasis)

20 It is clear from his Honour's reasons at [61] and [62], that his Honour reached the conclusion that it was irrelevant that Mrs Phillips would be admitted to a nursing home on her husband's death on the basis of his opinion that if damages were to be awarded on the basis of the cost of commercial or institutional care then Mr Phillips would not be compensated for the loss of his capacity to provide gratuitous domestic services to his wife and the result would be that what Mr Phillips was being compensated for was Mrs Phillips' loss of his 24 hour care.

21 His Honour noted at [63] that s 15B(4) applies a cap to the amount that may be awarded for loss of capacity determined by reference to weekly earnings as prescribed by s 15. His Honour expressed the opinion that, had the legislature intended that the cost of commercial care be "the" or "a" measure of the loss to be compensated for under s 15B, this could easily have been specified in the legislation. His Honour at [64] contrasted s 15 and s 15A in this regard. His Honour considered that the omission from s 15B of a cap at a particular number of hours a week was indicative of a legislative intention to leave s 15B damages uncapped except for the hourly rate.

22 His Honour went on to say at [65] that if he were wrong in the approach he had taken, and Amaca's submission was correct, then the s 15B damages would need to be assessed on a different basis and that "an assessment of damages in accordance with the defendant's submission would require some further evidence before damages could be assessed". His Honour said that he did not have that evidence and was unable to make that assessment, although noting he had been provided with some evidence as to costings.

Amaca's appeal

23 As noted, Amaca does not dispute that the conditions required to be satisfied for an award of damages under s 15B were satisfied in this case. In particular, it accepts that there will be a need on the part of Mrs Phillips for 24 hour care for the rest of her life and that this need is reasonable in all the circumstances. Its contention is that his Honour erred, as a matter of law, in finding that the commercial cost of care in a nursing home was irrelevant in determining the proper measure of s 15B damages.

24 The particular error of law by his Honour that Amaca contends enlivens this Court's appellate jurisdiction, was the finding (at [59]) that Mrs Phillips will enter a nursing home after Mr Phillips' death was an irrelevant finding.

25 By its amended notice of appeal, Amaca relies on two grounds of appeal:

(1) that his Honour erred in point of law in concluding that the proper measure of damages was a sum calculated by applying the maximum statutory rate to the number of hours which Mr Phillips would have spent caring for his wife if he had not developed mesothelioma; and

(2) that his Honour erred in point of law in not finding that the proper measure of damages in the circumstances was the commercial cost of the care which Mrs Phillips would, on his finding, receive.

26 Amaca seeks to have the order made below set aside and in lieu thereof the entry of judgment for Mr Phillips in the sum that incorporates, by way of s 15B damages, an amount calculated by reference to the maximum cost that it has conceded will be incurred for nursing home care.

27 Amaca submits that the objective commercial cost of care is not irrelevant and hence there was an error in his Honour dismissing it as such. In that regard, Amaca's oral submissions seemed to proceed on the basis that it would have had no complaint had his Honour considered the cost of commercial care, as an alternative to the method of calculation that was in fact adopted, but then gone on to decide that in the present case the commercial cost of care was not the appropriate measure. However, in its written submissions Amaca contends that the finding that Mrs Phillips will enter a nursing home has a "legal effect" in the assessment of s 15B damages ([11]) and in its written and oral submissions argues that it should have been determinative.

28 Section 15B does not prescribe the measure of damages to be awarded to a claimant who satisfies the threshold requirements of the section. The only indication that might be able to be gleaned from the section as to the appropriate measure of damages is that the cap on damages that is provided by s 15B(4) is one calculated by reference to an hourly rate provided for in s 15(5). There is, however, no cap based on the number of hours' care for which s 15B damages may be awarded. Amaca submits that the existence of the cap under sub-section (4) or the way it is calculated is irrelevant to the proper measure of damages.

29 Amaca does not point to anything in the text of the legislation itself to support its contention that the proper measure of damages is to be determined objectively by reference to the commercial cost of the services that will in fact be provided in future. Rather, it notes that there is nothing in the legislation that prescribes that the measure of damages must be based on the hypothetical situation as to what would have happened if the accident or illness had not intervened.

30 It does, however, submit that the requirement for the Tribunal to be satisfied of the reasonableness of the need for the provision of the services (under s 15B(2)(b)) before damages may be awarded informs the proper measure of those damages.

31 Broadly speaking, Amaca relies on two matters in support of its contention that the proper measure of s 15B damages is the commercial cost of the services for which the dependant has a need: first, the history leading up to, and purpose of, the introduction of s 15B into the legislation and, second, the need for coherence with the measure of damages available at common law for loss of domestic services in other contexts (such as Lord Campbell's Act damages).

32 As to the history leading up to the enactment of s 15B, as already noted, it followed the decision in CSR v Eddy. There, the plurality (Gleeson CJ, Gummow and Heydon JJ) summarised (from [5]-[11]) the legal background against which the submissions for the parties were to be evaluated, referring inter alia to the decisions in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Burnicle v Cutelli [1982] 2 NSWLR 26; Cummings v Canberra Theatre Trust [1980] FCA 209; and Hodges v Frost [1984] FCA 98; (1984) 53 ALR 373 - to each of which Amaca referred in the present case.

33 Their Honours concluded (at [23]) that a Sullivan v Gordon claim, where the injured plaintiff was seeking to recover for loss of capacity to provide services to another, rested on a different basis from a Griffiths v Kerkemeyer claim, where the injured plaintiff was seeking to recover the monetary value of services for which he or she has a need as a result of the injury, and (at [25]) that no analogy should be drawn between the two types of claim. At [32], the plurality said:

... Thirdly, there is an important difference between the field in which Griffiths v Kerkemeyer applies and the field in which Sullivan v Gordon applies. In applying Griffiths v Kerkemeyer it is relatively easy to estimate the extent of the plaintiff's need for personal care or services, and to calculate, by reference to the costs of professionals providing that care or those services, what the damages should be (even if it is possible or likely that the care will not be provided, either at all or by paid professionals). But the "need" of the plaintiff to care for others is much harder to evaluate. To examine it by reference to what care the plaintiff ought to have provided in the past would trigger invidious inquiries. To examine it by reference to what care the plaintiff in fact provided in the past would require investigation as to whether the intensity of the plaintiff's interests in providing the services might have been likely to change after the tort because of possible future events like divorce or the birth of new children, or for other reasons. The Sullivan v Gordon problem is not the practical one of calculating costs. It is the legal problem of deciding what test should be employed in deciding what costs need to be calculated. To that Sullivan v Gordon problem there is no Griffiths v Kerkemeyer parallel.

34 Their Honours then considered whether Sullivan v Gordon was supportable on policy reasons, in the course of which they noted the uncertainty as to how the principle was to be defined (at [55]). Their Honours also acknowledged (at [43]) that a plaintiff recovering such damages would not be obliged actually to use the damages award in order to acquire at commercial rates the services that he or she had gratuitously rendered in the past, just as a plaintiff recovering Griffiths v Kerkemeyer damages is not obliged to spend them on acquiring the provision of care for themselves, there being no trust affecting those damages.

35 Reference is made to the second reading speech by the then Parliamentary Secretary, Mr Neville Newell, in relation to the Civil Liability Amendment Bill 2006 (NSW) in May 2006. In that speech, express reference was made to Sullivan v Gordon having been overruled in the High Court and it was said that the bill provided a "partial reinstatement of Sullivan v Gordon damages, with limitations to ensure that those damages are available only in the cases of greatest need."

36 In the second reading speech, reference was made to two particular fact situations as illustrative of the potential hardship if such damages were not recoverable and it was said that the bill responded to those cases "by providing a right for seriously injured people to recover damages for the domestic services they are no longer able to provide to their dependants in cases of the greatest need".

37 Amaca argues that what can be drawn from the second reading speech and from cases such as Griffiths v Kerkemeyer and Van Gervan v Fenton is that at common law the proper measure of damages recoverable for loss of services that were previously provided gratuitously is based on an objective determination of the monetary value of the loss; that, as a general rule, this will be the market cost of those services, and that Parliament's intention to re-instate "Sullivan v Gordon" damages in effect means that the Griffiths v Kerkemeyer approach should be adopted.

38 Amaca acknowledges that if the market cost of provision of the services is unreasonable or disproportionate then commercial cost may not be the appropriate measure (referring to Nguyen v Nguyen 159 CLR 235 - where the High Court looked to the commercial cost of the services and considered whether that was reasonable) but submits that commercial cost should be the starting point.

39 As to the need for coherence, it is submitted by Amaca that there is every reason, when determining s 15B damages, to adopt the same principles as applicable in Van Gervan v Fenton, where the quantum of damages is assessed on an objective scale, since otherwise the outcome would be capricious. Reference is also made to ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 at [63] for the proposition that there is an entitlement to claim commercial care in circumstances where there is a need and gratuitous assistance is unavailable. Amaca argues that the "compensation principle" should apply and that his Honour should not have ignored what is known about how the care needs will be satisfied in the future.

40 Amaca notes that s 15B(2)(d) has been said to contain difficulties in interpretation (State of New South Wales v Perez [2013] NSWCA 149; (2013) 84 NSWLR 570 at [14]) and that in Perez consideration as to what was involved in the replacement of the services was said not to be irrelevant (at [26]). It is submitted that the principled exercise of determining the proper measure of s 15B damages requires enquiry as to what is reasonable in the circumstances consistent with the enquiry mandated by s 15B(2)(d).

41 In summary, Amaca contends that, absent specification in s 15B as to how damages are to be calculated, the compensation principle should apply and that in applying that principle it is necessary to apply the limitations inherent in s 15B(2)(d), namely that the services which will in fact be provided are objectively reasonable. It is submitted that it is both logical and consistent with previous common law authority, where a need will be satisfied by commercial care at known rates, that damages be assessed by reference to that amount.

42 Amaca acknowledges that if it is correct in its contention that it was wrong, as a matter of law, for the Tribunal to treat as irrelevant the commercial cost of the services, then the question might arise as to whether the matter should be remitted to the Tribunal, but argues that there was no point in doing so where the only evidence as to commercial cost of care before the Tribunal was by reference to the nursing home costs.

43 For Mr Phillips, emphasis is placed on the fact that the loss being compensated by s 15B damages is the loss of his capacity to care for his wife at home. It is submitted that what the Court is here being asked, in effect, to do is to utilise the common law as a basis for awarding commercial care to a dependant, provided in an institutional setting, on the basis that special damages are permitted to recover a loss where the cost of professional services provided to others are or are to be borne by the injured person.

44 Mr Phillips submits that there is no evidence that those costs would be borne by him and hence it cannot be said that the injury is productive of financial loss to him in this sense. Further, it is submitted that it is incorrect to suggest that there is a common law head of Sullivan v Gordon damages, since that was held by the High Court not to exist. Third, it is submitted that such an award would defeat the purpose for which s 15B was introduced, namely to make available a limited allowance "based on gratuitous care rates" for damages for loss of capacity to provide domestic services that had been provided in the past and would reasonably continue to be provided in future ([20]).

45 Emphasis is placed on the fact that the loss to be compensated is a loss on the part of the care-giver, not the family, even though the award of damages may indirectly benefit the family, and that there is no requirement that the damages be expended in a particular way. Hence, it is submitted that it cannot be said that there is any windfall to the family. It is submitted that how the services are to be replaced after death of the care-giver is largely irrelevant to the measure of damages to be awarded.

46 Mr Phillips notes that in Perez Basten JA, with whose reasons I agreed, noted that the calculation of the damages was dependent on the hours that the plaintiff had spent but was no longer capable of spending in the provision of the care of his grandchildren. Similarly, reference is made to what was said in Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288 by Hoeben J (as his Honour then was) at [316]-[318], as contemplating that an award of s 15B damages based on the number of hours actually spent in the provision of care could be made.

47 For Mr Phillips it is emphasised that there is no common law right to damages for loss of capacity to provide gratuitous services, other than as a loss of amenity. It is submitted there is no need for coherence between s 15B damages and other damages at common law.

48 As to the reliance placed by Amaca on Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370, it is submitted that it takes the matter no further since this was a claim for paid domestic assistance, not a claim with respect to s 15B.

49 Reliance is also placed by Mr Phillips on the observation by Macfarlan JA in Perez at [40] that:

Support for this construction of the paragraph is to be found in the language of section 15B(2) which refers, in its chapeau, to "any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants". Paragraph (d) speaks of the reasonableness of a need for "the services" to be provided. "The services" are those referred to in the chapeau, that is, those that would have been provided to the dependants by the claimant, not simply those of a type that would have been provided by the claimant, irrespective of who provided them. [Emphasis original.]

Conclusion

50 Whether or not his Honour erred in regarding as irrelevant the finding that Mrs Phillips will be placed in a nursing home after her husband's death, I am not persuaded that the proper construction of s 15B requires that damages could only properly be assessed by reference to the commercial cost of provision of those services in a nursing home or by way of other institutional care.

51 The second reading speech is not in my opinion of any real assistance in this regard (see the discussion in Amaca v Novek [2009] NSWCA 50; (2009) 9 DDCR 199; [2009] Aust Torts Reports 82-001 at [72]-[81]).

52 Nor is the common law background against which s 15B was enacted of great assistance in answering this question. Had the legislature chosen to limit the damages available under s 15B to the commercial cost of care in a nursing home or institution (or otherwise) it could have done so. Instead, the legislation is silent on the proper measure of s 15B damages - other than to set a cap which is to be calculated by reference to an hourly rate and which at least to that extent might be said to be consistent with reference being made to the hours of care that would have been provided by the claimant.

53 What Griffiths v Kerkemeyer and the line of cases following it in relation to the question of compensation for hitherto gratuitously provided domestic services show is that, when placing a monetary value on the loss of gratuitous domestic services, it is appropriate to have regard to the objective commercial cost of those services. That cost is not necessarily determinative of the measure of the loss in a particular case. What was being compensated for by way of the ill-fated Sullivan v Gordon damages, however, was the plaintiff's loss of capacity to provide the services, not the value to the recipient of those services.

54 The partial reinstatement of Sullivan v Gordon damages by way of the creation of a new statutory entitlement to claim s 15B damages does not require that the claimant's loss of capacity be valued by reference to what it will cost commercially for the same services to be provided in the future; nor does it require that account be taken of how those damages will be expended by the plaintiff or, as is likely in this case given Mr Phillips' illness, by the executor or administrator of the deceased plaintiff's estate.

55 It was not argued before his Honour that the hourly rate calculation was unreasonable, having regard to Mrs Phillips' admitted need for care; simply that the reasonableness of the "need" enquiry under s 15B(2)(d) should inform the measure of damages.

56 In my opinion, it cannot be said that the approach adopted by his Honour was incorrect as a matter of law. Nothing in the legislation required his Honour to use objective commercial cost as a starting point; nor was his Honour required to take into account what it is known will actually happen on Mr Phillips' death for the purpose of assessing the appropriate compensation for Mr Phillips for the loss of his capacity to care for his wife at home. Indeed, on one view, if the commercial cost of care were the sole appropriate measure of damages the more appropriate measure might be to assess the cost of what home care would be, as opposed to institutional care, since that is what Mr Phillips has lost the capacity to provide.

57 Amaca's real complaint seems to have been that the award should have been made to compensate the family for the cost that it is known will be incurred when Mrs Phillips is placed in a nursing home. That ignores the fact that it is Mr Phillips' loss that is the subject of the award of s 15B damages.

58 The appeal should be dismissed.

Mr Phillips' cross-appeal

59 By his amended notice of cross-appeal, Mr Phillips contends that his Honour erred:

(1) in finding that Professor Caplan expressed an opinion concerning the probable life expectancy of Mrs Phillips;

(2) in finding it probable that the life expectancy of Mrs Phillips was 2.5 years, on the basis that it is said there was no evidence to support such a finding;

(3) in failing to find, as it is said the evidence demonstrated, that the probable life expectancy of Mrs Phillips was between 5 and 9.3 years from the onset of dementia; and

(4) in awarding Mr Phillips only 18 hours a day for future s 15B damages when he had expressly found that Mr Phillips had been, and but for his illness would have continued, providing 22 hours of care per day for his wife for the balance of her life.

60 As to the fourth ground of cross-appeal, it is submitted that there was no evidence to support his Honour's finding (at [52]) that Mr Phillips would have provided care in the future for 18 hours per day and that this was inconsistent with the finding that he provided care 22 hours per day (at [48]). It was accepted that if his Honour had misinterpreted the evidence in this regard then that would not be an error of law.

61 As to the first three grounds of cross-appeal, it is submitted that his Honour erred in that Professor Caplan did not in fact express the view that Mrs Phillips' life expectancy was 2.5 years. Professor Caplan's report noted that dementia was a progressive illness; the statistical evidence that the progression of dementia was slower in women and that the survival time differed depending on date of onset of the dementia. In that regard it was agreed that the onset of dementia in Mrs Phillips' case was at 79 years of age (within the mid range for this purpose) and had occurred some 12 months before the hearing. Mr Phillips notes that although his Honour referred to Mrs Phillips' co-morbidities, there was no adjustment made by reference to those.

62 It is submitted that it was an error of law to attribute this opinion to Professor Caplan, having regard to what was said in his report.

63 Amaca points to what was said by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, namely that:

... alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted ... The party saddled with the onus [of proof] cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. [emphasis as per original.]

64 His Honour there said that a question of fact could not be converted to a question of law by inverting the onus of proof. Here, it is not disputed that Mr Phillips bore the onus of proving Mrs Phillips' life expectancy and, to the extent that he relied on a factual finding of hours of future care, the hours of care that he would but for his illness have provided.

65 In CSR Ltd v Amaca Ltd [2009] NSWCA 338, on an appeal from the Dust Diseases Tribunal, Basten JA at [86] noted that a provision such as s 32(1) of the Dust Diseases Tribunal Act "does not countenance a challenge to factual findings, as such". His Honour noted that, by allowing a statutory appeal limited to error in point of law, Parliament had indicated a clear intention not to permit review of fact-finding generally and went on to say at [89]:

The scope of phrases such as "question of law", "point of law" and "error of law" is less clear. Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the tribunal below on a question, or in point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of error which would permit interference with a discretionary decision, in accordance with the principles established in House v The King[1936] HCA 40; 55 CLR 499 at 505.

66 Basten JA went on to say at [91]:

On one view, it may not matter greatly whether it is found that there is no evidence on which a particular finding could properly be based or that the Court should infer that the Tribunal erred in law by failing to exclude reliance on hindsight. In the context of a statutory appeal from a decision of the Tribunal in point of law, there is a difficulty in asserting that the primary judge drew inferences which were not properly available in the circumstances. To identify the error as one involving "no evidence" to support the findings made requires a degree of artificiality in locating a decision of the Tribunal in point of law which could give rise to such an error, unless every finding of fact were said to be based on an implicit decision that there was some evidence to support the finding. Such an approach may seem to allow a statutory appeal from a decision of the Tribunal whenever the ultimate decision is affected by legal error.

67 In the present case, on a fair reading of his Honour's judgment, the reduction from 22 hours' care that his Honour found Mr Phillips had been providing to the 18 hours' future care that his Honour found would have been provided appears to reflect his Honour's observation that Mr Phillips' future care of his wife was likely to have lessened, even had he not been ill, as Mrs Phillips' dementia progressed. In any event, the finding at [52] is clearly a finding of fact that is not open to appellate review in this Court.

68 Similarly, his Honour's conclusion that Professor Caplan had expressed an opinion as to Mrs Phillips' life expectancy to the effect attributed to him is clearly not a reference to an express statement as such but is a conclusion based on his Honour's review not only of the report but also of the answers given by Professor Caplan in examination and cross-examination. If his Honour misunderstood that evidence, and I am not to be taken as expressing any view on that, it would remain a factual finding that falls outside this Court's appellate jurisdiction.

69 The cross-appeal must fail for those reasons.

Conclusion

70 Both the appeal and the cross-appeal should be dismissed. Amaca should pay Mr Phillips' costs of the appeal. There should be no costs order in relation to the cross-appeal, the hearing of which did not add significantly to the argument on the appeal.

71 TOBIAS AJA: I agree with the orders proposed by Ward JA for the reasons she has expressed.

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Decision last updated: 31 July 2014