Daly v Thiering [2013] HCA 45

HIGH COURT OF AUSTRALIA

CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

JOHN DALY APPELLANT

AND

ALEXANDER THIERING & ORS RESPONDENTS

Daly v Thiering [2013] HCA 45 6 November 2013 S115/2013

ORDER

1. Appeal allowed.

2. Set aside order 2 of the Court of Appeal of the Supreme Court of New South Wales made on 20 February 2013 and, in its place, order that:

the appeal from the Supreme Court of New South Wales to the Court of Appeal be allowed; and

set aside the determination and formulation of Question 5 made by the Supreme Court on 19 December 2011 and, in its place, reformulate and answer that question as follows:

Question 5

Whether on proper construction of section 130A of the Motor Accidents Compensation Act 1999 (NSW), Mr Thiering has any entitlement as against Mr Daly other than damages for non‑economic loss and loss of earning capacity.

Answer

On the proper construction of s 130A of the Motor Accidents Compensation Act 1999 (NSW), Mr Thiering has no entitlement to recover damages in accordance with s 128 of the Motor Accidents Compensation Act with respect to the provision of gratuitous attendant care services from Mr Daly or his compulsory third party insurer.

3. The appellant pay the first and second respondents' costs of this appeal including the application for special leave to appeal.

On appeal from the Supreme Court of New South Wales

Representation

K P Rewell SC with D M Wilson for the appellant (instructed by Moray & Agnew Solicitors)

B W Walker SC with E G Romaniuk and E E Grotte for the first and second respondents (instructed by Slater & Gordon Lawyers)

S B Lloyd SC with B J Tronson for the third respondent (instructed by WorkCover Authority of New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.