Supreme Court New South Wales Medium Neutral Citation: Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410 Hearing dates: 20 February 2015 Date of orders: 14 April 2015 Decision date: 14 April 2015 Before: Hall J Decision: (i) Loss of future earnings assessed to age 66.5 years (ie, 3 years 6 months). (ii) Receipt of "carer's payment" under the Social Security Act by plaintiff's wife to be set-off against claim for personal care following second but not first post-operative period. (iii) Carer's payment not to be set-off against claim for past or future domestic assistance. (iv) Discount for future (external) services of 15% as stated in the Primary Judgment was assessed and made referable to all contingencies stated in that judgment and no further discounting or reduction to be made in respect of the damages assessed for such services. Catchwords: NEGLIGENCE – employee/employer – mining industry – plaintiff injured in workplace accident – suffered spinal injury – liability admitted during hearing DAMAGES – quantum – calculation of future loss of earnings – plaintiff underwent multiple spinal surgeries – specialist medical evidence strongly supported the claim for past and future impairment of earning capacity on a total incapacity basis – likely that the plaintiff would have continued in employment in the mining industry beyond 65 years. DAMAGES – quantum – economic loss assessed on a total incapacity basis -whether award of damages for past care should be reduced because of carer payments received by plaintiff's wife under the Social Security Act 1991 (Cth) –award of damages for past care reduced according to amount of weekly carer payments received – the award of damages for future domestic care is founded on a different basis under the Social Security Act than is the basis for a "carer payment" which is the provision of personal services by the care provider to a care recipient. Legislation Cited: Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 (NSW) Social Security Act 1991 (Cth) Workers Compensation Act 1987 Cases Cited: Fox v Wood (1981) 148 CLR 438; Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Truong v Gordon [2014] NSWCA 97 Category: Consequential orders (other than Costs) Parties: Ian Barry Campton (Plaintiff) Centennial Newstan Pty Limited (Defendant) Representation: Counsel: B Dooley SC; O O'Rourke (Plaintiff) M Joseph SC; D Stanton (Defendant) Solicitors: Whitelaw McDonald (Plaintiff) Sparke Helmore (Defendant) File Number(s): 2012/70316 Judgment 1. Judgment was delivered in these proceedings on 17 December 2014: Campton v Centennial Newstan [2014] NSWSC 1799 (the "Principal Judgment"). In paragraph [843] it was stated that damages are to be awarded to the plaintiff (subject to any deductions or adjustments required to be made) in accordance with the schedule of Heads of Damage totalling $1,190,976.56. That schedule is set out at [843]. 2. On the re-listing of the proceedings on Friday, 20 February 2015 I heard submissions on an issue (referred to below) as to the calculation of future economic loss. On that occasion it was indicated that the defendant wished to raise a number of other matters. Accordingly a program was set for the lodging of written submissions dealing with those matters. The parties have since lodged the following written submissions: 1. Further Submissions on Quantum by the defendant dated 27 February 2015. 2. Plaintiff's Outline of Submissions on Quantum dated 5 March 2015. 3. Submissions in Reply on Quantum by the defendant dated 13 March 2015. Calculation of Future Loss of Earnings 1. In para [693] of the Principal Judgment I determined that the plaintiff's future loss of earnings should be calculated upon the basis that he would have worked to the age of 66.5 years. In para [649] of that judgment the calculation was set out. The calculation, however, was based upon a period of four years and not three and a half years as intended. The parties agree that the latter period (3.5 years) is the period upon which calculation of future loss of earnings is to be made. Accordingly, the correct calculation of future loss of earnings to age 66.5 years, applying the multiplier 5% (167.6) results in a total future loss of earnings of $264,674 in lieu of the previously stated figure for future economic loss in para [843] of the Principal Judgment of $297,877.82. Past and Future Loss of Superannuation 1. Damages for past and future loss of superannuation were calculated, as set out in the table at [843] of the Principal Judgment as follows: 1. an amount of $44,286.61 in respect of past loss of superannuation; and 2. an amount of $32,766.56 in respect of future loss of superannuation. 1. It was accepted in the Plaintiff's Outline of Submissions on Quantum at [3] that loss of superannuation contributions made, or to be made, by an employer constitute "economic loss" for the purposes of s 151I(1)(a) and (b) of the Workers Compensation Act 1987. 2. As noted in the submissions on behalf of the plaintiff, damages for past and future loss of earnings were calculated in the Principal Judgment at the maximum rate allowable by statute for loss of earnings. 3. Accordingly, as indicated in [5] of the written submissions for the plaintiff, it is not open to the Court to additionally award damages for the loss of superannuation contributions as they form part of his "economic loss" resulting from his loss of earnings for the purposes of s 151I(1)(a) of the Workers Compensation Act. As noted above, past and future loss of earnings were calculated in the Principal Judgment at the maximum rates allowable by statute. Consequently, as to the above amounts for past loss of superannuation and future loss of superannuation to which reference is made in [4] above, the plaintiff accepts in his written submissions that those amounts are not to be included in the total damages to be awarded. Care – Personal Care and Domestic Assistance Issues 1. In the defendant's submissions it was contended that payments received by Mrs Campton under the Social Security Act 1991 (Cth) referable to care she has provided to her husband, the plaintiff, should be offset in relation to two heads of claim, namely: 1. Past personal care; 2. Past and future domestic assistance (internal and external assistance). 1. The discussion below concerning the defendant's submission as to offsetting such payments against these two heads of claim deals with the following matters: 1. The nature of the payments Mrs Campton has received under the Social Security Act; 2. The periods during which such payments have been made; 3. The meaning of '"care" in relation to the provisions of the Social Security Act under which payments have been made to and received by Mrs Campton. Submissions The Nature and Offsetting of the Payment Received by Mrs Campton – Defendant's Submissions 1. Before turning to the defendant's submissions, I note that in the written submissions for the plaintiff it was observed that the payments made to Mrs Campton under the Social Security Act are inaccurately described in the defendant's submissions as payments by way of a "carer's pension": at [21]. Mrs Campton, it was emphasised in the submissions for the plaintiff, has in fact been in receipt of a "carer payment" as provided for in Part 2.5 of the Social Security Act (s 197 ff), a different species of payment under that Act to a "pension". This submission was not disputed in the defendant's submissions in reply. 2. The defendant's submission, in particular, as it related to offsetting the carer payments against damages claimed for past and future domestic assistance, was that the expression "care and attention" in ss 197A and 954 of the Social Security Act, though not defined in that Act, should be given their ordinary meaning. On that basis it was argued that "care" and "attention" is not limited to "care (including supervision and attention) of a medical condition". However, it is to be observed that the expression "care and attention" appears in s 954(1)(d) in Part 2.19 of the Social Security Act. It is not a statutory expression in Part 2.5 (s 197A) concerning the carer's payment(s) received by Mrs Campton. The defendant's submission in reliance on that expression is, accordingly, with respect, misplaced. 3. Section 197A, as part of Part 2.5, addresses payments in the nature of a "carer payment". On the evidence, Mrs Campton received a "carer payment" over a period under s 198 of Part 2.5 of the Act. A person entitled to such a payment must personally provide constant care for a "disabled adult". There is otherwise no specific definition of "carer payment" in the Social Security Act. I note that s 197 of the Act contains definitions of statutory terms or expressions that are employed in Division 1A of Part 2.5. In particular, the section includes a definition of "care" in the following terms: "Care includes attention and supervision" 1. In considering the defendant's submission on "care" and "domestic assistance" (see below) this definition must be borne in mind. 2. A "carer payment" under the Social Security Act in the circumstances of this case may be taken as referring to "attention" and "supervision" provided by the carer (in this case, Mrs Campton), to the "care receiver" (her husband, Mr Campton). This is of significance in considering the defendant's submission that the carer's payments made to Mrs Campton should be offset, inter alia, against services by way of or in the nature of domestic care as well as Mrs Campton's personal care rendered to her husband. 3. In summary, "care" as defined in Part 2.5 involves the provision of "attention" or "supervision" by one person (the carer) to another, namely to the "care receiver" who suffers from a disability. 4. In para [26] of the Defendant's Further Submissions on Quantum it was stated: "… It is submitted, that consistent with those principles, all past carer's payments should be brought to account on the damages to be awarded to the Plaintiff, and all future possible (Malec v Hutton) such payments also brought to account." 1. Reference was made in the defendant's submissions to the Court of Appeal's judgment in Truong v Gordon [2014] NSWCA 97 at [130] (Simpson J). In that case, I note, the carer's pension was a "domestic assistance/attendant care" pension pursuant to s 141B of the Motor Accidents Compensation Act 1999 (NSW). 2. The defendant's submission was that in the present case the carer payment received by Mrs Campton should be offset against "all past services". The defendant argued that it should be offset against the amount of $5,121.00 (being part of the total of $8,528 awarded for the personal care provided by Mrs Campton to her husband following the first and second operations) and additionally should be offset: "… to reduce the awards of past internal domestic care [J803] and/or past external assistance [J813] …": Defendant's Further Submissions on Quantum at [28]. Past Care and Offsetting the "Carer Payment" – Plaintiff's Submissions 1. There is a limited area of disagreement in respect of the damages to be awarded for past care. In the Principal Judgment at [772], a determination was made that the plaintiff was to be awarded damages for past care rendered by Mrs Campton in the two periods during which the plaintiff received personal care from Mrs Campton, namely: 1. From 13 September 2010 (the first operation) for a period of 6 weeks at 3 hours per day, this being valued at $3,186.66 (Principal Judgment at [767-8]). 2. From 8 April 2013 (the second operation) for a period totalling 6 weeks and valued at $5,390. 1. The evidence established that Mrs Campton became entitled to a "Carer's Payment" under Part 2.5 of the above Act from 13 April 2013. 2. The contention as finally expressed in submissions for the plaintiff was that damages for Mrs Campton's care following her husband's first operation in 2010 should be awarded. The plaintiff's submission was that such personal care was gratuitous: Plaintiff's Outline of Submissions on Quantum at [17]. The carer payments commenced, as noted above, on 13 April 2013. On that basis it was contended that the plaintiff is entitled to an award of damages in respect of Mrs Campton's "care" for the period following the first operation in the amount of $3,138.66 with no offsetting of any amounts against that amount. 3. The plaintiff's submission was that the principles discussed in Gordon v Truong, supra, apply only to the period from 8 April 2013 when Mrs Campton commenced to receive a carer's payment. On that basis it was submitted that the "carer's payments" made under the Social Security Act to Mrs Campton should only be deducted for the second period, that is, the period from 13 April 2013 to 20 May 2013 (6 weeks after the second operation) at the rate of $155.11 per week (totalling $818.98). On this basis the plaintiff's contention was that the award of damages relating to personal care for the second period of care (rendered in 2013) should be reduced by the above amount of the carer payment of $818.98, producing an amount to be awarded of $4,572.02 making a total award of damages for the two periods of past personal care of $7,710.68. Defendant's Reply Submissions 1. The defendant relied upon its Submissions in Reply on Quantum dated 13 March 2015 for the contention that the carer's payment should be applied to the first period of care (that is, the care provided immediately following the first operation) as well as the second in order to avoid "double compensation": at [5]. 2. The submission in this respect was that "as long as the payment is made as a result of the effects of the compensable injury, there is to be an accounting of it so as to avoid overpayment by the damages award: at [6]. Decision on Damages for Care Plaintiff's Entitlement to Damages: First Period of Care 1. The plaintiff is entitled to damages for care gratuitously rendered by his wife for the six‑week period following the first operation in 2010. She was not during that period in receipt of a carer's payment or any form of payment under the Social Security Act referable to "care" of her husband. There is no basis for considering an "offset". Damages for care for that period accordingly are to be awarded in the amount of $3,186.66. Plaintiff's Entitlement to Damages: Second Period of Care with Offset 1. As to the second period (six weeks from 8 April 2013), as Mrs Campton was (from 13 April 2013), entitled to a "carer's payment" under the latter Act, during that period allowance is to be given for the weekly carer payment received, namely, $115.11 per week, reducing the damages for care following the plaintiff's second operation from $5,390 assessed in para [772] of the Principal Judgment to $4,572.02 as specified above at [22]. Conclusion on Care Claim 1. Accordingly, damages for total past care following the operations in 2010 and 2013 is assessed at $3,138.66 + $4,572.02 totalling $7,710.68. Domestic Assistance Defendant's Submissions on Damages for Future Domestic Assistance 1. The defendant submitted that in respect of "future internal domestic assistance" the same approach (offsetting the carer payments against damages) should be taken as with damages for "care". The damages for such domestic assistance, it was noted, were calculated on commercial rates, not the rates prescribed under s 151K of the Workers Compensation Act. 2. In the defendant's Further Submissions on Quantum it was stated: "31. Thus there is a strong analogy between Truong dicta in respect to future internal domestic assistance, and less so in respect of future domestic external services. 32. In any event, it is submitted that the weekly sum of $155.11 per week should be used to reduce the future payment of internal domestic assistance to nil [J803] leaving an unused balance $86 pw to be used to reduce the present award of future domestic external services to $46 pw.[J814] 33. Given that the Plaintiff's wife continues to receive the Carer's Pension, and there is no suggestion it will cease. (see Downes v Amaca P/L [2010] NSWCA 76) future receipts of carer's pension should be brought to account." Plaintiff's Submissions on Damages for Future Domestic Assistance 1. It was submitted for the plaintiff that Mrs Campton has continued to receive, and will continue to receive, a "carer payment" for as long as Mrs Campton and the plaintiff satisfy the requirements of: 1. Section 198 (being the care of a relatively disabled adult assessed on the basis of the Department's criteria); 2. Section 198A of the Social Security Act (income test); and 3. Section 198D (assets test) of the Social Security Act. 1. Mrs Campton's entitlement to receive the "carer payment" is dependent upon the "care" she provides to the plaintiff. That care, it was submitted, has nothing to do with sweeping floors, cleaning toilets, vacuuming, mowing lawns or weeding gardens and everything to do with the personal care of the plaintiff: Plaintiff's Written Submissions at [20]. In summary, it was said to be a payment for her care, namely, the "attention" and "supervision" she provided to her husband to assist him with and by reason of his accident-caused disabilities. 2. It was contended that though the Court was not satisfied of the plaintiff's ongoing need for personal care that does not alter the basis upon which the relevant Department assesses Mrs Campton's entitlement to carer payments: Written Submissions at [20]. 3. It was further submitted for the plaintiff in relation to the award of damages by the Court for past and future domestic services (either internal or external): 1. That the award is an entirely separate award of damages for the loss suffered by the plaintiff: Plaintiff's Written Submissions at [21]. 2. That to be awarded damages for his loss in relation to the provision of domestic assistance whilst Mrs Campton continues to receive the "carer's payment", is neither "unjust enrichment" nor "double compensation". 1. Additionally, or in the alternative, it was submitted that the continued receipt of the "carer payment" by Mrs Campton is subject to both the income and assets test. According to the Department of Human Services website, it is said that the current assets limit is $661,250.00: Plaintiff's Written Submissions at [23]. 2. It was contended that courts appreciate that once a verdict or judgment is entered in the present proceedings, the plaintiff will receive a lump sum likely to be well in excess of the assets limit. Accordingly, it was reasonable for the Court to infer that as a consequence of the receipt of money under the judgment the "assets test" applicable to a "carer payment" will no longer be met: Plaintiff's Written Submissions at [24]. Decision on Offsetting Damages for Future Domestic Care 1. The defendant's Further Submissions on Quantum (at [22]-[26]) refer to a number of authorities that consider the principles of unjust enrichment and double compensation, including the judgment of Mason P in Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249. The submissions were made in light of the fact that Mrs Campton has received the abovementioned carer payments. 2. Except for an adjustment to be made to the damages awarded in respect of personal care provided by her to the plaintiff in the six-week period commencing 8 April 2013 discussed above, in my opinion, no issue of unjust enrichment or double compensation otherwise can or does arise in respect of (a) the care provided in the six-week period from 13 September 2010 as discussed at [25] above; nor in respect of (b) damages for domestic assistance. 3. The submission made in the defendant's abovementioned Further Submissions at [26], to the effect that, "… all past carer's payments should be brought to account on the damages to be awarded to the plaintiff, and all future possible (Malec v Hutton) such payments also brought to account" is stated far too broadly. The carer's payments are not to be set off in respect of "all past services" as broadly submitted at [27] of the defendant's written submissions. Neither principle nor case law authority supports such a general proposition. It is necessary, firstly, to consider the nature of a particular head of claim made in the proceedings on the one hand, and, secondly, the purpose and/or basis for which or upon which a statutory benefit is payable. 4. The carer payments in question are not, as the defendant submitted at [28(e)] to be set off against "past internal domestic care … and/or past external assistance" nor as submitted at [32]. As discussed at [14]-[15] above, a carer payment is for Mrs Campton's "care" of the plaintiff rendered to him including her "attention" and "supervision" of him as aspects of such "care". The provisions of the Social Security Act discussed at [12]-[15] above make it clear that such payments are made for care provided by a care provider to a disabled care receiver and they are not expressed to be payments for house maintenance or domestic house cleaning, or external gardening etc. 5. Finally on this aspect, there is no basis in my opinion, for bringing into account the possible future receipt of what the defendant referred to as a "carer's pension" (cf "carer payment"). As noted above, no payments have been made to Mrs Campton by way of, or in the nature of, a "carer's pension". In the Principal Judgment no award of damages was made for future care of the plaintiff against which any carer's payments can be offset. Future Domestic (External) Services: Basis for Damages Awarded 1. In the defendant's Further Submissions on Quantum at [34], it was stated: "At J813 (ii) on p197 the hours required is assessed at 3 hours. However at (iv) it is said that this figure has to be adjusted down. However the calculation at J814 the hourly figure used to assessed [sic] is three hours per week, thus not adjusted downwards." 1. On this aspect it is necessary to understand the calculations and the premises upon which those calculations were based in light of matters discussed in relation to "External Domestic Assistance" at [804]-[812](1)-(5) of the Principal Judgment. 2. The total award of damages set out at [814] in respect of "Future Domestic (External) Services", an amount of $81,205, was determined upon the basis that services of that kind will be required for three hours per week at the rate of $44.15 per hour with a 5% multiplier (721.3) with a life expectancy of 23.79 years. However, as discussed at [812] at point (5) of the Principal Judgment an award for such services had to be reasonable. For that reason due allowance in the nature of a discount was to be made in awarding damages for a range of "contingencies" as referred to in that subparagraph. In the calculation set out at [814], "contingencies" were stated to be the basis for reducing the amount to be awarded by the application of a discount of 15% to the calculation made. The 15% discount was applied to take account of all specified contingencies and was applied to reduce downwards the calculation based, in particular, on three hours per week and the other factors identified in para [812] of the Principal Judgment. 3. The "adjustment downwards" referred to in subparagraph 2(iv) to which the defendant refers in its submission, was both intended to be made and was made by the application of the discount referred to in the paragraph following that subparagraph, 15%, having been adjudged to be an appropriate discount designed and intended to reflect all specified contingencies including the possibility that the contingencies "may have reduced the need for such services": para [812](5). 4. Accordingly, no further reduction with respect to the three hours per week used in the discounted calculation need, or should, be made. Concluding Statement 1. Attached to these Reasons is a revised Schedule of Damages which incorporates adjustments from the schedule contained in the Principal Judgment. The Schedule includes a Fox v Wood component of $32,843.00 calculated as at 30 March 2015. 2. These lastmentioned amounts are based upon particulars included in an email from Whitelaw McDonald, solicitors, dated 31 March 2015 with attached Schedule of Payments prepared by the defendant's insurer. 3. There remains outstanding: 1. Appropriate deductions in respect of payments previously made to the plaintiff. In that respect I note that the email from Whitelaw McDonald dated 31 March 2015 indicated that an updated schedule would be provided. 2. Up-to-date Fox v Wood component to be provided for the purpose of calculating the judgment amount. 3. The calculation of interest claimed under s 100 Civil Procedure Act 2005 in the period between the date upon which the cause of action arose and the date of judgment at the rate specified in Practice Note SC Gen 16. 1. I note the Order Proposed as to Costs By Consent in the following terms: "The Defendant pay the Plaintiff's costs of and incidental to the proceedings, as agreed or assessed, such costs being: i) On an indemnity basis from 5 April 2012 insofar as the costs relate to the issue of liability; and ii) On a full indemnity basis from 5 September 2013 Such orders being in addition to costs orders already made." 1. I will relist the proceedings on Thursday, 16 April 2015 at 9:30am to deal with outstanding calculation issues and entry of judgment and costs. ************** SCHEDULE OF DAMAGES Head of damage Amount Non-economic loss (s 151G) $192,830 (55% of the maximum) Past economic loss $402,605.50 Past loss of superannuation NIL Future economic loss $264,674.00 Future loss of superannuation NIL Past personal care $7,710.68 Past domestic care (internal) $14,941.13 Past domestic care (external) $17,063.93 Future domestic care (internal) $42,457.52 Future domestic care (external) $81,205.76 Past out of pocket expenses $106,079.68 Future out of pocket expenses: $56,413.07 Equipment $9,703.26 Physical treatment/review $40,980.13 GP $2,265.93 Medication $3,463.75 Fox v Wood component $32,843.00 TOTAL: $954,985.46 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2015