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Domestic assistance compensation

1987 Act s 60AA >>

Hesami v Hong Australia Corporation PL [2011] NSWWCCPD 14. Roche DP.

45. Parliament introduced s 60AA as part of a range of sweeping changes that commenced on 1 January 2002. The section appears in Div 3 of Pt 3 of the 1987 Act (which deals with compensation for medical, hospital and rehabilitation expenses) under the heading “Compensation for domestic assistance”. It provides compensation to a person who has provided the worker with gratuitous domestic assistance and, as a result of providing that assistance, has lost income or foregone employment.

Prior to the introduction of s 60AA, the legislation provided no compensation for gratuitous domestic assistance and the cost of “care (other than nursing care) of a worker in the worker’s home” could only be recovered if provided by a commercial agency as “directed by a medical practitioner having regard to the nature of the worker’s incapacity” (s 59(f) of the 1987 Act).

Section 60AA represents (on one view) a significant extension of the benefits payable and it is appropriate that claimants for benefits should establish their entitlement in accordance with the legislation.

46. The use of the conjunction “and” between each of the sub-sections in s 60AA(1) makes it clear that each of the requirements in the sub-sections must be satisfied before an employer is liable to meet the cost of domestic assistance.  ...

in 47. That intention is that, provided certain conditions are met, employers are liable for the cost of domestic assistance that is reasonably necessary as a result of the injury.

48. There is no logical reason why compensation can only be recovered for assistance provided after the preparation of the care plan. As this case graphically illustrates, the need for and provision of domestic assistance will always occur before the insurer establishes the care plan. The anomaly of the employer’s position is that liability under s 60AA can be avoided altogether, or substantially reduced, by the insurer simply not obtaining a care plan, or, as has happened in this case, by not promptly obtaining a care plan. Thus, in circumstances where the insurer delays (whether reasonably or unreasonably) establishing a care plan, it could obtain an unjustified windfall and the person who provides the assistance suffer an unreasonable penalty. There is no reason why that should be allowed and several why it should not.

49. Whilst I agree there is no requirement to pay for gratuitous domestic assistance until the insurer has established a care plan, that does not mean that there is no liability for domestic assistance provided before the establishment of the care plan. What is required is that the assistance be provided “in accordance with” a care plan.

50. The High Court considered the meaning of “in accordance with” in Walker v Wilson [1991] HCA 8; 99 ALR 1. That case concerned whether a worker had undertaken a journey “in accordance with” the terms and conditions of his employment. Deane, Dawson, Toohey and McHugh JJ held (at 11) that, in the context of the journey provisions in that case, the words “in accordance with” should be construed as meaning “in conformity with” or “consistently with”. This decision is essentially consistent with the Macquarie Dictionary definition of “accordance” as “agreement; conformity”.

51. Applying Wilson, considering the words used, the context in which they are used in the section, the context of the section in the legislation overall, and the purpose of the section, I believe the words “in accordance with” in sub-section (d) of s 60AA mean “in conformity with” or “consistently with”.

It follows that, regardless of when the domestic assistance is provided, if it is in conformity with or consistent with the care plan, then, provided the other conditions in s 60AA are satisfied, the claimant is entitled to succeed.

52. ...

53. My conclusion is consistent with the objectives of the legislation. The 1987 Act (in which s 60AA appears) must be construed with, and as if it formed part of, the 1998 Act. Under “System Objectives”, s 3(c) of the 1998 Act provides that the purpose of the Act is to, among other things, “provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses” (emphasis added). It is consistent with this objective that liability for a claim for domestic assistance, which is a “related expense”, only arises for assistance that is “reasonably necessary” as a result of the injury. Domestic assistance that is “in conformity with” and “consistent with” a care plan meets this test, even if it was provided before the care plan came into existence.

Kajic v Hawker De Havilland Aerospace PL [2009] NSWWCCPD 136. Keating P. 22.10.09.

Referring to the Workcover Guidelines to the Provision of Domestic Assistance, the Commission president said [72]: “Reading the Act and the Guidelines together as a scheme for the provision of compensation for gratuitous assistance, once an entitlement to compensation has been established, the amount of compensation payable is regulated by clause 7.4 which provides for an hourly rate by reference to the Australian Bureau of Statistics publication on average earnings i.e. dividing by 35 the amount estimated as the average weekly total earnings (full time adult ordinary time) of all employees in New South Wales. Clause 7.4 also sets a limitation on the total compensation payable by providing that compensation is not payable for more than 35 hours per week.”

And [78]: “The Authority asserts that s 60AA(3) together with clause 7 of the Guidelines limits compensation for gratuitous domestic assistance services to the actual amount of the carer’s lost income or the value of income from forgone employment. That assertion is unsupported by any reasoned argument or authority, and is inconsistent with the proper construction of the Act and Guidelines.”



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