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Health & Aged Care News Alert: Carer's payments relevant to assessing damages for care and assistance?

News Alert 14 December 2015

The Supreme Court has held in Campton v Centennial Newstan Pty Ltd (No 3) [2015] NSWSC 410 that carer payments received under the Social Security Act 1991 (Cth) should be deducted from damages for personal care and assistance awarded under section 151K of the Workers Compensation Act 1987 (now repealed).

Noting the definition of ‘carer payment’ under Part 2.5 of the Social Security Act involved the provision of ‘attention’ or ‘supervision’ by one person (the carer) to a disabled care receiver, Hall J credited the defendant with the weekly carer payments received by the plaintiff’s wife when calculating past personal care only (see at [26]).

Importantly, Hall J at [38] stated that ‘carer’s payments are not to be set off in respect of all past services’.  Given the definition of carer’s payment under the Social Security Act, Hall J said it was ‘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.’

Although this case concerned damages under the now repealed section 151K of the Workers Compensation Act 1987, ‘attendant care services’ under section 15 of the Civil Liability Act 2002 (NSW) is defined at section 15(c) as including ‘services that aim to alleviate the consequences of an injury’.  This may be broad enough to include the definition of carer’s payment under the Social Security Act warranting set-off in medical negligence cases.


Don Munro, Partner
Sydney

News Alert 14 December 2015
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