Per our discussion yesterday, the defendants rely on the case of: Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 to say that emotional support is not compensable. The decision is from Campbell J.
The case involved an application for damages for negligence. The applicant suffered serious injuries in a workplace accident, including a severe vascular injury, fractures, and post-traumatic stress disorder. The court assessed damages for various aspects, including non-economic loss, past and future economic loss, and care needs.
Regarding emotional support, the court held that emotional support is not compensable as a "service" under the Griffiths v Kerkemeyer principle. The court reasoned that emotional support is not a service that one can render to oneself. While emotional support may provide comfort, the court did not consider it a compensable service . The court noted that people are social beings who derive benefits from the company of family, friends, and colleagues, but these benefits are not classified as services provided by others. Significantly though, the court highlighted that there was no diagnosis of any psychiatric or psychological injury in this case, apart from post-surgical delirium.
The relevant paragraphs are from [130]:
Damages for past gratuitous attendant care services – s 15 Civil Liability Act
I accept the evidence of Mr Wormleaton and Mrs Wormleaton that because of his injury Mrs Wormleaton has been providing to her husband attendant care services of a gratuitous nature within the meaning of s 15 of the Civil Liability Act. Given the severity of his injuries, the recurrent infections and his need for assistance with personal care over the years, there is no real issue that the requirements of s 15(2) and (3) have been satisfied. The occupational therapists, Ms Lyon, for the plaintiff, and Ms Zeman, for the defendants, conferred and produced a joint report agreeing upon the assessment of the provision of these services by Mrs Wormleaton to her husband. The defendant accepts the joint report with two exceptions. First, it is argued that no services are recoverable during Mr Wormleaton’s hospitalisation. The plaintiff now concedes this: Nicholson v Nicholson (1994) 35 NSWLR 308 at 322. This excludes what the joint report (Exhibit 1D3) refers to as stage 1. The defendant also challenges the allowance made by the joint experts during stage 3 for emotional support (7 hours per week). The defendants relied upon CSR Limited v Eddy [2005] HCA 64; 226 CLR 1, a case concerning the common law rather than the statutory modifications of the Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 principle.
In Eddy the majority (Gleeson CJ, Gummow and Heydon JJ), admittedly in overruling the decision in Sullivan v Gordon (1999) 47 NSWLR 319, accepted an argument “Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others” (Emphasis added). I accept that emotional support is not a “service” that one is capable of rendering to oneself. I appreciate that the definition of attendant care services in s 15 extends to “services that aim to alleviate the consequences of an injury” but it is difficult categorise the provision of emotional support, as the provision of such a service.
The reasoning of the occupational therapists expressed in their report related to Mr Wormleaton “psychological decompensation”; the emotional support of one hour per day was directed to the maintenance of his psychological state.
People are social being beings and most of us appreciate the company of family, friends and colleagues. But the benefits we derive from that society is not a service provided by those others to us. Nor can we, as I have said, provide that support to ourselves.
Moreover, there is no diagnosis of any psychiatric or psychological injury in the present case, other than the post-surgical delirium. To the extent to which Mr Wormleaton became distressed when his wife left the house, or paranoid in his behaviours (see Exhibit 1D3, stage 3) these matters were more likely a manifestation of the underlying psychological condition resulting from the home invasion. I reject the claim for emotional support under s 15 Civil Liability Act.
This case was more recently considered by Forbes J in Reid v Seltsam Pty Ltd [2021] VSC 653 (7 October 2021). This case relates to dust disease.
From [37] Forbes J said:
37 While I agree that the psychological benefit of supportive friends and family, and social interaction generally that a plaintiff might engage in and receive, is not well described as a service provided by those people, I do not think that the provision of specific emotional support can never be a service that one is capable of rendering to oneself. The provision of professional psychological support is frequently directed at the development of strategies for self-managing an emotional state. The increasing focus on wellbeing and resilience of individuals in my view does support the idea that individuals may be able to, and do provide for, their own emotional wellbeing in specific ways. Of course such matters generally are, within a relationship of intimacy and closeness such as that which Maria and Barry Reid share, also a benefit that each gain from the other and in this sense I accept that emotional support is not characterised as a service. The distinction is perhaps best made by the evidence in this case.
I think Wormleaton can be distinguished because the case is old and we have moved a long way in 10 years regarding psychological self-care. Furthermore, in that case, there was no psychiatric diagnosis related to the injury. I think there is a lot to be said about how our facts set it apart from Wormleaton.
I think on the facts the Standleys' case be distinguished because in the context of self-harm and suicidality (arising from the injury) s 15 of the CLA specifically aims to compensate for “services that aim to alleviate the consequences of an injury”. Furthermore, and I need to think about this more, but there is a protective feature of the support being provided when the children are self-harming, I think this renders it in a different category of care.
I think read alongside the recent High Court decision of Stewart v Metro. I think there is a good arguable case for emotional support to be compensated as a service.
Kind regards
JACINTA SMITH
Barrister