Gratuitous Domestic Assistance – Reasonably Expected Emotional Support

Carver v Lake Machinery Repairs Pty Ltd [2023] NSWPIC 258

The Applicant, Mr. Carver, was employed by the Respondent, Lake Machinery Repairs Pty Ltd, as a mechanic. He sustained serious injuries on 6 January 2000.

The Respondent accepted liability for the injury and a number of consequential conditions.

The Applicant claimed compensation for the gratuitous domestic assistance provided by his wife. Gratuitous domestic assistance can be payable under Section 60AA of the Workers Compensation Act 1987, but only in certain circumstances.

In 2006, the parties entered into Consent Orders in the Workers Compensation Commission (WCC). The Respondent agreed to pay the Applicant’s spouse for 35 hours per week of domestic assistance from 8 May 2004 and continuing.

The Applicant underwent major injury-related surgery in March 2022. He was admitted to hospital on 4 March 2022. The Applicant claimed compensation for gratuitous domestic assistance provided during that period.

EML issued a Section 78 notice, disputing liability for gratuitous care during the time the Claimant was in hospital. EML asserted that the Applicant was receiving necessary care by hospital, medical, and nursing staff at that time. EML agreed to pay for the assistance provided by his spouse on the day of admission and discharge but said any additional care provided while he was in hospital was minor, and that which would be expected by any spouse in the same situation.

Ms. Carver provided evidence that she assisted the Applicant every day in hospital to provide a great deal of assistance and support as she normally would. She reported that due to the covid pandemic, there was a shortage of nursing staff and therefore the need for her to be there was greater that normal. She helped the Applicant eat his meals, move him in bed, and changed his sheets every day.

Issue for Determination

The parties were unable to reach an agreement and the Member was required to determine whether the provision of gratuitous domestic assistance for the period from 4 March 2022 to 14 March 2022  when the  Applicant was admitted to hospital was reasonably necessary gratuitous domestic assistance.

Findings

The Member found that the Applicant’s wife did not provide gratuitous domestic assistance during the period of his hospitalisation. She entered an award in favour of the Respondent.

Reasons for Decision

The Member outlined examples of tasks involved in domestic assistance as per the SIRA website and accepted that these provided a common-sense indication of service that may be provided in a domestic setting.

Ms. Carver gave evidence that she washed the Applicant clothing while he was in hospital, but the Member considered that this was a limited service, with the hospital being responsible for most of his laundry requirements.

The Member accepted that there may be breaks in the otherwise continuous provision of domestic assistance, and these services are resumed to the Applicant when they left hospital.

The Member considered a number of decisions which had dealt with the provision of care under other pieces of legislation, and accepted that during the period of hospitalisation, the Applicant was being provided with care by the hospital staff and it was not reasonably necessary for Ms. Carver to provide gratuitous domestic assistance during that period.

Implications

The decision demonstrates that there is a clear distinction between gratuitous care in relation to domestic support and emotional support. The gratuitous care did not extend to the emotional support that would be reasonably expected by a spouse or family member to an individual who has been hospitalised.

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