Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67

Material Facts

The respondent to this appeal, injured his left knee when he was travelling as a passenger on a ferry which collided with a wharf.  The appellant admitted liability for the respondent’s injuries and the primary court allowed damages, totaling $426,600.15 including $22,657 for commercial domestic assistance which was one of the grounds upon which the appellant appealed.

Damages Findings

Commercial Domestic Assistance

Medical evidence of the respondent’s condition stated that some domestic tasks would aggravate his conditions, including domestic tasks which he had previously performed for his parents. The evidence was that these tasks would only require in the order of two hours per week to perform.   Much of these tasks were now performed by the respondent’s brothers. 

The respondent was unable to claim gratuitous care as this was barred by the threshold requirements of s 141B of the Motor Accidents Compensation Act 1999 (NSW). There was unchallenged evidence from Mr Wehbe that if funds were available for commercial services, the brothers would cease performing gratuitous services given their own personal responsibilities including work commitments.  Therefore, the award was allowed for commercial domestic assistance, instead of for gratuitous care.

One of the grounds of appeal was that the primary judge had erred in allowing this award to be made, and that the care should only have been allowed as gratuitous care and was therefore barred by the statutory threshold.

The Court of Appeal considered that by allowing this award, there was an “unstated assumption” from the primary judge, “that the gratuitous assistance provided to Mr Wehbe by his brothers would not continue to be provided, as it had been in the past.”  The Court of Appeal upheld the decision of the primary judge.