Australia: Limitations on gratuitous attendant care – further developments

Legal Directions
Last Updated: 9 February 2011
Article by Shaun Jackson

Hill v Forrester [2010] NSWCA 170


The NSW Court of Appeal recently considered the amendments to s15(3) Civil Liability Act 2002 ('the Act') relating to damages for gratuitous attendant care. The decision considered what is required to satisfy the threshold that gratuitous attendant care services be provided for at least six hours per week and for a period of at least six consecutive months.


The plaintiff was successful at trial and was awarded damages for gratuitous attendant care as follows:

  • 15 September 2005 to 12 October 2005 – 27 days for 35 hours per week
  • 27 October 2005 to 11 November 2005 – 15 days for 35 hours per week
  • 29 December 2005 to 31 December 2006 – 52 weeks for between 10 and 24 hours per week
  • 1 January 2007 to present – $4,000.

Leave was granted to challenge the plaintiff's awards for domestic assistance in relation to the periods set out in 1, 2 and 4.

The issues

Section 15(3) of the Act provides:

'Further, no damages may be awarded to a claimant for gratuitous attendant care unless the services are provided (or to be provided):
  • For at least six hours per week
  • For a period of at least six consecutive months'.

The questions for consideration under appeal were:

  • Is the requirement in s15(3)(a) ('the intensity requirement') satisfied by provision of gratuitous attendant care services for a minimum of six hours per week during the six month period referred to in s15(3)(b) only or is the intensity requirement ongoing?
  • Is the requirement in s15(3)(b) ('the duration requirement') satisfied by a single period of at least six consecutive months in which gratuitous services are provided or is this a continuing requirement in the sense that the plaintiff can claim damages only in respect of each uninterrupted period of at least six consecutive months in which the gratuitous services are provided.

In this case, the requirement that care be provided at the minimum rate for a minimum period of six consecutive months was first satisfied in the third period from 29 December 2005 to 31 December 2006.

The periods set out in one and two were for less than six months as they were interrupted and followed by periods of full-time treatment and hospital, whilst the fourth period was for less than six hours per week.

The intensity requirement

The Court unanimously held that the intensity requirement of at least six hours per week set out in s15(3)(a) is a continuing requirement and that the plaintiff should not be awarded damages for the fourth period as it involved less than six hours per week.

In this regard, Sackville AJA found that the intensity requirement was a separate precondition from the duration requirement and there was no textual reason to confine the six hours per week requirement to the six month period specified in s15(3)(b).

His Honour noted that the words in parenthesis 'or to be provided' suggested that the intensity requirement was intended to be ongoing, since it refers to the provision of services in the future.

The duration requirement

The Court split two to one with the majority (Sackville AJA and Tobias JA) finding the plaintiff only needed to satisfy one period of at least six consecutive months and was therefore entitled to the awards in periods one and two.

Sackville AJA found that the words 'for a period of' in combination with the words 'at least six consecutive months' strongly suggested that the duration requirement was limited to a single qualifying period. His Honour considered that had the drafter intended that no damages be awarded for gratuitous services except for periods each of which were six consecutive months, that the sub-section would have made this clear.

His Honour noted that the alternative interpretation meant that an injured plaintiff who received gratuitous services for a period of at least six consecutive months, but never received such services for another complete period of six consecutive months due to short periods of hospitalisation or respite care would receive no compensation after the first complete period.

His Honour therefore found that once the requirement in s15(3)(b) was satisfied, the plaintiff could recover damages for gratuitous services for other periods during which such services were provided so long as intensity requirement was satisfied (i.e. – the care provided was for six hours per week).

By contrast, Handley AJA could not find anything in the statutory language which indicated that the duration requirement operated retrospectively to allow damages for periods when services were provided for less than six consecutive months.

His Honour noted that the use of the singular 'a period' in s15(3)(b) did not disclose an intention to exclude the plural construction implied by s8(b) Interpretation Act 1987 that a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form.

Relationship between intensity and duration requirements

Although this issue did not specifically arise on the facts in this case, the Court considered whether in order to satisfy the duration requirement of six months, the intensity requirement of six hours per week needed to be satisfied at the same time.

Sackville AJA found that as the requirements of s15(3)(a) and s15(3)(b) were independent, s15(3)(b) was satisfied if gratuitous attendant care services were provided to a plaintiff for a period of six consecutive months even if the services were provided for fewer than six hours per week during this period. His Honour rejected the dicta in Pacific Steel Constructions Pty Limited v Barahona [2009] NSWCA 406 which suggested that a plaintiff must meet both the intensity and threshold requirements.

Sackville AJA considered that this would mean that a plaintiff would not be able to recover damages in respect of gratuitous services during the qualifying period of six months if services were not provided for six hours per week. However, the fact that the intensity requirement was not satisfied, would not prevent a plaintiff from relying on services provided during that qualifying period to demonstrate that the duration requirement had been satisfied.

In other words, once the duration requirement under s15(3)(b) was satisfied, irrespective of whether the intensity requirement was met for that period, a plaintiff could recover damages for gratuitous attendant care in respect of other periods that satisfied the intensity requirement.

Handley and Tobias JJ, by contrast considered that damages could not be awarded unless both requirements were satisfied concurrently. Tobias JA noted that it would be odd if the duration requirement could be satisfied by the provision of services during the six months period for say only 10 minutes per week, and did not see anything inconsistent with the proposition that although the two requirements were independent in the sense that one was continuous and the other was not, the duration requirement could only be satisfied if the intensity requirement was satisfied at the same time.


This judgment determined that the intensity requirement of six hours per week is an ongoing requirement and that the duration requirement of six months is a threshold requirement such that once satisfied, a plaintiff can recover damages for gratuitous care for broken periods of less than six months.

The judgment does however create uncertainty as to whether the six month duration requirement can only be satisfied by a period during which the six hour per week intensity requirement is also being satisfied. Tobias, J in his judgment suggests that resolution of this issue 'cries out for intervention of the legislature as a matter of some urgency' and that a resolution should not be required to await a further decision of the Court given it is 'an issue which arises for consideration by personal injury lawyers on a daily basis'.

Whilst it was hoped the amendments to s15(3) of the Act following the decision in Harris v Melham [2008] NSWCA 67 would have clarified the position in claims for gratuitous attendant care, there clearly remains some doubt as to how to interpret the section.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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