Australia: Claims For Domestic Assistance - 15(3) Civil Liability Act - Loss Of Earning

Last Updated: 2 June 2008
Article by Peter Hunt

Harrison v Melhem [2008] NSWCA 67

Spigelman CJ, Mason P, Beazley, Giles and Basten JJA

In Brief

  • A Claimant is entitled to compensation for his or her need for gratuitous domestic assistance if services are either provided in excess of 6 hours per week or for more than 6 months.
  • It is not necessary for the Claimant to establish a need for assistance both exceeding 6 hours per week and in excess of 6 months.
  • In satisfying the 6 month threshold, the Claimant must show a continuous period of 6 months rather than an aggregation of lesser periods which, when combined, exceed 6 months.
  • Given the different words in s 15B of the Civil Liability Act 2002, a Claimant must still establish a need for replacement services both exceeding 6 hours per week and extending beyond 6 months in order to claim Sullivan v Gordon damages.


The NSW Court of Appeal handed down its decision in Harrison v Melhem on 29 May 2008.

The Court of Appeal was called upon to interpret the statutory threshold which must be satisfied for an award to be made in respect of gratuitous services.

Section 15(3) of the Civil Liability Act 2002 reads as follows

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and

(b) for less than 6 months.

Section 128(3) of the Motor Accidents Compensation Act 1999 is relevantly identical, as follows:

(3) No compensation is to be awarded if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and

(b) for less than 6 months

In Harrison, the Plaintiff claimed a need for 20 hours of attendant care services per week since the accident and continuing. At first instance, Harrison AsJ found a need for 11.5 hours per week between the accident on 25 May 1999 and a back operation on 13 September 2001. Thereafter, Harrison AsJ found a need for 4 hours per week until the date of trial and continuing.

Associate Justice Harrison's attention was drawn to the Court of Appeal decision in Roads and Traffic Authority v McGregor [2005] NSWCA 388 in which it was held that a Plaintiff ceased to be entitled to compensation for domestic assistance where the need for care fell below 6 hours per week. As a consequence, her Honour allowed no sum for gratuitous care beyond 13 September 2001.

Court of Appeal

In the Court of Appeal, the leading Judgment was delivered by Mason P, with whom Spigelman CJ, Beazley and Giles JJA agreed, although the Chief Justice added some additional observations. A dissenting Judgment was delivered by Beazley JA.

President Mason concluded that s 15(3) is a provision which precludes compensation for gratuitous domestic assistance only where the need of care both falls below a rate of 6 hours per week and falls short of 6 months. As such, Mason P found that the Plaintiff is entitled to compensation for gratuitous domestic assistance where the need for care either exceeds 6 hours per week or extends beyond 6 hours per week.

Specifically, Mason P reasoned, at paragraph 181, as follows:

"181 On this basis, I construe s15(3) as a preclusion upon the award of Griffiths v Kerkemeyer damages unless the plaintiff can overcome one of the two thresholds by showing either that the gratuitous services are provided for a long period (ie more than six months) or that the services are provided for a significant period of time (ie more than six hours per week). In my opinion, the six months are required to run together as a six month period. There is nothing in the section to suggest that the six month threshold can be met by aggregating a series of lesser periods. If either threshold is met, then the plaintiff can recover for the whole of the gratuitous services provided, or to be provided, subject to compliance with the other subsections of s15."

As such, Mason P held that the earlier Court of Appeal decisions in Geaghan and McGregor should be overruled. His Honour conveniently set out his reasons in ten bullet points in paragraph 157 of the Judgment (should there be interest in issues such as the intention of Parliament, the interpretation of statutes and the use of extrinsic material such as Hansard).

Chief Justice Spigelman came to the same conclusion as Mason P, as set out in paragraphs 18 to 20 of the Judgment, as follows:

"18 Section 15 of the Civil Liability Act, like the cognate provisions set out by Mason P, seeks to restrict the availability and quantum of damages for gratuitous services. This restriction reflects the basic proposition that a tortfeasor should only pay compensation for actual loss suffered by a plaintiff. In the case of gratuitous services there is no such loss. However, the Parliament recognises, as the Courts did before legislative intervention, that in certain circumstances the tortfeasor should pay an amount in this regard by reason, as I interpret the underlying policy, of the unfairness to the plaintiff and his or her family and friends, that their voluntary support should go unrewarded, when it is provided over and above what could reasonably be expected on the basis of ordinary human bonds and affection. This consideration must be assessed in the context that the tortfeasor would be liable to pay full compensation in the absence of such a display of human bonds and affection.

"19 There is no obvious point at which the threshold of unfairness can be said to be passed. Relevantly, it could occur when either the gratuitous services are provided for a long period (relevantly more than six months) or the services are provided at significant inconvenience (relevantly more than six hours per week). That such a threshold could have been expressed in terms of the combined effect of both duration and intensity does not detract from the proposition that, as a matter of policy choice, the relevant unfairness can be established on the basis that either threshold is passed. One cannot expect strict logic when the policy considerations are so elastic. It is not appropriate in such a context for this Court to determine what the policy probably was. The language actually used by Parliament must prevail.

"20 What is involved is a once and for all judgment in the sense that, when either threshold in s 15(3) is satisfied, recovery for gratuitous services is open to be awarded. The fact that for purposes of computation, as in the present case, this head of damages is conveniently divided into two periods, ie up to trial and prospectively, does not, in my opinion, require s 15(3) to be applied as if the periods can be disaggregated. Once either threshold is passed the plaintiff is entitled to recover damages for gratuitous services as assessed, subject to the other provisions of s 15."

As such the Appeal was allowed and the Plaintiff was awarded compensation for 4 hours of care per week from September 2001 and continuing, in addition to the sum awarded by Harrison As J.



The Court of Appeal decision in Harrison v Melham is authority for the proposition that s 15(3) of the Civil Liability Act 2002 permits the Claimant to recover compensation for gratuitous services, in full, where he or she establishes either a need for care exceeding 6 hours per week or extending beyond 6 months.

Only one limb needs to be satisfied.

In other words, the position of "no damages... for gratuitous attendant care services" only applies where:

  • Services are provided for less than 6 hours per week, and
  • Services are provided for less than 6 months.

Should services be provided for more than 6 hours per week, then the first limb is not satisfied and the position of "no damages" does not apply.

Equally, should services extend beyond 6 months per week, then the second limb is not satisfied and, again, the position of "no damages" does not apply.

These principles apply equally to s 128(3) of the Motor Accidents Compensation Act 1999.


Where, for example, gratuitous services are provided at a rate of 7 hours per week for a period of 2 weeks, the Claimant satisfies the first limb in s 128(3)(a) and is entitled to be compensated for all the gratuitous care he or she requires in the past and the future, even if at, say, only 1 hour per week.

Equally, if gratuitous services are provided for 1 hour per week from the date of the accident until the Claimant's death, s 128(3)(b) is satisfied and the Claimant is entitled to compensation for all of his or her need for care.

As such, compensation for gratuitous services would be permissible in any of the following circumstances:

  • 7 hours per week for 2 months and none thereafter, or
  • 2 hours per week for 7 months and 1 hour per week thereafter.

However, compensation would not be available where the Claimant requires care, as follows:

  • 5 hours per week for 5 months.

Aggregation of 6 Month Period

In order to satisfy the 6 month threshold alone, the period must be continuous. That is, separate periods can not be aggregated to produce a total period exceeding 6 months.

President Mason stated at paragraph 181:

"In my opinion, the six months are required to run together as a six month period. There is nothing in the section to suggest that the six month threshold can be met by aggregating a series of lesser periods."

Accordingly, compensation would not be available where care is provided as follows:

  • 3 hours per week for 3 months and a later period of 3 hours per week for 4 months, provided absolutely no care is provided in between the two periods.

Sullivan v Gordon Claims

It should be carefully noted that a different test applies in respect of Sullivan v Gordon claims under s 15B of the Civil Liability Act 2002.

Section 15B(2)(c) provides:

(2) Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependents , but only if the court is satisfied that:

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

Section 15(3) of the Civil Liability Act 2002, through the use of the expression "no damages are to be awarded" is expressed in negative terms, whereas s 15B(2) is expressed in positive terms.

Given the way s 15B(2) is drafted, the Claimant is only entitled to compensation for replacement services where the need exceeds both 6 hours per week and 6 consecutive months. Furthermore, under s 15B(2) the right to compensation for replacement services arguable ceases when the need for care drops below 6 hours per week, even after the initial 6 month period.

If Parliament were minded to amend s 15(3) of the Civil Liability Act 2002 and s 128(3) of the Motor Accidents Compensation Act 1999 to reflect the commonly understood construction of these provisions prior to the decision in Harrison then s 15B(2)(c) would constitute an effective model.

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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