In Harrison –v– Melhem 
NSWCA67 (29 May 2008), the NSW Court of Appeal changed the
law in respect of assessing damages of attendant care
services/gratuitous services in personal injury claims. The
decision has affected the interpretation of section 128(3) of
the Motor Accidents Compensation Act and section 15(3)
of the Civil Liability Act. Plaintiff's are
now only required to satisfy either of the two threshold tests
to be entitled to gratuitous services. Mason P, in the
majority, at paragragh 181 decided:
" On this basis, I construe section 15(3) (which
is the equivalent to section 128(3) of the Motor Accidents
Compensation Act) as a preclusion from 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 6 months) or that the services are
provided for a significant period of time (ie more than 6
hours per week)... 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 other sub-sections of section
The Court of Appeal has now interpreted section 128(3)(a)
and (b) and section 15(3) disjunctively.
The Change and Opinion
We do not know whether the Court of Appeal decision will be
appealed to the High Court. With this in mind, plaintiffs are
now entitled to gratuitous services as long as they satisfy one
of the two abovementioned thresholds. For example, if a
plaintiff was to show a need for gratuitous services for say 10
hours per week for a period of less than 6 months, then that
plaintiff would be entitled to those gratuitous services, and
any services claimed thereafter. In the alternative, if a
plaintiff was able to show that he or she required gratuitous
services for say 4 hours per week over a continuous 6 months
period, then that plaintiff would be entitled to gratuitous
services and any services claimed thereafter.
Prior to this decision, plaintiffs had to overcome both
thresholds to be entitled to claim gratuitous care and
assistance. This now means that plaintiffs are now required to
overcome a drastically lesser threshold. Defendant legal
practitioners and insurers will now have to increase their
estimates, at least until an appeal is heard that overturns the
decision, or until there is parliamentary intervention.
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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