The recent decision of the New South Wales Court of Appeal in Harrison v Melham [2008] NSWCA 67 (Harrison) has made it easier for plaintiffs in personal injury claims to recover damages for gratuitous care.
Background
Harrison was an excavator operator who injured his back while assisting a co-worker, Melham, to attach a trailer to a tipper truck. Melham was employed by another company, Melham Civil Pty Limited. Harrison commenced proceedings against Melham and the company, Melham Civil. Both were found liable in negligence. This finding was not challenged on appeal.
However, all parties appealed against several aspects of the trial judge's decision. Harrison appealed, amongst other things, against the trial judge's decision precluding his claim for future domestic assistance and limiting his award for past domestic assistance, pursuant to section 15(3) of the Civil Liability Act 2002 (NSW) (CLA). The trial judge divided Harrison's claim for gratuitous domestic assistance into two distinct time periods as follows:
- Past care of 11.5 hours per week for 120 weeks from 25 May 1999 to 13 September 2001.
- Past care of four hours per week from 14 September 2001 to the date of judgment and into the future.
The trial judge denied Harrison's claim for the second time period on the basis that section 15(3) of the CLA provides that no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:
- For less than six hours per week, and
- For less than six months.
Earlier decisions
In Geaghan v D'Aubert [2002] NSWCA 260 (Geaghan), the New South Wales Court of Appeal interpreted section 72(2) of the Motor Accident (Amendment) Act 1993 (MAA) (which is identical to section 15(3) of the CLA) to mean that no compensation is payable unless a plaintiff is provided domestic services for more than six hours per week and for more than a six-month period.
In Roads and Traffic Authority v McGregor [2005] NSWCA 388 (McGregor), the same court accepted that section 15(3) of the CLA was to be given the same construction as section 72(2) of the MAA, ie a plaintiff is required to show that the gratuitous attendant care services are provided or to be provided for both at least six hours per week and six months concurrently before damages for such services can be recovered.
Decision
In Harrison, the trial judge was bound by those earlier decisions. The plaintiff's claim for future domestic assistance was therefore denied because it failed the concurrent thresholds in section 15(3) of the CLA.
The Court of Appeal's decision turned upon the meaning of the word 'and' in the context of section 15(3) of the CLA. Effectively, to entitle a party to damages for gratuitous care, the Court had to determine whether
- Both the six hour and six month components of the test had to be satisfied; or
- One of the components had to satisfied.
The stricter approach provided for in the first interpretation, as applied by the trial judge, would obviously make it more difficult for a plaintiff to recover damages. The Court referred to evidence that the New South Wales Parliament intended for the provision to limit recovery of damages for gratuitous care. However, this evidence was not considered helpful as it merely confirmed the provision was meant to be restrictive and did not indicate the degree of the restriction to be applied.
A majority of the Court determined the provision should be given its literal and plain meaning. Given that 'and' is normally conjunctive, the Court found that the preclusion against recovery for gratuitous care only applied if the care was or will be provided for both less than six hours per week and less than six months.
This means that a plaintiff can recover damages for gratuitous care if it can be shown such services are provided for more than six months or that the services are provided for more than six hours per week. The Court noted there is nothing in the provision to suggest the six month threshold can be met by aggregating a series of lesser periods.
In summary, the plaintiff can recover for the whole of the gratuitous services provided, or to be provided, if either threshold is met, subject to compliance with the other subsections of section 15 of the CLA.
Implications
The decision of Harrison overturns the earlier decisions of the New South Wales Court of Appeal in Geaghan and McGregor. This revised approach to the award of damages for gratuitous care in New South Wales is consistent with appellate decisions in Queensland and Victoria (see Grice v State of Queensland [2006] 1 Qd R 222 and Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210).
A review of damages awarded over the past decade has indicated that, on average, the gratuitous care component represents about 25% of damages in claims above $500,000. It is likely that the size of claims will increase given the reduced threshold for recovering damages for gratuitous care in New South Wales. The upshot is that defendants' lawyers and insurers will need to review their damages estimates and reserves to ensure the allowances for gratuitous care damages accord with Harrison.
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