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Recommendation 51.32 The Ipp guidelines were essentially based on a model, which was originally developed in the context of motor accident claims, first through amendments to the Motor Vehicles t o r e n d e r t o ( T h i r d P a r t y I n s u r a n c e ) A c t 1 9 4 2 ( N S W ) , t h e n c o n t i n u e d i n t h e M o t o r A c c i d e n t s A c t 1 9 8 8 ( N S W ) a n d t h e M o t o r A c c i d e n t s C o m p e n s a t i o n A c t 1 9 9 9 ( N S W ) . 3 3 W e s t e r n A u s t r a l i a 3 4 a n d S o u t h A u s t r a l i a 3 5 d e v e l o p e d t h e i r o w n c o d e s ; h o w e v e r , t h e s e d o n o t d i f f e r g r e a t l y f r o m t h e approach. In Tasmania awards for gratuitous services have been abolished (see above). While the Australian Capital Territory is governed by common law in relation to awards of damages for gratuitous care provided to the plaintiff, by virtue of the Civil Law (Wrongs) Act 2002 (ACT), s 100(2)(d), the plaintiff can recover damages for loss of capacity to perform domestic gratuitous m a j o r i t y s s e r v i c e s t h a t h e o r s h e p r e v i o u s l y r e n d e r e d , o r m i g h t h a v e b e e n r e a s o n a b l y e x p e c t e d others. 3 6

The Commonwealth, New South Wales, Victoria, Northern Territory and Queensland stipulate that damages for gratuitous services37 are not to be awarded:

unless “the services are necessary”;38 be provided”;39 and

or “there is (or was) a reasonable need for the services to

unless the need for the services arose solely out of the injury in relation to which damages are awarded;40 and

if the services are provided, or are to be provided for less than six hours per week, and for less than 6 months.

41

As a general rule, under the Commonwealth trade practices legislation, in New South Wales, Victoria, the Northern Territory and Western Australia, damages for gratuitous services are subject to a maximum of 40 hours a week and a maximum hourly rate of 1/40th of average weekly earnings in the relevant jurisdiction.42 Western Australia excludes any services that would have been provided in any event, and has a monetary threshold of $5,000 (adjusted on annual inflation basis) with calculation of damages over the monetary threshold tied to weekly earnings.43 The provision governing damages in respect of gratuitous services is ambiguous. Under the Civil Liability Act 1936 (SA), s 58 (1):

30 31 32 33 34 35 36 Personal Injuries Act 2003 (NT), ss 18, 23. Civil Liability Act 2003 (Qld), s 59. Ipp Report, n 4. Professor Harold Luntz, personal communication, 28 March 2005. Civil Liability Act 2002 (WA), ss 12, 13. Civil Liability Act 1936 (SA), s 58. At common law, this head of damages was first recognised by the New South Wales Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319, which determined that common law damages for loss of capacity to care for others were recoverable. See also Weinert v Schmidt (2002) 84 SASR 307, and CSR Ltd v Thompson [2003] NSWCA 329 which is at present under appeal to the High Court on this point.

37 In some jurisdictions gratuitous services are defined as “attendant care services”, which refer to “(a) services of a domestic nature; (b) services relating to nursing; (c) services that aim to alleviate the consequences of an injury.” See eg the Civil Liability Act 2002 (NSW), s 15(1).

38 Civil Liability Act 2003 (Qld), s 59(1)(a). Section 59(4) also provides that “In assessing damages for gratuitous services, a court must take into account – (a) any offsetting benefit the service provider obtains through providing the services; and (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.”

39 Civil Liability Act 2002 (NSW), s 15(2)(a); Personal Injuries Act 2003 (NT), s 23(1)(a); Wrongs Act 1958 (Vic), s 28IA(1)(a); Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Cth), s 87W(2)(a).

40 Civil Liability Act 2003 (Qld), s 59(1)(b); Civil Liability Act 2002 (NSW), s 15(2)(b); Personal Injuries Act 2003 (NT), s 23(1)(b); Wrongs Act 1958 (Vic), s 28IA(1)(b); Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Cth), s 87W(2)(b).

41 Civil Liability Act 2003 (Qld), s 59(1)(c); Civil Liability Act 2002 (NSW), s 15(2)(c); Personal Injuries Act 2003 (NT), s 23(2); Wrongs Act 1958 (Vic), s 28IA(2); Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Cth), s 87W(2)(d) and (e).

42 Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004 (Cth), s 87W(3); Civil Liability Act 2002 (NSW), s 15(4); Wrongs Act 1958 (Vic), s 28IB; Personal Injuries Act 2003 (NT), s 23; Civil Liability Act 2002 (WA), ss 12(5), (6) and (7).

43

Civil Liability Act 2002 (WA), ss 12(3), 13(1).

7

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