X hits on this document





9 / 12

[D]amages are not to be awarded

  • (a)

    to allow for the recompense of gratuitous services except services of a parent, spouse or child of the injured person; or

  • (b)

    to allow for the reimbursement of expenses, other than reasonable out-of-pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person.

This suggests that persons other that “a parent, spouse or child” can only recover “reasonable out-of- pocket expenses”, though the legislation does not provide any thresholds or limits upon such expenses. In relation to “a parent, spouse or child of the injured person”, there is no mention of out- a r n i n g s i s s e t f o r g r a t u i t o u s e x c e s s o f t h i s l i m i t . 4 5 o f - p o c k e t e x p e n s e s ; h o w e v e r , t h e c a p o f f o u r t i m e s a v e r a g e w e e k l y e s e r v i c e , 4 4 t h o u g h t h e c o u r t m a y a w a r d d a m a g e s i n

Interpretation of statutory provisions

Close reading of the very complex damages provisions will, in due course, undoubtedly generate many challenges relating to the interpretation of particular words and phrases as well as legal standards governing the new statutory compensation regimes.

For example, in Woolworths Ltd v Lawlor [2004] NSWCA 209, the court was invited to interpret s 15(2)(b) of the Civil Liability Act 2002 (NSW), which provides:

No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: …

(b) the need has arisen (or arose) solely because of the injury to which the damages relate.

Using a hypothetical example of a claimant with a pre-existing condition who required assistance of five hours per week before the accident, and 15 hours of post-accident gratuitous care, Beazley JA (Hodgson and Tobias JJA concurring), interpreted s 15(2)(b) as allowing for an award of 10 hours for gratuitous attendant care services because the need for those 10 hours had arisen “solely because of the injury to which the damages relate” (at [28]).46 In coming to this conclusion, Beazley JA, having noted that that such construction did “not do any violence to the express words of the section”, discussed (at [29]) the operation of s 15(2)(b) if the word “substantially” were substituted for the word “solely”:

[T]hen the section would have directed the Court to make an assessment whether the need for the services arose substantially or mainly because of the injury. If the need arose substantially because of the injury a plaintiff would be entitled to an award notwithstanding that portion of the need was attributable to some other cause. So in the example given in the previous paragraph, a plaintiff would be entitled to an award for 15 hours of attendant services, not 10.

Her Honour effectively adopted the approach of Deane and Dowson JJ in Van Gervan v Fenton (1992) 175 CLR 327 at 350, who in their dissenting judgment canvassed the argument that, in assessing the value of gratuitous services, “it is proper to have regard to the fact that where the services are provided by gratuitous carers in their own home, to the extent that they were providing some domestic services before the plaintiff suffered the injury, the need for which the plaintiff should be compensated relates only to those services that were not previously provided by the carer.” Indeed, the provision directs the court to make a comparison between the post-accident circumstances and the pre-accident situation. The causes for such care may vary. They could include a claimant’s innate lack of physical dexterity, lack of interest in domestic matters, laziness or, as in Woolworths Ltd v Lawlor, the fact that the claimant continued in full-time employment after her husband had retired from work. Unless the court inquires why, what kind of, and for how long gratuitous services were provided to

44 45 Civil Liability Act 1936 (SA) s 58(2). Under the Civil Liability Act 1936 (SA) s 58(3), if the court is satisfied that: “(a) the gratuitous services are reasonably required by the injured person; and (b) it would be necessary, if the services were not provided gratuitously by a parent, spouse or child of the injured person to engage another person to provide the services for remuneration.” In that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.

46 Somewhat puzzlingly, Beazley JA added: “This construction derives directly from the definition of ‘injury’ which includes ‘impairment of a person's physical or mental condition’.”


Document info
Document views42
Page views42
Page last viewedThu Jan 19 15:13:20 UTC 2017