Harrison v Melhem

30 The appellant challenges findings that underpin the calculation of: past economic loss; future loss of earning capacity; loss of superannuation; and domestic assistance and attendant care. 31 He also disputes the rejection of his claim for future domestic assistance. This issue throws up a question of the correct interpretation of s15(3) of the Civil Liability Act 2002 (the CLA). The appellant sought leave to challenge earlier decisions of this Court and he relied upon interstate appellate decisions that placed a different interpretation on identical provisions in those jurisdictions.

32 The respondents filed a cross appeal challenging the decision not to reduce the damages awarded under s151Z of the WCA. The respondents also challenge the amount awarded for non-economic loss.

Past economic loss and future loss of earning capacity 33 The appellant was born on 25 July 1974. He was therefore a little under 25 years old at the date of the accident and 32 at the date of trial. 34 He left school after Year 10, having completed his school certificate and described himself as an average student. He worked as a labourer in various situations before 1996 and 1999. 35 He decided to operate plant equipment. To do this on his own he needed a licence. This required him to perform 200 hours on the machine and to pass a test. Between about 1998 and 1999 he completed his 200 hours and he was to undergo a test on the weekend after the accident. Harrison AsJ found that he would have passed the test and that he had all skills necessary to operate an excavator (J133). 36 The appellant commenced employment as an unlicensed excavator operator with Woollams about three months prior to the accident. His intention was to remain with that employer for another 2.5 years and then to seek work in the mines at Kalgoorlie. 37 As indicated, the judge found that the accident caused or substantially contributed to the appellant's back injury at the L4/5 disc level. He was not fit to return to labouring or heavy work due to the injury (J123). 38 The appellant has not been employed since the accident, save for a short period of light work in a pub. He said that he may be able to work in a nursery (J135). Her Honour assessed his residual earning capacity at $140 nett per week (J137) and this finding is not challenged by either party. The dispute on economic loss relates to the type and level of work the appellant would have been capable of performing had he not been injured, and the rates of pay referable to it. 39 Her Honour found that the appellant would have worked at Woollams for about 2.5 years (ie to December 2001) had he not been injured. The appellant regarded himself morally indebted to Mr Woollam (J132), with the consequence that he would have stayed with that employer until he was ready to try his fortune in Kalgoorlie. Her Honour also found that during this initial period the appellant was totally incapacitated for work due to the injuries and disabilities suffered in the accident (J136). 40 Past economic loss for this first period of 2.5 years was assessed at $59,800 on the basis of loss of the income the appellant was earning from Woollams immediately before the accident. The appellant has not contested this component of the award in the Recalculated Schedule of Damages tendered to this Court on 6 December 2007. Since, however, the findings upon which it was based are relevant to calculating later periods of economic loss and since those findings have been challenged in the latter context, it is necessary to understand all steps in her Honour's reasoning on economic loss. 41 The appellant claimed in his Particulars that but for the accident he would have earned from $460 to $640 (average $550) per week nett between May and September 1999 (Red 11). At the trial he submitted that he was earning approximately $640 per week, but his evidence was uncorroborated and it was unsatisfactory in some respects (see J131). There were no tax returns. Harrison AsJ thought it significant that he had not worked on a fulltime basis with Woollams (J136) and her Honour calculated the lost income for this first period on the basis that he worked, on average, four days per week at seven hours per day at the rate of $20 per hour = $560 = nett $460 (J136). 42 The rate of $20 per hour was the casual rate being paid to the appellant by Woollams prior to the accident. Her Honour also had regard to the evidence of Mr Haldane, who had been the appellant's supervisor at Storm Constructions in 1996 when he was first learning to operate the excavator. Mr Haldane had continued his own employment with Storm Constructions up to the trial. He gave evidence that in 2006 excavator operators started on between $20 and $22 per hour (a bit higher than the labourers' rate) depending on experience; and that if they were good and had been operating the machine for a long time, they could get up to $30 per hour (Black 234, J133). The judge placed the appellant at the lower end of Mr Haldane's ($20-$30) spectrum (see J138) and she recorded that, prior to the accident, he had had a number of periods off work, the longest being a significant period of about nine months. She reiterated in this context her view that the appellant's drug use was unlikely to have abated (J134). 43 The appellant argued that different criteria would have applied after December 2001 when he had discharged any obligations to stay with Mr Woollam. He gave evidence that it had been his intention to move to the mines at Kalgoorlie, working as an excavator operator presumably on his own account. In his Particulars he had claimed upwards of $1200 net per week for this type of work (Red 11). The judge did not think that he would have gone to work at the mines (J132). 44 Her Honour's dispositive findings referable to past economic loss from 1 January 2002 onwards were: 134 However, prior to the accident, the plaintiff had a number of periods off work, the longest being a significant period of about nine months. He was, at the time of the accident, 25 years of age. As previously stated, it is my view that it was unlikely that the plaintiff's drug use would have abated. He had been regularly using drugs since 15 years of age. Just prior to the accident he had peaked in his drug use, smoking at least 15 to 20 cones per day, maybe more. As previously stated, it is my view that the plaintiff's motivation and psychiatric state is largely attributable to his continued heavy drug use and had the accident not occurred, the plaintiff's future would have been uncertain. Ultimately, the plaintiff would no longer have been able to hold down a fulltime job. From time to time the plaintiff may have cut down his drug use and been able to work again for a while. The most likely scenario is that he would have worked periodically. It is possible that the plaintiff would have, at some time in the future, sought treatment for his drug addiction. It is possible that, ultimately, treatment may have been successful. The future was uncertain.

137 From 1 January 2002 onwards, the task of assessing the plaintiff's loss of earning capacity due to the accident is more difficult. I agree with Dr Chen that the plaintiff is capable of performing the type of work outlined by her on a part time basis. I assess this amount of casual or part time work to be between 7 to 10 hours per week somewhere between $15 to $20 per hour nett. I assess the plaintiff's residual earning capacity at $140 nett per week.

138 There are two reasons why the plaintiff will be unable to earn his pre-injury wage from 1 January 2002 onwards. They are firstly, due to the injuries and disabilities he suffered in the accident and secondly, due to his drug use. It may be that some time in the future the plaintiff would have sought treatment, which may have led to him giving up or severely curtailing his use of drugs and worked on a fulltime basis. Sometime in the future he may not have been able to continue to work at all, or only worked periodically. Given that the plaintiff was 25 years of age when the accident occurred and by that time he had not acquired any qualifications, it is my view that he would not have advanced in his career other than to obtain his Excavators Licence. He would have continued in employment as a semi-skilled worker. Therefore, I have based his economic loss on his estimated wage prior to the accident of $460 nett per week. At that time he was earning $20 nett per hour, which was at the lower end of the range for qualified Excavator Drivers. I have apportioned half of this weekly amount as representing the amount the plaintiff would have earned but for the accident. That is $280 nett per week, less the amount that the plaintiff is capable of earning, namely $140 nett per week. The plaintiff's economic loss for the period 1 January 2002 to 24 November 2006 is calculated as 255 weeks at $140 nett per week, which equates to $35,700. The total of past economic loss is $95,500. 45 The appellant no longer presses a claim for economic loss based upon his plan to go to Kalgoorlie. His Recalculated Schedule adopts the judge's findings for the period up to 31 December 2001 and challenges the award for the subsequent periods on a twofold basis. 46 First, the judge is said to have erred in maintaining the pre-accident figure of $460 nett per week throughout this later period despite evidence of rising rates and falling taxes. It is also contended that the appellant would have moved from casual to weekly rates after he left Woollams. Second, the judge is said to have erred in applying a 50% discount due to the problems stemming from drug use. 47 In his Recalculated Schedule the appellant proposes that past economic loss from 1 January 2002 to the date of judgment below should be calculated as follows: 01/01/02 - 09/07/02 (27 x $442.43) Less 25% $8,959.20 10/07/02 - 09/07/03 (52 x $455.03) Less 25% $17,746.17 10/07/03 - 31/03/04 (38 x $477.23) Less 25% $13,601.05 01/04/04 - 09/07/05 (66 x $493.16) Less 25% $24,411.42 10/07/05 - 10/09/05 (9 x $510.74) Less 25% $3,447.49 11/09/05 - 09/07/06 (43 x $513.61) Less 25% $16,563.92 10/07/06 - 24/11/06 (19.5 x $548.51) Less 25% $8,021.95

48 For future economic loss the appellant proposes an award of $347,618.21 calculated as follows:

($548.51 x 845) = $463,490.95 less 25% 49 These calculations proceed on contestable assumptions as regards (i) weekly rates and (ii) a 25% allowance for vicissitudes. 50 As to (i) (weekly rates), the calculations incorporate what is said to be the award rate for an excavator operator at the relevant times. These are the nett weekly rates shown in Schedule A to a document showing "Agreed Figures" that was handed up at trial (Blue 88-9). The rates are stated to be award rates for a shovel excavator up to 3 cubic metres. 51 The appellant submits that these figures should have been adopted because they were agreed. Alternatively, they reinforce the argument that the primary judge erred in sticking to the 1999 hours and casual rates when calculating economic loss after 1 July 2002. The 1999 situation involved payment at casual rates for 4 days per week at 7 hours per day. This reflected the work being offered by Woollams to an (as then) unlicensed excavator operator. Since the appellant would have been both fully qualified and freed from his moral obligation to Mr Woollam by January 2002 there was no reason, so the submission went, for using any base rate other than the nett award rate as adjusted from time to time up to the date of judgment. Such an approach would also factor in the reduction in taxation that occurred during the period in question. 52 As to (ii) (vicissitudes), the appellant concedes that the findings about the negative impact of depression stemming from prolonged drug abuse could justify a greater than standard (15%) discount for vicissitudes. But the judge's deduction of 50% on the appellant's future earning capacity with reference to drug use and its negative impact is challenged both as excessive and as involving an element of double counting. 53 With respect to point (i) above, we have not been shown any passage in the trial transcript indicating that the figures were 'agreed'. The mathematics may have been, but the submissions at trial (which are not fully transcribed) show that there was never a consensus that the appellant would have worked full time had he not been injured (see Black 350). In truth, there was a live factual dispute about that issue which focussed upon the evidence of Mr Haralambous that was resolved against the appellant by the judge.

54 There was ample psychiatric evidence to show that the appellant is clinically depressed and that this condition is likely to remain despite treatment including appropriate medication (eg Dr Murugesan at Blue 128, Dr Parmegiani at Blue 245). Dr Parmegiani, who had been retained by the respondents for medico-legal purposes, concluded that the appellant suffered an adjustment disorder with depressed mood that was caused by chronic pain. He thought that the appellant would continue to adjust psychologically to his physical injuries, and periods of depression would lessen in frequency and magnitude over time, but it was questionable whether his mood and self esteem would return to pre-injury levels as long as he was in pain. This conclusion was, however, based upon a recorded history that makes no reference to drug abuse and that assumed only the task of discerning the psychiatric sequelae of the back injury suffered in the accident. 55 Mr Haralambous is a clinical and forensic psychologist with extensive experience and who has been involved in the training of mental health practitioners. He examined the appellant in August 2006 on behalf of Woollams in relation to its continuing liability for workers compensation payments. His report was served by the respondents some three days into the hearing. 56 The report involved a clinical interview of the appellant, the administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and a review of accompanying documents consisting of a Report of Dr Yui Key Ho dated 29 May 2006 and other documents that were not identified. 57 Mr Haralambous observed that the responses on the MMPI-2 suggested that the appellant is "depressed and unhappy, and that he feels hopeless and pessimistic about the future in general and, more specifically, about the likelihood of overcoming his problems and making a better adjustment" (Blue 279). His opinion included the following (Blue 280, 281, 282): On the basis of the information available before me, including Mr Harrison's account at interview, his responses on the objective, evidence based measures of the MMPI-2, and the available documents, it is my opinion that, from a psychological perspective, the primary and most substantive form of disturbance in the case is associated with chronic, pervasive, and persistent substance abuse that long precedes the alleged injury of May 1999.

It is … my opinion that the alleged injury of May 1999 did not cause Mr Harrison's depression, or any other identifiable symptoms of a diagnosable psychological condition. Furthermore, on the basis of the findings on physical examination of Dr Yui Key Ho, Orthopaedic Surgeon (report dated 29 May 2006), it does not appear that there has been an aggravation of a pre-existing psychological disturbance due to physical pathology that is consistent with the alleged injury at work. Rather, on the basis of the information available before me, it is my opinion that the most salient and substantial form of disturbance in this case pertains to chronic and pervasive substance abuse, with associated depressive tendencies and underlying personality vulnerabilities, evidence on objective measures, including fundamentally low frustration tolerance that often accompanies substance abuse. … [I]t is my opinion that the circumstances of Mr Harrison's employment have not substantially contributed to any persistent symptoms of diagnosable psychological pathology. Rather … it is my opinion that, from a psychological perspective, the primary and most substantial form of disturbance in this case is associated with chronic, pervasive, and persistent substance abuse that long precedes the alleged injury of May 1999. 58 The report was objected to at the trial on a number of bases, including that it was served out of time and the appellant had not had an opportunity to tender a psychologist's report of his own (Black 270). The appellant's representatives initially sought to restrict the use of the report to matters of credibility and not as evidence of the truth of the facts asserted. However, the next day the report was tendered and admitted without objection (Black 333). The appellant did not seek an adjournment, or to cross-examine the witness. 59 The primary judge accepted the accuracy of the detailed history of substance abuse commencing in the early teens, which Mr Haralambous records as having been supplied by the appellant and upon which his prognosis is based (see especially Blue 276-7). Section 60 of the Evidence Act 1995 armed her Honour with authority to do this in relation to a medical report admitted without objection or qualification. Mr Haralambous' recorded history is most explicit in its detail and it was available to the court as evidence by way of admission from a party. 60 The history includes heavy daily doses of cannabis since the appellant was 15 years old, plus prolonged periods in which LSD and amphetamines were ingested. The appellant also told Dr Chen that, before injuring his back, he smoked 10 to 30 cones of marijuana per day and he was often stoned at work (Blue 249). 61 Her Honour's summary of the history recorded by Mr Haralambous (at J89-97) is interspersed with discussion comparing aspects of the recorded history with the appellant's testimony. The judge was alive to the appellant's partial denial of the recorded history, but she was not bound to accept that denial and she was generally unimpressed with the appellant's credibility (see especially J8, 75). In my opinion, these conclusions were well open to her. I am not persuaded to reach a different conclusion on the matter. 62 There was specialist psychiatric evidence from sources additional to Mr Haralambous to the effect that heavy use of marijuana could cause depression (see Dr Bashford, summarised at J113). 63 In my view, the judge has not been shown to have erred in her conclusion that the appellant had developed a serious and entrenched drug habit from 15 years of age onwards which would, on the balance of probabilities, not have abated upon marriage nor with the benefit of maturing years (J77). 64 Her Honour's conclusions about the extent and impact of this substance abuse upon the appellant's depression are at J105-106. Since J105 addresses the impact upon the capacity to obtain and retain employment it is convenient to repeat these paragraphs in reverse order: 106 From the reports of Dr Chen and Mr Haralambous, it is clear that the plaintiff is and was a heavy drug user, both before and after the accident. Just prior to the accident he was smoking somewhere between 10 to 40 cones per day and on his own evidence, he had until recently been smoking up to 10 cones per day, but it was probably more. The plaintiff's depression was pre-existing and not caused by the accident in May 1999. The depression was more likely to be caused by his entrenched drug use. However, I accept that the accident may have caused his depression to worsen after the accident. The level of depression the plaintiff now suffers is not as severe as it was for some months after the accident.

105 Mr Haralambous diagnosed the plaintiff as having a Substance Use Disorder with associated depression. He said that a more specific accuracy of diagnosis was clouded by the extent of substance abuse, which appeared to be substantial. Insofar as returning to work, from a psychological viewpoint, Mr Haralambous regarded that the most significant prognostic factor in this case, often associated with relational and vocational instability, is the chronic and pervasive history of drug abuse that long precedes the alleged circumstances of his employment and which has remained essentially untreated and unaddressed. Mr Haralambous was of the opinion that, from a psychological perspective there were no restrictions upon the plaintiff's capacity for employment for reasons arising from circumstances of his employment and any restriction that arose was from the plaintiff's long term and chronic history of drug abuse, which hinders rather than facilitates a return to work. 65 Apart from disputing the history upon which Mr Haralambous' opinion was based, the appellant challenged her Honour's acceptance of that opinion and her conclusions (at J134, 138 set out above) that, uninjured, the most likely scenario was that the appellant would have worked only periodically; that he may possibly have sought treatment for his drug addiction, with uncertainly as to its likely success; and that (save for the first phase until 31 December 2001) economic loss should be calculated on the basis of $20 nett per hour, the lower end of the range for qualified excavator drivers, subject to a 50% discount because of the likely adverse impact of the drug abuse. 66 The appellant submits that her Honour should have placed greater reliance upon the evidence of the working history prior to the accident. He worked for eight of the nine years since he left school, during which time he did the 200 hours training necessary to obtain his excavator's licence. In short, he (and his employers) had coped during this period despite the excessive drug usage. 67 In my opinion these considerations do not falsify her Honour's conclusions which were, to a large degree, predictive and which based themselves upon the evidence of Dr Chen and Mr Haralambous as well as the judge's assessment of the appellant himself. It is also to be remembered that s13(1) of the CLA placed the onus squarely upon the appellant to satisfy the court that his likely future circumstances were as sanguine as now contended. 68 Harrison AsJ had good reasons to be sceptical about the appellant's credibility and her Honour was not satisfied that the long-term prospects were as favourable as claimed. This Court, in turn, would need to be persuaded of error before it could overturn the necessarily impressionistic conclusions of the trial judge as regards the impact of the accident upon hypothetical matters. 69 The appellant's submission that there was "no evidence" to support her Honour's approach is clearly wrong, in light of the evidence of Mr Haralambous and Mr Haldane. 70 In my view, the primary judge was entitled to conclude that the appellant's work history might well remain sporadic and uncertain, given his earlier work history, his many unsuccessful attempts to break his habit (Black 167) and the evidence about the depressive and negative impacts of prolonged substance abuse. The appellant's ongoing depression is likely to affect both his motivation to seek work and his capacity to retain it. 71 The respondents submitted that J138 (set out above) is to be read as a finding that the appellant would not have worked as a fulltime excavator even with a licence. I agree. 72 The appellant said that there were times in the past when he had worked while stoned as a labourer (Black 164). He would, however, have expected to be sacked on the spot if this had been his condition when working an excavator worth $40,000 (Black 164, 165). 73 Her Honour did not overlook the submission that, at the time of the accident, the appellant was approaching a time in his life where the prospect of "settling down" might have led to him getting effective and lasting treatment for his addition. Her observation at J77 shows that that matter was addressed and rejected in a manner that could attract no criticism. 74 The appellant also submitted in this Court that greater weight should have been placed upon the more optimistic prognoses of the doctors whose reports he relied upon. Several of these doctors were apparently ignorant of the history of drug abuse and/or focussed entirely upon what they understood to be a purely physical problem. In my view, the judge has not been shown to have erred in forming the conclusion (see eg J109, 110) that these views needed to be substantially discounted because those doctors were not appraised of the full extent of the history of drug taking. I would add that none of the doctors had the demonstrated expertise of Mr Haralambous as regards the psychological impact of such matters. Her Honour concluded that it was unlikely that the appellant's drug use would have abated (J134). 75 With respect to point (ii) above, the appellant's strongest argument in this area is his submission that the judge erred in both treating the 1999 work experience as indicative of his future employment situation and then halving that 1999 income level. The judge further reduced damages by 15% for vicissitudes which the appellant says involves double counting, or at least to have been an excessive discount. As indicated, the appellant's counsel has proposed a 25% discount (in lieu of the conventional 15% for vicissitudes and the judge's 50% discount in earning capacity) as more appropriate. 76 In my view, there was no double counting and I am not persuaded that the judge's award was outside an available range. The tribunal of fact had a wide discretion in determining that which was incapable of mathematical calculation and necessarily impressionistic (see generally State of NSW v Moss [2000] NSWCA 133, 54 NSWLR 536). Her Honour's approach to the task followed the mandate of s13(2) of the CLA. 77 The $20 per hour figure that was adopted was that suggested by Mr Haldane as the lower end of a spectrum for an excavator as at the date of the trial. Furthermore, the evidence of Mr Haralambous was that the appellant's current excessive drug use appears to be hindering rather than facilitating any return to work (Blue 283). Mr Haralambous gave specific evidence about the difficulties of persons with the appellant's profile of responses (to the MMPI-2 test) to cope with stress and responsibility (Blue 279). 78 In concluding that I would not disturb the award for economic loss on the basis that it is too low, I have also taken into account my impression that the award for non-economic loss is very much at the top end of an appropriate range. This matter is discussed in the next section of these reasons. The appropriateness of an appellate court declining to interfere with individual components of a damages award unless it is satisfied that the award as a whole is unduly high or unduly low is well established (see Robinson v Riley [1971] 1 NSWLR 403).

Non-economic loss 79 Harrison AsJ explained her award of $235,000 representing 55% of a most extreme case, as follows:

123 I have referred to the plaintiff's injuries and disabilities in detail earlier in this judgment. I take into account that the plaintiff was only 25 years of age when the accident occurred. He is a relatively young man. I accept that the accident has significantly impacted upon his life. I also accept that the plaintiff's back injury was caused, or substantially contributed to, by the accident. On 9 August 2001, the plaintiff underwent surgery at L4/5. After the operation the plaintiff was in less pain. Half of the pain in his back had dissipated and the shooting pains down his legs disappeared, but he was left with back pain and some diffuse pain in his legs. On any view, the plaintiff is not fit to return to labouring or heavy work due to his back injury.

124 Since the accident the plaintiff has not been employed. His life is no longer as enjoyable as it once was. The committed relationship he had with his girlfriend Jodey has broken up some time ago. He is currently living with his brother, nephew and niece. He has a very limited social life. However, not all of the plaintiff's current state can be attributed to the accident. It is difficult to excise with precision the effect of the plaintiff's drug use from those injuries and disabilities caused by the accident. It is my view that the plaintiff's motivation and psychiatric state is largely attributable to his continued heavy drug use and had the accident not occurred, the plaintiff's future would have been uncertain due to that drug use. To date, the drug use is untreated. 80 This award is challenged as excessive by the respondents in their cross-appeal. 81 The respondents submits that her Honour overlooked her earlier findings about the drug abuse preceding the accident and its continuing negative impact on the appellant after the accident. 82 I acknowledge that there is some tension between the conclusions on economic loss and the assessment that the appellant's tort-induced injuries and disabilities placed him in the category of 55% of a most extreme case. 83 Nevertheless, the respondents bore the evidentiary burden of disentanglement and her Honour specifically referred to the need to exclude the impact of pre-accident drug abuse in J124. 84 There were also findings that the appellant's exaggeration of the intensity of his back and leg pain was partly attributable to his drug taking (J120). I understand this to be acceptance of the evidence of Dr Chen (Blue 254) and Mr Haralambous (Blue 279) each of whom referred to the capacity of drug abuse to cause added pain, stress, inability to cope and other negative impacts that would generally boost a claim for non-economic loss damages. The respondents were certainly not responsible for leading the appellant into his history of prolonged drug abuse. But the respondents take their victim as they find him and the back injury inflicted on the appellant has been found to have contributed to significant permanent pain and discomfort with a range of physical and psychological impacts. The appellant was only 25 at the date of the accident. 85 The nub of the respondents' challenge to the award of damages for non-economic loss is the tension that appears to exist between the approach to economic and non-economic loss. Bearing in mind that her Honour dealt severely with the appellant's claim in the former category I would not disturb her award for non-economic loss even though it strikes me as very generous having regard to the need to factor out to an appropriate degree the negative impact of the earlier drug abuse. 86 Accordingly, I would dismiss the cross-appeal.

Section 151Z 87 In their cross-appeal the respondents also challenge the decision not to reduce the damages by reference to s151Z of the WCA. 88 Her Honour concluded (J54): 54 The request to carry out the lift was not made by the plaintiff's employer. It was made by an employee of Melhem Civil Pty Limited. The request was to lift a trailer which was not located at the work site. The lifting of a trailer did not form part of the duties expected to be performed by the excavator operator. The lift was to be carried out in accordance with the directions of Jimmy Melhem. The employer was not appraised of the task to be carried out by either Jimmy Melhem or the plaintiff. It is my view that the accident occurred as a result of an independent act. Therefore, the employer is not liable to make any contribution. 89 The respondents accepted that they bore the onus of proof in showing that the employer breached its duty of care to the appellant (Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174). They submit, however, that the damages awarded to the appellant should be reduced by 25% because the employer would, if sued, have been held liable to the appellant. 90 The respondents submit that the employer could not and did not discharge its non-delegable duty of care by sending the appellant to the building site on a three day job and telling him that the owner of the premises would give him instructions as to what had to be done (J14). 91 The nub of the respondent's submission is that heavy lifting was a likely part of the appellant's ordinary day's work. That he might be asked to assist others, such as the co-worker Mr Melhem who was operating the tipper truck used for the removal of debris, was a distinct possibility. Yet there was no instruction to refuse such assistance and no instruction in the manner of safe lifting. We were referred to the well-known passage in McLean v Tedman (1984) 155 CLR 306 at 313. 92 The respondents sought to bolster their argument by pointing out that the appellant's injury would have been compensable by his employer as having arisen out of or in the course of his employment. This is obviously correct, but not to the point. I read her Honour's reference to the accident occurring as a result of an "independent act" as conclusory shorthand for the preceding reasoning in J54 which points to the unlikelihood of the employer having realised that the appellant might be asked to assist in lifting the towbar of a heavy trailer that was defective for want of a mechanical lifting device. 93 In my view, the judge did not err in acquitting the employer of the putative claim in negligence. There was no evidence about what a reasonable employer might be expected to do in these circumstances. This was not a case of a body hire employer sending an employee out to perform a known task under another's supervision. The possibility that the appellant, who was an experienced labourer, might have been called upon to lift the towbar of a trailer that was parked away from the work site, that had been disconnected from the truck ordinarily pulling it and that needed manual lifting because it had no jockey wheel in working order was really a very remote one. The employer was not guilty of negligence causative of injury in failing to anticipate this combination of events and give instructions about responding to it.

Domestic care 94 The appellant was entitled to be compensated for his loss of capacity to look after himself which was caused by the accident. Damages are to be assessed by reference to his need for care (see generally Kars v Kars (1996) 187 CLR 354). These common law principles were, however, modified by s15 of the CLA which provides: 15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (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. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter, or (ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services. 95 The appellant claimed a need for 20 hours per week attendant care from the date of the accident and continuing (Blue 94-5, J143). The services involved were gratuitous attendant care services within s15. 96 Harrison AsJ divided the claim into two periods. The first was from 25 May 1999 to 13 September 2001, representing the period between the accident and a date that allowed the appellant to recover from his back operation in August 2001. For this period of 120 weeks her Honour found a need for 11.5 hours per week and calculated compensation in the sum of $23,107.33 in accordance with s15(5) (J145-6). 97 The second period was from 14 September 2001 to date of judgment and continuing into the future. Her Honour found that the need for domestic care during this period was four hours per week, and she indicated her intention to award damages totalling $91,307.63 calculated in accordance with s15(5) (J147-151). 98 The judge's attention was then drawn to this Court's decision in Roads and Traffic Authority v McGregor [2005] NSWCA 388, 44 MVR 261 ("McGregor") concerning the interpretation of s15(3). Recognising that she was bound by that decision, despite personal doubts as to its correctness, her Honour determined to make no award for future domestic care and to limit the award for the past to $23,107.33 (Harrison v Melham (No 2) [2006] NSWSC 1293, 46 MVR 8). 99 McGregor held that s15(3) requires demonstration that the "gratuitous attendant care services" provided or to be provided to meet a plaintiff's need are provided or to be provided for both at least six hours per week and six months concurrently before damages for services are recoverable with respect to the period in question. In other words, a need that continues for 12 months (or even a lifetime) is to be ignored unless its intensity requires six or more hours per week of services. So too a need for six or more hours per week of services is to be ignored unless it lasts for at least six months. McGregor followed this Court's earlier decision in Geaghan v D'Aubert [2002] NSWCA 260, 36 MVR 542 ("Geaghan")and applied it to a case, like the present, where the plaintiff had passed the dual length and intensity threshold in respect of a discrete portion of the claim for past damages for care. McGregor held, in effect, that the plaintiff could recover damages for that earlier period but that this provided no passport to recovery of damages for a later period where one only of the dual requirements were satisfied. 100 The Queensland Court of Appeal and the Victorian Court of Appeal have arrived at a contrary interpretation of textually similar provisions in those States (see Grice v State of Queensland [2006] 1 Qd R 222, [2005] QCA 272 ("Grice"); Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210 ("Alcoa Portland") discussed below). And the correctness of McGregor was doubted by this Court in Sheridan v Borgmeyer [2006] NSWCA 201 at [41]. 101 The appellant gave notice of his intention to challenge McGregor, if necessary. This Court was convened with five members and we heard full argument on the matter. 102 Senior counsel for the appellant submitted that s15(3) applies only where both conditions (a) and (b) are satisfied. He invited the Court to construe s15(3) according to its plain or literal meaning and in accordance with the reasoning in Grice and Alcoa Portland. He also argued that the appellant had passed s15(3)'s threshold. 103 In their dissenting judgment in Van Gervan v Fenton (1992) 175 CLR 327 Deane and Dawson JJ referred (at 346) to the fact that some legislatures had reversed the decision in Griffiths v Kerkemeyer (1976) 139 CLR 161. They added: This is an indication that an over-generous approach by the courts to compensation based upon the need for services which are provided gratuitously may be seen to conflict with the interests of the community as a whole.

The various statutory limitations are identified and discussed in Luntz, Assessment of Damages for Personal Injury and Death 4th ed, Butterworths, Australia 2002 at [4.6.5]. See also Australia, Review of the Law of Negligence , Final Report, (Chairman, Justice David Ipp) September 2002 at pp202-3. 104 The New South Wales modifications may be found in the Motor Vehicles (Third Party Insurance) Act 1942, s35C (which commenced in 1984); the Motor Accidents Act 1988 (the MAA 1988), s72 (which commenced in 1988 and was materially amended in 1993); The Motor Accidents Compensation Act 1999 (the MACA 1999), s128 (which commenced in 1999); the WCA, s60AA (which commenced in 2001 replacing the previous s151K that had been inserted in 1989); and the CLA, s15 (which commenced in 2002) and ss15A and 15B (which each commenced in 2006). 105 Section 72 of the MAA 1988 ceased to apply in respect of motor accidents occurring after the commencement of the MACA 1999 (see MAA 1988, s69(1A)). 106 While the general object of these enactments is to restrict and/or modify the common law principles stemming from Griffiths v Kerkemeyer, several contain provisions stating that the law in relation to the value of services is not affected apart from the sections themselves (see the MAA 1988, s72(7), the MACA 1999, s128(7), the WCA, s151K(8) (now repealed)). Such provisions are underpinned by the presumption against statutes abrogating common law rights (see Grice at 229[25]) and the cases cited therein. 107 These provisions apply to different situations and they commenced at different times. And only some contain a six hour per week/six month intensity requirement similar to s15(3) with which this appeal is concerned. 108 The first provision imposing six hour per week/six months requirement was s72 of the MAA 1988. In its original form it stated: 72. (1) An award of damages shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person, except in accordance with this section. (2) No compensation shall be awarded unless the services are provided, or are to be provided, for not less than 6 months and may be awarded only for services provided or to be provided after the 6-month period. (3) No compensation shall be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (4) No compensation shall be awarded unless the services provided or to be provided are not less than 6 hours per week and may be awarded only for services provided or to be provided after the first 6 hours. (5) If the services provided or to be provided are not less than 40 hours per week, the amount of the compensation shall not exceed - (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for - (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award - that quarter; or (ii) in respect of the whole or any part of any other quarter - the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (1), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (6) If the services provided or to be provided are less than 40 hours per week, the amount of the compensation shall not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (5)(a) or (b), as the case may be. 109 Subsections (2) and (4) are the statutory precursors to s15(3), but they contain significant textual differences, discussed below. 110 In 1993 s72 of the MAA 1988 was repealed and replaced with the following (see Motor Accidents (Amendment) Act 1993, No 72 of 1993, Sch 1(13)): Maximum amount of damages for provision of certain home care services 72. (1) Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance: (a) which have been or are to be provided by another person to the person in whose favour the award is made; and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section (2) 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. (3) If the services provided or to be provided are not less than 40 hours per week, the amount of compensation must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter. for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter; or (ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (4) If the services provided or to be provided are less than 40 hours per week, the amount of compensation must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (3)(a) or (b), as the case may be. (5) Unless evidence is adduced to the contrary, the court is to assume that the value of the services is the maximum amount determined under subsection (3) or (4), as the case requires. (6) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(7) Except as provided by this section, nothing in this section affects any other law relating to the value of services of the kind referred to in subsection (1). 111 In 1995 subsection (1) was renumbered (1A) and the following inserted as subsection (1) (see Motor Accidents Amendment Act 1995, No 66 of 1995, Sch 1(30)): (1) The objects of this section are: (a) to limit to average weekly earnings the level of payment for services for additional domestic assistance that are above and beyond those rendered by family or household members, and (b) to restrict access to those payments to claims where the need is long term, and (c) to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident. 112 The object stated in para (b) would appear to refer to subsection (2) and this is how the legislation is viewed by Professor Luntz in Assessment of Damages for Personal Injury and Death 4th ed, 2002 p293. That object is therefore significant to the respondents' defence of Geaghan, albeit that it does not appear to have been part of the reasoning in Geaghan. 113 There was a further amendment to s72(1)(a) that is not of present relevance (Motor Accidents Amendment Act 1997, No 3 of 1997, Sch 1(20)). 114 The 1993 version of s72(2) differed from the 1988 enactment in at least two presently significant respects. 115 First, the stipulation that the payment of damages was restricted to the period after six months and to the hours after the first six hours (found in the latter portions of subsections (2) and (4) (in the 1988 version)) had disappeared. 116 Second, the six hour and six month provisions were merged into a single subsection. In the 1988 version, the separate subsections (2) and (4) had made it crystal clear that each basis for preclusion was free-standing. The consequence of that was that a plaintiff would receive "no compensation" unless each hurdle was independently passed. The structure and language of the 1993 version of s72(2), especially the "and" linking paras (a) and (b), points to an opposite result. A literal reading of the new provision provides that the plaintiff will be awarded "no compensation" only where both limbs (a) and (b) are satisfied together (ie not independently). 117 The first change that I have referred to in the preceding paragraph 115 above did not call for the two subsections to be merged. Accordingly, the textual alteration that was effected when the two subsections were melded into one is of some significance. When placed alongside the plain meaning of the new s72(2) it creates a powerful reason for the provision to be interpreted otherwise than it was in Geaghan (discussed below). 118 There is a body of extrinsic material referable to the 1993 replacement of s72. In particular:

(i) In May 1993 a Motor Accidents (Amendment) Bill was introduced that would, if passed, have enacted a new s72 that contained no six hours/six months intensity provision(s) in relation to home care services. When moving the second reading in the Legislative Assembly the Minister, Mr Hartcher, informed Parliament ( Parliamentary Debates, Legislative Assembly, 19 May 1993 p2334, emphasis added): Compensation provided by family members in the form of home care services is presently payable only after those services have been provided for six months; and then only where the services exceed six hours per week . This limitation has proved to be anomalous. It is proposed to remove these restrictions so that where a member of the injured person's household or family provides care and services, home care compensation will be available even during the first six months after the accident and for the first six hours of services each week. Because the compensation is for services provided voluntarily, the amount of compensation will continue to be limited to a maximum of 40 hours per week based on average weekly earnings in New South Wales. This limit has been in place since July 1984.

(ii) There is a slight ambiguity in the mischief identified in the first paragraph. But in my view the mischief is explained in the second paragraph as being the absence of compensation referable to the first six months or the first six hours per week. This has no bearing upon the present issue because there was, in May 1993, no representation that this aspect of the scheme would be preserved under the new s72. However, the words I have emphasised pointed (correctly) to an interpretation of the old provision requiring both thresholds to be crossed before compensation could be awarded.

(iii) The Bill passed in its original form in the Legislative Assembly on 16 September 1993.

(iv) The Bill was read a first time in the Legislative Council on 16 September 1993. The second reading occurred there on 27 October 1993. The Attorney General, Mr Hannaford, obtained the leave of the House to have the second reading speech incorporated in Hansard ( Parliamentary Debates , Legislative Council, 27 October 1993 at p4496). What is there reproduced appears to be identical to Mr Hartcher's second reading speech in May, the relevant portion of which I have reproduced. Yet it is clear that significant amendments had been prepared since the Bill passed through all stages in the Assembly in September.

(v) Then followed immediately a speech by the Deputy Leader of the Opposition in which he indicated support for the second reading while voicing "distinct reservations about the amendments to proposed section 72" (p4498). He was obviously referring to the amendments intended to be introduced in Committee and he complained about the fact that they had only been produced "yesterday" (p4498).

(vi) Mr Hannaford spoke in reply and in the course of that speech adverted, among other things to the amendment he was intending to move in Committee that would become s72(2). He said that (p4501) "it is proposed to restore the six-hour six-month threshold in relation to the availability of compensation for home care services" . He referred to actuarial estimates suggesting that the removal of the six hour/six month barrier could increase insurance premiums by up to $11 per vehicle. He concluded (emphasis added): In the circumstances, it is proposed to restore the six-hour six-month threshold . However, I wish to emphasise that the proposed amendments would still entitle claimants to compensation for the whole period, including the first six hours six months, provided they meet the six-hour six-month threshold . (p4501)

(vii) In an explanatory note for Item 12 of the Schedule of Proposed Amendments incorporated at p4503 it was stated: The existing provision in the Act provides that claimants only become entitled to compensation for services provided by family members after the six hours/six months. However, the proposed amendments to the Bill would entitle claimants to compensation for the whole period, including the first six hours/six months, provided they meet the six hour/six month threshold. 119 The meaning of s72(2) of the MAA 1988 (as amended in 1993) was considered by this Court in Geaghan in a judgment delivered on 13 August 2002. The Court was alive to the intervening replication of s72(2) in s128(3) of the MACA and s15(3) of the CLA (see Geaghan at 544[18]). 120 The plaintiff in Geaghan was injured in a motor vehicle accident on 10 March 1998. The trial judge found that her husband had had to provide domestic care at the rate of five hours per week from the date of the accident and that this need was likely to continue for five years into the future. This Court held that s72(2) precluded the award for gratuitous services. 121 The leading judgment was given by Stein JA with whose reasons Handley JA and Foster AJA agreed. The reasons contain a careful analysis of the competing submissions in which the appellant/defendant urged a purposive approach informed by reference to the legislative history and the respondent/plaintiff urged a literal construction of s72(2), the terms of which were said to be plain and unambiguous, thereby driving out the capacity to refer to extrinsic materials otherwise permitted by s34 of the Interpretation Act 1987. 122 In a lengthy passage (at 544-546[19]-[38]), Stein JA referred to the objectives stated in ss2A, 2B, 68A and s72(1) of the MAA 1988, noting that there was no specific object directed to limiting claims by reference to weekly hours of assistance ([19]-[21]); legitimacy of comparing the 1988 and 1993 forms of s72 ([22]-[24]); the ambiguity in the amended s72(2)([30]-[31]) and the statement of the Attorney to the Legislative Council in October 1993 in his reply to the second reading debate (set out above) on reintroduction of a cumulative six hour/six month barrier that was driven by concern about the expense to the scheme ([34]-[37]). 123 Paragraph [36] of Geaghan should be set out in full:

[36] The following are passages taken from the second reading speech of 27 October 1993. These excerpts make it abundantly obvious that the Attorney-General was of the opinion that no compensation would be payable unless a plaintiff was provided with home care/domestic services for more than 6 hours per week and also for more than a 6 month period: The twelfth amendment reintroduces the six hour six month barrier. A major provision of the original bill was to liberalise home care compensation. At the moment, compensation is available only where family members provide home care services after the first six months of services, and those services exceed six hours per week. … The amendment reintroduces the six hour six month barrier so that claimants apparently will become entitled to compensation only after services have been provided by family members for six months and then only where the services exceed six hours. However, under the proposed amendments, claimants will be entitled to compensation for the entire period, including the first six hours six months, provided they meet the six hour six month threshold. … As I previously outlined, it is proposed to restore the six hour six month threshold in relation to the availability of compensation for home care services. … Section 72 of the Act currently provides that compensation provided by family members in the form of home care services is payable only after these services have been provided for six months and then only where the services exceed six hours. This provision was found to be counter-productive, as claimants tend to engage commercial services for which the full costs may be claimed. The Motor Accidents (Amendment) Bill removes the six hour six month barrier. The increase in premiums arising from this change was originally estimated at $1 per vehicle. However, recent actuarial estimates indicate that this figure could be as high as $11 per vehicle. Coupled with the increase in premiums of $10 per vehicle resulting from the change to the verbal threshold in section 79(1), a further increase of up to $11 is considered to be unacceptable. In the circumstances, it is proposed to restore the six-hour six-month threshold. However, I wish to emphasise that the proposed amendments would still entitle claimants to compensation for the whole period, including the first six hours six months, provided they meet the six-hour six-month threshold. With those comments I commend the bill. [ Hansard Parliamentary Debates Legislative Council 4499-4501 .] 124 With respect to his Honour, the first two extracts were part of a speech by the Hon Elisabeth Kirkby, who was a member of a minor party in the Council (see p4498). And none of the passage forms part of the second reading speech, albeit that it was part of the Attorney's speech in reply in the second reading. I do not, however, dispute his Honour's conclusion that the Attorney General was expressing an opinion about the operation of the proposed amendment to the effect indicated. 125 As to the basis for finding ambiguity in the 1993 provision, Stein JA said: [30] Accepting the original MA Act's intention (that for compensation to be awarded, both limbs need to be satisfied) leads to a consideration of whether there is any ambiguity in the amended provision (s72(2)) with which we are concerned. Adopting a strict literal construction would likely produce the answer that no compensation is payable if the services are provided for less than 6 hours and for less than 6 months. However, if services are provided, for example for 5 hours but for more than 6 months, that is no bar to recovery. [31] Such an approach begs the question: Is this what the legislature intended when it amended s72 in 1993? Such a construction would seem to be at odds with the objects of the Act as set out in s2A, with those in Pt 6 (s68A) and also the objects within the section itself. 126 I shall return to this matter. For the present, I would indicate that the finding of ambiguity rests upon reasoning that draws no more than generalised support from various object clauses in the MAA 1988 (including that stated in s68A(a) about controlling the award of damages for the purpose of ensuring that the scheme under the Act is affordable), none of which address the objects of any six hour/six month threshold. 127 Stein JA concluded (at [38]): Given the extrinsic material referred to above and the legislative history of s72 of the 1988 Act, together with the various object provisions in the Act, a purposive construction leads to the conclusion that s72(2) requires both limbs (a) and (b) to be satisfied before compensation is payable under the provision. No compensation is to be awarded if less than 6 hours per week of service is provided or is to be provided. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months. 128 It is interesting that Stein JA made no reference in this summation to s72(1)(b) (inserted in 1995, set out at [111] above) that (from 1995 onwards) spoke of one of the objects of the section being to restrict access to payments for services to claims where the need is long term. (That provision had been referred to earlier in Geaghan at [20]-[21], but that was all.) 129 The plaintiff in Geaghan never crossed any threshold of showing a need for at least six hours care per week, let alone one that lasted over six months. This double deficiency does not, however, form part of the Court's reasoning which proceeds, as indicated, on the basis of a "purposive construction". That led to the decision that the preclusion in s72(2) applies even if only one of the two arms are satisfied. 130 Section 128(3) of the MACA 1999 and s15(3) of the CLA are relevantly indistinguishable from s72(2) of the MAA as enacted in 1993 except that neither is found in a section that contains an object clause similar to s72(1)(b). When the Premier moved the second reading of the Civil Liability Bill he informed the Legislative Assembly that clause 15 adopted a number of "requirements" to apply to damages for gratuitous attendant care services and that these were drawn from the motor accidents and health care liability schemes (Parliamentary Debates, Legislative Assembly, 28 May 2002 p2085). (The reference to health care liability schemes would have been to the Health Care Liability Act 2001 which, until the section was repealed by the CLA, contained in s12 a restriction on damages for gratuitous attendant care services, but it had no provision similar to s15(3).) 131 There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection (Lennon v Gibson & Howes Ltd [1919] AC 709 at 711-712; Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49 at 53; Pearce & Geddes, Statutory Interpretation in Australia 6th ed, Butterworths, Sydney, 2006 at s3.36). As will be seen, this principle was applied in McGregor (at 283[167]). The application of that presumption is not deflected in the present case by any concern stemming from Parliament having re-enacted a provision after it had received authoritative judicial interpretation, because s128(3) of the MACA 1999 and s15(3) of the CLA were passed before this Court's decision in Geaghan. But the force of the presumption is substantially weakened by the absence of anything corresponding to s72(1)(b) of the MAA 1988. 132 In Geaghan, the Court observed (at 544[18]) that s72(2) had been replicated in s128(3) of the MACA 1999 (which replaced the MAA 1988) but with no equivalent objects clause as in s72(1). It was also noted that Parliament had used the same words in s15(3) of the CLA. 133 Section 15 of the CLA 2002 has two broad functions. Subsections (2) and (3) spell out circumstances where damages for gratuitous attendant care services are not to be awarded. Subsections (4) and (5) limit the damages that may be awarded in an appropriate case. 134 Subsection (3), with which this appeal is concerned, proceeds on the assumption that the relevant services have been ("are") or will be actually provided, albeit voluntarily. Demonstration of a need for care that is not actually met in the particular situation may present an issue in other cases, but it does not arise in the present matter. 135 It is patent that subsection (3) seeks to preclude the award of damages for care services. But this only brings one to the start of the inquiry. The critical issues are (i) the circumstances in which the preclusion operates; and (ii) whether the preclusion ceases to operate for the entire period claimed when and if those circumstances are met. 136 Where subsection (2) applies, "no damages may be awarded". This, to my mind, speaks against the approach that found favour in McGregor (and in this matter in the court below) where an award of damages for the future was taken away but damages for the past remained. The provision does not speak in terms of no damages being awardable for any period in which the six hours/six months criteria are not met. In my view, this interpretation is reinforced by the words "are provided, or are to be provided" which say nothing (in terms) about the past, but focuses on the provision of the services rather than the particular time in which they were, are or are likely in the future to be, provided. 137 Section 15(3) stands in marked contrast with s15B(2) of the CLA. Section 15B was enacted in 2006 by way of a partial restoration of Sullivan v Gordon [1999] NSWCA 338, 47 NSWLR 319 after its overruling in CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1. Section 15B(2)(c) states: Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, 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 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… 138 This provision is entirely unambiguous on the matter at issue in this appeal. Its contrast with s15(3) tends to reinforce the literal reading of s15(3) that I favour, not that this point is a strong one given that s15B was enacted in 2006. 139 McGregor involved s15(3) of the CLA. The plaintiff was found to have required past care for 17.5 hours per week for 26 weeks, followed by seven hours per week for three years (with a seven month gap). The need for future care was assessed at four hours per week. The submission that the plaintiff had passed a "threshold" was rejected, but only the award for future domestic assistance was set aside by the Court of Appeal. McGregor therefore involved the Court giving s15(3) a distributive operation. 140 The Court's reasons in McGregor were given by Michael Campbell AJA with whom McColl JA and Bell J agreed. 141 His Honour recorded (at 283[169]) that there had been no challenge to the correctness of Geaghan, only an attempt to distinguish it on the basis that the plaintiff in Geaghan had not received relevant assistance which had crossed the "threshold". 142 The submission in McGregor that the Court addressed was whether s15(3)(a) had application to the claim in relation to future domestic assistance in the events that had happened in respect of past entitlement to care expenses. The plaintiff submitted that she had passed the "threshold" provided by s15(3) and was accordingly not prohibited from recovering in the future for assistance of less than six hours per week. 143 It was accepted in McGregor that s15(3) of the CLA was to be given the same construction as s72(2) of the MAA 1988 (1993 version). The Court's attention was drawn to the Premier's remarks in his second reading speech introducing the CLA (see at 283[167]-[168]). 144 Counsel for the plaintiff in McGregor placed particular reliance upon the Attorney General's remarks on 27 October 1993 about the effect of the new s72(2) of the MAA 1988 that have already been set out. The submission was, however, rejected (at 284[172]) because the "threshold" concept: … requires a construction of s15(3) which sets aside the provision for "services which are provided" on the one hand and "are to be provided" on the other. I do not consider such a construction to be open on the clear words of the section. 145 This would appear to be reasoning different from that voiced in Geaghan because it drew upon the text of the words enacted, albeit in an appeal where the correctness of Geaghan was taken as a given. Nevertheless, it is, with respect, not easy to see the point being made by Campbell AJA, especially in light of the decision in McGregor that did treat past and future care damages separately and allowed the plaintiff to retain the former. 146 In Grice, the plaintiff needed more than six hours of care per week for nine weeks, but thereafter her need (indefinitely) was for four hours per week. The Queensland Court of Appeal held that the preclusion in s54(2) of the Personal Injuries Proceedings Act 2002 (Qld) never applied because only one, but not both, of its arms were met. 147 In Alcoa Portland, the plaintiff whose hypothetical claim had to be brought to account was found to have been provided with one hour per week voluntary domestic care and to have an indefinite need for such service (see per Chernov JA at [30]). The Victorian Court of Appeal held that the preclusion in s28IA(2) of the Wrongs Act 1958 (Vic) had no application because the services were not of the kind falling within both arms. 148 The text of s54(2) of the Queensland Act considered in Grice and s28IA(2) of the Victorian Act considered in Alcoa Portland was identical to s15(3) of the CLA 2002 save for an immaterial variant at the start of the Queensland provision. Nevertheless, McMurdo P drew particular attention to s72(1)(b) of the MAA 1988 (1993 version) when concluding (at 228[23]) that the interpretation given to s72(2) of the New South Wales Act did not substantially assist the Queensland Court of Appeal in interpreting the Queensland provision. 149 Geaghan was distinguished in Grice and Alcoa Portland on the basis of the extrinsic material referred to in Geaghan which was peculiar to New South Wales. 150 McGregor was decided after Grice and it appears not to have been cited to the court in Alcoa Portland. 151 Because the Queensland and Victorian decisions proceed upon textual considerations it is convenient to address their reasoning first before returning to a critical analysis of Geaghan and McGregor. Text and context can never be dissociated (see generally CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408). However, Geaghan proceeded on the basis of a perceived textual ambiguity that was then elucidated by reference to extrinsic materials. 152 In Grice, McMurdo P (with whom McPherson JA and Williams JA agreed, with Williams JA adding some reasons of his own) found (at 225[11]) that the text was unambiguous and clear. Its clear and unambiguous ordinary meaning precluded any weight being placed upon an erroneous interpretation offered to the Parliament in the Queensland Attorney General's second reading speech when he stated that: An award for gratuitous services can only be paid if the service is required for a minimum of six hours per week and for a minimum of six months.

See esp at 225-226([12]-[13]), 229([26]). 153 The leading judgment in Alcoa Portland was given by Chernov JA. Maxwell ACJ agreed. So too did Neave JA who also added some reasons of her own. The Victorian Court acknowledged the relevant identicality of the New South Wales provision considered in Geaghan with the Victorian provision it was addressing. 154 Chernov JA stated (at [35]) that the "ordinary natural meaning of the words … would justifiably lead to the conclusion that, unless both matters in the paragraphs are present, there would be no prohibition against claiming such damages". This Court's decision in Geaghan was described by his Honour (at [36]) as [having read the paragraphs] disjunctively (in effect, substituting for "and", the word "or") instead of conjunctively as would seemingly follow from a plain reading of the words. 155 Neave JA was of a similar view and, like Chernov JA, she distinguished Geaghan on the basis of the unique extrinsic materials considered in the New South Wales case. Her Honour held (at [48]) that the plain words of the provision prohibited the award of damages for gratuitous attendant care services only if both conditions were satisfied. She also observed (at [50], footnotes omitted) that: The approach in Geaghan means that a person who is injured so seriously that they require full-time care for up to six months after their accident or require regular care for fewer than 6 hours a week for the rest of their lives, is not entitled to any compensation for their need to receive gratuitous care. Legislation which shifts a substantial portion of the costs of negligently caused injury from tortfeasors to injured plaintiffs, by restricting the right to recover damages for gratuitous care, must be expressed clearly and unambiguously. 156 In Sheridan, Beazley JA (with whom Santow and Tobias JJA agreed) said in an extempore judgment (at [41]): Having reached that conclusion, it is not necessary for me to enter into an issue raised as to whether or not s15 of the Civil Liability Act requires that there be a threshold requirement that must be satisfied as from the date of hearing. In a decision of this Court in Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 that view was taken. Mr Maconachie did not seek leave to re-argue that decision because he said that on the respondent's case it was not necessary to do so. As this will be a matter which will undoubtedly be revisited by this Court from time to time, it is appropriate for me to record my doubt as to the correctness of that decision. I say no more than that. We have not had considered argument on the matter and we have not had time to give considered reflection to it. McGregor's decision has not been directly challenged, and even on the view taken in McGregor , the respondent would have been successful on this claim. 157 In my opinion, this Court should overrule Geaghan and McGregor for the following reasons:

(i) The literal and plain meaning of s15(3) is that the preclusion applies if, and only if, both limbs are satisfied ( Grice , Alcoa Portland ). The subsection does not state that a plaintiff has to show the provision of services for more than six hours per week and for more than six months in order to qualify for damages.

(ii) The word "and" is normally conjunctive (see generally Victims Compensation Fund Corporation v Brown [2003] HCA 54, 201 ALR 260, 77 ALJR 1797) and there is, in my view, no compelling reason why it should be read otherwise in subsection (3) between paras (a) and (b).

(iii) Section 15(3) obviously seeks to restrict the common law, but it is an established principle of statutory interpretation that common law rights are not to be abrogated in the absence of clear statutory language. I would adopt the remarks of Neave JA in Alcoa Portland set out above. Section 15(6) preserves "any other law" except as provided in the section.

(iv) Section 15(3) was enacted before this Court had placed its interpretation upon the provision's predecessor, ie the 1993 version of s72(2) of the MAA 1988 . It may be open to infer that when enacting s15(3), Parliament intended to replicate the meaning of s72(2) of the MAA 1988 (1993 version) and s128(3) of the MACA Act 1999 , but no more than that.

(v) A purposive approach to the interpretation of these provisions yields no relevant assistance, because knowing that the purpose of the provisions was to reduce the level of damages for care tells nothing about the scope of the preclusion. Both the Geaghan interpretation and the Grice/Alcoa interpretation reduce damages in any event.

(vi) In my view, the strongest argument that could be mounted in favour of the decision in Geaghan flows from s72(1)(b) that was added to s72 in 1995. As indicated, the provision stipulated that the objects of s72 included restricting access to payments for services for additional domestic assistance "to claims where the need is long term" . Such an object would support a reading of s72(2) as not allowing intensive needs (say at the rate of 20 hours per week) to be compensable where that need did not extend beyond six months. But it would not explain why long term (ie over 6 months) needs would be non-compensable if their intensity was less than 6 hours per week, which is also the result compelled by Geaghan's reading of the text. The present plaintiff's needs are "long term". More importantly, an object clause cannot in my view produce a forced reading of an operative provision any more than a purposive interpretation could trump the clear text of an enactment. The literal meaning of s72(2) is clear, in my view.

(vii) Section 72(1)(b) was not replicated in the provision considered in McGregor and it is absent from s15(3) of the CLA .

(viii) Resort to extrinsic material to determine the meaning of s15(3) is not authorised by s34(1)(b) of the Interpretation Act 1987 because the provision is not ambiguous or obscure and because the ordinary meaning conveyed by the text does not lead to a result that is manifestly absurd or unreasonable.

(ix) Section 72(2) of the MAA 1988 (1993 version) and s15(3) of the CLA speak in terms of an all-or-nothing situation and not in relation to the exclusion of a portion of a larger claim. If the provision applies, no damages for gratuitous services are to be awarded (contrary to the result in McGregor and in the court below). If the provision does not apply, then there is no statutory preclusion, although the other subsections may control the level of damages.

(x) If, contrary to (viii), there is authority from the Interpretation Act 1987 to consider statements made to Parliament in 1993 about the meaning of what became s72(2), those statements do not permissibly assist in the present issue. Nor do common law principles stemming (in the United Kingdom at least) from the decision in Pepper v Hart [1993] AC 593. This composite tenth proposition requires elaboration. 158 Proposition (x) contains a major and a minor premise. The major premise involves a very broad constitutional and jurisprudential issue about the capacity of words spoken in one chamber of Parliament to inform, let alone guide, the interpretation of the words subsequently enacted by the Legislature. I have addressed the topic in an article "The intent of legislators: How judges discern it and what they do if they find it" (2006) 27 Aust Bar Review 253. A revised and updated version of the article was given as a speech at the Institute of Advanced Legal Studies in London on 2 November 2006 and it may be found on the Supreme Court Website. 159 There are many authoritative statements that legislation must be construed by reference to what Parliament has said through its enactment, as distinct from what others, including ministers, may wish or think Parliament intended (see Nolan v Clifford (1904) 1 CLR 429 at 449; Re Bolton; Ex parte Bean (1987) 162 CLR 514 at 518; Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at 499[55]; Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816 esp at [66], [139], [178]). 160 It does not follow that reference to the intention of Parliament is meaningless. On the contrary, the duty of courts is to give effect to that intention, but only as it is expressed in legislation (see Re Bolton at 518 per Mason CJ, Wilson J and Dawson J; Singh v Commonwealth [2004] HCA 43, 222 CLR 322 at 335[19] per Gleeson CJ). Lord Reid expressed it pithily in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613: We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. 161 There will always be situations in which a court can be satisfied that the intention of the maker of a document is not reflected in the text chosen. Sometimes even Parliament can miss its intended target in a manner where that target is nevertheless plain, in which event a court should endeavour, if possible, to do more than record that the target has been missed (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424). 162 Statements in Parliament, even by ministers during the second reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another. Pepper involved the plainest of assurances being given to Parliament about the effect of a taxing statute and a later attempt by the Crown to argue for a contrary meaning. It was and, to my mind, remains a controversial decision. Its facts are unlikely to be replicated. Pepper has been the springboard for a stream of English cases in which courts have paid regard to ministerial statements about a range of matters upon bases that have showed some inconsistency in the principles applied. I am unaware of any authoritative Australian decision that goes as far as Pepper or its English progeny. 163 Lord Steyn has suggested that Pepper rests upon notions of estoppel and admissions by the Executive against interest (see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 at 68[45]; McDonnell v Congregation of Christian Brothers Trustees & Ors [2003] UKHL 63, [2004] 1 AC 1101 at 116[29]. See also R v A (No 2) at 79 [81] (Lord Hope)). This of course would not assist the present respondents. But in any event, the notion that the meaning of a statute might turn upon such private law notions strikes me, with respect, as constitutionally untenable. The idea has, in my view, been convincingly answered in the academic literature (see A Kavanagh "Pepper v Hart and Matters of Constitutional Principle" (2005) 121 Law Quarterly Review 98 at 116-118; S Vogenauer "A Retreat from Pepper v Hart? A Reply to Lord Steyn" (2005) 25(4) Oxford Journal of Legal Studies 629-674; P Sales, "Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn" (2006) 26 Oxford Journal of Legal Studies 585-592). 164 An extreme instance of the Pepper v Hart jurisprudence in the law of the United Kingdom is Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1. In that case, the House of Lords held that the damages-capping provisions of the MACA 1999 did not apply to tort claims arising out of accidents in New South Wales that are litigated in England. The statute in question was the Private International Law (Miscellaneous Provisions) Act 1995. Their Lordships in Harding were not troubled by invoking Pepper in private litigation that had nothing to do with governmental rights. (This shows the difficulty in Lord Steyn's approach to Pepper.) But what is significant, was their readiness to examine a statement by the Lord Chancellor in the nature of a blanket assurance about how English courts would continue to deal with the assessment of damages with regard to foreign torts. The Chancellor was then the head of the judiciary but he was, on any view, dealing with a complex aspect of the evolving common law. 165 The Lord Chancellor's statements in Committee deflected an amendment that would have put the matter beyond doubt. There was, however, no reference in the reasons for judgment in Harding as to what might have been said in the Commons where, on my researches, the Bill passed without any debate (admittedly later than the legislative proceedings in the House of Lords). 166 This resort to the minutiae of Hansard shows the practical as well as the constitutional problems of using Pepper v Hart to justify the reasoning in Harding. 167 It is in my view both unlikely and unprovable that the members of one House of a bicameral legislature will have read speeches made in the other chamber. This in itself raises large issues about the correctness of Pepper to the extent that it goes beyond allowing resort to ministerial statements to discern the context of the Bill in question and the mischief to which it is addressed. Professor J H Baker raised this very matter in an early and significant challenge to the correctness of Pepper itself (J H Baker, "Case and Comment: Statutory Interpretation of Parliamentary Intention" (1993) 52 Cambridge Law Journal 353-357). 168 On my understanding, the law is clear in Australia that a minister's understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court. In Re Bolton; Ex parte Beane, three justices of the High Court of Australia went further in refusing to give any weight to a minister's unambiguous second reading speech that contradicted the text. Mason CJ, Wilson J and Dawson J stated (at 518): The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. 169 These three justices were former Solicitors-General who may perhaps be taken to have had some awareness of the capacities of busy ministers seeking to expound a Bill and/or persuade the Parliament to pass it to be prone to the gamut of human imperfections to which we are all subject. 170 I would respectfully adopt and apply the following passage in the judgment of Kirby J in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11, 228 CLR 529 (at 555-556[82], citations omitted): This court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law. 171 In Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24, 218 CLR 89, McHugh J cited (at 103[33]) the passage from Re Bolton quoted above in support of the statement that "while statements in Second Reading Speeches concerning legislative intent are a guide - often a useful and sometimes a definitive guide - as to the meaning of the legislation, they do not replace the words of the Act". It is not entirely clear to me what his Honour was referring to when he spoke of "legislative intent" and for that reason I refrain from going beyond indicating that I see some tension between McHugh J's statement and the passage he cites. 172 I do not consider the Interpretation Act 1987 or the common law of statutory interpretation in Australia to permit resort to a minister's speech to guide the meaning of legislation beyond identifying its purpose (Nominal Defendant v GLG Australia Pty Ltd at 538[22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). However broadly the notion of "purpose" or even "intent" is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appear to be giving to it. 173 In Plaintiff S157/2002 v Commonwealth the High Court declined to give effect to the Minister's understanding of the operation of a privative clause as expounded in his second reading speech (see at 499[55] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 174 I now move to the minor premise in the tenth proposition. Whatever possible leeway the principles in Pepper may offer to a court in this country, the ministerial statements that were taken into account in Geaghan did not, in my opinion, provide a clear or principled basis for reading down the plain meaning of the enacted text. 175 It is to be remembered that Stein JA had arrived at the point in his reasoning where he detected nothing in the objects of the legislation stated in ss2A, 2B, 68A and 72(1) of the MAA 1988 that provided any specific mention of limiting claims by reference to weekly hours of assistance (see Geaghan at 544[19]-[21]). 176 Stein JA had discerned a legislative purpose of reducing premiums by inserting a threshold as to the intensity and length of domestic care services that were to be compensable (see at 546[35]-[36]). So much may readily be accepted. The insertion of clause (2) into a Bill that had been introduced in May 1993 with no provision addressing that subject matter was an obvious step taken to control the cost of the scheme. One would not need the minister's statement to the Legislative Council to confirm this, but the statement does so in any event. 177 It is one thing to recognise that Parliament addressed the particular topic for cost-saving reasons, it is another to decide how tight were the screws that were enacted. I do not understand any of the reasoning in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 221 CLR 568 (which the respondents has cited) to point to the contrary position, with the possible exception of a dictum of Callinan J at 609[135]. 178 I have already set out the key passages of the Attorney General's statements to the Legislative Council about his understanding of the effect of the amendment he was about to introduce in the Committee stage (ie the provision that became s72(2) of the MAA 1988 and the precursor of s15(3) of the CLA). The primary thrust of his comments was to emphasise that "the six hours six month threshold" was to be restored but in a form that did not exclude compensation for the first six hours or six months. 179 I nevertheless accept that the Attorney was also implicitly representing that, subject to the identified change, the threshold in the earlier form of s72 was intended to be restored. The form of the earlier s72 (with its separate subsections (2) and (4)) made it tolerably clear that a plaintiff had to leap both hurdles in order to avoid the statutory command that "no compensation shall be awarded". 180 It is conceivable that the drafter of the new s72 thought (like the Attorney apparently did) that merging two subsections into one was a convenient device that did not change the effect of the old provision in this regard. But that, in my opinion, cannot control the plain meaning of what was enacted and the force of the "and" inserted between paras (a) and (b). 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. 182 In my view, the idea that a Minister can stamp his or her interpretation upon an Act of Parliament by no more than (and I emphasise "no more than") stating a view as to its meaning is constitutionally unacceptable. Nor is it supported by legitimate canons of statutory construction. The Attorney was, in my view, mistaken when he implicitly represented that the new provision replicated the old in the presently relevant context. That mistake cannot control the proper interpretation of the enacted provision. 183 This follows as much as a matter of evidence as from the principles of constitutional law and statutory interpretation. By this I mean that it would be wrong for this Court to infer, even if it were minded to do so, that the members of the Legislative Council who voted to support the amendment in Committee shared the Attorney General's view as to its meaning. As Scalia J once put it in relation to the Supreme Court of the United States in Pennsylvania v Union Gas Co (1989) 491 US 1 at 30: It is our task, as I see it, not to enter the minds of the Members of Congress - who need having nothing in mind in order for the votes to be both lawful and effective - but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times. 184 A similar point was delicately put by Lord Nicholls in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816 at 843[66]: … the courts must be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister's reasoning or his conclusions. 185 In the same case, Lord Hobhouse said (with the concurrence of Lord Rodger) that it was a "fundamental error of principle to confuse what a minister or a parliamentarian may have said (or said he intended) with the will and intention of Parliament itself" (at 864[139]). 186 When he was a member of the Court of Appeal, Gleeson CJ observed that (Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99): This Court is not bound by its own decisions and makes no claim to infallibility. 187 His Honour then proceeded to expound the applicable principles of stare decisis in an extended passage (at 99-100) that concluded that: … making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decisions it must entertain a strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice. 188 We recently concluded that similar principles should apply both when this Court is asked to depart from one of its own decisions that are in point and when this Court is confronted with a decision of an Australian intermediate appellate court of comparable jurisdiction with reference to substantially similar legislation (Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327). I was in dissent, but I regard myself as bound by that decision although I observe that the High Court has subsequently endorsed an arguably different test (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5, 242 ALR 383 at [31]). Tillman did not involve a case like the present where the tugs of comity pulled in opposite directions. 189 At the end of the day I am comfortably satisfied that we should overrule the two earlier decisions. I am reinforced by the emphatic clarity of the appellate decisions from Queensland and Victoria to which reference has been made. 190 I propose the following orders:

2. Vary the judgment entered in the Common Law Division by substituting $676,248.85 for $637,409.62.

4. Respondents to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified. 191 BEAZLEY JA: I agree with Mason P except to the extent of the qualifications expressed by Spigelman CJ. 192 GILES JA: I agree with Mason P. 193 BASTEN JA: I agree with the judgment of the President in respect of each of the matters raised on the appeal, other than the question of compensation for loss (in part) of the appellant's capacity to care for himself, compensation for which depends upon the operation of s 15(3) of the Civil Liability Act 2002 (NSW). The statutory provision is set out by his Honour at [94] above in its statutory context, but its terms may conveniently be repeated: " 15 Damages for gratuitous attendant care services: general … (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." 194 The cases, both in this State and in jurisdictions having equivalent legislation, demonstrate different views as to its scope and operation. As the President explains, the Courts of Appeal in Queensland and Victoria have taken a different view to that which has so far held sway in this State and have done so in part because of supposed differences in legislative history, despite the apparent intention in other jurisdictions to enact legislation to similar effect and despite the resultant inconsistencies in construction of relevantly identical wording which have now arisen. Resolution of these conflicts requires consideration of the reasoning of the various courts and the legislative history. However, the starting point of the analysis must be the language of the statute itself. 195 With respect to the views that the section has a clear, plain and literal meaning, it may be suggested that the provision is ambiguous or uncertain in three important respects. First, it is unclear whether the prohibition contained in the section operates as a precondition which, once satisfied, may be disregarded or whether it constitutes a continuing precondition to an award of damages on an ongoing basis. That ambiguity arises in the present case because the trial judge assessed the need for attendant care services at 11.5 hours per week for an initial period of some 4 years, but thereafter at a continuing rate of 4 hours per week only. 196 It would seem sensible to treat the six month period ("the duration condition") as satisfiable on a once only basis and six hours per week ("the intensity condition") as an ongoing requirement. This differential operation reveals a degree of awkwardness in treating these two conditions as constituting a single prohibition with two limbs. 197 Separating the preconditions exposes a second potential level of uncertainty. Two questions arise, namely whether the six month qualification must be continuous and whether it can only be satisfied in relation to services provided for not less than six hours per week, or could be satisfied by any level of services. The first question does not arise on the findings of the trial judge. However, in relation to the second question, if, as the President accepts at [129], the duration condition can only be satisfied by a period which also satisfies the intensity condition, it would seem that compensation is only available where both conditions are satisfied but that, once satisfied, the intensity condition has no ongoing operation. 198 The third element of ambiguity arises (at least in part) from the fact that the two conditions are identified negatively. Thus, the prohibition may operate only if services are provided for less than six hours per week and for less than six months, taken cumulatively; alternatively, it may operate if services are provided for less than six hours per week and if services are provided for less than six months. The latter construction involves, in effect, two cumulative prohibitions and would be the preferred conclusion if there had been two separate subsections. The former construction involves a single prohibition with two elements, which would have been the preferred construction if the two elements had been dealt within in one paragraph and not separated. 199 This third element of ambiguity is also relevant in the present case if the intensity condition has a continuous operation because, although the trial judge found that the need would continue indefinitely, after four years it continued at the reduced rate of four hours per week.

Legislative history 200 The initial form of the current provision may be found in s 72 of the Motor Accidents Act 1988 (NSW), set out by the President at [108] above. It avoided the third ambiguity because there were two separate prohibitions, namely sub-ss (2) and (4). 201 Under s 72 in its original form, compensation could be awarded only for services provided "after the 6-month period" and only for services "after the first 6 hours": s 72(2) and (4). The prohibitions on compensation for any period until each condition was satisfied were removed by the Motor Accidents (Amendment) Act 1993 (NSW), which also resulted in the separate provisions being amalgamated into one subsection in the same form as the current provision. 202 The extrinsic material relevant to the 1993 amendments is reviewed by the President at [118] above. Although the amendments resulted from a two-stage process (the first, later abandoned, involving the complete removal of both preconditions) the expressed intention in relation to the ultimate amendment was simply to remove the prohibition on compensation for the first six months and for the first six hours per week. In the absence of any clear suggestion to the contrary, it may be inferred that no other change was intended. Indeed continued reference by the Attorney to "the six-hour six-month threshold" affirm the intention to maintain a dual precondition to recovery, involving both duration and intensity conditions. The third ambiguity was created by running the two preconditions together as if they formed part of a single prohibition, which only operated when both limbs were satisfied. 203 As already noted, the ambiguity arises in part from the negative nature of the preconditions. Thus, if the prohibition had operated unless the services were provided for "more than six months and more than six hours per week", the difficulty would not have arisen. However, the drafter appears to have seen an opportunity to remove unnecessary verbiage without realising that a quite different result might be achieved, if the negative form of the conditions were not reversed. A change in structure with a simple and commendable explanation, combined with no change in the language from previous provisions, suggests that no unidentified change was intended. 204 In mid-1999, the Government introduced new legislation into the Parliament, which became the Motor Accidents Compensation Act 1999 (NSW). Section 72(2) of the Motor Accidents Act, as then in force, was replicated in s 128(3) of the 1999 Act, a provision which came into force on 5 October 1999. The same provision was included in the Civil Liability Act, in the form relevant to the present proceedings.

Principles of statutory construction 205 The various principles of statutory construction relevant to the resolution of ambiguity are well understood and need not be revisited. Three specific principles were invoked on the appeal. First, there is the general principle contained in s 33 of the Interpretation Act 1987 (NSW) that a construction should be preferred which promotes "the purpose or object underlying the Act" rather than one that does not. An Act rarely has a single purpose or object and it is usually appropriate to consider the purpose or object of the particular provision in question, so long as it is read in its statutory context. The general purpose underlying s 15(3) and its predecessors is undoubtedly to limit amounts recoverable on account of attendant care services and, in particular, to limit recovery to more serious cases and reduce or preclude recovery in the case of lesser degrees of incapacity. 206 After the amendment made in 1993 to the Motor Accidents Act, a specific and express statement of objects was introduced to s 72 of the Motor Accidents Act by the Motor Accidents Amendment Act 1995 (NSW): see above at [111]. Relevantly, an object of the section was identified as being "to restrict access [to payments for domestic assistance] to claims where the need is long term": s 72(1)(b). In addition, a new general objects provision was included as s 2A. That section identified that one object of the Act was to abolish the scheme for compensation of victims of transport accidents and reinstate a "common law based scheme" requiring a finding of negligence for an award of damages: s 2A(1)(b). Section 2A(1) continued, identifying further objects, namely: "(c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and (ii) to introduce a stricter procedure for the making and assessment of claims for damages, and (iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability …." 207 None of these amendments, introducing statements of express objects, assists at the level of the specific ambiguities identified above. Nor can it be said that one construction of the section would promote the purposes of the Act, whereas the other would not: each would promote the purposes of the Act, though in differing manners and degrees. 208 A second relevant principle of interpretation allows for the use of extrinsic material if that material is "capable of assisting in the ascertainment of the meaning of the provision": Interpretation Act, s 34(1). Without considering the outer limits of s 34, it is clearly engaged where the provision in question is ambiguous in the senses already identified: see s 34(1)(b)(i). To the extent that reliance upon the extrinsic material is of assistance in seeking to identify the specific purpose underlying the relevant amendments in 1993, it supports the view, as much by omission as express statement, that the dual prohibition contained in s 72(2) and (4) prior to the amendments was not intended to be varied. Other aspects of ambiguity are not resolved by reference to the material, which is helpfully summarised by the President: at [118]. 209 The third principle upon which reliance has been placed in some of the authorities discussed below is that, in the absence of a clear expression of intention, it should be presumed that Parliament did not intend to remove common law rights: see Grice v State of Queensland [2005] QCA 272; [2006] 1 Qd R 222 at [25] (McMurdo P, McPherson and Williams JJA agreeing). That principle is said to be underpinned, or perhaps reinforced, by specific provisions, including s 72(7) of the Motor Accidents Act (introduced in 1993 and amended in 1995), which provides: "Except as provided by this section, nothing in this section affects any other law relating to the value of services of the kind referred to in subsection (1A)." 210 Provisions in the form of s 72(7) may constitute an expression of parliamentary intention not to interfere with common law rights otherwise than as the statute provides. That statement, however, provides little guidance of itself in relation to the proper construction of the operative provisions of the statute. Nevertheless, it should be noted that s 15(6) of the Civil Liability Act makes similar provision in the following terms: "(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services." 211 By way of contrast, and on the assumption that one effect of s 15(3) is to give protection to a defendant from liability, s 3A(1) states that a provision of the Civil Liability Act that gives protection from civil liability "does not limit the protection from liability given by another provision of this Act or by another Act or law". In addition, s 11A, which operates in relation to Part 2, including s 15, reiterates the fact that a court "cannot award damages … contrary to this Part": s 11A(3). These statutory reiterations of purpose tend to pull in different directions. 212 The critical question is whether the undoubted general law principle of statutory construction operates so as to prefer that construction which is less intrusive on general law rights to one which is more restrictive of those rights. 213 The principle is one of fundamental importance, with constitutional implications, because it regulates the manner in which the courts approach the statutes enacted by the legislature. For that reason, if no other, care must be taken in identifying the scope of the principle; there is a risk that, if its scope is extended too far at the periphery, the important operation of its core will be diminished. 214 An exposition of the general principle relied upon by the appellant may be found in Coco v The Queen (1994) 179 CLR 427, a case involving the power of a judge to authorise entry onto private premises to install a listening device. In the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ at 437, their Honours approved the simple statement of principle found in the judgment of Brennan J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 in the following terms: "Unless the Parliament makes unmistakeably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation." 215 The joint judgment in Coco expressed the principle in the following terms at 437: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." 216 When dealing with fundamental human rights and freedoms, constitutional questions gain added significance. As explained by Gleeson CJ (in dissent as to the outcome of the case) in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; at [20]: "A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament." 217 Not all rights which arise under the general law fall into that area of discourse. The right of one citizen to obtain compensation from another for an injury suffered by the negligence of the other is significantly removed from a right to remain at liberty, absent conviction and sentence by a court. It is also removed from the immunity from deliberate interference with one's physical integrity, and the concomitant right to protection from the state in respect of such interference: cf Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1. Thus in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290 at [27]-[28], McHugh J unequivocally affirmed that fundamental principles could only be overridden by clear and unambiguous language in a statute, but continued at [28] and [30]: "But care needs to be taken in declaring a principle to be fundamental. Furthermore, infringements of rights and departures from the general system of law are in a different category from fundamental principles. Some rights may be the corollaries of fundamental principles. In that sense, they are fundamental rights which are presumed to continue unless the legislative language is clear and unambiguous. But nearly every session of Parliament produces laws which infringe the existing rights of individuals. Given the frequency with which legislatures now amend or abolish rights or depart from the general system of law, it is difficult to accept that it is 'in the last degree improbable' that a legislature would intend to alter rights or depart from the general system of law unless it did so 'with irresistible clearness'. … Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context - which will include other provisions of the enactment, its history and the state of the law - as well as the purpose which the enactment seeks to achieve." 218 McHugh J reiterated these views in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269 in a context analogous to that which arises in the present case. The issue involved the construction of statutory provisions which could be construed as excluding the liability of an employer for psychiatric injury suffered by the dependants of an injured employee. His Honour noted that the "presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action": at [36]. 219 That view was affirmed by Gleeson CJ in Electrolux Home Products Pty Limited v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [19]: "Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. … However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation , Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, 'it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law'. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances." 220 Compensation for loss of the capacity to look after oneself as a result of the tortious conduct of another is undoubtedly an entitlement which arises under the general law. In many cases, in a practical sense, fulfilment of that entitlement will depend upon the defendant holding insurance. In relation to a range of conduct which may cause loss if negligently undertaken, the legislature has intervened to impose statutory requirements of insurance so that those injured are not left without effective redress. In other cases, insurance may be voluntary, but is widely held. In these circumstances, issues of public policy arise in relation to the extent to which an injured person can obtain compensation for injury, and the manner in which the costs are to be spread across the community. It is a matter of general knowledge that these concerns led to the establishment of a committee to review the law of negligence, which reported to the Commonwealth Minister for Revenue and the Assistant Treasurer, in September 2002. The question of capping liability for attendant care services was expressly addressed in that report. Thus, both the existence of an effective remedy and controls over the extent of compensation have long since moved beyond the scope of the general law unaffected by statute, and have become the specific attention of widespread statutory interventions. 221 In these circumstances, it is reasonable to conclude that Parliament addressed the relevant issues by imposing specific constraints on recovery, which was otherwise available under the general law. In the absence of constraint, general law principles continue to operate. If the factors involved in resolution of statutory ambiguity were indeed finely balanced, it would be appropriate to resolve the issue in favour of the continuation of general law entitlements. On the other hand, where consideration of the legislation, in a given statutory context, favours a construction involving greater rather than lesser constraint, there is no reason not to give effect to the construction so indicated.

Application of principles 222 Applying these principles to the three areas of ambiguity identified above, the following conclusions may be reached. 223 First, the six month duration condition should be treated as an initial qualifying period. That there was only one such period was apparent from the original form of s 72(2) of the Motor Accidents Act which provided that compensation could be awarded only for services provided "after the 6-month period". A precondition which provides for a required duration can only operate once. 224 Other questions arise, for example as to whether the period needs to be continuous and will be broken by a temporary hospitalisation or not, and as to whether a period is satisfied by the provision of some services, even if for less than six hours per week, or whether weeks involving less than six hours of care are not qualifying weeks. However, these questions (identified as the second level of uncertainty) need not be resolved because the duration condition was satisfied on the facts found by the trial judge over an unbroken period and at an intensity of greater than six hours per week. 225 The third question is whether there remain, in effect, two prohibitions, both of which must be overcome in order for compensation to be payable. As noted above, that was the original position under s 72 of the Motor Accidents Act as enacted in 1988. Putting to one side the phraseology adopted, there is no basis for supposing that the compression of the two prohibitions into one by the 1993 amendments was intended to make the prohibition operate only on a failure of the claimant to satisfy both preconditions. Read in isolation, the form of the current provision is ambiguous: the legislative history demonstrates that the preferable construction is that compensation is unavailable in a case where the claimant falls short either of the duration condition or the intensity condition. 226 The alternative construction would mean that a claimant whose need extended beyond six months would obtain full compensation for services required, although never satisfying the intensity requirement of six hours per week. Similarly, the claimant who had a short-term need for services at an intensity of six hours per week would recover, although the need did not last six months. There was nothing in the statutory material referred to by the President which suggested that, since 1993, short duration or low intensity were considered alternative, rather than cumulative, bases of disqualification. 227 There remains a question as to whether these conclusions should be varied in the light of authority.

Case-law 228 That each of the two bases of disqualification contained in s 72(2) and (4), prior to the 1993 amendments, were seen as separate and sufficient bases of disqualification was accepted by this Court in Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319 at [74] (Beazley JA, Spigelman CJ, Powell and Stein JJA agreeing). That view was accepted without dissent in Geaghan v D'Aubert [2002] NSWCA 260; 36 MVA 542 at [29] (Stein JA, Handley JA and Foster AJA agreeing). Indeed, that conclusion as to the operation of s 72 in its original form was a major stepping stone to the further conclusion accepted in Geaghan that the amendments did not give rise to a different result. Thus, Stein JA stated at [38]: "Given the extrinsic material referred to above and the legislative history of s 72 of the 1988 Act, together with the various object provisions in the Act, a purposive construction leads to the conclusion that s 72(2) requires both limbs (a) and (b) to be satisfied before compensation is payable under the provision. No compensation is to be awarded if less than 6 hours per week of service is provided or is to be provided. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months." 229 As the President has noted, the extracts relied upon as taken from the Minister's second reading speech, were not. Nevertheless, the critical statement appearing in the Attorney's speech in reply is consistent with that in fact found in the second reading speech and with the construction accepted by the Court: Parliamentary Debates (NSW), Legislative Council, 27 October 1993 at 4501 and 4497. Importantly, the case turned upon the six hour intensity condition, the trial judge having accepted that the services were needed for a period of 141 weeks, being well in excess of the six month duration condition. The need to satisfy both duration and intensity conditions was therefore essential for the result. 230 As is apparent from the foregoing history, New South Wales had legislated well before the publication in September 2002 of the Final Report of the Committee established by the Commonwealth on the Review of the Law of Negligence ("the 2002 Report"). The judgment in Geaghan was handed down on 13 August 2002, prior to the publication of the Report, which was forwarded to the Minister under a letter dated 30 September 2002. Understandably, Geaghan was not referred to in the 2002 Report, but recommendation 51, which sought to adopt the threshold contained in the New South Wales legislation - see par 13.85 - contained the following principle: "Damages for gratuitous services shall not be recoverable unless such services have been provided or are likely to be provided for more than six hours per week and for more than six consecutive months." 231 The threshold contained in the Personal Injuries Proceedings Act 2002 (Qld), s 54(2), as in force in 2002, mirrored the New South Wales provision. That provision was the subject of consideration in Grice, referred to above. The question which now arises was dealt with by McMurdo P at [9]-[26]. Her Honour referred to the second reading speech of the Attorney-General in introducing the Bill, which included the following statement (found at [12] in the judgment): "An award for gratuitous services can only be paid if the service is required for a minimum of six hours per week and for a minimum of six months." (Parliamentary Debates (Qld), Legislative Assembly, 18 June 2002, p 1849.) 232 In Grice, the Court concluded that disentitlement arose only if both the duration and intensity preconditions were not met, accepting the determination of the trial judge that that was the "ordinary literal meaning" of the provision: at [5] and [24]. Accordingly, McMurdo P concluded that it was "immediately obvious" that the Attorney-General's statement set out above was "inconsistent with the words subsequently enacted by Parliament": at [13]. Her Honour declined to follow Geaghan on four bases. The first was that the Motor Accidents Act applied "solely to claims for damages for injuries suffered in motor vehicle collisions whereas the Queensland Act did not apply to such injuries": at [23]. That was strictly true although its significance is not self-evident, but it did not take account of the fact that a similar provision was then found in the Civil Liability Act 2002 (NSW). 233 Secondly, her Honour noted that the Queensland and New South Wales statutes were not "part of a uniform national legislative scheme": at [23]. That also was literally true, but did not constitute a reason for not applying the same construction to materially identical language unless persuaded that this Court was clearly wrong in Geaghan, or that there was a sound basis for adopting a different construction of the linguistically identical provisions. 234 Thirdly, her Honour concluded that the statutory scheme in New South Wales differed, by reference to the statement of objects in the New South Wales Act, the historical form of s 72 as originally enacted and the extrinsic material which supported the construction adopted in New South Wales. The first two aspects were valid points of distinction. The third only marginally so, given that the extrinsic material in Queensland confirmed that the intended approach was that adopted in Geaghan. 235 Finally, her Honour sought to invoke the principle set out in Coco (and in Potter v Minahan (1908) 7 CLR 277 at 304 and Bropho v Western Australia (1990) 171 CLR 1 at 18) in support of the need for clear and unambiguous language to impair an otherwise unfettered common law right to damages for gratuitous services. For reasons set out above, that principle had muted (if any) consequences in the present circumstances. 236 Both McMurdo P and Williams JA treated the remarks of the Attorney in the second reading speech as inconsistent with the language of the statute, without acknowledging the possibility of ambiguity. As explained by Williams JA: "[38] One issue is whether or not the construction suggested in the Second Reading Speech should overrule the literal construction of the statutory provision in question. … [40] Were a statutory provision so limiting the recovery of damages has a clear literal meaning, that meaning should be preferred to an arguably alternative construction supported by the Second Reading Speech." 237 Unless the legislation is clearly distinguishable, it is unfortunate that different constructions should be adopted in this State and in Queensland. It is at least highly unlikely that the Queensland legislation adopted virtually identical language without the drafter intending to give similar effect to the language. True it was that the legislation was introduced prior to the decision in Geaghan, but it does not follow that the courts of one state should not follow an authoritative interpretation adopted in the other even though adopted after the enactment of the legislation in the latter state. That course can only be justified if there are legitimate points of distinction to be drawn between the provisions or the judgments. The two points of distinction which were undoubtedly valid were the earlier history of s 72 of the Motor Accidents Act and the inclusion of stated objects in the New South Wales Act. For reasons already given, the statement of objects was, in my view, of limited assistance to the resolution of the relevant ambiguities. Accepting that the history of s 72 was a relevant point of distinction, it would follow that there is no obligation on this Court to follow the decision of the Queensland Court of Appeal in Grice. If other points of distinction were (contrary to the views just expressed) valid, that conclusion would be strengthened and the apparent disparity in laws would be one which is justifiable, despite the similarity in language of the respective statutes. The different result in Grice would not then support reconsideration of Geaghan. 238 Any difference of approach is now no longer relevant, the Queensland Act having been amended and replaced by s 59(1)(c) of the Civil Liability Act 2003 (Qld) which adopted the construction preferred in Geaghan: see Grice at [22]. 239 The facts in Grice involved the claimant receiving gratuitous services for more than six hours per week for nine weeks, but at the intensity of only four hours per week thereafter, indefinitely. It appears to be implicit in the judgment that the duration provision could be satisfied by any level of intensity, including one below six hours per week. Once it was so satisfied, all constraints were removed. 240 An equivalent provision has also been adopted in Victoria: see Wrongs Act 1958 (Vic), s 28IA. The section was included in response to the recommendations of the 2002 Report. The issue of construction came before the Court of Appeal in Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority [2007] VSCA 210. The principal judgment of the Court was delivered by Chernov JA, with whom Maxwell ACJ relevantly agreed. Neave JA also agreed with Chernov JA but added some brief comments on the construction of s 28IA at [46]-[50]. It is convenient to deal first with her Honour's brief comments. Her Honour commenced with the proposition that the "plain words of the section prohibit the award of damages for gratuitous attendant care services only if both conditions in s 28IA are satisfied - that is if the plaintiff requires services for less than 6 hours per week and for less than 6 months": at [48]. Her Honour concluded that the words of the section "do not support a construction of the section which requires the word 'and' to be read as 'or'": at [50]. 241 Chernov JA also identified the issue (as apparently did counsel for Alcoa) as whether or not the section should be given "a literal meaning": at [34]. His Honour noted the submission by the respondent that there was no warrant for reading sub-s (2) "disjunctively": at [33]. 242 For reasons set out above, there is at least one ambiguity in the provision which is not resolved by a "literal" meaning, nor is the alternative to read the paragraphs disjunctively as if joined by "or". Nevertheless, Chernov JA accepted that the "ordinary natural meaning of the words of the section" indicated there was no preclusion of compensation unless both matters were satisfied: at [35]. That issue was squarely raised on the facts. The need for services was held to be one which would continue "indefinitely" but at the intensity of no more than one hour per week: at [30]. 243 The Court followed Grice and distinguished Geaghan on the same bases as those espoused in Grice: see [36]-[38]. 244 The Court dealt in a similar manner with the contrary views expressed in the Victorian Parliament by the Premier in his second reading speech. As explained at [41], the Premier had stated: "In line with recommendations of the Ipp report, the bill restricts access to damages for gratuitous attendant care to those cases where … the care is required for at least 6 hours a week for at least six months. … This provision mirrors those being introduced in most states." (Parliamentary Debates (Vic), Legislative Assembly, 21 May 2003, p 1786: the reference to "the Ipp Report" is to the 2002 Report, identified by reference to its chair, Ipp JA.) 245 Chernov JA made the following comments in respect of that speech: "41. There are a number of obvious errors in that speech to which I will refer later. But first is it necessary to mention the relevant aspects of the Ipp Report which, in general terms, was concerned with the just and practical way of limiting the quantum of awards of damages for negligently caused personal injuries or deaths. [The recommendations were then adverted to.] 42. Thus, what the Ipp Report relevantly recommended was that a claimant should not be entitled to damages for gratuitous services unless it was established that they were of a kind that satisfied both requirements. Such a recommendation is the opposite of what the Victorian Parliament ultimately enacted …. That the Premier mis-described the operation of the provision and erroneously assumed that it was reflecting the abovementioned recommendation in the Ipp Report is not to the point." 246 As already noted, the 2002 Report both recommended the adoption of the New South Wales threshold provision and, in recommendation 51, paraphrased the effect of the provision. Although Geaghan had not been decided, the paraphrase accurately reflected the proper understanding of the provision as established by this Court in 2002. The fact that the Victorian Parliament adopted the language of the New South Wales Act after the decision in Geaghan might have provided a basis for concluding that, in the context of legislation which was then intended to be adopted nationally, the interpretation given in the 2002 Report (and by this Court) should have been accepted. The fact that it was not depended to a large extent on the Court declining to see any degree of ambiguity in the language of the provision. For reasons set out above, in my view there is a significant degree of ambiguity and, in particular, in relation to the issue regarding the operation of the threshold conditions. Nevertheless, it is sufficient for present purposes to note that no doubt was cast in Alcoa on the correctness of Geaghan in construing the New South Wales provision. 247 In Roads and Traffic Authority v McGregor [2005] NSWCA 388; 44 MVR 261 a question arose as to whether the intensity condition operated on a continuous basis. The duration provision had been satisfied prior to the trial over a period of some 3.5 years during the whole of which the intensity condition had also been satisfied. However, in relation to future care, the trial judge had allowed an amount calculated at the rate of four hours per week. This Court held that no amount could be allowed for the future, the intensity condition in effect providing an ongoing precondition to recovery: see M W Campbell AJA at [160]-[174] (McColl JA and Bell J agreeing). That approach is in accordance with the analysis set out above and should be followed.

Departing from earlier authority 248 Although the Court empanelled a five judge bench to consider whether it should overrule its earlier decision in Geaghan, little attention was paid in submissions as to the circumstances in which this Court might properly overrule its earlier decision. In general terms, the appropriate principles are those stated in Nguyen v Nguyen (1989-1990) 169 CLR 245 at 269 in the joint judgment of Dawson, Toohey and McHugh JJ. Accepting that appeal courts of the Supreme Courts and of the Federal Court should not consider themselves strictly bound by their own previous decisions, their Honours nevertheless stated: "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law." 249 Further, as noted by Gleeson CJ in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-100, there is a tension between the "principle of restraint embodied in the axiom stare decisis" and the important principle that the Court "should give effect to the intention of Parliament". His Honour concluded (at 100G): "However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decision[s] it must entertain a strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice." 250 Other factors are relevant to the question, including those discussed in John v Federal Commissioner of Taxation (1988-1989) 166 CLR 417 and by Aickin J in Queensland v The Commonwealth (1977) 139 CLR 585 at 621. Most are not relevant in the present circumstances. However, one potentially relevant circumstance would be a decision of the High Court which had cast doubt upon, without overruling, the earlier decision of the intermediate court of appeal; another might be where another intermediate court of appeal had cast doubt upon the decision or had refused to follow it as "clearly wrong". The latter proposition flows from the comment in the joint judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]: "Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law." 251 That principle would no doubt apply, though with less force, in relation to common statutory language albeit found in legislation which was not uniform across the country: see discussion (obiter) in Tillman v Attorney-General (NSW) [2007] NSWCA 327 at [19]-[46] (Mason P), [106]-[110] (Giles and Ipp JJA). 252 A further factor which will militate against reconsidering an earlier decision is that legislation has been re-enacted on the basis of that decision. As already explained, s 72 of the Motor Accidents Act has been given a broader operation, as a result of its incorporation into later statutes, but prior to the decision of this Court in Geaghan. An additional statutory amendment now requires consideration. 253 In Sullivan v Gordon, to which reference has been made above, the claim for compensation was not in respect of care required by the appellant, but care required by her children for services which she was unable to provide. The decision upholding such a claim was reversed by the High Court in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1. However, the effect of Sullivan v Gordon was restored by the enactment of s 15B of the Civil Liability Act, which commenced on 20 June 2006. In Sullivan v Gordon, a decision involving a five judge Court, Beazley JA (with whom other members of the Court agreed) treated the claim for assistance in caring for children as part of a claim under Griffiths v Kerkemeyer (1976-1977) 139 CLR 161, which would constitute a claim for attendant care services under the statutory provisions, relevantly at that time s 72 of the Motor Accidents Act. The inclusion of s 15B did not have the effect of defining attendant care services in s 15(1) to include such a claim, but rather made separate provision for such a claim. Nevertheless, in doing so, it adopted a similar threshold to that found in s 15(3), but adopted the construction approved in Geaghan in unambiguous language. Thus, s 15B(2) provided (relevantly): "Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: … (c) there is a reasonable expectation that, but for the injury to which the damages related, 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…." 254 There are a number of respects in which s 15B is not a mirror image of s 15: see, eg, s 15B(3). Nevertheless, it would be anomalous if a different operation were given to the duration condition and the intensity condition under s 15B(2)(c), as opposed to those found in s 15(3). In other words, it appears that the Parliament has enacted subsequent legislation, based on the approach in Geaghan, so that the abandonment or overruling of Geaghan would cause a statutory anomaly. Such an outcome provides a significant reason for not overruling Geaghan, were that decision otherwise thought appropriate.

Conclusions 255 As a matter of construction, Geaghan was correct in its conclusions with respect to the operation of s 72(2) of the Motor Accidents Act. While it is true that Geaghan was decided after that provision was included in relevantly identical terms in the Motor Accidents Compensation Act and the Civil Liability Act, it is appropriate to construe all three pieces of legislation in the same way, there being no basis for distinguishing one provision from another. Accordingly, the approach adopted in Geaghan should be applied to s 15(3) of the Civil Liability Act. 256 Whether or not the decisions in Grice and Alcoa were correct in relation to the respective legislation in Queensland and Victoria is not presently in issue. It is sufficient to say that Geaghan was distinguished in each and that neither cast doubt upon the correctness of that decision. 257 Far from being compelled to the conclusion that the decision in Geaghan was clearly wrong, it was, in my view, correct. It may be that an intermediate court of appeal will more willingly review an earlier decision of its own where that decision has not been followed by other intermediate courts of appeal construing similar or identical legislation. Nevertheless, neither the Queensland nor the Victorian Court of Appeal, in reviewing Geaghan, thought it to be wrong in relation to the New South Wales legislation. No question of inconsistency arises in relation to Queensland law, which has been amended so that it is now in conformity with New South Wales law as applied in Geaghan. A discrepancy arises with respect to the Victorian interpretation of its Wrongs Act, but that is not a reason for this Court to abandon its earlier position, given the willingness of the Victorian Court of Appeal to distinguish Geaghan. 258 In my view, to the extent that the trial judge applied Geaghan her Honour was correct and the appeal with respect to the assessment of compensation for attendant care services should be dismissed. **********

17/10/2008 - incorrect figures - Paragraph(s) Coversheet Order 2, Headnote Order 2, [44], [190] Order 2 28/04/2009 - par [2] reference [118] should be [88], par [117] paragraph [95] should be par [115]par [128] paragraph [91] shoudlb e par [111] - Paragraph(s) [2], [117], [128]

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