HILL v FORRESTER

Court of Appeal (NSW)|2010-11-10|Before: Tobias JA

CITATION: HILL v FORRESTER [2010] NSWCA 170 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Tobias JA at 1; Handley AJA at 17; Sackville AJA at 65

(1) Appeal allowed. (2) The judgment of the District Court (including the order as to costs) set aside. DECISION: (3) In lieu thereof, substitute judgment for the plaintiff (respondent) in the sum of $34,409.00. (4) The defendant (appellant) pay the plaintiff's (respondent) costs of the District Court proceedings on the ordinary basis. (5) The respondent pay 50% of the appellant's costs of the appeal (including the application for leave to appeal). (6) The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951.

CATCHWORDS: DAMAGES - personal injuries - gratuitous care - threshold of 6 continuous months care - satisfaction - whether plaintiff entitled to damages for earlier periods of care for less than six months. - CIVIL LIABILITY ACT - gratuitous care - s 15(3) - construction.

Civil Liability Legislation Amendment Act 2008 Civil Liability Act, s 15(3) LEGISLATION CITED: Interpretation Act 1987 Legal Profession Act 2004, s 340 Motor Accidents Act 1988

Allianz Australia Insurance Ltd v Roger Ward & Ors (6 July 2010) [22]-[33] Blue Metal Industries Ltd v Dilley [19709] AC 827, Cai v Zheng [2009] NSWCA 13 Geaghan v D'Aubert [2002] NSWCA 260 CASES CITED: Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 Legal Profession Act 2004 Nicholson v Nicholson (1994) 35 NSWLR 308 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 RTA v McGregor [2005] NSWCA 388

PARTIES: Simon Hill - Appellant Sidney Forrester - Respondent

COUNSEL: D Robertson & AB Douglas-Baker - Appellant M Daly - Respondent

SOLICITORS: Osborne Lawyers - Appellant Maxwell Berghouse & Ives - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/00298371

TOBIAS JA HANDLEY AJA SACKVILLE AJA

Wednesday 10 November 2010 HILL v FORRESTER Catchwords

DAMAGES - personal injuries - gratuitous care - threshold of 6 continuous months care - satisfaction - whether plaintiff entitled to damages for earlier periods of care for less than six months.

CIVIL LIABILITY ACT - gratuitous care - s 15(3) - construction. Headnote

The respondent was awarded damages for personal injuries caused by the appellant's dog. The award included damages for gratuitous care for three periods:

(ii) 27/10/05 to 11/11/05 15 days for 35hrs week (ii) 29/12/05 to 31/12/06 52 weeks for between 10 and 24 hours a week, and

(iv) From 1/1/07 to trial and continuing for services for less than six hours a week.

The Court granted leave to appeal in respect of awards (1), (2), and (4). Section 15(3) of the Civil Liability Act 2002, as amended by the Civil Liability Legislation Amendment Act 2008, following the decision in Harrison v Mellum [2008] NSWCA 67, 72 NSWLR 380, provided:

"3. Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least six hours per week, and (b) for a period of at least six consecutive months."

HELD: By the Court, allowing the appeal in part: (1) That the intensity threshold of at least six hours per week in s 15(3)(a) is a continuing requirement and award (4) must be set aside; (2) By majority, that satisfaction of the duration requirement in s 15(3)(b) in the third period enabled the plaintiff to recover damages for gratuitous care provided during the earlier broken periods of less than six months; (3) The section required urgent legislative attention. Orders

(2) The judgment of the District Court (including the order as to costs) set aside;

(3) In lieu thereof, substitute judgment for the plaintiff (respondent) in the sum of $34,409.00 with effect from 13 May 2009;

(4) The defendant (appellant) pay the plaintiff's (respondent) costs of the District Court proceedings on the ordinary basis;

(5) The respondent pay 50% of the appellant's costs of the appeal (including the application for leave to appeal).

(6) The respondent to have a certificate under the Suitors Fund Act 1951.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/00298371

TOBIAS JA HANDLEY AJA SACKVILLE AJA

Wednesday 10 November 2010 HILL v FORRESTER Judgment 1 TOBIAS JA: I have had the benefit of reading in draft the separate judgments of Handley AJA and Sackville AJA. It is common ground in both judgments that the effect of s 15(3)(a) of the Civil Liability Act 2002 (the Act) is that damages can only be awarded to a claimant for gratuitous attendant care services (the services) if those services have been provided in the past or will be provided in the future for at least 6 hours per week (the minimum rate). I agree with both their Honours that that is so. 2 However, their Honours differ with respect to the effect of s 15(3)(b). At [45] of his reasons, Handley AJA finds that the duration requirement encapsulated in that subsection does not operate retrospectively to allow damages to be awarded for the provisions of the services during closed periods of less than 6 consecutive months which pre-date a period which complies with that requirement. On the other hand, Sackville AJA takes a contrary view at [111] and [112] of his reasons. Subject to one matter to which I shall refer below, I agree with Sackville AJA that the duration requirement can operate retrospectively in the manner his Honour describes for the reasons he articulates. 3 At [44] of his reasons Handley AJA notes that the Court does not have to decide on the facts of this case whether the subsection imposes a once and for all requirement or a continuing one. However, at [100] to [105] of his reasons, Sackville AJA concludes that the duration requirement need only be satisfied once so that damages may be awarded for periods of less than 6 consecutive months at the minimum rate both before and after the duration requirement has been satisfied. Accordingly, that requirement is a threshold rather than a continuing requirement. On this point I also respectfully agree with Sackville AJA. 4 A further issue arises out of the construction of s 15(3)(b) adopted by Sackville AJA although it also is not relevant on the facts of the present case. It arises as a consequence of the holding by Sackville AJA that the duration requirement need only be satisfied once. 5 The issue is discussed by Sackville AJA at [106]-[108] of his reasons and relates to whether, in order to satisfy s 15(3)(b), it is necessary that the threshold period of 6 consecutive months be one in which the minimum rate is also required to be satisfied. 6 In the paragraphs of his reasons referred to above, his Honour expresses the tentative view that because the minimum rate and duration requirements are independent of each other, in the sense that each must be separately satisfied to entitle a claimant to damages for the services, it follows that they need not be satisfied concurrently. Accordingly, his Honour considers that the better view is that the duration requirement may be satisfied by a period of at least 6 consecutive months in which the services are provided irrespective of whether the minimum rate requirement is also satisfied during that period: see also the words in parenthesis in the penultimate sentence of [112] of his Honour's reasons. 7 This approach of his Honour follows, I think, from his comments at [95] of his reasons. However, as he acknowledges at [108], it appears to be inconsistent with the dicta of this Court in Pacific Steel Constructions to which he there makes reference: cf. Harrison v Melhem at [197] per Basten JA. 8 I agree with Sackville AJA at [108] that the language of s 15(3) is not easy to interpret at least with respect to the issue under discussion. My own tentative preference is that the duration requirement, although a threshold and not a continuing requirement, can only be satisfied if the minimum rate requirement is also satisfied for the qualifying 6 consecutive month period. This is because I accept, as do Handley AJA and Sackville AJA, that the minimum rate requirement is continuous. 9 It would be odd, so it seems to me, if the duration requirement could be satisfied by the provision of the services during the relevant 6 month period for, say, only 10 minutes per week. I see nothing necessarily inconsistent with the proposition that although the two requirements are independent of each other in the sense that one is continuous and the other is not, nevertheless the duration requirement can only be satisfied if the minimum rate requirement is also satisfied at the same time so that both requirements are to operate concurrently, albeit only for one 6 consecutive month period. 10 In other words, the requirements operate independently in the sense that once the duration requirement is satisfied for one period of at least 6 consecutive months, its operation is spent whilst the minimum rate requirement continues to operate as a qualifying condition for the payment of damages for the services. That independence is not lost if the duration requirement can only be satisfied if the intensity requirement is also satisfied for the one qualifying period. 11 As in Pacific Steel Constructions and, as Sackville AJA acknowledges at the outset of [106] of his reasons, the issue in question does not arise for determination on the facts of the present case. As his Honour's view is not in accord with the dicta of an unanimous Court in Pacific Steel Constructions, and as Handley AJA in his reasons in the present case applies that dicta, I do not think that I should express a concluded view on an issue which will inevitably require further consideration in a case where it arises directly for decision as Sackville AJA notes in the last sentence of [44] of his reasons. This is particularly so due to the differences of opinion on the issue that presently prevail as a consequence whereof it may need to be determined by a Court comprising a five judge bench. 12 However, the issue raised is obviously of general importance. The resolution of the difference of opinion in the present case between Handley AJA on the one hand and Sackville AJA and myself on the other with respect to the proper construction and effect of s 15(3)(b) to the facts of the present case, when combined with the issue discussed above (which it is not necessary to resolve on those facts) cries out for the intervention of the legislature as a matter of some urgency. 13 Being an issue which arises for consideration by personal injury lawyers on a daily basis, its authoritative resolution should not be required to await a further decision of this Court with its attendant delays given the uncertainty exemplified by the undoubted fact that the present drafting of s 15(3)(b) is still open to differing interpretations. 14 Finally, there is one further aspect of s 15(3)(b) which in my view requires legislative clarification, although not raised for consideration in the present case. It is encapsulated in one of the questions posed by Sackville AJA at [73(ii)] of his reasons, namely, if the duration requirement is a continuing requirement, can it be satisfied if a 6 month period is interrupted by reason of a period in respite care or in hospital? If it is a threshold requirement, the condition that it comprise at least 6 consecutive months would necessarily deny the possibility of the requirement being satisfied if interrupted for the purposes indicated. This is so even if the necessity for the claimant to be hospitalised is due solely to the injuries caused by the defendant's negligent conduct. This issue was flagged by Basten JA in Harrison v Melhem at [224] but not decided. 15 As Handley AJA notes at [21] of his reasons, this Court held in Nicholson v Nicholson that damages cannot be awarded for gratuitous care during periods of full-time treatment in hospital. The present case exemplifies this problem as the three closed periods of 27 days, 15 days and 9 weeks referred to at [20] of Handley AJA's reasons were interrupted by the necessity for the respondent to be hospitalised due to his injuries. Those closed periods, on Handley AJA's approach, could not count towards satisfaction of the duration requirement. In my view the consequent necessity for the duration requirement, whether it be a threshold or a continuing requirement, to be uninterrupted for 6 consecutive months is capable of causing injustice to a claimant who is required during the relevant period to be hospitalised due to his or her injuries sustained as a consequence of the defendant's negligence. 16 The same comments apply to where the claimant is required to enter a period of institutionalised care so as to provide respite to the claimant's carer who is providing the services. These are factors which, in my opinion, also require urgent legislative consideration. 17 HANDLEY AJA: This appeal, by leave, concerns the construction of s 15(3) of the Civil Liability Act in its current form dating from 2008 which restricts awards of damages for gratuitous care. The section provides: "(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 18 The section in its present form was inserted by the Civil Liability Legislation Amendment Act 2008 with retrospective effect (Schedule 1 cl 32) following the decision of this Court in Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 on 29 May 2008. 19 Section 15(3) as originally enacted in 2002 provided: "(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months." 20 The Trial Judge awarded damages for gratuitous care as follows:

"2 15/9/05 to 12/10/05 full time 27 days 35hrs week $3,664.91

3 27/10/05 to 11/11/05 full time 15 days 35hrs week $2,035.25

4 29/12/05 - 9 weeks 24 hrs week 63 days x 21.60/hr x 24 hrs $4,665.60

5 43 weeks thereafter 10 hrs week 43 weeks x 21.85/hr x 10 hrs $9,395.50

7 future care $4,000.00" 21 Leave was granted to challenge awards 2, 3, 6 and 7. Awards 2 and 3 were for care at the required rate of 6 hours a week or more (the minimum rate) but for short periods interrupted and followed by periods of full-time treatment in hospital. This Court held in Nicholson v Nicholson (1994) 35 NSWLR 308 that damages cannot be awarded for gratuitous care during periods of full-time treatment in hospital. 22 The requirements that care be provided at the minimum rate for a minimum period of 6 consecutive months (the minimum period) were first satisfied in this case in the period from 29 December 2005 to 1 January 2007. The awards of $4000 for care after 1 January 2007 were for services provided or to be provided thereafter at less than the minimum rate. 23 In Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 the majority comprising Spigelman CJ, Mason P, Beazley and Giles JJA held that "and" at the end of para (a) in the original section was conjunctive and that the prohibition ("no damages may be awarded") only applied if both thresholds of s 15(3) were satisfied (ibid at [157(i)]). Unless both were satisfied damages could be awarded without restriction (ibid at [20], [181]). 24 Thus the section in its original form was held to provide for an "all or nothing" operation and if both paragraphs applied no damages could be awarded for gratuitous care (Para [157(ix)]). Mason P held that subs (3) "does not speak in terms of no damages being awarded for any period in which the 6-hours/6-month criteria are not met" ([136] and it did not have a distributive operation [139]. He also held that the minimum period in para (b) must "run together" and the paragraph could not be satisfied by aggregating a series of lesser periods [181]. 25 The amending Act restructured the section. The former prohibition against an award of damages if two conditions were satisfied allowed for recovery in all other cases such as for 1 hour's care a week for 7 months. This was changed. The new provision prohibits the award of damages "unless" both conditions are satisfied. The conjunctive "and" now works against plaintiffs. 26 The new para (a) prevents damages being awarded for services unless they are provided or to be provided at the minimum rate. It is unambiguous and services provided at less than the minimum rate cannot be compensated. 27 Unfortunately para (b) is ambiguous. The appellant argued for a distributive construction which would bar awards except for periods of 6 consecutive months or more. The respondent argued that the paragraph had a once and for all operation which allowed multiple awards at or above the minimum rate once services had been provided for the minimum period. 28 The effect of the old para (b) and its equivalent once services have been provided at the minimum rate for the minimum period had not arisen for decision prior to Harrison v Melhem.

29 In Geaghan v D'Aubert [2002] NSWCA 260, which involved s 72(2) of the Motor Accidents Act 1988 as amended in 1993, the plaintiff received five hours' care a week for 141 weeks and was likely to receive care at that rate for a further four years. The claim failed because the minimum rate threshold was not satisfied. The effect of the minimum period threshold did not arise. 30 In RTA v McGregor [2005] NSWCA 388 the plaintiff had care at more than the minimum rate for 3 1/2 years before the trial, less a seven-month break for the treatment of an unrelated condition, and he would receive care for four hours a week in the future. The claim for the future was disallowed. The Court did not have to consider the effect of the minimum period threshold and did not do so. 31 The Court has been referred to the Second Reading speech of the Attorney-General in support of the Bill for the Civil Liability Legislation Amendment Act 2008. The Attorney told the Council on 22 October 2008 (Hansard p 1036 & foll): "These amendments are needed simply to correct a drafting problem identified recently by the Court of Appeal and do not make it harder to claim compensation. However, if the changes are not made damages awards are likely to increase and, with it, insurance premiums. The New South Wales Court of Appeal revealed the problem in its decision in the case of Harrison v Melhem in May this year. For many years, litigants and the courts have assumed that there was a two-pronged test for gratuitous care damages - that is, that care must be provided for at least six hours a week and for a least six consecutive months. Although that is what was intended, the Court of Appeal has ruled that is not what the section says. The Court found that compensation could be claimed even if only one of the thresholds was met. Although the drafting problem seems small, the impact on insurance premiums could be significant. The changes will ensure the law does what everyone has always assumed it was supposed to do. It will ensure that claimants must demonstrate that the gratuitous care they have received has been provided for … six hours per week for at least six consecutive months." 32 The decisions in which the Courts assumed that there was a two-pronged test for gratuitous care damages were Geaghan v D'Aubert and RTA v McGregor (above). 33 The new s 15(3) has imposed a minimum rate requirement in all cases and awards 6 and 7 must be set aside. 34 There can be no doubt that a two-pronged test was reinstated by the 2008 Act but it is necessary to determine the effect of the second prong in para (b). 35 This question has been referred to in dicta in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 where Allsop P, Beazley and Giles JJA said in a joint judgment [163]: "Section 15(3) as amended by the 2008 Amending Act had the effect of reinstating this Court's decision in Geaghan v D'Aubert … The effect of Geaghan v D'Aubert is that for a plaintiff to obtain damages for future attendant care services under subs (3) both limbs of the provision had to be satisfied. That is, the services had to have been provided for at least 6 hours per week and 6 months concurrently, before damages are recoverable with respect to the period in question." 36 The effect of the dictum is that damages cannot be awarded unless both conditions are satisfied "with respect to the period in question". 37 In Cai v Zheng [2009] NSWCA 13 at [63] Hoeben J, with the concurrence of Giles and Basten JJA said: "The effect of Geaghan was that for a plaintiff to obtain damages for future attendant care services under the MAC Act, both limbs of s 128(3) [in the same terms as the original s 15(3)] had to be satisfied, ie such services had to be provided for both at least 6 hours per week and 6 months concurrently before damages were recoverable with respect to the period in question." 38 This Court was also referred to the decision of Hidden J in Allianz Australia Insurance Ltd v Roger Ward & Ors (6 July 2010) [22]-[33] where again the facts did not require the Court to consider the retrospective and prospective effect of care being provided at the minimum rate for the minimum period. 39 In the present case the Court has to decide whether the satisfaction of the minimum period requirement in para (b) entitled the respondent to damages for the earlier broken periods when care was provided at more than the minimum rate for less than the minimum period. 40 Paragraph (b) has some retrospective effect because once care has been provided for the minimum period at the minimum rate damages can be awarded from the beginning of that period, as well as for any additional period during which care is continuously provided at or above the minimum rate. 41 Dicta in the Queensland Court of Appeal on comparable legislation support the view that satisfaction of the minimum period threshold otherwise has only prospective affect. 42 In Kriz v King [2006] QCA 351, [2007] 1 Qd R 327 McMurdo P, who gave the principal judgment, said [14] that once the minimum period threshold was met "damages for gratuitous services can be awarded for subsequent services provided for lesser periods". 43 She repeated this at [18] saying that "once that threshold is met then damages for gratuitous services can be awarded even if the services thereafter are provided or are to be provided for less than six hours per week". 44 The Court does not have to decide whether para (b) imposes a once and for all requirement, or a continuing one. If the former then, once both conditions are satisfied damages can be awarded for care provided at the minimum rate for periods of less than 6 consecutive months. If the latter damages could only be awarded for other periods of not less than 6 consecutive months. 45 In my opinion subs 3(b) means that no damages may be awarded for gratuitous care services already provided unless and until "the services" were provided for at least the minimum consecutive period. I cannot find in the statutory language anything which indicates that satisfaction of the minimum period threshold operates retrospectively to allow damages to be awarded for closed periods in the past when services were provided for less than six consecutive months. Whether satisfaction of the minimum period threshold allows damages to be awarded for care provided thereafter for broken periods of less than six consecutive months can be left for decision when that question arises. 46 The use of the singular "a period" in para (b) does not disclose a contrary intention which excludes the plural construction implied by s 8(b) of the Interpretation Act 1987. The plural is included unless there is reason to suppose that the Parliament, if offered that amendment to the bill, would have rejected it: Blue Metal Industries Ltd v Dilley [1970] AC 827, 846-7. 47 There is no reason to suppose that such an amendment would have been rejected. Damages for gratuitous care will frequently be awarded for at least two periods, the past and the future. 48 The minimum period and minimum rate thresholds rate had not both been met prior to the closed periods of 27 and 15 days. 49 The question whether damages can be awarded for a closed period that satisfied the minimum rate requirement before the minimum period requirement was satisfied must be answered as at the end of that closed period. 50 The relevant services for which damages are sought are those received during those closed periods. Whatever happens thereafter those services were not provided in or after a period of at least 6 consecutive months of care at the minimum rate. 51 In my judgment therefore awards 2 and 3 for care during the broken periods of 27 and 15 days must be disallowed because the minimum period condition was not satisfied before or during the provision of that care. Awards 6 and 7 must also be disallowed because the minimum rate condition was not satisfied. These conclusions are supported by the dicta of this Court referred to above [19], [21]. 52 The appeal must therefore be allowed and the judgment for the respondent in the District Court should be reduced. The Judge held that the respondent had been guilty of contributory negligence which he assessed at 20%. The Judge's assessment of $51,011.26 must be reduced by $13,700.16 and the judgment reduced by 80% of this amount or $10,960.12 to $29,848.87. 53 The trial Judge ordered the appellant to pay the respondent's costs on the ordinary basis up to the end of the first day of the trial and thereafter on an indemnity basis pursuant to s 340(1) of the Legal Profession Act 2004 (the 2004 Act). 54 If the appeal on damages succeeded the appellant sought consequential relief in respect of the order for indemnity costs. 55 Section 338(1), (4)(b) and (c) of the 2004 Act limited the legal costs recoverable by the plaintiff to $10,000. 56 However s 340(1) provides: "If a party to a claim for personal injury damages makes a reasonable offer of compromise on the claim that is not accepted, this Division does not prevent the awarding of costs against another party to be assessed on an indemnity basis in respect of legal services provided after the offer is made." 57 Subsection (2) provides that an offer of compromise is reasonable if the Court makes an order that is no less favourable to a party than the offer. 58 The respondent's offer, which the appellant refused, was $40,000 inclusive of costs. The offer inclusive of costs did not comply with UCPR Pt 20 r 20.26(2) but that rule cannot affect the operation of s 340(2). 59 UCPR Pt 42.16(1) provides that interest and costs for the period after an offer of compromise is made are to be ignored when comparing offers of compromise with the judgment or orders in the proceedings but again that rule cannot affect the operation of s 340(2). 60 The statutory cap also applies to solicitor and client costs but s 339 permits contracting out by a costs agreement. There is no evidence of such an agreement and the Court does not have to determine whether solicitor and client costs incurred after an offer are relevant when considering whether the order is no less favourable. 61 The Judge said (red 49): "… while this is an unsatisfactory means of conveyance of an offer I am told and accept that the maximum costs that could have been awarded … for a matter of this size would be the sum of $10,000. Hence the offer would be somewhere between $31,000 to $35,000 plus costs. The plaintiff has received a verdict in excess of that, obviously the plaintiff has a more favourable result than that which the plaintiff was prepared to compromise the action for." 62 The Court is entitled to act on this finding and it follows that the respondent's judgment for $29,848.87 plus costs is not " no less favourable" than his offer understood as one for $31,000 plus costs. The order for indemnity costs made by the Judge must therefore be set aside. 63 I agree with the majority that urgent legislative attention is required to address the ambiguities in the section and clarify the intention of Parliament. 64 I would make the following orders:

(3) In lieu thereof substitute judgment for the plaintiff for $29,848.87 with costs on the ordinary basis with effect from 13 May 2009.

(4) The respondent to have a certificate under the Suitors Fund Act. 65 SACKVILLE AJA: Handley AJA has set out the findings of the primary Judge which raise a question of construction of s 15(3) of the Civil Liability Act 2002 ("CL Act"), as amended by the Civil Liability Legislation Amendment Act 2008 ("2008 Act"). 66 Section 15 of the CL Act relevantly provides as follows: "(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 unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months."

The Pre-2008 Law 67 Handley AJA has set out the terms of s 15(3) of the CL Act as originally enacted in 2002 [19]. In Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380, a five member Court held by majority (at [181], per Mason P, with whom Spigelman CJ, Beazley and Giles JJA agreed on this point, Basten JA dissenting) that the unamended s 15(3), on its proper construction, precluded an "award of Griffiths v Kerkemeyer [1977] 139 CLR 161] 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 (that is, more than six hours per week) … [T]he 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 s 15." (Emphasis in original.) 68 Harrison v Melhem overruled two earlier decisions of the Court of Appeal, namely Geaghan v D'Aubert [2002] NSWCA 260; 36 MVR 542 and Roads and Traffic Authority v McGregor [2005] NSWCA 388; 44 MVR 261. As Mason P explained in Harrison v Melhem (at [99]), it was held in each of these decisions that the unamended s 15(3) required "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." (Emphasis in original.)

The decision in Harrison v Melhem made it easier for a plaintiff to recover compensation for " gratuitous attendant care services " than the more restrictive interpretation that had been adopted by the earlier decisions. A plaintiff, in order to recover compensation for gratuitous services, had to meet only one of the two statutory criteria.

The Amending Enactment 69 In his Second Reading Speech in relation to the Civil Liability Legislation Amendment Bill 2008, the Attorney-General explained the purpose underlying the amendments to s 15(3) of the CL Act as follows "Gratuitous care damages - sometimes referred to as Griffiths v Kerkemeyer damages - include, for example, unpaid care by an injured worker's relative. These amendments are needed simply to correct a drafting problem identified recently by the Court of Appeal and do not make it harder to claim compensation. However, if the changes are not made damages awards are likely to increase and, with it, insurance premiums. The New South Wales Court of Appeal revealed the problem in its decision in the case of Harrison v Melhem in May this year. For many years, litigants and the courts have assumed that there was a two-pronged test for gratuitous care damages - that is, that care must be provided for at least six hours a week and for at least six consecutive months . Although that is what was intended, the Court of Appeal has ruled that is not what the section says. The court found that compensation could be claimed even if only one of the thresholds was met . Although the drafting problem seems small, the impact on insurance premiums could be significant. The changes will ensure the law does what everyone has always assumed it was supposed to do. It will ensure that claimants must demonstrate that the gratuitous care they have received has been provided for at six hours per week for at least six consecutive months ." (Emphasis added.) 70 Two points should be made about the Second Reading Speech, upon which the appellant placed some reliance. First, it not easy to follow the comment that the amendments to s 15(3) "do not make it harder to claim compensation", unless the implicit comparison was intended to be with the law as understood prior to the decision in Harrison v Melhem. Secondly, the statement that the "changes will ensure that the law does what everyone has always assumed that it was supposed to do" seems to be concerned only with the question of whether or not the section imposes a "two pronged test" for gratuitous care damages. Contrary to the appellant's submission, the Second Reading Speech, assuming it to be relevant to the construction of the amended s 15(3), does not address the content of either limb of the "two pronged test".

Some Issues of Construction 71 The form of the amended s 15(3) of the CL Act appears to have been influenced by the reasons given by Mason P in Harrison v Melhem for overruling Geaghan and RTA v McGregor and for construing s 15(3) as requiring a plaintiff to satisfy only one of the two statutory criteria. Mason P said at [157]: "(i) The literal and plain meaning of [the unamended] s 15(3) is that the preclusion applies if, and only if, both limbs are satisfied. 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 … and there is, in my view, no compelling reason why it should be read otherwise in subs (3) between par (a) and par (b)." (Emphasis in original; citations omitted.) 72 The unamended version of s 15(3) of the CL Act stated that no damages were to be awarded if the gratuitous services were provided for less than six hours per week and for less than six months. By contrast, the amended s 15(3) states that no damages are to be awarded for gratuitous services unless they are provided for at least six hours per week (s 15(3)(a)) and for a period of at least six consecutive months (s 15(3)(b)). The word "and" in the amended s 15(3) is clearly used in its conjunctive sense. In these circumstances, it seems to me plain that the amended s 15(3) has the effect that a plaintiff cannot obtain compensation for gratuitous services unless he or she satisfies the requirements specified in each of s 15(3)(a) and s 15(3)(b). Although this construction of s 15(3) is consistent with what was said in the Second Reading Speech, it is neither necessary nor appropriate to invoke the Speech to reach this conclusion. The respondent's argument that the plaintiff need not satisfy both requirements is untenable. 73 While the amended s 15(3) unambiguously reverses the decision in Harrison v Melhem, it gives rise to other questions of construction the answers to which are less clear. The questions include the following: (i) Is the requirement in s 15(3)(a) (the so-called " intensity requirement ") satisfied by the provision of gratuitous attendant care services for a minimum of six hours per week during the six month period referred to in s 15(3)(b) (the so-called " duration requirement "), or is the intensity requirement ongoing? If it is ongoing, a plaintiff cannot recover damages in respect of any period during which services are not provided (or to be provided) for less than six hours per week, regardless of whether the duration requirement is satisfied.

(ii) Is the duration requirement in s 15(3)(b) satisfied by a single period of at least six consecutive months during which the gratuitous services are provided? Or is this, too, a continuing requirement, in the sense that the plaintiff can claim damages only in respect of each uninterrupted period of at least six consecutive months during which the gratuitous services are provided? If it is a continuing requirement, any interruption in the provision of services before a period of six consecutive months expires, for example by a reason of a period in respite care or in hospital, precludes recovery of damages in respect of the period during which the services were provided (being a period less than six consecutive months).

(iii) If the duration requirement is satisfied by the provision of services throughout a single period of at least six consecutive months, is the plaintiff entitled to recover in respect of earlier periods, each of less than six consecutive months, during which services were provided?

The Approach to Construction 74 Without detracting from the difficulty of the task confronting drafters of legislation, it is somewhat surprising that the amended s 15(3) did not explicitly address and resolve the first of the three questions I have identified. I make this comment because the question had arisen in Kriz v King [2006] QCA 357; [2007] 1 Qd R 327, a decision referred to at some length in the judgments in Harrison v Melhem. 75 The legislation considered in Kriz v King was similar, although not identical to the amended s 15(3) of the CL Act. The Queensland legislation (Civil Liability Act 2003 (Qld), s 59(1)) provided as follows: "Damages for gratuitous services are not to be awarded unless - ….. (c) the services are provided, or are to be provided - (i) for at least 6 hours per week; and (ii) for at least 6 months." 76 McMurdo P (with whom Jerrard JA and Helman J agreed) identified two competing contentions as to the construction of s 59(1)(c)(i). One was that s 59(1)(c)(i) permitted damages to be awarded for gratuitous services only if the services were provided at all times for at least six hours per week. On this construction, damages could not be awarded for any period during which services were not provided (or to be provided) for at least six hours per week. The second possible construction was that s 59(1)(c), read as a whole, was (at [14]) "a mere threshold provision requiring that damages for gratuitous services will not be awarded unless the services have been provided or are to be provided both for a minimum of six hours and for at least six months; once that threshold is met, damages for gratuitous services can be awarded for subsequent services provided for lesser periods …" 77 McMurdo P considered (at [17]) that the ordinary meaning of the words in s 59(1)(c) lent themselves to either construction and that there were sound arguments in favour of each of the competing contentions. However, her Honour held (at [18]) that the choice between the alternatives was dictated by the principle that legislation should be construed as limiting a "claimant's previously unfettered common law right to seek damages for gratuitous services" only if it does so in clear and unambiguous terms. Thus s 59(1)(c) was to be interpreted in the way which least diminished a claimant's common law rights to damages for gratuitous services. On this basis, her Honour concluded (at [18]) that s 59(1)(c) had the effect "that damages for gratuitous services are not to be awarded unless the services have been provided or are to be provided for both six hours per week and for at least six months; once that threshold is met then damages for gratuitous services can be awarded even if the services thereafter are provided or are to be provided for less than six hours per week." 78 In Harrison v Melhem, Spigelman CJ expressly disagreed (at [2]) with the approach to construction taken by the Queensland Court of Appeal in Kriz v King. His Honour said (at [3]) that the principle that Parliament is not presumed to abrogate common law rights was now of "minimal weight", except in relation to legislation which abrogates fundamental rights, immunities and freedoms: "[The principle] reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law relating to personal injury damages, has been both wide ranging and fundamental."

Beazley JA agreed with Spigelman CJ. Basten JA expressed (at [209]-[221]) similar views, although his Honour was prepared (at [221]) to contemplate that in a case where the factors involved in resolving statutory ambiguity were indeed finely balanced, it would be appropriate to resolve the issue in favour of the continuation of general law entitlements. See also the formulation of the underlying principle in Potter v Minahan [1908] HCA 63; 7 CLR 277, at 304, per O'Connor J; Coco v The Queen [1994] HCA 15; 179 CLR 427, at 437, per Mason CJ, Brennan, Gaudron and McHugh JJ. 79 Subject to one matter to which I shall return, I respectfully agree with Spigelman CJ that little weight should be attached to the principle of construction applied in Kriz v King in interpreting s 15(3) of the CL Act. Quite apart from the general considerations identified by his Honour, it is necessary to bear in mind the circumstances in which the common law recognised (or created) a right to damages for gratuitous services and the rapidity with which the right has been legislatively curtailed. 80 Prior to a series of English cases in the early to mid 1970s it was generally accepted that a plaintiff could not recover damages in respect of gratuitous services. The High Court in Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, in essence changed the law in Australia to allow such claims, although, as Stephen and Mason JJ pointed out (at 172-174, 189-193, respectively), authorities dating from the 1960s had provided a conceptual basis for the High Court's decision. The principle accepted by the High Court was that a plaintiff requiring attendant care services in consequence of the defendant's negligence suffers a loss because he or she has a need for the services. This is so regardless of whether the plaintiff has to pay for the services and regardless of whether in fact the plaintiff will ever use the damages to pay the provider of attendant care services. 81 The change in the law was said to represent "popular conceptions of justice" (at 168 per Gibbs J). It was also said to be desirable as a matter of policy because the wrongdoer would be likely to be insured and thus a much better loss distributor than the injured person (at 176, per Stephen J). None of the judgments adverted to the consequences for future insurance premiums of such a substantial change in the law, nor to the cost of retrospectively applying the new principles to all undetermined personal injury claims. 82 Subsequent judgments in the High Court drew attention to the "anomal[ous]", "exceptional" and "to some extent arbitrary" features of the principle in Griffiths v Kerkemeyer: see Kars v Kars [1996] HCA 37; 187 CLR 354, at 368, per Toohey, McHugh, Gummow and Kirby JJ. In his dissenting judgment in Grincelis v House [2000] HCA 42; 201 CLR 321 Kirby J observed (at [25]) that Griffiths v Kerkemeyer had set the High Court "upon a path that has repeatedly demonstrated the 'anomalies', 'artificiality' and even 'absurdities' of the 'novel legal doctrine' which it adopted in substitution for its own earlier stated opinion." (Citations omitted.) 83 In 2002, 25 years after the decision in Griffiths v Kerkemeyer, the Ipp Committee noted that many legislatures in Australia had considered that awards for gratuitous services had "gone too far" and had legislated to impose restrictions or caps on such awards: Review of the Law of Negligence: Final Report (2002), at [13.78], Tables 6, 7. The Committee considered (at [13.84]) that "recent legislative developments in the area are illustrative of community dissatisfaction with aspects of the Griffiths v Kerkemeyer rule and its operation, based on the belief that damages for gratuitous services are sometimes excessive, particularly having regard to the fact that the plaintiff suffers no actual financial loss."

For this reason, the Committee recommended (at [13.85]) national uniform legislation setting " an appropriate threshold and cap for damages for gratuitous services ". 84 The analysis in the Ipp Report demonstrates that any attempt to determine whether a change in the law that expands the scope for an injured plaintiff to claim damages for personal injuries accords with "popular conceptions of justice" is unlikely to be complete without examining the costs of the change. These include consequential increases in insurance premiums paid by motor vehicle owners and others who wish or are required to be indemnified against any liability to pay damages to injured persons. 85 The brief life of the unfettered common law principle entitling an injured plaintiff to recover damages for gratuitous services hardly suggests that the principle reflects fundamental community values. The reality is that, quite apart from the anomalies referred to in later cases, it became apparent relatively quickly that an unqualified common law entitlement to damages for gratuitous services, as laid down in Griffiths v Kerkemeyer, was unacceptable to Australian legislatures. It is true that the principle of compensation for gratuitous care services has survived, but in a more limited form than that recognised in Griffiths v Kerkemeyer. It follows, in my opinion, that the presumption that Parliament does not intend to abrogate common law rights should be given little weight in the construction of s 15(3) of the CL Act. 86 The qualification to which I have referred earlier [79] arises from the observation made in the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [23] that "the approach of the courts has consistently been to require a very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available." 87 Berowra Holdings was concerned with the construction of s 151C of the Workers Compensation Act 1987, which provided that an injured worker was not entitled to commence proceedings for damages until six months had elapsed since notice of the injury was given to the employer. The High Court held that s 151C, on its proper construction, did not create a pre-condition to the court's jurisdiction to entertain a damages claim, but merely postponed the remedy. Thus a court had jurisdiction to determine claims incorrectly instituted before the expiration of the six months period dating from notice to the employer. 88 The joint judgment in Berowra Holdings pointed out (at [17]) that s 151C formed part of amending legislation which restored the previously abolished common law right to damages for negligently inflicted work-related injuries. Accordingly, the right of the worker to sue the employer for damages in a court of competent jurisdiction remained "a right sourced at common law" (at [18]). It was in this context that the joint judgment made the observation which I have quoted at [86]. 89 In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198, this Court of Appeal was concerned with the construction of Part 5 of the Workers Compensation Act (of which s 151C forms part). Allsop P (with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed) noted (at [172]) that some doubt had been cast on the canon of construction applied in Berowra Holdings: "in its application to common law rights of suit in 'reforming' Acts whose purpose was to change the law: see Harrison v Melham at 382-384 [2]-[11] (Spigelman CJ), 403 [191] (Beazley JA) and 406-409 [209]-[221] (Basten JA). Nevertheless, the clear expression of view by the plurality in Berowra Holdings at 373 [23] on this very statute makes adherence to the principle mandatory. This is especially so when the Parliament has made a policy choice pellucid in its expression (in s 151U and Pt 14 of Sch 6) in 1987 and 1989 that the worker's common law right to damages was not to be affected by the changes to the regime for compensation (using the term in its general sense) for injuries suffered at work. The position is even further reinforced by the terms of s 151 of the WC Act that that Act does not affect any liability in respect of an injury existing independently of the Act except to the extent that the WC Act otherwise expressly provides ." (Emphasis in original.) 90 In my view, the proposition stated in Berowra Holdings does not necessarily apply with full force to every statute limiting a right which owes its origin to the common law, regardless of the nature of the right or the circumstances in which the right has been modified by the legislature. As was said by O'Connor J in Sargood Bros v The Commonwealth [1910] HCA 45; 11 CLR 258, at 279, in a paragraph cited in the joint judgment in Berowra Holdings, at [23] "… rules of interpretation are formulated for the purpose of aiding the Court in ascertaining the intention of the legislature from the language it has used." 91 The common law right in Berowra Holdings was the right to sue an employer in damages for personal injuries caused by the employer's negligence, not merely an entitlement to claim a particular head of damages. In Sargood, the right under consideration was to recover moneys demanded by the Commonwealth without legal authority colore officii. In Pyneboard Pty Ltd v Trade Practices Commission [1982] HCA 9; 152 CLR 328, a case also cited in the joint judgment in Berowra Holdings (at [23]) the right was the common law privilege against exposure to a penalty. (As it happens, in both Sargood and Pyneboard, the common law right was held to have been overridden by statute.) 92 In my view, the canon of construction applied in Berowra Holdings has particular force in relation to legislation abrogating or modifying fundamental or, perhaps, longstanding common law rights and privileges. However, in my respectful opinion, the canon should be given much less weight in construing legislation that modifies or restricts a recently formulated and novel common law right, which both courts and legislatures have acknowledged to be anomalous and, in some circumstances, arbitrary.

The Intensity Requirement 93 The words of s 15(3) of the Act must be read in context in order to ascertain their meaning. In undertaking this task, the Second Reading Speech, in my opinion, is of no assistance, even if it is permissible to have recourse to the Speech to resolve any ambiguity in the legislation. Nothing was said by the Attorney General that sheds light on the purpose underlying the intensity requirement. For the reasons I have given, I think that the presumption that Parliament does not intend to interfere with common law rights is also of little assistance in the present context. 94 Section 15(3) imposes two conditions that must be satisfied before a claimant can be awarded damages for gratuitous services. The two conditions are set out in separate sub-paragraphs of s 15(3). The natural reading of s 15(3), having regard to its language and structure, is that a claimant must satisfy two independent requirements. That is, the services must be provided to the claimant both for: at least six hours per week; and a period of at least six consecutive months. 95 Had the drafter intended to impose a composite precondition, requiring that the gratuitous services be provided for a minimum of six hours per week during a qualifying period of six months, the sub-section would presumably have been drafted differently. It would have been very simple to say, for example, that damages are not to be awarded unless the services are provided (or to be provided) for at least six hours per week during a period of at least six consecutive months. 96 Once it is accepted that the intensity requirement is a separate precondition from the duration requirement imposed by s 15(3)(b), there is no textual reason to confine the six hours per week to the six months period specified in s 15(3)(b). On the contrary, the words in parentheses "(or to be provided)" suggest that the intensity requirement is intended to be ongoing, since they refer to the provision of services in the future. 97 This construction of the intensity requirement accords with that given to s 15(3)(a) in its unamended form: Geaghan v D'Aubert at [38]; RTA v McGregor, at [167], [172]; Harrison v Melhem, at [99]. Harrison v Melhem cast no doubt on this aspect of the earlier decisions, which rested on the meaning to be attributed to the words "for less than six hours per week" in the unamended s 15(3). That particular language is very similar to that used in the amended version of s 15(3)(a), although the structure of the provision in now different. 98 For these reasons, I conclude that the intensity requirement in s 15(3)(a) of the CL Act is ongoing. It follows that the respondent is not entitled to recover damages in respect of any period during which the gratuitous services were not provided (or are not to be provided) to him for at least six hours per week. He is therefore not entitled to items 6 and 7 set out in Handley AJA's judgment (at [20]).

The Duration Requirement 99 In Harrison v Melhem, Basten JA observed (at [223]) in relation to the duration requirement in the unamended s 15(3)(b) of the CL Act, that: "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." 100 In my opinion, the wording of the amended s 15(3)(b) makes it tolerably clear that a claimant must require attendant services for only one period of at least six consecutive months. The words "for a period of" strongly suggest that the duration requirement is limited to a single qualifying period. It is true that s 8(6) of the Interpretation Act 1987 provides that a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. However, s 15(3)(b) of the CL Act uses the words "a period" in combination with the expression "of at least 6 consecutive months". Had the drafter intended that no damages should be awarded for gratuitous services except in respect of periods each of which was for at least six consecutive months, it might have been expected that the sub-section would have said so. 101 Mr Robertson for the appellant submitted that the word "the" in the chapeau to the amended s 15(3) indicated that s 15(3)(b) is intended to limit a claimant to damages in respect of each completed period of at least six months during which gratuitous services are provided. In my opinion, this argument attributes more weight to the definite article than it can bear and fails to give sufficient weight to the statutory identification of "a period" of at least six consecutive months during which the services must be provided. 102 I do not think that the words "(or to be provided)" suggest any different result. There may be circumstances in which the claim for damages has to be considered before the expiration of the first period of six consecutive months during which gratuitous services are provided. 103 The construction urged by the appellant would mean that an injured claimant who received gratuitous services for a period of at least six consecutive months, but never received such services for another complete period of six consecutive months (for example, because of a need for regular short periods of hospitalisation or respite care), would receive no compensation after the first complete period. This would be so even if the need for such services was permanent and the claimant required many hours of care each week. In the absence of clear words, it is difficult to attribute to Parliament an intention to achieve such an apparently arbitrary result. 104 It is true, as Mr Robertson submitted on behalf of the appellant, that on any view a claimant who cannot demonstrate that gratuitous services were, or are to be, provided for a period of at least six consecutive months will be ineligible for an award of damages. Thus if each six months block during which gratuitous services are provided is interrupted by a short period during which the gratuitous services are not provided, the claimant will never be entitled to receive a damages award. It is also true that many would regard this result as arbitrary. But the fact that clear words in legislation produce an apparently arbitrary result in one situation does not mean that the statutory language should be construed to produce an arbitrary result in another, where the words are consistent with a different outcome. 105 For these reasons, I conclude that a claimant satisfies the duration requirement in s 15(3)(b) by showing a single period of at least six consecutive months during which gratuitous services are provided (or are to be provided). In this sense, s 15(3)(b) is a threshold, rather than a continuing requirement. 106 It is not necessary for the purposes of this appeal to determine whether the qualifying period of six months will be satisfied if gratuitous services were provided continuously throughout that period, albeit at a rate of less than six hours per week (whether throughout the period or for part of the period). That is because gratuitous services were provided to the respondent for 10 hours per week through a period of 43 weeks. However, as I have indicated (at [95]), I am inclined to think the better view is that, as the requirements in s 15(3)(a) and s 15(3)(b) of the CL Act are independent, s 15(3)(b) is satisfied if gratuitous care services are provided to a claimant for a period of six consecutive months, even if the services are provided for fewer than six hours per week during that period. 107 Of course, assuming that view to be correct, a claimant would not be able to recover damages in respect of the gratuitous services provided during the qualifying period of six months if at no time during that period the services were provided for more than six hours per week. However, on the same assumption, the fact that the intensity requirement is not satisfied throughout the qualifying period of six months would not prevent a claimant from relying on services provided during that qualifying period to demonstrate that the duration requirement imposed by s 15(3)(b) of the CL Act is satisfied, so long as the services have been provided throughout the qualifying period. 108 I appreciate that the dicta in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406, at [163], quoted by Handley AJA at [35], suggest that a plaintiff must show that gratuitous services have been provided for at least six hours per week and for six months concurrently, in order to be awarded damages. However, with the greatest respect, I am not at present persuaded that that is clearly the better construction of s 15(3). Nonetheless, I readily accept that the language of the sub-section is not easy to interpret and that the issue will have to be resolved in a case in which it arises for decision.

Damages in Respect of Periods before the Duration Requirement is Satisfied 109 One further question remains. As Handley AJA points out (at [39]) that question is whether a claimant is entitled to damages for periods of less than six months during which gratuitous services were provided at more than the minimum rate of six hours per week. 110 Section 15(3)(b) says that damages may not be awarded for gratuitous services unless the services are provided for a period of at least six consecutive months. The sub-section does not say that, if gratuitous services are provided for at least one period of six consecutive months, no damages can be awarded in respect of earlier periods of less than six months during which the minimum intensity requirement of six hours per week is met. 111 As Handley AJA observes at [40], s 15(3)(b) of the CL Act necessarily has a retrospective effect, in the sense that once gratuitous services have been provided for a period of six consecutive months, damages may be awarded from the beginning of that period. If, as I think is correct, s 15(3)(b) imposes a threshold requirement that must be satisfied in order for a claimant to recover damages for gratuitous services, I see no compelling reason, once the requirement is satisfied, why the plaintiff cannot recover damages for gratuitous services for all other periods during which such services are provided (so long as the intensity requirement is satisfied). In other words, I do not think that the text or structure of s 15(3) requires or justifies the conclusion that the entitlement to compensation for gratuitous services is to be determined at the conclusion of each closed period during which the services have been provided. 112 It follows that once the duration requirement is satisfied, a claimant can recover in respect of all earlier periods during which he or she was provided with gratuitous services for at least six hours per week. For example, a claimant may be provided with gratuitous services for more than six hours per week during a three month period. That period might be followed by one month during which services are not provided and then six consecutive months during which services are provided (whether or not for at least six hours per week). In these circumstances, in my opinion, damages can be awarded in respect of the gratuitous services provided during the first three month period. 113 In the present case, this means that the respondent, having satisfied the requirement in s 15(3)(b) of the CL Act by reason of the gratuitous services provided between December 2005 and the end of 2006, was entitled to damages for the two earlier closed periods during which gratuitous services were provided (items 2 and 3 set out in Handley AJA's judgment at [20]).

Conclusion 114 For the reasons I have given, the respondent has satisfied the duration requirement, since he was provided with gratuitous services for a period of more than six consecutive months (from late 2005 until the end of 2006). He was therefore entitled to damages in respect of all periods during which he was provided with gratuitous services for more than six hours per week. His entitlement includes damages in respect of the two closed periods before 2006 from 15 September 2005 to 12 October 2005 and from 27 October 2005 to 11 November 2005) during which he was provided with gratuitous services for 35 hours per week. However, the respondent is not entitled to damages for any period in respect of which services were provided to him for fewer than six hours per week. 115 The result is that the award of damages should be reduced by $8,000, from $51,001.26 to $43,011.26. That award must further be reduced by 20% to take account of the primary Judge's finding that the respondent had been contributorily negligent. Accordingly, the award of damages should be 80% of $43,011.26, or $34,409.00. 116 The respondent offered to settle the matter on the first day of the trial for $41,000 inclusive of costs. In the absence of more detailed evidence as to the costs that had been incurred by the date of the offer, I do not think it can be said that an award of damages of $34,409.00 is no less favourable to the respondent than the offer which the appellant rejected. I therefore agree with Handley AJA that the order for indemnity costs made by the primary Judge should be set aside. 117 The orders I propose are as follows:

(2) The judgment of the District Court (including the order as to costs) be set aside.

(3) In lieu thereof, substitute judgment for the plaintiff (respondent) in the sum of $34,409.00.

(4) The defendant (appellant) pay the plaintiff's (respondent) costs of the District Court proceedings on the ordinary basis.

(5) The respondent pay 50% of the appellant's costs of the appeal (including the application for leave to appeal).

(6) The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951. 118 I agree with the observations by Tobias JA that the drafting of s 15(3) of the CL Act requires urgent legislative attention. **********

03/12/2010 - First line should read "respondent" not "appellant". - Paragraph(s) 98 first line

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