3DRestrictions on damages for provision of home care services

##### 3D. Restrictions on damages for provision of home care services (1) This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that 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. (2) No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury. (3) If the services are provided or to be provided for not less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated on a weekly basis at the rate of — (a) the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter; or (b) if the Australian Statistician fails or ceases to make the estimate referred to in paragraph (a), the amount fixed by, or determined in accordance with, the regulations. (4) In subsection (3)(a) the relevant quarter means the quarter in which the services were provided or, if at the date of the award an estimate as referred to in that paragraph is not available to the court for that quarter or the services are yet to be provided, the most recent quarter for which such an estimate is available to the court at the date of the award. (5) If the services are provided or to be provided for less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated at an hourly rate of one‑fortieth of the weekly rate that would be applicable under subsection (3) if the services were provided or to be provided for not less than 40 hours per week. (6) If the amount of damages that may be awarded under subsection (3) or (5) is Amount D or less, no damages are to be awarded for the value of the services provided or to be provided. (7) In subsection (6) Amount D 1 means — (a) for the financial year ending on 30 June 1994, $5 000; and (b) for any subsequent financial year, the amount recalculated as Amount D under subsections (8) and (9). (8) By operation of this subsection and subsection (9) Amount D is recalculated annually with effect from 1 July (the recalculation date), commencing on 1 July 1994, by varying Amount D for the preceding financial year — (a) by the percentage by which the weighted average minimum award rate for adult males under Western Australian State Awards published by the Australian Statistician varies between 1 April in the calendar year preceding the recalculation date and 31 March in the calendar year of the recalculation date; or (b) if the relevant information is not so published, in accordance with the regulations. (9) If the amount recalculated under subsection (8) is not a multiple of $500 it is to be rounded off to the nearest multiple of $500 (with an amount that is $250 more than a multiple of $500 being rounded off to the next highest multiple of $500). (10) On or before 1 July in each year the Minister is to publish a notice in the *Gazette* setting out Amount D as it will have effect on and from that 1 July 1. (11) Failure to publish, or late publication of, a notice under subsection (10) does not affect the operation of subsections (8) and (9). (12) The issue of whether damages may be awarded for the value of gratuitous services is to be determined by reference to Amount D as in effect on the date on which the determination is made. [Section 3D inserted: No. 17 of 1994 s. 5.]