Change To Gratuitous Care Assessment

Case

In Harrison –v– Melhem [2008] NSWCA67 (29 May 2008), the NSW Court of Appeal changed the law in respect of assessing damages of attendant care services/gratuitous services in personal injury claims. The decision has affected the interpretation of section 128(3) of the Motor Accidents Compensation Act and section 15(3) of the Civil Liability Act. Plaintiff's are now only required to satisfy either of the two threshold tests to be entitled to gratuitous services. Mason P, in the majority, at paragragh 181 decided:

" On this basis, I construe section 15(3) (which is the equivalent to section 128(3) of the Motor Accidents Compensation Act) as a preclusion from 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 6 months) or that