On 12 November 2008 the Civil Liability Legislation Amendment Act 2008 was proclaimed and will operate to amend the Civil Liability Act 2002 in respect of gratuitous attendant care services.
The object of the amendment is to make it clear that damages are to be awarded for gratuitous attendant care services only if the services are provided (or to be provided) for at least 6 hours per week and for at least 6 consecutive months.
The amendment operates to overturn the interpretation of s15(3) of the Civil Liability Act 2002 in the recent Court of Appeal decision in Harrison v Melhem [2008] NSWCA 67. Harrison v Melhem held that a plaintiff only has to establish that gratuitous attendant services are provided (or to be provided) for a period of more than six months or more than six hours per week.
The Civil Liability Legislation Amendment Act 2008 amends s15(3) by providing that 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."
In addition to amending the Civil Liability Act 2002, the amendment also extends to the provisions relating to gratuitous attendant services contained in the Motor Accidents Act 1988 and the Motor Accidents Compensation Act 1999.
The Civil Liability Legislation Amendment Act 2008 was proclaimed to commence on 12 November 2008 and extends to liabilities that arose and to proceedings commenced before the commencement, but does not apply to proceedings determined before 12 November 2008.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
