New South Wales Supreme Court CITATION : Harrison v Melhem & Anor (No 2) [2006] NSWSC 1293 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 29 November 2006 JUDGMENT DATE : 29 November 2006 JURISDICTION : Common Law Division DECISION : (1) There be judgment for the plaintiff in the sum of $637,409.62; (2) The defendants are to pay the plaintiff's costs as agreed or assessed. CATCHWORDS : Attendant care services - s 15(3) CLA LEGISLATION CITED : Civil Liability Act 2002 (NSW) - s 15(3) Motor Accidents Act 1988 (NSW) - s 72(2) Geoghan v D'Aubert [2002] NSWCA 260 CASES CITED : Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 Sheridan v Borgmeyer [2006] NSWCA 201 Scott Beau Harrison - Plaintiff PARTIES : Jimmy Paul Melhem - First Defendant Melhem Civil Pty Ltd - Second Defendant FILE NUMBER(S) : SC 20159/2005 COUNSEL : Mr M Boulton - Plaintiff Mr D Hooke - Defendants SOLICITORS : Michael Slattery - Plaintiff Ebsworth & Ebsworth - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON WEDNESDAY, 29 NOVEMBER 2006 20159/2005 - SCOTT BEAU HARRISON v JIMMY PAUL MELHEM & ANOR (No 2) JUDGMENT (Attendant care services – s 15(3) CLA) 1 HER HONOUR: This judgment concerns the interpretation of s 15(3) of the Civil Liability Act 2002 (NSW) (CLA). Section 15(3) reads: "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." 2 The starting point is Geoghan v D'Aubert [2002] NSWCA 260. In Geoghan the New South Wales Court of Appeal considered the interpretation of s 72(2) of the Motor Accidents Act 1988 (NSW) which is in identical terms to s 15(3) of the CLA. The Court looked to the former s 72(2) which had been replaced in 1993, the second reading speech concerning the current s 72(2), and the object provisions of the Act. The Court held that a purposive construction led to the conclusion that s 72(2) required both limbs (a) and (b) to be satisfied before compensation is payable under the provision. The Court did not favour the interpretation that gives the section its natural meaning to the words and in particular the conjunction "and". In Geoghan at [38] the Court held that no compensation is to be awarded for attendant care services if less than 6 hours per week of services is provided or is to be provided. Similarly, the Court held that no compensation is to be awarded if the services are provided or are to be provided for less than 6 months. 3 Next the Court of Appeal in Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 adopted the reasoning in Geoghan and applied it to s 15(3) of the CLA. The Court held at [163-174] that the purposive approach taken by the court in Geoghan applied equally to the identically worded s 15(3). 4 Recently the Court of Appeal in Sheridan v Borgmeyer [2006] NSWCA 201 expressed doubts as to correctness of the approach adopted in McGregor. At [41] Beazley JA stated "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." 5 To my mind s 15(3) should be afforded its natural meaning. This was the approach I adopted prior to being appraised of the authorities referred to above. It seems to me that plaintiffs with back injuries cannot carry out heaving lifting. While tasks that involve heavy lifting may only take a few hours a week plaintiffs are not capable of carrying out these tasks, if they do so they risk further injury to their backs. However, as I have not yet entered judgment and I am bound to follow the decision in McGregor, that being so, I cannot award any damages for attendant care services after 13 December 2001. Therefore the amount allowed for past attendant care services is the sum of $23,107.33. The Court orders: (1) That there be judgment for the plaintiff in the sum of $637,409.62. (2) The defendants are to pay the plaintiff's costs as agreed or assessed. SCHEDULE $ Non economic loss 235,000.00 Past Treatment 102,524.80 Future medical treatment and expenses 38,436.44 Past economic loss 95,500.00 Future loss of earning capacity 100,555.00 Loss of superannuation (Past, Future and Interest) 13,721.38 Domestic assistance and attendant care 23,107.33 Claim for tax on compensation payments 28,564.67 TOTAL $637,409.62 ********** 30/10/2008 - Surname of defendant misspelt and amended from Melham to Melhem - Paragraph(s) Case Title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.