Harrison v Melham & Anor (No 2)

[2006] NSWSC 1293

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)
CASES CITED:	Geoghan v D'Aubert [2002] NSWCA 260 Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 Sheridan v Borgmeyer [2006] NSWCA 201
PARTIES:	Scott Beau Harrison - Plaintiff 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


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30/10/2008 - Surname of defendant misspelt and amended from Melham to Melhem - Paragraph(s) Case Title