Harrison v Melhem - [2008] NSWCA 67

No judgment structure available for this case.

Reported Decision: 72 NSWLR 380

Appeal Outcome: Special leave application refused with costs by the High Court – 14 November 2008

New South Wales

Court of Appeal

CITATION: Harrison v Melhem [2008] NSWCA 67
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 December 2007

JUDGMENT DATE:
29 May 2008

JUDGMENT OF: Spigelman CJ at 1; Mason P at 21; Beazley JA at 191; Giles JA at 192; Basten JA at 193

DECISION: 1 Appeal upheld in part
2 Vary the judgment entered in the Common Law Division by substituting $676 248.85 for $637.409.62
3 Cross appeal dismissed
4 Respondents to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.

CATCHWORDS: APPEAL AND NEW TRIAL – Appeal – general principles – excessive or inadequate damages – damages excessive – amount not so large as to be entirely erroneous – errors in principle in relation to particular components - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – loss of earnings and earning capacity – expense flowing from plaintiff’s inability to work – particular cases – where loss of earning capacity attributed to injury and also to drug use – whether attributing for drug use an error - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – method of assessment – generally – claim for domestic assistance – where assistance required for less than 6 hours per week but for more than 6 months – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – words to be given literal and grammatical meaning – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – where meaning ambiguous or uncertain – presumptions as to legislative intention - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic material – legislative history of the Act – previous state of law and mischief to be remedied – Civil Liability Act 2002, s15(3)

LEGISLATION CITED: Civil Liability Act 2002
Evidence Act 1995
Health Care Liability Act 2001
Interpretation Act 1987
Motor Accidents Act 1988
Motor Accidents (Amendment) Act 1993
Motor Accidents Amendment Act 1995
Motor Accidents Amendment Act 1997
Motor Accidents Compensation Act 1999
Motor Vehicles (Third Party Insurance) Act 1942
Personal Injuries Proceedings Act 2002 (Qld)
Private International Law (Miscellaneous Provisions) Act 1995 (UK)
Workers Compensation Act 1987
Wrongs Act 1958 (Vic)

CASES CITED: Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Beech v Eagles [2005] VSC 231; (2005) 141 LGERA 155
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591
Brennan v Comcare (1994) 50 FCR 555
Bropho v Western Australia (1990) 171 CLR 1
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Coco v The Queen (1994) 179 CLR 427
Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
CSR Ltd v Eddy [2005] HCA 64, (2005) 226 CLR 1
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Geaghan v D’Aubert [2002] NSWCA 260, (2002) 36 MVR 542
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Grice v Queensland [2005] QCA 272; [2006] 1 Qd R 222
Griffiths v Kerkemeyer (1976) 139 CLR 161
Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349
Hadjigeorgiou v New South Wales Crimes Commission [2007] NSWCA 197; (2007) 174 A Crim R 124
Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1
Harrison v Melham (No 2) [2006] NSWSC 1293; (2006) 46 MVR 8
Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89
John v Federal Commissioner of Taxation (1988-1989) 166 CLR 417
Kars v Kars (1996) 187 CLR 354
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Kriz v King [2006] QCA 351; [2007] 1 Qd R 327
La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported
Lennon v Gibson & Howes Ltd [1919] AC 709
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174
Matadeen v Pointu [1999] 1 AC 98
Maunsell v Olins [1975] AC 373
McDonnell v Congregation of Christian Brothers Trustees & Ors [2003] UKHL 63; [2004] 1 AC 1101
McLean v Tedman (1984) 155 CLR 306
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2004) 210 CLR 1
Nguyen v Nguyen (1989-1990) 169 CLR 245
Nolan v Clifford (1904) 1 CLR 429
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Pennsylvania v Union Gas Co (1989) 491 US 1
Pepper v Hart [1993] AC 593
Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Potter v Minahan (1908) 7 CLR 277
Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513
Queensland v The Commonwealth (1977) 139 CLR 585
R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45
R v Bolton; Ex parte Beane (1987) 162 CLR 514
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261
Robinson v Riley [1971] 1 NSWLR 403
Sheridan v Borgmeyer [2006] NSWCA 201
Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322
State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642
Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319
Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327
Van Gervan v Fenton (1992) 175 CLR 327
Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 242 ALR 383
Wik Peoples v Queensland (1996) 187 CLR 1
Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816

PARTIES: Scott Beau Harrison (Appellant)
Jimmy Paul Melhem (First Respondent)
Melhem Civil Pty Ltd (Second Respondent)

FILE NUMBER(S): CA 40863 /06

COUNSEL: C Barry QC, M Boulton (Appellant)
M T McCulloch SC, D J Hooke (Respondents)

SOLICITORS: R J Kirby (Appellant)
Ebsworth & Ebsworth, Lawyers (Respondents)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20159/05

LOWER COURT JUDICIAL OFFICER: Harrison AsJ

LOWER COURT DATE OF DECISION: 29 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Harrison v Melham (No 2) [2006] NSWSC 1293

40863/08

SPIGELMAN CJ
MASON P
BEAZLEY JA
GILES JA
BASTEN JA
Thursday 29 May 2008

Scott Beau Harrison v Jimmy Paul Melhem

FACTS
The appellant was employed as an excavator operator by Woollams Equipment & Plant Hire Pty Ltd. At a building site on 25 May 1999 the appellant injured his back when an employee (first respondent) of Melhem Civil Pty Ltd (second respondent) requested assistance with a dangerous manual lift. The appellant recovered damages from the respondents for personal injury resulting from their negligence.

There are two issues that arise on appeal. First, the appellant challenges the findings that underpinned the trial judge’s calculation of past and future economic loss, including the associated losses of superannuation and interest. Of particular significance were the trial judge’s findings regarding the appellant’s drug use before and after the injury and its impact on the appellant’s earning capacity. Further, the trial judge found that the appellant’s depression, while in part attributable to the injury, was also attributable to his drug use.

Second, the appellant challenges the trial judge’s interpretation of section 15 (3) of the Civil Liability Act 2002, which resulted in a rejection of the appellant’s claim for future domestic assistance. The appellant seeks leave to challenge Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261, and in turn, Geaghan v D’Aubert [2002] NSWCA 260; (2002) 36 MVR 542, in favour of adopting conflicting Queensland and Victorian Court of Appeal decisions on identical provisions in those jurisdictions.

There are two issues that arise on the respondents’ cross appeal. First, the respondents contend that the trial judge ought to have made a reduction in damages under section 151Z of the Workers Compensation Act 1987. They argue for a 25% reduction on the basis that had the appellant’s employer been sued, the employer would have been found liable. Second, the respondents challenge the amount awarded for non-economic loss as excessive.

Per Mason P; Spigelman CJ, Beazley, Giles and Basten JJA agreeing

1 The trial judge did not err in calculating past and future economic loss based on the appellant’s pre-accident weekly wage rate. It was open to the trial judge on the evidence to make the conclusions her Honour made as to his employment prospects based on past work history and the depressive impacts of his prolonged substance abuse. [1] [63] [67]-[74] [191] [192] [193]

2 The trial judge did not err in reducing the appellant’s earning capacity by 50% as a result of his drug use. There was no double counting when the trial judge further reduced the award by 15% for vicissitudes and the reduction was within the available range of discretion. [1] [76] [191] [192] [193]

3 The award for economic loss is therefore not to be disturbed. This conclusion is supported by the fact that the Court is not satisfied that the award as a whole is unduly high or unduly low. [1] [78] [191] [192] [193]

Robinson v Riley [1971] 1 NSWLR 403 applied.

Non-economic loss
Per Mason P; Spigelman CJ, Beazley, Giles and Basten JJA agreeing

4 The award for non-economic loss is generous but not to be disturbed. The trial judge addressed the economic loss and non-economic loss claims separately, and appropriately excluded the impact of pre-accident drug abuse in her calculation of non-economic loss. [1] [83] [85] [86] [191] [192] [193]

Reduction in damages under section 151Z Workers Compensation Act 1987
Per Mason P; Spigelman CJ, Beazley, Giles and Basten JJA agreeing

5 The trial judge did not err in acquitting the employer of the putative claim in negligence. The employer was not guilty of negligence causative of injury in failing to anticipate this combination of events and give instructions about responding to it. [1] [93] [191] [192] [193]

Domestic assistance – interpretation of section 15(3) Civil Liability Act 2002
Literal interpretation
Per Spigelman CJ and Mason P, Beazley and Giles JJA agreeing

Grice v State of Queensland

Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority

Victims Compensation Fund Corporation v Brown

Protective Commissioner v D

8 Once either the severity or duration threshold is passed, the plaintiff has satisfied the hurdle to recovery once and for all. Section 15(3) is not to be applied as if periods of gratuitous domestic assistance can be disaggregated. [20] [181] [191] [192]

Per Basten JA

9 The meaning of section 15(3) is ambiguous as to the manner in which it operates. This is due in part to the linguistic and structural characteristics of the provision. As there is ambiguity, section 34(1) of the Interpretation Act 1987 is engaged to permit the use of extrinsic material. [195]-[195] [208]

Purposive interpretation
Per Spigelman CJ and Mason P, Beazley and Giles JJA agreeing; and Basten JA

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd

Intention of Parliament and Pepper v Hart
Per Spigelman CJ and Mason P, Beazley and Giles JJA agreeing

11 Resort to extrinsic material pursuant to section 34(1)(b) of the Interpretation Act 1987 is not permitted because the provision is not ambiguous. [1] [157] [191] [192]

Re Bolton; Ex parte Beane

R v Young

Nominal Defendant v GLG Australia Pty Ltd

Insurance Commission of Western Australia v Container Handlers Pty Ltd

Eastman v The Queen

Brennan v Comcare

Wik Peoples v Queensland

Plaintiff S157/2002 v Commonwealth

Pepper v Hart

Harding v Wealands

Pepper v Hart

R v A (No 2)

McDonnell v Congregation of Christian Brothers Trustees

State v Zuma

Matadeen v Pointu

R v PLV

La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius

Pinder v The Queen

Nolan v Clifford

R v Bolton; ex parte Beane

Byrne v Australian Airlines Ltd

Wik Peoples v Queensland

Dossett v TKJ Nominees Pty Ltd

R v Young

Nolan v Clifford

Re Bolton; ex parte Beane

Plaintiff S157/2002 v Commonwealth

Wilson v First County Tryst Ltd (No 2)

Singh v Commonwealth

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG

15 The ministerial statements taken into account in Geaghan v D’Aubert did not provide a clear or principled basis for reading down the plain meaning of section 72(2) of the Motor Accidents Act 1988. The view of the Attorney-General that section 15(30 of the Civil Liability Act 2002 adopted the meaning that was applied to section 72(2) in Geaghanv D’Aubert was mistaken and cannot control the proper interpretation of the enacted provision. [1] [174]-[182] [191] [192]

Per Basten JA

Motor Accidents Act

Geaghan v D’Aubert

Roads and Traffic Authority v McGregor

Geaghan v D’Aubert

Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority

Grice v State of Queensland

17 Accordingly the legislative history demonstrates that a) the 6 month duration condition should be treated as an initial qualifying period only and the b) compensation is unavailable in a case where the claimant falls short of either the duration or intensity condition. [223]

Common law presumption
Per Spigelman CJ, Beazley JA agreeing; and Basten JA

Malika Holdings Pty Ltd v Stretton

Gifford v Strang Patrick Stevedoring Pty Ltd

Electrolux Home Products Pty Ltd v Australian Workers’ Union

Regie Nationale des Usines Renault SA v Zhang

Maunsell v Olins

R v Janceski

Fallas v Mourlas

Hadjigeorgiou v New South Wales Crimes Commission

Coco v The Queen

Re Bolton; Ex parte Beane

Al-Kateb v Godwin

Minister for Immigration and Multicultural Affairs v Khawar

Potter v Minahan

pho v Western Australia

Grice v State of Queensland

Kriz v King

Per Mason P, Giles JA agreeing

Grice v State of Queensland

Alcoa Portland Aluminium Pty Ltd v Victorian Workcover Authority

Juxtaposition with section 15B(2)
Per Spigelman CJ and Mason P, Beazley and Giles JJA agreeing

20 Section 15(3) may be contrasted with section 15B(2) of the Civil Liability Act . The latter is entirely unambiguous in that it clearly states that both duration and intensity thresholds must be met before compensation is available. This reinforces the literal reading of section 15(3) which does not so state. [1] [137]-[138] [191] [192]

Per Basten JA

21 Section 15 B is in different terms and clearly adopts the Geaghanv D’Aubert construction. To depart from Geaghanv D’Aubert in the interpretation of section 15(3) would create a statutory anomaly between the two sections. [254]

Principles relevant to departure from prior authority
Per Mason P; Spigelman CJ, Beazley and Giles JJA agreeing; and per Basten JA

Nguyen v Nguyen

Clutha Developments Pty Ltd v Barry

John v Federal Commissioner of Taxation

Queensland v The Commonwealth

Per Mas on P; Spigelman CJ, Beazley and Giles JJA agreeing

Roads and Traffic Authority v McGregor

Geaghan v D’Aubert

Roads and Traffic Authority v McGregor

Per Basten JA

Geaghan

v D’Aubert

Farah Constructions Pty Ltd v Say-Dee Pty Ltd

25 Far from being compelled to the conclusion that the decisions in Geaghan v D’Aubert and Roads and Traffic Authority v McGregor are clearly wrong, they are correct. [250]-[251] [255]-[257]

Orders
Per Mason P, Spigelman CJ, Beazley and Giles JJA agreeing

1 Appeal upheld in part.

2 Vary the judgment entered in the Common Law Division by substituting $676 248.85 for $637.409.62.

3 Cross appeal dismissed.

4 Respondents to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.

40863/08

SPIGELMAN CJ
MASON P
BEAZLEY JA
GILES JA
BASTEN JA

Scott Beau Harrison v Jimmy Paul Melhem

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgments of Mason P and Basten JA in draft. Subject to the following observations I agree with the reasons of Mason P and the orders his Honour proposes.

2 Like Basten JA I do not believe any weight can be attributed to the principle that Parliament is presumed not to intend to abrogate common law rights, referred to by Mason P at [106] and [157](iii). I do not agree with the approach that has been taken in the Queensland Court of Appeal in this regard. (See Grice v Queensland [2005] QCA 272; [2006] 1 Qd R 222 at [25]-[26]; Kriz v King [2006] QCA 351; [2007] 1 Qd R 327 at [18].) I have analysed this issue on other occasions. (See J J Spigelman “Principle of Legality and the Clear Statement Principle” (2005) 79 Australian Law Journal 769 at 777-778; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [61]-[69].)

3 I reiterate my opinion that the principle of statutory interpretation relied on by the appellant is now of minimal weight. It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law relating to personal injury damages, has been both wide ranging and fundamental. (See also Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349 (French, Finn and Sundberg JJ) at [96].)

4 In this respect I agree with the observations of Basten JA. (See also Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at 118-121 and Hadjigeorgiou v New South Wales Crimes Commission [2007] NSWCA 197; (2007) 174 A Crim R 124 at [90]-[95]; cf Beech v Eagles [2005] VSC 231; (2005) 141 LGERA 155 at [59]-[60].)

5 McHugh J has on a number of occasions emphasised that the presumption that a statute is not intended to alter or abolish common law rights must now be regarded as weak. (See Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 at [28]-[30]; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36].) Similarly, Kirby J has emphasised the duty to obey legislative texts and the impermissibility of adhering to pre-existing common law doctrine in the face of a statute. (See eg Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [143]-[147].)

6 McHugh J did not expressly distinguish in this respect between the presumption against altering common law doctrines and the presumption against invading common law rights. His Honour did, however, identify circumstances in which the presumption would operate more strongly, describing that category as “fundamental legal principles” (Malika Holdings supra at [28]) or as “a fundamental right of our legal system” (Gifford supra at [36]). He distinguished “fundamental rights” which are “corollaries of fundamental principles” from “infringements of rights and departures from the general system of law” (Malika Holdings supra at [28]) and “a fundamental right” from a right “to take or not to take a particular course of action” (Gifford supra at [36]).

7 I agree that the principle still operates with force with respect to legislation which abrogates fundamental rights, immunities and freedoms. However, this line of authority in Australia commencing with Potter v Minahan (1908) 7 CLR 277 at 304 has no application to the statutory regime presently under consideration.

8 With respect to general common law doctrines, McHugh J has emphasised the weakness of the presumption. He said:

“Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the ‘presumption’ of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.”

Gifford

Electrolux Home Products Pty Ltd v Australian Workers’ Union

Malika Holdings

9 This analysis would appear to apply to the Civil Liability Act, specifically s 15 thereof.

10 As Lord Simon of Glaisdale put it in Maunsell v Olins [1975] AC 373 at 394-395:

“It is true that there have been pronouncements favouring a presumption in statutory construction against a change in the common law … Indeed, the concept has sometimes been put (possibly without advertence) in the form that there is a presumption against change in the law pre-existing the statute which falls for construction. So widely and crudely stated, it is difficult to discern any reason for such a rule – whether constitutional, juridical or pragmatic. We are inclined to think that it may have evolved through a distillation of forensic experience of the way Parliament proceeded at a time when conservatism alternated with a radicalism which had a strong ideological attachment to the common law. However valid this particular aspect of the forensic experience may have been in the past, its force may be questioned in these days of statutory activism … Whatever subsisting scope any canon of construction may have, whereby there is a presumption against change of the common law, it is clearly a secondary canon … - of assistance to resolve any doubt which remains after the application of ‘the first and most element rule of construction’, that statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances. Moreover, even at the stage when it may be invoked to resolve a doubt, any canon of a construction against invasion of the common law may have to compete with other secondary canons. English law has not yet fixed any hierarchy amongst the secondary canons: indeed, which is to have paramountcy in any particular case is likely to depend on all the circumstances of the particular case.”

11 For these reasons I do not find the presumptions against abrogation of common law doctrines or of common law rights to be of any assistance in resolving the proper interpretation of s 15(3) of the Civil Liability Act 2002.

12 I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, “capable of assisting in the ascertainment of the meaning of the provisions” within s 34(1) of the Interpretation Act 1987. I only refrain from using the word “never” to allow for a truly exceptional case, which I am not at present able to envisage.

13 Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief.

14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572–575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168–169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].)

15 The authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power, let alone of the executive power. In the Australian system of the separation of powers, it is the courts which determine what the legislative intention when enacting a particular provision was.

16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)

17 As Mason P indicates, the analysis applicable to the present case commences with the basic proposition that the word “and” is normally conjunctive. (See Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797 at [13]; see also Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at [163].) Like Mason P, I am unable to find anything in the text, context or in the scope and purpose of the legislation which displaces the ordinary and natural meaning of the word “and”.

18 Section 15 of the Civil Liability Act, like the cognate provisions set out by Mason P, seeks to restrict the availability and quantum of damages for gratuitous services. This restriction reflects the basic proposition that a tortfeasor should only pay compensation for actual loss suffered by a plaintiff. In the case of gratuitous services there is no such loss. However, the Parliament recognises, as the Courts did before legislative intervention, that in certain circumstances the tortfeasor should pay an amount in this regard by reason, as I interpret the underlying policy, of the unfairness to the plaintiff and his or her family and friends, that their voluntary support should go unrewarded, when it is provided over and above what could reasonably be expected on the basis of ordinary human bonds and affection. This consideration must be assessed in the context that the tortfeasor would be liable to pay full compensation in the absence of such a display of human bonds and affection.

19 There is no obvious point at which the threshold of unfairness can be said to be passed. Relevantly, it could occur when either the gratuitous services are provided for a long period (relevantly more than six months) or the services are provided at significant inconvenience (relevantly more than six hours per week). That such a threshold could have been expressed in terms of the combined effect of both duration and intensity does not detract from the proposition that, as a matter of policy choice, the relevant unfairness can be established on the basis that either threshold is passed. One cannot expect strict logic when the policy considerations are so elastic. It is not appropriate in such a context for this Court to determine what the policy probably was. The language actually used by Parliament must prevail.

20 What is involved is a once and for all judgment in the sense that, when either threshold in s 15(3) is satisfied, recovery for gratuitous services is open to be awarded. The fact that for purposes of computation, as in the present case, this head of damages is conveniently divided into two periods, ie up to trial and prospectively, does not, in my opinion, require s 15(3) to be applied as if the periods can be disaggregated. Once either threshold is passed the plaintiff is entitled to recover damages for gratuitous services as assessed, subject to the other provisions of s 15.

:

21 The plaintiff (appellant) recovered damages for personal injury resulting from the negligence of an employee (first respondent) of Melhem Civil Pty Limited (second respondent). The issues on appeal relate to findings made by Associate Justice Harrison on economic loss and domestic care. There is also a cross appeal contending that her Honour ought to have made a reduction in damages under s151Z of the Workers Compensation Act 1987 (WCA) and that the assessment of non-economic loss was excessive.

22 On 25 May 1999 the appellant injured his lower back when he lifted a towbar of a “Super Dog” trailer to attach it to a tipper truck. He was employed by Woollams Equipment & Plant Hire Pty Ltd (Woollams) to clear a building site using an excavator. His specific duties were to remove the verandah of the existing house, level out the front yard and remove the trees and rocks. He was to put the discarded material into the back of the tipper truck, after which his co-worker, Mr Melhem (employed by the second respondent), would take the loaded truck from the demolition site to the tip.

23 The appellant agreed to assist Mr Melhem in attaching the trailer to the tipper truck and the two men lifted the towbar together. The trial judge found that the appellant and Mr Melhem initially bore an equal amount of the load but that when Mr Melhem took the weight off his right leg to kick a block of wood under the standing leg of the trailer, the load shifted resulting in the appellant bearing more than half of its weight and incurring the back injury.

24 The learned judge found (at J44-5) (all “J” references herein relate to paragraphs in the judgment of 24 November 2006) that the respondents were liable because they required that the towbar of the trailer be lifted manually when it should have been done mechanically. Mr Melhem had been required by his employer to make a similar manual lift with another person on about ten prior occasions. There was a reasonable practical alternative, namely a mechanical means of adjusting the height of the trailer such as by a jockey wheel in working order. This finding of negligence is not challenged in this appeal.

25 The judge found (at J81) that “the accident caused or substantially contributed to the plaintiff’s back injury”. Her Honour accepted the evidence of Dr Dan (a neurosurgeon who treated and operated on the appellant’s back) that the appellant had a 15% permanent impairment of his back, a 5% permanent loss of efficient use of the left leg at or above the knee, a 7.5% loss of efficient use of the right leg at or above the knee and impaired sexual function due to the lower back disorders (J85-86). The appellant was not fit to return to labouring or heavy work due to his back injury (J123).

26 The judge also found that the appellant had exaggerated the intensity of his back and leg pain and that part of the explanation for the exaggeration was his drug use (J120). The extent of that drug use and its impact on the appellant’s condition and employability are contentious matters underpinning many of the grounds of appeal.

27 In the months following the accident the appellant noticed he was getting very depressed (J61). He tried hydrotherapy and physiotherapy but, while they helped him get through the day, they did not help his condition in the longer term. The doctors changed his medication from time to time. A laminectomy in August 2001 reduced the severity of the pain radiating into his legs (J84).

28 At the trial the appellant admitted to smoking marijuana and the use of cannabis both before and after the accident, and it was mentioned in a number of the medical reports he and the respondents had tendered (see for example Blue 152A and 249). The respondents tendered a report of Mr Haralambous (clinical and forensic psychologist) which revealed the apparently much greater extent of the appellant’s drug abuse. Mr Haralambous attributed the appellant’s history of depression to his drug use. In his opinion, the injury in May 1999 did not cause any identifiable symptoms of a diagnosable psychological condition. The trial judge accepted the opinion of Mr Haralambous and found that the appellant’s depression was more likely to have been caused by his drug use, although it was accepted that the accident may have worsened his depression. (J106)

29 The judge made the following assessment of damages:

$
Non economic loss	235,000.00
Past Treatment	102,524.80
Future medical treatment and expenses	38,436.44
Past economic loss	82,750.00
Future loss of earning capacity	100,555.00
Loss of superannuation (Past, Future and Interest)	9,915.48
Domestic assistance and attendant care	23,107.33
Claim for tax on compensation payments	28,564.67
TOTAL	584,941.22

30 The appellant challenges findings that underpin the calculation of: past economic loss; future loss of earning capacity; loss of superannuation; and domestic assistance and attendant care.

31 He also disputes the rejection of his claim for future domestic assistance. This issue throws up a question of the correct interpretation of s15(3) of the Civil Liability Act 2002 (the CLA). The appellant sought leave to challenge earlier decisions of this Court and he relied upon interstate appellate decisions that placed a different interpretation on identical provisions in those jurisdictions.

32 The respondents filed a cross appeal challenging the decision not to reduce the damages awarded under s151Z of the WCA. The respondents also challenge the amount awarded for non-economic loss.

33 The appellant was born on 25 July 1974. He was therefore a little under 25 years old at the date of the accident and 32 at the date of trial.

34 He left school after Year 10, having completed his school certificate and described himself as an average student. He worked as a labourer in various situations before 1996 and 1999.

35 He decided to operate plant equipment. To do this on his own he needed a licence. This required him to perform 200 hours on the machine and to pass a test. Between about 1998 and 1999 he completed his 200 hours and he was to undergo a test on the weekend after the accident. Harrison AsJ found that he would have passed the test and that he had all skills necessary to operate an excavator (J133).

36 The appellant commenced employment as an unlicensed excavator operator with Woollams about three months prior to the accident. His intention was to remain with that employer for another 2.5 years and then to seek work in the mines at Kalgoorlie.

37 As indicated, the judge found that the accident caused or substantially contributed to the appellant’s back injury at the L4/5 disc level. He was not fit to return to labouring or heavy work due to the injury (J123).

38 The appellant has not been employed since the accident, save for a short period of light work in a pub. He said that he may be able to work in a nursery (J135). Her Honour assessed his residual earning capacity at $140 nett per week (J137) and this finding is not challenged by either party. The dispute on economic loss relates to the type and level of work the appellant would have been capable of performing had he not been injured, and the rates of pay referable to it.

39 Her Honour found that the appellant would have worked at Woollams for about 2.5 years (ie to December 2001) had he not been injured. The appellant regarded himself morally indebted to Mr Woollam (J132), with the consequence that he would have stayed with that employer until he was ready to try his fortune in Kalgoorlie. Her Honour also found that during this initial period the appellant was totally incapacitated for work due to the injuries and disabilities suffered in the accident (J136).

40 Past economic loss for this first period of 2.5 years was assessed at $59,800 on the basis of loss of the income the appellant was earning from Woollams immediately before the accident. The appellant has not contested this component of the award in the Recalculated Schedule of Damages tendered to this Court on 6 December 2007. Since, however, the findings upon which it was based are relevant to calculating later periods of economic loss and since those findings have been challenged in the latter context, it is necessary to understand all steps in her Honour’s reasoning on economic loss.

41 The appellant claimed in his Particulars that but for the accident he would have earned from $460 to $640 (average $550) per week nett between May and September 1999 (Red 11). At the trial he submitted that he was earning approximately $640 per week, but his evidence was uncorroborated and it was unsatisfactory in some respects (see J131). There were no tax returns. Harrison AsJ thought it significant that he had not worked on a fulltime basis with Woollams (J136) and her Honour calculated the lost income for this first period on the basis that he worked, on average, four days per week at seven hours per day at the rate of $20 per hour = $560 = nett $460 (J136).

42 The rate of $20 per hour was the casual rate being paid to the appellant by Woollams prior to the accident. Her Honour also had regard to the evidence of Mr Haldane, who had been the appellant’s supervisor at Storm Constructions in 1996 when he was first learning to operate the excavator. Mr Haldane had continued his own employment with Storm Constructions up to the trial. He gave evidence that in 2006 excavator operators started on between $20 and $22 per hour (a bit higher than the labourers’ rate) depending on experience; and that if they were good and had been operating the machine for a long time, they could get up to $30 per hour (Black 234, J133). The judge placed the appellant at the lower end of Mr Haldane’s ($20-$30) spectrum (see J138) and she recorded that, prior to the accident, he had had a number of periods off work, the longest being a significant period of about nine months. She reiterated in this context her view that the appellant’s drug use was unlikely to have abated (J134).

43 The appellant argued that different criteria would have applied after December 2001 when he had discharged any obligations to stay with Mr Woollam. He gave evidence that it had been his intention to move to the mines at Kalgoorlie, working as an excavator operator presumably on his own account. In his Particulars he had claimed upwards of $1200 net per week for this type of work (Red 11). The judge did not think that he would have gone to work at the mines (J132).

44 Her Honour’s dispositive findings referable to past economic loss from 1 January 2002 onwards were:

134 However, prior to the accident, the plaintiff had a number of periods off work, the longest being a significant period of about nine months. He was, at the time of the accident, 25 years of age. As previously stated, it is my view that it was unlikely that the plaintiff’s drug use would have abated. He had been regularly using drugs since 15 years of age. Just prior to the accident he had peaked in his drug use, smoking at least 15 to 20 cones per day, maybe more. As previously stated, it is my view that the plaintiff’s motivation and psychiatric state is largely attributable to his continued heavy drug use and had the accident not occurred, the plaintiff’s future would have been uncertain. Ultimately, the plaintiff would no longer have been able to hold down a fulltime job. From time to time the plaintiff may have cut down his drug use and been able to work again for a while. The most likely scenario is that he would have worked periodically. It is possible that the plaintiff would have, at some time in the future, sought treatment for his drug addiction. It is possible that, ultimately, treatment may have been successful. The future was uncertain.

…

137 From 1 January 2002 onwards, the task of assessing the plaintiff’s loss of earning capacity due to the accident is more difficult. I agree with Dr Chen that the plaintiff is capable of performing the type of work outlined by her on a part time basis. I assess this amount of casual or part time work to be between 7 to 10 hours per week somewhere between $15 to $20 per hour nett. I assess the plaintiff’s residual earning capacity at $140 nett per week.

45 The appellant no longer presses a claim for economic loss based upon his plan to go to Kalgoorlie. His Recalculated Schedule adopts the judge’s findings for the period up to 31 December 2001 and challenges the award for the subsequent periods on a twofold basis.

46 First, the judge is said to have erred in maintaining the pre-accident figure of $460 nett per week throughout this later period despite evidence of rising rates and falling taxes. It is also contended that the appellant would have moved from casual to weekly rates after he left Woollams. Second, the judge is said to have erred in applying a 50% discount due to the problems stemming from drug use.

47 In his Recalculated Schedule the appellant proposes that past economic loss from 1 January 2002 to the date of judgment below should be calculated as follows:

01/01/02 – 09/07/02	(27 x $442.43)	Less 25%	$8,959.20
10/07/02 – 09/07/03	(52 x $455.03)	Less 25%	$17,746.17
10/07/03 – 31/03/04	(38 x $477.23)	Less 25%	$13,601.05
01/04/04 – 09/07/05	(66 x $493.16)	Less 25%	$24,411.42
10/07/05 – 10/09/05	(9 x $510.74)	Less 25%	$3,447.49
11/09/05 – 09/07/06	(43 x $513.61)	Less 25%	$16,563.92
10/07/06 – 24/11/06	(19.5 x $548.51)	Less 25%	$8,021.95

48 For future economic loss the appellant proposes an award of $347,618.21 calculated as follows:

49 These calculations proceed on contestable assumptions as regards (i) weekly rates and (ii) a 25% allowance for vicissitudes.

50 As to (i) (weekly rates), the calculations incorporate what is said to be the award rate for an excavator operator at the relevant times. These are the nett weekly rates shown in Schedule A to a document showing “Agreed Figures” that was handed up at trial (Blue 88-9). The rates are stated to be award rates for a shovel excavator up to 3 cubic metres.

51 The appellant submits that these figures should have been adopted because they were agreed. Alternatively, they reinforce the argument that the primary judge erred in sticking to the 1999 hours and casual rates when calculating economic loss after 1 July 2002. The 1999 situation involved payment at casual rates for 4 days per week at 7 hours per day. This reflected the work being offered by Woollams to an (as then) unlicensed excavator operator. Since the appellant would have been both fully qualified and freed from his moral obligation to Mr Woollam by January 2002 there was no reason, so the submission went, for using any base rate other than the nett award rate as adjusted from time to time up to the date of judgment. Such an approach would also factor in the reduction in taxation that occurred during the period in question.

52 As to (ii) (vicissitudes), the appellant concedes that the findings about the negative impact of depression stemming from prolonged drug abuse could justify a greater than standard (15%) discount for vicissitudes. But the judge’s deduction of 50% on the appellant’s future earning capacity with reference to drug use and its negative impact is challenged both as excessive and as involving an element of double counting.

53 With respect to point (i) above, we have not been shown any passage in the trial transcript indicating that the figures were ‘agreed’. The mathematics may have been, but the submissions at trial (which are not fully transcribed) show that there was never a consensus that the appellant would have worked full time had he not been injured (see Black 350). In truth, there was a live factual dispute about that issue which focussed upon the evidence of Mr Haralambous that was resolved against the appellant by the judge.

54 There was ample psychiatric evidence to show that the appellant is clinically depressed and that this condition is likely to remain despite treatment including appropriate medication (eg Dr Murugesan at Blue 128, Dr Parmegiani at Blue 245). Dr Parmegiani, who had been retained by the respondents for medico-legal purposes, concluded that the appellant suffered an adjustment disorder with depressed mood that was caused by chronic pain. He thought that the appellant would continue to adjust psychologically to his physical injuries, and periods of depression would lessen in frequency and magnitude over time, but it was questionable whether his mood and self esteem would return to pre-injury levels as long as he was in pain. This conclusion was, however, based upon a recorded history that makes no reference to drug abuse and that assumed only the task of discerning the psychiatric sequelae of the back injury suffered in the accident.

55 Mr Haralambous is a clinical and forensic psychologist with extensive experience and who has been involved in the training of mental health practitioners. He examined the appellant in August 2006 on behalf of Woollams in relation to its continuing liability for workers compensation payments. His report was served by the respondents some three days into the hearing.

56 The report involved a clinical interview of the appellant, the administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and a review of accompanying documents consisting of a Report of Dr Yui Key Ho dated 29 May 2006 and other documents that were not identified.

57 Mr Haralambous observed that the responses on the MMPI-2 suggested that the appellant is “depressed and unhappy, and that he feels hopeless and pessimistic about the future in general and, more specifically, about the likelihood of overcoming his problems and making a better adjustment” (Blue 279). His opinion included the following (Blue 280, 281, 282):

On the basis of the information available before me, including Mr Harrison’s account at interview, his responses on the objective, evidence based measures of the MMPI-2, and the available documents, it is my opinion that, from a psychological perspective, the primary and most substantive form of disturbance in the case is associated with chronic, pervasive, and persistent substance abuse that long precedes the alleged injury of May 1999.

…

… [I]t is my opinion that the circumstances of Mr Harrison’s employment have not substantially contributed to any persistent symptoms of diagnosable psychological pathology. Rather … it is my opinion that, from a psychological perspective, the primary and most substantial form of disturbance in this case is associated with chronic, pervasive, and persistent substance abuse that long precedes the alleged injury of May 1999.

58 The report was objected to at the trial on a number of bases, including that it was served out of time and the appellant had not had an opportunity to tender a psychologist’s report of his own (Black 270). The appellant’s representatives initially sought to restrict the use of the report to matters of credibility and not as evidence of the truth of the facts asserted. However, the next day the report was tendered and admitted without objection (Black 333). The appellant did not seek an adjournment, or to cross-examine the witness.

59 The primary judge accepted the accuracy of the detailed history of substance abuse commencing in the early teens, which Mr Haralambous records as having been supplied by the appellant and upon which his prognosis is based (see especially Blue 276-7). Section 60 of the Evidence Act 1995 armed her Honour with authority to do this in relation to a medical report admitted without objection or qualification. Mr Haralambous’ recorded history is most explicit in its detail and it was available to the court as evidence by way of admission from a party.

60 The history includes heavy daily doses of cannabis since the appellant was 15 years old, plus prolonged periods in which LSD and amphetamines were ingested. The appellant also told Dr Chen that, before injuring his back, he smoked 10 to 30 cones of marijuana per day and he was often stoned at work (Blue 249).

61 Her Honour’s summary of the history recorded by Mr Haralambous (at J89-97) is interspersed with discussion comparing aspects of the recorded history with the appellant’s testimony. The judge was alive to the appellant’s partial denial of the recorded history, but she was not bound to accept that denial and she was generally unimpressed with the appellant’s credibility (see especially J8, 75). In my opinion, these conclusions were well open to her. I am not persuaded to reach a different conclusion on the matter.

62 There was specialist psychiatric evidence from sources additional to Mr Haralambous to the effect that heavy use of marijuana could cause depression (see Dr Bashford, summarised at J113).

63 In my view, the judge has not been shown to have erred in her conclusion that the appellant had developed a serious and entrenched drug habit from 15 years of age onwards which would, on the balance of probabilities, not have abated upon marriage nor with the benefit of maturing years (J77).

64 Her Honour’s conclusions about the extent and impact of this substance abuse upon the appellant’s depression are at J105-106. Since J105 addresses the impact upon the capacity to obtain and retain employment it is convenient to repeat these paragraphs in reverse order:

106 From the reports of Dr Chen and Mr Haralambous, it is clear that the plaintiff is and was a heavy drug user, both before and after the accident. Just prior to the accident he was smoking somewhere between 10 to 40 cones per day and on his own evidence, he had until recently been smoking up to 10 cones per day, but it was probably more. The plaintiff’s depression was pre-existing and not caused by the accident in May 1999. The depression was more likely to be caused by his entrenched drug use. However, I accept that the accident may have caused his depression to worsen after the accident. The level of depression the plaintiff now suffers is not as severe as it was for some months after the accident.

65 Apart from disputing the history upon which Mr Haralambous’ opinion was based, the appellant challenged her Honour’s acceptance of that opinion and her conclusions (at J134, 138 set out above) that, uninjured, the most likely scenario was that the appellant would have worked only periodically; that he may possibly have sought treatment for his drug addiction, with uncertainly as to its likely success; and that (save for the first phase until 31 December 2001) economic loss should be calculated on the basis of $20 nett per hour, the lower end of the range for qualified excavator drivers, subject to a 50% discount because of the likely adverse impact of the drug abuse.

66 The appellant submits that her Honour should have placed greater reliance upon the evidence of the working history prior to the accident. He worked for eight of the nine years since he left school, during which time he did the 200 hours training necessary to obtain his excavator’s licence. In short, he (and his employers) had coped during this period despite the excessive drug usage.

67 In my opinion these considerations do not falsify her Honour’s conclusions which were, to a large degree, predictive and which based themselves upon the evidence of Dr Chen and Mr Haralambous as well as the judge’s assessment of the appellant himself. It is also to be remembered that s13(1) of the CLA placed the onus squarely upon the appellant to satisfy the court that his likely future circumstances were as sanguine as now contended.

68 Harrison AsJ had good reasons to be sceptical about the appellant’s credibility and her Honour was not satisfied that the long-term prospects were as favourable as claimed. This Court, in turn, would need to be persuaded of error before it could overturn the necessarily impressionistic conclusions of the trial judge as regards the impact of the accident upon hypothetical matters.

69 The appellant’s submission that there was “no evidence” to support her Honour’s approach is clearly wrong, in light of the evidence of Mr Haralambous and Mr Haldane.

70 In my view, the primary judge was entitled to conclude that the appellant’s work history might well remain sporadic and uncertain, given his earlier work history, his many unsuccessful attempts to break his habit (Black 167) and the evidence about the depressive and negative impacts of prolonged substance abuse. The appellant’s ongoing depression is likely to affect both his motivation to seek work and his capacity to retain it.

71 The respondents submitted that J138 (set out above) is to be read as a finding that the appellant would not have worked as a fulltime excavator even with a licence. I agree.

72 The appellant said that there were times in the past when he had worked while stoned as a labourer (Black 164). He would, however, have expected to be sacked on the spot if this had been his condition when working an excavator worth $40,000 (Black 164, 165).

73 Her Honour did not overlook the submission that, at the time of the accident, the appellant was approaching a time in his life where the prospect of “settling down” might have led to him getting effective and lasting treatment for his addition. Her observation at J77 shows that that matter was addressed and rejected in a manner that could attract no criticism.

74 The appellant also submitted in this Court that greater weight should have been placed upon the more optimistic prognoses of the doctors whose reports he relied upon. Several of these doctors were apparently ignorant of the history of drug abuse and/or focussed entirely upon what they understood to be a purely physical problem. In my view, the judge has not been shown to have erred in forming the conclusion (see eg J109, 110) that these views needed to be substantially discounted because those doctors were not appraised of the full extent of the history of drug taking. I would add that none of the doctors had the demonstrated expertise of Mr Haralambous as regards the psychological impact of such matters. Her Honour concluded that it was unlikely that the appellant’s drug use would have abated (J134).

75 With respect to point (ii) above, the appellant’s strongest argument in this area is his submission that the judge erred in both treating the 1999 work experience as indicative of his future employment situation and then halving that 1999 income level. The judge further reduced damages by 15% for vicissitudes which the appellant says involves double counting, or at least to have been an excessive discount. As indicated, the appellant’s counsel has proposed a 25% discount (in lieu of the conventional 15% for vicissitudes and the judge’s 50% discount in earning capacity) as more appropriate.

76 In my view, there was no double counting and I am not persuaded that the judge’s award was outside an available range. The tribunal of fact had a wide discretion in determining that which was incapable of mathematical calculation and necessarily impressionistic (see generally State of NSW v Moss [2000] NSWCA 133, 54 NSWLR 536). Her Honour’s approach to the task followed the mandate of s13(2) of the CLA.

77 The $20 per hour figure that was adopted was that suggested by Mr Haldane as the lower end of a spectrum for an excavator as at the date of the trial. Furthermore, the evidence of Mr Haralambous was that the appellant’s current excessive drug use appears to be hindering rather than facilitating any return to work (Blue 283). Mr Haralambous gave specific evidence about the difficulties of persons with the appellant’s profile of responses (to the MMPI-2 test) to cope with stress and responsibility (Blue 279).

78 In concluding that I would not disturb the award for economic loss on the basis that it is too low, I have also taken into account my impression that the award for non-economic loss is very much at the top end of an appropriate range. This matter is discussed in the next section of these reasons. The appropriateness of an appellate court declining to interfere with individual components of a damages award unless it is satisfied that the award as a whole is unduly high or unduly low is well established (see Robinson v Riley [1971] 1 NSWLR 403).

79 Harrison AsJ explained her award of $235,000 representing 55% of a most extreme case, as follows:

123 I have referred to the plaintiff’s injuries and disabilities in detail earlier in this judgment. I take into account that the plaintiff was only 25 years of age when the accident occurred. He is a relatively young man. I accept that the accident has significantly impacted upon his life. I also accept that the plaintiff’s back injury was caused, or substantially contributed to, by the accident. On 9 August 2001, the plaintiff underwent surgery at L4/5. After the operation the plaintiff was in less pain. Half of the pain in his back had dissipated and the shooting pains down his legs disappeared, but he was left with back pain and some diffuse pain in his legs. On any view, the plaintiff is not fit to return to labouring or heavy work due to his back injury.

80 This award is challenged as excessive by the respondents in their cross-appeal.

81 The respondents submits that her Honour overlooked her earlier findings about the drug abuse preceding the accident and its continuing negative impact on the appellant after the accident.

82 I acknowledge that there is some tension between the conclusions on economic loss and the assessment that the appellant’s tort-induced injuries and disabilities placed him in the category of 55% of a most extreme case.

83 Nevertheless, the respondents bore the evidentiary burden of disentanglement and her Honour specifically referred to the need to exclude the impact of pre-accident drug abuse in J124.

84 There were also findings that the appellant’s exaggeration of the intensity of his back and leg pain was partly attributable to his drug taking (J120). I understand this to be acceptance of the evidence of Dr Chen (Blue 254) and Mr Haralambous (Blue 279) each of whom referred to the capacity of drug abuse to cause added pain, stress, inability to cope and other negative impacts that would generally boost a claim for non-economic loss damages. The respondents were certainly not responsible for leading the appellant into his history of prolonged drug abuse. But the respondents take their victim as they find him and the back injury inflicted on the appellant has been found to have contributed to significant permanent pain and discomfort with a range of physical and psychological impacts. The appellant was only 25 at the date of the accident.

85 The nub of the respondents’ challenge to the award of damages for non-economic loss is the tension that appears to exist between the approach to economic and non-economic loss. Bearing in mind that her Honour dealt severely with the appellant’s claim in the former category I would not disturb her award for non-economic loss even though it strikes me as very generous having regard to the need to factor out to an appropriate degree the negative impact of the earlier drug abuse.

86 Accordingly, I would dismiss the cross-appeal.

87 In their cross-appeal the respondents also challenge the decision not to reduce the damages by reference to s151Z of the WCA.

88 Her Honour concluded (J54):

54 The request to carry out the lift was not made by the plaintiff’s employer. It was made by an employee of Melhem Civil Pty Limited. The request was to lift a trailer which was not located at the work site. The lifting of a trailer did not form part of the duties expected to be performed by the excavator operator. The lift was to be carried out in accordance with the directions of Jimmy Melhem. The employer was not appraised of the task to be carried out by either Jimmy Melhem or the plaintiff. It is my view that the accident occurred as a result of an independent act. Therefore, the employer is not liable to make any contribution.

89 The respondents accepted that they bore the onus of proof in showing that the employer breached its duty of care to the appellant (Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174). They submit, however, that the damages awarded to the appellant should be reduced by 25% because the employer would, if sued, have been held liable to the appellant.

90 The respondents submit that the employer could not and did not discharge its non-delegable duty of care by sending the appellant to the building site on a three day job and telling him that the owner of the premises would give him instructions as to what had to be done (J14).

91 The nub of the respondent’s submission is that heavy lifting was a likely part of the appellant’s ordinary day’s work. That he might be asked to assist others, such as the co-worker Mr Melhem who was operating the tipper truck used for the removal of debris, was a distinct possibility. Yet there was no instruction to refuse such assistance and no instruction in the manner of safe lifting. We were referred to the well-known passage in McLean v Tedman (1984) 155 CLR 306 at 313.

92 The respondents sought to bolster their argument by pointing out that the appellant’s injury would have been compensable by his employer as having arisen out of or in the course of his employment. This is obviously correct, but not to the point. I read her Honour’s reference to the accident occurring as a result of an “independent act” as conclusory shorthand for the preceding reasoning in J54 which points to the unlikelihood of the employer having realised that the appellant might be asked to assist in lifting the towbar of a heavy trailer that was defective for want of a mechanical lifting device.

93 In my view, the judge did not err in acquitting the employer of the putative claim in negligence. There was no evidence about what a reasonable employer might be expected to do in these circumstances. This was not a case of a body hire employer sending an employee out to perform a known task under another’s supervision. The possibility that the appellant, who was an experienced labourer, might have been called upon to lift the towbar of a trailer that was parked away from the work site, that had been disconnected from the truck ordinarily pulling it and that needed manual lifting because it had no jockey wheel in working order was really a very remote one. The employer was not guilty of negligence causative of injury in failing to anticipate this combination of events and give instructions about responding to it.

94 The appellant was entitled to be compensated for his loss of capacity to look after himself which was caused by the accident. Damages are to be assessed by reference to his need for care (see generally Kars v Kars (1996) 187 CLR 354). These common law principles were, however, modified by s15 of the CLA which provides:

15 Damages for gratuitous attendant care services: general

gratuitous attendant care services means attendant care services:

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

95 The appellant claimed a need for 20 hours per week attendant care from the date of the accident and continuing (Blue 94-5, J143). The services involved were gratuitous attendant care services within s15.

96 Harrison AsJ divided the claim into two periods. The first was from 25 May 1999 to 13 September 2001, representing the period between the accident and a date that allowed the appellant to recover from his back operation in August 2001. For this period of 120 weeks her Honour found a need for 11.5 hours per week and calculated compensation in the sum of $23,107.33 in accordance with s15(5) (J145-6).

97 The second period was from 14 September 2001 to date of judgment and continuing into the future. Her Honour found that the need for domestic care during this period was four hours per week, and she indicated her intention to award damages totalling $91,307.63 calculated in accordance with s15(5) (J147-151).

98 The judge’s attention was then drawn to this Court’s decision in Roads and Traffic Authority v McGregor [2005] NSWCA 388, 44 MVR 261 (“McGregor”) concerning the interpretation of s15(3). Recognising that she was bound by that decision, despite personal doubts as to its correctness, her Honour determined to make no award for future domestic care and to limit the award for the past to $23,107.33 (Harrison v Melham (No 2) [2006] NSWSC 1293, 46 MVR 8).

99 McGregor held that s15(3) requires demonstration that the “gratuitous attendant care services” provided or to be provided to meet a plaintiff’s need are provided or to be provided for both at least six hours per week and six months concurrently before damages for services are recoverable with respect to the period in question. In other words, a need that continues for 12 months (or even a lifetime) is to be ignored unless its intensity requires six or more hours per week of services. So too a need for six or more hours per week of services is to be ignored unless it lasts for at least six months. McGregor followed this Court’s earlier decision in Geaghanv D’Aubert [2002] NSWCA 260, 36 MVR 542 (“Geaghan”)and applied it to a case, like the present, where the plaintiff had passed the dual length and intensity threshold in respect of a discrete portion of the claim for past damages for care. McGregor held, in effect, that the plaintiff could recover damages for that earlier period but that this provided no passport to recovery of damages for a later period where one only of the dual requirements were satisfied.

100 The Queensland Court of Appeal and the Victorian Court of Appeal have arrived at a contrary interpretation of textually similar provisions in those States (see Grice v State of Queensland [2006] 1 Qd R 222, [2005] QCA 272 (“Grice”); Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210 (“Alcoa Portland”) discussed below). And the correctness of McGregor was doubted by this Court in Sheridan v Borgmeyer [2006] NSWCA 201 at [41].

101 The appellant gave notice of his intention to challenge McGregor, if necessary. This Court was convened with five members and we heard full argument on the matter.

102 Senior counsel for the appellant submitted that s15(3) applies only where both conditions (a) and (b) are satisfied. He invited the Court to construe s15(3) according to its plain or literal meaning and in accordance with the reasoning in Grice and Alcoa Portland. He also argued that the appellant had passed s15(3)’s threshold.

103 In their dissenting judgment in Van Gervan v Fenton (1992) 175 CLR 327 Deane and Dawson JJ referred (at 346) to the fact that some legislatures had reversed the decision in Griffiths v Kerkemeyer (1976) 139 CLR 161. They added:

226 The alternative construction would mean that a claimant whose need extended beyond six months would obtain full compensation for services required, although never satisfying the intensity requirement of six hours per week. Similarly, the claimant who had a short-term need for services at an intensity of six hours per week would recover, although the need did not last six months. There was nothing in the statutory material referred to by the President which suggested that, since 1993, short duration or low intensity were considered alternative, rather than cumulative, bases of disqualification.

227 There remains a question as to whether these conclusions should be varied in the light of authority.

228 That each of the two bases of disqualification contained in s 72(2) and (4), prior to the 1993 amendments, were seen as separate and sufficient bases of disqualification was accepted by this Court in Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319 at [74] (Beazley JA, Spigelman CJ, Powell and Stein JJA agreeing). That view was accepted without dissent in Geaghan v D’Aubert [2002] NSWCA 260; 36 MVA 542 at [29] (Stein JA, Handley JA and Foster AJA agreeing). Indeed, that conclusion as to the operation of s 72 in its original form was a major stepping stone to the further conclusion accepted in Geaghan that the amendments did not give rise to a different result. Thus, Stein JA stated at [38]:

“Given the extrinsic material referred to above and the legislative history of s 72 of the 1988 Act, together with the various object provisions in the Act, a purposive construction leads to the conclusion that s 72(2) requires both limbs (a) and (b) to be satisfied before compensation is payable under the provision. No compensation is to be awarded if less than 6 hours per week of service is provided or is to be provided. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months.”

229 As the President has noted, the extracts relied upon as taken from the Minister’s second reading speech, were not. Nevertheless, the critical statement appearing in the Attorney’s speech in reply is consistent with that in fact found in the second reading speech and with the construction accepted by the Court: Parliamentary Debates (NSW), Legislative Council, 27 October 1993 at 4501 and 4497. Importantly, the case turned upon the six hour intensity condition, the trial judge having accepted that the services were needed for a period of 141 weeks, being well in excess of the six month duration condition. The need to satisfy both duration and intensity conditions was therefore essential for the result.

230 As is apparent from the foregoing history, New South Wales had legislated well before the publication in September 2002 of the Final Report of the Committee established by the Commonwealth on the Review of the Law of Negligence (“the 2002 Report”). The judgment in Geaghan was handed down on 13 August 2002, prior to the publication of the Report, which was forwarded to the Minister under a letter dated 30 September 2002. Understandably, Geaghan was not referred to in the 2002 Report, but recommendation 51, which sought to adopt the threshold contained in the New South Wales legislation – see par 13.85 – contained the following principle:

“Damages for gratuitous services shall not be recoverable unless such services have been provided or are likely to be provided for more than six hours per week and for more than six consecutive months.”

231 The threshold contained in the Personal Injuries Proceedings Act 2002 (Qld), s 54(2), as in force in 2002, mirrored the New South Wales provision. That provision was the subject of consideration in Grice, referred to above. The question which now arises was dealt with by McMurdo P at [9]-[26]. Her Honour referred to the second reading speech of the Attorney-General in introducing the Bill, which included the following statement (found at [12] in the judgment):

“An award for gratuitous services can only be paid if the service is required for a minimum of six hours per week and for a minimum of six months.” (Parliamentary Debates (Qld), Legislative Assembly, 18 June 2002, p 1849.)

232 In Grice, the Court concluded that disentitlement arose only if both the duration and intensity preconditions were not met, accepting the determination of the trial judge that that was the “ordinary literal meaning” of the provision: at [5] and [24]. Accordingly, McMurdo P concluded that it was “immediately obvious” that the Attorney-General’s statement set out above was “inconsistent with the words subsequently enacted by Parliament”: at [13]. Her Honour declined to follow Geaghan on four bases. The first was that the Motor Accidents Act applied “solely to claims for damages for injuries suffered in motor vehicle collisions whereas the Queensland Act did not apply to such injuries”: at [23]. That was strictly true although its significance is not self-evident, but it did not take account of the fact that a similar provision was then found in the Civil Liability Act 2002 (NSW).

233 Secondly, her Honour noted that the Queensland and New South Wales statutes were not “part of a uniform national legislative scheme”: at [23]. That also was literally true, but did not constitute a reason for not applying the same construction to materially identical language unless persuaded that this Court was clearly wrong in Geaghan, or that there was a sound basis for adopting a different construction of the linguistically identical provisions.

234 Thirdly, her Honour concluded that the statutory scheme in New South Wales differed, by reference to the statement of objects in the New South Wales Act, the historical form of s 72 as originally enacted and the extrinsic material which supported the construction adopted in New South Wales. The first two aspects were valid points of distinction. The third only marginally so, given that the extrinsic material in Queensland confirmed that the intended approach was that adopted in Geaghan.

235 Finally, her Honour sought to invoke the principle set out in Coco (and in Potter v Minahan (1908) 7 CLR 277 at 304 and Bropho v Western Australia (1990) 171 CLR 1 at 18) in support of the need for clear and unambiguous language to impair an otherwise unfettered common law right to damages for gratuitous services. For reasons set out above, that principle had muted (if any) consequences in the present circumstances.

236 Both McMurdo P and Williams JA treated the remarks of the Attorney in the second reading speech as inconsistent with the language of the statute, without acknowledging the possibility of ambiguity. As explained by Williams JA:

[40] Were a statutory provision so limiting the recovery of damages has a clear literal meaning, that meaning should be preferred to an arguably alternative construction supported by the Second Reading Speech.”

237 Unless the legislation is clearly distinguishable, it is unfortunate that different constructions should be adopted in this State and in Queensland. It is at least highly unlikely that the Queensland legislation adopted virtually identical language without the drafter intending to give similar effect to the language. True it was that the legislation was introduced prior to the decision in Geaghan, but it does not follow that the courts of one state should not follow an authoritative interpretation adopted in the other even though adopted after the enactment of the legislation in the latter state. That course can only be justified if there are legitimate points of distinction to be drawn between the provisions or the judgments. The two points of distinction which were undoubtedly valid were the earlier history of s 72 of the Motor Accidents Act and the inclusion of stated objects in the New South Wales Act. For reasons already given, the statement of objects was, in my view, of limited assistance to the resolution of the relevant ambiguities. Accepting that the history of s 72 was a relevant point of distinction, it would follow that there is no obligation on this Court to follow the decision of the Queensland Court of Appeal in Grice. If other points of distinction were (contrary to the views just expressed) valid, that conclusion would be strengthened and the apparent disparity in laws would be one which is justifiable, despite the similarity in language of the respective statutes. The different result in Grice would not then support reconsideration of Geaghan.

238 Any difference of approach is now no longer relevant, the Queensland Act having been amended and replaced by s 59(1)(c) of the Civil Liability Act 2003 (Qld) which adopted the construction preferred in Geaghan: see Grice at [22].

239 The facts in Grice involved the claimant receiving gratuitous services for more than six hours per week for nine weeks, but at the intensity of only four hours per week thereafter, indefinitely. It appears to be implicit in the judgment that the duration provision could be satisfied by any level of intensity, including one below six hours per week. Once it was so satisfied, all constraints were removed.

240 An equivalent provision has also been adopted in Victoria: see Wrongs Act 1958 (Vic), s 28IA. The section was included in response to the recommendations of the 2002 Report. The issue of construction came before the Court of Appeal in Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority [2007] VSCA 210. The principal judgment of the Court was delivered by Chernov JA, with whom Maxwell ACJ relevantly agreed. Neave JA also agreed with Chernov JA but added some brief comments on the construction of s 28IA at [46]-[50]. It is convenient to deal first with her Honour’s brief comments. Her Honour commenced with the proposition that the “plain words of the section prohibit the award of damages for gratuitous attendant care services only if both conditions in s 28IA are satisfied – that is if the plaintiff requires services for less than 6 hours per week and for less than 6 months”: at [48]. Her Honour concluded that the words of the section “do not support a construction of the section which requires the word ‘and’ to be read as ‘or’”: at [50].

241 Chernov JA also identified the issue (as apparently did counsel for Alcoa) as whether or not the section should be given “a literal meaning”: at [34]. His Honour noted the submission by the respondent that there was no warrant for reading sub-s (2) “disjunctively”: at [33].

242 For reasons set out above, there is at least one ambiguity in the provision which is not resolved by a “literal” meaning, nor is the alternative to read the paragraphs disjunctively as if joined by “or”. Nevertheless, Chernov JA accepted that the “ordinary natural meaning of the words of the section” indicated there was no preclusion of compensation unless both matters were satisfied: at [35]. That issue was squarely raised on the facts. The need for services was held to be one which would continue “indefinitely” but at the intensity of no more than one hour per week: at [30].

243 The Court followed Grice and distinguished Geaghan on the same bases as those espoused in Grice: see [36]-[38].

244 The Court dealt in a similar manner with the contrary views expressed in the Victorian Parliament by the Premier in his second reading speech. As explained at [41], the Premier had stated:

“In line with recommendations of the Ipp report, the bill restricts access to damages for gratuitous attendant care to those cases where … the care is required for at least 6 hours a week for at least six months. … This provision mirrors those being introduced in most states.” (Parliamentary Debates (Vic), Legislative Assembly, 21 May 2003, p 1786: the reference to “the Ipp Report” is to the 2002 Report, identified by reference to its chair, Ipp JA.)

245 Chernov JA made the following comments in respect of that speech:

“41. There are a number of obvious errors in that speech to which I will refer later. But first is it necessary to mention the relevant aspects of the Ipp Report which, in general terms, was concerned with the just and practical way of limiting the quantum of awards of damages for negligently caused personal injuries or deaths. [The recommendations were then adverted to.]

both

246 As already noted, the 2002 Report both recommended the adoption of the New South Wales threshold provision and, in recommendation 51, paraphrased the effect of the provision. Although Geaghan had not been decided, the paraphrase accurately reflected the proper understanding of the provision as established by this Court in 2002. The fact that the Victorian Parliament adopted the language of the New South Wales Act after the decision in Geaghan might have provided a basis for concluding that, in the context of legislation which was then intended to be adopted nationally, the interpretation given in the 2002 Report (and by this Court) should have been accepted. The fact that it was not depended to a large extent on the Court declining to see any degree of ambiguity in the language of the provision. For reasons set out above, in my view there is a significant degree of ambiguity and, in particular, in relation to the issue regarding the operation of the threshold conditions. Nevertheless, it is sufficient for present purposes to note that no doubt was cast in Alcoa on the correctness of Geaghan in construing the New South Wales provision.

247 In Roads and Traffic Authority v McGregor [2005] NSWCA 388; 44 MVR 261 a question arose as to whether the intensity condition operated on a continuous basis. The duration provision had been satisfied prior to the trial over a period of some 3.5 years during the whole of which the intensity condition had also been satisfied. However, in relation to future care, the trial judge had allowed an amount calculated at the rate of four hours per week. This Court held that no amount could be allowed for the future, the intensity condition in effect providing an ongoing precondition to recovery: see M W Campbell AJA at [160]-[174] (McColl JA and Bell J agreeing). That approach is in accordance with the analysis set out above and should be followed.

248 Although the Court empanelled a five judge bench to consider whether it should overrule its earlier decision in Geaghan, little attention was paid in submissions as to the circumstances in which this Court might properly overrule its earlier decision. In general terms, the appropriate principles are those stated in Nguyen v Nguyen (1989-1990) 169 CLR 245 at 269 in the joint judgment of Dawson, Toohey and McHugh JJ. Accepting that appeal courts of the Supreme Courts and of the Federal Court should not consider themselves strictly bound by their own previous decisions, their Honours nevertheless stated:

“Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.”

249 Further, as noted by Gleeson CJ in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-100, there is a tension between the “principle of restraint embodied in the axiom stare decisis” and the important principle that the Court “should give effect to the intention of Parliament”. His Honour concluded (at 100G):

“However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decision[s] it must entertain a strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice.”

250 Other factors are relevant to the question, including those discussed in John v Federal Commissioner of Taxation (1988-1989) 166 CLR 417 and by Aickin J in Queensland v The Commonwealth (1977) 139 CLR 585 at 621. Most are not relevant in the present circumstances. However, one potentially relevant circumstance would be a decision of the High Court which had cast doubt upon, without overruling, the earlier decision of the intermediate court of appeal; another might be where another intermediate court of appeal had cast doubt upon the decision or had refused to follow it as “clearly wrong”. The latter proposition flows from the comment in the joint judgment of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]:

“Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.”

251 That principle would no doubt apply, though with less force, in relation to common statutory language albeit found in legislation which was not uniform across the country: see discussion (obiter) in Tillman v Attorney-General (NSW) [2007] NSWCA 327 at [19]-[46] (Mason P), [106]-[110] (Giles and Ipp JJA).

252 A further factor which will militate against reconsidering an earlier decision is that legislation has been re-enacted on the basis of that decision. As already explained, s 72 of the Motor Accidents Act has been given a broader operation, as a result of its incorporation into later statutes, but prior to the decision of this Court in Geaghan. An additional statutory amendment now requires consideration.

253 In Sullivan v Gordon, to which reference has been made above, the claim for compensation was not in respect of care required by the appellant, but care required by her children for services which she was unable to provide. The decision upholding such a claim was reversed by the High Court in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1. However, the effect of Sullivan v Gordon was restored by the enactment of s 15B of the Civil Liability Act, which commenced on 20 June 2006. In Sullivan v Gordon, a decision involving a five judge Court, Beazley JA (with whom other members of the Court agreed) treated the claim for assistance in caring for children as part of a claim under Griffiths v Kerkemeyer (1976-1977) 139 CLR 161, which would constitute a claim for attendant care services under the statutory provisions, relevantly at that time s 72 of the Motor Accidents Act. The inclusion of s 15B did not have the effect of defining attendant care services in s 15(1) to include such a claim, but rather made separate provision for such a claim. Nevertheless, in doing so, it adopted a similar threshold to that found in s 15(3), but adopted the construction approved in Geaghan in unambiguous language. Thus, s 15B(2) provided (relevantly):

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months….”

254 There are a number of respects in which s 15B is not a mirror image of s 15: see, eg, s 15B(3). Nevertheless, it would be anomalous if a different operation were given to the duration condition and the intensity condition under s 15B(2)(c), as opposed to those found in s 15(3). In other words, it appears that the Parliament has enacted subsequent legislation, based on the approach in Geaghan, so that the abandonment or overruling of Geaghan would cause a statutory anomaly. Such an outcome provides a significant reason for not overruling Geaghan, were that decision otherwise thought appropriate.

255 As a matter of construction, Geaghan was correct in its conclusions with respect to the operation of s 72(2) of the Motor Accidents Act. While it is true that Geaghan was decided after that provision was included in relevantly identical terms in the Motor Accidents Compensation Act and the Civil Liability Act, it is appropriate to construe all three pieces of legislation in the same way, there being no basis for distinguishing one provision from another. Accordingly, the approach adopted in Geaghan should be applied to s 15(3) of the Civil Liability Act.

256 Whether or not the decisions in Grice and Alcoa were correct in relation to the respective legislation in Queensland and Victoria is not presently in issue. It is sufficient to say that Geaghan was distinguished in each and that neither cast doubt upon the correctness of that decision.

257 Far from being compelled to the conclusion that the decision in Geaghan was clearly wrong, it was, in my view, correct. It may be that an intermediate court of appeal will more willingly review an earlier decision of its own where that decision has not been followed by other intermediate courts of appeal construing similar or identical legislation. Nevertheless, neither the Queensland nor the Victorian Court of Appeal, in reviewing Geaghan, thought it to be wrong in relation to the New South Wales legislation. No question of inconsistency arises in relation to Queensland law, which has been amended so that it is now in conformity with New South Wales law as applied in Geaghan. A discrepancy arises with respect to the Victorian interpretation of its Wrongs Act, but that is not a reason for this Court to abandon its earlier position, given the willingness of the Victorian Court of Appeal to distinguish Geaghan.

258 In my view, to the extent that the trial judge applied Geaghan her Honour was correct and the appeal with respect to the assessment of compensation for attendant care services should be dismissed.

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17/10/2008 - incorrect figures - Paragraph(s) Coversheet Order 2, Headnote Order 2, [44], [190] Order 2

28/04/2009 - par [2] reference [118] should be [88], par [117] paragraph [95] should be par [115]par [128] paragraph [91] shoudlb e par [111] - Paragraph(s) [2], [117], [128]

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Citations

Harrison v Melhem [2008] NSWCA 67

Most Recent Citation

Walker Corporation Pty Ltd v Director-General of the Department of Environment and Climate Change (No. 2) [2009] NSWLEC 177

Cases Citing This Decision

155

Daly v Thiering [2013] HCA 45

McBride v The King [2025] ACTCA 16

McIver v ACT [2024] ACTCA 36

Cases Cited

66

Statutory Material Cited

14

Roads and Traffic Authority v McGregor [2005] NSWCA 388

Geaghan v D'Aubert [2002] NSWCA 260

Grice v State of Queensland [2005] QCA 272

Cited Sections

Reported Decision:	72 NSWLR 380
Appeal Outcome:	Special leave application refused with costs by the High Court – 14 November 2008

CITATION:	Harrison v Melhem [2008] NSWCA 67 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 December 2007
JUDGMENT DATE:	29 May 2008
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 21; Beazley JA at 191; Giles JA at 192; Basten JA at 193
DECISION:	1 Appeal upheld in part 2 Vary the judgment entered in the Common Law Division by substituting $676 248.85 for $637.409.62 3 Cross appeal dismissed 4 Respondents to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 if qualified.
CATCHWORDS:	APPEAL AND NEW TRIAL – Appeal – general principles – excessive or inadequate damages – damages excessive – amount not so large as to be entirely erroneous – errors in principle in relation to particular components - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – loss of earnings and earning capacity – expense flowing from plaintiff’s inability to work – particular cases – where loss of earning capacity attributed to injury and also to drug use – whether attributing for drug use an error - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – method of assessment – generally – claim for domestic assistance – where assistance required for less than 6 hours per week but for more than 6 months – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – words to be given literal and grammatical meaning – Civil Liability Act 2002, s15(3) - STATUTES – Acts of Parliament – interpretation – rules of construction – where meaning ambiguous or uncertain – presumptions as to legislative intention - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic material – legislative history of the Act – previous state of law and mischief to be remedied – Civil Liability Act 2002, s15(3)
LEGISLATION CITED:	Civil Liability Act 2002 Evidence Act 1995 Health Care Liability Act 2001 Interpretation Act 1987 Motor Accidents Act 1988 Motor Accidents (Amendment) Act 1993 Motor Accidents Amendment Act 1995 Motor Accidents Amendment Act 1997 Motor Accidents Compensation Act 1999 Motor Vehicles (Third Party Insurance) Act 1942 Personal Injuries Proceedings Act 2002 (Qld) Private International Law (Miscellaneous Provisions) Act 1995 (UK) Workers Compensation Act 1987 Wrongs Act 1958 (Vic)
CASES CITED:	Alcoa Portland Aluminium Pty Ltd v Victoria WorkCover Authority [2007] VSCA 210 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Beech v Eagles [2005] VSC 231; (2005) 141 LGERA 155 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 Brennan v Comcare (1994) 50 FCR 555 Bropho v Western Australia (1990) 171 CLR 1 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Coco v The Queen (1994) 179 CLR 427 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 CSR Ltd v Eddy [2005] HCA 64, (2005) 226 CLR 1 Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Geaghan v D’Aubert [2002] NSWCA 260, (2002) 36 MVR 542 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Grice v Queensland [2005] QCA 272; [2006] 1 Qd R 222 Griffiths v Kerkemeyer (1976) 139 CLR 161 Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349 Hadjigeorgiou v New South Wales Crimes Commission [2007] NSWCA 197; (2007) 174 A Crim R 124 Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1 Harrison v Melham (No 2) [2006] NSWSC 1293; (2006) 46 MVR 8 Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24; (2004) 218 CLR 89 John v Federal Commissioner of Taxation (1988-1989) 166 CLR 417 Kars v Kars (1996) 187 CLR 354 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Kriz v King [2006] QCA 351; [2007] 1 Qd R 327 La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported Lennon v Gibson & Howes Ltd [1919] AC 709 Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Matadeen v Pointu [1999] 1 AC 98 Maunsell v Olins [1975] AC 373 McDonnell v Congregation of Christian Brothers Trustees & Ors [2003] UKHL 63; [2004] 1 AC 1101 McLean v Tedman (1984) 155 CLR 306 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2004) 210 CLR 1 Nguyen v Nguyen (1989-1990) 169 CLR 245 Nolan v Clifford (1904) 1 CLR 429 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 Pennsylvania v Union Gas Co (1989) 491 US 1 Pepper v Hart [1993] AC 593 Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Potter v Minahan (1908) 7 CLR 277 Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 Queensland v The Commonwealth (1977) 139 CLR 585 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 R v Bolton; Ex parte Beane (1987) 162 CLR 514 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261 Robinson v Riley [1971] 1 NSWLR 403 Sheridan v Borgmeyer [2006] NSWCA 201 Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327 Van Gervan v Fenton (1992) 175 CLR 327 Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 242 ALR 383 Wik Peoples v Queensland (1996) 187 CLR 1 Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816
PARTIES:	Scott Beau Harrison (Appellant) Jimmy Paul Melhem (First Respondent) Melhem Civil Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40863 /06
COUNSEL:	C Barry QC, M Boulton (Appellant) M T McCulloch SC, D J Hooke (Respondents)
SOLICITORS:	R J Kirby (Appellant) Ebsworth & Ebsworth, Lawyers (Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20159/05
LOWER COURT JUDICIAL OFFICER:	Harrison AsJ
LOWER COURT DATE OF DECISION:	29 November 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Harrison v Melham (No 2) [2006] NSWSC 1293