Hill v Forrester

Case [2010] NSWCA 170

New South Wales


Court of Appeal


CITATION: HILL v FORRESTER [2010] NSWCA 170
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 20/07/2010
 
JUDGMENT DATE: 
10 November 2010
JUDGMENT OF: Tobias JA at 1; Handley AJA at 17; Sackville AJA at 65
DECISION: (1) Appeal allowed.
(2) The judgment of the District Court (including the order as to costs) set aside.
(3) In lieu thereof, substitute judgment for the plaintiff (respondent) in the sum of $34,409.00.
(4) The defendant (appellant) pay the plaintiff’s (respondent) costs of the District Court proceedings on the ordinary basis.
(5) The respondent pay 50% of the appellant’s costs of the appeal (including the application for leave to appeal).
(6) The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951.
CATCHWORDS: DAMAGES – personal injuries – gratuitous care – threshold of 6 continuous months care – satisfaction – whether plaintiff entitled to damages for earlier periods of care for less than six months. - CIVIL LIABILITY ACT – gratuitous care – s 15(3) – construction.
LEGISLATION CITED: Civil Liability Legislation Amendment Act 2008
Civil Liability Act, s 15(3)
Interpretation Act 1987
Legal Profession Act 2004, s 340
Motor Accidents Act 1988
CATEGORY: Principal judgment
CASES CITED: Allianz Australia Insurance Ltd v Roger Ward & Ors (6 July 2010) [22]-[33]
Blue Metal Industries Ltd v Dilley [19709] AC 827,
Cai v Zheng [2009] NSWCA 13
Geaghan v D’Aubert [2002] NSWCA 260
Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380
Legal Profession Act 2004
Nicholson v Nicholson (1994) 35 NSWLR 308
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406
RTA v McGregor [2005] NSWCA 388
PARTIES: Simon Hill - Appellant
Sidney Forrester - Respondent
FILE NUMBER(S): CA 09/00298371
COUNSEL: D Robertson & AB Douglas-Baker - Appellant
M Daly - Respondent
SOLICITORS: Osborne Lawyers - Appellant
Maxwell Berghouse & Ives - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 6243/06
LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ
LOWER COURT DATE OF DECISION: 13/05/09





                          2009/00298371

                          TOBIAS JA
                          HANDLEY AJA
                          SACKVILLE AJA

                          Wednesday 10 November 2010
HILL v FORRESTER

Catchwords



      DAMAGES – personal injuries – gratuitous care – threshold of 6 continuous months care – satisfaction – whether plaintiff entitled to damages for earlier periods of care for less than six months.

      CIVIL LIABILITY ACT – gratuitous care – s 15(3) – construction.
      Headnote


      The respondent was awarded damages for personal injuries caused by the appellant’s dog. The award included damages for gratuitous care for three periods:

      (i) 15/9/05 to 12/10/05 27 days for 35hrs week

      (ii) 27/10/05 to 11/11/05 15 days for 35hrs week

          (ii) 29/12/05 to 31/12/06 52 weeks for between 10 and 24 hours a week, and

          (iv) From 1/1/07 to trial and continuing for services for less than six hours a week.


      The Court granted leave to appeal in respect of awards (1), (2), and (4). Section 15(3) of the Civil Liability Act 2002, as amended…

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Hill v Forrester [2010] NSWCA 170
Case
[2010] NSWCA 170
Decision Date

CaseChat Overview and Summary

In *Hill v Forrester*, the New South Wales Court of Appeal considered an appeal concerning damages for personal injuries, specifically the entitlement to compensation for gratuitous care provided to the plaintiff. The dispute centred on the interpretation of section 15(3) of the *Civil Liability Act 2002* (NSW), which imposes a threshold requirement for claiming damages for gratuitous care.

The primary legal issue before the Court of Appeal was whether the plaintiff was entitled to damages for periods of gratuitous care that did not meet the statutory requirement of six continuous months of care. The plaintiff argued that even if individual periods of care were shorter than six months, they should be aggregated or considered in a way that allowed for compensation, particularly for care provided before the six-month threshold was met.

The Court of Appeal, in allowing the appeal, determined that section 15(3) of the *Civil Liability Act 2002* (NSW) requires a single period of gratuitous care to be continuous for at least six months before damages can be awarded for it. The court rejected the plaintiff's submission that earlier periods of care, even if less than six months, could be compensated. The court found that the plain wording of the section precluded recovery for care that did not meet the continuous six-month duration. Consequently, the judgment of the District Court was set aside, and judgment was entered for the plaintiff for a reduced sum of $34,409.00, with orders regarding the costs of both the District Court proceedings and the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) The judgment of the District Court (including the order as to costs) set aside.

(3) In lieu thereof, substitute judgment for the plaintiff (respondent) in the sum of $34,409.00.

(4) The defendant (appellant) pay the plaintiff’s (respondent) costs of the District Court proceedings on the ordinary basis.

(5) The respondent pay 50% of the appellant’s costs of the appeal (including the application for leave to appeal).

(6) The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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