SEPTEMBER 2008

IN THIS ISSUE

Please Select an Article to Read

• Australian Law Reform Commission’s Privacy Report – Health Update
• Special Commission of Inquiry into NSW Public Hospitals releases its First Report
• Pharmacists and Franchising
• Accessing funds in the current market environment
• Aged Care Update
• Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice
• Case note: Peer evidence as to competent medical practice
• Proposed changes to general requirements for labelling of medicines
• Windfall for Medical Insurers in Medical Malpractice Cases
• Protecting Root Cause Analysis in NSW private health facilities
• Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
• New procedures for Medical Negligence Claims in the NSW Supreme Court
• IVF Donors to lose anonymity under new legislation in New South Wales

 

Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act

 

Claims for domestic assistance

Since Geaghan v D’Aubert it has been accepted that section 15(3) of the Civil Liability Act (CLA) was to be interpreted as imposing a threshold before voluntary domestic assistance could be awarded, requiring both:

• an intensity of need of six hours per week or more, and
• a duration of six months or more

Harrison v Melham

Now in the case of Harrison v Melham a special five judge bench of the New South Wales Court of Appeal has overruled both Geaghan v D’Aubert and RTA v McGregor (which was to the same effect). 

The Court of Appeal by a 4:1 majority has now ruled that section 15(3) of the CLA is to be interpreted as a preclusion which applies only if both limbs, (i.e. less than six hours per week intensity and less than six months duration) are satisfied. 

If a plaintiff establishes a need for voluntary domestic assistance which endures for six months or more, whatever its intensity (e.g. half an hour per week) he is entitled to damages for it.  Similarly, if a plaintiff establishes a need for voluntary domestic assistance that is of six hours or more per week intensity, he is entitled to damages for it even if it endures only for one week.

The practical utility of either limb of what we must now call a preclusion rather than a threshold, is in my view reduced to virtually nil.  I believe the legislature needs to urgently amend section 15(3) to restore its operation as imposing a two limb threshold.  The legislature already has a template to achieve this in the form of section 15B(2)(c), which effects a partial restoration of Sullivan v Gordon damages.

As section 15B(2)(c) operates as a threshold requiring both six hours per week and six months, the distinction between a need for assistance in performing personal domestic activities and a lost ability to care for or assist dependants may become vitally important.  Are cooking dinner, cleaning the pool and mowing the lawn (as examples) actions performed as personal domestic activities, or to care for one’s dependants?

Written by William Wade, Special Counsel