Damages for gratuitous attendant care services: S15 CLA and Hospital Admissions

  • TurkAlert
  • Published 19.10.2020
Williams v Wollongong City Council (NSWDC 2020) 

Key Takeaways

In a recent decision, the NSWDC held that the recipient of gratuitous attendant care services during a continuous period interrupted only by breaks due to being admitted into hospital is still entitled to qualify for an award of damages under s15 of the Civil Liability Act 2002 (NSW) (‘CLA’).

This case demonstrates that if the provision of gratuitous attendant care services meets the 6-month duration requirement stipulated by s15(3)(b) of the CLA except that the plaintiff could not be provided with such services while in hospital for a medical procedure or period relating to the subject accident, then the 6-month duration threshold requirement may still be satisfied if the provision of the services resumes upon release from hospital.

Brief Facts

The plaintiff, a disability support mental health worker, fell and suffered arm injuries while supervising an adult disabled person in a park near Wollongong. 

As a result of the fall, the plaintiff underwent numerous surgeries over ensuing months. The plaintiff claimed among the various heads of damages the sum of $18,173.60 for past gratuitous attendant care services pursuant to s15 of the CLA. This claim was in respect of the period from the accident date of 17 May 2016 to 9 May 2017.

This decision is mainly concerned with the s15(3)(b) CLA duration threshold requirement of 6 consecutive months. The other s15 CLA threshold requirement is that such services be provided for at least 6 hours per week – s15(3)(a).

In subsection 15(1) of the CLA, the term ‘attendant care services‘ is defined to mean any of the following:

a)    services of a domestic nature,
b)    services relating to nursing,
c)    services that aim to alleviate the consequences of an injury.

Judgment

The defendant Council submitted that the s15(3)(b) CLA threshold requirement that gratuitous attendant care services be provided ‘for a period of at least 6 consecutive months’ is not satisfied if a plaintiff is reliant upon periods spent in hospital for medical treatment, including for treatment for injuries received in the subject accident. 

Dicker DCJ disagreed and held that it would be harsh if a seriously injured plaintiff was refused compensation in respect of gratuitous attendant care services because of a break in the provision of services while in hospital. Dicker DCJ explained at [302] – [303]:

Reliance was placed by the defendant on the decision of the Court of Appeal in Hill v Forrester [2010] NSWCA 170. This point appears to have been left open by members of the Court of Appeal: see at [14]-[16] and [72(ii)].

In my view, the preferred construction of the section in the light of the objectives of the section (inferred from the section especially s15(2)) read with the Act as a whole requires attendant care services to be provided for at least six hours per week and for a period of at least six consecutive months where the plaintiff is available on his or her then current health to be provided such services. If the plaintiff cannot be provided such services because he or she is staying in hospital for a medical procedure for a limited period relating to the accident then the duration requirement may still be satisfied if such services are resumed and provided to the plaintiff when they leave hospital.

Dicker DCJ therefore accepted the plaintiff’s submission and stated that the duration of the assistance should be viewed on a weekly basis consistent with s15(3)(a), rather than a daily basis.

Implications

It is important to bear in mind that one of the rulings in Hill v Forrester (NSWCA 2010) was that once the duration requirement is achieved, periods of less than 6 months that precede both the trial and the 6-month period satisfying the duration requirement are to be the subject of an award of damages (if the intensity period is met in the periods in question). 

The main significance of the recent decision of Dicker DCJ in this NSWDC case is his Honour’s ruling that the duration threshold requirement for the award of damages for gratuitous attendant care services may still be satisfied if the statutory 6-month period of care is interrupted by the plaintiff being admitted into hospital for treatment arising from the injuries complained of, and is otherwise a consecutive period of 6 months. 

The requirement for the gratuitous provision of attendant care services for an aggregate period of 6 months appears not to be affected by this decision. For instance, it would still appear to be the case that the gratuitous provision of care for a total of 5 months should still be viewed as falling short of the s15(3)(b) duration requirement, even if a month-long hospital stay interrupted such care. 

In any event, in cases involving delayed or multiple hospital admissions this NSWDC decision might become significant in the calculation of damages for the provision of gratuitous attendant care services (commonly known as domestic care and assistance) by friends and family of a plaintiff.

Roger Walter

Partner

P: 02 8257 5736

Email Roger