Civil Liability Amendment Bill 2006
Reverend the Hon. Dr GORDON MOYES: I speak on behalf of the Christian Democratic Party on the Civil Liability Amendment Bill. The object of this bill is to partially reinstate what are known as Sullivan v Gordon damages in cases of greatest need. In the 1999 case of Sullivan v Gordon the New South Wales Court of Appeal allowed an injured claimant to recover damages for the loss of capacity to perform gratuitous services for other people, such as the claimant’s family and those living with the claimant. For example, a single and incapacitated mother may not be able to care and provide for her young children due to an obvious impairment to function. Sullivan v Gordon damages would provide commensurate assistance to the family in this scenario.
On 4 April 2006 the Attorney General in the other place referred to the case of a New South Wales man dying of mesothelioma. The man, whose wife is legally blind, did all the household shopping and chores, managed the family finances, drove his wife to her appointments and accompanied her whenever she went out. This man was paid Sullivan v Gordon damages to enable those tasks to continue being undertaken. It is of importance to note that these damages are different from another damages category, known as Griffith v Kerkemeyer damages, which compensate the claimant for the claimant’s need for gratuitous services to be provided to the claimant.
This bill has been because of a development in the High Court in relation to Sullivan v Gordon damages. In October 2005 in CSR Limited v Eddy the High Court considered these damages for the first time. The court held that the case of Sullivan v Gordon and all subsequent cases relying on it should be overruled. In the majority judgment by Chief Justice Gleeson and Justices Gummow and Heydon, the justices outlined how the basis of Sullivan v Gordon damages was not supported by accepted principles underlying the award of damages. Further, the justices noted:
A possible ground for not overruling Sullivan v Gordon might exist if it had achieved certain types of legislative recognition. An example would arise if the legislatures had enacted legislation which assumed its existence and correctness, particularly if the legislation was only workable on the assumption of its correctness.
The justices referred to legislation in Queensland, Victoria and the Australian Capital Territory that enshrined the notion of Sullivan v Gordon damages. Thus, because of this High Court ruling, all Sullivan v Gordon damages awarded by New South Wales courts are appealable. This bill seeks to partially entrench Sullivan v Gordon damages. This will be accomplished by permitting the recovery of damages by a claimant for the claimant’s loss of capacity to provide gratuitous domestic services to the claimant’s dependants. The bill defines “dependents” in relation to a claimant as the spouse of the claimant; a de facto partner of the claimant; a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant; any other person who is a member of the claimant’s household; and any unborn child of the claimant.
I note with great interest the latter dependant. The Government has been reticent to allow any legal personality to unborn children, and I welcome this definition as a highly commendable one. This bill will apply to claims under the Civil Liability Act 2002, motor accidents claims and dust diseases claims. Importantly, the bill will require that damages are available only in cases involving the greatest need. Thus, damages may be awarded only in the following instances: first, where the services will be needed for at least nine hours per week and for at least six consecutive months; second, where there is a reasonable expectation that, if the claimant had not been injured, the claimant would have provided the services for the required time; and, third, where the claimant’s dependants must not be capable of performing the services themselves by reason of their age or physical or mental incapacity.
In reference to the first point, it is of importance to point out that the Law Society has concerns with the threshold being set at nine hours. The Law Society has indicated that the Government has departed from the original threshold determined in Sullivan v Gordon , where the Court of Appeal found that a person who had lost the capacity to care for a child should be compensated on the same basis as the traditional Griffiths v Kerkemeyer claim?that is, damages should be awarded if care is required for at least six hours a week. The Civil Liability Amendment Bill sets the threshold for claims at nine hours a week, so care must be required for nine hours, rather than six hours, as determined by the High Court in Griffiths v Kerkemeyer , before a claimant is entitled to provisions. According to the Law Society:
The Government has not provided any reason for departure from the Griffiths v Kerkemeyer threshold. Financial implications should not be a factor as insurers have, since 1999, been collecting premiums on the understanding that Sullivan v Gordon damages applied. There would be no further cost to the insurers or the insured should the threshold be amended to 6 hours.
The Law Society has called on all crossbench members to support the amendment. I would be interested to know why there is a discrepancy between the threshold prescribed under the bill and the one given for the Griffiths v Kerkemeyer test. Notably, the hourly rate for damages will be capped at the existing rate for Griffiths v Kerkemeyer damages. Further, the bill will extend the existing hourly rate cap for Griffiths v Kerkemeyer damages to dust diseases claims. The Government has indicated that this change will ensure that the amount that can be recovered is capped on a consistent basis with Sullivan v Gordon damages and that the bill does not increase the overall cost of dust diseases claims. It is of interest to note that recommendation 12 of an inquiry headed by General Purpose Standing Committee No. 1 was that Sullivan v Gordon damages for gratuitous services provided by the claimant be restored. The Government is to be commended for taking particular notice of the committee’s recommendation. In April this year the Attorney General released an exposure draft of this bill, with submissions being open until 20 April. The policy reasoning behind this bill has merit. In view of such, this bill ought to be upheld. I commend the bill to the House.