Civil Liability Laws
Mr JEFF HUNTER: I direct my question to the Attorney General. Will he update the House on changes to civil liability laws to assist injured persons and their dependents?
Mr BOB DEBUS: I thank the honourable member for his question.
Mr SPEAKER: Order! I call the honourable member for Wakehurst to order.
Mr BOB DEBUS: Until October 2005 so-called Sullivan v Gordon damages were awarded by courts in New South Wales in negligence actions. These were damages designed to compensate those injured through negligence for the cost of domestic services they were no longer able to provide because of their injury. In October 2005, the High Court disallowed the award of such payments. The court highlighted a number of uncertainties with these damages and also the difficulty faced by the courts in identifying boundaries for the damages when there are no clear underlying principles for such damages. The court acknowledged that while there may be a number of policy reasons to justify such damages, it was a matter for Parliament, and not the courts, to decide whether and in what circumstances, these damages should be awarded. Unfortunately, this is not merely an academic debate about the law. The fact is that considerable hardship can arise if these damages are completely barred, as two current cases illustrate.
In one case an Adelaide woman dying of mesothelioma sought damages for the care involved in raising her nine-year-old triplets. She would be entitled to what are known as Griffiths v Kerkemeyer damages, which would provide her with support such as house cleaning and personal care so long as she is alive—which is vitally important because her husband works full-time—and the damages make up for her role as the children's primary care giver. However, when she dies, those damages will no longer be available and as a result of last year's High Court decision her family would not have been entitled to Sullivan v Gordon damages when she died either. They would have had have no support at all.
In a case closer to home a New South Wales man dying of mesothelioma obtained damages for the cost of providing care to his wife. His wife is legally blind and he did all of the household shopping and chores as well as managing the family finances and driving his wife to her appointments and accompanying her whenever she went out. Substantial Sullivan v Gordon damages were paid to this man to enable those tasks to continue being undertaken. However, as a result of October's High Court ruling, those payments are now the subject of an appeal, which may leave this woman—now sadly a widow—with no support at all.
Clearly, these sorts of consequences cannot be allowed to stand in New South Wales. It is only appropriate that we in this State take advantage of the opportunity offered by the High Court to revisit Sullivan v Gordon damages. In fact, a recent inquiry by General Purpose Standing Committee No. 1 of the Legislative Council recommended precisely that step. The Government is of the view that in some cases of serious injury it is appropriate for these damages to be available. Accordingly, I am today releasing for public consultation a proposal to amend the Civil Liability Act to partially reinstate those damages.
The exposure draft bill provides a right for seriously injured people to recover in negligence actions the cost of domestic services they are unable to continue to provide to their dependants as a result of their injury. In the light of the High Court's concerns, however, it is important that these damages be structured to allow recovery only in cases of the greatest need. The injured person will need to show that his or her dependants need domestic assistance for at least nine hours a week and for at least six consecutive months. Damages will be calculated at an hourly rate on the basis of average weekly earnings. It will also be necessary to show that the injured person's dependants have a real need for the services in two senses: first, that they cannot provide those services for themselves; and, secondly, that their need for the services is reasonable in all the circumstances.
The provisions of the bill partially reinstating Sullivan v Gordon damages are proposed to apply to claims made under the Civil Liability Act 2002, to motor accidents claims and to dust diseases claims. The bill also proposes a change to Griffiths v Kerkemeyer damages in dust diseases claims by extending the current cap on the hourly rate in the Civil Liability Act to dust diseases claims. The Government's proposals are contained in an exposure draft bill and background paper, which, as I have said, is being released today for public comment. Honourable members and the public can access those documents on the Cabinet Office's website at www.cabinet.nsw.gov.au. Given the anxiety felt by families and individuals left in a state of uncertainty by the High Court's ruling, the Government believes that these reforms are urgent. Therefore, the consultation period will be brief, with submissions open until 20 April 2006.
I encourage all interested parties to obtain a copy of the bill and the background paper. I look forward to presenting the final bill to this House at the earliest available opportunity because families who have seen a loved one grievously injured or killed should not also suffer the indignity of losing the care provided in the past through Sullivan v Gordon damages.