The Law Reform Commission of WA released a discussion paper in November 2015 on provisional damages and damages for gratuitous services. Whilst initiated in response to issues in asbestos claims, the proposed reforms are discussed in the broader context of all personal injury claims.
The Commission’s preliminary assessment is to propose that the “once and for all” rule of damages be modified in WA through the introduction of provisional damages. It is proposed that provisional damages should be available where there is a chance of a different injury or disease arising after the initial judgment or settlement, provided that the new condition was expressly identified at the time of the judgment or settlement.
The Commission did not make a preliminary assessment on the issue of gratuitous assistance and whether the law, as established by the High Court in CSR Limited v Eddy [2005] HCA 64, should be modified to allow a plaintiff to claim the commercial value of gratuitous services which they can no longer provide to others due to suffering a personal injury. However the discussion paper notes that since the High Court decision in CSR v Eddy, six other States have enacted legislation to restore what had previously been referred to as “Sullivan v Gordon damages”.
The Commission noted that if this type of gratuitous service compensation were to be introduced in WA, it would propose that such damages be restricted to gratuitous domestic services provided to relatives who have a reasonable need for those services.
The date for submissions from stakeholders on the discussion paper closed on 15 February 2016. It will therefore be some time before any definitive decision on the proposed reforms is made. If the “once and for all” rule is modified as proposed, defendants will lose the certainty and finality presently available to them when resolving a matter. Costs of claims may also increase if defendants are required to refute a barage of ‘junk science’ linking possible future consequences to the initial injury. For the moment however, it remains a matter of let’s wait and see.
