MOTOR VEHICLE (THIRD PARTY INSURANCE) ACT 1943 - SECT 3D
MOTOR VEHICLE (THIRD PARTY INSURANCE) ACT 1943 - SECT 3D
3D . Restrictions on damages for provision of home care services
(1) This section
limits the damages that may be awarded for the value of gratuitous services of
a domestic nature or gratuitous services relating to nursing and attendance
that have been or are to be provided to the person in whose favour the award
is made by a member of the same household or family as the person.
(2) No damages are to
be awarded for the value of the services if the services would have been or
would be provided to the person even if the person had not suffered the bodily
injury.
(3) If the services
are provided or to be provided for not less than 40 hours per week, the amount
of damages awarded for their value is not to exceed the amount calculated on a
weekly basis at the rate of —
(a) the
amount estimated by the Australian Statistician as the average weekly total
earnings of all employees in Western Australia for the relevant quarter; or
(b) if
the Australian Statistician fails or ceases to make the estimate referred to
in paragraph (a), the amount fixed by, or determined in accordance with, the
regulations.
(4) In subsection
(3)(a) the relevant quarter means the quarter in which the services were
provided or, if at the date of the award an estimate as referred to in that
paragraph is not available to the court for that quarter or the services are
yet to be provided, the most recent quarter for which such an estimate is
available to the court at the date of the award.
(5) If the services
are provided or to be provided for less than 40 hours per week, the amount of
damages awarded for their value is not to exceed the amount calculated at an
hourly rate of one-fortieth of the weekly rate that would be applicable under
subsection (3) if the services were provided or to be provided for not less
than 40 hours per week.
(6) If the amount of
damages that may be awarded under subsection (3) or (5) is Amount D or less,
no damages are to be awarded for the value of the services provided or to be
provided.
(7) In subsection (6)
Amount D 1 means —
(a) for
the financial year ending on 30 June 1994, $5 000; and
(b) for
any subsequent financial year, the amount recalculated as Amount D under
subsections (8) and (9).
(8) By operation of
this subsection and subsection (9) Amount D is recalculated annually with
effect from 1 July ( the recalculation date ), commencing on 1 July 1994, by
varying Amount D for the preceding financial year —
(a) by
the percentage by which the weighted average minimum award rate for adult
males under Western Australian State Awards published by the Australian
Statistician varies between 1 April in the calendar year preceding the
recalculation date and 31 March in the calendar year of the recalculation
date; or
(b) if
the relevant information is not so published, in accordance with the
regulations.
(9) If the amount
recalculated under subsection (8) is not a multiple of $500 it is to be
rounded off to the nearest multiple of $500 (with an amount that is $250 more
than a multiple of $500 being rounded off to the next highest multiple of
$500).
(10) On or before 1
July in each year the Minister is to publish a notice in the Gazette setting
out Amount D as it will have effect on and from that 1 July 1 .
(11) Failure to
publish, or late publication of, a notice under subsection (10) does not
affect the operation of subsections (8) and (9).
(12) The issue of
whether damages may be awarded for the value of gratuitous services is to be
determined by reference to Amount D as in effect on the date on which the
determination is made.
[Section 3D inserted: No. 17 of 1994 s. 5.]