The Western Australian Attorney General recently tabled the Law Reform Commission’s Final Report on Project 106: Provisional Damages and Damages for Gratuitous Services

The report was researched and written by Marsden Jacob with support from Macpherson Kelley and was developed following consultation with relevant stakeholders.

The Commission was requested to examine the law and make recommendations in relation to two areas:

  1. whether the ‘once and for all’ rule under the common law should be modified through the introduction of ‘provisional damages’
  2. whether a specific head of damages for the value of gratuitous services (domestic or otherwise) provided by the plaintiff to others should be introduced.

The reference to the Law Reform Commission from the Attorney General was triggered by a proposal to amend compensation payable to victims of asbestos related diseases in WA.

However, the Law Reform Commission were asked to consider whether these reforms should be introduced broadly, just for asbestos victims or not at all.

Put simply the reforms considered are:

  • Provisional damages is the ability to obtain further damages if the victim gets sicker
  • Compensation for loss of gratuitous services undertaken by the victim is unpaid work such as being a parent or carer

Both of these forms of compensation are available for asbestos compensation in some other states – but the approach and constraints vary from state to state. Currently neither form of compensation are available in WA.

The report recommends the reform of personal injury compensation through the introduction of a provisional damages regime and that damages for gratuitous services which a plaintiff can no longer provide to others be introduced in Western Australia.  The Commission also recommended that the proposed reforms should be implemented unless the costs are determined to substantially outweigh the benefits.

The project team (Alex Marsden and Lizzie O’Brien from Marsden Jacob) were complimented on their approach, consultation and analysis.

The report is available on the Law Reform Commission’s webpage here.

The Attorney General’s statement on the report is available on Hansard here.

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