Jenkin as Executor of the Estate of Joan Frances Lewis v Brook - [2009] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JENKIN as Executor of the Estate of JOAN FRANCES LEWIS -v- BROOK [2009] WADC 140

CORAM: O'BRIEN DCJ

HEARD: 1 & 2 SEPTEMBER 2009

DELIVERED : 9 SEPTEMBER 2009

FILE NO/S: CIV 1692 of 2006

BETWEEN: REX GRAHAM JENKIN as Executor of the Estate of JOAN FRANCES LEWIS
Plaintiff
AND
SUSAN BROOK
Defendant

Catchwords:

Application under s 6(1)(a) Fatal Accidents Act 1959 - Whether disabled grand-daughter has claim for loss of grandmother's services

Legislation:

Fatal Accidents Act 1959

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr R Sands

Solicitors:

Plaintiff: Simon Walters
Defendant: Talbot Olivier

Case(s) referred to in judgment(s):

Houareau v Bouyer (1990) Aust Torts Reports 81-044
Nguyen v Nguyen (1990) 169 CLR 245
Ruby v Marsh (1975) 132 CLR 642
Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227
Van Gervan v Fenton (1992) 175 CLR 327
Wright (by their next friend Wright) v Alexander, unreported; FCt SCt of WA; Library No 980046A; 10 February 1998

O'BRIEN DCJ: This is a claim pursuant to s 6(1)(a) of the Fatal Accidents Act 1959 ("the Act").
On 16 September 2005 Joan Francis Lewis ("the deceased") was killed when she was knocked off her bicycle by a car driven by the defendant. The defendant admits liability in negligence.
The plaintiff is the deceased's son and executor of her estate.
The statement of claim pleads that the action is brought on behalf of Jessie Nola Jenkin, the grand‑daughter of the deceased ("Jessie"). The plaintiff claims on Jessie's behalf for loss of dependency, loss of parental care and domestic services.
The plaintiff also claims the cost of funeral expenses in his own right.
Jessie was born on 27 September 1989 and is nearly 20 years old. She has a genetic congenital condition and as a result is severely physically and intellectually disabled.
Before her death, the deceased spent a deal of time caring for Jessie both when she was at school and at her own and Jessie's home. I outline this care in more detail below.
In effect, the plaintiff's claim, as it emerged at trial, is for loss of services provided by the deceased to Jessie from the date of death up until the deceased would have turned 80 years old. The deceased was born on 27 March 1937 and was 68 years old when she died.
The defendant asserts that Jessie's parents have a legal and moral duty to provide for the needs of their child and that any damages awarded for loss of the deceased's services is their loss, not Jessie's loss. The defendant contends that this proposition extends to a situation when the disabled child reaches adulthood.
The defendant asserts that a child suffers no loss where a surviving parent is able to care for the child except the chance that the surviving parent might die or be unable to continue to provide the services and the same principle applies where a child loses a grandparent. Therefore, Jessie has not lost the value of the deceased's services as she has a reasonable expectation that her parents will provide the care and support that she requires.

The relevant sections of the Act

The relevant sections of the Act are as follows:
"4(1)Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime.
(2)…"
Section 6 of the Act provides:
"(1)(a)Every action brought under this Act shall be for the benefit of relatives of the person whose [wrongful] death has been caused …
(2)In every action the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought."
Pursuant to Sch 2 par C to the Act, a grand‑daughter falls within the definition of "relative" of the deceased.

Does Jessie have a claim under the Act?

The relevant legal principles applicable to claim under the Act are authoritatively set out in the case of Nguyen v Nguyen (1990) 169 CLR 245.
A claim under the Act is a claim for a material loss or benefit or tangible advantage which has been lost be reason of the death: Nguyen (supra) at 247, 263.
It is unnecessary to point to some need by which the loss is represented: Nguyen at 263, 264; Wright (by their next friend Wright) v Alexander, unreported; FCt SCt of WA; Library No 980046A; 10 February 1998 per Kennedy J at p 12.
If the deceased made a contribution in services rather than money, damages are recoverable for their loss, whether or not they are, or are to be replaced, provided a pecuniary value can be placed upon them: Nguyen at 247, 254, 263.
A pecuniary value can be placed upon services such as housekeeping services: Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 per Gibbs J; Nguyen at 263.
The loss is not reduced because someone else takes up the services because of the death of the deceased: Nguyen at 266. As Gibbs J observed in Ruby v Marsh (1975) 132 CLR 642 at 658, the loss occurs "at the moment of death" and:
"The expectation of future benefit was destroyed by the death and no subsequent event can increase or diminish the extent of the pecuniary loss then suffered, although it is true that subsequent events may be relevant to the assessment of damages insofar as they render it unnecessary for the court to speculate about the possibilities that have existed at the date of death when the facts themselves have become known."
What is compensated is the loss of services of the deceased and not an assessment of the extent of services now rendered by the parents or someone external to the family, such as a respite centre. So called substitutionary services may be considered relevant to the calculation of damages.
The defendant's counsel relies almost exclusively on the case of Houareau v Bouyer (1990) Aust Torts Reports 81-044 to support the defendant's position. Kennedy J held at 68,104, that is, only in unusual cases that a child can recover a substantial award for his mother's death if his father is still alive and able and willing to discharge his obligations to the child. However, in the present case the claim is that Jessie has suffered the loss of special attention provided by the deceased as distinct from the services ordinarily provided by her parents (in particular her mother) which they were unable to provide themselves given Jessie's special needs and the demands of day to day caring for Jessie.
I do not consider that the principle relied upon by the defendant in Houareau (supra) has the general application which the defendant's counsel submits it does. Certainly, it does not purport to impose on parents of a disabled child a legal duty to care for the child once the child reaches adulthood. In any event, Jessie's mother has fulfilled her legal duty to Jessie when she was a child and it is clear from the evidence that she still believes she has an obligation to continue to care for Jessie in her adult years.
In my view, it is not to the point that Jessie's parents have a legal and a moral duty to care for her. That duty does not mean she has not suffered loss. In this case, Jessie's particular circumstances, including her family situation, and her special needs mean that she has suffered a material loss by being deprived of the grandmother's services.
In my view, this case is distinguishable from the factual scenario in Houareau (supra).

Jessie's disability, care, management and schooling

Jessie has been diagnosed with severe global developmental delay. She also has physical impairments.
Jessie's mother has been her primary carer all her life. There is one other child in the family, a boy, who was born on 1 January 1993 and is now 16 years old. Jessie's parents separated about eight months ago.
Ms Jenkin testified that when Jessie was a baby she was relatively easy to handle. When she became older that as far as her physical needs were concerned there was some difficulty.
Ms Jenkin testified that Jessie has the mental age of a 4‑year‑old child. She testified that Jessie cannot talk; she can only walk for a short distance and only when assisted; she mostly crawls around; she has extensive use of a wheelchair; she is incontinent; and has a degree of spina bifida which means her bowels do not work properly. Jessie cannot feed herself and cannot chew her food. All of her food must be mashed or vitamised.
Ms Jenkin testified that Jessie does not sleep through the night. She goes to sleep with a dummy and if she loses that, she becomes distressed and Ms Jenkin must assist her to retrieve it. Further, Jessie needs to be changed during the night. She only sleeps for three or four hours at a stretch.
Jessie now weighs 45 kilograms and before she obtained funds for a hydraulic changing table, Ms Jenkin would change Jessie's pads by kneeling on the floor as she was too heavy to pick up.
Mr Jenkin testified that he runs his own electrical business. He works six days a week. It appears that on work days he had little to do with Jessie as when he would get home from work she was often in bed. Further, he said that he was of limited help in caring for Jessie. He found it difficult to give her the special attention she required. As Jessie got older, he found that he was of little physical assistance given that she became a young woman and he did not feel comfortable in attending to her dressing and toiletry needs. Ms Jenkin testified that her husband left the care of Jessie to her.
Jessie's brother does not take any role in looking after Jessie.
When Jessie was 3 years old she went to a day centre. When she was 5 years old she attended the Sir David Brand School for disabled children ("the school") in Coolbinia. The family moved to Coolbinia, having bought the deceased's house, to be closer to the school. The deceased lived within walking distance in Dianella.
Ms Kate Pawikowska is a specialist teacher who started teaching at the school in January 2005. She was Jessie's teacher for 2005 and 2006. She said that Jessie had "very, very high needs".
The evidence is that Jessie attended the school between the hours of around 8.30 ‑ 8.45 am to 3.00 pm five days a week.
Ms Pawikowska had seven children in her class, all of whom had similar disabilities to Jessie. There were usually two or three education assistants assigned to her with up to four assistants if the children went on an outing.
Ms Pawikowska testified that a huge part of the day was caring for Jessie's basic needs. Jessie's programme during a day centred on meal times, toileting and playtime.
The playtime centred on tactile and sensory activities. For example, insofar as tactile activities were concerned, paint or bubbles might be spread on a desk and the child would play with them. The sensory activities included massage.
Jessie and the other children were taken swimming one day a week and this was a big part of Jessie's week. On another day a week there was a class outing away from the school.
Ms Pawikowska testified that Jessie did not play with objects. Any object would have to be attached to a string otherwise Jessie would discard the object. She would sit for lengthy periods of time with an interactive partner playing with that person's hands for up to half an hour at a time.
It is clear from all of the evidence about Jessie's life that intense and intensive one on one attention is required to keep her safe and to attend to her basic physical needs. She has been and will continue to be totally dependant on adult care. It would not be an exaggeration to say Jessie requires and has required constant supervision and attention at all times save for the three or four hours during the night where she is able to sleep in one stretch.
Ms Jenkin has been a devoted and loving mother and it seems she has approached the daunting task of looking after Jessie with emotional and physical stamina and with a loving determination that Jessie is given the best care possible. However, as I explain later, with the best will in the world and without in any way lessening her love for Jessie, Ms Jenkin has found the full‑time role too demanding and has decided to place Jessie in long term care ("group housing").

Jessie's relationship with her grandmother

The evidence establishes that Jessie and the deceased had a very close bond extending well beyond the usual grandparent/grandchild relationship.
Ms Jenkin testified that the deceased wanted to contribute to Jessie's care and she encouraged that by suggesting that she attend the school, in effect, to learn how to look after Jessie. The deceased's practical caring of Jessie started when Jessie was about 5 years old, about the time when her brother was born.
The deceased would babysit Jessie in her early years and effectively was on call if Ms Jenkin needed her and requested assistance.
Jessie would sometimes stay with the deceased overnight on Saturdays when her parents went out. The deceased's house was modified to be wheelchair accessible and in other ways to keep Jessie safe.
Ms Pawikowska testified that in the two years she was Jessie's teacher, she observed the relationship between Jessie and the deceased. In her view the deceased was committed and devoted to Jessie and saw beyond her disability.
According to Ms Pawikowska, the deceased would attend school at least two days a week. The deceased always attended on those two days a week when Jessie went swimming or on outings.
The deceased would ride her bike to the school whatever the weather conditions. She would bring homemade juices for Jessie and homemade meals to be frozen for the days when she did not attend the school.
Ms Pawikowska testified that swimming day was very important as this was the only day when Jessie had her hair washed. Jessie was very sensitive to touch and her grandmother was the only person who could wash her hair "without drama".
The photographs tendered show the deceased and Jessie interacting. Although there was no evidence explaining what activities were being pursued and in what circumstances, the photographs speak for themselves. The deceased is depicted assisting Jessie in flotation devices in a swimming pool; walking alongside Jessie as she pushed her wheelchair; assisting Jessie stand up against a piece of equipment; assisting Jessie at a modified bowling alley; pushing Jessie's wheelchair along what appears to be Murray Street on an outing; and holding Jessie's hand as she strokes a baby lamb.
Ms Jenkin testified that the photographs were taken from when Jessie was 14 years old. I might say that the deceased appears to be a young‑looking for a woman who was then in her 60s and she looks to be a fit woman given the activities in which she was involved.
It is clear from the photographs and the totality of the evidence that the deceased assisted Jessie at school in a very practical way.

The extent of services the deceased provided to Jessie before she died: findings

I find that the deceased attended Jessie's school for not less than two days a week and provided the services that I have outlined above.
Further, according to the unchallenged evidence of Ms Jenkin, Jessie would occasionally sleep at the deceased's house Saturday nights. The deceased would look after Jessie during the [school] holidays on every second or third days.
There is no doubt that the deceased's care of Jessie assisted Ms Jenkin and the schoolteachers and carers. The defendant submits that there was accordingly no benefit to Jessie. I do not agree. The services provided by the deceased enhanced Jessie's life. Jessie has high needs and there is no doubt in my mind that the special relationship she had with the deceased facilitated her care (the hair washing exercise is an example of this).
The deceased was not filling a gap in Jessie's care left by her mother or the professional carers. The deceased provided services to Jessie over and above what a parent might legally be required to do. Jessie has lost those services because of the death of the deceased.
Although the time the deceased spent with Jessie providing the services I have outlined cannot be calculated with any degree of mathematical precision, I find that the evidence establishes that the deceased spent at least 2.5 days a week rendering the services to Jessie while she was alive. There is no evidence to suggest that this arrangement would not have continued until Jessie left school and I so find.

The plan for Jessie's care after she left school: the evidence

Ms Jenkin testified that when Jessie was at school, she was allocated 15 nights per month respite care. When Jessie left school, the respite care reduced to five nights per month. Although the evidence is somewhat vague, I understand Ms Jenkin's evidence to be that she had discussed the issue of the reduced respite care with the deceased who offered to look after Jessie for two nights per week. If anything went wrong, she was close by. Ms Jenkin said that was the plan.
Ms Jenkin testified that after Jessie left school, she attended a day centre for four days a week and Jessie would be home on weekends and Mondays. Jessie would go to respite care one night per week. This went on for a year. A year or so after Jessie left school, Ms Jenkin found another respite organisation ("Identity") and by attending the two respite centres, Jessie was able to have three or sometimes four nights a week in respite care. That meant that Jessie was home about two or three nights a week.
Ms Jenkin testified that if the deceased had lived, she would not have put Jessie into the Identity respite care facility. She paid for the two respite facilities because she said she could not handle Jessie any more. She said that the deceased was the back up and they agreed that Jessie would stay with her "a lot". Ms Jenkin had no specific time frame in mind but expected that Jessie would stay with the deceased when she "needed it".
Mr Jenkin testified that his mother was in very good health when she was killed. She did not drink or smoke. Although she had a motor driver's licence, she preferred to walk or ride her bicycle. Mr Jenkin expected that his mother's care for Jessie would continue for about 10 years (effectively until she was 78 years old). Ms Jenkin also expected that the deceased would continue to play a significant role in Jessie's care and wellbeing after she left school. Ms Jenkin testified that if the deceased had lived, she expected that she would still be on call if she needed her to help with Jessie.
Ms Jenkin testified that she can only cope with Jessie for four days a week. If Jessie gets sick, she cannot attend respite care. Ms Jenkin gave the example that Jessie recently developed a cold sore and was unable to attend the respite centre. She had Jessie at home for a week and that wore her out. She had some assistance from a woman who came to the house and helped her shower. However, she said that four days "is about my limit now" [in being able to look after Jessie].
Ms Jenkin testified that earlier this year she hit Jessie. She was diagnosed with depression and prescribed antidepressant medication. This was obviously a very distressing incident for Ms Jenkin to recount but importantly, it illustrates the incessant and unrelenting demands of looking after Jessie, and the toll it takes on Ms Jenkin. It also illustrates the "respite" Jessie herself received from a tired and overwrought mother by being cared for by a loving grandmother.

The extent to which the deceased would have cared for Jessie after she left school: findings

Ms Jenkin was unable to articulate how often she envisaged Jessie would stay with the deceased after she left school. But given her tolerance level and ability to cope with Jessie, the availability of respite, the discussions between Ms Jenkin and the deceased about Jessie's care, I am satisfied on the balance of probabilities that the deceased would have looked after Jessie for two days a week after Jessie left school. There may well have been other times when the deceased would have cared for Jessie as requested by Ms Jenkin from time to time, but I factor those times into the two‑day estimate.

Jessie's long term care: the evidence

Ms Jenkin testified that her application for funding for Jessie to live in appropriate group housing has been approved. She was encouraged to make the application because she said she was told that it could take five or ten years before approval was granted. The application was approved quickly. Jessie is now waiting for suitable housing and caring arrangements.
Evidence from Ms Jenkin and Ms Janet Nesci, who is employed by the Disability Services Commission and who was formerly the local area coordinator for the Jenkin family, could not shed any light on when a suitable placement for Jessie might become available. As I understand the position, the availability of housing does not necessarily mean that Jessie will be accommodated. Suitable caring arrangements have to be put in place for her. Given Jessie's high needs, it will be more difficult to place her than other less disabled people.
The evidence as to what the deceased's involvement in Jessie's care might have been once Jessie was living away from the family home is understandably vague. It would be difficult to make any firm plans about Jessie's care away from the group housing as no‑one would be able to predict how she would settle in either in the short or long term.
Ms Jenkin testified that there would be times when Jessie would come home. Given the deceased's role in Jessie's care which I have outlined, I have no doubt that Jessie would have stayed overnight with the deceased from time to time and that the deceased would have spent some time visiting and caring for Jessie in much the same way as she did at school.
Unfortunately, there was no evidence as to how the group house would operate or its staffing. For example, there is no evidence as to whether a family member could visit and provide the level of care which the deceased provided for Jessie when she was at school. As matter of commonsense, I would expect that given the high needs of Jessie that assistance from a competent and caring relative would be welcomed.

The deceased's role in Jessie's long term care: findings

On the evidence, I am satisfied that Jessie would have stayed overnight with the deceased at least occasionally after Jessie's allocation to group housing. Further, I am also satisfied that the deceased would have continued to provided the same or similar services to Jessie once she moved from the family home if the facility allowed such involvement.
However, there is a difficulty in estimating the extent of the deceased's involvement for the following reasons.
First, there is no evidence as to when Jessie might be placed in group housing. It might be months or it might be years away. The deceased would now be 72 years old had she lived. Her age or health might have been factors preventing her from caring for Jessie in the long term facility depending, inter alia, on when Jessie secures placement.
Secondly, there is no evidence as to how the group housing would operate and whether relatives would be permitted to provide the services the deceased rendered to Jessie while she was at school.
Thirdly, there is scant evidence as to the role, if any, Ms Jenkin would have taken in Jessie's care when she is eventually placed in group housing. Her only evidence on this point is that she would visit Jessie and be able to have her stay overnight.
Fourthly, there is no evidence about Jessie's present or expected state of health or of her estimated life expectancy, which factors might have impacted on the nature and extent of care which the deceased would have provided.
Although I am satisfied that the deceased would have continued to have been involved in Jessie's care after she gained a placement in group housing, it is virtually impossible to arrive at a particular time frame during which the services would continue or to what extent. However, subject to contingencies and based on the uncontested evidence, including evidence of the nature and extent of the deceased's care of Jessie and the Jenkins' plans for her future, I consider it probable that the deceased would spend two days a week looking after Jessie.

Assessment of damages: principles

In assessing damages, the Court is dealing with a hypothetical situation: if she had lived, what services would the deceased have rendered to Jessie?
There are three relevant periods to consider:
•The period between the date of death and when Jessie left school;
•The period between Jessie leaving school and finding permanent placement in group housing;
•The period between Jessie's placement in group housing and when the deceased would have stopped providing the services due to her age.
Multiple contingencies both negative and positive must be considered. In this sort of case, it may not even be possible to identify all the contingences. The situation is not helped by the paucity of evidence on certain fundamental matters. I have already mentioned two obvious examples: there is no evidence as to the state of Jessie's health or her life expectancy; and there is no evidence as to how the group housing facility would operate, its staffing, the services provided or whether it would have permitted the deceased to attend to deliver services to Jessie.
The loss is the reasonable expectation of benefit which may include the provision of services upon which a monetary value must be assessed.
I have outlined above what I find to be that reasonable expectation.
The entitlement of a relative under the Act is to such damages as are "proportioned" to the injury sustained by reason of the death: s 6(2).
In Nguyen Deane J said at 257:
"The word 'proportioned' plainly introduces an element of what is reasonable in the circumstances. It follows that the mere fact that a deceased would, if he or she had lived, probably have provided gratuitous domestic services as a spouse, parent or child does not mean that the surviving relative is automatically entitled to damages calculated by reference to what it would cost in some actual or hypothetical marketplace to acquire all of the services which he or she would probably have enjoyed but for the death. The notion of what represents reasonable or proportionate compensation must take account of the need for the relevant services in the circumstances of the particular case. So to say is not to confuse the loss of services with the need for them. It is simply to recognise that it would be unreal to seek to ascertain the damages 'proportioned' to the 'injury' sustained by a particular claimant by way of loss of services without taking account of whether there was a reasonable need of the services or, in an extreme case, whether the applicant might even be properly seen as better off without them. Put differently, the damages 'proportioned' to the 'injury' which a particular claimant sustains by way of lost gratuitous services cannot be realistically assessed without regard being paid to the question whether the particular services were superfluous to the reasonable needs of the particular claimant. In a context where the ultimate burden of liability to pay damages under a Lord Campbell's Act action will ordinarily be cast upon the community generally through the direct and indirect cost of insurance premiums, that question must be answered by reference to current local standards and values."
When considering the issue of loss of domestic services provided by a deceased spouse, Brennan J said in Nguyen at 247:
"It is as erroneous in principle as it is false in fact to treat the commercial cost of providing substitutionary services for the services loss as the invariable yard stick of assessment. Frequently it would be quite unreasonable to bring in outside assistance at commercial rates to perform substitutionary services for the deceased's family when those services can be performed by family members; frequently, it would be unreasonable to bring outside assistance at commercial rates to provide the surviving spouse with the services which were provided by the deceased spouse for the benefit of them both. On the other hand, the tender ages of children, conditions of health or the demands of an outside occupation, or some other factor may make it reasonably necessary to bring in outside assistance even at commercial rates to provide services in substitution for all or some of the domestic services lost."
(See also Deane J at 257.)
The fact that the services provided by the deceased have not been replaced and may not be replaced in the future does not mean that they had no value: see Nguyen per Deane J in at 255 – 256.
Even though it may be the position that Jessie's mother now cares for her full‑time with some respite care, whereas were it not for her death, the deceased would be caring for Jessie for some days a week, it does not mean that the deceased's services had no value.
In assessing the quantum of damages, it cannot always be equated with the cost of the relevant services. They may not be capable of being reproduced faithfully by services which are commercially available. The cost of the only services commercially available may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased. The scope and cost of commercially available services may be disproportionate in comparison with the scope and value of the services which were actually provided by the deceased. In circumstances such as that it will not be reasonable to regard the cost of substitute services as any more than a starting point in assessing the loss: Nguyen at 265; see also Van Gervan v Fenton (1992) 175 CLR 327 at 333.
In Nguyen, Deane J at 248 ‑ 249 examines the issue of the provision of substitutionary services in the context of the need of the claimant. "Need" in this context "connotes a requirement the satisfaction of which alleviates or eliminates the loss or is sequelae" (248). The defendant would only be liable to pay for outside assistance only if such assistance was reasonably necessary to satisfy the need occasioned by the loss (249). In this case, there is no way Jessie could herself provide the lost services. To some extent, her mother may bridge the gap especially when Jessie moves into group housing and her mother is relieved from the constancy of day to day care. This is a contingency which should be factored into the assessment of the damages.

Calculation of damages

It is agreed that the commercial cost of the provision of the services rendered by the deceased is $35 per hour. In the absence of submissions from the defendant as to another method of calculating damages and given the relatively unusual circumstances of this case, I intend to calculate the damages by reference to the agreed commercial rate for the provision of the services and make allowances for contingencies.
I deal now with the relevant periods in Jessie's life when the deceased provided or would have provided services to her.

The period between the date of death and when Jessie left school (past loss)

Of the three mentioned periods I consider the period between the date of death and when Jessie left school is the least problematic. This is because there is direct evidence as to the nature and extent of the services provided by the deceased before her death. Jessie left school at the end of 2007. There does not seem to be any dispute that the period of 30 hours per week for 119 weeks are the appropriate periods of time upon which to base the calculations.
I consider that a small deduction should be made for contingencies as Jessie completed her schooling and all the evidence points to the deceased continuing her care of Jessie at school as she had since she first commenced when Jessie was 5 years old.
Accordingly, the calculation is as follows:
$34 x 30 hours x 119 weeks = $124,950

The period between Jessie leaving school and being placed in group housing and the period during which Jessie secures permanent housing up until the deceased would have stopped providing services

A complicating factor is that Jessie might not secure group housing before the time the deceased would have stopped providing services had she lived. This is one of the understandable "unknowns" in this case.
These periods can be subdivided into past and future loss.
Past loss would be from 1 January 2008 until 1 September 2009 (date of trial). In that period of time Jessie was between the ages of 18 and nearly 20 years old.
I have found that it is more likely than not that the deceased would have provided services to Jessie for two days a week up to the time she is placed into group housing, which had not occurred at the date of trial.
The uncontested commercial value of those services has been calculated as follows:
$35 x 24 hours x 86 weeks = $72,240
The totalling of past loss is therefore calculated at commercial rates at $197,190.
I would deduct $20,000 to reflect contingencies, a main one being the health of the deceased which conceivably might have deteriorated either preventing or reducing the amount of time she could spend with Jessie.
Past loss is therefore calculated at $177,190.
Interest on past loss calculated at 3 per cent per year for 205 weeks is $20,956 rounded up ($177,190 x 3% x 205 ÷ 52).
The future loss is calculated from 1 September 2009 until such time as the deceased would have stopped providing services to Jessie.
There is no reason to doubt Mr Jenkin's evidence that his expectation was that from the date of his mother's death, she would have looked after Jessie for another 10 years, that is, until she would have been 78 years old. Whether that would have eventuated but for her death is subject to a number of contingencies, some of which I have already mentioned. The two main contingencies on the evidence are a possible deterioration of the deceased's health and the [unknown] date when Jessie will be placed into group housing.
The calculation of future loss based on commercial rates is as follows:
$35 x 24 hours x 245 (6% multiplier for 5.5 years to age 78) =$205,800
I would deduct the sum of $75,000 for contingencies. Thus future loss is assessed at $130,800.

Funeral expenses

The plaintiff claims the sum of $11,820.50 for uncontested funeral expenses paid by him. I award him that amount.

Summary of damages

Jessie

Past loss$177,190.00
Interest on past loss $20,956.00
Future loss$130,800.00

The plaintiff

Funeral expenses $11,820.50
Total$340,766.50

Conclusion

The plaintiff's claim succeeds. I award damages as calculated above in the sum of $340,766.50.
I shall hear from the parties as to the orders for the payment into trust of the damages awarded to Jessie.