Raines v Amaca Pty Ltd and Seltsam Pty Limited

[2017] NSWDDT 16

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Raines v Amaca Pty Ltd & Seltsam Pty Limited [2017] NSWDDT 16
Hearing dates:	15 November 2017, 12 December 2017, 15 December 2017
Date of orders:	18 December 2017
Decision date:	18 December 2017
Before:	Kearns J
Decision:	Verdict and judgment for the plaintiff in the sum of $1,479,000. The defendants are to pay the plaintiff’s costs. Stay granted conditional upon payment of the sum of $470,000.
Catchwords:	Dust diseases – mesothelioma – s 15B – factual background – past care – future care – reasonable need - two carers and two dependants – passive care – active care – principal carer - vicissitudes
Legislation Cited:	Civil Liability Act 2002; Workers’ Compensation Act 1987
Cases Cited:	Werner v Krahe [2002] NSWCA 168; Amaca Pty Ltd v Novek [2009] NSWCA 50; Dionisatos v Acrow Formwork and Scaffolding Pty Ltd [2015] NSWCA 281; State of New South Wales v Perez [2013] NSWCA 149
Category:	Principal judgment
Parties:	Percy Raines (plaintiff); Amaca Pty Ltd (under NSW administered winding up) (first defendant); Seltsam Pty Limited (second defendant)
Representation:	Counsel: Mr G Parker SC appeared with Mr A Giurtalis for the plaintiff; Mr J Sheller appeared for the first defendant; Mr B Ilkovski appeared for the second defendant   Solicitors: Maurice Blackburn Lawyers (plaintiff); Mills Oakley Lawyers (first defendant); Colin Biggers & Paisley (second defendant)
File Number(s):	DDT 85/2017

judgment

The claim and the issues

1. The plaintiff has contracted mesothelioma. He seeks damages from the defendants. In the course of the running of this case most of the issues were resolved between the parties. There remained one principal issue, that is, the plaintiff's claim under s 15B of the Civil Liability Act 2002 (CLA).

2. Section 3 of the CLA provides:

In this Act:

court includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

damages includes any form of monetary compensation but does not include:

(a) any payment authorised or required to be made under a State industrial instrument, or

(b) any payment authorised or required to be made under a superannuation scheme, or

(c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

non-economic loss means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement.

3. Section 11 of the CLA provides:

In this Part:

injury means personal injury and includes the following:

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease. personal injury damages means damages that relate to the death of or injury to a person.

4. Section 15B of the CLA relevantly provides:

(2)   Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:

(a)   in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b)   the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)   there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:

(i)   for at least 6 hours per week, and

(ii)   for a period of at least 6 consecutive months, and

(d)   there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

…

(6)   The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

…

(8)   If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that):

(a)   the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and

(b)   the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants.

(9)   Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and

(b)   an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act.

(10)   Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a)   the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and

(b)   the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide.

(11)   In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:

(a)   the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b)   the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

5. The elements the plaintiff needs to establish to satisfy his claim are to be found in subs (2). They are:

1. the persons to whom the services were provided were dependants ‑ that is not in issue;

2. the services were provided before the time that the liability in respect of which the claim is made arose ‑ that is not in issue;

3. the dependants were not capable of performing the services themselves by reason of age or physical or mental incapacity ‑ that is not in issue;

4. that there is a reasonable expectation that but for the plaintiff's mesothelioma the plaintiff would have provided the services to the dependants for at least six hours per week and for a period of at least six consecutive months ‑ six hours per week is in issue;

5. there will be a need for the services to be provided for those hours per week and that consecutive period of time and that that need is reasonable in all the circumstances ‑ again, six hours per week is in issue and so is "reasonable".

6. There are further issues I will need to address.

Factual background

7. The plaintiff is Percy Raines. He was born on 4 March 1939. He is 78 years of age. He is married to Robyn. She was born on 19 February 1940 and is 77 years of age. They have two sons, Richard and Steven. Steven is married to Elaine. With no discourtesy intended, for convenience I shall refer to these persons by their first names.

8. Robyn was involved in a motor accident in 1981. She had three back operations some time following that accident. Insofar as any back surgery could be described as major or minor, these operations would be in the minor category as they were laminectomies. She recovered damages for injuries received in that accident. She has other health problems, including vision impairment, osteoarthritis of the back and right foot, fibromyalgia, polymyalgia rheumatic, hypertension, osteoporosis, carpal tunnel syndrome, knee replacement.

9. Richard was involved in a motor accident in 1996. That was an accident in which no third party was at fault. It was a journey accident within the meaning of the Workers' Compensation Act. In that accident he suffered serious brain injury and other injuries.

10. Percy was diagnosed with mesothelioma in 2016. That may be taken as the time that the liability in respect of which the claim is made arose for the purpose of s 15B(2)(a).

11. Before the diagnosis Percy was providing gratuitous domestic services to Robyn and Richard. He was doing this at the residence where Percy, Robyn and Richard lived, at 861 Ridgelands Road, Muswellbrook. That address comprises a property of about 25 acres. On it is the residence. It is over half an hour's drive from the township of Muswellbrook. It is relatively remote. Percy ran some cattle on the property. The property is owned by Richard.

12. The financial arrangements between Percy, Robyn and Richard do not matter as it is not in issue that the services Percy was providing to Robyn and Richard before he was diagnosed with mesothelioma were gratuitous.

13. Richard's accident was caused in circumstances entitling him to benefits under the Workers' Compensation Act. At the time of Percy's diagnosis, Richard was receiving domestic care benefits from the workers' compensation insurer.

14. I shall attempt to deal with this claim first by looking at the past and then the future.

The past ‑ Robyn

15. In large measure, a lot of the evidence got bogged down in detail. I do not find that very helpful.

16. I did not find Ms Hammond's evidence of much assistance. She demonstrated a marked reluctance to answer questions directly or at all. She had to be steered by me to answer questions on several occasions. She tended to respond irrelevantly and seemingly to justify a position she had adopted. There were other unsatisfactory aspects of her evidence. I prefer Ms White's evidence where their evidence is in conflict.

17. Dr Obeid estimated Percy provided 13 hours per week care to Robyn before his diagnosis. These hours cover garden, property and farm maintenance, domestic cleaning, handyman tasks, morning assistance, cleaning up after meals, shopping and driving. I do not find a criticism of some items as excessive particularly useful. For example, Percy's estimate of helping Robyn for two hours each morning was criticised as being excessive. Probably it is, but Dr Obeid reduced it to two hours per week instead of 14 hours per week and Dr Obeid has allowed only half an hour per week for handyman assistance. That seems a significant underestimate. I accept Dr Obeid's evidence of 13 hours per week - Exhibit PX4, p 172. That evidence is well based on the source material that he had. It accords with reality and common sense. After all, a broad brush approach needs to be taken to these assessments. As Foster AJA observed in Werner v Krahe [2002] NSWCA 168, these estimates are often really one of impression.

18. I reject criticism of Dr Obeid's opinion on the basis that he had not examined Percy, Robyn or Robert. His experience in geriatric medicine is considerable - Exhibit PX4, p 176 ‑ 178. He had ample documentary material presented to him. He was entitled to rely on that material. Further, his report was not countered with evidence from either of the defendants and nor was he cross‑examined.

19. Some of the items Dr Obeid has allowed in respect of Robyn are also allowed by him in respect of Richard. Some of them should be deleted from the claim in respect of Robyn and left in the claim in respect of Richard. They are the gardening, property, home maintenance and handyman tasks. The reason for allocating those to Richard rather than Robyn is that the property was Richard's property. Also, financial management appears to be a doubling up and is more appropriately allocated to Richard, considering the extent of his disabilities. The items excluded are 6.2.1, 6.2.3 and 6.2.9 on p 172 of Exhibit PX4. That reduces the hours in respect of Robyn from 13 hours per week to eight hours per week. This estimate of eight hours per week of gratuitous service provided by Percy to Robyn before his diagnosis is what I find to be the measure of care that was provided in the periods claimed in the past.

Past care ‑ Richard

20. Dr Obeid has assessed 21.5 hours per week of care provided by Percy to Richard: exhibit PX4, p 173, items 6.4.1 ‑ 6.4.9. There may be deleted from that list of items, items 6.4.2 and 6.4.5 and 6.4.6 as they are included in the claim in respect of Robyn, though deleting 6.4.6, the shopping item, may be doing Percy a disservice here. Deducting those items reduces Dr Obeid's estimate to 15.5 hours per week.

21. Occupational therapists Ms White and Ms Hammond gave evidence concurrently. They expressed opinions on this particular point. Ms Hammond estimated seven hours per week and Ms White estimated nine hours per week: T117.09 ‑ .16. In respect of this aspect of the claim I accept Ms White's evidence of nine hours per week. These are hours of active care undertaken by Percy over and above hours provided by the workers' compensation insurer.

22. Richard also needed passive care. He needed around the clock care. To the extent that active care was provided by Percy and by the workers' compensation insurer, the supervisory care was covered. Richard undertook active care of nine hours per week. That time cannot double up in any allowance for the passive care. The workers' compensation insurer was providing 25 hours per week of care. That time cannot double up in allowance for the passive care. Also, the time spent by Percy in care of Robyn needs to be deducted. This is because either Percy was at the house providing it, and so effectively available in providing passive care to Richard, or he was providing it away from home ‑ for example, shopping ‑ and not available at home to be providing it to Richard. Eight hours a week needs to be deducted on that account. The total number of hours to be deducted from the around the clock passive care in respect of these matters is 32 hours per week.

Future care ‑ Robyn

23. The claim for the future is for 13 hours per week. For reasons given that should be eight hours per week. Percy's life expectancy is 9.99 years. Robyn's life expectancy is 13.23 years. Percy was likely to provide the care for most of his life but for the mesothelioma. Subject to further issues I need to determine, I would propose allowing eight hours per week for the future. I would propose allowing it for nine years. Although Percy's life expectancy is almost ten years, I think allowance should be made for the likelihood that at the end of that period Percy may have had difficulty performing some of the care tasks by reason of age and advancing frailty.

Future care ‑ Richard

24. There are 168 hours in a week for which Richard needs care. Deducting the 32 hours earlier indicated that are otherwise accommodated, that leaves 136 hours. The plaintiff's claim for future care for Richard is for 64 hours per week. I propose, subject to the further issues to be considered, to allow that, and shall explain that shortly. Again, I propose to make the allowance for nine years. Again, for reasons advanced in relation to Robyn, I allow a lesser figure than Percy's life expectancy. In this case it may be doing him something of a disservice as this part of this claim is for passive care. There also needs to be added to that the nine hours per week of active care earlier mentioned. I turn then to the other issues.

Whether “reasonable” in subs (2)(d) is satisfied

25. Mr Sheller, who appeared for Amaca, submitted that it was not reasonable in all the circumstances for Percy to provide gratuitous services to Richard: T151.29. The first reaction to this is that a submission that it is not reasonable for a father to provide gratuitous domestic services for his seriously brain damaged son, especially when he has been doing it for well in excess of ten years, is a submission that might offend common sense. The submission, however, needs to be understood in its context. It is based on the premise that Richard is entitled to around-the-clock care and the workers' compensation insurer is required to provide it. If requested to do so, it may be expected that it will provide it. In this situation, it is not reasonable that the defendant be required to compensate for it. If that were the factor that determined reasonableness in this context, there would be no need for subss (8) and (9). The failure of the reasonableness test would knock out those cases without the need for those subsections.

26. I think there are some flaws in the defendant's submission. One is that it was put that I had to determine what the reasonable need was for Richard that Percy had lost the capacity to provide. The test is whether the need, "for the services to be provided for those hours per week and that consecutive period of time...is reasonable in all the circumstances." References to the hours and period of time are references to the thresholds in subs (2)(c). The second flaw in the submission is that it is said I have to determine the obligations of the workers' compensation insurer. I cannot make any determination about its obligations. It is not before me. It was submitted that if I determined Richard was entitled to around the clock care, there was nothing before me to suggest that the workers' compensation insurer would not honour that.

27. I do not know what the workers' compensation insurer would do. It has provided full‑time care in the past for short respite periods. It might take an altogether different view about ongoing full‑time care. The need for full‑time care was conceded in this case. The defendants pointed me to no evidence that the workers' compensation insurer accepts responsibility for around the clock care on an ongoing basis, let alone that it would be or remain bound by any such position it had adopted. It was not contended that Richard was obliged to pursue the workers' compensation insurer to the full extent that he could, and Percy would have no standing to do so - T154.24 ‑ .28.

28. It is unquestionable that the care arrangement in place at the Raines' home up until Percy's diagnosis was reasonable. It was not then an issue. It was reasonable throughout that time that Richard was entitled to around the clock paid care. There was in place an arrangement whereby Percy, in different ways, looked after and cared for Richard. It may be seen as a loving, caring relationship, with Percy doing his best to see that his son was well cared for. Only two things changed after Percy was diagnosed. One was Percy became incapable of doing some or any of the things he had been doing in his care for Richard. The second is that a tortfeasor became liable to pay for the loss of Percy's capacity to provide that care.

29. It cannot be the case that Percy was required to call on Richard's workers' compensation insurer to provide all the care he, Percy, was no longer able to provide, and to say it was unreasonable if he did not. The contrary would be unreasonable. It would be unreasonable to require Percy to undo a long‑established arrangement within the family by calling on the workers' compensation insurer to provide full‑time care essentially for the benefit of the tortfeasor and to the disruption of a caring, helpful family arrangement that had existed and been beneficial for a long time. Everything about this arrangement was reasonable before Percy was diagnosed. It remained reasonable after that. There was nothing unreasonable about Percy wanting to look after his son for as long as he could, even after a tortfeasor emerged.

25. In fact, much of this argument about reasonableness was directed to reasonableness more or less as a general concept and not to what subs (2)(d) requires to be reasonable. The need for the services to be provided for at least six hours a week and for a period of at least six consecutive months is reasonable. So is everything else about the arrangement of care in this case. I have re-read what was said in Amaca Pty Ltd v Novek [2009] NSWCA 50. It fortifies me in my view.

Subsection (6)

31. Subsection (6) does not defeat Percy's claim. I paraphrase the provision, as did Mr Sheller, to the following effect:

Percy...may not be awarded damages for any loss of Percy's capacity to provide gratuitous domestic services to Richard if Richard has previously recovered damages in respect of that loss of capacity.

32. Accepting for the moment that damages includes workers' compensation payments, the provision still does not apply. It cannot apply to the future, because Richard has not "previously recovered" damages. He has received compensation on an ongoing as needs basis. He has received nothing for the future and accordingly has not "previously recovered" damages.

33. Nor can the provision apply to the past, because the claim is not in respect of anything for which Richard has previously recovered damages. He has received benefits from the workers' compensation insurer. Percy's claim is for his loss of capacity in respect of matters for which Richard has received nothing.

34. The defendant's submission that Richard has a Court of Appeal decision in his favour goes nowhere. All that case did was determine that Richard was entitled to compensation because he was on a work journey and there were no disqualifying features that prevented his entitlement to compensation.

35. I may well be mistaken, but the matters I have mentioned seem so evidently clear that it does not require an in‑depth analysis of other aspects of this provision or of authority. I note however subs (6) may be contrasted with subs (9). Subsection (9) excludes s 15B damages in motor accident cases. As there is no similar provision for workers' compensation cases, it was argued, and I accept, s 15B damages are not excluded in those cases. This is indeed fortified by the wording of subs (9) where the damages are excluded if, "an insurer has made or is liable to make payments." That is the sort of language that would be more akin to the defendant's argument than the phrase used in s 6 of damages "previously recovered". A similar view may be taken of subs (8), in contrast to subs (6).

36. All parties drew my attention to Dionisatos v Acrow Formwork and Scaffolding Pty Ltd [2015] NSWCA 281. There is nothing in that case that advances or assists the defendant's submissions. What was said by Basten JA at para 23 is contrary to the defendant's submission. What was said by Gleeson JA from paras 284 to 289 does not assist the defendant's submission.

37. Another point that might defeat the defendant's submission was raised but not fully developed and in the circumstances it is not necessary to do so. It concerns the definition of damages in s 3. At the outset I would reject any submission to the effect that s 11 defines the meaning of the word damages in subs (6). Section 3 defines damages to include any form of monetary compensation, but it then excludes from that "any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy."

38. The point raised was whether that exclusion might apply because the payments that Richard is entitled to under the workers' compensation legislation come within that. That would need some detailed argument about the construction of the Act, regulation and form of policy concerning the compulsory insurance provisions under the Workers' Compensation Act. I make no determination about it in these proceedings.

39. In my view, subs (6) does not operate in respect of the claim related to Richard's case.

40. As to Robyn, the subsection does not operate for different reasons. Robyn has multiple health problems that bring about her need for services. Clearly she has not recovered damages in respect of the vast bulk of the health problems that result in her having the need for services. The evidence does not demonstrate that Robyn had incapacity resulting from her car accident in 1981 that was causing a need for services at the time of Percy's diagnosis 35 years later in 2016.

Two carers and two dependants

41. There are two dependants in this case, Robyn and Richard. In the case of Richard there were two carers. When Percy was providing some of his passive care to Richard, so too, at least it is arguable, was Robyn.

42. In the case of two dependants, State of New South Wales v Perez [2013] NSWCA 149 makes it clear that where the care was being provided to both simultaneously, the hours are not to be doubled: para 21. Some of the care provided by Percy to Robyn falls into that category. It is all items except for 6.2.7 and 6.2.8 on p 172 of Exhibit PX4. For those items, Percy was away from the home. For the others he was present. The hours he was present caring for Robyn totalled six hours per week. Those hours should be deducted from the passive care he was providing to Richard.

43. For much of the time then when Richard was at home he was receiving passive care. The only persons present who could have been providing it were Percy and Robyn. They were his primary carers. Percy gave that evidence - Exhibit PX4, p 58, para 5. At the time of Richard's accident in 1996 Percy and Robyn were living at Lightning Ridge. As a result of Richard's accident, Percy and Robyn left Lightning Ridge and moved to Coonamble to live with Richard. There are some refinements around that, but the essence of it is that for some years before Percy's diagnosis, Percy and Robyn were Richard's primary carers. It was the intention that would continue indefinitely.

44. Since Percy's diagnosis, members of the family have helped undertaking tasks Percy used to do. That included Steven, Elaine and their two children.

45. Mr Ilkovski, who appeared for Seltsam, submitted that Richard's need for passive care only needed one person. That much is correct. He submitted that there were two people present, one of them being Robyn. Where that submission ultimately went was not clear. At one point the submission led to the result that Percy was not entitled to any damages. At another point it was that Robyn's presence was a relevant factor but how it was to be taken into account was not spelled out.

46. I am satisfied that before his diagnosis it was Percy who was the provider, or at least the principal provider of the passive care to Richard. There are several reasons for this:

1. Percy was a well and fit man before his diagnosis;

2. Percy was fit and able to attend to the needs that might arise in any emergency, should one arise;

3. Robyn was capable of attending to some needs that might arise in emergency, but because of her several medical conditions, not all;

4. as to the last two points, should any need arise in an emergency requiring physical effort, Percy would have been able to provide it and would have been the one to provide it;

5. Percy has provided passive care to Richard each morning at shower time; Percy has been around when Richard uses taps as he is liable to leave them running; on days when Richard is taken into town by carers, Percy keeps him company and keeps an eye on him for about an hour before he goes;

6. after dinner Percy spends about one and a half hours with Richard watching television, keeping him company and making sure he is okay;

7. Percy is close by and keeps an eye on Richard before he goes to bed;

8. Percy always ensures that he is physically close to Richard and available to him;

9. between breakfast and lunch on non‑carer days, Percy spends two to three hours keeping Richard company and helping him with anything he needs and the same goes between lunch and dinner times;

10. Percy plays pool with Richard for one to two hours on non‑carer days;

11. Percy stated in his affidavit of 9 October 2017, "Usually, I am the person who is supervising Richard" - Exhibit PX4, p 74, para 59.

47. Not all of the above matters are undertaken by Percy every day but the thrust of it is that Percy is the principal carer for Richard. Although many of the above items are expressed in the present tense, and were so expressed in Percy's affidavit of 9 October 2017, it is evident that that expresses the position before Percy's diagnosis and had been the position for a long time.

48. Before Percy was diagnosed, Richard needed around-the-clock care. It was being provided by carers and by Percy and Robyn. When one excludes the care time provided by outside carers and also Percy's time of active care, one is left with 136 hours of passive care that was being provided by Percy before he was diagnosed. There may have been another six hours a week I mentioned not far back which was not included in that, which would reduce the hours to 130 hours a week.

49. This approach is not the approach taken in the plaintiff's schedule of damages put forward for Percy's claim. It is nevertheless an appropriate approach in its own right. It also serves another useful function. It can be used to test the reasonableness or otherwise of the claim in the schedule of damages. On this approach the total hours of passive care provided by Percy and/or Robyn is at least 130 hours per week. That far exceeds the claim of 64 hours per week that is claimed. The claim of 64 hours per week, whether intentionally or not, makes allowance, more than enough, for any passive care provided by Robyn and not by Percy, or even provided by Robyn together with Percy.

Subsections (10) and (11)

50. In light of agreement reached on all issues except s 15B, I have no evidence that would allow me to determine any amount that may fall within subs (10).

51. As to subs (11), it is not in dispute that there should be a deduction for vicissitudes in respect of the allowance relating to future services. Mr Ilkovski put forward 10%. Mr Parker SC was prepared to accept that. Mr Sheller this morning added that I would need to take into account that Percy is in a position to call on the workers' compensation insurer to make provision in respect of this item, and that is something which should be factored in in respect of vicissitudes.

52. I propose to allow 10% for vicissitudes. I have already, in effect, in a different way, allowed close to that by indicating earlier that the allowance I would make into the future is to be for nine years, rather than the full life expectancy of Percy of nearly ten years. The allowance for vicissitudes is additional to that.

53. With those expressed reasons, I am in a position to set out the damages which I allow. I will ask counsel here to correct any error I make, and that could easily happen. I want to fill in any blank, and I think I may well come to some blanks.

54. For the past for Robyn, for the period 30 July 2016 to 31 March 2017, I allow eight hours per week at $30.15 per hour, for 35 weeks: $8,442.

55. For the period 31 October 2017 to 18 December 2017, I allow eight hours per week at $30.15 per hour for seven weeks: $1,688.40.

56. For the past for Richard, for active care for the period 31 July 2016 to 31 March 2017, I allow nine hours per week at $30.15 per hour for 35 weeks: $9,497.25.

57. For the period 31 October 2017 to 18 December 2017, I allow nine hours per week at $30.15 per hour for seven weeks: $1,899.45.

58. For the passive care for the period 31 July 2016 to 31 March 2017, I allow 64 hours per week by $30.15 per hour for 35 weeks: $67,536.

59. For the period 31 October 2017 to 18 December 2017, I allow 64 hours per week at $30.15 per hour for seven weeks: $13,507.20.

60. For the future, for Robyn I allow eight hours per week from today for a period of nine years, less 10% for vicissitudes: $89,524.

61. For Richard I allow, for active care, nine hours per week from today for nine years; and for passive care, I allow 64 hours per week from today for a period of nine years, in both instances discounted by 10% for vicissitudes: $716,191.

62. The parties had agreed that in respect of all other issues the plaintiff should be paid the sum of $470,000.

63. In the result, there will be a verdict and judgment for the plaintiff in the sum of $1,479,000.

64. The defendants are to pay the plaintiff's costs.

65. Stay granted conditional upon payment of the sum of $470,000.

AMENDMENT - 14 MAY 2018 - errata - slip rule

66. It has been drawn to my attention that there are some errors in the judgment that may be corrected under the slip rule.  There are three.  

67. The first is paragraph 22 where there is a reference to 32 hours per week.  That should be 42 hours per week.  That correction is made.  Also in paragraph 22, the fourth sentence commences with the word "Richard", that should be "Percy".  That correction is made.

68. The third matter is in paragraph 61.  For some reason, the allowance for active care was not included.  There should be included after the words "nine years", where that first appears, the sum of $100,715.  That correction is made.

69. As a result of the first correction, there are some consequential corrections that need to be made.

70. The first is to paragraph 24.  The reference in the second sentence to 32 hours should be 42.  That correction is made.  In the same sentence, the reference to 136 hours should be 126 hours.  That correction is made.

71. In paragraph 48, there is a reference to 136 hours.  That should be 126 hours.  That correction is made.  In that paragraph also there is a reference to 130 hours.  That should be a reference to 120 hours.  That correction is made.

72. In paragraph 49 there is a reference to 130 hours.  That should be a reference to 120 hours.  That correction is made.

73. It is agreed that all of those corrections need to be made.

74. There is one matter of potential consequence arising from these corrections, and that concerns paragraph 48 and then 49.  The claim in respect of Richard's need for around the clock care was for 64 hours per week.  I considered that was appropriate and reasonable considering, amongst other things, that care was being provided for 136 hours.

75. In light of the corrections, care was not being provided for 136 hours, but for 126 hours and reducing further to 120 hours per week.  Now, that care provided by both Percy and Robin at 120 hours per week still remains so far in excess of the claim of 64 hours per week, but that claim remains appropriate and reasonable, and the changes that have just been made under the slip rule do not require any adjustment to that.

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Amendments

22 January 2018 - paragraph [4] - corrected paragraph numbering

16 May 2018 - Amendment on 14 May 2018 under slip rule

Decision last updated: 16 May 2018