S v State of New South Wales (No 3)
[2010] NSWSC 848
•6 August 2010
CITATION: S v State of New South Wales (No 3) [2010] NSWSC 848 HEARING DATE(S): 26 March 2010
JUDGMENT DATE :
6 August 2010JUDGMENT OF: Harrison J DECISION: 1. For the period from 1 May 2003 until 6 August 2010 I award a sum of $59,377.50 calculated for nine hours per week at the average hourly rate of $17.50 pursuant to s 15 of the Civil Liability Act 2002.
2. For the period from 7 August 2010 I award a sum of $140,725.60 calculated for nine hours per week at the average hourly rate of $19.75 pursuant to s 15 of the Civil Liability Act 2002 by reference to a five per cent multiplier over 42 years of 931.6.
3. For the period from 1 February 2007 until 6 August 2010 I award a sum of $19,380 calculated for six hours per week at the average hourly rate of $19 pursuant to s 15B of the Civil Liability Act 2002.
4. For the period from 7 August 2010 until 6 August 2016 I award a sum of $32,160.90 calculated for six hours per week at the average hourly rate of $19.75 pursuant to s 15B of the Civil Liability Act 2002 by reference to a five per cent multiplier over six years of 271.4.
5. Direct the parties to bring in short minutes of order to give effect to these reasons by no later than 4.00pm on Friday 13 August 2010.CATCHWORDS: DAMAGES – assessment of damages for personal injury – past and future domestic assistance – gratuitous attendant care services – loss of capacity to provide domestic assistance and care LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Evidence Act 1995CATEGORY: Consequential orders CASES CITED: Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288 PARTIES: S (Plaintiff)
State of New South Wales (Defendant)FILE NUMBER(S): SC 2006/266930 COUNSEL: P R Hennessy SC with D M Shoebridge (Plaintiff)
P D A Mallon (Defendant)SOLICITORS: Edwards Michael (Plaintiff)
I V Knight, Crown Solicitor (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONHARRISON J
6 August 2010
JUDGMENT2006/266930 S v State of New South Wales (No 3)
1 HIS HONOUR: I delivered my reasons for judgment in the principal proceedings on 9 September 2008: see [2008] NSWSC 933. I found in favour of the defendant but I proceeded to assess damages in the usual way. The plaintiff successfully appealed to the Court of Appeal on the question of liability. The defendant's cross appeal on the question of damages was withdrawn. I originally declined to deal with the plaintiff's claim for domestic assistance for reasons to which I referred in the original judgment. In the course of my earlier judgment I said the following about the issue and the way that it had been presented at the trial:
" Domestic assistance and care – preliminary issues
[299] In the plaintiff's third amended statement of claim, as with previous editions of the pleading, there is no claim made for any form of so-called domestic assistance. This has not appeared to trouble either of the parties and that fact alone does not by itself trouble me either. This is because the plaintiff's case is particularised in her amended statement of particulars filed on 18 July 2007 in the following way:
(a) From May 2003 to 1 February 2007 – 9 hours per week in relation to laundry, washing dishes, grocery shopping, general household duties such as cleaning, gardening and assisting with the children;
(b) From 2 February 2007 to 4 March 2007 – 15 hours per week for duties in addition to that noted in (a) above as well as the additional duties of taking her children to school, collecting the children from school, organising breakfast with the children, making children's lunches, assisting with children's homework, assisting with cooking dinner and painting;
(c) From 5 March 2007 to 30 March 2007 – (the Plaintiff was an inpatient at St John of God Hospital) a claim is made for 50 hours per week in relation to the duties noted in (a) above plus all of the additional duties in relation to caring for the children and home maintenance;
(d) From 1 April 2007 to date a claim is made for 15 hours per week for all the duties noted in (a) and (b) above;
(e) A claim is made in respect of future domestic assistance from 2 April 2007 to date at the rate of 15 hours per week for a least two years and probably longer [sic] for the duties noted in (a) and (b) above;
(f) The claim for past domestic assistance is made at the statutory rate;
(g) The claim for future domestic assistance is made at commercial rates or in the alternative at the statutory rates.
[300] The way in which the plaintiff particularised her claim for 'domestic assistance' did not make it plain, or did not make it plain to me, how or in what respects the claim was a claim based on s 15 of the Civil Liability Act 2002 or s 15B of that Act or what was said to be the interaction between the two. For example, damages may not be awarded to the plaintiff under s 15B in respect of any loss of the plaintiff's capacity to provide gratuitous domestic services to her dependants if (and to the extent that) she could recover damages for gratuitous attendant care services (within the meaning of s 15) in respect of the same injury that caused the loss, and the provision of such attendant care services to the plaintiff also resulted (or would also result) in her dependants being provided with the domestic services that she has lost the capacity to provide: s 15B(10). Oral submissions before me at the end of the evidence were not directed at this distinction and it was not something to which either party, or I, gave any particular attention. As will be apparent, s 15 deals with damages for gratuitous attendant care services whereas s 15B deals with damages for the loss of capacity to provide domestic services. The subsequent written submissions on behalf of the plaintiff suggested that a claim was made under both sections but the details of the claims remain obscure. No ultimately satisfactory analysis of the evidence relevant to the claims unfolded.
[302] The state of confusion was enhanced by the plaintiff's written submissions in reply (see below) on s 15B to the extent that it was asserted that the plaintiff's claim under s 15B was "brought by the plaintiff in consequence of her inability to provide gratuitous domestic services to her dependents" which the submissions went on to describe as her "de facto partner's (later husband's) children and their own two children from the time of their birth in February 2000". This drew a sharp written response from the defendant stating that the "plaintiff's case for domestic assistance never included nor was it ever founded upon any claim for the children of the plaintiff's de facto partner (later husband)". A further written submission on behalf of the plaintiff in response only served to deepen the confusion as appears from the following extract:[301] Furthermore, the defendant's submissions were principally directed to an issue said to arise upon the proper interpretation of s 15B, to the extent that it did not apply to the children of the plaintiff's husband from his first marriage. This was said in this case to be because of the definition of dependant, which is a restricted group wholly or partly dependant on the plaintiff "at the time that the liability in respect of which the claim is made arises". The defendant submitted that at the time that the liability in respect of which the claim under this section arose in the present case, there were no dependants (relevantly children) because the children of the plaintiff and her husband were not then born and the children of her husband's first marriage did not satisfy the definition for other reasons. The plaintiff appeared to maintain that no claim was made with respect to her husband's children but that their existence remained potentially significant on the issue of the time that the liability in respect of which the claim is made arose.
'2. The plaintiff confirms that she does not seek any monies by way of domestic assistance in relation to time spent caring for her husband's children of his former marriage. Whilst noting this, the plaintiff continues to rely in full on the submissions made in her earlier written submissions in reply .' (sic)
[304] In these circumstances I will await the parties' responses as to what approach should be taken on the issues of care and domestic assistance."
[303] Without suggesting or directing any criticism for the uncertain position in which the proceedings concluded on these issues, I am not satisfied that I have yet had the benefit of a completely informed legal or factual debate upon them. I certainly do not feel that I am yet in a position to deliver a reasoned decision on these issues in a way that does justice between the parties. Having regard to the conclusions that I have reached on liability, it will be apparent that my opinions and findings on these issues will only achieve significance in the event that my decision on liability is found to be wrong. In order to take account of that possibility, and in accordance with usual practice, my preferred course would be for the parties to re-list the matter before me if so desired for further limited argument prior to final orders being made or entered.
2 In the events that have occurred, it has now become necessary for me to consider this remaining part of the plaintiff's claim, with which these reasons deal. It goes without saying that they assume a familiarity with the factual and legal background to my earlier decision.
3 In my original judgment I set out the difficulties I saw in being able to deal with the plaintiff's claims relying on s 15 and s 15B of the Civil Liability Act 2002. In proceeding now to deal with those issues, however, there seems to be a difference of opinion between the plaintiff and the defendant on the precise scope and content of that task. The defendant says that I should simply decide the plaintiff's claim with the benefit of more detailed submissions but without permitting the plaintiff to tender any further evidence that updates her position and particularly without any evidence that appears to change or enhance it. In this last respect the plaintiff has tendered statements by her and her husband, which she says simply fill the evidentiary gap between the date of my judgment and the date of the further hearing. The defendant, however, takes the view that this material does more than that and in fact amounts to a recasting of her case, in particular because it claims more hours than she appeared originally to claim both for gratuitous attendant care services under s 15 as well as for the loss of her capacity to provide domestic services under s 15B. It will be necessary for me to express my opinion in this judgment about what view I have of these contentions and whether or not the statements should in fact be admitted at all.
4 In my original judgment I decided that the plaintiff's cause of action arose in October 1999. In relation to the plaintiff's twins, of whom her husband is the father, the plaintiff says that her husband's children from his previous marriage were then dependent upon her so that there existed a class of children of which the twins later became members. If that proposition is accepted then it does not matter that the twins were not in existence when the cause of action arose. In this respect the plaintiff relied upon Kendrick v BluescopeSteel (AIS) Pty Ltd [2007] NSWSC 1288 per Hoeben J at [309] – [316] as follows:
"[309] The preconditions for the awarding of damages are set out in s15B (2). The plaintiff before injury must have provided services of the kind in respect of which damages are now being claimed. The plaintiff clearly satisfied that test with Liam and Kristen. His unchallenged evidence was that he did provide some childcare services in relation to Liam and Kristen. Clearly he could not have done so in respect of Mikayla since Mikayla was not then born.
[310] This creates a potential problem for the plaintiff. The section makes no express provision for the situation where a child is born after the injury. Because the plaintiff did not provide any services for Mikayla before he was injured, a literal reading of the section would give him no entitlement to damages for services provided to Mikayla by somebody else after his injury.
[311] I do not think the section should be read in that way. Section 15B(1) identifies various classes of dependants. That is why there is a reference in the preamble to subs(2)(a) of 15B to "dependants … of the kind". Read in that way, it is only necessary that before injury the plaintiff provided services to that class of dependants in order for the precondition to be satisfied. As indicated, I am satisfied that he did provide such services although the services were limited in time and extent by his hours of work.
[312] The next precondition is that the dependants were not capable of performing the services themselves. That is clearly true of the three children and will be true, in many respects, until each turns 17.
[313] The third precondition is that had the plaintiff not been injured, there would have been a reasonable expectation that he would have spent at least 6 hours per week for at least 6 consecutive months providing childcare services for the children. There is ample evidence that the plaintiff did provide at least 6 hours per week of childcare assistance before he was injured. Uninjured he would undoubtedly have provided childcare to Liam and Kristen while Kathy was caring for the newly born Mikayla. The contrary was not submitted by ASMS. Accordingly the plaintiff has satisfied that precondition.
[314] The final precondition is that there will be a continuing need for such services and that this need is reasonable. Given the ages of the children, I am of the opinion that this precondition has been satisfied for the period since March 2005 when Kathy left.
[316] The preconditions specified for the operation of the section do not distinguish between gratuitous provision of the services referred to and paid provision of those services. What the section seems to be concerned with is the establishment of a real need for such services and that, absent injury, an injured plaintiff would have provided those services. The best indication that the dependants were not capable of performing the services and that there was a genuine need for them, is if those services had to be provided by someone other than the plaintiff after injury. Accordingly it matters not for the purposes of the section whether the provision of those services was gratuitous or paid."[315] In summary, I am satisfied that all of the section 15B(2) preconditions have been met so that damages can be awarded in accordance with the section in respect of the plaintiff's loss of capacity to provide domestic services for the three youngest children.
5 For present purposes it seems clear that children of a de facto partner are contemplated by the definitions contained in s 15B(1) so that the only issue is really whether or not Mr Collis' children were dependent upon the plaintiff for the purposes of the section. In this respect the evidence in my opinion is clear and confirms that the domestic living arrangements of the plaintiff and Mr Collis generally demonstrate that his children were relevantly dependent upon the plaintiff when she was injured. This is so even though Mr Collis' children returned to live with their mother in about February 1999, because they were with the plaintiff and Mr Collis every other weekend and clearly were members of that household at all relevant times thereafter. It is of some interest to note however that the defendant relies upon the latest statements of the plaintiff and Mr Collis to suggest that they were not, in the sense that Mr Collis' children had gone back to their mother. There is not some small irony in this contention because the defendant's preferred position has been to seek to exclude those statements completely. However, the definition of "dependants" in relation to a claimant in s 15B (set out below), and the decision in Kendrick, make it clear that the twins were dependent on the plaintiff for the purposes of her claim for damages for the loss of her capacity to provide domestic assistance to them.
6 The plaintiff's claim is for past and future domestic assistance. She claims for nine hours per week from 1 May 2003 to1 February 2007, for 15 hours per week from 2 February 2007 to 9 September 2008 and for 21 hours per week from 10 September 2008 to 26 March 2010, when the matter was heard. The plaintiff's claim for future domestic assistance is for 21 hours per week from the date of judgment and continuing thereafter. This is discussed below in more detail.
7 Clearly enough the plaintiff's claim under s 15 is limited to domestic services only from May 2003. The s 15B claim is for a further six hours from February 2007 when the twins went to school. There is no claim under s 15B for gratuitous services relating to Mr Collis. From the defendant's point of view, s 15(2)(a) is not in issue, nor is s 15(3). The real dispute is concerned with s 15(2)(b) and 15(2)(c). The defendant stresses that the plaintiff's claim does not make clear the delineation between that portion of it that relies on s 15 and that portion of it that relies on s 15B. The plaintiff's response is to say that the nine hours claimed under s 15 are only a fraction of the 28 or so hours referred to by Mr Collis in his statement and that all are referable to the plaintiff alone. These matters are also discussed in more detail in what follows.
The evidence
8 The plaintiff and her husband both gave evidence on this issue at the original hearing. That evidence is to the following effect.
The plaintiff
9 The plaintiff's original evidence was brief. She said that she had been reluctant to admit the effect that her mental trauma has had on her capacity to care for her family and herself. She said that she tried to be a normal mother but her mental state did not allow her to do so or to do all that she would like to do around the home or in the life of her children and her husband. She confirmed that the reports of Danielle Robertson from Dial An Angel contained material that fairly reflected her current domestic situation and her past and present need for assistance.
Mr Collis
10 The plaintiff's husband Paul Collis said that he commenced living permanently with the plaintiff in February 2000. They were married in April that year. The plaintiff gave birth to twins in February 2001. Not long before he started his relationship with the plaintiff Mr Collis had separated from his first wife. He had two sons then aged two and five from that relationship. After his wife left, Mr Collis was their sole care provider. Because they were so young, Mr Collis was required to take time off work to care for them.
11 From 1998 until February 1999, Mr Collis and the plaintiff would spend approximately four or so nights each week together, usually at his home in order to minimise inconvenience to the boys. Occasionally, however, Mr Collis and the boys would spend some nights with the plaintiff at her home. He said that the plaintiff was "great with the boys". As he was employed as a shift worker, she would often look after them for him while he was at work. She would cook for them, take them on outings and generally care for them. During that period, and after they all started living together, the plaintiff and Mr Collis would share the cleaning, gardening and shopping. He said by way of example that if one of them were vacuuming, the other would mop the floors. They went shopping together. They shared the laundry and ironing tasks.
12 In February 1999, the boys' mother requested that she have the boys back to live with her. Her family had told Mr Collis that they were prepared to help his wife to care for the children and he thought that living with the extended family would be good for them. He continues to have the boys every second weekend.
13 Mr Collis gave particular evidence about the plaintiff's ability to care for their children. He said that she becomes very emotional and anxious when she has to take them to school. He does this most mornings. In 2007 Mr Collis worked afternoon shifts so that he could take the children to school and the plaintiff could pick them up. This was not always possible when he was placed on rotating shifts.
14 Mr Collis said that even though he and the plaintiff originally shared the household tasks, since 1999 he has been undertaking the greater role in areas such as the laundry, washing dishes, grocery shopping, cleaning and gardening. Since the time that the plaintiff left the police force in 2003, he has been primarily responsible for most of these household chores. He estimated that he did about 70 to 80 per cent of the laundry tasks and ironing. The plaintiff no longer washes up or uses the dishwasher. He currently does about four out of every five grocery shops.
15 The plaintiff now rarely prepares meals. She will occasionally prepare the twins' breakfast in order to get them to school. Since 2003 Mr Collis has done almost all of the cooking for the household and it is rare for the plaintiff to cook a meal. He has also done most of the cleaning since 2003. In 2007 they engaged a cleaner to help once a fortnight as Mr Collis was having difficulty coping with shift work, caring for the children, doing the grocery shopping and cleaning the house. He still cleans the house at other times.
16 Mr Collis concluded that by 2003 he was doing the bulk of the housework and that has continued to be the case. He estimated that from mid 2003 to February 2007 he was providing on average at least an extra nine hours of assistance each week with household tasks during that period compared to the time when the plaintiff had been fully fit to help with this work. From February to March 2007 onwards, the twins started to go to school, which increased his workload as well in getting them ready, taking them to school, preparing their breakfast and lunch, and assisting them with their homework and related tasks. He estimated that he was providing an extra 15 hours of assistance each week with these tasks during that period compared to the time when the plaintiff had been fully fit. Between 5 March 2007 and 30 March 2007 the plaintiff was hospitalised and all tasks fell to him during that period without assistance from the plaintiff. Since 30 March 2007 Mr Collis estimated that he provides about 15 hours of assistance each week over and above what formerly had been his half share of the domestic and child care tasks that he has described.
17 Mr Collis was cross-examined at the original hearing on his evidence. Part of that cross-examination was as follows:
"Q. Now, is this the situation; that you, from 1998 until February 1999, you were essentially living in two households?
A. February 99 I moved back in with S, yes, we were living in two households.
Q. You had your own house?
A. I had a unit.
Q. And Miss S had her house, is that right?
A. Yes.
Q. And you had the custody of your two boys?
A. Yes.
Q. So you were principally staying at your house?
A. Yes.
Q. During any one week?
A. Yes.
Q. During that period of time?
A. Yep, yep. It depended on circumstances. The boys' mother would have them on weekends so I would stay at S's house.
Q. You say at paragraph 11 that you would share cleaning, gardening and shopping, do you see that?
A. Yes.
Q. And I take it that you can't approximately calculate what proportions each of you contributed to that sharing, can you?
A. No.
Q. It would happen from time to time, I take it, prior to March 1999 that because of your living arrangements one or other of you would do the cleaning, is that right?
A. Yes.
Q. One or other of you might go shopping, is that right?
A. Yes.
Q. But you can't be sure exactly how much contribution Miss S made to those services at that time, can you?Q. One or other of you might do the gardening?
A. Yes.
A. I can't put a figure on it, no."
18 The reports of Dial An Angel prepared by Ms Danielle Robertson were dated respectively 31 August 2007 and 13 February 2008. It is clear from the first of those reports that the author had been provided with information about the plaintiff's needs by letters dated 30 July 2007 and 8 August 2007. Four separate periods, within which the plaintiff's need for gratuitous care and assistance is identified, are set out in Ms Robertson's first report.
19 The first period is from May 2003 to 1 February 2007 at the rate of nine hours per week for nanny and housekeeping services to help with the laundry, washing of dishes, grocery shopping, general household duties such as cleaning and gardening and assistance with the children. The second period is from 2 February 2007 to 4 March 2007 at the rate of 15 hours per week for the same purposes, together with the need to take the children to and from school, making their breakfast and school lunches, assisting with homework, assisting with cooking dinner and painting [sic]. The third period is from 5 March 2007 to 31 March 2007 at the rate of 50 hours per week for the same services during a period when the plaintiff was hospitalised at the St John of God Medical Centre. The final period is from 1 April 2007 at the rate of 15 hours per week for the same services on a continuing basis. Although no specific reference is made to it, the calculations in respect of any services that relate exclusively to the twins must cease when they attain the age of 18 years and must necessarily, or at least arguably, be the subject of some modification, by way of reduction, as they more closely approach that age.
Plaintiff's further evidence
20 When the presently relevant issues were argued on 26 March 2010, the plaintiff sought to rely upon two further statements of evidence. One was a statement by her dated 18 February 2010 and the other was a statement by her husband dated 15 February 2010. The defendant objected to these statements being relied upon by the plaintiff to the extent that they were an attempt to recast the plaintiff's case in a way that was not apparent when the original hearing before me concluded. The statements were not objected to if they amounted to no more than evidence covering what had occurred between 9 September 2008 and 26 March 2010. The defendant emphasised that I did not originally refrain from dealing with the plaintiff's case on the issue of damages for gratuitous attendant care services or for the loss of capacity to provide domestic services for want of evidence, but rather because the claim did not appear to me to have been clearly adumbrated in the light of the evidence that had been led, and the submissions that had been made, on these issues. The evidence is the particular evidence to which I have already referred in these reasons. I received the new statements into evidence but effectively reserved my decision upon the question of whether or not they amounted to an update of the plaintiff's case or an attempt substantially to recast it.
21 Accordingly, I heard argument on this question. The defendant's position is encapsulated in the following submission, taken from the transcript of 26 March 2010:
"MALLON: Because [the statements] go outside what I anticipated we would be doing here and that is a short argument on the way that the plaintiff put her case on domestic assistance and this is not a situation where there should be the receipt of any further evidence in the trial. The case has been run, determined and judgment has been given.
So your Honour will have to read the statements to understand the nature of what is being put before you but I object to the evidence and it is my submission that the only evidence that can be reviewed before your Honour is the evidence that has already been given at the trial."The scope of the remitter from the Court of Appeal was, as your Honour had indicated, for further short submissions in relation to the way that the plaintiff put her case on domestic assistance.
22 My response to that submission was in these terms:
The view I expressed in the judgment was that should happen. What has now happened is that, in the events that have occurred, we have had not an unduly long but further period since that time. I haven't looked at this evidence, and I will ask Mr Hennessy about it, but it would not be my view that the plaintiff should be permitted, by any further evidence, to change the nature of her case but I anticipate Mr Hennessy will say to me that this evidence does not do that but will make certain that this is an application simply to update the evidence in the form that it had been lead between the trial and today's date. So that to the extent he has to make certain that the in period between when I delivered judgment and today, the evidence is not different beyond speculation, and is not an application to lead fresh evidence of a different nature.""HIS HONOUR: Well, I suppose two things should be said about that. When I postponed, as it were, dealing with this matter in the judgment I delivered, I did so because I didn't feel I had the benefit, in a big case, with a lot of other things going on, [of] a full and complete argument on it and that argument clearly enough, if it occurred later, for example, today, if it had occurred earlier, was limited to the evidence that was tendered at the close of the case.
23 Mr Mallon later responded in these terms:
- "MALLON: … My principal submission on what my learned friend has said that in respect of the second and third categories that he talked about, that is the evidence of what occurred before the cause of action arose and an elaboration on that, that constitutes an application to re-open the case and if that evidence was allowed then it may require - I am not saying it would, it may require cross-examination of the plaintiff and her husband. I just don't think that in the context of this case, in the interests of a just, quick, cheap resolution of the matter, that we should have to go down that path, that is where I may well be prejudiced but it would depend upon whether or not you make that determination."
24 The defendant made it clear that if the plaintiff wished to make an application to tender and to rely upon fresh evidence, that course would be opposed. Mr Hennessy of senior counsel for the plaintiff then referred me to s 58 of the Civil Procedure Act 2005 and s 46 of the Evidence Act 1995. They are respectively as follows:
(1) In deciding:" 58 Court to follow dictates of justice
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iv) any direction under Division 2, and(iii) any other order of a procedural nature, and
(b) the terms in which any such order or direction is to be made,
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
the court must seek to act in accordance with the dictates of justice.
(b) may have regard to the following matters to the extent to which it considers them relevant:
(a) must have regard to the provisions of sections 56 and 57, and
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vii) such other matters as the court considers relevant in the circumstances of the case.(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
46 Leave to recall witnesses
(b) the witness could have given evidence about the matter in examination in chief.
(a) it contradicts evidence about the matter given by the witness in examination in chief, or
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence."
25 The plaintiff's submission was as follows:
"HENNESSY: … Now, relevantly she claimed nine hours and then when the children starting going to school she claimed 15 hours. She claimed nine and an extra six. Now what happened, she sat down, not a word of cross-examination was heard and then Mr Hodgson hops in the witness box and Mr Mallon cross-examines him with a view to discrediting that claim. This seems to be the very situation that is covered by s 46.
So that is the basis upon which I seek, in the interests of justice, to rely upon this further evidence.
Now, in so far as it is a further case, it ought not be allowed, that is all I can say .
HIS HONOUR: You say if it is a different case it ought not be?
After this time the statement outlines the situation where, if your Honour accepts the statement, there are some more hours claimed. In other words, instead of a total of 15 hours which are contained in the particulars in 2008, we seek to move to 21 hours. But that is quite a different category. I don't understand that evidence will be admitted anyway, if I am wrong so be it ." (emphasis added)HENNESSY: Yes. As far as I understand there is a claim for nine hours and then relevantly when the children went to school there is a claim for 15 hours. The situation continues on until 2008.
26 Mr Mallon's response was clear:
"Your Honour made it quite clear in your Honour's judgment that you did not understand the way that the plaintiff put her case in relation to s 15 and s 15B. That was the scope of the further argument that was to occur.
Now, certainly I understand that if there is evidence by way of updating evidence, and this is what has occurred since, then your Honour may well accept that evidence is what the plaintiff is now proposing today, and not to come back and say by way of explanation, 'That is what I really meant, that is what I really meant in terms of what occurred before March 1999', which is when the cause of action essentially occurred rather than October, we would object to it.
What my learned friend has outlined in terms of his case further confuses the claim because my learned friend says the claim is made by them with respect to s 15 and s 15B. Now when engaging 15B(10) it essentially says you cannot get both.
The query that your Honour had in so far as the plaintiff's claim and evidence that was led at the trial interacted, related to ss 15 and 15B, this constitutes a re-opening. No such application has been made, there is no reason why that evidence could not have been led at the trial and it is opposed."
MALLON: . . . In so far as what the complaint is in so far as this further evidence, the complaint is that that evidence should have been led at the trial and they now seek to lead it after a judgment has been given.
27 In the events that occurred, the "dispute" that emerged during the course of the further hearing appeared to be more apparent than real. The parties appeared to me at the close of this discourse to have adopted the same position, and no formal application was made by the plaintiff to lead fresh evidence or to reopen her case. That is to say, both the plaintiff and the defendant appeared to have accepted that the further evidence of the plaintiff and her husband was available only to the extent that it brought the case as it had originally been formulated up to the date of the further hearing so that the Court had the benefit of evidence touching that case as it unfolded between 9 September 2008 and 26 March 2010. That is how I anticipated the matter would proceed and that is how I propose to treat that evidence.
The plaintiff's statement of 18 February 2010
28 The plaintiff estimated that prior to the commencement of her domestic relationship with her husband she spent an average of three hours per day on daily household duties such as meal preparation, making the bed and tidying the house, laundry and related tasks and caring for her pets. She estimated that other weekly general household duties such as vacuuming, sweeping, dusting, cleaning bathrooms, gardening and related outdoor tasks, washing vehicles, paying bills and grocery shopping occupied 12 hours per week. The plaintiff confirmed Mr Collis' evidence of the regime of work sharing that developed after they began to live together, and the ways in which that regime changed following the development of her illness and deterioration of her condition.
29 The plaintiff estimated that as the result of her injury and her inability to perform household duties or care for the children Mr Collis spent on average 28 hours per week performing these tasks, and that that pattern continued until February 2007 when the twins commenced school. At that time she said that her husband's contribution to performance of these tasks increased again, although she offered no particular quantification of the extent of the increase. The plaintiff's statement concluded with the following paragraph:
- "35. I believe that my need for domestic assistance has increased in the last two years. My capacity to perform domestic duties and provide basic care for the twins has deteriorated in the following respects. I feel less able to organise myself and the family and my confidence has fallen. However I have instructed my lawyers to limit my claim to the current hours in the hope of having this matter completed as soon as practicable. " (emphasis added)
30 No explanation of what was meant by the expression "the current hours" was provided to me. The plaintiff was not cross-examined on this statement. A summary of the extent to which the plaintiff relied upon this further evidence is set out in the plaintiff's submissions, which are referred to later.
Mr Collis' statement of 15 February 2010
31 Mr Collis reaffirmed his earlier evidence. However, his summary of the hours spent by him on the various domestic tasks performed and gratuitous services provided was as follows. He said that each morning he spent two hours getting the twins' breakfast, getting them dressed and ready for school, packing their bags and transporting them to school and waiting there until the bell rings. He spends another 15 minutes each day feeding the animals.
32 He said that he picked the twins up from school three to four afternoons each week. That takes him 30 minutes each time. He spends a further 15 minutes two or three afternoons a week getting their afternoon tea, unpacking their lunchboxes, putting their uniforms away or washed in readiness for the next day. Their homework takes him 45 minutes a day four days each week.
33 He prepares most of the home cooked dinners on each of approximately five days of the week. Including all preparation, cooking and cleaning up, this occupies him at least two hours on each of these days. The children's sporting commitments take up another seven hours of his time each week during summer and winter. He estimated that his extra involvement in this activity was about one and a half hours per week.
34 Mr Collis also estimated that the laundry tasks occupied a total of five and a quarter hours each week. That included loading and unloading the washing machine, hanging out the clothes, folding them and putting them away. The estimate was calculated on the basis of one load per day seven days a week each taking 45 minutes.
35 Grocery shopping occupied two hours per week. Cleaning the house takes another two hours each week. He said that he also spends another one and a half to two hours each week simply picking up after the plaintiff, in effect finding things that she has lost. Making beds, putting away toys and clothes and general tidying after the children occupies another one and a half hours each week. Outside general home maintenance takes another three hours per week.
36 Mr Collis estimated that in total all of that work amounted to 48 hours per week of domestic and care duties. Of that time, Mr Collis estimated that he provided an extra 20¾ hours per week of assistance over and above what he would have provided if the plaintiff were able to assist him with at least half of the duties of looking after the house and the children.
The defendant's evidence
Deborah Hammond
37 The defendant relied upon a report prepared by Deborah Hammond dated 7 February 2008. Portion of that report is as follows:
7 Given the family consisted of two working adults with children aged from 2 years at the time of the injury, and there is no evidence that further outside assistance was provided at the time, it is reasonable to expect that some duties were being undertaken by the husband. Given the occupation of [the plaintiff], it seems likely the husband would have been required to undertake more duties than many husbands, due to likely working hours of [the plaintiff]. The husband's flexibility is also evidenced by his ability to work an "afternoon shift" to assist [the plaintiff].""6 When determining past gratuitous care, it is only reasonable to provide for the tasks that would normally have been undertaken by the injured party . As such, the consultant would commence by determining the division of tasks within the household prior to the injury. We have no evidence of the division of tasks prior to the injury.
38 Ms Hammond's opinions and assumptions in fact ultimately corresponded in most, if not all, relevant respects with the evidence upon which the plaintiff sought to rely. She was not cross-examined on the plaintiff's behalf in any event.
The statutory framework
39 Some parts of s 15 and s 15B of the Civil Liability Act are presently applicable. They are relevantly as follows:
" 15 Damages for gratuitous attendant care services: general
(1) In this section:
"attendant care services" means any of the following:
(a) services of a domestic nature,
(c) services that aim to alleviate the consequences of an injury.
(b) services relating to nursing,
"gratuitous attendant care services" means attendant care services:
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.
(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a) there is (or was) a reasonable need for the services to be provided, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.
(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:
(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:
(ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or
(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or
(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.
(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.
(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.
15B Damages for loss of capacity to provide domestic services
(1) Definitions
"assisted care", in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously):In this section:
(b) if the dependant is a minor (but without limiting paragraph (a))-any care that is provided to the dependant by a person other than the claimant where:
(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),
(ii) the care includes the provision of accommodation to the dependant.
(i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of "dependants" in this subsection, adoption or otherwise), and
"dependants", in relation to a claimant, means:
(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises:
(i) the husband or wife of the claimant,
(ii) a de facto partner of the claimant,
Note: "De facto partner" is defined in section 21C of the Interpretation Act 1987.
(iv) any other person who is a member of the claimant's household, and
(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),
(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.
"gratuitous domestic services" means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.
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:(2) When damages may be awarded
(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:
(ii) for a period of at least 6 consecutive months, and
(i) for at least 6 hours per week, and
Note: Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants.
(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.
(3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2) (c) (ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may:
(b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2) (c) (ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period,
(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2) (c) (i), disregard the week if assisted care was (or will be) provided during that week, and
but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total.
(4) Determination of amount of damages
(5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court:The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved.
(b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.
(a) may only award damages for that loss in accordance with the provisions of this section, and
(6) Circumstances when damages may not be awarded
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.
(7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.
(8) …
(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):(10) Damages may not be awarded if they can be recovered as damages for attendant care services
(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.
(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
In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:
(11) Determining value of gratuitous domestic services
(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
(c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages."(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
Plaintiff's submissions
40 The not unreasonable burden of the plaintiff's submissions is that the plaintiff and her husband shared more or less equally the domestic and related tasks, in respect of which the claim for gratuitous attendant care services is made, for a period of some four years or so prior to the commencement of the claim for such damages on 1 May 2003. This is the effect of the evidence to which I have already referred. In February 2001, the plaintiff gave birth to their twins. Since 2003, the plaintiff's need for domestic services, created by her injuries and disabilities, has been met for the most part by her husband.
41 Although the plaintiff's claim for gratuitous attendant care services provided for her by her husband was formulated in the four categories summarised by Ms Robertson at [19] above, a document prepared by counsel for the plaintiff dated 24 February 2010 included what amounted to a fifth period commencing on 20 September 2008 and up to 26 March 2010 when the further argument was heard. Clearly enough, subject to what appears below, the plaintiff at one time wished to promote that fifth period as continuing into the future consistently with actuarial calculations of the plaintiff's life expectancy. It is significant because it increases the claim from 15 hours per week to 21 hours per week.
42 If it is not already apparent, I intend to disregard it. This is for a number of reasons. First, it is a change in the plaintiff's case from that presented originally and falls outside the terms of the present inquiry for the reasons already discussed. Secondly, senior counsel for the plaintiff for that reason at least quite properly abandoned it. Thirdly, it was opposed by the defendant and in my opinion that opposition was reasonable. I have not taken account of the plaintiff's evidence in her 18 February 2010 statement concerning the limitation of her claim to "the current hours" because I am not satisfied that I have been given sufficient assistance to understand to what that was intended to be a reference in the first place, and I am not prepared to permit the plaintiff to rely upon evidence that amounts to a recasting of her case in the second place. To that extent I intend to approach the matter on the basis upon which the case was originally formulated, so that the fourth period, claimed at the rate of 15 hours per week, is the continuing claim into the future.
43 The rates at which the services should be valued were not in dispute. To the extent that any calculations are made below, therefore, they are based on the figures provided by the plaintiff and accepted by the defendant.
44 Somewhat curiously in my opinion, and for present purposes, most unfortunately and unhelpfully, the plaintiff's written submissions, when the matter returned to me specifically for argument precisely directed to the plaintiff's claim for the loss of her capacity to provide domestic services pursuant to s 15B, included a wholesale adoption of the plaintiff's very submissions made at the original hearing with which I had expressed some particular frustration. This approach by definition both failed to accommodate, and at another level compounded, the very problems that I originally identified as the ones precluding a just determination of this issue. However, be that as it may, and for the avoidance of any doubt about it, I note that the plaintiff's written submissions dated 18 March 2010, under the heading "E The Plaintiff's Case – s15B of the Civil Liability Act" contain the following submission:
- "30. Dealing with the plaintiff's claim pursuant to section 15B of the Civil Liability Act . The plaintiff adopts the submissions made at trial in the form of the Plaintiff's Submissions in Reply of 2 May 2008 at paragraphs 3 to 21. Those submissions are found at Black Appeal Book 2 pages 900 to 902. A further copy is attached to these submissions."
45 Paragraphs 3 to 21 appeared under the heading in the original submissions, which was "B: SECTION 15B CIVIL LIABILITY ACT 2002". Paragraphs 3 to 16 of those submissions are now irrelevant and can be ignored. That is because they dealt with a legal proposition upon which the defendant appeared to rely at the trial, that the twins were beyond the scope of s 15B because they had not been born when the plaintiff was injured, and so could not qualify as dependants for the purposes of the section. As will be apparent from what I have already said in this respect, that argument is untenable, and is not now pressed by the defendant.
46 Paragraphs 17 to 21 of the plaintiff's original submissions do, however, remain relevant, and need to be referred to in full. They were as follows:
"Future Assistance
17. This claim is brought in respect of the commercial cost of assistance to the plaintiff, including the assistance she now requires whilst her children remain at school and Mr S's boys remain partially dependent. That claim meets the four conditions for which section 15B(ii) [ sic ] provides.
18. The future care component of the plaintiff's claim is comprised of both Griffiths v Kirkemeyer and Sullivan v Gordon elements. Irrespective of the latter claim the plaintiff is entitled to recover the commercial cost of the future domestic care required for her assistance on an ongoing basis.
19. In relation to both future and past care it remains the plaintiff's position that the proper characterisation of the great majority of the plaintiff's domestic assistance claim is that it is one for assistance provided by her husband, cleaning gardening, cooking and caring for the twins; assistance directly to the plaintiff to allow her to sleep in or to recuperate. The claim is readily characterised as almost entirely assistance provided directly for the plaintiff's benefit, and therefore recoverable under s 15 of the Civil Liability Act 2002.
21. The quantification of the plaintiff's claim in this regard is as set out in the two Dial an Angel reports included in the plaintiff's Schedule of Damages."20. This conclusion is consistent with the limitation contained in s 15B(10)(a) that prohibits the recovery of damages under s 15B when the claimant could recover damages for gratuitous attendant care services (within the meaning of s 15) in respect of the same injury that caused the loss.
47 The balance of the plaintiff's submissions on the s 15B issue, that remain relevant in light of the dependency issues that have now disappeared, which are contained in the 18 March 2010 submissions document, are as follows:
"31. The plaintiff further submits as follows in relation to the s 15B claim:
(a) This relates to plaintiff's loss of capacity to provide domestic services in respect of her children;
(g) There is a reasonable expectation that but for the injury the plaintiff, being the twins' mother, would have provided the services to the twins herself: see s 15B(2)(c);
(f) On and from 2003 Paul Collis has provided gratuitous domestic services to the plaintiff's children which the plaintiff's children have not been capable of performing themselves: see s 15B(2)(b);
(i) for at least 6 hours per week; and
(ii) for at least 6 months
(h) This needs [ sic ] is both reasonable and ongoing: see s 15B(2)(d); and
(i) To the extent that Paul Collis now provides the gratuitous domestic services to the twins this is due in large part to the plaintiff's incapacity to provide the same: see s 15B(11).
33. These hours are separately claimable by the plaintiff pursuant to s 15B of the Act. To the extent that elements of the claim made under s 15 are referable to Paul Collis providing incidental care to the twins, the plaintiff accepts that these hours are not separately recoverable under s 15B by reason of s 15B(10) of the Act ." (emphasis added)32. The evidence of Paul Collis establishes that at least on and from mid-2008 he spends more than 6 hours per week providing gratuitous domestic services to the twins that otherwise would have been provided by the plaintiff. …
48 The italicised portion of the last quoted paragraph is not controversial as a bare statement of the law. It is regrettable that the plaintiff did not proceed to delineate or particularise which portions of the claims under s 15 and s 15B respectively could be said to have overlapped and were not for that reason compensable twice. My original concerns remain unaddressed.
49 The plaintiff's position became no clearer in the submissions that followed under the heading "F. The Plaintiff's Claim for Future Care". At least three of the paragraphs under that description should be noted:
"34. The plaintiff claims 21 hours per week ongoing domestic assistance pursuant to one or both of her common law entitlement as regulated by s 15 and her statutory claim pursuant to s 15B of the Act.
36. Equally there is a more than reasonable expectation that the plaintiff will continue to be unable to provide domestic services to her twins for the future and that Paul Collis will continue to provide them in lieu of her. As such the s 15B claim is equally maintainable in respect of the future."35. This claim is, it is submitted, readily justified solely by reason of her ongoing domestic care needs pursuant to s 15 for the reasons cited above.
50 With great respect to the author of these submissions, and allowing for my own frailties, the extent to which these submissions were intended to address the question raised by s 15B(10), if they intended to do so at all, wholly escapes me. However, the true nature of the plaintiff's case finally emerged during the course of oral argument when Mr Hennessy of senior counsel for the plaintiff made the following clear submission in response to a question that I posed concerning the extent of the claim for the twins into the future:
HENNESSY: Your Honour that is correct. You see, the six hours extra that I referred to earlier, really when you look at the document, relates to transportation and so on, collecting the children, leaving the home. That is going to continue on in high school so that that puts a time limit on that. As soon as they are out of high school the claim under 15B would seem to disappear, so that is the time limit ." (emphasis added)"HIS HONOUR: Do I need to know that, though? Don't I simply need to know the ages that they require care and the ages when they are not subject to care?
51 The plaintiff's claims were simply not exposed in her written submissions. Despite that, or probably because of it, Mr Hennessy made some further particularly helpful oral submissions before me, which bear reproduction in these reasons in the present context. They were considerably more detailed than what is reproduced, but the following sample is helpful:
"As to the claim for domestic assistance, the claim is presumably based on convenience more than anything else because the situation had crystallised by 2003 . The claim for domestic assistance dates from 23 May 2003. I think that was the date on which she ceased work as well your Honour.
Your Honour there is a claim for nine hours per week from 23 May 2003 to date . There is an additional claim--
HIS HONOUR: I am sorry. It is actually 1 May on your schedule.
HENNESSY: I will just check that.
HIS HONOUR: Not much will turn on it but the figures are calculated from the first.
HENNESSY: The figures might be. I will check the evidence but there may be an error in those figures. Anyway I will check on that.
And then superimposed upon that, if I may put it that way, from 2 February 2007 is a claim for six hours per week and according to the particulars and the evidence, that was the date on which the children commenced school .
In many ways your Honour that should make it fairly easy in that the six hours is essentially claimed and indeed the evidence is to the effect that the six hours is accumulated by the preparation of lunches and so on for school, taking the children to and from school and dealing with their homework. So that if the plaintiff is entitled to succeed on those matters, she is indeed entitled to succeed under 15B as distinct from any other section.
Perhaps if I deal with the evidence that was before your Honour before today, and deal with the way in which we put the case and the evidence upon which we rely if that is to be the evidence only that your Honour takes into account." (emphasis added)That is to be distinguished from what is capable of duplication, that is a claim for meal preparation at home and washing of children's clothes and things of that nature. One can really imagine that there would be a duplication in such a case between the claim for the mother where the husband has to do the washing on behalf of the mother, and that is under section 15, and where there is a claim formulated where that is also done for the children. Now, that according to the evidence, the evidence seems to be distinct, the six hours is only accommodated with the schooling and the lunches and the other matters are either not claimed or they are not claimed and that makes it easy because there is no need to assess whether there is duplication.
52 It will be apparent that Mr Hennessy's comments somewhat perspicaciously anticipated that I was not attracted to a presentation of the plaintiff's case that purported to incorporate evidence that went beyond simply bringing that case up to date, by recasting or expanding it beyond its original breadth. The submissions are also an accurate reflection of, and correspond precisely to, the evidence given at the trial, which I have summarised above at [16]. It is the same claim as that made at the original hearing described by me at [299] of my original reasons for judgment and reproduced above at [1]. It is appropriate in these circumstances therefore to insist that the plaintiff's claim continues to be limited, and to conform, to that evidence. This should be so if for no other reason than the dictates of s 56 of the Civil Procedure Act, although other reasons will be apparent. These include the need to offer the defendant the opportunity to test the further evidence by the assembly of evidence of its own, by cross-examination of the plaintiff and her husband, as well as the countervailing consideration of avoiding if at all possible subjecting the plaintiff to the rigours of the witness box, having regard to her psychological and psychiatric conditions, as well as her previous experiences in that location to which my original reasons refer.
Defendant's submissions
53 The defendant's primary submission was that the plaintiff does not even now make it plain how or in what respects her claim is based on s 15 or s 15B. The defendant submitted that for that reason the plaintiff's claim for domestic assistance should be wholly dismissed. The defendant submitted further, and subject to the qualifications I have announced, I accept, that the only evidence that I should consider is the evidence that was originally before me.
54 With specific reference to the plaintiff's written submissions of 18 March 2010, the defendant contended that they "do not make her claim any clearer". The defendant perceived that the plaintiff appeared to be claiming for services of a domestic nature that come within the definition of "attendant care services" under s 15(1)(a) but not services relating to nursing under s 15(1)(b) or services that aim to alleviate the consequences of an injury under s 15(1)(c). So much appears uncontroversial.
55 The defendant emphasised that under s 15(2) and s 15(3) there are restrictions on the award of damages for the provision of "gratuitous attendant care services". However, the defendant contended that the plaintiff has made no attempt successfully to come to terms with, or in the defendant's counsel's actual words, "to engage", the requirements of s 15(4) or s 15(5). Submissions no more detailed than those were made by the defendant on this point. However, the subsections in question appear to me to amount to nothing more than a limitation or restriction upon the amount of damages that can be recovered under s 15, expressed as a matter of legislative or social policy, and not an issue requiring proof as a precondition to an entitlement to damages at all. If I am wrong about that, I will permit the plaintiff, if so required, to lead evidence about it.
56 More fundamentally, the defendant principally contended that there had not been any attempt by the plaintiff properly to engage or consider s 15B(10), which the defendant characterised as providing that damages may not be awarded to the plaintiff under s 15B if she could recover damages for gratuitous attendant care services in respect of the same injury that caused the loss and the provision of such attendant care services to her also resulted in her dependants being provided with domestic services that she has lost the capacity to provide. The defendant's contention was that the plaintiff should have made it clear precisely what elements of the claim under s 15 were referable to her husband's provision of incidental care to their twins, which would have been most if not all of the claim, but that she failed to do so. This was in essence a complaint that the opportunity afforded by me to the plaintiff in the first instance in my original reasons for judgment was not availed of, and that no further or other opportunity or concession should now be accorded to her in the circumstances.
57 Finally, whatever other challenges the defendant made to the plaintiff's case on these issues, I did not perceive it ultimately to contest the fact that the plaintiff's evidence established, in numerical terms at least, a need for the provision of nine hours per week of attendant care services and the loss of a capacity to provide domestic services of six hours per week. In the way that the evidence in this area emerged, and having regard to how these issues were dealt with at the original hearing, this approach was unexceptionable and proper.
Consideration
58 But for the oral submissions made at the further hearing, to some of which I have referred and reproduced above, the defendant's principal submission would have had substance. It was, after all, a written submission made in response to the plaintiff's written submissions of which I have already been mildly critical. In the light of the reasonable and practical approach adopted at the further hearing by senior counsel for the plaintiff, the dispute that provoked the further hearing, and which for all I know may also well have been an impediment to an unlitigated resolution of this aspect of the case, has in my opinion now been explained and resolved.
59 In the circumstances, therefore, I consider that the plaintiff is entitled to damages for gratuitous attendant care services for the past from 1 May 2003 until today at the rate of nine hours per week and continuing thereafter from today at the same rate of nine hours per week for her actuarially assessed or expected lifetime. That is an entitlement pursuant to s 15 of the Act.
60 Furthermore, the plaintiff is entitled to damages from 1 February 2007 for the loss of her capacity to provide domestic services to her dependent children at the rate of 6 hours per week until a notional date of 6 August 2016, when the twins will be effectively 15½ years of age. This is an entitlement pursuant to s 15B of the Act. I have reduced the period during which the plaintiff is entitled to damages under s 15B upon the basis that the nature and extent of the domestic services to be provided in respect of the children will progressively diminish as they mature, so that even though they will still be provided with domestic services that the plaintiff is unable to provide until they turn 18, they will also undoubtedly have reached a stage, where they require less than the six hours of domestic services for which I have provided, at some time before they turn 15. For example, I do not consider it to be unreasonable to assume, having regard both to the terms of s 15B(11)(c), and the application of common sense, that the twins will as adolescents be capable of preparing their own breakfast and school lunches, dressing themselves and tidying their rooms, or not permitting anyone else to do so in any event, going to school on public transport and unassisted by their parents as an almost inevitable preference, and attending sporting activities either on their own as a matter of capacity or as well (in my experience) as a distinct matter of choice. They will also be likely to acquire drivers' licences before they turn 18 as well.
61 I am also of the opinion, as my original reasons for judgment will have made abundantly clear, that the plaintiff's capacity to provide the domestic services in question before she sustained the relevant injury, was wholly unaffected by anything that afflicted her before the injury was sustained: see s 15B(11)(a). There are also no persons of the type to which s 15B(11)(b) refers in respect of whom damages could not be awarded under s 15B(2) whom I have had to take into account in determining the value of any gratuitous domestic services that the plaintiff has lost the capacity to provide.
62 In forming these views I have taken into account the fact that the evidence reveals that there is a reasonable need for the gratuitous attendant care services to be provided, as required by s 15(2)(a) of the Act, and that the need for those services has arisen solely because of the injury to the plaintiff to which the damages relate as required by s 15(2)(b) of the Act. I am also satisfied that the services would not be, or would not have been, provided to the plaintiff but for her injury as required by s 15(2)(c) of the Act.
63 I am also satisfied that the requirements of s 15B(10)(a) and 15B(10)(b) are not an impediment to the recovery by the plaintiff of damages for the loss of her capacity to provide domestic services to her dependent children. In the way that the plaintiff's case and her claims have now been presented and explained, she does not make a claim for damages for gratuitous attendant care services within the meaning of s 15 in respect of the same injury that caused the loss which also amounts to the provision of attendant care services that resulted in the plaintiff's children being provided with the domestic services that the plaintiff has lost the capacity to provide. There is no longer any double counting of, or overlap between, the damages to which the plaintiff has become entitled for gratuitous attendant care services provided to her in accordance with s 15 and damages to which she has become entitled for the loss of her capacity to provide quite distinct domestic services to her children in accordance with s 15B. I am satisfied as well that the plaintiff has established the matters referred to in s 15B(2)(a) to 15B(2)(d) inclusive.
Conclusions and orders
64 I consider that the following orders should be made:
(1) For the period from 1 May 2003 until 6 August 2010 I award a sum of $59,377.50 calculated for nine hours per week at the average hourly rate of $17.50 pursuant to s 15 of the Civil Liability Act2002 .
(As an estimate, 377 weeks at nine hours per week at say $17.50 per hour = $59,377.50)
(2) For the period from 7 August 2010 I award a sum of $140,725.60 calculated for nine hours per week at the average hourly rate of $19.75 pursuant to s 15 of the Civil Liability Act2002 by reference to a five per cent multiplier over 42 years of 931.6.
(As an estimate, nine hours per week at say $19.75 per hour over 42 years with a total life expectancy for a 46 year old female of 88 years at a five per cent multiplier of 931.6 x .85 for vicissitudes = $140,725.60).
(3) For the period from 1 February 2007 until 6 August 2010 I award a sum of $19,380 calculated for six hours per week at the average hourly rate of $19 pursuant to s 15B of the Civil Liability Act2002 .
(As an estimate, 183 weeks at six hours per week at say $19.00 per hour = $20,862).
(As an estimate, six hours per week at say $19.75 per hour over six years at a five per cent multiplier of 271.4 = $32,160.90).(4) For the period from 7 August 2010 until 6 August 2016 I award a sum of $32,160.90 calculated for six hours per week at the average hourly rate of $19.75 pursuant to s 15B of the Civil Liability Act2002 by reference to a five per cent multiplier over six years of 271.4.
65 By my estimation, using approximately median figures for ease of calculation, this produces a total sum of something in the order of $253,126.
66 Apart from the particular way in which I have treated the damages for the loss of the plaintiff's future capacity to provide domestic services to the twins, I have made no other deduction for vicissitudes on that aspect of the claim. The defendant has at least faintly raised the plaintiff's failure to establish the matters for which s 15(4) and s 15(5) of the Act provide, as well perhaps as the matters referred to in s 15B(4). Without wishing to encourage the prospect, it occurs to me that some opportunity to make submissions on these issues may be requested. Accordingly, and against the contingency that there may be arithmetical or similar matters that I have overlooked arguably bearing upon calculation of the final amount to which the plaintiff may become entitled, I will direct the parties to bring in short minutes of order to give effect to these reasons by no later than 4.00pm on Friday 13 August 2010, or at such earlier time as may be arranged by them in consultation with my Associate. I will also hear the parties on the question of costs, if necessary, at that time.
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