In a recent NSW Court of Appeal decision of Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wifkich Pty Ltd (2013) NSWCA 443 (18 December 2013), the Court of Appeal provided some guidance on what evidence is required to substantiate a claim for domestic care.

The Plaintiff was injured in 18 April 2008 when hit from behind by a forklift. He brought proceedings for damages against Boral both as occupier of the premises and as the employer of the forklift driver. The Plaintiff succeeded in the District Court and was awarded damages of nearly $1.2m. Boral filed an appeal in relation to contributory negligence and damages. Insofar as domestic assistance was concerned, Boral submitted that the award of damages for past and further domestic assistance was excessive.

At the trial, the primary evidence in respect of the amount of assistance the Plaintiff received was his own evidence and those who provided the services, which were primarily his sister and his nephew. The net effect of the evidence was that he received assistance of some 2½ hours per week in the garden and 2 hours per week with housework. Those figures do not meet the threshold required by s15(3) of the Civil Liability Act 2002 (NSW) (which provides for a minimum of 6 hours per week for 6 consecutive months before a claimant can claim damages for gratuitous care). Based on the lay evidence alone, the Plaintiff’s claim for gratuitous care failed.

However, the Trial Judge also relied upon evidence from medical practitioners. Counsel for the Plaintiff drew the Court’s attention to the report of Dr Matthew Giblin, orthopaedic surgeon, dated 18 July 2011 who stated “domestic assistance is recommended 4 hours a fortnight for gardening and 4 hours a week for homecare”. Based on this expert evidence, the Trial Judge found the Plaintiff overcame the threshold and was entitled to damages.

In Dr Giblin’s report there was no suggestion that he had explored with the Plaintiff the size and configuration of his home, the nature of his domestic environment prior to the incident or the basis on which he made his assessment. Dr Giblin did not provide any explanation as to how he reached his finding that the Plaintiff required 6 hours per week assistance.

Justice Basten commented on the approach of the Trial Judge to the medical evidence as follows - “on what basis the orthopaedic surgeon assessed the number of hours per week required to undertake domestic duties and gardening was not revealed. It is not the kind of “expertise” which is normally attributed to orthopaedic surgeons. Justice Basten found that the evidence was clearly inadmissible, although not objected to, and should be given no weight at all.” He remarked “why the Court was taken to it is obscure.”

Accordingly, Justice Basten held that the evidence did not establish on the balance of probabilities that the Plaintiff had a need in the past (or at the time of trial) for domestic assistance at a level of intensity of 6 hours per week over a period exceeding 6 months. The amount allowed for domestic care should be removed.

In relation to future domestic care, the Trial Judge awarded an amount of $168,801. He did so on the basis that the Plaintiff had established an entitlement to 6 hours of assistance per week and such an entitlement would continue over 33 years (that is until the Plaintiff was 85 years of age). The Trial Judge allowed 15% reduction on account of vicissitudes.

Justice Basten found that the approach of the Trial Judge was problematic for 3 reasons namely:

  • if the Plaintiff  sought  to  recover  an  amount  on account of domestic assistance to be calculated at commercial  rates, rather than a rate for gratuitous assistance, the burden lay on him to establish that those presently   providing gratuitous  assistance would not continue to do so;
  • secondly,  the  future   circumstances   were   not matters   to  be  established  on  the  balance  of probabilities,    but were to  be  considered  as hypothetical  matters  which, like vicissitudes, are properly addressed by reference to possibilities and probabilities in a  proportionate sense, rather than on an all or nothing basis;
  • thirdly, the suggestion that, absent the accident, the Plaintiff  would have expected, subject only to the normal  reductions for vicissitudes, to continue to carry out the domestic activities referred to until the age of 85 was implausible. A greater reduction for the vicissitudes, particularly of age, was required.

Justice Basten reviewed the evidence at the trial. Justice Basten agreed that it was true that the Plaintiff gave evidence that he would prefer if monies were available to pay someone to come and help around the house (rather than rely on family). Justice Basten, however, commented that while that evidence may be accepted, it does not establish a need caused by the accident for which Boral must pay. The witnesses were not asked if they were willing or able to continue to provide the assistance.

Justice Basten then addressed the question as to the number of hours per week which would be required in the future by way of domestic assistance. He stated a reasonable approach would be to accept that at some stage the Plaintiff would need to obtain some hours of paid assistance with household activities and with gardening. It was also possible that he will be provided with gratuitous assistance in the future exceeding 6 hours a week.

Justice Basten stated that while it is possible to calculate  the present value of services with a delayed starting date, the relevant elements (when gratuitous services would no longer be available, the level of services attributable to accident related disabilities and the risks associated with age and obesity) are matters of speculation and not capable of precise calculation in any useful sense.

Justice Basten considered it appropriate to provide a cushion for future domestic care of $50,000.

Implications

In light of the findings of the Court:

  • Object to any medical evidence  from  a  medical expert who does not have the appropriate expertise (for example   an orthopaedic surgeon) on the amount of assistance  required, does not disclose reasons for his opinion and /or does not disclose on what facts the doctor relies to support that opinion.
  • Scrutinise the  evidence  of  witnesses  who  give evidence  as  to  the  assistance  provided  as  to whether they are able to continue and willing to provide the assistance in the future.
  • Allow  (or  argue  for)  a  greater   reduction   for vicissitudes when calculating future care.
  • Ensure appropriate expert evidence is obtained on the  claim for domestic assistance, for example where     appropriate,    qualify    an    occupational therapist.
  • If qualifying an orthopaedic surgeon to comment on the   claim for domestic  assistance  ensure  the instructions are specific so the doctor discloses:
    • the  reasons  on  which  he  reaches  his opinion;
    • on  what  facts  does  the  doctor  rely  to support that opinion.
    • their   requisite   expertise   so   as   to   be qualified to provide such an opinion.