Brooks v Zammit & Anor [2011] QSC 181

This case deals with the assessment of damages for economic loss and care claims for homemakers.

Background

The Plaintiff worked in a variety of occupations, including barmaid, car detailer and shop assistant before starting a family.

She had her first child in 1983 and took 4 years off work, returning again to a variety of occupations, including kitchen hand and meat packer over the next 3 years. Her youngest child was born in 1990 and thereafter she cared for her family but also sold Avon and Tupperware products and used her sewing skills to create bridal gowns. She returned to full-time employment in 2003 but then returned again in 2004 to look after her husband’s children.

Prior to 27 May 2008 the Plaintiff registered with Centrelink and sought work. She had attended the occasional interview but had not secured employment.

On 27 May 2008 the Plaintiff was involved in a high speed motor vehicle accident and sustained multiple and severe injuries. Months after the accident she received a telephone call inviting her to a second interview.

In January 2010 the Plaintiff and her husband took on the care of her grandchildren. The grandchildren were subsequently removed from the Plaintiff and husband’s care due to the injuries they sustained in the accident. Liability was not in issue.

At Trial

At trial, the court had to decide the extent to which the Plaintiff was likely to have exercised her earning capacity if uninjured and the level of care she required.

Past Economic Loss

McMeekin, J held:

“throughout her life Ms Brooks had put the needs of those children dependent on her ahead of any desire to be employed outside the home. As well her husband seemed to have a superior earning capacity and had enjoyed employment up to the time of the accident. It seems unlikely that he would have given up his employment to enable her to work. There was no evidence that he so intended.”

Section 55 of the Civil Liability Act 2003 (Qld) (“CLA”) provides that in the case when loss of earnings cannot be precisely calculated by reference to a defined weekly loss, a court may only award damages if satisfied a person “has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”

According to McMeekin, J., the loss must be established on the balance of probabilities.

The case put forward by the Plaintiff was that, if the accident had not occurred, she was likely to have obtained employment because she was actively seeking work, had impressed her most recent employer and had been invited to a second interview.

However, the Plaintiff had limited skills and experience as she had been out of the workforce for most of the previous 23 years and had difficulties with her confidence. McMeekin, J., considered that there was doubt attending on her obtaining work if uninjured and of maintaining it once she had care of her grandchildren. In addition, the Plaintiff lived 30kms from any significant population centre.

Overall, McMeekin, J., accepted that there was a chance that was more than negligible that the Plaintiff would have obtained employment if not for the accident and awarded $10,000 for past economic loss.

Future Economic Loss

McMeekin, J., held that the considerations relevant to future economic loss were the same as for past economic loss – “There is simply no evidence available to do anything other than make an informed guess.”

Future economic loss was assessed at $165,000 based on the prospects of the Plaintiff getting employment in a business of the type she ran and deducting 10% for the probable expenses of pursuing employment and applying the figure over 20 years. Then adjustments were made for the usual contingencies but recognizing she was much more vulnerable to finding herself unemployed.

Past Gratuitous Care

In her final submission the Plaintiff sought an award for the assistance she needed during her hospitalization. McMeekin, J., rejected the claim on the basis of s.59(4)(b) of the CLA and held that there was no evidence to support the claim or to show why the statutory injunction did not require rejection of the claim. The Plaintiff accepted that the attendance of her family was for comfort only.

Turning to the hourly rate claimed, McMeekin, J., said that the difference between the parties was whether the agency fee should be allowed and what the standard of worker ought to be.

McMeekin, J., held that the Plaintiff only needed basic assistance with domestic chores. A cleaner did not need to hold qualifications. The Plaintiff was also competent of arranging a cleaner herself and did not need an agency to do this for her.

As for the rate to apply, McMeekin, J., held that calling an agency to say that this is our rate does not establish that the rate is the reasonable market cost. The rates claimed were therefore found unreasonable.

McMeekin, J., did say as follows:

“evidence of significant but failed attempts to obtain cleaners without the assistance of an agency might persuade me that an agency fee was necessary, and evidence of a range of agency fees might show that this agency’s rates were a reasonable reflection of market cost.”

Turning to the issue of the number of hours assistance that ought to be allowed, there were two parts to the assessment – the period when there was a significant need for personal care and the period thereafter for assistance with domestic chores and driving.

McMeekin, J., held that there would have been a gradual improvement over time with a lessening need for assistance and accordingly allowed $44,800 for this head of damage.

Future Gratuitous Assistance

McMeekin, J., accepted Ms Purse’s contention that it was inevitable the aging process would mean that the Plaintiff would need more care as time passes and it could not be assumed that family members would continue to provide assistance.

It was also held that allowance had to be made for the prospect of the Plaintiff’s husband pre-deceasing her or the marriage not lasting.

In assessing damages for this head of damage, McMeekin, J., said that it was usual to allow for a discount for contingencies in respect of a claim for loss of earning capacity in the future. This was due to the risk of the Plaintiff not being able to work in the future as a result of death, sickness, accident, unemployment or industrial action. Statistical life expectancy was used in arriving at an award of $300,000.

Implication

  • Where there is a chance that is more likely than negligible that a homemaker would have obtained employment but for the accident then an award for past economic loss is likely to be made.
  • The same considerations for assessing past economic loss also applies to future economic loss – an informed guess has to be made.
  • A claim for assistance during hospitalization will be rejected unless a Plaintiff can show why s.59(4) of the CLA should not apply.
  • Where only basic assistance with domestic chores is required and a Plaintiff is competent to arrange the assistance themselves, a court will not allow an agency fee.
  • As for the rate to be allowed for care, calling an agency to say that this is our rate does not establish that the rate is the reasonable market cost.
  • An agency fee may be allowed if evidence of significant failed attempts to obtain assistance can be shown along with the market rate.
  • A court is likely to hold that a Plaintiff will gradually improve over time and therefore need less assistance.
  • It is inevitable that the aging process will mean that Plaintiff’s will need more care and it cannot be assumed that family members will continue to provide assistance. 
  • In assessing damages for future gratuitous assistance it is usual to allow for a discount for contingencies in respect of a claim for loss of earning capacity in the future. This is based on the risk of a Plaintiff being unable to work in the future due to death, sickness, accident, unemployment or industrial action.