September 2020

Caring to the end

It has long been recognised that a plaintiff can recover his or her own damages to the reasonable extent of domestic care which has been provided to the plaintiff as a result of injuries sustained in the relevant accident.

The law relating to this head of damage, which is often referred to as Griffiths v Kerkemeyer damages, has been fine-tuned over time, but is now generally well understood.

Much more recently, the law relating to damages for the plaintiff’s loss of the ability to provide care to others has evolved very quickly, and continues to do so.

Principles

The ability for a plaintiff to seek these damages is laid out in section 15B of the Civil Liability Act. The section says that the Court needs to be satisfied that the plaintiff had been providing domestic services to the dependant before the onset of the plaintiff’s incapacity. It is also a requirement that the dependants cannot be capable of performing those services themselves.

It is a situation which regularly arises in asbestos litigation, where most of the plaintiffs are elderly men. In some cases, the man has shouldered part or all of the burden of looking after his incapacitated wife, but the onset of the man’s asbestos disease will prevent him from continuing to provide domestic care to his wife.

How are the principles of section 15B applied in practice?

Evolution

The wording of section 15B has been criticised by the Courts, and there has also been a marked change in how the section is interpreted. For instance, it is not all that long since a judge of the Dust Diseases Tribunal was prepared to find that section 15B damages could be assessed at a figure as low as $5 an hour, such as when the person providing the care, or even just being available to the dependant, was sleeping or resting; see Perez v State of New South Wales [2013] NSWDDT 7.

That approach was soon rejected, and it became clear that the value of the care which would have been provided by the plaintiff to the dependant should be costed at the normal hourly rate, which is currently around $32.

Each case of course turns on its own facts, but the potential quantum of this head of damage was amply demonstrated in Amaca Pty Limited v Raines [2018] NSWCA 216.

In that case the plaintiff, who had mesothelioma, had an adult son who required 24-hour care as a result of a motor vehicle accident many years before. The son was being provided with extensive commercial care as a result of that motor vehicle accident, but was also receiving substantial care from his father (the plaintiff in the Dust Diseases Tribunal claim). Some of the care being provided by the father was passive (being nearby and generally keeping an eye on the son) while other parts of it were active (providing cleaning and other domestic services). The Court of Appeal held that passive care was still a gratuitous domestic service within the meaning of section 15B.

It was noted that, in many cases, care would be provided to a dependant by more than one person. Therefore, to calculate damages, consideration needs to be given to the number of hours of care provided by the plaintiff to the dependant, and the reasonable need of the dependant for those services to be provided by the plaintiff. Given the facts in Raines, this resulted in $1,479,000 being awarded for this head of damage alone.

The Court of Appeal has now also clarified in the recent judgment of Piatti v ACN 000 246 542 [2020] NSWCA 168 that section 15B damages are to be calculated by reference to when the provision of the care would otherwise have ceased, if the plaintiff had not acquired the asbestos disease.

In that case, the plaintiff had been the long-term sole carer for his partner. The plaintiff then contracted mesothelioma. The Court said that the plaintiff’s damages are to be calculated by looking at which one of them was likely to have died first, assuming for that purpose that the plaintiff did not have mesothelioma. On the particular facts of that case, the dependant receiving the care was likely to have died before the plaintiff would have.

Therefore, damages were calculated until the date of the dependant’s likely death, even though this date was well after the plaintiff had already died from the mesothelioma.

Conclusion

This line of cases clearly shows how much care needs to be spent in properly assessing a claim for section 15B damages.

If it is the case, as in Piatti, that the plaintiff was the fulltime carer for his wife or partner before the plaintiff contracted the asbestos disease, then the risk for a defendant is that it will potentially be found liable for a very substantial sum of care which the plaintiff can no longer provide. In extreme cases, this could be for as much as 24 hours a day ($768 a day), until either the plaintiff, or his wife, could otherwise have been expected to die, had the plaintiff’s asbestos disease not intervened.

In practical terms, this means that in a claim with a section 15B component, the defendant needs to pursue two streams of medical enquiry: not only in relation to the plaintiff, but also in relation to the general health and life expectancy of the dependant.

Author: David Greenhalgh