Domestic Assistance
47The primary judge dealt with this at [47]-[54]. As to past domestic assistance, the primary judge accepted the respondent's evidence that her husband provided 7 hours a week care. The challenge was to the need for him to undertake it because, it was put to the primary judge, the respondent had the capacity to do it. This issue was resolved by a finding (based on credit) accepting the evidence of the respondent that she could not do the work. Thus, the conclusion as to past domestic care was for gratuitous services, with the preconditions of 6 hours and 6 months satisfied.
48On appeal, this credit finding was challenged on the basis that the primary judge did not balance what was in the video surveillance with the respondent's oral evidence. This submission should be rejected. The primary judge had regard to the contents of the surveillance video. Having viewed that surveillance film, I find no error in his Honour's acceptance of the respondent's evidence.
49The appellant also relies on evidence of Dr Matalani that was led on behalf of the respondent. His professional opinion was as follows:
"I estimate that because of her injuries and resulting symptoms, she requires domestic assistance in the vicinity of 4-5 hours per week."
50The primary judge, however, commented upon the evidence of Dr Matalani (in the context of discussing future paid assistance) by reference to its assumptions in [52]-[53], as follows:
"[52]A more sound basis for adjusting Dr Matalani's hours stems from his assessment being based on a four bedroom house with two bathrooms and a large yard. As seen above, the evidence was that the house is more extensive so that extra time would be needed in its cleaning. Against this approach, however, is Dr Matalani's inclusion in the tasks to be performed of 'gardening, lawnmowing, external maintenance of the house such as cleaning gutters and heavy handyman's work' .
[53]I do accept, especially in a case where I have entirely accepted the plaintiff's evidence, that her opinion about the number of hours needed to clean her house is significant. However, I must also have regard to medical opinion concerning her capacity to carry out various tasks. Dr Matalani provides this opinion. It seems to me that balancing his opinion with his incorrect history of the size of the house, but on the other hand the inclusion of tasks the plaintiff would not do in any event, that a reasonable assessment for paid care in the future is five hours per week. This also takes into account the likely efficiency of paid cleaners.
[54]The plaintiff is now almost 51 years of age. Her life expectancy is a further 37 years. The only hourly rate of which there was evidence is $39.80 (Exhibit D). I will apply that rate. On the 5% tables the calculation is as follows: 893.6 x 39.8 x 5 = $177,826.40."
51The evidence of Dr Matalani was said to be relevant to both past and future domestic assistance. The past assistance was gratuitous. Acceptance of Dr Matalani's opinion was said to undermine the seven hours spent by the husband according to the respondent's evidence. It was also said to raise a question of construction as to what s 15 is compensating: how long a person takes to do voluntary or gratuitous assistance or what is reasonably required.
52No part of s 15 refers to the services being assessed as though they were performed by professional providers or by reference to any posited objective standard. There must be a reasonable need for the services: s 15(2)(a). The phrase "gratuitous attendant care services" is defined as meaning the services that have been or are to be provided by another. Section 15(3) sets a time for those services by that other person. The number of hours is a factual question, on what has occurred or will occur. Here, the evidence of the plaintiff was accepted: that because of the accident she could not do the housework. There was, therefore, a reasonable need for the services of domestic duties to be provided by her husband. He provided them. It took him seven hours. This was longer, on the findings, than the five hours per week that would be taken by paid professional cleaners.
53The maximum rate for gratuitous assistance is set by ss 15(4) and 15(5). It will likely be, as here, significantly less than the sum for professional rates. Here the agreed figure for gratuitous care was $23 per hour and for paid care $39.80 per hour. Sections 15(4) and 15(5) provide a limit; they do not prescribe an amount. Parties often agree the sum (as they did here). If a gratuitous provider of services was sufficiently slow or inefficient to warrant treatment in the evidence, the appropriate way to reflect this is in the sum awarded per hour.
54Here there was a demonstrated need for housework by the acceptance of the respondent's evidence as to her inability to do it. There was evidence accepted by the primary judge of seven hours per week for over six months. That Dr Matalani expressed an opinion that, properly understood, founded a conclusion that five hours of paid professional assistance was needed, did not make unacceptable the evidence of the respondent that her husband took seven hours. This is especially so in circumstances where Dr Matalani's qualifications for such an opinion (as opposed to medical evidence as to need) are far from clear.
55It was submitted that one only gets payment for satisfying the reasonable need created by the injury. Thus, it was submitted that some objective assessment of reasonable time is implicit in the satisfaction of the reasonable need. But the section does not identify some standard of efficiency in delivery of the services. The services by the person who is providing them gratuitously must be in response to a reasonable need. Those services must be provided for a specified time. The section does not require only those services of a length of time reasonably or professionally provided by some posited objectively skilled person. The section is dealing with the commonplace circumstance that a family member will take up tasks that he or she may not normally do. There is no warrant to imply into s 15(3) a requirement that the time taken to perform the services must be referable to some objective standard of efficiency.
56I see no error in the primary judge's approach to past gratuitous care.
57Criticism was made by the appellant of the reconciliation of Dr Matalani's evidence. It was said to be speculation. I do not agree. The primary judge was alive to the inaccuracies and deficiencies in the assumptions and adjusted the evidence accordingly. That was part of the legitimate process of fact finding.
58As to future care, the primary judge allowed 5 hours per week for the rest of the respondent's life: see [53]-[54] of the reasons.
59The written submissions did not focus upon any particular error in the finding of paid care other than lack of necessity. The evidence, however, gave ample basis for paid assistance. The voluntary assistance by the husband was coming at a financial cost to him and the family. Not only was he leaving home at 3.30 am and commencing work at 4.30 am in order to be home in the early afternoon to attend to household chores, but also he was giving up overtime and Saturday work to enable him to carry out domestic duties. That evidence justified paid assistance. The evidence was that the husband was making economic sacrifices to do domestic duties which a paid professional would take five hours per week. It was legitimate to provide for that need at commercial rates to enable the husband to cease sacrificing economic benefits to provide it.
60Thus, I do not see any reason why paid care at five hours per week should not be awarded. In oral address, it was submitted by Mr Bridge that the judge failed to address (in the lifetime award) the recognition that age alone was likely to create a similar need for domestic assistance in later years: see Miller v Galderisi [2009] NSWCA 353 at [20]. Further, some degree of gratuitous assistance could be reasonably be expected from the husband.
61The matter was only lightly touched on in oral argument. No real evidential foundation was laid for the argument. As the years advance, it can be accepted that there will be a need for assistance with housework and domestic chores because of age. That said, for some, as age progresses the tortiously caused injuries may magnify the need for assistance and earlier than would otherwise be the case. It is also reasonable to expect a smaller house in later years. Little assistance was given by the parties in address, or in evidence about these matters. The primary judge did not address this because it was not put to him. In these circumstances it is not proper to interfere on appeal with an approach which if challenged might have been met by evidence.
62The order that I would make is: appeal dismissed with costs.
63CAMPBELL JA: I agree with Allsop P.
64MEAGHER JA: I agree for the reasons given by Allsop P that the appellant's challenges to the primary judge's assessments of non-economic loss and future economic loss fail. I also agree for the reasons his Honour gives that the primary judge is not shown to have erred in relation to the awards of damages for past gratuitous care services and for paid future domestic assistance. The appeal should be dismissed with costs.